28 Med. Sci. & L. 1 (1988)

handle is hein.journals/mdsclw28 and id is 1 raw text is: 





Med. Sci. Law (1988) Vol. 28, No. 1 Printed in Great Britain


Editorial

Dr JOHN HAVARD MA MD LLB
Secretary, British Medical Association

MENTAL CAPACITY
'The respective roles of the doctor and the lawyer
are quite different' observed Alec Samuels
addressing the Mental Health and Legal Capacity
Symposium, jointly organized by the British
Medical Association, the Law Society and the
Academy on 29 October. It was clear from the
papers read at the Symposium that failure to
recognize this fact has been responsible for much
of the difficulty experienced by both professions
in dealing with the problems raised by the issue of
mental capacity in both the civil and criminal
areas of law.
  The widest gulf between the approaches of the
two disciplines exists over the issue of insanity in
criminal law. The legal approach enshrined in the
McNaghten Rules, which for procedural rea-
sons connected  with sentencing are rarely
invoked these days, excludes from the defence of
insanity any person who knew that what he was
doing was wrong. The difficulty arises in that an
insane person will often know what he is doing
and will know that what he is doing is regarded
as wrong. Even where the Rules are successfully
invoked, the Judge has no option under the
Criminal Procedure (Insanity) Act of 1964* but
to leave the defendant to be sent by the Home
Secretary to a Special Hospital under an
unlimited restrictive order. As the result is often
the same when a mentally abnormal offender is
convicted of manslaughter on grounds of dimin-
ished responsibility, the insanity defence under
the Rules is not often used these days. Neverthe-
less, it does avoid the necessity of convicting a
mentally abnormal offender of a serious offence.
  As was pointed out at the Symposium, the
concept of diminished responsibility is a child of
the insanity laws, and some would call it an
illegitimate child, as it was introduced in order to


*(c84, s5 and Sch 1).


avoid a sentence of execution being passed
following the report of the Royal Commission on
Capital Punishment in 1953. It seems that the
degree of abnormality of mind is only minimally
related to the chances of a successful plea. Many
cases have been reported in which defendants
who were so mentally ill that they might have
successfully raised a plea of insanity have been
found not to be suffering from diminished
responsibility. In other words, diminished respon-
sibility is an entirely legal concept and not a
psychiatric definition. Another problem arises
over the defendant with undisputed psychosis
who insists on pleading not guilty, who is
convicted and who receives a mandatory life
sentence. It seems that in one out of every seven
cases of diminished responsibility considered to
be psychotic, the accused is sent to prison and not
to hospital-although they may later be trans-
ferred. The position of depressives is particularly
unsatisfactory as they may recover with treatment
before trial. Accordingly, Prison Medical Officers
sometimes withhold medication until a psy-
chiatric assessment has been made.
  Insofar as mental capacity in criminal offences
is often associated with charges of homicide, it is
interesting to note the close relationship which
often exists between the characteristics of the
offender and the victim. Many homicide victims
have a psychiatric history of personality disorder,
drug dependence or alcoholism, and this fre-
quently precipitates the assault which led to their
death. In half the cases the victim is a member of
the same family, and in only a quarter of the
cases is the victim a stranger-truly an unusual
crime.
  In the civil area, the most interesting develop-
ment has been the introduction of the enduring
power of attorney whereby it is possible to avoid
the inconvenience of a power of attorney being
automatically revoked as soon as the donor's

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