A Mother's Love? Postpartum Disorders, the DSM-5 and Criminal Responsibility – A South African Medicolegal Perspective

Abstract

The interface between criminal law and the field of psychiatry has manifested predominantly with reference to the defence of pathological criminal incapacity, more commonly referred to as the insanity defence. The threshold requirement for establishing the defence of pathological criminal incapacity entails that the accused at the time of the commission of the offence should have suffered from a ‘mental illness’ or ‘mental defect’. Once it is established that the accused suffered from a mental illness or mental defect at the time of the commission of the offence, an assessment is conducted to determine whether the illness or defect rendered the accused either incapable of appreciating the wrongfulness of the act or of acting in accordance with such appreciation. The problem that inevitably arises during the assessment of the defence relates to the fact that the terms ‘mental illness’ and ‘mental defect’ are not defined. Mental health practitioners mainly rely on the DSM for answers, yet the DSM cautions that the disorders contained may not be wholly relevant for legal purposes. Postpartum disorders are generally classified as postpartum depression and the more serious manifestation, postpartum psychosis. Postpartum disorders were not provided for in the DSM-IV (1994) or the DSM-IV-TR (2000) as distinct mental disorders. The DSM-5 came into operation in 2013, and yet again these disorders fall outside the scope of the DSM-5. Research indicates that the mental health professional plays a vital and pivotal role in explaining these disorders and the various complexities associated with them. The focus of this article is to illustrate the phenomena of postpartum depression and postpartum psychosis against the backdrop of the defence of pathological criminal incapacity within the context of South African criminal law. The vital and essential role of the mental health expert within this context is explored.

In those unhappy cases of the death of … children, as is every action indeed that is either criminal or suspicious, reason and justice demand an inquiry into all the circumstances; and particularly to find out from what views and motives the act proceeded. For, as nothing can be so criminal but that circumstances might be added by the imagination to make it worse; so nothing can be conceived so wicked and offensive to the feelings of a good mind, as not to be somewhat softened or extenuated by circumstances and motives. In making up a just estimate of any human action, much will depend on the state of the agent's mind at the time; and therefore the laws of all countries make ample allowance for insanity. The insane are not held to be responsible for their actions.^1.

If Rhett had understood the changes we mothers go through after having a baby, perhaps he would not have left Scarlett.^2.

1. Introduction

Andrea Pia Yates was a registered nurse who later became a stay-at-home mother who also home-schooled her children. Whilst being almost consistently pregnant, she provided care to her bedridden father as well as her family which included Noah, aged seven, John, aged five, Paul, aged three, Luke, aged two and Mary, six months old. Yates had a history of psychiatric illness. After the birth of Noah she constantly blocked her thoughts when she felt Satan's presence and when she believed she heard Satan tell her to pick up a knife and stab the children. She did not reveal these thoughts to anyone out of fear that Satan would harm her children. She also believed that some of her doctors were Satan or were influenced by Satan. Six months after the birth of the fifth child, Yates began to behave very strangely and her family described her behaviour as ‘catatonic’. Even after two psychiatric hospitalisations, Yates’ condition worsened. When her psychiatrist discontinued her antipsychotic medication two weeks prior to the tragedy, she became more psychotic. On 20 June 2001, Yates drowned all five of her children in the bathtub and then laid them on a double bed in the master bedroom. She recounted to police officers, without emotion, what had happened. Yates was charged with capital murder after confessing to the murder of her five children.

The facts of Andrea Yates serve to set the stage for the theme of this contribution which entails the assessment of criminal responsibility in cases where mothers who suffered from postpartum disorders killed their newborn babies. The phenomenon of mothers who kill their children has featured with great frequency over the past few decades. The idea of a mother killing her newborn baby is horrific. At face value it would appear as one of the most atrocious criminal acts perpetrated on the most vulnerable and defenceless of victims. The reality is, however, that mothers who kill their infants often perform these criminal acts as a result of their suffering from serious mental disorders often unknown to themselves or close family members. Postpartum disorders, and more specifically, postpartum psychosis are examples of such disorders brought on by hormonal changes associated with childbirth.^3. The erratic, abnormal and disruptive behaviour some women experience after childbirth had been documented long before the advent of the nineteenth century.^4. Some scholars trace the origin of postpartum disorders as far back as the time of Hippocrates.^5.

Postpartum disorders are not catered for as distinct mental disorders within the framework of the DSM-5.^6. The notion that a mother would kill her newborn baby is difficult to fathom. These mothers, however small the percentage of them, often suffer severe mental disorders, more specifically postpartum mood disorders. Within the context of the South African criminal law, the defence that an accused will invoke in such a scenario would be that of pathological criminal incapacity, often referred to as the ‘insanity’ defence. The interface between criminal law and the field of psychiatry and to a lesser extent, psychology, has manifested predominantly in pathological criminal incapacity or differently described criminal non-responsibility attributable to mental illness.^7.

The defence of criminal incapacity is concerned with the human mind and the human psyche. The interplay between law and medicine with specific reference to the fields of psychiatry and psychology is fundamentally rooted in the defence of pathological criminal incapacity. In cases where the defence of pathological criminal incapacity is raised in South Africa, the Criminal Procedure Act provides for a panel of three psychiatrists and a clinical psychologist to evaluate, observe and report on the mental status of the accused.^8.

One of the primary sources of conflict between psychiatry and criminal law in cases where pathological criminal incapacity is raised relates to the definition of ‘mental illness’ or ‘mental defect’. In order to establish the defence of pathological criminal incapacity, it has to be proved that the accused at the time of committing the offence suffered from a ‘mental illness’ or ‘mental defect’ which rendered him or her incapable of appreciating the nature and/or wrongfulness of his or her act or omission and/or acting in accordance with such appreciation of wrongfulness. The threshold requirement for pathological criminal incapacity is thus mental illness or defect.

The problem with the current defence of pathological criminal incapacity is that it does not specifically identify the mental disorders which could constitute a ‘mental illness’ or ‘mental defect’. The defence only provides for the specific effects that must result from a particular ‘mental illness’ or ‘mental defect’. This problem is exacerbated by the fact that the term ‘criminal incapacity’ is a legal term and not a medical one.^9. The question that falls to be considered is whether criminal law and psychiatry should not work together rather than against each another where the defence of pathological criminal capacity is raised. The human mind and psyche remains complex and difficult to analyse. Should the assessment and definition of ‘mental illness’ not be left to the medical profession?

Stone correctly states that extreme forms of mental illness, such as schizophrenia, pose fewer challenges to the legal system than the so-called ‘grey zone’, where milder disorders and personality disorders can be traced. These milder disorders, however, present their own challenges.^10. Impulse control disorders could very well fall within the latter category of disorders posing various challenges to the legal system.

During the assessment of mental disorders, use is made of the DSM-5. The problem that inevitably arises relates to the reality that postpartum disorders are not included as distinct mental disorders within the diagnostic framework of the DSM-5. A related problem is that an accused may suffer from a postpartum disorder which satisfies the clinical criteria, yet such mental illness may perhaps fall short of the benchmark required to satisfy the legal criterion. The latter is further exacerbated by the fact that there has to be a causal nexus between the mental illness an accused suffered from at the time of the commission of the offence.

Within the ambit of the defence of pathological criminal incapacity, the question that falls to be assessed is whether an accused who commits an offence as a result of suffering from one or more of the postpartum disorders will be able to invoke the defence of pathological criminal incapacity. A related question to be determined is whether postpartum disorders will be sufficient to exonerate an accused of criminal responsibility or whether such disorders will merely serve to mitigate sentence. In this contribution, the author will address the mental disorders clustered under the tag of postpartum disorders in conjunction with their clinical criteria against the backdrop of the defence of pathological criminal incapacity within the South African context. In addition, emphasis will be placed on the more serious counterpart, namely postpartum psychosis, as this disorder is the most likely disorder to feature within the context of the defence of pathological criminal incapacity in respect of postpartum homicides.

2. An Analysis of Postpartum Mood Disorders

Postpartum mood disorders are distinctly classed into three categories: postpartum blues (baby blues), postpartum depression and postpartum psychosis.^11.

2.1. Postpartum Blues

It is estimated that approximately 80% of all women go through the baby blues.^12. General symptoms experienced include crying, irritability, anger, insomnia, exhaustion, anxiety and restlessness.^13. The impact of postpartum blues has been characterised as ‘trivial’ and ‘fleeting’ – rarely lasting longer than two weeks after giving birth.^14. The postpartum blues are generally considered to be a normal reaction to childbirth.^15.

2.2. Postpartum Depression

Postpartum depression affects approximately 10% to 15% of all women who give birth.^16. General symptoms of postpartum depression include disinterest, sleep problems, decision-making difficulties, guilt, thoughts of suicide, feelings of inadequacy and hopelessness and lack of love for the newborn.^17. The risk of suicide or infanticide does come into play with postpartum depression.^18. The onset of postpartum depression is generally slow and gradual. It often commences within the first two months of the baby's life.^19. Research suggests that the causes of postpartum depression can include biological, psychosocial and situational life stress factors.^20. Risk factors for postpartum depression include prenatal depression, childcare stress, life stress, lack of social support, prenatal anxiety, maternity blues, marital dissatisfaction and a previous history of depression.^21.

2.3. Postpartum Psychosis

The most severe form of postpartum disorder is postpartum psychosis, which generally only affects 1 or 2 out of every 1000 mothers.^22. Women suffering from postpartum psychosis generally present with symptoms such as hallucinations or delusions, as well as disordered thought processes which typically necessitate hospitalisation.^23. Butterfield notes that clinical diagnostics indicate that two-thirds of women who kill their children in the wake of childbirth suffer from postpartum psychosis.^24. Dalton describes postpartum psychosis as ‘a mental illness in which the patient has a “frenzied mind” and loses contact with reality. She may be confused, deluded and irrational, or have aural or visual hallucinations. She behaves in an odd, peculiar way, removed from reality, and is not really with it’.^25.

Hospitalisation of the mother is generally considered to be essential for the protection of others, including the baby.^26.

The onset of postpartum psychosis is generally early and at least within the first 24–72 hours after the baby's birth.^27. The new mother who suffers from postpartum psychosis has abnormal thought processes, loses touch with reality and experiences significant mood changes.^28. Delusions and hallucinations frequently occur.^29. Some women believe that the newborn baby is Jesus whilst some women have been reported to hear voices telling them that the baby is the devil.^30.

Kaplan and Sadock note that postpartum psychosis is an example of a psychotic disorder not otherwise accounted for that predominantly occurs in women who recently gave birth, and the syndrome is marked by the mother's depression, delusions or thoughts of harming herself or her infant.^31.

Symptoms of postpartum psychosis appear within days of delivery, with initial complaints of fatigue, insomnia and restlessness. Individuals later develop emotions of not wanting to care for the infant or not loving the infant or the desire to harm the baby, themselves or both. Typical delusions include the belief that the baby is dead or defective.^32. Macfarlane illustrates the problematic scenario of postpartum psychosis in the following manner:^33.

The killing of an infant by its own mother is an act that at once captivates and repels popular attention. Flying in the fact of ‘mother love’, infanticide both shocks common notions of decency and calls out for punishment at law. Yet, many infanticides are committed not by women intent on callously ridding themselves of their children but rather by women who are experiencing a psychosis precipitated by gross postpartum mental illness. That a woman suffered some form of mental illness at the time of the killing calls into question her criminal culpability.

Postpartum psychosis involves the woman displaying signs of losing touch with reality by, for example, having delusional thoughts, hallucinations, extreme anxiety, confusion, agitation, insomnia and suicidal and homicidal thoughts.^34.

Women with a history of bipolar disorder or schizophrenia are generally more susceptible to this form of psychosis.^35. Hammen and Watkins note that women who have experienced one episode of postpartum psychosis have a higher risk for subsequent postpartum episodes with psychotic features, and such episodes are more likely to occur in women with histories of bipolar depression but may also occur in women with unipolar depression.^36.

Wisner et al note that postpartum psychosis differs from other psychotic episodes due to variations in cognition and confusion, and consequently the confused, delirium-like and disorganised profile of postpartum psychosis has been reported repeatedly. They also note that ‘the childbearing psychotic woman had a high score on the factor we named “cognitive disorganisation/psychosis” which contained the following symptoms: thought disorganisation, bizarre behaviour, lack of insight, delusions of reference, persecution, jealousy, grandiosity, suspiciousness, impaired sensorium/orientation, and self-neglect. These women displayed prominent symptoms of cognitive impairment and bizarre behaviour’.^37.

Typical delusional thoughts in these cases relate to the woman's belief that she is being controlled by external forces, that her thoughts are not her own and are placed into her mind by other human beings, that the infant is the devil incarnated, or that there is a possibility that the child will be kidnapped.^38. Hallucinations range from auditory, visual, tactile and command hallucinations directing the woman to kill herself or the infant. A major obstacle for a mental health professional diagnosing a woman with postpartum psychosis has been the fact that postpartum psychosis was not explicitly acknowledged by the American Psychiatric Association's DSM-IV as a discrete mental illness, but rather as a mental disorder with postpartum onset.^39.

Perry notes that the general perception of psychiatrists is that ‘postpartum psychosis does not have enough unique attributes to justify a separate listing in the DSM-IV’.^40. The position has not changed with the publication of the DSM-5. Postpartum disorders are still not included as distinct diagnostic entities. Perry summarises the problematic issue of assessment of these disorders succinctly as follows:^41.

Despite this distinction, however, some courts still look to the DSM as an indicator of scientific validity and find that the absence of recognition in the DSM renders expert testimony regarding the disorder at issue inadmissible, even though other evidence indicates general acceptance among mental health experts.

Due to the fact that postpartum psychosis does not exist as an officially-acknowledged mental disorder, it cannot be used in South Africa to satisfy the test for insanity. The inclusion of this form of psychosis in future diagnostic systems of classification is pivotal, as this rare form of mental illness is a serious phenomenon and does not always satisfy the diagnostic requirements for differential diagnoses such as major depressive disorder, bipolar disorder or schizophrenia.

Macfarlane confirms the latter by stating:^42.

A woman is left to support her defenses with a recognised disorder, such as schizophreniform disorder, even though that disorder lends an incomplete and imperfect description of the actual mental state she possessed at the time of the homicide. It is absolutely imperative, therefore, that the psychiatric profession formalises the aggregated symptoms apparent in the various puerperal mental illnesses so that a woman accused of killing her child in the puerperium may adequately defend herself by way of using a recognised postpartum mental disorder as the basis of her defense.

It is clear that the diagnostic features of postpartum psychosis could give rise to a mental illness sufficient to meet the criteria for the defence of pathological criminal incapacity. The advancements in psychiatric knowledge with regards to this illness calls for a revision of the current DSM-5 to create a distinct diagnostic framework for postpartum psychosis which will assist mental health professionals in assessing and detecting this disease in future.^43. Postpartum psychosis should be classified as a distinct mental disorder with its own diagnostic classification, as this will assist a court in assessing whether the disorder meets the threshold requirement of the defence of pathological criminal incapacity as discussed below.

Meyer and Spinelli encapsulate the severity of postpartum psychosis by observing that:^44.

Postpartum psychosis presents as a psychiatric emergency. Whether mood changeability is associated with bipolar disorder or organic delirium, or both, this presentation may disarm even the psychiatric professional. Because moments of complete lucidity are followed by frightening psychosis for the new mother, the illness may go unrecognised and untreated. Out of shame, guilt, or a paranoid delusional system the new mother may not share her bizarre thoughts and fears.

3. The Defence of Pathological Criminal Incapacity – An Analysis

Within the South African context, the defence of pathological criminal incapacity is embodied and as such defined in section 78(1) of the CPA^45. which provides that an accused is not criminally responsible for an act or omission that constitutes an offence if, at the time of the commission of the alleged offence, the accused suffered from a mental illness or mental defect which rendered him or her incapable of appreciating the wrongfulness of his or her act, or of acting in accordance with an appreciation of the wrongfulness of his or her act.^46. According to Snyman, the test for pathological criminal incapacity comprises a pathological or biological leg which entails that the accused should have suffered from a mental illness or mental defect at the time of commission of the offence; and a psychological leg which entails that the accused should have, as a result of a mental illness or mental defect, lacked the capacity of appreciating the wrongfulness of the act or of acting in accordance with such appreciation.^47. The test applied is accordingly a so-called ‘mixed’ test in that both the pathological as well as the psychological factors are taken into account in determining whether an accused lacked criminal capacity.^48.

The threshold requirement for the defence of pathological criminal incapacity is the existence of a mental illness or mental defect at the time of the commission of the act. The latter requirement is also referred to as the pathological leg of the test for criminal responsibility. In addition, the particular mental illness or mental defect must render the accused incapable of appreciating the wrongfulness of his or her act, or acting in accordance with an appreciation of the wrongfulness of the act.^49. The latter two defences apply in the alternative. Snyman, as well as Burchell and Milton, opines that ‘wrongfulness’ for the purposes of the appreciation of the wrongfulness of an act should denote either legal wrongfulness or moral wrongfulness.^50.

In respect of the defence of pathological criminal incapacity, it is important to note that certain mental illnesses may not necessarily affect an accused's capacity to appreciate the wrongfulness of his or her action, but may nevertheless deprive the accused of the ability to control conduct or to act in accordance with the appreciation of wrongfulness.^51. Section 78(1)(b) of the CPA accordingly provides that even though an accused was capable of appreciating the wrongfulness of his or her act, he or she will still not be criminally responsible if, at the time of the commission of the act, he or she suffered from a mental illness which rendered him or her incapable of acting in accordance with such appreciation. Africa notes that in order to succeed with this defence, it has to be proved that the symptoms of the disorder resulted in a significant impairment of psychological functioning.^52. It is specifically in respect of the latter realm where impulse control disorders could become relevant.

Constructing a defence of pathological criminal incapacity due to postpartum disorders will accordingly entail firstly establishing a postpartum disorder as a mental illness for purposes of section 78(1) as a threshold requirement. It will then have to be established that such postpartum disorder resulted in the inability of the accused of appreciating the wrongfulness of his or her actions (cognitive capacity) or the inability of acting in accordance with the appreciation of wrongfulness (conative capacity). If the cognitive or conative capacity of the accused was sufficiently impaired as a result of a mental illness or mental defect, the accused is said to have lacked criminal capacity.^53.

The test for pathological criminal incapacity or insanity does not define the terms ‘mental illness’ or ‘mental defect’ nor does it specify the particular mental disorders that constitute ‘mental illness’ or ‘mental defect’. What becomes evident is that the test only identifies the effects that should result from a particular ‘mental illness’ or ‘mental defect’. The pivotal role of the mental health professional in the definition and assessment of the mental illness is thereby evident. A question that frequently arises is whether the definition of mental illness should be a medical or a legal prerogative. Slovenko pertinently encapsulates the dilemma as follows:

During the past two centuries the courts have often said that the term ‘disease of the mind’ or ‘mental disease or defect’ in the test of criminal responsibility is not a medical but a legal term. At the same time, however, since medical or psychiatric opinion is necessary to give meaning to the term, it becomes a fusion of legal and medical components. To be sure, no rule of law can be reliable when absolutely dependent on another discipline, but without input from other areas, the law would just be amid verbal agonizing.^54.

It is submitted that the definition of mental illness should neither be solely a medical prerogative, nor exclusively a legal prerogative, but that the professions of law and medicine with specific reference to forensic psychiatry should meet one another halfway in the assessment of mental illness for purposes of the defence of pathological criminal incapacity. The fact remains – the law needs medicine to provide meaning to the defence of insanity, and accordingly, medical input in the assessment of insanity is pivotal, if not essential. The latter inadvertently also applies to impulse control disorders. The presence or absence of impulse control disorders can only be assessed by adequately trained mental health professionals. In respect of expert evidence by mental health professionals, a court is obliged in terms of section 78(2) of the CPA to refer an accused for observation if it is alleged during criminal proceedings that an accused is not criminally responsible by reason of mental illness or mental defect or if it appears to the court that an accused is for such a reason not criminally responsible. The matter is then enquired into and reported on in accordance with section 79 of the CPA which provides for the panel of experts who are required to conduct the assessment and comply with the procedural aspects associated therewith. The latter sections will accordingly also apply to an accused alleging that he or she committed an offence as a result of suffering from postpartum disorders. An in-depth analysis of the terms ‘mental illness’ and ‘mental defect’ falls beyond the scope of this contribution.^55.

4. Medicolegal Issues

It remains an undeniable fact that whenever the defence of pathological criminal incapacity is raised, the two oceans of law and medicine meet. It was noted earlier in this article that the threshold requirement for establishing the defence of pathological criminal incapacity is the presence of a mental illness or mental defect at the time of the commission of the offence, which rendered the accused either incapable of appreciating the wrongfulness of his or her actions, or of acting in accordance with such appreciation. The diagnostic framework currently employed in the diagnosis and assessment of mental disorders is the DSM-5, yet, as its cautionary statement clearly states, the DSM-5 criteria will not necessarily meet legal standards and norms, especially during an assessment for the purposes of determining criminal responsibility. Postpartum disorders present a multifaceted challenge to the criminal justice system whenever the defence of pathological criminal incapacity is raised as a defence. The medicolegal obstacles associated with postpartum disorders within the ambit of the defence of pathological criminal incapacity are multi-layered. The issue is whether postpartum disorders are sufficient to satisfy the threshold requirement of the defence of pathological criminal incapacity – the presence of a mental illness or mental defect.

Central to the assessment of impulse control disorders for the purposes of the insanity defence is the mental health professional who will be requested to conduct the forensic assessment and ultimately present expert evidence in court. A question that arises is whether evidence of postpartum disorders will be admissible and, if so, what probative value the courts will attach to such evidence. A further medicolegal challenge relates to the scientific reliability and validity of expert evidence pertaining to impulse control disorders. A major consideration in cases where persons rely on postpartum disorders in support of the defence of pathological criminal incapacity relates to risk of malingering.

From the diagnostic criteria of the other postpartum disorders, it becomes clear that these disorders could very well become relevant within the context of the defence of pathological criminal incapacity, in particular within the ambit of the second leg of the capacity enquiry dealing with whether the accused, despite his or her awareness of the wrongfulness of the act, had the capacity to act in accordance with such appreciation, and accordingly, whether the accused could exert the necessary self-control. The latter could prove to be extremely difficult to prove in order to succeed with a defence of pathological criminal incapacity and would depend on the degree to which an accused's conative capacity was impaired by a particular postpartum disorder at the time of the commission of an offence.

5. Diminished Criminal Capacity

South African criminal law does not, as yet, have a specific defence of diminished criminal capacity. The principle of diminished criminal capacity or responsibility is, however, enshrined in section 78(7) of the Act which provides that if a court finds that an accused was criminally responsible, but his or her capacity to appreciate the wrongfulness of the act or to act in accordance with such appreciation was diminished as a result of the mental illness or mental defect, the court shall have regard to such diminished responsibility during sentencing.

A person may suffer from a mental illness or mental defect but still be able to appreciate the wrongfulness of his or her act in accordance with such appreciation, albeit that one of these capacities is severely diminished at the time of the commission of the crime. Diminished criminal capacity does not exonerate an accused, but will serve in mitigation of sentence. In determining whether a finding of diminished criminal capacity should be rendered, a court will turn to specialist psychiatric evidence in conjunction with all the other relevant information.^56.

Within the framework of postpartum psychosis, mothers who kill their infants whilst suffering from postpartum psychosis could also rely on section 78(7) in mitigation of sentence, provided that it is established that the woman's capacity to appreciate the wrongfulness of the act or to act in accordance with such appreciation was diminished as a result of suffering from postpartum psychosis.

6. Conclusion

At the outset of this article it was indicated that the aim is to illustrate that postpartum disorders, and more specifically postpartum psychosis as a mental disorder, is still fairly novel for the courts and, as such, often misdiagnosed despite the severity thereof. The lack of formal diagnostic classification of this disorder under the DSM-5 exacerbates the problem. The diagnostic features of postpartum psychosis illustrate that this disorder could classify as a mental disorder or mental illness for purposes of section 78(1) of the South African Criminal Procedure Act. In addition, postpartum psychosis could affect the cognitive or conative mental faculties of an accused to such an extent that criminal capacity excluded. In the alternative, postpartum psychosis could severely diminish these faculties. However, the effect that postpartum psychosis had on an accused at the time of the commission of the act can only be assessed by mental health professionals. The latter fact highlights the need for diagnostic recognition of this disorder in order to assist the mental health professional requested to perform the assessment of the accused and to provide their forensic opinions.

Disclosure statement

No potential conflict of interest was reported by the author.