Arguments for the abolition of the defence of mental impairment

Abstract

This article summarises arguments for abolishing the mental impairment defence, using the example of the defence in Victoria, taking a historical and comparative approach. It considers the defence in practice, its origins and stagnation in medieval and Victorian England, a better approach based on modern developments in the UK and Europe, its resistance to meaningful reform, and its failure to achieve its laudable, humane and principled aim of sparing vulnerable people with severe mental health problems from punishment. We conclude that the only way to actually achieve this aim is to abolish the mental impairment defence and replace it with an approach that allows for flexible mental health disposals for mentally disordered offenders based on clinical needs and, where necessary, the need for containment, incorporated in and aligned with mental health legislation, regardless of culpability, and with modern systems and services that bring Victoria out of the nineteenth century.

Introduction

In August 2021, we took part in a debate organised by the Victorian Branch of the Australian and New Zealand Association of Psychiatry, Psychology and Law and the Victorian Forensic Faculty of the Australian and New Zealand Royal College of Psychiatrists. We were invited to argue for the proposition that ‘the House moves that we should abolish the defence of mental impairment’. This article sets out what we believe are cogent arguments for abolishing the mental impairment defence, as it is a festering vestige of the dark ages, it is not fit for purpose, it is immune from meaningful reform, it does not safeguard human rights and, most importantly, it does not achieve adequate, let alone good, care and risk management for the majority of people with severe mental illness or significant cognitive disabilities who face criminal charges. We will use the example of the mental impairment defence as it operates in Victoria, but given the similarities across Australian jurisdictions and in New Zealand, our arguments are relevant beyond Victoria. We present a historical and comparative perspective, to put into context why and how the mental impairment defence and its related procedures and systems are unjust, uncaring and inhumane. We use outdated and potentially derogatory terminology, such as ‘insanity’, when referring to historical concepts in context, but not to endorse such terms or to cause offence.

The mental impairment defence in practice

Section 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘CMIA’) states:

Defence of mental impairment

1. The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that–

 a. He or she did not know the nature and quality of the conduct; or

 b. He or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).

2. If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.

Most people found mentally impaired in Victoria suffer from psychotic illnesses (such as schizophrenia, severe mood disorder or delusional disorder), which have driven their offending (Ruffles, 2010). Some have cognitive disorders (intellectual disability, acquired brain injury or dementia), although as these are enduring conditions, most individuals with cognitive disorders who were mentally impaired at the time of an offence are likely to be found unfit to stand trial. For reasons we will explore in this article, the prevalence of psychotic illnesses in the cohort of people accessing the mental impairment defence must be taken with a high degree of caution: the lack of acceptable outcomes and risk of indefinite incarceration operate to ensure that few accused with cognitive impairments or similar impairments are keen to chance their luck with the arbitrary outcomes in mental impairment cases.

Where a person is found not guilty because of mental impairment the dispositions available are the same as those available where a person is found unfit to stand trial: the court may make the person subject to supervision or may release the person unconditionally. Where an offence is serious the person is invariably made subject to supervision. If subject to supervision a custodial or non-custodial supervision order is imposed depending on considerations of maximising the liberty and autonomy of the individual in a manner that is consistent with the safety of the community. While in theory the outcome of this analysis ought not to turn on the seriousness of the index offence, the reality is that the seriousness of the index offence looms as a large consideration in the decision of whether to impose a custodial or non-custodial order.

From 2000 to 2012, 159 individuals were found unfit or not guilty due to mental impairment in Victoria, about 13 cases a year. Of those, 47 (30%) received a custodial supervision order, 102 (64%) received a non-custodial supervision order, and 10 (6%) were released (Victorian Law Reform Commission, 2014). Most of those given custodial orders were charged with murder or attempted murder. Only 1% of almost 2000 criminal cases in the County and Supreme Courts of Victoria led to a finding of unfitness or mental impairment in 2011–2012. Figures for 2012–2013 indicate that of 85 requests to the state-wide forensic mental health service for reports regarding CMIA issues, 36 (42%) were for both unfitness and mental impairment, 27 (32%) were for unfitness alone, and 22 (26%) were for mental impairment alone.

Custodial supervision orders lead to detention at Thomas Embling Hospital (the only secure forensic mental health hospital in Victoria for people with severe mental illness), or the Intensive Residential Treatment Program of Forensic Disability Services (a secure treatment facility for people with intellectual disabilities), or, if they are not suitable for either of these facilities, they are detained in prison.

Several individuals found mentally impaired or unfit to stand trial, particularly those with cognitive disorders, are held in prison in Victoria and in other Australian jurisdictions, primarily due to a lack of suitable secure treatment facilities (see, for example Coulter). This clearly infringes human rights and puts Australia at odds with its obligations under the United Nations Convention on the Rights of Persons with Disabilities (Arstein-Kerslake et al., 2017). Many jurisdictions do not allow such individuals to be held in prisons, and it questions the legitimacy, utility, humanity and justness of the mental impairment defence that, despite being found not guilty, people can end up in prison anyway. Those who receive custodial supervision orders find themselves stuck in a risk-averse system where they usually spend longer detained than before the 1997 Act, and longer than if they were convicted and sentenced to prison (Ruffles, 2010). Non-custodial supervision orders are given to individuals deemed to pose a risk that is manageable in the community, either directly as a disposal from court or after a period on a custodial order. These are usually managed by mental health or disability services, although a handful of cases have been managed by correctional services, again where individuals do not meet criteria for mental health or disability services.

Very few people with severe mental illness who commit offences in Victoria avail themselves of a mental impairment defence, even where there is a clear and causal connection between their illness and their offending behaviour.

Reasons for this appear to include:

1. The high threshold set by the criteria for mental impairment, which are merely the M’Naghten rules dressed up;

2. Individuals who commit more serious offences would rather get a determinate sentence than indeterminate detention;

3. There is no ‘right’ to the defence, and it is rarely if ever raised by the prosecution or the court;

4. Due to lack of services there is an acceptance that most offenders with severe mental illness, who actually require secure care, are treated in prison rather than hospital, perhaps then being transferred to hospital if they decompensate to the extent that they are very acutely unwell; and

5. Supervision orders are indefinite, so people with co-morbidities such as drug or alcohol addiction, personality disorder or simply homelessness may struggle to navigate the strictures of a supervision order and may languish on a custodial supervision order, unable to make progress to a less restrictive environment or alternatively will be in peril of having their non-custodial order varied to a custodial order due to their inability to comply with the conditions of their release.

So most mentally ill and intellectually disabled people who are charged with offences and should be in treatment facilities are held in prison, including some who ‘succeeded’ in getting a mental impairment defence.

Prisons cannot provide appropriate care and treatment for these people (Carroll et al., 2021). For convicted offenders with ‘mental impairments’, confusingly the same term as that used for the defence but having a much broader remit when considered at sentencing, there are the Verdins principles, which can be applied to mitigate punishment, but where a serious offence has been committed, an accused will primarily receive punishment nonetheless, and any consideration of care and treatment is secondary. If they are to receive treatment within the prison context, there is little oversight as to the nature, extent or timing of that treatment.

Sadly, the criteria and many of the safeguards in the Mental Health Act 2014 (Vic) apply neither to those found mentally impaired, nor to those who are sentenced. So, legislation to safeguard and protect the most vulnerable people with mental health problems has little to offer mentally disordered offenders in Victoria, unless they deteriorate so seriously that they require acute treatment in hospital. Even when that happens admissions are delayed and it is a short sticking plaster rather than providing comprehensive holistic forensic mental health care. So, both the legislation and the system and services attached to it are woefully lacking.

Why do we have the mental impairment defence?

Why do we have such an appalling and dysfunctional approach to people who commit offences due to severe mental health problems in Victoria, and across Australia? You can blame the English for the origins of this mess, although, as noted below, the UK has since addressed the inherent deficiencies of relying on the ‘insanity’ defence and made the defence all but obsolete.

To understand the origins of the mental impairment test it is customary to start with the M’Naghten rules as set out by the UK House of Lords in 1843, which as noted above are basically still the mental impairment test in Victoria over 150 years later. In 2005 in Martin the Victorian Supreme Court confirmed that the term ‘mental impairment’ had the same meaning as ‘disease of the mind’ straight from M’Naghten. However, the M’Naghten rules were merely a consolidation of legal cases and tests that had their origins in medieval England (Walker, 1968). The M’Naghten rules were in effect the same as the Court’s definition of insanity in Arnold in 1724:

[I]t is not every kind of frantic humour or something unaccountable in a man’s actions that points him out to be such a madman as is to be exempted from punishment: it must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast; such a one is never the object of punishment; therefore, I must leave it to your consideration, whether [the defendant] . . . knew what he was doing and whether he was able to distinguish whether he was doing good or evil.

Equating deficits in reasoning of those who were non compos mentis or furiosus with those of infants, brutes and wild beasts had its origins in the writings of Bracton in 1256 almost half a millennium earlier (Walker, 1968). At that time being found of unsound mind could lead to a pardon from the King after a finding of guilt (Hurnard, 1969), and it was not until 1505 that the first person was acquitted by a court (Walker, 1968). But the current test of mental impairment in Victoria is not far off what was being used in England about a hundred years before the Black Death wiped out up to half the population of Europe in the fourteenth century. Obviously much has changed in our understanding of the association between mental illness and offending since then, just as our understanding of the plague and pandemics has improved vastly, helped by scientific progress, leading to far more humane and effective approaches. Unfortunately, being stuck with the medieval morality of insanity and responsibility means modern humane and effective approaches to mentally disordered offenders are stymied.

Why did the insanity defence emerge in ancient and medieval times? Until the 1600s punishment for criminal offending was usually execution, torture, forfeiture or banishment, and for serious offences usually execution or torture (Classen & Scarborough, 2012). Transportation to America was added to the menu in 1610, and after US Independence, this was to Australia instead until the late 1860s. Imprisonment did not really feature in terms of sentencing and punishment until the 1800s (McGowen, 1998). Until then gaols were places you were kept until you were tried, tortured and/or killed (Peters, 1998; Spierenburg, 1998). In such brutal times the insanity defence was necessary and fit for purpose, this purpose being preventing the torture, killing and expatriation of people suffering from ‘lunacy’ or ‘insanity’, to use the contemporary terms. This was necessary as their insanity was considered to be punishment for their sins by God, so they should not be punished again and should be shown mercy. Punishing the insane also served no purpose as it could not rightly serve as an example to others and was also considered to undermine the whole basis of just punishment. It is important to note that punishment in medieval and early modern times was more about the observer of punishment than the person who was punished. Hence public executions, tortures and banishments were as much or more demonstrative ceremonies to deter and denounce as they were retributive (Classen & Scarborough, 2012). In this context punishing the insane was seen as just wrong.

Considerations of agency (i.e. the insane are driven to act by their illness) and welfare (i.e. being cared for by relatives or in asylums) were later afterthoughts, of relatively modern vintage, in justifying the need for the defence (Walker, 1968; Walker & McCabe, 1973). Despite this ‘humane’ and ‘Christian’ approach, the threshold for the defence was high, those with conditions not reaching this threshold (so called partial insanity) did not escape brutal punishment, and one was unlikely to succeed with the defence if one was a witch or heretic (even though some, perhaps many, such individuals probably had mental health problems; Schoeneman, 1977). This echoes current-day Victoria where those mentally ill people who fall short of the high threshold for the defence get punishment, and people with conditions attributable to ‘sinfulness’, such as drinking or drugs, are excluded (Carroll et al., 2008). And remember all these developments occurred before psychiatry, its diagnoses, its treatments, its practitioners and mental health services even existed.

Until the 1800s, although the insanity defence was very well established, there were no specific procedures for dealing with those who were found insane (Walker, 1968). There was no need as the only purpose was to avoid brutal punishment: avoiding punishment was the aim and the end of the process. The insane were cared for by their families or detained in gaols and workhouses, whether or not they had been charged with offences. Very few were cared for in ‘madhouses’, and those few who were found themselves subject to dire conditions (Parry-Jones, 2013).

However, in nineteenth-century Britain the number of offences punishable by execution diminished dramatically from over two hundred to just murder and treason,¹ torture as punishment fell out of favour and was abolished, transportation eventually stopped, imprisonment as a sentence emerged, and large cellular prisons were built (McGowen, 1998; McConville, 1998). The medical specialty of psychiatry also emerged, asylums were built, and the first forensic hospitals (initially called ‘criminal lunatic asylums’) were commissioned: Dundrum in Ireland in 1850 and Broadmoor in England in 1863 (Walker & McCabe, 1973).

Although the control and care of prisoners and the insane were very similar to each other, this was considered humane compared to the neglect and brutality of previous times. In this new context there was the need for legislation to provide for the disposal and containment of those found insane, and the predecessor of the custodial supervision order was born in 1800, after concerns about the lack of such procedures following the case of Hadfield. This led to the Criminal Lunatics Act 1800 (39 & 40 Geo 3 c 94), which was the basis of the ‘Governor’s pleasure’ system, which continued in Victoria until the implementation of the CMIA.

We could stop there, in mid-nineteenth-century England, and we would have just about all the elements of the Victorian approach to mental impairment: a test based in medieval times and a Victorian (not just the State but the era too) approach to the disposal of those found mentally impaired. The only real innovation beyond this approach from over two centuries ago was the addition of the non-custodial supervision order in 1997. Victoria did not even have a forensic hospital until 1986, sending those found insane to a facility in a Victorian (era and State) prison until then, a practice that stopped in the UK in the nineteenth century. This nineteenth-century approach from Britain was exported to its former colonies in North America, Australia and other parts of the world. However, while Britain, along with other countries in Europe, left this approach to mentally disordered offenders far in the past, the USA and Australia got stuck there.

A creature of statute and resourcing?

That the law should make a distinction between people ‘of sound mind’ who commit offences and people whose crimes occur in the context of serious mental incapacity is uncontroversial. Equally uncontroversial is the proposition that the latter group are not deserving of punishment, but that interventions that protect the community from further offending and see to the rehabilitation and recovery of the individual are appropriate.

When we argue that the mental impairment defence should be abolished, we are not arguing that this distinction is not an important one. What we are arguing is that the mental impairment defence, when seen as a product of law and resourcing, fails spectacularly in delivering just outcomes to offenders who fall within the ambit of the defence.

The CMIA does not empower the Court to compel treatment for a person found to be mentally impaired under the Act. In fact, a Court – having declared an offender liable to supervision – cannot send that offender to an ‘appropriate place’, to use the language of the Act, unless the Court has received a ‘certificate of available services’ declaring that the service is able to provide treatment or supervision to the individual. This seemingly anodyne requirement has the effect of ensuring that the proper operation of the Act is governed not by the words of the CMIA itself, but by the bricks and mortar resourcing that constitutes the forensic mental health and disability sector.

The CMIA itself is agnostic as to the source of an accused’s mental impairment – psychiatric illness, intellectual disability, acquired brain injury or neurodegenerative processes are equally as capable of underpinning the mental impairment defence. But the outcomes for each of those groups is radically different.

Despite its well-publicised need for increased resourcing, the forensic mental health system in Victoria is comparatively well organised and well resourced. However, injustices exist within the cohort of psychiatrically unwell offenders. An offender, having been found not guilty because of mental impairment and made subject to a custodial supervision order, may yet languish in prison for months if not years awaiting a bed at Thomas Embling Hospital.

However, outcomes for offenders whose mental impairment is non-psychiatric face a far more uncertain path through the legal system. The forensic disability sector is woefully under-resourced. Long-term beds for men are scant, and the secure facilities for women with disabilities simply non-existent. More concerningly still is the complete absence of appropriate facilities for offenders with acquired brain injuries and neurodegenerative disorders, leading to outcomes such as in Coulter where they are placed on indefinite supervision orders into the prison system.

Finally, the indefinite nature of the supervision order itself can produce perverse outcomes. Offenders who commit relatively minor offences and who bear little or no moral culpability for their actions due to the presence of a relevant mental impairment may choose to accept full criminal responsibility for their actions rather than be subject to indefinite supervision. Other offenders, choosing to rely on the defence, face years of detention at Thomas Embling Hospital due to risks and behaviours that are unrelated to the index offence. Supervision orders have been described by experienced clinicians as a ‘lobster pot’: easy to get into, but difficult to escape from.

The bare text of the CMIA itself reveals no great injustices, but the CMIA does not operate in a vacuum. It serves as the entry point into a heterogeneous forensic mental healthcare system whose lack of resourcing, gender bias and strong psychiatric focus produce unjust if not perverse outcomes for those who rely on the defence and dissuade many from availing themselves of a legitimate legal defence, so dire are the consequences of doing so.

Alternatives to the mental impairment defence

When abolishing the mental impairment or insanity defence is put forward, concern is often raised based on the experience in the USA where five States have abolished the insanity defence, and this has survived constitutional challenge (Appelbaum, 2021). However, abolishing the insanity defence in the USA was not done in an attempt to get better outcomes, in terms of justice, care and treatment, for mentally disordered offenders. It was done as a reaction to a misperception that the insanity defence was a soft option allowing too many people with mental illness to avoid punishment. In these States people with mental illness could only then be acquitted if they lacked the mens rea for the offence, setting an even higher threshold than, for example, the M’Naghten rules. That in a country which has the highest rates of mental illness in jails (Steadman et al., 2009) and prisons (Prins, 2014), and where there is an acceptance that people with mental illness who offend should be contained in prison. Australia does not fare much better when it comes to rates of serious mental illness in prisons (Butler et al., 2005), particularly amongst Indigenous prisoners (Heffernan et al., 2012).

So, we are not arguing for a U.S. style approach to abolishing the mental impairment defence and just leaving people with mental illness at the mercy of the courts and populating prisons. We are arguing for a European approach, which bypasses the defence, based on the goal of improving the care, treatment and welfare of people with mental disorder who are charged with offences, and aligning legislation and associated procedures, systems and services with a modern understanding of people with mental health problems who offend and their needs. If it can be done in several European jurisdictions it can be done here.

But what has happened in these European jurisdictions? We will use the UK as an example, a country that, as we mentioned above, is responsible for the Victorian system used in Victoria, but has since moved on with the times and made the insanity defence all but obsolete. We will also consider Sweden where the defence was abolished.

In the late 1950s and early 1960s legislative reform in the UK occurred, described by Nigel Walker, in the second volume of his seminal work ‘Crime and Insanity in England’, as the ‘utilitarian revolution’ (Walker & McCabe, 1973). By this he emphasised a move from the reliance on ancient and out-of-date concepts, such as the insanity defence and unfitness to stand trial, and their related procedures, such as detention at Her Majesty’s Pleasure, to an approach based primarily on the care, treatment and welfare needs of mentally disordered offenders, alongside appropriate consideration of public protection where necessary. This period heralded the introduction of modern mental health legislation in the UK, and importantly this legislation aligned criteria and procedures for the detention and treatment of patients dealt with under civil procedures with those of people facing criminal charges.

One of the most revolutionary aspects of this was introducing outcomes for mentally disordered offenders who were convicted of a criminal offence but who met criteria for detention under mental health legislation, which were almost identical to civil procedures and allowed hospitalisation as an alternative to imprisonment, without a person having to be found insane or unfit. The use of the ancient defence then declined as there was no need for a person to be found insane to get a hospital disposal. For murder cases, where there was now a mandatory life sentence, and the death penalty had not quite yet been abolished, diminished responsibility allowed for a reduction to manslaughter, and disposal to hospital if the person met mental health act criteria. With time the disposals for people found insane and unfit, although now rarely used, became identical to disposals under the Mental Health Act for convicted mentally disordered offenders.

In effect there is no difference between those found insane and those convicted, who are both able to receive appropriate care and treatment (see Darjee & Robinson, 2014; and Skilling & Darjee, 2014, for detailed information on how such legislation operates in Scotland²). Some antipodean jurisdictions, such as Tasmania and New Zealand, have hospital disposals available for convicted mentally disordered offenders, but they are used either rarely or haphazardly. Victoria has a court secure treatment order, under Section 94B of the Sentencing Act 1991 (Vic), which may be imposed alongside a prison sentence after a finding of guilt, but it is never used now. Prior to amendments in 2014, mentally disordered offenders in Victoria could be sentenced to hospital without any prison sentence. In the UK and Europe these types of orders are the primary orders used to get mentally disordered offenders into hospital for treatment.

It could be argued that it is inappropriate to cite the UK, and other European jurisdictions, who have not actually abolished their equivalents of the mental impairment defence. But one did. In 1965 Sweden took the utilitarian revolution to its ultimate extreme, by abolishing their equivalent of the insanity defence: unaccountability due to mental disease or defect. They replaced it with a system where those suffering from severe mental disorder were given a psychiatric hospital disposal at sentencing based on clinical needs and risk (Svennerlind et al., 2010), similar to the UK system. This came about as the Swedish criminal justice system turned away from culpability and retribution, whilst also prioritising the welfare, care and treatment needs of offenders with severe mental disorders. Multidisciplinary clinical forensic assessment occurs in hospital before sentencing, something that does not happen in Victoria, but is the norm in many European jurisdictions. In 2007, 313 people were committed to forensic psychiatric care following conviction, 222 (71%) of these with special court supervision (like being a forensic patient). So over twenty times as many people with serious mental disorders were getting mental health disposals than in an average year in Victoria, in a jurisdiction with under twice the population of Victoria. But Sweden is in some ways more difficult to compare to Australia than the UK, as it has a non-adversarial system rooted in Roman civil law rather than Anglo-Saxon common law, it is a society that disavows retribution in favour of rehabilitation, and it prioritises using high taxation to ensure there are well-funded public services with an ethos that everyone in society should be protected and provided for. Interestingly though, despite this, Sweden has recently been considering the reintroduction of their unaccountability defence, and giving hybrid disposals, combining a prison term with initial hospitalisation, instead of purely hospital disposals to convicted mentally disordered offenders (Radovic et al., 2015). What the Swedish experience highlights, however, is that a more humane welfare-focused and rehabilitative approach, embracing many more individuals with mental health problems than those who benefit from a mental impairment-style defence, occurs with the abolition of the defence, when the focus is on modern humane mental health care and risk management, in the context of good service provision.

So, in the UK and other European jurisdictions the defence is a rarely used vestige, which is largely irrelevant. For example, in the UK, if a man is charged with attempted murder and was clearly psychotic at the time, he can be convicted and get a purely hospital disposal without having to be found not responsible – that is, the outcome is identical regardless of whether he is found guilty or not. In such cases a restriction order is usually added by the court, making him the equivalent of a forensic patient in Victoria, and bringing extra scrutiny of progression back towards recovery and the community, but he has all the safeguards of mental health legislation. If the vestigial defence was abolished in the UK, as it was in Sweden, it would make no difference as it is insignificant in determining who gets treatment (in hospital or the community) rather than punishment.

In the UK and other European jurisdictions, like Sweden, the Netherlands and Germany, complete lack of responsibility is not the gateway to a humane and care-focused approach, and it is accepted that there are shades of responsibility or that responsibility is irrelevant and that treatment needs and risk should be the primary determinants of how mentally disordered offenders are dealt with. This humane and needs-based approach drove and gave impetus to service development within health services for all mentally disordered offenders, not just those who were found insane or unfit, with provision of secure mental health beds at a rate far beyond that provided in Australia (Tomlin et al., 2021). For example, Scotland, with a population similar to that of Victoria, has five times as many forensic psychiatric beds and a policy that no one with severe mental illness is treated in prison (Scottish Government, 2021). The Netherlands and Belgium have 10 times as many beds (Tomlin et al., 2021) after adjusting for population size. So, this is the European approach to making the defence obsolete, by focusing on modern evidence-based and recovery-focused factors when deciding who goes to hospital rather than prison and having good service provision, not relying on an approach based on outdated notions of responsibility and punishment of the insane, which leans towards the system in the USA. Contrast the number of people with mental disorders facing criminal charges in Scotland in 2012–2013 who were given mental health disposals (in hospital or community) by criminal courts with the annual number at the same time in Victoria: 83 versus 12 a year, respectively (Skilling & Darjee, 2014; Victorian Law Reform Commission, 2014) – so, seven times more people with serious mental health problems getting care and treatment, not punishment. Having an approach reliant on mental impairment and/or unfitness permits a default position allowing for the lowest resource provision, barely catering for these groups (i.e. those found mentally impaired or unfit), and which shunts most people with severe mental disorders who offend into the criminal justice system.

Abolition rather than reform

The problem with waiting for reform is that it is slow to happen, is rarely holistic and tends to be far too conservative, especially in Victoria. That is why Victoria is so Victorian when it comes to how it deals with mentally disordered offenders. Something revolutionary is required along the lines of Walker’s ‘utilitarian revolution’ (Walker & McCabe, 1973). Recent opportunities at reform have led to nothing of any substance.

Although the CMIA itself was described as ground-breaking at the time, it merely changed the name of the defence from insanity to mental impairment, allowed for non-custodial disposals, formalised the leave system and replaced the previous political ‘Governor’s pleasure’ regime for review with a legal one. But it did not lead to a less restrictive approach to managing those subject to the legislation (Ruffles, 2010). A review of the CMIA by the Victorian Law Reform Commission commenced in 2011, published a set of anodyne recommendations in 2014 and has led to no change in 10 years since the commencement of the process. An amending bill, incorporating the least controversial recommendations, has been stalled in Victorian parliament for years, with neither party having the political will to tackle a law and order issue that is more nuanced than simply building more prisons and recruiting more police.

The introduction of the Mental Health Act 2014 (Vic) in Victoria did not touch this group as they have been legislatively stigmatised as different ‘criminal’ cases. The recent Royal Commission on Victoria’s Mental Health System (State of Victoria, 2021) recommended more forensic beds, so we will only then have less than half the beds of Scotland and a quarter of those in the Netherlands (per head of population), but legislation, procedures and systems for ‘forensic patients’ were out of scope, as were mental health services in prison. It is appalling that the most significant reforms to mental health services, systems and legislation in Victoria for generations will make little difference to the operation of mental impairment, except that those found mentally impaired should get into hospital more quickly, which is welcome. There is a fundamental problem where relevant legislation, systems and services for mentally disordered offenders are reviewed, planned, implemented and developed in a characteristically Victorian or Australian piecemeal and siloed manner, with no one joining the dots or taking a whole system approach. The legislation and system for those found mentally impaired is merely a dislocated and peripheral part of a machine, with many mismatched and broken parts, but all anyone does is tinker with the parts.

Abolishing the mental impairment defence and bringing mentally disordered people charged with offences properly within the scope of mental health and wellbeing legislation, with a range of disposals available depending on their care and treatment needs, and risk for those who commit more serious offences, is what is required. Unfortunately, as Victoria and the rest of Australia are so far behind, Victoria cannot afford to wait for the quiet revolution and incremental journey to obsolescence, which has served the UK and other European jurisdictions well. Keeping the mental impairment defence will not retain a gateway to care and treatment but will maintain a barrier to care and treatment for mentally ill people facing criminal charges. It is a narrow blockage, and the system desperately needs a bypass to allow all these people to get the care and treatment they need and deserve.

The law should be a means to an end, and that end should be mental health recovery and reducing risk. The law should not, as it is at present, be the end in itself. So much time is wasted on determining responsibility, with lawyers and clinicians pouring time and resources into examining the relevant legal criteria; but this is completely detached from considering the needs of the individual. Would it not be better if more time was spent on achieving the best clinical outcomes? There would still be plenty of work for clinicians and lawyers, in case anyone would be selfishly concerned about their livelihoods. But the resources could be spent on providing high-quality forensic mental health care fit for the twentieth century let alone the twenty-first century – something you just cannot do with the current Victorian legislation and system.

Conclusion

Although the defence of mental impairment is allegedly grounded in fundamental legal principles that underpin a humane society, the Victorian approach is far from humane and principled. Other Australian jurisdictions deserve similar criticism. The clinical care that underpins the effective working of the defence is patchy and siloed and relies on diagnostic distinctions that produce outcomes that are at odds with the concept of equal justice.

The reason the defence arose in ancient and medieval times was to spare vulnerable and sick people from savage punishment. This is sound and a necessary basis for dealing with people with mental illness who face criminal charges, and respects fundamental human rights. In medieval Britain the defence was humane and met this aim. But the mental impairment defence does not come close to achieving its sacred aims in Victoria today or in other Australian jurisdictions, or in the USA for that matter.

It leaves many people with severe mental illness, who need care and treatment but cannot avail themselves of the defence, languishing in prison. It leads to many people choosing to accept criminal responsibility for offending they bear no moral culpability for, so disproportionate are the outcomes of the defence. Even some people found not guilty due to mental impairment languish in prison. And many of those who were ‘successfully’ found mentally impaired and obtained a coveted bed in hospital find themselves stuck in a slow-stream risk-averse system where recovery and a realistic appraisal of risk play second fiddle to a stigmatising presumption of dangerousness. So, none of these groups derive much, if any, sacred humane justice or protection from the mental impairment defence.

We need, and seriously mentally ill people caught in the criminal justice system deserve, a twenty-first century approach, not a Victorian one. By calling for the abolition of the mental impairment defence we are not recommending the ‘abolitionist’ approach that was taken in the USA based on punitive aims, but the ‘obsolescent’ approach taken in the UK and Europe, where a modern recovery and risk-based approach has eclipsed and bypassed the ancient vestigial one based on punishment and responsibility. The mental impairment defence is history, and its history is fascinating, but that is where it should be consigned. Reform, which has been too slow, conservative, timid and piecemeal, has achieved very little of any importance or significance over the last 25 years or more. We need to take a root and branch approach, abolish the mental impairment defence, and put in place a new approach: one that prioritises the care, treatment and containment, where necessary, within modern forensic mental health services and systems, for the most disadvantaged and vulnerable of mental health consumers, regardless of outdated notions of criminal responsibility.

Ethical standards

Declaration of conflicts of interest

Author Rajan Darjee has declared no conflicts of interest

Author Tim Marsh has declared no conflicts of interest

Ethical approval

This article does not contain any studies with human participants or animals performed by any of the authors. It analyses existing literature and did not involve the collection of new data.