CHOICE and CRIMINAL RESPONSIBILITY of MENTALLY ILL OFFENDERS: moral reasoning as a likely mediator related to primary secondary and tertiary prevention



Abraham Rudnick, MD, PhD, CPRP, FRCPC, CCPE.

Professor Department of Psychiatry and Behavioural 
Neurosciences, McMaster University                                          Email:[email protected]
Abstract: The legal determination “not criminally responsible” in Canada and its equivalents elsewhere seem to be based on an assumption that severe mental illness (when active) disrupts choice and hence eliminates or reduces responsibility for the person’s behaviour. I demonstrate that choice, as a fundamental characteristic of being human, is an important determinant of behavior that is not necessarily impacted by severe mental illness (even when active). I argue that choice may be influenced in part by the person’s moral reasoning. I suggest implications for primary, secondary and tertiary prevention related to facilitating moral reasoning and hence acceptable choice and behaviour.

 

Keywords: Behaviour, choice, criminal responsibility, mental illness, moral reasoning

Acknowledgement: This article is based in part on the author’s presentation at the Radical Collaborations conference in Hamilton, Ontario, Canada on December 4, 2015.
Disclosures: None.


Soon after the advent of modern psychiatry, a medico-legal assumption seems to have spread, at least in much of the Western world, such as with the M’Naghten rule in England (http://legal-dictionary.thefreedictionary.com/M’Naghten+Rule). This is the assumption that severe mental illness (when active) disrupts choice – by disrupting knowledge (of the related behaviour as harmful) or judgment (that it is wrongful to harm others with this behaviour) – and hence eliminates or reduces the person’s responsibility for the related behaviour. This seems to still be the case, such as the determination of “Not Criminally Responsible” (NCR) in Canada and equivalents in other jurisdictions. Yet the relation between severe (or other) mental illness and choice is not a simple one.
Existentialist scholars, such as Sartre, have argued that choice is fundamental to human existence, i.e., to being a person (https://www.youtube.com/watch?v=qpXNRrtuo38). Furthermore, choice is arguably constrained but never eliminated for a person, e.g., even at gunpoint or when fully paralyzed a person can choose to think in more than one way about the situation. Are people with severe mental illness such as schizophrenia excluded from this category of personhood? 
A biblical example that is not far removed from forensic psychiatry’s experience may help clarify matters. Abraham, the first Jew, chose to sacrifice his son Isaac at God’s heard command (Genesis, chapter 22, verses 2-3). In contemporary society, if someone tries to harm his or her relative because a voice (psychiatrically considered to be a psychotic experience) tells him or her to do that, they would typically be considered NCR. Could someone like Abraham choose differently? Obviously yes, e.g., at the risk of being punished by God.

For our purpose, the question of the related cost-benefit calculation is secondary to the question of the existence of choice. In this light, only if the person thought that he or she was acting in self defence, e.g., that the kin intends to kill him or her now and that there is no physical escape as an alternative to self defence, would his or her choice to harm the kin be morally acceptable, at least according to common morality (http://jme.bmj.com/content/37/10/588.full.pdf+html). So the mere fact of being psychotic while behaving violently does not necessarily remove moral responsibility of the mentally ill offender. 

What could explain such choice and related behaviour? I suggest that moral reasoning (http://plato.stanford.edu/entries/reasoning-moral/) is key to making choices, including difficult ones such as whether to follow a commanding voice to harm another person. With such moral reasoning, Abraham may have refused God’s command to sacrifice Isaac (in which case Judaism may have developed differently if at all). Thus, moral reasoning may influence choice, involving a set of mediators of choice in relation to behavior. As such, it could be rigorously studied and intervened on pre-morbidly, as part of early intervention, and for recidivism, to try to reduce risk of violence at all levels of prevention. Basic and applied research is needed to examine the relation between moral reasoning, choice and behaviour of mentally ill people and others.

 
 
 

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