The Social Consequences Of An Insanity Plea In NSW In 1991

Yolande Lucire

In 1843, Daniel M'Naghten was tried for the murder of Edward Drummond, private secretary to Sir Robert Peel, whom he had mistaken for the Prime Minister.  The evidence led by the experts at the time was that M'Naghten was deluded, particularly about "the Tories" whom he perceived as persecuting him.  The judge stopped the trial and returned a verdict of "not guilty by reason of insanity" and M'Naghten was acquitted and incarcerated at Bethlem, then later at Broadmoor when it opened and he remained there for the rest of his life.  

The point of the defence was to give the judge options concerning the disposition of the subject.

The defence of insanity is generally able to be penetrated, should the Crown be motivated to do so, as few if any cases would fulfil all the required criteria.  However, one risk here is that the accused might end up with a 'diminished responsibility' verdict and this is better for most accused persons.  

Ultimately the a decision is made by a jury, so any pretence that either the raising or the success of this defence is any more than a random event can be abandoned.  

Certainly, from the viewpoint of a consultant to the Prison Medical Service, neither the raising of the plea nor the finding of insanity has any consistent relationship to the presence  of psychotic illness in the prisoner at the time of the offence, and it would appear that the success of the Diminished Responsibility defence is equally random.

A hierarchy of punishment in the nineteenth century meant that a wilful  murderer would be sentenced to hang, but that successful medicalization of his "reasons" for committing the homicide would result in the mitigation of his death penalty to incarceration in an asylum.  The insanity defence was worth having, and, under jurisdictions where the death penalty still prevails, it is hard fought indeed. 

The NGRI prisoner and the outcome of his sentence were deemed not to be  political considerations, and eventual release was to be the responsibility of the Head of State, the Queen, or her representative, the Governor, not of an elected government.   The prisoner, in Britain never went into a prison, but served a term known as Her Majesty's Pleasure in a special hospital  such as Broadmoor. The same 'special hospitals' accepted convicted criminals who were seriously mentally ill and required prolonged periods of hospitalisation. 

Until the recent changes in 1983,  the NSW jurisdiction observed no such niceties as attempting the  separation of categories of "guilty" homicides and those "not guilty by reason of insanity"  i.e. the bad from the mad.   The possibility for such separation now exists in theory.  However, the former legislation did maintain a non-political stance towards them, having the Head of State, the Governor or the Governor General rather than the elected government responsible for their fate.  In effect, the Governor's Pleasure prisoners, or GPs, as they came to be known, were generally accommodated with criminals in prisons.    They were treated when they needed it in a special hospital, specifically Ward 21 of Morisset and discharged into the prison population.  At any one time, the majority of the GP population was in the prisons, in their own cells, with television, radio and personal possessions, which are not available in the prison hospital,  and mingling with other inmates, joining in work activities but privileged in not having to share a cell except by agreement. 

When the alternative, the bare walled hospital with few activities and no television,  was taken into consideration, they did not seem to mind.

Some GPs never set foot in the hospital after their initial assessment period; a handful never left it while the majority were moved between the two environments on the basis of clinical rather than legal criteria. 

Some prisoners who gained a verdict of manslaughter using the defence of Diminished Responsibility under Section 23, remained sufficiently ill to have spent their entire sentences in the prison hospital, with little hope of ever living outside of a total care institution again. 

Those who were severely mentally ill and likely to remain so are placed in psychiatric hospitals after their discharge and  they often met the criteria for civil commitment, so that process took over at the end of the sentence.

With the gazetting of the Crimes (Mental Disorder) Amendment Act, 1983, No. 180, three significant changes occurred affecting the management of these prisoners, now to be called Forensic Patients, (FPs). 

First, responsibility for them was removed from the presumed neutrality of the Head of State, and given to the Minister for Health, a member of the elected government.

Second, the Long Bay Prison Hospital was built and a  number  its beds, including one whole ward of thirty beds, were "gazetted" for the exclusive use of FPs, and

third, a Mental Health Review Tribunal was appointed, for, (inter alia), the six monthly review of Forensic Prisoners. 

The Tribunal has no powers to make decisions; its role is to hold a hearing and to advise the Minister of Health who would make the ultimate decision regarding the transfer of a forensic patient to the prison environment, to an outside hospital or to his release.   

Medical staff could no longer move a forensic patient into another environment on clinical or social criteria, but had to  await not only the Tribunal's hearing, but a far longer period until its recommendation, somehow reduced to the size of a ministerial, awaited what turned out to be the Minister's Pleasure. 

For reasons I have never been able to fathom, unless they were lack of interest and public debate, the law, formulated in the nineteenth century to ensure the removal of these prisoners from both the criminal justice system and from political considerations was changed in NSW, in effect, politicising the issue. 

Responsibility for these prisoners was moved from Rex to Dux, from the Head of State to a member of an elected government.  As ministers tended to become very busy during a government crisis, and very responsive to public opinion during the run up to an election, and to be extremely sensitive to the utterances of Derryn Hinch at any time, it would be reasonable to fear that the fate of these persons could and would be decided on considerations other than their own attribute of dangerousness consequent on mental illness.

The gazetting of all the beds in A Ward for the exclusive use of Forensic Prisoners added an unwelcome legal criterion to placement problems of segregation and protection, namely, Forensic Prisoner status as "gazetted" beds  cannot be used for other mentally ill prisoners who would be quite comfortable there. 

In  times of high bed occupancy, the only legal recourse lies in filling out the appropriate forms, requesting that the prisoner be made a Forensic Patient by the Minister for Health. 

In practice, this does not present any difficulties, but the economic consequences of this course of action are not insignificant.  A 'FP' has to be reviewed by the Mental Health Review Tribunal each six months, psychiatric reports must be prepared by treating doctors and outside experts, and legal representation is required for a public hearing.  It seems wrong to call in all those supervisory resources in order to use a "gazetted" bed, when there is insufficient money for the provision of therapeutic staff and nurses. 

There is some talk now of bringing in all the Forensic Prisoners, the old GPs, from various jails to live in A Ward simply because beds (if no other facilities) are available there for them, but this would represent a major and unwelcome upheaval for those accustomed to the conditions in prison.  Recently, managerial wisdom decreed that a female prisoner, who requested protection at Mulawa, found herself the only female in a ward of forensic males, something I regret did not reach the popular press.

From the practical point of view of the general public, the recommendations of the Tribunal cannot be differentiated from the decisions of the Minister and as far as I can see, release is not predictable on clinical criteria,  

These costly procedures have failed to satisfy some of their purposes.  Two cases demonstrate this.  Neither was a homicide.

One man developed a toxic delirium associated with his voluntary withdrawal from alcohol in conjunction with the taking of legally prescribed medication, and in this delirium, he burnt down a garage.  He was bailed and he returned to his wife and family, he abstained from alcohol, the use of which had been a long term problem,  and he returned to work and was supporting his wife and family for nearly two years before his case came to trial.   He pleaded "not guilty by reason of insanity,", (the House of Lords having once deemed delirium tremens to be insanity for the purposes of the M'Naghten defence) , and, to everyone's surprise, he was carted off to jail and further  to Ward 21 of Morisset Hospital for "treatment". 

I saw him at this time and felt that, at the time  he could not be considered to be suffering from a mental illness, as his psychiatric condition had been a transient toxic delirium some years previously.  He had been working, living in the community and supporting his family, so the question of dangerousness had been resolved by a demonstration rather than by the opinions of experts. 

He was not released by the Minister after several six monthly hearings of the Tribunal.   A question in Parliament revealed that the Minister's grasp of the facts of this case was tenuous and that the Minister considered this man to be dangerous because he had committed an offence of a completely different nature many years previously, and had served a sentence for it.  There was little evidence that the Minister was acting on medical evidence in front of the Tribunal and a good deal of evidence that his considerations were factors which the High Court of Australia, because of clearly enunciated legal principles, would not consider to be relevant in sentencing.  Had the prisoner pleaded guilty to arson and presented medical evidence of his mental state at the time of the offence, he might not have been sentenced at all.  A toxic delirium of this kind could be treated in law as an acute injury of the brain as occurs after a blow, or O’Connor’s Defence might have succeeded.  

There are  moral differences between offending 

in the grip of paranoid delusions,

after brain trauma of a physical or chemical kind, 

offending in the grip of a psychotic illness consequent on the medical administration of a medically prescribed drug such as cortisone,

offending while intoxicated with an illicit drug taken for recreational purposes.,

offending while drunk on alcohol, when

a) knowing and

b) not knowing that one’s drunkenness led to violence.

While all are to some extent mental malfunctions, the consequences of the insanity defence are too similar.

In a second case, a man in his first and only psychotic episode, developed the delusion that his wife was committing an infidelity with his friend.  The illness had emerged after he had been drinking but not while he was intoxicated to a significant degree,   After the assault, he was charged with attempted murder.  He was bailed, he attended a psychiatrist and worked at his trade for two and a half years supporting his wife and children, and at his trial he successfully pleaded NGRMI  

He was put into the Prison Hospital.  There was no further evidence of mental illness and such as there was has not recurred.  The medical opinion of doctors involved with him is that he was well, and the likelihood of relapse was remote.  The man was still in jail three years later.

Both these men had proved that they could live useful lives and work and support their families in spite of having suffered, in one case a toxic delirium, and in the other a brief psychotic episode in the absence of any sociopathic tendencies.  If they were returned to the Prison Hospital, it was neither for their own good nor for the protection of the community, but for punishment.  Any treatment they wanted was available on the outside and they had shown themselves to be reliable.    It is difficult to understand what issues were under consideration if there is no further evidence of mental illness and the person has proved himself to be not only safe but socially competent.

When the M'Naghten defence was introduced, its consequences were probably the best available for the accused.  The removal of the mandatory death penalty for murder and the availability of the defence of diminished responsibility changed the hierarchy of penalties.  The consequences of  successful NGRMI plea rate a poor third in the hierarchy of desirable consequences except for women, whose cases I have not dealt with here, and  foreign nationals who might be repatriated after such a verdict.  There have been relatively few pleas of NGRMI over the last few years as the indeterminate nature of the sentence is a deterrent. The outcome for prisoners who have pleaded NGRMI under the new legislation, involving the  Health Review Tribunal remains obscure.  Power is vested in the discretion of a minister, and no appeal from his decision is possible.  Trust of the new arrangements is unlikely to develop and as there are too many unpredictable variables, such as the prejudices of the president of the Tribunal, which government is in power, who is  Minister for Health and who will be influencing him., and the amount of outrage that the prisoner’s release might cause among the public. 

No statistics are available concerning releases of forensic homicides to freedom since the gazetting of the Act in December of 1983.   No information about how long a forensic prisoner serves under this legislation has yet emerged from the NSW Tribunal, nor is it likely to do so unless a research worker is employed.  While such information remains unavailable, trust in the new system will remain at a low ebb. 

The Law Reform Commission of Victoria has published some statistics which suggest that now-discharged forensic equivalent prisoners spent an average of 7.6 years in detention as compared to the lifers of that period who were in prison for 12.8 years.  Extrapolation from these numbers is meaningless. Victorian Courts created only one or two prisoners of the forensic category annually until the years 1971 to 1974, inclusive when 27 entered the ranks.  A death sentence had been passed and the Insanity defence  was in vogue at that time.  The death sentence was abolished in 1974 , but the vogue persisted for three years then the rate settled back to one or two where it has remained.

A successful defence of Diminished Responsibility reduces the charge from murder to manslaughter, attracts a lesser penalty in the majority of cases.  In some circumstances the sentence served after a homicide has been as little as two years,  at a time when various remissions were available. 

The move towards the defence of diminished responsibility  means that a person who has experienced a psychotic episode is more likely to plead that way.  That he might be  also  sociopathic, brain damaged, dangerous and untreatable can easily be overlooked. This category of offender is of great concern.   A significant number have grossly disturbed personalities of the anti-social, borderline kinds.  Concern for these is also expressed in the United States, as they are antisocial, spend time between mental hospitals and jail, and are either resistant to psychotropic medication or not compliant.  The last of these are particularly dangerous because of their grandiosity and can be recognised by the fact that they feel entitled to have killed as they did and will show little remorse, only self pity. 

It would appear that, under the circumstances which now prevail, "not guilty by reason of insanity" is no longer a defence, but a plea with appeal for the Crown, useful in ensuring the containment and treatment of dangerous persons when their dangerousness emanates from mental illness., together with personality disorder. 

It might become the province of the Crown to raise it, and the defence to rebuff it, provided the crime has been reasonably serious, in those cases where there is a history  of poor acceptance of control for psychiatric disorder, lack of insight into mental illness, and an underlying antisocial or borderline personality so that with the help of drugs and alcohol, mental state can become so disturbed as to fulfil common criteria for psychosis, or insanity. 

Rapid recovery can be followed by equally rapid  relapse. 

Between episodes of psychosis there is frankly nothing to treat, so such a person has a limited ability to change with psychiatric treatment.  Furthermore, as a prison psychiatrist, I do not want this character on my ward.

The following example demonstrates a case where such a tactic might have been used:  a young man behaved in an extremely dangerous way with a motor vehicle and killed two people.  The psychiatric reports sought by the defence indicated that he was suffering from a mental illness and that injudicious, heavy and habitual use of recreational drugs had contributed to it.

Under the those circumstances, a defence of insanity was available but undesirable.  After a period of treatment in prison, the further expert advice was that he had little insight into his illness and was unlikely to continue with his medication outside.  This opinion was naturally shelved by the defence lawyers, and a more sympathetic one was sought. He was released on bail, without further psychiatric opinion being sought by the Crown. 

Within months, again psychotic and again using drugs, he repeated his dangerous behaviour, and he was again imprisoned. 

When his trial on the charge of manslaughter came up, the Crown, aware of his subsequent behaviour, was unable to introduce it into the trial, but could have raised the issue of insanity to ensure his adequate containment as such a manslaughter, by motor vehicle can  and did, carry a brief sentence.

Concern about those who remain dangerous and can not be contained when they leave jail is not new and the ethics of sentencing on the basis of what someone might do in the future has concerned jurists for centuries.  

Judge Matthews recently gave a mentally ill homicide who pleaded diminished responsibility 16 year sentence, with five and a half on top and a further eleven and a half on parole, rather than use her power, recently confirmed by the High Court to raise the issue of insanity from the bench.  This makes my job a bit easier.

Prediction of dangerousness is the most debatable area in forensic psychiatry but the  propensities of some people for both crime and psychosis seem unalterable and unaltered. 

Using the criterion of the "right of the community to be protected," such a prisoner, if he can be identified, probably could be held in such a way that his release is determined by community considerations.  From his viewpoint, this might not be a desirable outcome.

Post script. 

In about 1992, Stephen Maddrell killed four young women in Warroongah.  He was suffering from delusions.  His own treating psychiatrist gave evidence that he had been addicted to amphetamines and he was psychotic consequent on their use. 

Other psychiatrists, unaware of the amphetamine use, opined tthat he suffered from schizophrenia.  The Jury considered him to be insane. He was held in the prison hospital and he never needed or was given any treatment.  The jury was, quite simply, wrong.  He has been transferred to jail where he should have gone in the first place.

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