The Medicalisation of Criminal Behaviour: A Unifying Approach
Quand tu sauras mon crime et le sort qui m’accable,
Je n’en mourrai pas moins, j’en mourrai plus coupable.
Jean Racine (1639–1699), Phèdre1
Phèdre is a tragedy which explores the relationship between moral culpability and responsibility for one’s actions by examining the incestuous love of a queen for her step-son, a passion that is apparently imputed to her by a vengeful deity. What is fascinating for the purposes of our discussion is the dynamic interplay between the portrayals of Phèdre’s infatuation both as an illness and simultaneously as a crime, for this is essentially the same question we must consider in deciding to what extent a malady excuses behaviour that contravenes society’s judicial expectations. While this was doubtless an intriguing consideration for a seventeenth century French dramatist, it is all the more pertinent for us today given the extent of medicalisation that has occurred in recent decades across many spheres of society. In terms of psychiatry, this may be illustrated merely with reference to the DSM, which between its first edition in 1952 and the fourth revision fifty-two years later has more than tripled the number of conditions it identifies, taking the total from 112 to more than 370 today . This inexorable rise has led certain commentators to question the extent to which this phenomenon is justified, particularly where it impinges on the realm of moral accountability. This is exemplified in an article by the sociologist Frank Furedi entitled The seven deadly personality disorders, in which he describes how all of those vices that the Catholic Church once taught to be mortal sins are now considered by Western culture to be addictive illnesses, with the sole exception of pride, which is thought to be a virtue, the helpful antidote to low self-esteem . This issue is one of eminent importance to the forensic psychiatrist, who may be obliged to stand as an expert witness and give evidence on a defendant’s mental state, potentially obviating the accusation that they had the mens rea for a crime. This is particularly the case in homicide, where mental illness can reduce a verdict from murder to manslaughter, but it is of more general significance in the verdict of ‘not guilty by reason of insanity’. Thus, this essay shall concern itself with a consideration of the current theories on which medico-legal practice seems to be predicated, before examining a possible alternative to this model and the congruence of this with a broader philosophical perspective, concluding with some speculation as to the implications of this concept for clinical practice and for society.
The Current Paradigms
It is not uncommon in today’s culture to hear somebody excusing their own or somebody else’s conduct on the grounds of some mental impairment; this ranges from the omnipresent adage of the irritable colleague – “I’m stressed!” – to the plea in court to be absolved from criminal responsibility due to an abnormality of mind. It is no novel idea to note humanity’s preponderance for excusing our actions by reference to external phenomena (take, for instance, Adam’s response to God in shifting culpability to Eve in the Genesis account of the Fall), but recent centuries could perhaps be credited with witnessing a large increase in the attribution of human acts to internal phenomena as a moral pretext. In so doing, we often demonstrate an underlying reliance on two profoundly different paradigms: one of accountable free will and the other of mental illness. On the one hand, human beings are usually responsible for the results of their own rational volition and on the other, there are circumstances when biological processes prevent the exercise of normal cognitive functions and result in actions that are beyond the individual’s moral and criminal liability. Now, while this may seem a slightly inconsistent dichotomy, it gains society’s credence by carefully conforming to Talcott Parsons’ conception of the sick role  as a contractual relationship entailing rights and obligations. Notably, an invalid is absolved from normal social roles, in particular, that of conforming to legal behaviour. By analogy with physical ailments, this perspective gains understandable authority, for just as a double amputee is to be excused from walking to work, so a kleptomaniac is excused from resisting the impulse to steal, since the latter’s ability to prevent themselves from pilfering is as impaired as the former’s capacity to initiate the gait cycle. The assumption, of course, is that the brain is an organ prone to defect just as any other and a moral ineptitude is directly comparable with a physical one, so the reasoning goes.
Plausible though this model sounds to the modern ear, on closer examination it reveals a number of deficiencies. First, on the theoretical plain, the argument for removing moral, and thus legal, responsibility from the mentally ill falls into the naturalistic fallacy. If we examine the discourse closely, it follows ineluctably that at some point a confusion of the fact-value distinction occurs, for the logical leap must be made between the idea that mental illness commonly causes criminality and the idea that such criminality is thus morally excusable. Even if we were to consider the argument in its strongest form – that certain mental conditions make it unavoidable that individuals will perpetrate certain actions – it still falls victim to the serious charge that a value judgement is being constructed out of a causal process. This is the manner in which an explanation, albeit entirely valid, becomes an excuse in an approach that is equally risible as if one were to justify one’s own propensity to crack bad jokes at inopportune moments as being the inextricable result of electrochemical impulses in Broca’s area: it is not the veracity of the causal connection that is dubious but the appeal to this mechanism as a moral validation for actions.
The second theoretical aspect of this model for the medicalisation of criminal behaviour that could be called into question is the assumption that mental illness occupies a unique space in human experience. It is beyond the scope of this essay to provide an extensive justification for compatibilism (the belief that determinism and free will are compatible ideas) over libertarianism (the belief that the universe is not determistic and that free choices occur outside such a framework), but suffice it to say that there is now some support for the former on the basis of experimental evidence for the involvement of neurochemical processes in human behaviour. This is not to say that free will does not exist in the sense that we make genuine choices; it is merely noting that, were all variables known, those choices could have been predicted. Now, if all our thoughts are mechanistic products of nature and nurture, then everyone has just as much of an excuse for their actions as the mentally ill, for we must assume that there are biopsychosocial processes leading ineluctably to them all. This illustration is rather far-fetched, but let us consider for a moment the impact of science’s increasing understanding of neurology and psychology. Just as hitherto an appreciation of the biological bases of certain mental illnesses has given their sufferers a more sympathetic response from society and the courts, increasingly, as our comprehension grows, will we not be able to excuse a rapidly expanding array of behaviours merely on the rationale that we understand the biological processes that cause them? Is it not possible that everything could be thus attributed and thus excused in the future? Far-fetched though this may sound, evidence of this kind has been starting to affect court judgments in the last five years, notably involving the association between genetic variants of monoamine oxidase A and a predisposition towards violence, resulting in the reduction of the sentence by an Italian defendant and the downgrading of a conviction of murder to manslaughter in the USA, both in 2009 . It is quite conceivable that expanding genetic understanding will yield a plethora of such arguments.
As a final critique of this position, we shall undertake to consider the practical implications of society’s attitude towards mental illness and criminal responsibility. One problem with the current system is that it massively favours widespread and well-understood conditions. Without a thorough understanding of a disorder, sufferers of rare or emerging illnesses will lack the sympathy that others will receive, not because they are any more ‘responsible’ for their actions, but merely because the manner in which they deviate is not one that can be likened to other cases for comparative purposes. It can therefore be argued that the current system is inadequate even in achieving what it proposes to do – to protect the mentally ill from being considered criminal. Moreover, in many mental illnesses there is growing recognition of a continuum between normal and pathological, so the distinction in responsibility may seem somewhat arbitrary.
Hence it seems ostentatiously clear that the current model of the two distinct paradigms of mental illness and rational decision-making is inconsistent, philosophically unsound and practically unjust. Given scientific advancement, it appears that there is actually no distinction between these paradigms: in fact, it is probable that they are similar causal processes, and there is no principled way to hold people responsible for certain causal processes and not others. It is increasingly evident that a different theory is necessary in order to cope with the rapid advances in scientific understanding that we are currently witnessing.
A Psycho-Criminal Model
Hitherto an assumption has tacitly been made that mental illness and criminal responsibility are mutually exclusive, yet there are a few cases in which society acknowledges that this concept is far from helpful. For instance, paedophilia is considered as a psychiatric disorder by the ICD-10, yet the practice of it is also generally treated as a crime. This is intriguing because it illustrates how it is possible to consider a particular abnormality of thought to be simultaneously pathological – requiring treatment – and immoral – requiring punishment. In fact, it has often been the case that mental illnesses have only been labelled as such because they result in behaviour that is deemed immoral: there are many eccentric personality types that are not considered illness because they are essentially benign, while psychopathy can include phenotypes which are potentially closer to normality but are considered pathological because of their so-called ‘moral’ consequences. One could even argue that it is necessary to be ill to perpetrate a serious crime , so repulsive is it generally found to be. If we extend this theory, it could be imagined that every crime (or at least those that are obviously morally wrong) could also be viewed as symptomatic of mental illness: ‘normal’ or healthy minds do not allow a person to brutally commit murder, rape or assault. There must be something defective in somebody’s brain to allow them either to be ignorant of the immorality of an action or to perpetrate it knowing it to be wrong. It seems likely that there is an element of narcissism present in many, and potentially defective reasoning that leads to short-termist decision making. This latter could perhaps be supported by the fact that criminality peaks at the ages of 17-18, possibly indicating underdeveloped reasoning in young adults. It has also been shown, for instance, that low self-control predicts a range of criminal behaviours, as well as the adoption of deviant values and association with deviant peers . Interestingly, an ONS survey showed that only 1 in 10 prisoners were not suffering from any mental illness, while the majority had more than one . This demonstrates that mental abnormalities are the norm among serious offenders, although the effect of prison itself may play a part here. It is not unreasonable to imagine though that the undiagnosed 10% in this study merely had sub-clinical psychiatric morbidities, so it does not seem implausible that, as a general rule, mental illness is necessary but not sufficient for severe criminality. On the basis of these arguments, I propose that mental illness and moral aberrance are two complementary ways of viewing the same phenomenon: the same act can be – and even must be – the result of simultaneous pitiable psychiatric disease and reprehensible moral ineptitude. Halligan et al. consider a specific example of how ‘misplaced compassion’ within the medical profession can result in a clinical diagnosis being afforded what is essentially materially motivated subterfuge in Malingering and Illness Deception . They note that while malingering is not recognised by official authorities to be a psychiatric disorder, it is frequently treated as such in practice. Their analysis and examples of how, in some cases at least, it is comparable to fraud in its manipulation of society to gain various rights and shed responsibilities are very pertinent to our discussion, but the model proposed in this essay is able to give a more balanced approach by allowing malingering to be considered a mental illness while thoroughly disapproving of the activity. This model is not new and, indeed, a similar practical approach is shared by Baur in the 1960s, when – based on his eminent professional experience – he observed that psychiatrists are poorly qualified to determine a person’s criminal responsibility; instead he considered that defendants with possible mental illness should stand trial disregarding this fact, and then only after conviction should treatment be considered on the basis of a psychiatric diagnosis 
Now, although this model is quite flexible, there are a few noteworthy objections to it, which it would do well to consider. First, there is the question of its consistency with Parsons’ concept of the sick role, for in extending culpability to the mentally ill for their actions, it can be seen to contradict the claim that sickness renders you exempt from normal social roles. In response to this, one can either discard the sick role, as only being relevant to physical ailments, or one can explore the implications of the invalid’s obligations within the model. The sick person is obliged to try to get well. If this is merely confined to seeking a cure for their disease, the sick role is limited in scope to those conditions that are curable; however, if we consider this striving for wellness as including the relief of symptoms in addition to tackling the underlying pathology if possible, this becomes a much broader and more helpful hypothesis. Thus, when we apply this concept to mental illness, we find that the pathological gambler is obliged to try to stop gambling and the person suffering from manic episodes is obliged to endeavour to prevent any of their schemes harming others. If we consider this idea in the broader context of cultural expectations, it becomes apparent that in every other sphere, a disability in a particular area of importance is accompanied by an expectation that the person makes a particular effort to overcome it. To illustrate, a medical student who lacks any great aptitude for figures would be expected to work particularly hard to manage the basic calculations necessary for a doctor, while a pupil whose handwriting leaves something to be desired would be urged to at least render it legible. Nonetheless, when we sometimes rather arbitrarily decide to label a psychogenic behaviour as a medical condition, we decide that it is futile for an individual to endeavour to overcome it; yet as we have seen, this attitude helps no-one, least of all the person with the condition.
A second objection to this model is that it rather artificially makes all those who commit serious crimes mentally ill, while leaving law-abiding citizens with an assumption of ‘sane until proven otherwise’; that is, it raises the question as to whether it is right to label all criminals as mentally ill when some seem more sane than many law-abiding persons. Moreover, there is a problem here in that a binary dichotomy is being formed when in reality human behaviour conforms to a continuum, with some crimes being more serious than others and some ‘sub-criminal’ behaviour being nonetheless considered unacceptable. The response to these arguments is, rather than limiting the hypothesis, instead to broaden it. Rather than artificially setting a point at which a crime becomes serious enough to justify a consideration of mental illness, let us consider for a moment that mental illness – or at least personality disorders – are often just the extremes of a continuous spectrum of human personalities, say two standard deviations above the mean, just like many other medical diagnoses such as hypertension or hypoalbuminaemia. We all act from time to time in ways that we regret, dislike and consider sub-human, in the same way that our fragile physiologies do not protect us from every episode of syncope, dyspnoea or migraine. Just as the latter are due to defects in the manner in which our bodies function in relation to their environments, surely the former less tangible acts can also be perceived as emanating from fundamental neurochemical errors. I am not arguing that everyone who loses their patience should seek an urgent referral to a psychiatrist, but it does seem apparent that everyone is suffering from sub-clinical psychiatric disorders, which, as literature for generations has described, is inherent in the human condition. It so happens that certain people’s mental abnormalities manifest themselves in acts that we as a society consider particularly heinous, often because of their damage to others, and it is these that we label ‘crimes’.
The final critique of this model that I intend to discuss is that, like its predecessor, it falls victim to the charge that it is unjust. Here the argument is that it is unfair to blame someone for something over which they have no control. However, this line of reasoning dramatically confuses the concept of free will, as we have already discussed. If we are to consider free will meaningfully, it must be in the sense that a person has the liberty to follow the course of action that they wish to follow; the fact that this course of action might have been predicted based on their predispositions is irrelevant, for if someone knew my dining preferences, they could in all probability predict my menu choices, yet this does not to the slightest degree impinge on the freedom I have in repeatedly picking similar dishes. Shephard and Reuter have also recently demonstrated that the common conception of of freewill is in accordance with this idea and is not dependent on the necessity of choice . In any case, even if this understanding of free will is rejected, moral culpability is not the only reason we have a criminal justice system, and the other reasons (for instance, safety of the public, correction for the future, disincentive for others) still stand.
It has thus been demonstrated that the current idea of two distinct paradigms for human behaviour that create a special sociological space for mental illness is damaging both for criminal justice and for psychiatric treatment, resulting in a poor application of the judiciary process and the deprivation of psychiatric treatment from some of those who need it most. It forms a false dichotomy that ignores the interesting and challenging interaction between illness and culpability. Instead, it is hoped that a new model for criminal responsibility and mental illness being states that can overlap and have a dynamic interplay is one that will further the aims both of health and of public safety. It should be borne in mind, however, that the implications of this are not straightforward. Acknowledging that an action is wrong and criminal does not necessarily mean that a person should indiscriminately be imprisoned; in fact, the Criminal Justice Act 1991 very helpfully allows participation in psychiatric treatment to be a condition of a probation order, for example. Thus, an action can rightly be labelled as criminal, but there need be no block to receiving the support most appropriate for it. Likewise, there can be an unwise assumption that anything that is labelled as a mental illness is unresponsive to incentives and disincentives, yet our model allows us to use this where appropriate. Consider nocturnal enuresis, for example: when a child presents with this condition, it would be easy to dismiss it as pathological and thus resort only to pharmacological treatment regimens, but this would be to disregard the fact that children do have some control over this, as witnessed by the dramatic response to a system of small incentives. The integrated model proposed in this essay would be entirely in keeping with this approach, acknowledging both the psychiatric dimension and the aspect of it that is amenable to persuasion. Rather than merely medicalising addiction to cigarettes, alcohol or drugs, for example, perhaps a more balanced approach analogous to this one could be found.
1. When you know my crime and the fate that overcomes me, I shall die no less of it; I shall die more culpable.↩
1. Peter W. Halligan, Christopher Bass, David A. Oakley. Malingering and Illness Deception. s.l. : OUP, 2003.
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