ABSTRACT

The one constant theme that will underpin this chapter is that since records began, and written accounts passed on, people considered to be insane (a legal term and not a psychiatric one) who have committed an offence should be treated differently from those offenders who are not considered to be insane. However, throughout history and across countries differences in interpretation, as well as in thinking, have ensured that a complex picture has emerged in contemporary times. Furthermore, the semantics of definition and terminology has subtly developed and altered both the usage and the operations of such terms. Influences from law, psychiatry, penology, legal philosophy and the public have served to constantly review the way in which the mentally disordered offender is treated, managed and contained. All these ‘forces’ that are brought together ensure that the disposal of such mentally disordered offenders is a dynamic and complex issue that is difficult to unravel, as there is little agreement on philosophical issues, the status of human rights and the role of medical jurisprudence. Medical jurisprudence is concerned with the application of law to medicine and the application of medical science to legal concerns. Throughout this chapter the reader is asked to be aware of these numerous influences on

mentally disordered offenders and the choice of disposal routes and to see the struggle with semantics not as pedantry but as a labour with philosophy and reason. However, it should also be noted that the two disciplines of psychiatry and law have their own language. Eastman1 refers to these as ‘mentaland’ and ‘legaland’ and they sometimes do not speak to each other or, when they do, understand each other. In an attempt at clarity the chapter is divided into four main parts: (a) historical background, (b) insanity defence, (c) incompetence to stand trial and (d) diminished responsibility.