Forensic Psychiatry and Human Rights

Torbjorn Tannsjo

Professor of Practical Philosophy, Gothenburg University

« Psychiatry



A new Convention on Human Rights and Biomedicine, adopted by the Committee of Ministers in the Council of Europe on 19 November 1996, open to signature by the member states of the Council of Europe, the Non-Member States which have participated in its elaboration (Australia, Canada, the Holy See, Japan and the United States of America), and by the European Community, states that,  ” … a person who has a mental disorder of a serious nature may be subjected, without his or her consent, to an intervention aimed at treating his or her mental disorder only where, without such treatment, serious harm is likely to result to his or her health ” (Article 7, my emphasis). This convention means problem for all these states with respect to forensic psychiatric care. Unless the legal system is reformed in a radical way in all these countries, these countries will not be able to ratify the convention, or so I have argued in a recent book.[1] I will here give a brief statement of my argument.

Three Models

In principle, there seem to be three main ways, in which society can react to people who commit crimes under influence of mental illness. I will refer to these ways as ”the Excuse Model”, ”the Mixed Model”, and ”the Full Responsibility Model” respectively. Only the third model is compatible, we shall see, with the new convention.

These three models could be described as follows.

1. The Excuse Model. We excuse people who commit crimes influenced by mental illness and consider them unfit for trial. If they are dangerous, they are detained in the interest of the safety of the rest of the citizens. As far as I know, it is practised in all countries, except Sweden and a few North American States.

2. The Mixed Model. We hold people who commit crimes influenced by mental illness responsible for their criminal offence, we convict them in accordance with criminal law, but we do not sentence them to gaol. Instead we sentence them to psychiatric treatment. This model is practised in Sweden.

3. The Full Responsibility Model. We apply criminal justice to people who commit crimes influenced by mental illness and sentence them to gaol; however, if this is what they need, we offer them (voluntary) psychiatric treatment.

Upon inspection, it seems clear that on the Full Responsibility Model, an, , and on this model only, we allow psychiatrists to abide by the above mentioned Convention on Human Rights, requiring that no one be coercively treated unless ”without such treatment, serious harm is likely to result to his or her health”. On all other models psychiatrists will treat people, not in their own best interest, but because they have proved to be, or are expected to be, dangerous to others. This unique quality of the Full Responsibility Model may seem problematic, but perhaps it is not. For there are indeed very good reasons to adopt the Full Responsibility Model, no matter what we may think of the recent convention. Here are some of these reasons.

First of all, if we adopt the Full Responsibility Model, we get a clear delineation of roles, which engenders a more professional treatment. We allow the psychiatrist to be just a doctor, not a warden. We allow that punishment is one thing, treatment another thing.

Secondly, on the Full Responsibility Model,,,, we liberate psychiatrist of the task of deciding if people who were mentally ill when they committed criminal offences ”could have acted otherwise” — a hopeless task (the philosopher knows).

Thirdly, on the Full Responsibility Model we treat mentally ill persons as ”normal”, we allow them to repent their crimes, which renders easier their recovery.

But is it so obvious that the Excuse Model and the Mixed Model are at variance with the new Convention on Human Rights and Biomedicine? Well, this is perhaps not obvious, but it is indeed true. And a way of seeing this is as follows.

On both the Excuse Model and the Mixed Model psychiatrists often flout this convention. They act against it when on the Excuse Model they detain people, not because this is what these people themselves need but because, after having been considered unfit to stand trial and not accountable for their actions, these people are considered dangerous to others. James C. Beck has made the following comment about this, relating to US practice:

Incompetent defendants who do not meet civil commitment standards are to be released from hospital. However, judges are reluctant to release incompetent patients charged with serious violent crimes. Often, judges will find that these patients meet standards for commitment on evidence which would not be sufficient for commitment of other persons. (’Forensic psychiatry in the USA and the UK: a clinician’s view’, Criminal Behavior and Mental Health,  1996, p. 17)

And the situation is no better when the Mixed Model is adopted. Psychiatrists act against the convention when they feel that there is no more treatment to be offered to a person who has been sentenced in accordance with the Mixed Model to psychiatric treatment. The doctor demands that this person be set free, but the relevant administrative court rejects the claim, since the person is considered still to be dangerous to others. In the circumstances, the person is detained in a psychiatric clinic without being offered any treatment whatever. This is reminiscent of what used to happen in former Soviet Union. So there are good reasons to adopt the Full Responsibility Model, I submit.

However, three objections to the Full Responsibility Model immediately come to mind. I will call these arguments “the Argument from Fairness”, the “Argument from Humanness”, and the “Argument from Jeopardy”, respectively.

The Argument from Fairness

First of all, is it not unfair to sentence people who could not help doing what they did to gaol? The answer to this question is less straightforward than it might at first appear. Let me take as my point of departure of my argument the most well-known and most extensively discussed example, the McNaghten case. Daniel McNaghten, suffering from the paranoid delusion that the Prime Minister, Sir Robert Peel, was part of the plot to persecute and to destroy him, shot at and killed Peel’s secretary believing him to be Peel. According to the McNaghten Rules of 1843, in order to establish a defence of insanity it must be proved that the accused ”was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong”. McNaghten has been thought to meet this requirement. Let us assume that he did. Does this mean that it would have been unfair to punish him (and to offer him treatment only on a voluntary basis while he served his time)? I might be thought that this would have been unfair. For, surely, when he committed his crime, he did not know what he was doing or, at least, he did not know that it was wrong.

On this argument, the point is not simply that he mistook the secretary for the Prime Minister nor that he wrongly believed that he acted out of self-defence. The point must rather be that his belief that the Prime Minister threatened him, and that he had to shoot him in self-defence, was compulsory. It was, as such, a symptom of his mental illness. And because of its compulsory nature his very act was compulsory. He could not help doing what he did. But it is not fair to punish a person for something he could not help doing, it might be argued.

It is far from clear, however, whether it is true of a person such as McNaghten, that he could not help doing what he did. In particular, it is far from clear in what sense of ”could not help doing what he did”, it is true of him that he could not help doing what he did. There are senses of this phrase in which no one, ever, could help doing what he does. And there are senses of this phrase in which McNaghten did probably know what he did and could have helped doing it (if, for example, he had decided not to do so, he would probably not have shot the Prime Minister).

But this is besides the main point of my argument. For I am prepared to question, not only the argument as such, but also the foundation on which it is based. When we say that it is unfair to punish a person for something he cannot help doing, we want to make a distinction. We tacitly assume that it is fair to punish a person for a criminal offence that he can help performing, i.e., we presuppose a theory of retributive justice according to which a person can deserve (morally) to be punished. I would have none of this. First of all, the entire retributivist tradition, according to which some people deserve to be punished, irrespective of the consequences of doing so, seems to me to rest on a primitive atavism. Be that as it may, if society punishes an offender, not for retributivist reasons, but for preventive reasons, then I cannot see why this would be objectionable even on a retributivist count. So this is what society should do, then. The rationale of the punishment (or the social reaction) in particular cases should be that they (the criminals) had committed the crime for which they are convicted (irrespective of if they could help doing what they did). But the rationale of the institution of punishment, and the actual form it takes, should be utilitarian (preventive of crime).

Of course, this rejection of retributivism is nothing I can fully substantiate in the present context. However, my rejection of it is not very spectacular. And it should be noted that, if I am correct in it, then we could very well go on saying that it is unfair to punish a person who committed a crime and could not help doing so, but we should also say, with equal right, that it is unfair to punish a person who committed a crime and could help doing so. In both cases we use these persons as means to a certain end. We punish them in order to reduce crime rates.  And note that even on the Excuse model and the Mixed model we detain people who are innocent. We detain them in closed psychiatric wards, not seldom without having any treatment to offer them. Is not this practice just as unfair to these people?

The Argument from Humaneness

The question of (retributive) justice set to one side, is it not still inhumane to sentence mentally ill persons to gaol? Is it not inhumane to the mentally ill persons themselves, and does it not mean that they will become a burden to other prisoners?

There is much force in this objection, if we take as our point of departure actual prisons in most actual countries of the world. However, the reason that it would be inhumane to sentence mentally ill persons to gaol is that most prisons are, generally speaking, inhumane institutions. The proper reaction to this is not to spear mentally ill persons of going to gaol but to make our prisons places where no one is treated badly (other than by being coercively committed and hence deprived of liberty, of course), either those who are insane or those who are sane. No one should be treated merely as a means.

This is a question of economic resources, but at least in the rich parts of the world, there should be no problem of raising necessary funds. The pay-off in the long run must be good.

Obviously, most people who go to gaol do so, primarily, because they have committed a criminal offence, and been convicted for it, but, basically, because of some kind of failure in their lives. They are ill educated, poorly socialised, or they have genetic disorders and personality traits that make them ill suited to social life. They should all of them be treated humanely. There is much to be gained from this. There is much to be gained in humanitarian terms, of course, but also in terms of efficiency. If we treat them well, if we take as our point of departure their individual needs, there is a chance that we will be able to help them to a well-ordered life.

The Argument from Jeopardy

One final objection remains to be answered. Would it still not be hazardous to set people free, just because they have served their time, when they could still be considered dangerous to others (because of mental illness)? Would not this be to put into jeopardy the life and safety of their potential victims?

I admit that there is some force in the argument. Of course, if we accept The Full Responsibility Model we need to take some precautions here. We cannot just set people who have committed serious crimes free after only a short time in gaol, if they are still considered dangerous because of their mental illness (but cannot be treated for the illness because they refuse to accept treatment). It should be noted, however, that if they are dangerous to themselves, and incapable of reaching an autonomous decision as to their own medical needs, we can enforce psychiatric treatment upon them, without violating the convention referred to above. For then we treat them in their own best interest.

Still this may not seem to be enough as an answer to the objection from jeopardy. What can we add to the answer? I suggest the following. When people commit very serious crimes, when they kill or harm other people, they should be sentence to a very long time in prison.

I see nothing objectionable in this. After all, they have committed very serious crimes. Then it is only natural that the reaction from society be strong. However, if they repent, and behave in a manner that allows us to predict that they will not commit crimes again, then they should be set free on parole, and, if everything works out well, they can be absolved from their punishment.

All sorts of leniency provision should be tried. A similar possibility should be open for those criminals who are mentally ill. If they accept to undergo treatment for their mental illness, and if they recover from it, then they too should be set free on parole. And, if things work out well, they can be absolved from their punishments.

A special category, existing somewhere in a continuum from mentally healthy to mentally ill persons, are those who sexually abuse other people (paedophiles, for example). They should of course be offered a similar choice. If they accept treatment (even such treatment as medical castration) and if they accept to undergo controls that they continue their treatment, and if it can be established that such measures tend to make them become (sufficiently) less dangerous to others, then they could be set free.

It is a moot question whether these people are mentally ill or not. On the Full Responsibility Model, we need not go into this complicated discussion. I see this as an advantage. We treat them as normal, we punish them for their deeds, but we offer them whatever treatment that exists for their problem. Even if the punishment they undergo is severe, there is a possibility for them to escape from it; by accepting, and voluntarily undergoing, successful treatment.


All this means that, it is impossible for a country to ratify the Convention on Human Rights and Biomedicine, unless the Full Responsibility Model be adopted. This is nothing for any one to lament, however. The Full Responsibility Model is not only unique in being compatible with the new convention, but it has considerable merits as such.

[1] Torbjorn Tannsjo, Coercive Care: The Ethics of Care in Health and Medicine (London and New York: Routledge, 1999).

Version 1.0 published November 11th 2000

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