Many high-profile cases that have appeared on the news were committed by individuals who allegedly suffered some serious mental disorder. In 2007, for example, Seung-Hui Cho shot and killed 32 people on the Virginia Tech university campus before taking his own life. He was previously ordered by a judge to seek outpatient care after making suicidal remarks to his roommates (CNN, 2016). Josef Fritzl, the Austrian man who fathered seven children with his own daughter while keeping her captive in the basement of the family house for 24 years, suffered from a severe personality disorder according to a psychiatric evaluation (The Telegraph, 2008). In 2012, James E. Holmes opened fire on hundreds of unsuspecting moviegoers at the midnight premiere of The Dark Knight Rises in Aurora, Colorado. Dressed in body armour, he unleashed tear gas and killed 12 people and wounded 70 other. His defence attorney claimed that Holmes suffered a psychotic episode resulting from schizophrenia, a diagnosis confirmed by 20 doctors (Gurman, 2015).
Cases like these have led the general public to ask questions about the relationship between mental disorder and crime. Does mental disorder cause crime? Can mentally disordered offenders be held guilty for their actions? How should the criminal justice system respond? This two-part series aims to address these questions by critically exploring the extent to which mental disorders contribute to the understanding of crime causation and by analysing their impact on criminal justice practices. To that end, in the first article we will examine the concept of mental disorder from the perspective of both medicine and law. Then, in order to introduce the relationship between mental disorder and crime, we will focus on the overrepresentation of mentally disordered people in the criminal justice system.
Concept of mental disorder: An overview
The concept of “mental disorder” is problematic because it encompasses a large number of human behavioural symptoms and conditions, ranging from common disorders such as anxiety and depression, to more serious psychopathological disturbances like dementia and schizophrenia, as well as substance-use disorders related to drug and alcohol abuse and dependence, and various personality disorders (Helfgott, 2008; Busfield, 2011). However, this is not a closed list, since the overall boundaries of mental disorder have been widened over the last century due, among other reasons, to the construction of new types of disorder (Busfield, 2011). Despite the evident difficulties, there have been many attempts to define mental disorder, both in medical and legal terms.
In medical terms, mental disorders are most commonly defined in relation to the International Classification of Diseases (ICD), produced by the World Health Organisation (WHO), and the Diagnostic and Statistical Manual of Mental Disorders (DSM), published by the American Psychiatric Association (APA). Both resources contain a categorical classification system of mental disorders and provide mental health professionals the diagnostic tools to identify them (von Berg, 2014). In legal terms, the European Court of Human Rights (ECtHR) has developed the concept of “unsound mind” through its case law on the right to liberty and security laid down in Article 5 of the European Convention of Human Rights (ECHR), which allows “persons of unsound mind” to be deprived of their liberty (ibid.). Both definitions will be further discussed in the following sections.
In 1893, the International Statistical Institute adopted the first international classification system, known as the International List of Causes of Death and ultimately as the ICD. After several revisions, it was entrusted to the WHO at its creation in 1948, which published the 6th revision, ICD-6, the following year (WHO, 2016). For the first time, a separate chapter on mental disorders was included, and subsequent revisions were aimed to further improve and expand it. This effort has been supported, in particular, by the APA, which developed the first edition of the DSM in 1952 based on the ICD-6. Thanks to the collaborative agreements between the WHO and the APA, the two classification systems have become increasingly harmonized. In their current revisions, ICD-10 and DSM-5, they are not entirely homologous, but for the most part they are identical or differ in insignificant ways with regard to the diagnostic categories and criteria (Helfgott, 2008; Quah, 2016).
The ICD-10 recognizes the challenge of conceptualizing mental disorder by introducing its definition under the heading “problems of terminology”:
Disorder is not an exact term, but it is used here to imply the existence of a clinically recognizable set of symptoms or behaviour associated in most cases with distress and with interference with personal functions. Social deviance or conflict alone, without personal dysfunction, should not be included in mental disorder as defined here (WHO, 1992, p. 11).
The DSM-5, on the other hand, gives following definition:
A mental disorder is a syndrome characterized by clinically significant disturbance in an individual’s cognition, emotion regulation, or behaviour that reflect a dysfunction in the psychological, biological, or developmental processes underlying mental functioning. Mental disorders are usually associated with significant distress or disability in social, occupational or other important activities. An expectable or culturally approved response to a common stressor or loss, such as the death of a loved one, is not a mental disorder. Socially deviant behaviour (e.g. political, religious, or sexual) and conflicts that are primarily between the individual and society are not mental disorders unless the deviance or conflict results from a dysfunction in the individual, as describes above (APA, 2013, p.20).
As can be noted, these definitions are very similar. Both systems define mental disorders by associating them with distress or disability. In other words, they are understood to be conditions associated with harm. However, not all conditions associated with harm are to be considered as mental disorders, only those which involve a personal dysfunction. Deviation from social norms alone does not count as mental disorder, neither for the ICD-10 nor the DSM-5. The latter also establishes that the condition cannot simply be an expectable or culturally approved response to a common stressor or loss (Bolton, 2008).
The European Convention of Human Rights was drafted in 1950 by the Council of Europe and came into force in 1953. It was the first comprehensive international treaty for the protection of human rights to emerge after the Second World War and to enforce some of the rights stated in the Universal Declaration of Human Rights of 1948 (Schabas, 2015). Being a product of its time, the ECHR makes only one single reference to people with mental health problems. Article 5(1) provides for the right to liberty and security, but establishes an exception for “the lawful detention […] of persons of unsound mind”.
The Convention does not explain what is meant by the words “persons of unsound mind”. In the case of Winterwerp v. the Netherlands, the Court held that:
This term is not one that can be given a definitive interpretation: […] it is a term whose meaning is continually evolving as research in psychiatry progresses, an increasing flexibility in treatment is developing and society’s attitude to mental illness changes, in particular so that a greater understanding of the problems of mental patients is becoming more wide-spread (para. 37).
In the same judgment, the Court also said that:
The very nature of what has to be established before the competent national authority -that is, a true mental disorder- calls for objective medical expertise. Further, the mental disorder must be of a kind or degree warranting compulsory confinement. What is more, the validity of continued confinement depends upon the persistence of such a disorder (para. 39).
From this it follows that, in practice, a clinical opinion is required in order to determine whether an individual has a mental disorder or not. This links the legal definition of “unsound mind” with the medical definition of “mental disorder” (von Berg, 2014). Furthermore, this approach is consistent with the Recommendation No. Rec (2004)10 adopted by the Committee of Ministers of the Council of Europe in relation to the protection of the human rights and dignity of persons with mental disorder. It defines persons with mental disorder “in accordance with internationally accepted medical standards”, an example of which, according to the Explanatory Memorandum that accompanies the Recommendation, is the ICD-10 (European Union Agency for Fundamental Rights, 2011).
Mental disorder in the criminal justice system
It has been widely reported that people with mental disorders are highly overrepresented in the criminal justice system compared with their representation in the general population (Lurigio, 2012). In the United Kingdom, for example, were one in four adults experience some form of mental disorder, the Mental Health Foundation estimates that up to 90% of British prisoners have a mental disorder, substance abuse problem, or both. While male prisoners are 14 times more likely to have a mental disorder than men in general, female prisoners are 35 times more likely than women in general (Parker, 2015). This also happens in other Western economies.
A study carried out in the United States in 2014 showed that about 1 in 5 adults aged 18 or older (18.1%, or 43.6 million adults) had suffered a mental disorder in the previous year, and 4.1% (9.8 million adults) were so seriously affected that they were unable to perform one or more major life activities (Centre for Behavioural Health Statistics and Quality, 2015). In the criminal justice system, however, over half of the inmates in state prisons and local jails manifest symptoms of mental disorder. Specifically, the rate is 56% for state prisons inmates, 45% for federal prison inmates and 64% for local jail inmates. For female inmates, the rates are even higher, with 61% of federal female inmates and 73% of state female inmates showing signs of mental disorder (Arnold, 2010). Currently, prisons of the United States hold 10 times more mentally ill people than state hospitals across the country, leading prisons to be seen as “de facto” psychiatric hospitals (Parker, 2015; Mills and Kendall, 2016).
In Canada there is also evidence of this overrepresentation. A study of 2001 found that the prevalence of schizophrenia in the general population was about 0.5%, while the rate in provincial prisons was 1.5% and in federal prisons 2.2% (MacPhail and Verdun-Jones, 2013). Overall, it is estimated that 80-90% of the prison inmates have a diagnosis of mental disorder, with antisocial personality disorder being the most frequent (60-80%). Other research has found a high prevalence of conditions such as fetal alcohol syndrome, developmental disabilities, low IQ, and brain injuries (ibid.).
In New South Wales, which has the largest adult prisoner population in Australia (Australian Bureau of Statistics, 2015), the Corrections Health Service conducted a survey in 2001 to investigate the mental health status of the prisoners (Butler and Allnutt, 2003). The findings of the survey showed that the twelve-month prevalence of “any psychiatric disorder” (psychosis, anxiety disorder, affective disorder, substance use disorder, personality disorder, or neurasthenia) was substantially higher in the prison population (74%, of which 72% were males and 86% females) than in the general community (22%). The most recent Inmate Health Survey, conducted in 2009, revealed an increase from 43% in 2001 to 49% in 2009 regarding the proportion of prison inmates who reported having ever received assessment or treatment for an emotional or mental problem. The most common mental health conditions were depression (35% of the sample), anxiety (25%) and drug dependence (21%) disorders (Indig et al., 2010).
According to all studies mentioned above, female prisoners are more likely to suffer mental disorders than male prisoners. Reasons for this include the “multiplicity of disadvantages and damages” (Medlicott, 2007, p. 250) women experience before entering into prison. Almost half of them have suffered from domestic violence, and a third have been sexually abused. The psychological distress caused by such events has been linked to a higher prevalence of self-harming behaviour and suicide (Mills et al., 2013). In addition, women experience the pains of imprisonment more intensely than men due to their role as mothers and primary carers. Worry over home and family cause depression and anxiety, and the situation is further exacerbated by the small number of women’s prisons, as this means that women are more likely to be imprisoned away from their home area (ibid.).
As a conclusion of this first article in the series, we can say without any doubt that there is an evident overrepresentation of mental disorders in prisoners. What does this mean for the relationship between mental disorder and crime? Could there really be a causal link between them? We cannot give a clear answer at this point, but in our next article we are going to delve more deeply into this issue and examine all the relevant empirical literature.
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