Legal Insanity: Explorations in Psychiatry, Law, and Ethics

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In the last decades an important contribution to the debate on free will has come from neurosciences. Neuroscientists tended to ignore the traditional metaphysical perspective and focused on the role of the central nervous system in decision-making and human freedom of choice. This approach meant a radical epistemological change, since it used a brain sciences approach to advance a discussion on a theme that has long been considered the realm of philosophy.

In fact, several brain areas and circuits have been related to elements of free will. Pre-motor areas have been proposed to be involved in unconscious internally generated voluntary actions A first insight into the neurophysiological correlations of intentional action has been provided by a seminal study by Libet and colleagues, which showed that the human brain begins to prepare the action before the subject becomes aware of the decision to act Some insight into the study method will follow to better understand further advances as well as criticism.

The experiment implied measuring the readiness potential RP , a slow electrical change of the EEG sequence which originated from the supplementary motor area SMA , a cortical region which is involved in the preparation of the motor sequence, and begins, it turned out, its electrical activity half a second or more before a voluntary movement is performed Participants were asked to hold their gaze to an oscilloscope clock which completed its rotation in 2.

Then, they were required to flick or flex their finger or wrist whenever they freely wanted to do so, and to report the precise moment in which they became aware of the intention to perform the action, by remembering the exact position of the clock spot this moment was called W, because it was the expression of the conscious experience of the will. The authors found that the RP started ms before the subjects became conscious of their decision to act and concluded that human actions were associated with a preconscious activity of the brain. As a consequence, it has been argued that conscious intentions are not at the origin of our voluntary behaviour; nevertheless, they arise before a movement takes place, about to ms before its beginning as indicated by the electromiogram EMG 12 , probably meaning that there is still time for consciousness to suppress the movement before it actually takes place These findings have also been interpreted as an empirical confirmation of cerebral determinism, which postulates that every action is the unavoidable product of previous brain events, which occur following natural rules, and considered to imply that human beings are never completely free, or unconditioned, when they decide to do something, except for the possibility to inhibit their behaviour.

In interpreting these results one must bear in mind that the RP is present also when the participant withheld the action, thus questioning its specificity as a precursor to a voluntary action Moreover, Brass and Haggard 17 showed that the intentional inhibition of action was associated with the activation of the anterior fronto-median cortex and of the anterior insula. The existence of cerebral structures whose activation can be shown long before an action takes place was provided by Soon et al.

Even though these data may not provide conclusive evidence regarding the non existence of free will, together such results suggest the involvement of a higher level control network in shaping an upcoming decision before it becomes conscious.

Legal insanity : explorations in psychiatry, law, and ethics /

Despite the aforementioned lines of research shedding light on neural and electrophysiological correlates of intentional action and inhibition, some authors raised skepticisms and criticism One of the conceptual criticisms points out that results which deal with fingers or wrist can be hardly informative of complex decisions taken in the real world 14, In addition, we believe that another limit to the generalizability of these results is represented by the neglect of the emotional component associated with making a decision and expecting its consequences.

The experimental condition, in fact, does not take into account the emotionally charged situation that often characterizes the circumstances of criminal aggression. Summarizing, neuroscience has provided data that, according to some, prove that free will is non-existent. In any case, neurosciences — and neuroscientists — have made the topic of free will more controversial.

In addition, the evidence provided by neurophysiological and neuroimaging studies shows that action intention and inhibition have specific biological correlates which partly precedes the decision awareness. However, to what extent such a model could be informative and guide the evaluation of complex criminal behaviours in a forensic setting, is still a heatedly debated issue.

A link between freedom and mental disorders has been supposed and has survived for a long time, considering that the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders DSM-IV-TR included an important loss of freedom as one of the possible defining features of mental disorders Nonetheless, DSM-5 26 , for unstated reasons, no longer mentions such a concept for defining psychiatric disorders and their complexity.

A possible explanation of this choice relies on the idea that this loss of freedom is already included in the notion of disability 27, Nor is it clear whether the loss of freedom concept was referred to practical impairments or to the freedom of the mind or free will Regarding this last aspect, mental disorders are commonly considered as being associated with compromised free will. However, to our knowledge, there are no legal systems or criteria assuming lack of free will, per se , to be the reason for non-accountability in criminal trials.

Noteworthy, free will is generally conceived in a different way from the concept of liberty or freedom which includes the absence of external coercion, conditioning and the limitation of possibilities The will is not only a topic in philosophy, but certainly also in psychopathology. To its decline also contributed the anti-rationalism and pessimism that appeared in the wake of the First World War and the acceptance of mechanistic and neurological explanations for the disorders of motility e.

Nonetheless, in the last decades there has been a renewed interest in the concept of will, particularly free will, which has been differently described and conceptualized.

According to Walter 33 free will is composed of three parts. The first component is the presence of alternative possibilities: to act freely the subject must be able to act otherwise. Secondly, he must act or choose for an intelligible reason. Lastly, he must be the originator causal source of his action. All these three aspects may be compromised in mental disorders, which can undermine the possibility to choose between alternatives, affect the intentional aspect of behaviour, and alter the sense of agency Therefore, a better example may be: acts influenced by a commanding auditory hallucination that cannot be disobeyed, as they may, e.

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Finally, the actions which follow a manic state probably reflect how the person cannot be considered the genuine source originator of the action In sum, based on this tripartite free will framework proposed by Walter, we can conclude that mental disorders may compromise free will —but exactly when and how they do so is not very clear, and open to interpretation. Based on our analysis so far, we can conclude that, firstly, compromised free will is often considered central to legal insanity, and, secondly, free will may indeed be affected by mental illness.

But does this render free will a helpful concept in actual psychiatric assessments of criminal responsibility?

Firstly, the very existence of free will is contested by, among others, neuroscientists, using arguments that are, e. For instance, in the United States, to date there is no legal criteria which include the absence of free will as a prerequisite to reduced responsibility and accountability. To overcome the various problems related to using free will regarding legal insanity, it has been proposed to substitute the concept of free will with the concept of autonomy The reason is that the central concept in patient decision-making competency is autonomy.

There are several advantages of using the concept of decision-making competency instead of free will. For example, decision making, which can be conceptualized as the ability to select one course of action among several possible options, relies on frontal lobes functioning Specifically, it has been suggested that the orbital sector is responsible for the affective value of the stimulus, the medial sector controls the motivation to act, while the lateral sector supervises the higher-order cognitive structure of plans and goals A second advantage is that the concept of free choice has also been used to explain competent decision-making In this line of thought, competent patient decision-making can be conceived of in terms of autonomy, but also in terms of free choice and free will.

Thirdly, medical assessment of decisional capacity research has been widely studied across jurisdictions which cannot be said of legal standards on insanity, at least not to the same degree , in particular with respect to mental illness Among possible factors associated with impaired decision making, is cognitive dysfunction, which has been widely acknowledged to play a major role both in psychiatric , and nonpsychiatric 48 samples. In addition, specific groups of psychiatric patients, such as those affected by schizophrenia, have been considered particularly at risk from impaired decision making in spite of a considerable heterogeneity having been acknowledged within diagnostic groups 43, It would be a very positive development if research, as it has been done on patient competency using this model, could also be performed on insanity defense evaluations in the future — clearly, some adaptations to the model would have to be made to make it fit the forensic context, see below.

In our view, this is one of the most interesting features of this model Yet, the model has to be contextualized regarding the specific situation of forensic assessments of criminal responsibility.

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In fact, there are several differences between evaluations of incompetence and insanity as well, which should be recognized. Finally, the mental insanity assessment relates to an act, which is unlawful and could be punishable, while informed consent acquisition deals with a choice about a medical treatment, which is legal and admissible Despite these limitations, some similarities between these two models must be acknowledged which, in part, depend on the specific standard and regulations in a legal system.

Secondly, in practice, in both assessments the decision making process is evaluated in relation to the possible presence and influence of a mental disorder, or, more broadly, mental incapacity In the first case, in fact, competence to consent to treatment must be verified as a prerequisite of valid informed consent acquisition, while in the second case forensic psychiatrists must investigate if the defendant possessed the capacity to appreciate the wrongfulness of the act and if the presence of a mental disorder influenced the decision making process that led to the act Based on the relevant similarities, we believe that the clinical model of competence to consent to treatment could provide a suitable framework to conceptualize and contextualize the notion of free will in forensic insanity assessments.

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To submit a review, please log in. Elliott - - Journal of Medical Ethics 17 2 Bijlsma J, Meynen G. Brand new: lowest price The lowest-priced, brand-new, unused, unopened, undamaged item in its original packaging where packaging is applicable. After the MPC was first promulgated, most states initially incorporated identical or substantially similar defenses into their laws. In recent years, there have been quite a few cases in which the behavioral experts were not able to do a proper evaluation of the defendant, because he did not sufficiently cooperate. For instance, in the case of Washington v.

Yet, there are cases where neuroscience may also provide information regarding these issues, e. See table 1 for neurocognitive dimensions related to the four capacities, which can, in principle, also be assessed by neurocognitive evaluations, and further clarified by neurocognitive research.

The philosophical debate about free will is far from being concluded.


A crucial question to be addressed is if the problem of free will should constitute an issue for forensic psychiatrists. Apparently, the concept expresses something central in assessment of criminal responsibility or legal insanity. Yet, in our opinion, the concept of free will as such is too vague and too controversial to be helpful to guide actual assessments of criminal responsibility. Still, the concept could be operationalized and contextualized in terms of autonomous decision-making, which could well be useful for analyzing human behaviour.

The proposed framework is not just compatible with neuroscience, the evaluation of the components of decision-making can be informed by a growing body of neuroscientific data; in contrast to free will, decision-making is a term often used and studied in cognitive neuroscience. This makes it possible to perform assessments that are supported by neuroscientific views and findings. The decisional capacity evaluation should be based on criminal and clinical data together with the elements related to the trial, despite the mentioned limitations associated with its application in the forensic setting.

A fourpartite model to evaluate autonomous choice, as used in assessments of competence, can be adapted to the specific context of such evaluations.

Legal Insanity. Explorations in Psychiatry, Law, & Ethics

Competing interests : the authors have declared that no competing interests exist. Funding : all the authors received no financial support for this study.

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Grim P. Your basket:. This book examines core issues related to legal insanity, integrating perspectives from psychiatry, law, and ethics. Furthermore, the book discusses the impact neurosciences may have on psychiatric and psychological evaluations of defendants as well as on legal decisions about insanity. Books All Fiction Fiction Drama. World Collections. Fiction Fiction Drama. E-Readers e-Reader accessories. School bags Pencil Cases Globes. Questions addressed in this book include: Why should insanity be a component of our legal system? What should be the criteria for an insanity defense?

What would be the reasons for abolishing it?

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Who should bear the burden of proof? Furthermore, the book discusses the impact neurosciences may have on psychiatric and psychological evaluations of defendants as well as on legal decisions about insanity. Subject Insanity Law Criminal liability. Insanity defense. Defense Criminal procedure Insanity defense. Insanity Law.

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This book examines core issues related to legal insanity, integrating perspectives from psychiatry, law, and ethics. Various criteria for insanity are analyzed and. Request PDF on ResearchGate | Legal Insanity. Explorations in Psychiatry, Law, & Ethics | This book.

Bibliographic information. Publication date Title Variation Explorations in psychiatry, law, and ethics Series International library of ethics, law, and the new medicine, ; volume 71 ISBN hardcover X hardcover. Browse related items Start at call number: K M49