Mental impairment

Custom Student Mr. Teacher ENG 1001-04 31 October 2016

Mental impairment

The law of not guilty due to mental impairment in Victoria, Australia was started as a simple experiment in the mid nineteen nineties as a result of the a case that involved victims that were released from prison on the account of not being guilty on the ground of mental impairment which was initially known as insanity (Patelis, 1996). Such a decision was always made by the Governor after consulting with the cabinet on the way forward. Afterwards, it was shifted to the courts that were concerned with sentencing.

The victims who had initially been the favorites of the politicians and the Governors for that matter ended up waiting for long periods of time for their cases to be determined by the courts immediately after this change was effected (Patelis, 1996). This change in the legislation was to mean that the people who were to be released on the grounds of not guilty by reason of mental impairment had to be detained in the precincts of the court for at least a period of time for the purpose of their own security and the security of the community at large.

This was part of implementing the obligations that were recognized internationally on the principles of protecting the insane people and also those who had mental problems. The law had been interpreted by the seventy supreme courts in Victoria by the year two thousand and four. To date, this body of law constitutes one of the very vital organs in the mental health section. Factors that cause differences in opinion toward Mental impairment defense. In Victoria and other parts of the world, there are factors that cause people to react negatively towards defenses based on the ground of insanity or mental impairment (Feusch, 1980).

This is an issue that is one of the mostly contested about and has ended up generating a lot of debates among many people including those who support the ideas and those who are against the ideas. Many view it with very strong opposition and cannot see the reason why someone should be released or acquitted by the courts on grounds of mental disorders. Such releases have really led to a lot of heat and therefore mistrust towards the said defense and resulted to general bias of the defense (Feusch, 1980). Some states have been forced to go ahead and abolish this kind of defense by the increasing number of outcries from the public.

An example is the release of a victim in the United states of America after he attempted to assassinate the then president in the year nineteen eighty one. The president was Reagan Ronald. A lot of changes and shifts in the law about insanity defense came soon after this attempted assassination with many of them concentrating on the not positive public outcry. These negative views and opinions are not only found in the U. S but cut across many mixed cultures (Menzy, 2002, pp. 379). Many of the attitudes facing the defense on insanity can be termed as genuine but one wonders, for how long?

The media has also played a role that is looked at as being negative and has led to negative opinions and stigmatization among people on the misuse and abuse of the defense on insanity. Jurors have also been affected by these allegations. Most of them would go to court with minds that are already influenced by the media or by the mare perception of insanity thus ending up passing verdicts that are uninformed and misplaced. There are two main concerns that show case as to why the public has different views on the insanity defense cases (Menzy, 2002, pp. 82). Albeit the misperceptions exist, one would argue that they are uninformed.

The first highlight is that, the people look at the defense on insanity grounds as a mare scape goat by which victims of crime can avoid court prosecution and hence punishment. Such beliefs oftenly make the public feel that the criminals evade their rightful justice and yet they have committed crimes. The other reason is that, lack of accurate and correct information about such cases of insanity lead to criticism and negative reaction by the public.

The truth is that even if the jurors and the judges are given the right number of cases that involved mental illness, they end up exaggerating the figures by making them look as if they were too many thus inciting the public to have conflicting reaction on the same (Jons, 1999). Such ideas that are misinformed could lead to general bias that influence the decision concerning the mentally ill thus leading to unfair judgment in most of the cases. Case Studies. New Zealand(NZ). In NZ, the people who are found to be not guilty by reason of insanity(NGRI) are released by the courts under special conditions.

They undergo treatment, rehabilitation and monitoring by the forensic services on mental health(FMHS) (Jons, 1999). Some of the patients are treated as special cases and can only be released or discharged upon the assent of the minister in charge. This of course, depicts the concern of the public about the risk that is bound to be faced if such people are taken back to the society. The FMHS department has the task of both seeing to it that the patients recover on time and also making sure that the public is protected against such patients.

Despite the presence of the FMHS department, there is still the concern about the likelihood of the criminals to go back to the society and cause more crimes and havoc (Peter, 1982, pp. 2). Such cases have not been focused on critically by the FMHS and is becoming a stigma to both the mentally ill and those in the community at large. The acquittees on mental grounds are rehabilitated for a long period of time until such a time when the outcomes are inevitable. Also as a way of treating the patients, the public is to be informed so that their attitude changes in order for there not to be any form of stigma (Peter, 1982, pp. ).

A research was carried out by students of a local University on the outcome of the efforts by the FMHS, the patient treatment duration and also looked at the rates at which the criminals are committing crimes after being acquitted. The findings of the research suggested that those offenders who committed major crimes were detained for a long period of time than those who committed less serious offenses. It went ahead to point out that patients were released on the basis of their recovery and not on the duration of time they spent in the hospitals. In England and Wales.

In England, there was a scenario in which a person of an adult nature was detained on the grounds of having committed a crime and yet he was mentally ill. The victim had been referred to the hospital’s mental rehabilitation unit by one of the courts in England (Finke, 1989, pp. 403). It meant that the doctor who was taking care of him was in charge of renewing his detention period but was not in charge of carrying out medical examinations in case of any challenges arising about the case. An independent doctor would be brought in to carry out the examination in order to avoid biasness.

The patient had been classified as one with acute mental disorder and yet in real sense, he was suffering from confusion and a state of disturbance, a condition he developed in his early adulthood (Finke, 1989, pp. 406). Several doctors refused to reclassify him and suggested that he belonged to the mental rehabilitation clinic. A medical officer ones examined the patient and gave contradicting views from those of the other doctors. They then came to an understanding that the patient would be reclassified. Thereafter, several cases of the sort came up but were treated differently from the first one (Finke, 1989, pp. 08).

In Australia (Victoria State). It is very clear under section twenty cap one of the crimes Act of nineteen ninety seven that only a person suffering from mental disorder and that he/she is proved to have committed a crime at a time when he was suffering from the illness, can be allowed to used the defense of mental impairment. This meant that the person either committed the crime and was not aware of the quality and nature of the crime or the person was not aware that the conduct and manner with which he/she committed the crime was not right (Finke, 1989, pp. 405).

Here in Victoria, if a person is found to be not guilty on the grounds of NGRMI(not guilty by reason of mental impairment, the person is declared to be put under supervision by the court as per part five of the crimes act of nineteen ninety seven or the court declares the person to be unconditionally released. The order may give conditions on the release or may put the defendant in custody. The order is then supposed to be reviewed by the supreme court of justice and by its discretion may order that the person be released. Such reviews are really taking center stage in Victoria.

There were a number of attempts aimed at allowing the courts to look for alternative measures to be put in place in order to address the issues of mental impairment. The problem that arose was that the alternatives were planted fully on the courts and not the other organs of government (Capylon, 1984). This led to a situation where there was no significance in the decrease of the number of people who were accused to have committed crimes. The type of system adopted was the Governor’s pleasure system(GPS) and it was viewed as being unfair by some people.

This system could detain someone in custody for a very long period of time and yet the person is genuinely mentally ill (Capylon, 1984). In some cases, the system would propose that the victims be detained in the hospitals for a longer period of time than what was required. It is quite obvious that different people get different treatment in terms of administering verdicts and this is as a result of the type of system being used in Victoria. Some of the cases need a longer period of time on treatment while others require shorter lengths of time.

This system does not recognize that. The crimes act, for instance, says that a judge passing a judgment of NGRMI(not guilty by reason of mental impairment), may unconditionally discharge or take an order of supervision (Capylon, 1984). After that, the supervision of the victim is maintained by the court at all times unless otherwise stated. The legislation simply means that its main motive is not to punish the victim but to take care of the safety of the public. In any circumstance, it must be the scenario because the accused has not yet been proved guilty by the courts.

Besides, the safety of the victim is also of paramount importance and therefore, care should be taken at any stage of the case in order to avoid further interference with the mental condition of the accused. The courts of appeal and the high courts have time and again deliberated on the issue of dangerousness. The issue is very vital in deciding whether or not a person is supposed to be kept in custody or be taken to the detention facilities. This is thought to present a bone of contention between the different tribunals and organs of law (Capylon, 1984).

It goes without saying that the adopted reforms have gone a long way to address the issues of dealing with the mentally impaired and the insane in regard to the type of crime they might have committed and the condition is which they committed the crimes. Such reforms go out of the way to address the difficulties encountered while dealing with the problems brought about by mental insanity. These reforms suggest to some extend that the identified problems be given new solutions with the aim of solving them ones and for all (Feusch, 1980).

It is however, very difficult to rule out any possibilities of challenges arising concerning the reforms. Such challenges include researches on the brain’s functionality and the possibility of studying the behavior of humans. These when done, will be of paramount use when dealing with such issues in the future. The problem of dangerousness predictability is the major worry at hand as it is assumed that the moment a person commits a crime in the first place, he/she is bound to do the same time and again. This of course is a wild goose chase when the NGRMI is applied to such like a situation (Feusch, 1980).

This debate has opened a Pandora’s box and has made courts to take an approach that is conservative when acquitting the victims who have the ability of causing harm to the community and to themselves in the future. This type of approach goes hand in hand with the high courts’ principles on sentencing which says that the society should be protected against any form of harm and be given the first priority (Feusch, 1980). One would say that it is in the area of psychology that bigger and greater ideas are to take place.

Such advances to some extend will give solutions to the predicaments associated therein. Approaches such as complete treatment of the mental illness using therapy and strong medication are highly recommended. Recommendations. Much efforts should be put in place in order to address the problem of dealing with mental impairment and insanity. Reforms should be made in the existing legislations in order to seal any loopholes that might see some people getting unfair verdicts during judgment as others face the full force of law (Peters, 1982).

It is therefore in the best interest of the courts, tribunals and the public at large to spearhead the implementation of such reforms in order for there to be fairness in the way such cases are handled. Proper approaches should be made so that victims acquitted on grounds of mental impairment and insanity are taken care of so that they do not become a menace in the society and to themselves too. Conclusion. It is rather uncalled for that despite the many approaches and advances that have been made in the recent past, no much effort has been put in place to adopt them and implement them cross board.

Differences have been witnessed in the manner in which verdicts have been passed in different jurisdictions as it turns out to be unfair in some situations depending on who is being judged. This in itself is a challenge that needs to be addressed and a viable solution be found and effected with adequacy. Further research is needed in this field to address the various problems that are causing ripples in the courts of law and in the judiciary at large. If these are not addressed, there are bound to be a lot of problems in the corridors of law.


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  • University/College: University of Arkansas System

  • Type of paper: Thesis/Dissertation Chapter

  • Date: 31 October 2016

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