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Gordon Warme.  Author, Psychiatrist, Psychotherapist, CAMH, University of Toronto

How the Myth of Schizophrenia is Used to Confine the Mad Against Their Will

The legal ground for removing the civil rights of the mad is narrow: they are to be judged a danger either to themselves or to others. But there is a hidden ground that influences those who sit on the panels who make such decisions: they are concerned that the mad person suffers from a disease, one that they don’t know they have. Members of such panels also suspect that this disease can be treated. The disease idea leads compassionate people to make a mistake, to think that obligatory confinement or treatment is for the “person’s own good,” a dismal and legal error. The disease make has led to the development of legislation in many jurisdictions that permits doctors to treat people in the community against their will, the so-called Community Treatment Orders, a signal that the decision makers think that the mad suffer from a disease—for which there is no evidence. Even though the technical grounds for confinement are dangerousness, again and again decision makers lean toward confining people whose behaviour—if it suggests dangerousness at all—is only questionably so. The behaviour everyone worries about, although distressing to the families of the mad and to the public, is only odd and unconventional. Apart from being bewildering and puzzling for the rest of us, madness is just another way of life, as legitimate as being a psychiatrist, a fool, or a genius.

Although the ultimate ground society uses to confine the mad against their will is that he or she is a “danger to himself or others,” such future behaviours cannot be predicted. Although I’ve practiced psychiatry for many decades, I can predict violent behaviour no better than can the man in the street. It’s possible, of course, to construct probability tables, but such tables are useless when dealing with a real, live person, an individual. A probability table could be created for the possibility of me —or any human being —becoming violent, but it could never actually predict whether I would commit an offense. It’s the peculiar habits of the mad that lead us astray, an intolerance they induce in us, our powerful disapproval of oddity or unconventionality. There are lots of dangerous people around, drinking drivers, for example, but we rarely take away their civil rights. Unlike the mad, they tend to look like us and talk like us, and are therefore treated as legitimate citizens. When they offend, drinking drivers are held responsible for what they do—a courtesy less likely to be extended to the mad.

Arlie Loughnan.  Law, University of Sydney, NSW, Australia

Reason, Responsibility and Judgment: Mental Incapacity Defences in Criminal Law

This paper gives an overview of the historical development, construction and operation of mental incapacity defences in the criminal law of England and Wales. Mental incapacity defences are those defences to criminal offences that excuse (or partially excuse) a defendant on the basis of his or her ‘abnormal’ mental state at the time of the offence

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