Monday 19 February 2018

Prosecution efforts to rule out mental illness in Pistorius case raise intriguing questions

Oscar Pistorius during day 37 of his trial in Pretoria, South Africa. (AP Photo/Jerome Delay)
Oscar Pistorius during day 37 of his trial in Pretoria, South Africa. (AP Photo/Jerome Delay)

Patricia Casey

I confess to being surprised during the trial of Oscar Pistorius when it was suggested that he might have been temporarily insane. The prosecuting team requested that he be sent for psychiatric assessment because of their reported concern that he might plead insanity so as to be exonerated of the crime of murder.

This was never a prospect since no psychiatric evidence was called to suggest that he had a severe mental illness. What had been said by his psychiatrist, Dr Merryll Vorster, was that he felt vulnerable because of his disability and that he had a generalised anxiety disorder (GAD).

In any murder trial, mental health checks take place well before the hearing takes place. These are done informally by the solicitor who has a responsibility to assess if there is a possibility that the person is so ill as to be unfit to stand trial.

An impression about this will be gleaned from the conversations that the legal team have with the accused.

Does the accused understand what they are charged with, can they make decisions about whether to plead guilty or not and understand the implications of each? Does the accused understand the role of the judge and of the jury and does it seem like they will be able to comprehend what is going on in court and instruct their legal team accordingly?

Likely, difficulties around the fitness of a person to be tried will be evident from the demeanour and responses of the accused during interviews.

If there is any doubt, then a psychiatrist will be asked to assess this more formally. If the person is unfit to be tried the accused will need treatment in order to resolve the underlying cause such as severe depression.

However, a problem may arise if the reason for unfitness is not amenable to treatment, such as brain damage. Yet, most of those accused do reach the stage of being able to stand trial.

In the Pistorius hearing, as in any trial, the key question always relates to the state of mind of the individual at the time of the alleged offence. Was it planned or impulsive, accidental of deliberate?

Above all, was the person in his/her full senses – did he/she appreciate what was happening was wrong or likely to harm a human being?

For example, a person taking the life of someone whom the accused believes was an assassin trying to kill him because he was the Messiah, could not be regarded as sane.

A person who sees an object they believe to be a wild, raging animal, because of some perceptual impairment, rather than a human, would likewise be regarded as insane at the time of the event.

An individual acting under the influence of such symptoms would likely be found not guilty by reason of insanity and would remain in a high-security hospital until such symptoms were ameliorated.

Symptoms such as these are caused by serious psychiatric illnesses such as schizophrenia, severe depression or the manic state of bipolar disorder and, less commonly, dementia or brain injury.

A caveat is that if these symptoms are caused by intoxication from alcohol or other ingested substances then the verdict would be one of murder. Clearly, Pistorius never fell into these groupings.

Alternatively, a person under provocation and pushed beyond solace might engage in such violent behaviour. By definition the action is not planned, but is driven by excessive distress.

The loss of control that occurs when a partner is threatened or beaten in a domestic row would constitute such an event, as do the crimes of passion from a previous era.

This mitigation, referred to in Irish and UK law, is termed Diminished Responsibility. The laws on this are broadly similar throughout the western world and they lead to mitigation in sentencing.

By any stretch of the imagination, GAD could not possibly lead to an insanity defence. So the verdict of the three psychiatrists and one psychologist, who carried out these assessments, is not surprising.

They concluded that at all times Pistorius was able to judge the rightness and wrongness of what was happening. But the "devil is in the detail" and perhaps mitigating circumstances, as suggested by Pistorius' psychiatrist, might become relevant.

Meanwhile, this trial becomes more intriguing and legally fascinating by the day.

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