Criminal Insanity, Psychosis and Impaired Reality Testing in Norwegian Law

Abstract

How mental disorder relates to criminal insanity is a contested matter. Norway has a tradition of using a ‘medical model’ for the definition of criminal insanity that is unique in an international perspective. According to this model, insanity is determined only in relation to a medical criterion, so that all that is required is the presence of a qualifying mental disorder. Criminal insanity is, under the current rule, equated with psychosis, although this rule has recently been subject to a law reform.
 This article explains and discusses this medical model by gathering together legal, forensic, and clinical empirical perspectives on the legal meaning and relevance of psychosis. The article will provide an explanation of the background of the medical model in Norwegian law, and the justifications for tying criminal insanity to psychosis. It will also explain how criminal insanity is operationalised in forensic practice, and discuss the legal conceptualisation of psychosis from a medical perspective. A main conclusion is that the legal meaning of psychosis is unclear, and the authors describe several challenges in legal and forensic practice. The authors emphasise the need for further knowledge development in the intersection between law and medicine.

Are symptoms assessed differently for schizophrenia and other psychoses in legal insanity evaluations of violent crimes?

“…This could improve understanding of how a legal principle affects clinical examinations and descriptions. The legal principle for legal insanity in Norway changed after we selected the reports for this study [ 10 , 12 ]. To replicate this study using reports written after this change may provide important insight into whether changes in the rule of law affect the clinical practice of forensic experts.…”

“…Moreover, it would be interesting to know more about which information the judges refer to in their verdicts when presented with forensic witnesses’ reports and oral statements in court. Investigations have shown that courts usually follow the experts’ conclusions in their verdicts [ 10 ]. The experts’ reporting of symptom descriptions from collateral sources could be studied if the researchers recorded which symptoms they found in these sources and compared them with the experts’ descriptions in the reports.…”

“…Norway has a forensic system that differs from most other systems in that the legal rule of criminal responsibility is based on a medical or biological principle; a defendant could be excused if he or she had a legally relevant mental condition at the time of the crime regardless of the relationship between the condition and the criminal act [ 10 ]. At the time when the reports included in our sample were written, forensic experts were asked to give an ultimate opinion on whether an offender was criminally irresponsible 2 [ 12 ].…”

“…Though legal regulations differ between countries, the ground principle of the existence of a severe mental disorder is always a prerequisite for legal insanity. This means that forensic evaluations in these cases must establish whether a mental disorder or defect was present at the time of the crime, and whether this condition affected the offender’s capacity for judgment when the crime was committed [ 3 , 5 , 10 , 16 ]. To achieve this, the experts should record the defendant’s emotions, cognition, and behavior right before, during, and after the time of the offense.…”

Use of assessment instruments in forensic evaluations of criminal responsibility in Norway

“…In contrast to the clinical construct “psychotic”, the legal construct is, for all practical purposes, equivalent to the construct “legally insane”, and we use the latter term in this paper to ensure its differentiation from the clinical term. To be evaluated as legally insane, a defendant must have psychotic symptoms of a certain severity and some functional impairment at the time of the crime, but no connection needed to be established with the offense committed as Norway held the biological / medical principle 1 [ 13 – 15 ]. The legal construct of severe mental retardation involved intellectual impairment, which could be caused by clinical mental retardation or by other conditions, such as acquired brain damage.…”