The Gazette 1990

GA Z E T TE

SEPTEMBER 1 9 9 0

to be applied by the learned Circuit Court judge in determining whether the act of the youth who burned the abattoir in Bray was malicious within the criminal injury code . . . ." More recently the Chief Justice, Mr. Finlay, when delivering a judgment of the Supreme Court in the case of DPP -v- Joseph O'Mahony in July 1985, 2 referred to the definition of the defence of insanity laid down by that court in Doyle -v- Wicklow County Council. He stated: "In the instant case, if it were established, as a matter of probability, that due to an abnor- mality of mind consisting of a psychotic condition the appellant had been unable to control himself and to desist from carrying out the acts of violence leading to the death of the deceased, he would have also been entitled to a finding of not guilty by reason of insanity". An appeal had been made in this case (DPP -v- O'Mahony) against a conviction of murder on the grounds that the trial judge had erred in law in refusing to permit the jury to consider what was stated to be a defence of diminish- ed responsibility and on that basis to consider the alternative of entering a verdict of manslaughter instead of a verdict of murder. In the judgment it was pointed out that "under our law a person found not guilty by reason of insanity can only be detained so long as the court is satisfied that his mental condition persists in a form and to the extent that his detention in an appropriate institution is necessary for the protection of himself or of others. He is not, in the view of our law, a criminal nor has he been convicted of a crime. A person charged with murder, on the other hand, in our law and convicted of manslaughter may be sentenced to a period of detention in prison whether long or short and must be released at the termination of that sentence. He is of course branded a criminal". He added: "It seems to me impossible that having regard to these considerations there could exist side by side with what is now the law in this country concerning a defence of insanity, a defence of diminished responsibility such as has been contended for him in this case, which would in effect leave to an accused person and his

advisers the choice as to whether to seek to have him branded as a criminal or whether to seek on the same facts the more humane and, in a sense, lenient decision that he was not guilty of a crime by reason of insanity." It seems that progress can be reported. In any event the defence of insanity has become a less frequent issue since the abolition of the death penalty. Civil Law We may now move on to some aspects of civil law as it affects patients suffering from schizo- phrenia. Testamentary Capacity One practical problem is whether they are fit to make a Will. Are they "of sound disposing mind". Patients who are admitted to mental hospitals as voluntary patients or under temporary certi- ficate do not lose their civil rights, and patients suffering from schizophrenia may be quite fit to make a will. The question is not whether they are sane or insane, but whether their mental capacity is adequate for the testamentary act. The position was well put by Lord Chief Justice Cockburn as long ago as 1870, when he said "No doubt when the fact that a testator has been subject to any insane delusion is established, a will should be regarded with great distrust and every presumption should in the first instance be made against it. When an insane delusion has ever been shown to have existed it may be difficult to say whether the mental disorder may not possibly have extended beyond the particu- lar form or instance in which it has manifested itself. It may be equally difficult to say how far the delusion may not have influenced the testator in the particular disposal of his property, and the presumption against a will made under such circumstances becomes addition- ally strong when the will is an inofficious one, that is to say, one in which natural affection and the claims of near relationship have been disregarded". The patient suffering from schizophrenia will rarely have difficulty in knowing the nature and extent of his property or the per- sons who have claims on his

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bounty, but his judgment may not be sufficiently unclouded and free as to enable him to determine the relative strength of these claims. In other words, the problem is whether or not he has delusions concerning some close relatives who would normally have a claim any person wishing to make a will who is known to have suf fered f rom s ch i zo- phrenia should be examined by an experienced psychiatrist as near as possible to the date on which the will is to be signed and . . . the report should be carefully preserved." on his bounty. An example would be if he had pathological delusions of jealousy regarding his wife. It would seem to me wise, therefore, that any person wishing to make a will who is known to have suffered from schizophrenia should be examined by an experienced psy- chiatrist as near as possible to the date on which the will is to be signed and, of course, the report should be carefully preserved. Nullity of Marriage The next subject that I will touch on is the situation in regard to Nullity of Marriage. I will leave aside the question of divorce, as it is not

relevant in our context. Ecclesiastical Courts

I believe it is reasonable to say that the Roman Catholic Marriage Tribunals have been more pro- gressive in regard to the relevance of psychological factors in deter-

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