Madness and meta-responsibility: The culpable causation of mental disorder and the insanity defence

Common-sense notions of justice dictate that those who create the conditions of their own defence should be held more culpable. Anglo-American criminal law lends credence to such notions by denying justification or excuse to those whose incapacity such as automatism or intoxication has been self-induced. However, no such provision is made for the excusatory defence of insanity. There are a number of ways in which an insanity defendant may be the cause of his or her own incapacity, thus having a high degree of responsibility for his or her criminal responsibility or ‘meta-responsibility’. The defendant may have failed to seek psychiatric help when so advised, failed in medication-compliance, or taken proscribed drugs or medicines. This article argues that there is a hitherto unconsidered autonomous component to mental disorder in which the defendant may have acquiesced in the illness, failed to resist it, or actively propagated it, perhaps to afford sympathy and excuse. Clinical, philosophical, forensic and legal aspects of such a proposition will be discussed. A survey of empirical evidence from social psychological literature is presented, which suggests jurors would like to consider evidence of meta-responsibility. Various ways of dealing with meta-responsibility are discussed, and a new insanity test taking into account meta-responsibility is proposed.