Deficient Spanish current legislation about no-liability by mental illness

DECEMBER 19th, 2013

The Spanish legislation on no-liability by mental illness is basically constituted by Article 20 of Criminal Code which states: "Are exempt from liability: Firstly, who at the time of committing offense has any mental impairment, being unable to understand the wrongfulness or being unable to act on that understanding."

With such redaction, Spanish legislation considers all psychoses as cause of not-imputableness, being enough a psychiatric assessment determining the cognitive or volitional incapacity based on symptoms such as hallucinations and delusions.

Now, having hallucinations and/or delusions is not synonymous at all of volitional or intellectual disability, as traditionally is admitting the Spanish criminal law. We will discuss this in detail later, but it is of common sense that I can have hallucinations with delusional conviction without implying any alteration of my cognitive and volitional capacity.

For example: Virgin Maria appears me each morning and says me: "Be good". I am convinced of the reality of this hallucinatory-delusional experience. But, in despite of these psychotic symptoms, I preserve intact my cognitive and volitive capacities.

On the contrary, it may be Lucifer who urges me every morning to do evil, but this hallucinatory-delusional experience does not interfere at all in my cognition and/or volition: if I commit a crime is my responsibility and not the Lucifer´s one.

A delusional hallucinatory state alone does not indicate anything about the possible criminal responsibility of a person, unless other psychic alterations concur a same time.

In order to get a more complete information about this matter, people living in English-speaking countries might read the next links:

In Latin-speaking countries laws about no-liability by psychiatric disorder are less strict than in English-speaking countries. With an imprecise law which, furthermore, the courts apply in a very tolerant way, psychiatrists, forensics and judges cover their backs, and when they doubt about possible not-liability of psychiatric patient, they decide to hospitalize him and put him under psychiatric treatment against his will.

In fact, criminal Spanish legislation is so vague that is sufficient the suspicion that the subject was acting under the influence of hallucinations and / or delusions, without specifying how it affected consciousness state. So, psychiatrists, forensics and judges proceed to hospitalize any person with a previous diagnosis of psychosis at the slightest doubt if at that time can be active such.

And it is understandable that they act on this way with the current legislation on this subject, because if the person that had not been hospitalized commits a crime, this offence will be imputed to the psychiatrists, forensics or judges that prevented the forced hospitalization.

We denominate these actuations “defensive involuntary hospitalizations” because the main reason to do it, is not the health of patient, but the necessity of psychiatrists, forensics and judges to protect themselves regarding possible criminal acts carried out by this psychiatric patient.

Oppositely, we term “therapeutic involuntary hospitalizations” those in which psychiatrists ask a forced hospitalization because they think the patient needs it urgently because of his critical mental state.  For example, when a psychiatrist assesses a patient suffering a confused state, either by somatic cause or psychic, and the patient does not accept this decision, the doctor asks an involuntary hospitalization because the grave state of patient requires it.

In these cases, specialists are absolutely not thinking in their own security but in the health of patient. But, in defensive hospitalizations, participant professional are mostly thinking in their security instead of in patient’s health.

Psychiatric patients who suffer “defensive involuntary hospitalization” normally become chronic and irrecoverable mentally ill. In these cases Psychiatry is more harmful than useful. This kind of hospitalization constitutes the main handicap of psychiatry, and, meanwhile this blight do not be removed, this medical speciality will continue socially looked down upon.

A delusional hallucinatory state alone does not indicate anything about the possible criminal responsibility of a person, unless the experts may determinate that this psychotic state is impairing the consciousness in such way that the cognitive and/or volitional faculties are abolished. In fact, Criminal Codes of some countries (Germany, Switzerland, etc) specify that consciousness must be impaired at the moment to commit the crime.

In Spanish case the solution is easy: it is enough to slightly modify the current redaction of article 20 of Criminal Code, adding the words "had a confused state of consciousness". So, this article would become written up in the next way:  "To be exempt from criminal liability. 1 who at the time of committing the offense it can be shown that, because of any defect or mental disorder, had a confused state of  consciousness that prevented him from understanding the wrongfulness of the act or act on that understanding "

To find a precise definition of consciousness can be difficult, but to determinate a confused state of consciousness, and if this confusion is strong enough to abolish the cognitive and/or volitional capacity of the patient, is an easy task to psychiatrists and neurologists by means of clinical evaluations. By way of example, it is very easy to differentiate consciousness during a dream of usual awareness being awake. On the same way, it is very easy to discriminate the consciousness during a delirium of usual awareness.

This small modification above cited of Article 20 of Criminal Spanish Code would eliminate 100% of “defensive hospitalizations”, and the Psychiatry would earn much credibility.

In conclusion, we believe it is necessary to promote international awareness campaign on this issue, and in the criminal law of all countries of the world must to explicit the existence of a confused consciousness as an indispensable condition of non-liability