11th Greek Australian Legal and Medical Conference
Crete, Greece 2007

Mental Health as an Issue in Justice

Professor Graham D. Burrows AO, KCSJ
BSc, MB, ChB, DPM, MD, DipMHlthSc(Clinical Hypnosis),
DSc, FRANZCP, FRCPsych, MRACMA, FAChAM

Introduction

Definition of Mental Illness

The National Mental Health Plan 2003-2008 describes mental health problems and mental illness as the range of cognitive, emotional and behavioural disorders that interfere with the lives and productivity of people. Mental illness refers to the group of diagnosable disorders that significantly interfere with cognitive, emotional or social abilities and mental health problems are a broader category. Problems also interfere with cognitive, emotional or social abilities, but to a lesser extent. These are more common mental health complaints and generally of a shorter duration than mental illness. 1

In psychiatry we refer to the ICD-10 Diagnostic and Management Guidelines for Mental Disorders in Primary Care and Diagnostic and Statistical Manual of Mental Disorders, currently issue DSM-IV-TR, for classifications. Examples of these classifications are:

Law and Medicine

In Australia, we have a population of approximately 21 million, with approximately 82,564 doctors, 3,363 psychiatrists and approximately 50,000 legal practitioners.

Offenders with “mental health problems” represent a much greater and more expensive problem than do offenders with a mental illness. This is because many more inmates have “mental health problems”; there is only a small association between mental illness and offending, but there is a substantial association between other mental health problems (such as personality disorder and substance use disorder in particular) and offending. “A one-year analysis of television drama programmes (for example, soap operas, plays and films) in the USA found that 73 percent of people with a mental illness were depicted as violent, while 23 percent of people were portrayed as ‘homicidal maniacs’. When the same study analysed media reports about mental illness on television and in the newspapers, it found that nearly 90 percent of stories depicted people with mental illness as violent and usually homicidal.” 2

Mental disorder and violent criminal behaviours correlate between serious mental disorders and offending behaviours. There are multiple debates on this subject. Violence within the society are twice as prevalent among men than women; three times as prevalent among people of the lowest socio-economic status compared to those of the highest socio-economic status; five times more prevalent among people with a diagnosis of mental illness; seven times more prevalent among young people; twelve times more prevalent among alcohol-dependent people, and sixteen times more prevalent in people abusing other substances 3. “If we define the dangerousness of the mentally abnormal as the relative probability of their committing a violent crime, then our findings show that this does not exceed the dangerousness of the legally reasonable adult population as a whole.” 4

The table below shows the comparative prevalence of psychiatric disorders in prisoners and in people living in the community. 5

Prevalence
Disorder In prisoners In community
Any psychiatric disorder 80% 31%
Psychosis 7% 0.7%
Affective disorder 23% 9%
Anxiety disorder 38% 11%
Substance abuse disorder 66% 18%
Personality disorder 43% 9%

There has been an established association, notably between schizophrenia and severe affective disorder, and the increased rates of violent criminal behaviours. The intellectually disabled are more likely to be convicted of criminal offences. The combination of substance abuse with mental disorder greatly increases the risk. New policies are needed, directed at populations of the disorder and disabled, to reduce offending and violence, for example, specialised community forensic services, specific drug and alcohol services, better clinical services and more social support.

Deinstitutionalisation

The introduction of community care has not contributed to greater rates of offending among the mentally ill, although there has been an increase in prisons of the mentally ill and intellectually disabled6. Due to this problem, structured services are required - more community forensic services for the mentally ill and intellectually disabled is essential. A 120 bed Rehab/Forensic Unit is being built at the Heidelberg Repatriation Hospital; however, more resources and improved services are needed in prisons.

Hypnosis

Specific application of hypnosis to post-traumatic stress disorder is classified as:

  1. Abreactive use of fantasy re-living with accompanying reassurance of safety.
  2. Exploration of the personal significance of the traumatic event.
  3. Acceptance of therapeutic re-interpretations of self and world schema – enhancing cognitive restructuring, self-esteem and self acceptance.
  4. Dissociation from anxiety symptoms rather than absorption into the symptoms.
  5. Rehearsal of social skills and successes.
  6. General reduction in anticipatory anxiety.
  7. Enhancing expectations.
  8. Enhanced sense of control over physiological symptoms of anxiety, e.g. flushing.

Hypnosis and psychotic illness

Psychotic illness is usually a contra-indication to hypnosis. The procedure may be hazardous, as it may precipitate or magnify psychotic symptoms. Hypnosis is not an effective treatment for psychotic illness, which is usually treated with antipsychotic medication, with/without ECT and psychotherapy.

Hypnosis and Psychiatric Illness

Hypnosis and psychiatric illness may be used for anxiety, somatoform disorder and dissociative disorders, sexual disorders, sleep disorders and impulsive control disorders.

Dissociation in Crime – cases and relationships to hypnosis

Misconceptions

There is a misconception that hypnotists have special powers and work miracles. Community beliefs are that hypnosis means unconscious, lack of intelligence, gullibility, that a person will tell his secrets, that it weakens the mind and involves surrender of will. There is also a fear of not waking from a hypnotic trance and worrying about the hypnotist dropping dead or that medical or dental hypnosis can be learnt from a stage hypnotist.

Hypnosis can be used to increase the subject’s ability to remember past events which have long been forgotten. Hypnosis is used in pre-trial investigations to provide further clues. There can be evidentiary problems such as:

  1. Admissible confession/statement must be obtained voluntarily. For example, no coercion or duress, leading questions or cueing by the hypnotist.
  2. Pseudomemories/confabulation resulting in miscarriage of justice.

Hypnosis and legal proceedings

Hypnosis may be used in legal proceedings to form memory enhancements for victims, witnesses and dependants although, there may be problems with false memories or increased confidence in memory.

Crime and Violent Act

The Crime and Violent Act describes dissociation as:

  1. A demonstrated capacity to dissociate, which is confirmed by the assessment of hypnotic capacity.
  2. A history of dissociative experiences, which may include any number of types of dissociation, e.g. reported childhood or adult sleep walking or talking, episodes of feeling unreal and outside the body (i.e. depersonalisation or derealisation).
  3. A history of previous uncontrolled dissociative experience in response to significant or severe psychological stress. It is often not possible to confirm this.
  4. The account of the accused must be consistent with dissociation and is not an all-or-none phenomenon, e.g. partial or complete. Real or perceived volitional changes and automatic actions associated hypnotic-like phenomena – partial or complete amnesia, fluctuating consciousness, “trace logic”, disturbed perception, situation seeming unreal, emotional detachment or believing psycho-delusional beliefs need to be consistent with a dissociated state.
  5. The psychological insult or “blow” needs to be significant in order to precipitate dissociating. It may be an accumulation of prior stresses, the trigger event must be psychologically traumatic.

Dissociate amnesia is characterised by an inability to recall important personal information, usually of a traumatic or stress nature, that is too extensive to be explained by ordinary forgetfulness.

Dissociation Case of Ms

MS, a 17-year-old Italian boy was grieving and depressed. His mother had died 1 month previously of breast cancer. He had violent arguments with his father, who he shot and killed. MS suffered 7 hours of amnesia prior to the shooting and had no memory of the shooting. Independent history of “dazed and appeared confused” for hours prior to shooting.

Full medical and psychiatric histories were taken, including a physical examination. There were independent histories, school reports and multiple interviews performed. MS was psychologically assessed with the following: Minnesota Multiphasic Personality Test; Hamilton Depression Rating Scale; Hamilton Anxiety Rating Scale; General Health Questionnaire, and the Stanford Hypnotic Clinical Scale. There were video recordings of the interviews, hypnotisability rating, hypnotic induction and hypnotherapy. Personality factors were major stress, grief, depression, brutal father, multiple arguments and dissociation.

The police video showed MS as vague – detached by observation; as suffering from amnesia – 7 hours prior to shooting; having punched the wall hurting his hand after the tragedy, but no memory of this; he “suddenly heard the shotgun fire and saw the blood and destruction”; vague “I must have shot him”.

Trial of MS

Found not guilty, having suffered automatism and the charges were dismissed.

Endnotes

1. Lawrence and Huntsman, Background Paper for the Criminal Justice Research Network, Mental Health Forum, Attorney General’s Department, NSW, 2006.

2. BetterHealth Channel, 2002.

3. S. Henderon, Mental Illness and the Criminal Justice System, Mental Health Co-ordinating Council, May 2003.

4. Hafner and Böker, 1982.

5. White and Whiteford, Medical Journal of Australia, September 2006.

6. P. Mullen, Mental Health & Criminal Justice, Criminology Research Council, August 2001

Books of Interest

Handbook of hypnosis and psychosomatic medicine.

Edited by: Graham D. Burrows and Lorraine Dennerstein
Published by: Elsevier/North Holland, Biomedical Press, Amsterdam, 1980,
ISBN: 0444801480

Contemporary International Hypnosis

Proceedings from the 13th International Congress of Hypnosis, 1994
Ed. Burrows, G.D., Stanley, R.O.
Published by: John Wiley and Sons, 1995, ISBN: 0 471 95829 8

Hypnosis in Australia

Edited by: Evans, B.J., Burrows, G.D.
Published by: The Australian Journal of Clinical and Experimental Hypnosis, 1998, ISBN: 0 9585434 0 2

International Handbook of Clinical Hypnosis

Eds. Burrows, G.D., Stanley, R.O., Bloom, P.B.
Published by: John Wiley & Sons Ltd, 2001, ISBN: 0 471 97009 3