Behaviour that underpins non-pathological criminal incapacity and automatism : toward clarity for psychiatric testimony

Abstract

Psychiatric expert testimony is challenging in cases of violence when the accused person submits a defence that he or shewas so overwhelmed by emotions triggered by an upsetting event that his or her violent behaviourwas an uncontrollable consequence of the emotions. This defence is usually presented in terms of an automatismparticularly not attributed to a mental disorder. Clouding testimony in these cases is the various definitions of both automatism and mental disorder—definitions by which the jurisprudential distinction is made between a sane and an insane automatism, or pathological and non-pathological incapacity (NPCI). To avert testimony that is tainted from the very beginning by the lack of agreed definitions, this article proposes that psychiatrists focus in their assessment and testimony on particularly the behaviour as being distinct fromthe jurisprudential concernswhether that behaviour constitutes an automatism andwhether it is (not) attributed to a mental disorder. This focus on the behaviour affords clarity by which the properties of the behaviour may be examined theoretically and clinically in terms of behaviour therapy, specifying accordingly its antecedents, consequences, topography, intensity, latency, duration, frequency, and quality. So informed, the behaviour that underpins NPCI and automatism is described here as emotionally triggered involuntary violent behaviour about which testimony may be given distinct from whether the behaviour is (not) causally attributed to a mental disorder, and from jurisprudential concerns with accountability.