Advanced

Allvarlig psykisk störning Analys av det juridiska begreppets innebörd, tolkning och tillämpning.

Pettersson, Monique (2008)
Department of Law
Abstract
Liabilities for the criminally insane have, for a long time, had a favoured regulation. It has been, and still is, generally considered that people with various forms of mental illness or disorders should be treated differently in certain aspects of the law. The Swedish Criminal Code of 1864 spoke of mental illnesses that could fall into the concept of ''mental disease'' (sinnessjukdom) and ''mental deficiency'' (sinnesslöhet). The former included the classical psychoses and the latter various forms of intellectual impairments. These concepts were to last into the middle of the 2000th century. In those cases were the illness or disorder did not meet the criteria's of these categories it had to be decided in accordance with ''another mental... (More)
Liabilities for the criminally insane have, for a long time, had a favoured regulation. It has been, and still is, generally considered that people with various forms of mental illness or disorders should be treated differently in certain aspects of the law. The Swedish Criminal Code of 1864 spoke of mental illnesses that could fall into the concept of ''mental disease'' (sinnessjukdom) and ''mental deficiency'' (sinnesslöhet). The former included the classical psychoses and the latter various forms of intellectual impairments. These concepts were to last into the middle of the 2000th century. In those cases were the illness or disorder did not meet the criteria's of these categories it had to be decided in accordance with ''another mental abnormality of such profound character that it has to be considered equal to mental disease'', i.e. the concept of equality (jämställdhetsbegreppet), which was introduced in the year 1945. The mental abnormalities were, among others, psychopathic disorder and severe neurosis. The terminology for the favoured mental disorders have been modified a number of times up to date. The signification and extent of the diseases and disorders that, from a legal point of view, were to be dealt with in a different matter have both been broadened and limited through the years. In connection with the appearance of LSPV in 1967, a new concept was introduced into the psychiatric legislation, namely ''mental illness'' (psykisk sjukdom). Within this term all illnesses with psychic symptoms, no matter the cause, consequently psychoses and neuroses as well as insufficiencies of various kinds was included. However, the enactments concerning the criminally insane, in the Criminal Code of 1964, did not change. This led to a dual application of two different concepts during a period of 25 years. The current concept ''severe mental disorder'' (allvarlig psykisk störning) was introduced at the same time as the great psychiatric reform which was carried out in the early 1990s. So far, within the field of psychiatric care, this has come to be the largest alteration in Swedish history of law. A complete revision of the system at the time, gave rise to a new legislation on involuntary psychiatric care and in connection with this there was a considerable change of opinion when it came to the view and the treatment of the criminally insane. The same concept that was introduced into the psychiatric legislation was also incorporated in the Criminal Codes chapter on sanctions for the criminally insane. The introduction of ''severe mental disorder'' was an attempt to create a more homogenous use of the law. The legislator also wanted to point out the new view on mental illness that had shifted from a very strict to a more humane one. This was, to a great extent, built on voluntariness instead of the previous duress. The new concept also met the recommendations from the Council of Ministers in the European Union. The concept ''severe mental disorder'', which is difficult to define, has by the legislator been said to include various forms of psychoses with misconceptions and hallucinations, severe depressions, personality disorders like neuroses of different sorts as well as states of confusion caused by alcohol- or drug intoxication. In today's medical and psychological field everything from an organic psychoses caused by brain damage to psychopathic states of mind and compulsory disorders can be classified as &quot&semicsevere mental disorders&quot&semic. According to the preliminary work of the law an estimate of the nature and extent of the mental disorder in each specific case has to be made. A disorder classified as severe may in a similar case be viewed as less serious and therefore not applicable to the legal concept. Within the criminal legislation the concept ''severe mental disease'' is found mainly in two sections, both concerning the criminal sanctions which can be found in the Criminal Code, chapter 30, paragraph 6 and chapter 31, paragraph 3. If a person is found, through a psychiatric examination, to have committed a crime while suffering from a ''severe mental disorder'' this person cannot be sentenced to prison. If the disorder remains on the day of the judicial decision it is possible to suggest a verdict of psychiatric care. With current legislation it is possible for a person, who commits a heinous crime while suffering from a severe mental disorder, to be completely free of sanctions. This is provided that none of the alternative sentences, without imprisonment, are applicable. When ''severe mental disorder'' was introduced the legislator intended to let the courts determine which disorders should be included into the concept. The courts have had to settle the matter in a number of cases since. One of the more sensational verdicts can be found in NJA 1995 s. 48, were the court, in spite of the legislator's intent, diverged from the regulations. The risk of having such an extensive concept as ''severe mental disorder'' is that it is hard to obtain a uniform legislation. Experts that comment on these cases often disagree with each other. But in the end it is up to the court to make a weighing between the different diagnoses that the experts have suggested. Within this lies the problem that law and psychiatry are two opposite sciences with separate ideologies. Difficulties in transferring psychological concepts into law and the other way around can cause unwanted results. In my opinion some of the mental disorders should not be included in the present concept. Especially when it comes to the courts decisions to let a temporary psychotic condition, including pathological intoxication, be classified as a ''severe mental disorder''. When looking at the earlier concepts and regulations it is clear that some sort of sanction often followed even when it came to conditions like these. To classify a temporary condition, caused by a self-inflicted alcohol or drug intoxication, as a ''severe mental disorder'' can be offensive in cases were the accused has committed serious crimes. The sanctions in these cases are not proportionate to the actual seriousness of the crime. The law is also very specific when it comes to the view on crimes that are committed under the influence of alcohol or drugs. These people shall not under any circumstances be treated with any favouritism. (Less)
Please use this url to cite or link to this publication:
author
Pettersson, Monique
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Straffrätt
language
Swedish
id
1561315
date added to LUP
2010-03-08 15:55:27
date last changed
2010-03-08 15:55:27
@misc{1561315,
  abstract     = {Liabilities for the criminally insane have, for a long time, had a favoured regulation. It has been, and still is, generally considered that people with various forms of mental illness or disorders should be treated differently in certain aspects of the law. The Swedish Criminal Code of 1864 spoke of mental illnesses that could fall into the concept of ''mental disease'' (sinnessjukdom) and ''mental deficiency'' (sinnesslöhet). The former included the classical psychoses and the latter various forms of intellectual impairments. These concepts were to last into the middle of the 2000th century. In those cases were the illness or disorder did not meet the criteria's of these categories it had to be decided in accordance with ''another mental abnormality of such profound character that it has to be considered equal to mental disease'', i.e. the concept of equality (jämställdhetsbegreppet), which was introduced in the year 1945. The mental abnormalities were, among others, psychopathic disorder and severe neurosis. The terminology for the favoured mental disorders have been modified a number of times up to date. The signification and extent of the diseases and disorders that, from a legal point of view, were to be dealt with in a different matter have both been broadened and limited through the years. In connection with the appearance of LSPV in 1967, a new concept was introduced into the psychiatric legislation, namely ''mental illness'' (psykisk sjukdom). Within this term all illnesses with psychic symptoms, no matter the cause, consequently psychoses and neuroses as well as insufficiencies of various kinds was included. However, the enactments concerning the criminally insane, in the Criminal Code of 1964, did not change. This led to a dual application of two different concepts during a period of 25 years. The current concept ''severe mental disorder'' (allvarlig psykisk störning) was introduced at the same time as the great psychiatric reform which was carried out in the early 1990s. So far, within the field of psychiatric care, this has come to be the largest alteration in Swedish history of law. A complete revision of the system at the time, gave rise to a new legislation on involuntary psychiatric care and in connection with this there was a considerable change of opinion when it came to the view and the treatment of the criminally insane. The same concept that was introduced into the psychiatric legislation was also incorporated in the Criminal Codes chapter on sanctions for the criminally insane. The introduction of ''severe mental disorder'' was an attempt to create a more homogenous use of the law. The legislator also wanted to point out the new view on mental illness that had shifted from a very strict to a more humane one. This was, to a great extent, built on voluntariness instead of the previous duress. The new concept also met the recommendations from the Council of Ministers in the European Union. The concept ''severe mental disorder'', which is difficult to define, has by the legislator been said to include various forms of psychoses with misconceptions and hallucinations, severe depressions, personality disorders like neuroses of different sorts as well as states of confusion caused by alcohol- or drug intoxication. In today's medical and psychological field everything from an organic psychoses caused by brain damage to psychopathic states of mind and compulsory disorders can be classified as &quot&semicsevere mental disorders&quot&semic. According to the preliminary work of the law an estimate of the nature and extent of the mental disorder in each specific case has to be made. A disorder classified as severe may in a similar case be viewed as less serious and therefore not applicable to the legal concept. Within the criminal legislation the concept ''severe mental disease'' is found mainly in two sections, both concerning the criminal sanctions which can be found in the Criminal Code, chapter 30, paragraph 6 and chapter 31, paragraph 3. If a person is found, through a psychiatric examination, to have committed a crime while suffering from a ''severe mental disorder'' this person cannot be sentenced to prison. If the disorder remains on the day of the judicial decision it is possible to suggest a verdict of psychiatric care. With current legislation it is possible for a person, who commits a heinous crime while suffering from a severe mental disorder, to be completely free of sanctions. This is provided that none of the alternative sentences, without imprisonment, are applicable. When ''severe mental disorder'' was introduced the legislator intended to let the courts determine which disorders should be included into the concept. The courts have had to settle the matter in a number of cases since. One of the more sensational verdicts can be found in NJA 1995 s. 48, were the court, in spite of the legislator's intent, diverged from the regulations. The risk of having such an extensive concept as ''severe mental disorder'' is that it is hard to obtain a uniform legislation. Experts that comment on these cases often disagree with each other. But in the end it is up to the court to make a weighing between the different diagnoses that the experts have suggested. Within this lies the problem that law and psychiatry are two opposite sciences with separate ideologies. Difficulties in transferring psychological concepts into law and the other way around can cause unwanted results. In my opinion some of the mental disorders should not be included in the present concept. Especially when it comes to the courts decisions to let a temporary psychotic condition, including pathological intoxication, be classified as a ''severe mental disorder''. When looking at the earlier concepts and regulations it is clear that some sort of sanction often followed even when it came to conditions like these. To classify a temporary condition, caused by a self-inflicted alcohol or drug intoxication, as a ''severe mental disorder'' can be offensive in cases were the accused has committed serious crimes. The sanctions in these cases are not proportionate to the actual seriousness of the crime. The law is also very specific when it comes to the view on crimes that are committed under the influence of alcohol or drugs. These people shall not under any circumstances be treated with any favouritism.},
  author       = {Pettersson, Monique},
  keyword      = {Straffrätt},
  language     = {swe},
  note         = {Student Paper},
  title        = {Allvarlig psykisk störning Analys av det juridiska begreppets innebörd, tolkning och tillämpning.},
  year         = {2008},
}