Redefining justice for the mentally ill offenders

The human mind is quite complex but for some patients with severe mental illness such as a severe psychotic episode, imagined threats may feel more real than the law ending up with cases where a person commits a crime amidst the illness. 

The legal and medical limbo known as being "Guilty but Insane" is currently a status that acknowledges a tragic truth that while the mentally ill committed an offence, their rational mind was merely a silent bystander to an event it could no longer control.

For decades, Kenya’s approach to these individuals was defined by detention rather than dignity. Under colonial era frameworks like the Mental Health Act of 1989, used dehumanizing language such as the "Defence of lunacy". Those found to have committed crimes under a state of insanity were not just sent to hospitals for healing; instead, they were held at the hospitals under "order of the President's pleasure". This often meant being "warehoused" in a maximum-security unit of the Mathari National Teaching and Referral Hospital for decades.

Fortunately, the 2022 Revised Mental Health Act has sparked a modern shift from punishment to proactive medical care. Today, our focus has moved toward Fitness to Plead, ensuring no person is forced through a trial they cannot cognitively comprehend. 

A Consultant Psychiatrist therefore has to assess whether the accused can understand the specific charges and the mechanics of the courtroom. Distinguish between the gravity of a "guilty" versus "not guilty" plea and can Communicate coherently to their legal counsel.

If the mentally ill offender is found unfit due to severe illness, the court is mandated to order for treatment of such a patient in a psychiatry hospital. The goal here is stabilisation, restoring the mind so the individual can eventually face the law with clarity and dignity.

The ultimate objective of modern forensic psychiatry is not to permanent exclusion, but an approach to rehabilitation. 

Once a patient achieves clinical remission, their case is no longer lost in an administrative vacuum. A multidisciplinary Board of Review now conducts rigorous risk assessments to determine if a patient can safely return home.

Through "conditional discharges," patients continue to receive care at local facilities, carefully balancing their right to liberty with public safety.

By replacing the "order of the Presidental pleasure" with the "oversight of the physician," our legal system finally recognizes that for those suffering severe mental illness that might have led to them becoming a criminal patient, the road back to the community must be paved with the highest standards of mental health care.

Lastly, to prevent the "guilty but insane" scenario where individuals only receive psychiatric attention after committing an offense, the justice and healthcare systems must shift from reactive detention to proactive intervention. Primary prevention should focus on nationwide mental health promotion and the decriminalization of psychosocial distress (such as the recent strides in decriminalizing attempted suicide) to reduce stigma and encourage early help-seeking before a crisis escalates. 

Prevention should also emphasise screening by qualified practitioners at the point of first contact with the law such as police stations and remand homes to divert mentally ill individuals into care rather than the standard criminal process. 

By integrating mental health services into primary health care, Kenya can identify vulnerable individuals early, ensuring they receive treatment that preserves both public safety and the individual's right to health, ultimately rendering the "insanity" defence a last resort rather than a systemic failure.

Dr Catherine Syengo Mutisya is a Consultant Psychiatrist,and has previously headed Mental Health Promotion at the Ministry of Health