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Medicine, Health Care and Philosophy
Published in: Medicine, Health Care and Philosophy 4/2010

Open Access 01-11-2010 | Scientific Contribution

Free will and psychiatric assessments of criminal responsibility: a parallel with informed consent

Author: Gerben Meynen

Published in: Medicine, Health Care and Philosophy | Issue 4/2010

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Abstract

In some criminal cases a forensic psychiatrist is asked to make an assessment of the state of mind of the defendant at the time of the legally relevant act. A considerable number of people seem to hold that the basis for this assessment is that free will is required for legal responsibility, and that mental disorders can compromise free will. In fact, because of the alleged relationship between the forensic assessment and free will, researchers in forensic psychiatry also consider the complicated metaphysical discussions on free will relevant to the assessment. At the same time, there is concern about the lack of advancement with respect to clarifying the nature of the forensic assessment. In this paper I argue that, even if free will is considered relevant, there may be no need for forensic researchers to engage into metaphysical discussions on free will in order to make significant progress. I will do so, drawing a parallel between the assessment of criminal responsibility on the one hand, and the medical practice of obtaining informed consent on the other. I argue that also with respect to informed consent, free will is considered relevant, or even crucial. This is the parallel. Yet, researchers on informed consent have not entered into metaphysical debates on free will. Meanwhile, research on informed consent has made significant progress. Based on the parallel with respect to free will, and the differences with respect to research, I conclude that researchers on forensic assessment may not have to engage into metaphysical discussions on free will in order to advance our understanding of this psychiatric practice.
Footnotes
1
In this paper I approach the assessment as a psychiatric practice, but certainly also psychologists are involved in these assessments.
 
2
Some forensic experts are reluctant to make a specific statement on what they consider to be the ‘ultimate question’ of legal accountability. It has been argued that psychiatrists should not make the inference that the person is actually responsible for the legally relevant act, or that this statement should be phrased explicitly as an opinion (Gutheil 2005). The ‘ultimate question’ should be answered, then, by judge or jury. I do not intend to take a specific position in these matters. I will mainly refer to ‘criminal responsibility’ because it is a term often attached to the type of assessments discussed in this paper.
 
3
See Elliott 1996 for an overview of and a reflection on these rules and the insanity defense.
 
4
See also Sect. 3.
 
5
See Sect. 4 for examples.
 
6
It is hard to prove the absence of something, but it is safe to say that while the metaphysical issues surrounding free will constitute a well known (notorious) topic with respect to criminal responsibility in forensic psychiatry (see also Sect. 3), this is not the case with respect to informed consent.
 
7
In this paper I will refer to the philosophy of free will mostly as ‘metaphysics’. Meanwhile, free will is often approached from the perspective of responsibility (see, e.g., Pereboom 2001; Kane 2002). More precisely, while the compatibility between free will and determinism might be considered a strictly metaphysical issue, establishing the requirements for moral responsibility can be considered a ‘metaethical’ or ‘ethical’ concern. In practice, however, in the discussion on free will, metaphysics and (meta)ethics have become intertwined to a large extent (see, e.g., The Oxford Handbook of Free will by Kane 2002; Pereboom 2001). For instance, the issue whether we can be held responsible for a choice while we did not have alternative possibilities, can be perceived as a (meta)ethical question, but it can also be crucial in the metaphysical debate on the compatibility between free will and determinism.
 
8
In philosophical discussions on free will, free will is often used as synonymous with ‘freedom’, and sometimes with acting ‘freely’ (Kane 2002). In line with this use of the words, I will consider ‘freedom’ as referring to ‘free will’, both in philosophical literature and in the literature on criminal responsibility and informed consent.
 
9
Cf. Barendregt et al. 2008, Dressing 2007, and Alper 1998. See also Van Marle (2000), explaning the practice of forensic assessments in the Netherlands: “Undiminished responsibility means that the person concerned had complete access to his or her free will at the time of the crime with which he or she is charged and could therefore have chosen not to do it. Irresponsibility means that the person concerned had no free will at all with which to choose at the time of the crime with which he or she is charged. Important here is determining the moment when aspects of the disorder become manifest in the situation (“the scene of the crime”) that will eventually lead to the perpetration. The earlier they play a role, the more inevitable will be the (disastrous) sequence of events, and the stronger will be the eventual limitation of free will.”
 
10
Meynen (2009a) has argued that Morse’s argument is not conclusive.
 
11
I do not claim that free will is required for criminal responsibility, or that it is by compromising free will that mental disorder can suspend criminal responsibility.
 
12
Other examples can be found in Rosenfeld (2002), Palmer and Kaufman (2003), Thomasmaa (2000), and Yank et al. (2002). Interestingly, Elliott (1991) even proposed to conceive of competence to consent to treatment in terms of accountability. He argued that, in essence, what we want from patients when they make their decisions on medical treatment, is that they can be justifiably be held accountable for these decisions. So, his analysis brings him to exactly the same concept that is considered central in forensic assessment of criminal responsibility – the very concept that brought free will deep into forensic theorizing.
 
13
I will not explore why it is that this has not happened.
 
14
I certainly do not mean to dismiss the efforts that have been undertaken (see Rogers and Shuman 2005).
 
15
Not by everyone, but still by a considerable number of researchers (I am not claiming that they are right or that they are wrong).
 
16
This will, of course, also have to do with the fact that many more people are involved in research on informed consent.
 
17
See also Grubin 2008.
 
18
I am not claiming that full understanding can be achieved without philosophical considerations.
 
19
On the other hand, one could argue that research on informed consent has ignored the philosophical views of free will on. But this is not the point I make in this paper.
 
20
See also Meynen 2009b and c. For discussions on the practice and conceptual underpinnings of empirical ethics in psychiatry, see, e.g., Eastman and Starling 2006, Widdershoven et al. 2009, McMillan and Hope 2008. A central issue with respect to empirical ethics in general is the question: How can empirical data give rise to normative conclusions?, which comes down to the “is—ought gap”, as discussed by, e.g., Van der Scheer and Widdershoven (2004).
 
21
The topic in fact deserves a more elaborate argument, but within the framework of this paper I will restrict myself to some more general remarks.
 
22
See Widdershoven et al. (2009) for a discussion on stakeholder dialogue, also with respect to the integration of empirical data, and the role of the ethicist in this process (also as related to so called responsive evaluation).
 
23
See also Meynen 2009c. Meanwhile, the research itself is not an ‘empirical ethics approach’.
 
24
See also Van der Scheer and Widdershoven (2004). The question might even arise whether empirical research could either directly or indirectly tell us more about the metaphysics of ‘free will’, in other words, whether ‘empirical metaphysics’ is possible, but addressing this question lies outside the scope of this paper.
 
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Metadata
Title
Free will and psychiatric assessments of criminal responsibility: a parallel with informed consent
Author
Gerben Meynen
Publication date
01-11-2010
Publisher
Springer Netherlands
Published in
Medicine, Health Care and Philosophy / Issue 4/2010
Print ISSN: 1386-7423
Electronic ISSN: 1572-8633
DOI
https://doi.org/10.1007/s11019-010-9250-7

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