Legal insanity - look to Norway?

The Norwegian penal law is one of the very few in the world that adheres to what is referred to as the medical principle. The medical principle implies that a person with a diagnosis that involves an active ongoing psychosis should be regarded as insane.

Pål Grøndahl
23 August 2012

This case is very simple. I am not a psychiatric case and I'm sane” - terrorist Anders Behring Breivik, in his first court statement  

Regarding the simplicity, Behring Breivik couldn’t be more wrong. After massacring 77 and injuring many more, his sanity was immediately questioned. As the case progressed, it elicited a very heated debate concerning Norwegian forensic psychiatry; its practices, methods, framework, conditions and whether the insanity rules in the penal law are even valid.

The debate has been unusually harsh, spawning various inane claims, starting with this one: “We have to have a debate regarding Norwegian psychiatry”. This is stupid because this debate has been ongoing since July 22, 2012.

Moreover, there are numerous past examples of debates over insanity concerning forensic psychiatry experts. In 1843 Daniel M’Naghten, who suffered from paranoid delusions, stalked the British prime minister and mistakenly shot his secretary, whom he believed to be the PM. McNaughton was assessed by a total of nine psychiatrists who all found him insane, and the court found him not guilty due to insanity. This led to an uproar in England, and the insanity regulations were changed.


Daniel M'Naghten assassinated English civil servant
Edward Drummond while suffering from paranoid delusions.
Wikipedia/Scottish Reformer's Gazette. Public Domain

In 1981 John W. Hinckley Jr. tried to assassinate Ronald Reagan, believing this act would bring him closer to the actress Jodie Foster, with whom he was obsessed. Hinckley was examined by eight experts; the four defence experts declared him insane, while the four prosecution experts came to the opposite conclusion. The court eventually decided that the defendant was insane according to the law, sparing yet another heated debate. Again, this led to a change in the law, narrowing the definition of insanity.


Reagan assassination attempt.
Wikipedia/Reagan Library. Public Domain.

Norway itself has also seen several public debates involving forensic psychiatry, always precipitated by a specific case, the most well known being that over the Nobel Laureate in literature, Knut Hamsun. An admirer of Hitler, he was accused of collaborating with the Nazi authorities during the German occupation of Norway (1940-1945). Due to his age (85), as well as pronounced hearing difficulties, it was suspected that he might be insane. Examined by two psychiatrists, he was found instead to be a person suffering from “permanently impaired mental abilities”. The court, therefore, did not send him to prison, contenting itself with substantial fines.


Knut Hamsun

Nobel laureate in literature, and Hitler sympatizer, Knut Hamsun.
Wikimedia Commons/Anders Beer Wilse. Some rights reserved.

The psychiatric report elicited no debate at the time, but in its wake, Hamsun wrote the book “On Overgrown Paths” (Paa gjengrodde stier), to prove to the world that the psychiatrists were wrong about his mental capacity. Ever since its publication, the validity of the forensic report has been in question.

In the Behring Breivik case, the debate about the forensic psychiatric report began long before the trial, and no forensic report has ever been the object of so much debate.

Perhaps this is where it all went wrong. While the formidable resources of the Oslo police force were assigned to investigating the acts on July 22, only two experts in forensic psychiatry were originally appointed to assess whether the defendant was insane at the time of the crime. There has since been much criticism of the decision to leave this crucial work to such a small team, as well as of the fact that both of them were forensic psychiatrists, therefore excluding any psychologists from the judgment.

On November 19, 2011, the experts’ conclusions on Behring Brevik’s sanity were, in an unprecedented way, made public at a press conference.  The report found the defendant suffering from paranoid schizophrenia, and therefore insane. This conclusion was, to put it mildly, not welcomed, the newspapers soon being inundated with angry letters to the editor, all insisting that the experts had got it wrong.

The Bible says: “a murderer who unintentionally but knowingly has killed someone, may flee”  (Numbers 35:11) meaning may not be punished. This was not seen as applicable in this case.

The question on everybody’s minds was: How could an insane man be capable of such meticulous preparation over such a long period, and then proceed to carry out these acts?

Experts in psychiatry and psychology were invited to opine on the validity of the report by the press, and its conclusions were duly criticized for not being underpinned by sound premises, and for the fact that the two had not made any independent assessments of the defendant (this first team always talked with Behring Breivik together, never one on one). In addition, several so-called experts confidently proposed their own alternative diagnosis of the defendant, without any personal examination of him whatsoever.

The debate concerning the first psychiatric report became so heated that the court appointed two new psychiatric experts to give a “second opinion”.

April 10 2012, it was announced that the new set of experts had found Behring Breivik to be psychologically disturbed, but not insane. This accorded some satisfaction to those who had criticized the first report. Nevertheless, the public was bewildered. It seemed strange that two teams, having made extensive examinations of the defendant, had reached opposite conclusions about his sanity: the second team also came in for some criticism.

None of the experts, however, could comment on the attacks, due to the confidentiality rule. No wonder then that the psychiatrist Torgeir Husby, one of the two experts in the first team, started his testimony in court by stating:

“Regarding our critics, they all have remote diagnosis as a common denominator. I feel sure that in the future, in a cooler debate climate, outside the flash lamps and TV studio's life-giving warmth, there will be at least as much astonishment and criticism of our many colleagues’ at times wild, strange, unprofessional and unprincipled behaviour, that will cast a shadow over the reputation of psychiatry and its treatment of this case.”

Norwegian forensic psychiatry faces numerous challenges.

Firstly, almost all practices within this field are based upon tradition and not evidence-based methods.

Secondly there is no specialism in forensic psychiatry, and no institution that has overall responsibility for the field. All experts appointed to the court take on such assignments as part of their private practice.

Thirdly and probably most important, perhaps best illustrated by the Behring Breivik case, the legislation regarding insanity is incomplete.

The criteria for insanity in Norway are psychosis, unconsciousness, or severe mental retardation (IQ <55). The Norwegian penal law is one of the very few in the world that adheres to what is referred to as the medical principle. The medical principle implies that a person with a diagnosis that involves an active ongoing psychosis should be regarded as insane. The motivation for, or understanding of, the wrongs in her actions does not matter. Most other countries however make use of the so-called psychological principle. This model implies that one must establish a connection between the crimes in question and the psychosis (psychotic motivation), or find that the defendant did not understand that his actions were unlawful.

It may seem strange that Norway insists upon using the medical principle. The advantage is of course that it is methodically easy; it’s easier to assess whether a person has a given disorder with a given symptom intensity, than to reconstruct a possible link between mental disorder and the offense. By establishing additional criteria we risk more errors.

On the other hand we might not have been confronted by the insanity issues of the Behring Breivik case if Norway had applied the psychological principle. Since the psychological principle is more strict, it would mean fewer people would be considered insane.

The Norwegian Criminal Cases Review Commissions is the body responsible for deciding if a case should be reopened and retried due to a possible wrongful conviction. Statistics show that 40% of such reopened cases return a sentence of ‘possible insanity’ (65 of 163, as per 2011). According to The Innocence Project, new DNA is the most common ground for reopening a penal case in the US –where insanity isn’t even a recognised category. Neither is insanity a key reason for reopening a case in any other country I’m familiar with.

In the court proceedings, Behring Breivik clearly signalled that he understood the unlawfulness of his actions. In addition, it was difficult for most people who followed the court proceedings, to observe any clear psychotic symptoms displayed by the defendant. Hence, I might speculate that in most other countries the mass murderer would be considered sane. But the law is not the responsibility of the experts; they are loyal to the law as it is, and in retrospect some of the criticism of the reports may well seem unfair.

Historian Svein Atle Skålevåg, stated that "what sanity is is among society's most difficult questions." I agree. On August 24 we will see if the judge will consider Behring Breivik sane – or insane.

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