“The bondage of the will”: from the justificationism of personality disorder towards criteria taken from the neuroscientific research in the evaluation of forensic psychiatric cases

Abstract

The authors question the idea, as stated by the Italian Penal Code, that a forensic psychiatrist can judge about the insanity of criminal behaviour out of the firm ground of relevant psychopathology as described in the official international classifications (ICD and DSM). This conservative approach also applies to the nosographic category of personality disorders, which cannot become the new widespread psychopathological framework through which criteria of mental incapacity are attributed to law offenders. The authors question the idea, as stated by the Italian Penal Code, that a forensic psychiatrist may judge about the insanity of a criminal behaviour out of the firm ground of relevant psychopathology as described in the official international classifications (ICD and DSM). This conservative approach applies also to the nosographic category of personality disorders, which can not become the new widespread  psychopathological framework through which, in an easier way, criteria of mental incapacity are attributed to law offenders. Too many times in courts we witnessed sentences which seemed founded on the concept of insanity of a criminal behaviour out of any strictly nosographic category, in particular of present international nosography. Even more worrying, a judgement of incapacity has often been founded only on the mere will incapacity of an indicted person, in disregard of the principle that the concept of will incapacity belongs strongly to the judicial tradition but it is still very uncertain in the field of neuroscientific research, to the point that there are some proposals (found in a few foreign Criminal Laws) advising to neglect this concept in a forensic evaluation as ambiguous. Thus the authors underline how there is, in the first place, the need to balance and standardize even in the forensic psychiatric practice the same taxonomic standards used in the international scientific publications, so that a psychiatric forensic evaluation does not turn out to be just an exercise of rhetoric. In the second place, in the light of the great discrepancy still existing between neuroscientific research, though promising, and the judicial category of mental capacity, the authors consider to introduce, especially in the evaluation of personality disorders applied to criminal actions, two concepts described by Antonio Damasio. This proposal is that the neuroscientific categories of  “core consciousness” and “extended (biographic) consciousness” may be helpful in analysing the mental capacity of an indicted offender once a clear diagnosis, either of a temporary or of a permanent illness, including personality disorders, has been established. The use of these two criteria we propose, “core consciousness” and “extended (biographic) consciousness”, could allow to face the problem of the capacity/incapacity evaluation of an indicted person in a more substantive manner and along standardized guidelines which could also be coherent with scientific research in a broader sense. Doing so, the role of a forensic psychiatrist can be rendered stricter and less vague in front of a judge giving him a precise task: to state not just a general evaluation of incapacity regarding a criminal behaviour, but if this behaviour can be founded on the basis of strict scientific criteria. In this way also the concept of personality disorders, in the field of forensic psychiatry, should be regarded only in the view of its possibility to alter these neuroscientific criteria, so influencing behaviour. The authors also hope that their view could be useful towards new developments both in the field of scientific research and legislation. A stronger and stricter consideration of psychopathology and of the concept of incapacity regarding a criminal behaviour inside the framework we propose, could hopefully influence a different legislation concerning this field, so that an indicted person, who is eventually acquitted being mentally ill, can be treated (and, in case of need, restricted) not in a Judiciary Mental Asylum.