PETALING JAYA: Should the Mental Health Act be amended to hold guardians of mentally unsound offenders vicariously liable for any crime they commit?
Lawyers have differing views over the question.
Under current laws, lawyer Salim Bashir said the accused, upon establishment of legal insanity, would be acquitted and ordered to be placed in a mental institution at the behest and pleasure of the King or state Ruler.
“Justice is served upon the accused being institutionalised in a mental hospital.
“But moving forward, reforms can be made by amending the Mental Health Act 2001 to attribute vicarious liabilities for negligence on guardians or close family members who have been in control and care of perpetrators who are declared to be of unsound mind by the court,” said the former Malaysian Bar president.
On the insanity defence, Salim said any legislative amendments here must adopt a wider approach by noting that mental disorder complexities vary.
They must also be properly addressed in the context of criminal responsibility.
“The focus for reform is not on general capacity to know right or wrong but the ability to appreciate that the particular act is wrong in circumstances,” he said.
Litigation lawyer Daljit Singh said it is unfair to penalise guardians of the perpetrator as the latter is already of unsound mind.
“Prevention is better than cure. Identify these factors and take proactive steps to help them recover and prevent victims from being further harmed,” he said, adding that pleading insanity is not as easy as it seems.
Citing Section 84 of the Penal Code, he said the test for insanity is legal and not medical.
“Legal insanity here is such of a kind that impairs the cognitive faculties of a person. It must make the offender incapable of knowing the nature of his act or that what he is doing is wrong or contrary to the law,” he said.
When the insanity defence is raised in court, Daljit said several matters must be considered.
This includes whether the accused has successfully established, as a preliminary issue, that they were of unsound mind at the time of committing the act.
If the accused was of unsound mind, it would be whether they have proven their unsoundness of mind was of a degree to make them incapable of knowing the nature of their act as being wrong or against the law.
“The court should also consider the circumstances which come after the crime, which is a material consideration in deciding whether the appellant had satisfied the test under Section 84,” he said.
He said prevention is a crucial aspect to consider when dealing with those allegedly of unsound mind.
