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to be applied by the learned Circuit
Court judge in determining whether
the act of the youth who burned
the abattoir in Bray was malicious
within the criminal injury
code . . . ."
More recently the Chief Justice,
Mr. Finlay, when delivering a
judgment of the Supreme Court in
the case of
DPP
-v-
Joseph
O'Mahony
in July 1985,
2
referred
to the definition of the defence of
insanity laid down by that court in
Doyle -v- Wicklow
County
Council.
He stated: "In the instant case, if
it were established, as a matter of
probability, that due to an abnor-
mality of mind consisting of a
psychotic condition the appellant
had been unable to control himself
and to desist from carrying out the
acts of violence leading to the
death of the deceased, he would
have also been entitled to a finding
of not guilty by reason of insanity".
An appeal had been made in this
case
(DPP -v- O'Mahony)
against a
conviction of murder on the
grounds that the trial judge had
erred in law in refusing to permit
the jury to consider what was
stated to be a defence of diminish-
ed responsibility and on that basis
to consider the alternative of
entering a verdict of manslaughter
instead of a verdict of murder. In
the judgment it was pointed out
that "under our law a person found
not guilty by reason of insanity can
only be detained so long as the
court is satisfied that his mental
condition persists in a form and to
the extent that his detention in an
appropriate institution is necessary
for the protection of himself or of
others. He is not, in the view of our
law, a criminal nor has he been
convicted of a crime. A person
charged with murder, on the other
hand, in our law and convicted of
manslaughter may be sentenced to
a period of detention in prison
whether long or short and must be
released at the termination of that
sentence. He is of course branded
a criminal".
He added: "It seems to me
impossible that having regard to
these considerations there could
exist side by side with what is now
the law in this country concerning
a defence of insanity, a defence of
diminished responsibility such as
has been contended for him in this
case, which would in effect leave
to an accused person and his
advisers the choice as to whether
to seek to have him branded as a
criminal or whether to seek on the
same facts the more humane and,
in a sense, lenient decision that he
was not guilty of a crime by reason
of insanity."
It seems that progress can be
reported. In any event the defence
of insanity has become a less
frequent issue since the abolition of
the death penalty.
Civil Law
We may now move on to some
aspects of civil law as it affects
patients suffering from schizo-
phrenia.
Testamentary Capacity
One practical problem is whether
they are fit to make a Will. Are they
"of sound disposing mind".
Patients who are admitted to
mental hospitals as voluntary
patients or under temporary certi-
ficate do not lose their civil rights,
and patients suffering from
schizophrenia may be quite fit to
make a will. The question is not
whether they are sane or insane,
but whether their mental capacity
is adequate for the testamentary
act.
The position was well put by Lord
Chief Justice Cockburn as long ago
as 1870, when he said "No doubt
when the fact that a testator has
been subject to any insane delusion
is established, a will should be
regarded with great distrust and
every presumption should in the
first instance be made against it.
When an insane delusion has ever
been shown to have existed it may
be difficult to say whether the
mental disorder may not possibly
have extended beyond the particu-
lar form or instance in which it has
manifested itself. It may be equally
difficult to say how far the delusion
may not have influenced the
testator in the particular disposal of
his property, and the presumption
against a will made under such
circumstances becomes addition-
ally strong when the will is an
inofficious one, that is to say, one
in which natural affection and the
claims of near relationship have
been disregarded".
The patient suffering from
schizophrenia will rarely have
difficulty in knowing the nature and
extent of his property or the per-
sons who have claims on his
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bounty, but his judgment may not
be sufficiently unclouded and free
as to enable him to determine the
relative strength of these claims. In
other words, the problem is
whether or not he has delusions
concerning some close relatives
who would normally have a claim
any person wishing to
make a will who is known to
have suf fered f rom s ch i zo-
phrenia should be examined by
an experienced psychiatrist as
near as possible to the date on
which the will is to be signed
and . . . the report should be
carefully preserved."
on his bounty. An example would
be if he had pathological delusions
of jealousy regarding his wife. It
would seem to me wise, therefore,
that any person wishing to make a
will who is known to have suffered
from schizophrenia should be
examined by an experienced psy-
chiatrist as near as possible to the
date on which the will is to be
signed and, of course, the report
should be carefully preserved.
Nullity of Marriage
The next subject that I will touch
on is the situation in regard to
Nullity of Marriage. I will leave aside
the question of divorce, as it is not
relevant in our context.
Ecclesiastical Courts
I believe it is reasonable to say that
the Roman Catholic Marriage
Tribunals have been more pro-
gressive in regard to the relevance
of psychological factors in deter-
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