The mental disorder defenceThe mental disorder defence
All In The Mind
Mental disorder as a defence in the court of law—mental impairment influences whether one is found guilty by the legal system and if the symptoms of mental illness are sometimes faked.
28:50•7 Jun 2015
Mental Disorder, Guilt and the Fine Line of Legal Responsibility
Episode Overview
- Mental impairment defences hinge on whether the accused understood their actions and knew they were wrong at the time of the offence.
- Infanticide laws recognise mental disturbance linked to childbirth and breastfeeding, but cases remain rare and are not widely abused.
- Courts tend to accept psychotic symptoms more readily than depression as a basis for legal mental impairment, despite depression’s severity.
- Assessing fitness to stand trial focuses on cognitive ability, communication and understanding of the court process, not just diagnosis.
- Psychologists use careful, guarded methods to detect faked mental illness while aiming to reduce stigma around genuine conditions like depression.
“Why is it that we automatically think about this person must be mad to commit this act?”
What drives someone to seek a legal defence based on mental disorder, and how does that actually play out in court? This conversation on All In The Mind takes you right into the uneasy borderland between mental illness and criminal responsibility. You’ll hear about headline-grabbing Australian cases like Arthur Freeman, Kelly Lane and Donna Fitchett, used to show how the law decides whether someone was too mentally impaired to know what they were doing, or that it was wrong.
Associate Professor Lorana Bartels explains how the modern insanity test works, and why the special offence of infanticide exists for mothers whose minds are affected by childbirth and breastfeeding. She notes, with concern and compassion, that many women who kill their children had repeatedly sought help and weren’t adequately supported.
Criminologist Meryn Wandermargen tackles a confronting question: why do we often say someone must be "mad" to commit a horrific act, yet resist accepting depression as a basis for legal impairment? Through the case of Donna Fitchett, she shows how depression, even when severe and linked to irrational thinking, rarely satisfies the strict legal standards around knowing right from wrong.
Clinical psychologist Dr Gary Banks walks through how courts assess whether a person is fit to stand trial, stressing that his role is to help judges ensure "natural justice is served", not to decide guilt. His example of a man with intellectual disability who could teach card games highlights how capacity can show up in unexpected ways.
Finally, Dr Jackie Yoxall brings a careful look at people who fake mental illness, especially depression, and the ethical tightrope psychologists walk: improving detection without fuelling stigma or the idea that depression is "easy" to pretend. If you’re curious about how law, psychiatry and public attitudes collide around mental disorder defences, this thoughtful discussion might leave you questioning where responsibility ends and illness begins.
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