An analysis of arguments for the retention of the defence of mental impairment

Bernadette McSherry; Danny Sullivan

doi:10.1080/13218719.2022.2112102

An analysis of arguments for the retention of the defence of mental impairment

Psychiatr Psychol Law. 2023 Jan 17;30(1):96-105. doi: 10.1080/13218719.2022.2112102. eCollection 2023.

Authors

Bernadette McSherry¹, Danny Sullivan²

Affiliations

¹ Melbourne Law School, University of Melbourne, Melbourne, Australia.
² Victorian Institute of Forensic Mental Health (Forensicare), University of Melbourne, Swinburne University of Technology, Melbourne, Australia.

Abstract

This article summarises the main arguments for the retention of the defence of mental impairment presented in an online debate that took place in August 2021. It canvases the justifications for the defence, rebuts human rights arguments for its abolition and outlines why there is a lack of viable alternatives. It concludes that advances in knowledge should lead to the reform of the defence rather than its abolition.

Keywords: Criminal responsibility; criminal law principles; mental impairment defence.