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A Tough Pill to Swallow 151
responds to medication the same way. 26 Grave psychological instability can persist
even where a patient diligently follows his treatment regimen. 27 Obviously, in such
cases where treatment is not effective there would be no reason to suggest that
culpability of any kind be placed upon the patient because presumably he was
never truly outside of the NCR threshold and therefore could not appreciate the
consequences of failing to adhere to his medication. If, for instance, the person
eventually discontinues his medication due to compulsion from his own
hallucinations, then the medication may have never actually brought him outside
of the NCR threshold; and he could attempt to avail himself of the defence, both
with respect to the main offence and with respect to the discontinuation that lead
to that main offence.
Secondly, I want to emphasize that the discussion of culpability for failing to
abate one’s own mental disorder is centered on the person’s mental state and
conduct while he was in the stable phase of his condition. Throughout history
and to this day, serious stigmas have attached to mental illness, including notions
that mentally ill people are violent threats to society or that they are morally and
psychologically weak and somehow responsible for their condition. 28 The purpose
of this paper is not to promote this misconception by suggesting an exception to
the NCR defence which would allow the punishment of those mentally
disordered individuals who neglect to take their medication; rather, the issue is
whether culpability should flow based on what the person did while he was not
suffering the debilitating effects of a disease of the mind, that is – when his
judgment was not impaired during his lucid, legally competent, stable phase.
III.
THE PHILOSOPHY BEHIND THE PROPOSAL
A. Motivation
One might think that the issue of recklessly induced or exacerbated mentally
disordered state is academic and does not arise in practice. In fact, the issue does
arise, but it is difficult to pursue case law on the matter because medication
adherence is generally a factor considered in the disposition of the accused, and is
irrelevant to the application of an NCR defence. As such, mention may be made
of the offender’s struggles with medication adherence in the context of
discussions over whether he poses a danger to the public and whether or not to
hold him in a psychiatric institution; but there is little reason for the court to
discuss the issue in terms of criminal culpability outside administration of the
NCR defence.
26
27
28
Pharmacotherapy, supra note 16 at 23S.
Ibid.
Mark Dombeck, Essays and Blogs Concerning Mental and Emotional Health, Online:
MentalHelp.Net .