‘Discretionary’ ruling protects the mentally ill and society

For people with mental illness or incapacity, a new decision by the Constitutional Court represents a fundamental liberation. In a unanimous judgment delivered last month, the court found aspects of the Criminal Procedure Act unconstitutional in how it dealt with adults and children with mental conditions. 

The judges were concerned that a presiding officer had no discretion, but was obliged to order the imprisonment or hospitalisation of a child with a mental condition who became involved in a criminal matter, even when the child posed no significant danger to him or herself, or to others. 

The appeal concerned two people, both found mentally unfit to be tried. 

One, now 35, was born with Down’s syndrome. In 2013 he was charged with raping a girl of 11, who reported the incident five or six years later. The man lives with his mother.

The second person was originally charged with murder. In 2005, when he was about 14, he stabbed and killed a girl of about the same age after he was teased at school. A lawyer involved in the case explained the children were working with compasses at school. The accused had one in his hand when he lashed out at those teasing him and the point of the compass pierced another child’s neck. He was initially charged in the regional court, but was referred for examination by three doctors who all agreed he wouldn’t be able to understand basic court procedures.


In this second case, the man’s mental condition was caused by a car accident when he was five; he now has the mental age of a six-year-old.

It was clear neither could be charged as would normally occur, so they have not been convicted of any crime. But, as the law stood, magistrates hearing such cases had no discretion about what to do next: they were obliged to order the accused be “detained”, even when the presiding officer might have felt this was not in the best interests of the accused. Because of the shortage of beds in psychiatric hospitals, this usually means prison detention.

The law, properly interpreted, meant the magistrate was not entitled to consider the individual in such a case, and to investigate whether detention was an appropriate option for that person. This issue was challenged as unconstitutional.

Lawyers representing the ministers of justice and constitutional development, health, and the director of public prosecutions, said a constitutional overhaul of mental healthcare policies was carried out and a progressive policy put in place that catered for the care, treatment and rehabilitation of someone with a mental illness or intellectual disability. 

The contested provisions were consistent with the Constitution because “they are rational and serve a legitimate government purpose”. If courts had discretion in dealing with mentally ill or intellectually disabled persons found, on a balance of probabilities, to have committed serious offences, this “could put society at risk”.

Crucially, the Constitutional Court agreed the law gave the presiding officer no choice as to how the “accused” be “detained” but said the mere existence of a disability could not justify a deprivation of liberty.

Such people had been historically disadvantaged and unfairly discriminated against, and the use of prisons to “house” them perpetuated hurtful and dangerous stereotypes.

Imprisonment could be viable as a stopgap measure if the presiding officer believed the person would harm himself or others. But where the evidence illustrated this was not the case, the presiding officer should be able to craft an appropriate order, pending availability of a bed in a psychiatric hospital, it said.

Institutionalisation and treatment were not always appropriate, however, such as in the case of someone with Down’s syndrome; it perpetuated harmful stereotypes to assume all people with mental illness were dangerous. While it was sometimes necessary to institutionalise an accused, that had to be decided by a presiding officer based on the facts of a particular matter.

In the case of children, a presiding officer had to be given the discretion to make sure that “detention” was really only the last resort and for the shortest possible period.

Two sections of the law were challenged. The court found the first invalid because it provided for compulsory imprisonment of an adult accused person and the compulsory hospitalisation or imprisonment of a child. Parliament has been given two years to fix this part of the law. 

Dealing with the second section challenged, the court said from now on it would have to be interpreted as giving presiding officers a range of choices in deciding how to deal with someone who is found to have committed an offence, or someone who has not committed any offence, including that the person be released conditionally or unconditionally.

Commenting on the outcome, the curator appointed by the high court to represent the person initially charged with murder in the classroom said she believed the court had crafted a solution that would cater for cases such as those involved here, providing protection for society and the individuals concerned.

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Carmel Rickard 1
Guest Author

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