Seeking clarification of criminal law’s understanding of mental illness

For many years, Linda Gröning has focused particularly on understanding mental illnesses within the criminal justice system and how to address questions of criminal responsibility. She believes that we need clearer understanding of how the law relates to psychiatric diagnoses and psychiatry’s concepts of mental illness.

In criminal cases, expert assessments of mental illness are used and emphasized. However, there are significant variations in the functioning of individuals with the same diagnosis, and also different understandings of mental illness.

“This complexity is not always clear in the legal system. We need a more nuanced understanding of the legal significance of mental illness than what we currently have”, according to the law professor.

Balancing various considerations

Gröning is motivated by a commitment to how the legal system understands and cares for people with mental illness. At the same time, she acknowledges that the law must balance various considerations, including protecting society when necessary.

“Therefore, I believe we need increased legal – and interdisciplinary – focus to develop the legal understanding of mental illness. This is necessary to arrive at correct and fair decisions for individuals and the society,” she says.

She has extensive experience with this topic from her own research projects. Gröning was also a member of the Committee reviewing the Penal Code’s rules regarding Criminal Capacity, Expertise and Societal Protection following the 22nd of July trial in Norway. In this high-profile case, two pairs of experts reached different conclusions regarding the perpetrator’s (in)sanity.

Currently, the law professor also participates in the government committee on criminal law reactions and mental health, which investigates the care of convicted and incarcerated individuals with severe mental disorders or developmental disabilities.

Unclear links between criminal insanity and mental illness

Gröning is concerned that the reliance of legal decisions on psychiatric diagnoses, can lead to unequal treatment before the law. She rhetorically questions where the boundaries lie between those who are punished and those considered criminally insane.

"Without legal clarifications regarding the link between criminal responsibility and mental illness, the foundation for answering that question will be lacking", Gröning says.

As an example, she points to results from the interdisciplinary project DIMENSIONS, which seeks to develop the legal understanding of psychosis and its relation to criminal insanity.

“This is the first research project that has looked deeply into this topic. Our research has shown how challenging it is to collaborate across different disciplines’ frameworks,” she explains.

It motivates me that here in Norway, based on the strong academic community at the University of Bergen, we can take the lead in developing knowledge in this area

One specific example she highlights is how the law views planning in relation to criminal liability. Legal precedents demonstrate that a person’s “planning ability” can be considered an argument for accountability, even if the person is severely mentally ill.

“However, if we scientifically try to explain how mental illness affects the ability to plan, we quickly encounter challenges. What do we mean by “planning”? Are we talking about decision-making skills or executive functions? What are the nuances regarding “planning” in legal terms, and the steps a mentally ill perpetrator has taken toward an action, from a psychiatric perspective?”

“Building bridges between different disciplines is crucial. Do we speak the same language when we talk about how and why the phenomenon of mental illness matter to legal rules and decisions about criminal insanity? This requires more knowledge”, she asserts.

International focus

Gröning have high ambitions for future research. She aims to further advance legal understanding of mental illness trough interdisciplinary and international research collaboration. The project could potentially lay the groundwork for changing the entire framework and discourse on the relevance of mental illness in criminal law.

One of the question she intends to investigate is how we understand the relevance of mental illness in different countries.

“There seems to be common traits across countries in this legal area. For example, psychosis is a central condition for criminal insanity in many places. However, we know little about how this relevance is specifically understood and to what extent it varies between countries. I believe there is a significant need to scientifically examine whether there is alignment between the assumptions about mental illness that the legal system relies on and the knowledge we have about mental illness," she says, adding:

“As a next step, we would like to explore the prevailing arguments and whether they differ from country to country, to assess the claims underlying decisions about criminal responsibility and punishment”.

Young offenders

In addition to the previously mentioned DIMENSIONS project, Gröning leads the CHILDCRIM project, which studies assessments of criminal insanity and violence risk for children who are above the age of criminal responsibility but still under 18 years old.

“What we observe is that when mental illness comes into play, we have not adequately implemented children’s rights within the legal system. We are working on a research article that will demonstrate the significant challenges related to protecting children’s rights in this context”.

Leading from Bergen

As it stands today, Gröning believes that current practices risk subjecting some of society’s most vulnerable individuals to significant injustice and differential treatment. This pertains to sentencing, compulsory treatment, societal expectations of safety, and attitudes toward mental illness.

“Norway is one of the most resource-rich countries globally, yet we still face substantial challenges in this field. We also know that in many other countries, the problems are even greater. It motivates me that here in Norway, based on the strong academic community at the University of Bergen, we can take the lead in developing knowledge in this area," concludes the law professor.