A radical proposal
Peter Pellegrini
A little over a month has passed since the murder of psychiatrist Barbara Capovani. The ensuing mobilization advanced several requests that can be summarized in two main lines: a) the request for an increase in the resources of the mental health departments and the relaunching of their organization; b) the reform of criminal law as a basis for the revision of judicial and treatment pathways.
Pending the actions of the government and the Commission activated by the Ministry of Health, an important initiative was taken by the Hon. Riccardo Magi who presented the draft law n. 1.119 entitled “Amendments to the criminal code, the code of criminal procedure and the law of 26 July 1975, n. 354, regarding imputability and alternative measures to detention for people with psychosocial disabilities” which goes beyond the “double track”, through the abolition of art. 88 (total mental defect) and art. 89 (partial defect).
The person, even if with mental disorders, is therefore guaranteed the right to a trial, to be judged for the fact committed as a result of not being declared “acquitted” because he is incapable of understanding or wanting.
The current situation configures a decrease in rights and duties, ending up touching the dignity of the person. In fact, often even before any judgment, the person with suspected mental or “disturbing” disorders is considered “socially dangerous” and a temporary detention security measure of indefinite duration and unclear contents is applied. This usually occurs when the defendant is still presumed innocent, i.e. even before having ascertained his guilt, and having carefully examined the state of mental health both for the purposes of imputability but also and above all for the preparation of a course of care that must always be based on the person’s consent and participation.
The “vice of mind” and “insanity” refer to the positivist psychiatry of the early twentieth century, not oriented towards the biopsychosocial, relational and cultural model. These categories do not create the best conditions for treatment because “social danger” and its management through safety measures are placed in the foreground. The obsolescence of the formulation present in our Rocco penal code of 1930 is evident as it is in harmony with the law 36/1904 according to which people with mental alienation who were “dangerous to themselves and to others” had first to be “guarded ” and then treated in asylums. Although it is a provision repealed by law 180, its legacy persists in the operational culture and is revealed in the improper custodial requests made by magistrates to the mental health departments and has also appeared in sentence n. 22/2022 of the Constitutional Court which defines the detention security measures as “ancipite”, ie at the same time as custody and coercive treatment. A position in contrast with law 180, 18/2009 and 219/2017 which base health checks and treatments on voluntary action. A condition that is confirmed in clinical practice and in treatments that can only be achieved with the motivation and participation of the person.
A radical reform is therefore needed to clarify and create the best conditions for care and safety. The Magi proposal goes in this direction as it captures a fundamental point: the person needs the pronouncement of the law as in his internal world there is the crime that must not be justified but accepted, understood, elaborated. The penalty, pursuant to article 27 of the Constitution, is an opportunity for an examination of reality from which mental work can clearly begin which must be free (for the patient and the psychiatrist) for the purpose of treatment and reintegration into the community. In this sense, responsibility is therapeutic. It requires a commitment from the person, the creation of a dialogic motivation and the signing of a pact, the assumption of commitments.
The penalty gives certainty of time and is not subject to repeated distressing extensions like security measures. It is divided into salary and treatment aspects for the purpose of re-education and social inclusion. These do not coincide at all with the treatment of mental pathology but have their own autonomy and specificity in the context of penal execution.
The acquittal, especially if preceded by temporary prison security measures, creates an incomprehensible limbo, an anguished suspension, a Kafkaesque silence. It is the disease that has acted, not the person, judged incapable and therefore unworthy of listening and dialogue. In relation to the crime the law does not express itself (with a penalty, a precise sanction, a judgment) but leaves the person with his weight, impotence and the almost indelible shadow of social danger to psychiatry alone. Clinicians know how difficult it is to unravel these intricate and confusing experiences and how much darkness, misunderstandings and agonizing suffering this can lead to. They fear the guarantee position according to which the psychiatrist seems to have to control, protect and prevent. Improper, impossible and antitherapeutic tasks.
The path of responsibility must be affirmed, of imputability even “assisted” which in the criminal sphere as has been the case for some time now in the civil one where the support administration helps the beneficiary in exercising rights and duties. No longer the interdiction, protection and loss of rights but, on the contrary, access to rights.
This acknowledgment of responsibility ends with acquittals for personality disorders facilitated by the Raso sentence (n.9163/2005) of the Court of Cassation. A very topical theme in the face of the persistence of crimes such as femicides, sex offenders with high emotional and relational components. One way to avoid improper delegation to mental health services of people with psychopathy.
In the context of criminal enforcement, the bill takes into account “psychosocial disability” (a term derived from law 18/2009 ratifying the Convention on the rights of persons with disabilities) and provides for alternative measures, also in derogation. This new legislative system no longer provides for temporary safety measures and must be completed on an organizational level so that an improvement in mental health can be achieved in penal institutions and the multimodal responses on the territory by the Departments of Mental Health are enriched, in concert with the systems judicial and security involving Municipalities, lawyers, guarantors, associations, users and civil society, victim assistance services, mediation and conciliation services.
In this framework, interinstitutional collaboration can be developed, each according to their own competences. Life belongs to the person who has the right to self-determination, also with respect to the crime and its consequences for which he must answer to the Community in compliance with the law administered by Justice (punishment and re-educational treatments). Security and the task of preventing new crimes belong to the police forces and the competences of psychiatric care to the Mental Health Departments. Only with this clarity can the plurality of people’s needs be addressed and this requires a multiplicity of social, educational, work, housing, but also judicial and safety-related responses and the prevention of new crimes and also of a health and psychiatric type. Thus a community care and judicial system can be built. In this context, a broad consensus is to be hoped for the bill which should be completed with the abolition of the guarantee position of the psychiatrist in favor of the “therapeutic privilege”.
A preferable proposal compared to others that leave the double track intact and aim “only” at the reduction of the conditions that can give rise to acquittal by limiting them only to psychotic disorders excluding serious personality disorders. An appreciable willingness to reduce non-imputability which, with the exception of psychopathy, can also be difficult to apply given the sometimes very blurred boundaries between psychosis and personality disorders, especially if with the use of psychoactive substances.
To conclude, the Magi bill recognizes the full rights and duties of the person with mental disorders and this represents the step towards the completion of Law 180 and the basis for relaunching the mental health system and innovating the penal system of our country.