Psychiatric clash can change system

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Norway’s legal system is being severely challenged by the terror trial due to start next week. The heinous nature of Anders Behring Breivik’s terrorist attacks, and conflicting psychiatric reports on his mental state, may force changes in how the system has been built up over the past several decades.

Lawyers on both sides of the state’s case against Breivik, along with court officials and court-appointed experts like the psychiatrists, have often repeated a similar phrase since Breivik bombed government headquarters and gunned down scores of summer campers on July 22: “Vi må forholde oss til det systemet vi har.” Roughly translated: “We have to follow the system we have.” “The system” itself is now under fire, and increasing numbers of legal experts and politicians think various changes need to be made.

Psychiatrists ‘have too much power’
The system is based on the goal of returning all criminals to society regardless of the nature of their crimes. Those convicted are taken good care of in the meantime. Norway’s prisons have been described as “hotels” by some foreign observers, and convicts often are released well before their prison terms are up. Those committed to a psychiatric institution are also released when deemed healthy enough.

All that is unlikely to change, but in Breivik’s case, sentiment is growing that Breivik should never be eligible for parole from prison or release from psychiatric care. Many don’t want him to avoid prison, however comfortable it can be under Norwegian standards, by being ruled insane.

Convictions and the custody they entail in Norway are based on whether the convict is tilregnelig (sane) or utilregnelig (insane). Psychiatrists make the determination that, until now, the courts and even prosecutors have followed. In Breivik’s case, an initial insanity determination was actually challenged by the court even though a panel of psychiatrists and the prosecutors themselves had accepted it. The result was a second opinion that came to the opposite conclusion, that Breivik is sane and should be held accountable for his crimes.

A string of Norwegian medical and legal experts are now suggesting that psychiatrists have had too much power in the Norwegian legal system, and gone unchallenged too often. Dr Pål Abrahamsen, a psychiatrist himself, told newspaper Aftenposten this week that court rules allowing defendants to avoid punishment if they’re determined to be insane should be overturned. “There would be more fairness in the system if folks get sentenced for what they have done,” Abrahamsen told Aftenposten. “Then the court can decide how the sentence should be served.”

Prosecutors blasted, too
The prosecutors in the Breivik case also have been harshly criticized since the conflicting report was released Tuesday, for simply accepting the initial psychiatrists’ report a few months ago. Their acceptance was in line with the system as they saw it, they’ve said. Wrong, responds law professor Anne Robberstad. “Such blind faith in the system must be avoided,” she told Aftenposten on Thursday.

Informal polls of key politicians from various parties in Parliament indicate that they want to change the system, too, but aren’t sure how. Various proposals are being prepared, to change the way a criminal’s mental state and convictions are handled in Norway. The Christian Democrats party is leaning towards demanding two separate psychiatric reports in all cases where sanity is an issue. Many politicians worry criminals may have been judged insane when they weren’t, and vice versa.

Psychiatrists themselves are also under fire. Some publicly criticized the court’s historic decision to call for the second opinion. “It’s not only the psychiatrists who now look like fools,” Svenn Torgersen, a professor in clinical psychology at the University of Oslo, told Aftenposten. “So do all the authorities who didn’t see a need for a new evaluation.” He credits public debate in the media for prompting the court to order the new report, and for highlighting weaknesses in the current system.

Views and News from Norway/Nina Berglund

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