Addressing Mental Disorders and Civil Liability

During the seminar, Friberg presented her research project Psykisk störning och skadeståndsansvar ("Mental Illness and Liability for Damages"), in which she examines how individuals with mental disorders are treated in Swedish tort law, and what parallels can be drawn to the treatment of mentally ill persons in criminal law. 

A central part of the project is to analyze the reasons that may justify treating persons who cause harm while influenced by a mental disorder differently within a tort law context. In this regard, she also addressed the parallel to children's liability. Although the liability of children and persons with mental impairments are regulated in two separate provisions with nearly identical wording, the liability assessment is far more complex in cases regarding mental disorders, given the wide variation between diagnoses. According to Friberg, this picture is further complicated by the fact that Swedish law requires a causal link between the mental condition and the act of causing damage. 

Friberg additionally discussed the distinction between serious mental disorders and other forms of mental impairment. She questioned where this line should be drawn, and what legal consequences such a distinction should have. She highlighted the rules pertaining persons with mental disorders in criminal law, and showed how the two legal fields influence one another.

The presentation was followed by two comments from a Norwegian perspective. Professor Anne Marie Frøseth first gave an address titled “Lack of capacity for guilt, capacity for breaching law, or a balancing actthat considers the need to protect the vulnerable of those who cause harm?”

Frøseth noted that, as in Sweden, Norwegian law contains separate grounds for liability for children and mentally impaired persons. Although the establishment of these rules was preceded by Nordic legislative cooperation, and the liability provisions in both countries are based on assessment of reason, the models adopted by the two countries differ. Unlike Swedish law, Norwegian law does not require a causal link between the mental condition and the harmful act in order to apply the special rule on liability for mentally impaired persons. Moreover, the Norwegian provisions on the liability of mentally impaired persons and of children do not share the same wording, in contrast to the Swedish Skadeståndslag. These differences in the models of liability may, in practice, result in significant variations in prevailing law between the two countries, even though the underlying principles and motivations for special regulation are largely the same.

Professor Linda Gröning explored the topic further within the context of criminal law, addressing issues related to psychiatric diagnoses in criminal proceedings in a talk with the same title. Gröning discussed the historical development and shifting influence of psychiatry on criminal law, both in legislation and in practice. The current Norwegian Penal Code Section 20 contains special provisions regarding a range of mental conditions and their significance for determining whether a defendant is criminally responsible and thus subject to punishment. Several of these conditions are not psychiatric diagnoses and do not need to be present at the time of judgment. Gröning identified inconsistencies in the fundamental principles underlying the regulation of criminal irresponsibility and in the content of the system of sanctions. She emphasized, among other things, that the way deviant mental states are handled — both in court and in the penal system — creates a risk of unequal treatment of individuals who ought to have been treated equally.