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A Melbourne man was found not guilty this week of murdering a homeless man by reason of mental impairment. The man, Easton Woodhead, who suffers from schizophrenia, killed Morgan Perry, believing Perry had stolen his motorcycle. A Supreme Court jury聽聽of murder on the basis of mental impairment.

This type of case frequently raises concerns about the validity of this defence. There is a preconception that the mental illness and related defences are seen in the public discourse as 鈥済et out of jail free鈥� cards; illegitimate excuses 鈥� perhaps even fabricated or made up 鈥� allowing some individuals to 鈥済et off鈥� criminal charges. According to this logic, successful mental illness defences are suspect.

But, contrary to this logic, we should be concerned about the low numbers of people charged with criminal offences who raise what is known in criminal law as the mental impairment or mental illness defence.

It鈥檚 hard to be precise about numbers here, but we do know that very few individuals successfully raise defences such as insanity or mental illness. The NSW Law Reform Commission found just聽聽in 2011-12.

Why is the defence so rarely used?

What鈥檚 going on here? How does this square with what we know about the high numbers of聽?

Part of the explanation is the difference between medical and legal definitions of 鈥渋nsanity鈥�. Only a selection of mental illnesses, as understood by psychiatrists and psychologists, qualify as mental illness for the criminal law.

For the insanity defence, mental illness must affect the individual in a particular way. It must affect his or her reasoning processes 鈥� his or her cognitive capacity 鈥� not 鈥渏ust鈥� affect emotion or volition. This immediately rules out many genuine mental conditions that can seriously impact someone鈥檚 life.

The difference between legal and medical definitions is part of the reason for the gap between numbers of prisoners with mental illness and the use of the mental illness defence. Another reason for this gap, and the injustice that results from it, is to do with the criminal law.

Here鈥檚 the rub: in an attempt to respect people as autonomous individuals, the criminal law assumes everyone is sane and responsible for their actions, and makes the test for an insanity defence narrow and limited.

Assuming everyone charged with a criminal offence is sane, and responsible for their actions, entails assuming that individuals have particular capacities (of cognition, volition and morality). If an accused lacks the necessary capacities, he or she is not responsible and cannot be held to account for his or her actions in the context of a criminal trial and conviction.

Raising the insanity or mental illness defence involves making a claim of non-responsibility.

What is the legal test for 鈥榠nsanity鈥�?

NSW criminal law relies on the聽聽to define the test for insanity. The M鈥橬aghten Rules require that: (1) an individual suffers from a 鈥渄efect of reason鈥�, which is (2) caused by a 鈥渄isease of the mind鈥�, and, as a result, (3) he or she does not know the 鈥渘ature and quality鈥� of the act or that it was wrong.

This language sounds arcane, and it is. The M鈥橬aghten decision dates from 1843. The effect of the decision is that it is really difficult to raise the mental illness defence successfully.

Like other states in Australia, Victoria, where Woodhead was tried, has a statutory insanity provision based on the M鈥橬aghten Rules.

The limitations of this test are clear:

1. not all severe mental illness affects reasoning capacity;

2. no psychiatrists use the term 鈥渄isease of the mind鈥�; and

3. requiring people to be so profoundly affected that they don鈥檛 know the nature and quality of their act or that it is wrong sets the bar too high.

The vast majority of people with serious mental illness would fail this test.

We need to bring the law up to date with current medical knowledge. We need a genuinely accessible insanity defence. This would help direct people who really need it into treatment.

Defence does not let people 鈥榳alk free鈥�

In Australia and elsewhere, an accused found to be insane is exposed to special court powers of disposal. If an individual is not criminally responsible, he or she isn鈥檛 free to walk away as if acquitted. Detention in a secure psychiatric unit in a prison can be just as long 鈥� or longer 鈥� than any prison term. Treatment rather than punishment is not a 鈥済et out of jail鈥� card.

If a genuinely accessible insanity defence provides treatment for people who really need it, it鈥檚 better for both the individual and society.

And, before we assume any option other than 鈥減roper鈥� punishment is just too lenient, we must pause to think about what having an insanity defence that is genuinely accessible really means.

Exempting insane defendants from聽聽is the flipside of holding people to account only when they are properly agents of their own actions. This means it is the 鈥減rice鈥� we pay for a system that treats us all as responsible unless proven otherwise.

Arlie Loughnan is an associate professor at Sydney Law School. This article was first published in .