Autonomy, criminal Responsibility, and competence

Recently, Juth and Lorentzon proposed to replace the concept of free will, as considered relevant in criminal responsibility, with the concept of autonomy. In addition, they conceived of the assessment of criminal responsibility in terms of a decision-making process. In this article, I suggest that, based on these characterizations, there is an essential similarity between assessments of criminal responsibility and assessments of competent decision-making within the context of informed consent. In both assessments, autonomy and decision-making would be central factors. If one accepts this basic similarity, I argue, interesting opportunities are opened up in the sense that research on criminal responsibility could be directly informed by research on competent decision-making.

There is still disagreement about how forensic assessments of criminal responsibility should be understood and implemented.1–3 Recently, Juth and Lorentzon3 proposed to conceive of such assessments and of their underlying justification in terms of (diminished) autonomy. In this article, I discuss their proposal and explain why it presents an interesting opportunity for forensic psychiatry. In fact, I argue that conceiving of these assessments in terms of autonomy and decision-making, as Juth and Lorentzon propose, opens up the possibility of linking this type of assessment to another assessment, that of competence to decide about treatment options within the context of informed consent. The main point of this contribution is not whether criminal responsibility can be conceived of in terms of autonomy, but the opportunity that opens up if we perceive of it in terms of autonomous decision-making and action.

I first discuss the proposal by Juth and Lorentzon, explaining to what extent I agree with their line of reasoning and at what points I am not convinced by their argument. Then, I explore the possibilities that are created by their proposal. I suggest that research on the patient's competence to consent to treatment may directly inform research on assessments of criminal responsibility.