Prof. Ian Freckelton1
1Law Faculty, University Of Melbourne, Melbourne, Australia
This paper will review the role of mental health experts in decisions involving the fitness of convicted persons to be executed. It will review United States and Indian law on the appropriateness for execution of persons with mental illnesses and intellectual disability. This will be a context for analysis of the ground-breaking 2021 decision by the Supreme Court of Pakistan in Bano v Home Department of Punjab in which the Court formulated new criteria for fitness for execution and overturned a series of lower court decisions that prisoners be executed. The Supreme Court also directed amendment of prison rules throughout Pakistan to implement its decision and mandated the creation of High Security Forensic Mental Health facilities for the assessment and treatment of mentally unwell prisoners. It also required the constitution of a Medical Board in each province comprised of three psychiatrists and two psychologists to examine and evaluate condemned prisoners on death row. The decision is particularly interesting and internationally influential because Pakistan has been one the countries that has most utilised the death penalty and because the decision provided a platform for the Supreme Court to enunciate a series of principles in relation to the potential exculpation of persons on the basis of mental illness. International death penalty reform has been given a fillip by the decision and forensic mental health has been provided with an elevated platform to provide treatment and assessment for persons accused of serious crimes in Pakistan.
Ian Freckelton is a Queen’s Counsel in full-time practice throughout Australia. He is a Professorial Fellow in Law and Psychiatry at the University of Melbourne, an Adjunct Professor of Forensic Medicine at Monash University, a judge of the Supreme Court of Nauru, and a member of Victoria’s Coronial Council and the Bar Council of Victoria. He is a past bi-national and Victorian President of ANZAPPL. Ian is the Editor of the Journal of Law and Medicine and the Founding Editor and Editor-at-Large of Psychiatry, Psychology and Law. In 2021 he was made an Officer of the Order of Australia for distinguished service to law and the legal profession, including to health, medicine, and technology.