BY ERDA KHURSYIAH BASIR
KUALA LUMPUR: The tragic incident involving three Universiti Teknologi MARA (UiTM) Dungun students who died after being hit by a female driver recently, has left many in shock, while others voiced their discontent over the circumstances.
The incident, caused by a female driver who is alleged to be mentally unstable or suffering from mental health issues, is not a new phenomenon. Many similar incidents have occurred, not only involving accidents but also other crimes, including murder.
The main worry for the public is whether crimes committed by individuals suffering from mental health conditions could lead to inadequate justice for victims and their families, as perpetrators might be deemed mentally unfit to face prosecution.
So, are individuals with mental health disorders ‘immune’ to the law and exempted from punishment?
Not automatically free
Commenting on the matter, lawyer Dr Mahmud Abdul Jumaat said the issue of offenders with such status in criminal cases is complex from a legal perspective. However, he emphasised that a person found to be insane or suffering from mental health issues is not automatically exempted from legal action.
Mahmud explained that under Malaysian law, there are several principles in the Penal Code and the Criminal Procedure Code used to address the issue of offenders who are insane or have mental disorders.
“Section 84 of the Penal Code states that ‘nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.’
“However, before a person is confirmed as insane or suffering from mental health issues, the court will refer the individual to a psychiatric expert for evaluation. Typically, the offender will be sent to a psychiatric hospital for mental assessment by a qualified doctor.
“This process is crucial in determining whether the offender was truly mentally incapable at the time of the incident. After the mental assessment is conducted, the psychiatric report will be submitted to the court. The court will evaluate the report along with other evidence to determine whether the offender is eligible for protection under Section 84 of the Penal Code,” he told Bernama recently.
Mahmud, who has about 12 years of experience as a legal practitioner, said that in cases where the offender is found to be insane, the court may order them to be sent to a psychiatric hospital for treatment instead of imprisonment.
“However, the individual is not necessarily released. They may be placed in a psychiatric hospital for a period until they recover and are no longer considered a threat to society.
“In this regard, the Mental Health Act 2001 plays an important role in addressing mental health issues in Malaysia. This act outlines procedures related to the care, treatment, control, and rehabilitation of individuals with mental health problems. Under this act, individuals found to have mental health issues may be sent for treatment, either voluntarily or through a court order,” he added.
Burden of proof
Sharing an example from a previous case, Mahmud cited the 2013 case of Othman A Aziz, where the defendant was charged under Section 302 of the Penal Code for the murder of Ratna Suffizahriyanti Omar.
He said in this case, the defence of ‘unsoundness of mind’ was raised, which is closely related to the question of whether someone with mental health issues or insanity can be exempted from criminal responsibility.
“The defendant admitted to killing the victim and confessed his actions to the main witness twice. Despite this confession, he provided an unsworn statement from the dock, asserting that he was unaware of his actions after the victim informed him that their marriage would not proceed, which led him to lose control.
“The court ruled that the defendant failed to establish the defence of unsoundness of mind. A psychiatric report confirming the defendant’s sanity at the time of the incident was obtained, although it was not submitted as evidence.
“Additionally, the court observed the defendant’s behaviour throughout the trial and found that he was consistently in a sane state and was capable of understanding the proceedings.
“In this case, the court referred to Section 84 of the Penal Code, which states that a person who commits an offence while insane or incapable of knowing that the act was wrong or contrary to the law may be exempted from criminal responsibility.
“However, the burden of proving unsoundness of mind lies with the defendant, as stipulated in Section 105 of the Evidence Act 1950. In this case, the defendant failed to present sufficient evidence to prove that he was insane at the time of the incident,” he explained.
Mahmud added that in Malaysian criminal law, the principle of unsoundness of mind can serve as a defence in criminal cases, including murder.
In addition, Section 84 of the Penal Code protects individuals who genuinely cannot understand their actions due to insanity. However, as in this case, the court will evaluate the psychiatric report and other supporting evidence before making a decision.
“The defence of unsoundness of mind does not mean that the offender will be automatically released. The court will assess whether the defendant was truly insane or unaware of their actions at the time of the incident, based on strong evidence such as a psychiatric report and the defendant’s behaviour during the trial.
“In this case, the defendant failed to prove unsoundness of mind, and the court found his confession and other evidence strong enough to convict him under Section 302 of the Penal Code, which carries the death penalty,” he said.
Citing another example, Mahmud highlighted the contrasting case of Sahifful Filzuad Sa’Don in 2018, where the court found the defendant, charged under Section 302 of the Penal Code for the murder of his wife, Norini Abd Rahim, on March 20, 2016, to be insane. Sahifful Filzuad was detained at Hospital Permai, Johor Bahru.
The defendant had stabbed his wife multiple times and strangled her, causing her death. Several witnesses, including the defendant’s children, neighbours, and forensic experts, testified in support of the prosecution’s case.
“However, Sahifful Filzuad raised the defence of insanity under Section 84 of the Penal Code, claiming that he was experiencing a mental disorder at the time of the incident.
“He was diagnosed with bipolar disorder and suffered from delusions and hallucinations, which drove him to commit the murder. A psychiatric assessment confirmed his mental instability, and the evidence indicated that the murder was carried out under the influence of the delusions he was experiencing. After considering the insanity defence, the court found that Sahifful Filzuad was legally insane at the time of the incident and unaware that his actions were wrong or against the law.
“Therefore, the court acquitted the defendant under Section 84 of the Penal Code on grounds of mental disorder. However, he was ordered to be detained at Hospital Permai under the consent of the Sultan of Johor, in accordance with Section 348 of the Criminal Procedure Code,” he explained.
Amend the Mental Health Act 2001
Acknowledging public concerns that the insanity defence may evoke dissatisfaction among victims and their families—given that the accused is not punished in the same way as regular criminals—Mahmud said, this law seeks to ensure broader justice. It not only protects the victims but also takes into account the mental state of the accused at the time of the incident.
“The court did not release the accused without further action. Instead, they were placed under strict psychiatric supervision and treatment. Therefore, while it may seem that the accused ‘escaped’ imprisonment or the death penalty, the law acts based on medical evidence showing that the accused lacked the mental capacity to understand or control their actions.
“This decision also protects society by ensuring that the accused receives proper treatment and remains under supervision. Thus, the insanity defence is not a ‘ticket’ to avoid punishment but a fair legal mechanism to address cases where the accused did not have sufficient mental awareness,” he explained.
When asked about potential legal actions that could be taken against the family members of offenders for neglect or failure to prevent a crime, Mahmud proposed amending the Mental Health Act 2001 to introduce specific responsibilities for family members or caregivers of mentally ill patients at risk. This would include detailing reporting mechanisms, oversight obligations, and penalties for negligence or abandonment that leads to criminal incidents.
As an example, he said the law could be improved by establishing clear responsibilities for family members or caregivers managing individuals with mental illness. Families could be required to report to health authorities or the police if they observe any dangerous behaviour in a family member.
“If family members fail to take appropriate measures, such as ensuring continued treatment or adequate supervision, they could face legal action.
“The government could also implement educational and support programmes for families caring for mentally ill individuals, including guidance on managing high-risk individuals and facilitating access to mental health treatment and services. Family responsibility in these situations would be more effective if they were provided with sufficient knowledge and assistance.
“In certain cases, mental health institutions or authorities should be more proactive in ensuring high-risk mental health patients are continuously monitored. This obligation could be reinforced through laws requiring hospitals or mental health clinics to report to authorities if a patient refuses treatment or does not comply with the treatment plan,” he added.
Mahmud also said that some countries’ approaches could serve as examples for Malaysia, particularl in defining family responsibilities and implementing fairer penalties.
“In the United Kingdom, the Mental Health Act 1983 allows authorities to detain individuals with mental disorders who may pose a danger to themselves or others and ensures they receive the necessary treatment.
“This law empowers health authorities to ensure that mental health patients are closely monitored. Additionally, the Corporate Manslaughter and Corporate Homicide Act 2007 imposes penalties on organisations (including caregivers) if serious negligence leads to death due to failure in properly managing individuals requiring special care,” he said.
Mahmud also noted that in Australia, family members caring for mentally ill patients have a clearer duty of care under the country’s mental health system. If they neglect or fail to care for individuals who could potentially harm others, they may face legal action under negligence laws.
“The Mental Health Act 2001 should be amended to review the definition of ‘insanity’ and the criteria that allow offenders to escape punishment. The court must ensure that mentally ill individuals involved in serious crimes are required to undergo psychiatric treatment in hospitals for a designated period.
“In addition, the monitoring system for mental health patients needs to be strengthened, especially for those previously involved in criminal cases. The establishment of a centralised mental health monitoring system involving collaboration between psychiatric hospitals, local authorities, and family members could help reduce the risk of repeat offences by mentally ill patients,” he added.
Detailed assessment process
Meanwhile, Head and Senior Consultant Psychiatrist at the Department of Psychological Medicine, Faculty of Medicine, Universiti Malaya, Assoc Prof Dr Muhammad Muhsin Ahmad Zahari, said an individual’s mental health status can only be confirmed through mental health assessments or evaluations.
He noted that videos, photos, or statements shared on social media are inadequate for assessing whether an individual has a severe mental disorder that could impair their decision-making abilities.
In fact, many people suffering from mental illnesses like depression and anxiety do not necessarily experience a reduction in their ability to perform daily tasks, including driving.
“An individual diagnosed with a mental illness who then commits an unlawful act may have done so due to or influenced by their mental illness. For instance, someone who has a heart attack while driving and causes an accident is not doing it intentionally.
“Similarly, a person with a mental illness does not choose their condition, and any violations of the law during their episodes or symptoms are unintentional.
“Therefore, after a thorough assessment, if it is confirmed that the incident was caused by the mental illness, the person may be exempted from criminal liability, as the act was not deliberate but was driven by their illness,” he said.
Dr Muhammad Muhsin elaborated on how mental health diagnoses are conducted, stating that, in typical cases, the patient or their family will seek evaluation at a clinic.
However, under Section 11 of the Mental Health Act 2001, certain parties such as the police and officers from the Social Welfare Department can assist in bringing a patient for evaluation and treatment. From there, the patient may be referred to the hospital’s emergency department for immediate psychiatric treatment.
“The patient evaluation process includes gathering a comprehensive patient history and conducting a mental status assessment at that time. Other physical examinations for conditions like high blood pressure, hormonal status (e.g., thyroid issues), and neurological diseases must also be done,” he said.
“After that, the patient and their family will be informed about the potential mental illness. There are also cases where confirming the diagnosis takes longer,” he said, adding that medication and psychotherapy treatments will be prescribed to the patient.
Dr Muhammad Muhsin said, in cases involving legal violations, such as criminal acts, an application to determine the patient’s mental status is made by the police through form Pol 59. Additionally, the court can order a mental examination as outlined in Section 342 of the Criminal Procedure Code.
Mental health records, certified doctors
Dr Muhammad Muhsin also emphasised the importance of having mental health records for individuals who are at risk, revealing that it is not uncommon for patients to suffer from mental illnesses for years without seeking medical treatment from certified professionals.
In the case of the UiTM Dungun incident, where three students were killed, the 49-year-old female suspect was found to have no health records, whether at hospitals or clinics in the state.
“It’s entirely possible for someone to suffer from a mental illness for an extended period without seeking psychiatric treatment. Additionally, it’s common to find that these individuals or their families opt for traditional treatments, such as consulting a bomoh (traditional healer) and undergoing non-medical remedies for extended periods.
“Some do not seek professional treatment early on due to the deep-rooted stigma in society that associates mental illness solely with being ‘crazy,’ fearing being labelled negatively or tarnishing the individual’s or family’s reputation.
“Moreover, beliefs about illnesses being caused by supernatural forces or mystical disturbances remain strong among certain segments of society. Early psychiatric medical treatment is very effective and can prevent the condition from worsening,” he said, adding that it is tragic when patients only seek hospital treatment after their condition has become chronic and they exhibit dangerous behaviour.
He said that according to the 2023 National Health and Morbidity Survey, 4.6 per cent of adults show symptoms of depression, nearly double the rate in four years, while 16.5 per cent of children and adolescents (aged five to 15) face mental health issues.
“This is a challenge for all of us to ensure that the rise in mental illness in society receives the proper intervention. Negative perceptions or stigma need to be overcome so that those dealing with mental health issues can seek early treatment,” Dr Muhammad Muhsin said. – Bernama
