It would depend on how M’Naghten has been developed in the jurisdiction at hand.
The person acted responsibly by following a doctor’s recommendation. There was nothing to suggest that he would go driving. By any reasonable derivation of M’Naghten he would not be convicted.
The laws in the various US jurisdictions are all over the map, so I wouldn’t venture to guess how this instance would be determined there, where the incarceration rate is insanely high – one of the worst in the world.
Up here in the the land of Polite Kanukistan, we have developed M’Naghten quite liberally, so in the circumstances at hand, the zombie driver would be found not criminally responsible due to a mental disorder (M’Naughten derivatives), and beyond our derivative of M’Naughten would not automatically be committed to the nut house (Swain).
A good example of this would be Shaun Davis, who suffered from depression, was prescribed some medications, and took to many of them when on a cross-country bus trip. One thing led to another, and eventually he grabbed the wheel of the Greyhound bus and rolled it, fatally crushing an elderly passenger’s head between the overhead TV and the roof, and injuring a couple of dozen passengers. At trial he was found not mentally responsible due to a mental disorder (paranoid psychosis), and was released.
The first bus tried to leave him at a gas station in butt-fuck nowhere, but the gas station did not want him, so the police (figuring that he would not cause any trouble) put him on the next bus, which he then rolled. The fellow I used to work for got him off of the criminal charge as per the above law. I cross-examined Greyhound at the coroner’s inquest (letting him on the second bus, not stopping the bus, no seatbelts, overhead TV). The fellow who led the charge in the civil suit against Davis, the police and Greyhound noted that “This wasn’t a crime of motive. It was a crime of psychological disorder,” which under Canadian law as set out above meant that Davis could not be convicted.
By all accounts, Davis was a good person who made ongoing efforts at keeping his head above water, but his mental health kept relapsing, and alcohol and drugs took their toll with each relapse. Eventually he ended up confined to the province’s highest security psychiatric institution – not because he was found guilty, but rather because he was found by psychiatrists to be a severe danger to himself and/or others. Had he been able to get it together, he would have been released.
He became engaged to one of his care providers, but prior to their marriage, he killed himself.
There was little but tragedy in the matter. A well loved grandmother was killed. A couple of dozen Christmas passengers were injured. A loved person killed himself after years of fear and anguish.
What lessons have been learned? The police have taken and continue to take a close look at how they should handle such situations, for institutionally the last thing they want to do is to contribute to harming people, although individually there are far too many bad blue apples. This matter, along with other such matters (e.g. the shooting death of Sammy Yatim on a streetcar and the tazering death of Dziekański in an airport) have led to a lot of work in area of police contact with people suffering from mental health issues. There is one hell of a long way to go in this area, but we’re moving forward.
What stands out about this matter? Our law is compassionate – not just toward the victims, but toward all involved. We can hold our heads up even when the shit is raining down from all directions, and by doing so we can work toward justice for all.