Textbook of Psychiatry/Forensic Psychiatry
Originally forensic psychiatrists were part of an obscure and small group of "alienists" who were dedicated to the study of mental conditions and their treatment among prisoners. At present they form part of an established and recognized group of super-specialists who have made deep incursions into the workings of the law and are transforming the practice of psychiatry. This influential status has not come without some misgivings about the basic identity of Forensic Psychiatry as a medical specialty and concerns about its utility and its ethics. Following definitional issues and a short historical review, this paper will describe modern developments of this specialty and comment on the ethical controversies surrounding its functions.
Forensic Psychiatry is a subspecialty of Psychiatry, which in turn, is a medical specialty. It is commonly defined as "the branch of psychiatry that deals with issues arising in the interface between psychiatry and the law" (Gutheil, 2004). Although short, to the point, and simple, this definition fails to emphasize that a good portion of the work in Forensic Psychiatry is to help the mentally ill who are in trouble with the law navigate three different, sometimes inimical, but interrelated systems: mental health, justice and corrections. Arboleda-Flórez (2006) has proposed a more encompassing definition that will cover the specific problems of managing the mentally ill offender: "Forensic Psychiatry is the branch of psychiatry that deals with issues arising in the interface between psychiatry and the law, and with the flow of mentally disordered offenders along a continuum of health and social systems."
Forensic Psychiatry is broad. Not only does it deal with matters related to criminal law, it also deals with civil law, and the development and application of mental health legislation. Unlike any other specialty in Medicine, including Psychiatry, where the work is done at the request of the patient and takes place within the confines of a highly private and confidential bilateral relationship between physician and patient, the work in Forensic Psychiatry is done at the request of a third party. The forensic encounter takes place in a triangular relationship that flows from the dictates of the Law that are binding on both the patient and the physician and on the agency requesting the assessment. These arrangements and the settings in which forensic psychiatrists do most of their work give the subspecialty three unique and clearly defined characteristics:
1. A specific clinical subject matter and management considerations
2. Knowledge of legal constructs and concepts in criminal law, civil law, and legislation
3. Working with a complex set of relationships within three social systems - medicine, justice and corrections.
A relationship between mental constructs and the Law has existed since antiquity and is already found in the Baba Ramma, an ancient codification of texts. In Egypt, Imhotep, the grand vizier of the Pharaoh Zoser may have been the first "medico-legal expert." In the Bible, the book of Deuteronomy makes reference to crime and punishment - God’s punishment for transgressions of His commands was to visit on the violator "madness, and blindness, and astonishment of the heart" (mania, dementia, stupor).
The Romans codified the close relationship between mental states and the Law in the Corpus Iuris Civilis that contains a list of mental conditions that could serve as defense for criminal responsibility. Some other Roman legislation included the Twelve Tables, in which provisions are made for a system of guardianship of the insane; the Lex Aquila that exonerated those who caused damage not by negligence or malice, but by accident and the Lex Cornelia that excused children and the insane from punishment.
Henry de Bracton, around 1256, may have been the first legal scholar to attempt to identify the degree of legal impairment needed to exculpate an offender. In the first systematic treatise on English Law, written in the thirteenth century, he stated, "an insane person is one who does not know what he is doing and is lacking in mind and reason."
Medical experts were used in court proceedings in Bologna and other Italian cities during the XV century and in Freiburg, Germany. The scientific understanding of criminal behaviour and the expected legal proofs of wrongdoing as opposed to hearsay evidence were considered extensively in the Constitutio Carolina (1532). In 1654, Zachia, possibly the father of legal medicine, upgraded the Corpus Iuris Civilis with his Questiones medico-legales for use by the Sacred Rota, the highest judicial body of the Roman Catholic Church. In 1736 Matthew Hale published, posthumously, his History of the Pleas of the Crown in which he introduced the concept of partial insanity (Prosono, 1994).
Bracton’s legal definition of insanity based on the concept of "does not know" still reverberates, as it constitutes the basic formula in the McNaughton rule, which is central to our current understanding of ‘not guilty by reason of insanity’. The case of Daniel McNaughton in 1843 made history in the English world. McNaughton had a paranoid delusional system believing that the Prime Minister, Mr. Peel, was planning to make England go back under the authority of the Pope in Rome. In his attempt to kill the Prime Minister, he mistakenly murdered his private Secretary, Mr. Drummond. McNaughton was acquitted on the grounds of insanity, but not under the rules that bear his name. The finding prompted the Queen to ask a Panel of Judges for clarification of the rules for acquittal on the grounds of insanity, which resulted in the McNaughton rules for insanity defense that are in use in most of the English world even to the present. This rule based the determination of insanity on "lack knowledge of the act."
Forensic Psychiatry has grown exponentially since Bracton’s times. Contemporary Forensic Psychiatry provides methodologies for the assessment of persons presumed to have some mental condition and who are caught in the midst of criminal or civil law proceedings. Forensic Psychiatry has benefited from four key important moments in legal-psychiatric thinking: 1. Increased knowledge of the relationship between mental illness and criminality. 2. Evolution of forensic legal operations in criminal and in civil law. 3. Developments in systems interactions. 4. A deeper understanding and concern about issues in biomedical ethics.
These four moments underlie the expansion recently seen in Forensic Psychiatry from issues entirely related to criminal prosecutions and the treatment of mentally ill offenders to many other fields of Law and mental health policy.
Relationship between Mental Illness and Criminality
Worldwide, a wider understanding of the relationship between mental states and crime has led to an increased utilization of forensic experts in courts of law at different levels of legal action. The ways in which Forensic Psychiatry and Penal Law interface are varied and numerous within the criminal process, which expands from the moment of arrest to the time a convict finishes his or her sentence and is fully released back to the community. Forensic psychiatric systems could be called upon to work hand in hand with the justice/correctional system at each stage of the criminal process. At the moment of arrest the police could divert a clearly mentally ill person to a hospital emergency for assessment and treatment if required, including possible hospitalization, or detain the person and proceed to book for an appearance before a magistrate or lower judge. The judge could keep the person in a jail pending a decision, or, depending on the case, the accused could be transferred to a higher court. At this stage the accused could be found innocent and released, an assessment could be ordered to determine fitness to stand trial or criminal responsibility (vide infra), or the person could be found not criminally responsible because of a mental condition. Finally, the person could also be found guilty and sentenced to a prison term.
The multiple entanglements between psychiatric systems and the legal system are based on the recognition in traditional legal doctrine and contemporary public policy that a population exists in which mental disorders are related to criminal behaviour. In fact, in many jurisdictions, mental health legislation makes dangerousness associated with a mental condition, or the potential to cause grievous bodily harm to self or others, the main criterion for civil commitment (Appelbaum, 1994; Arboleda-Flórez and Copithorne, 1998). Criminal Codes in most countries also assume that a relationship exists between mental states and criminal offending and that this relationship may be determinative in the outcome of a commitment hearing or criminal trial. Whether this putative relationship between crime and psychopathology is causal or one of social convenience is a matter of much controversy given some convergence between the two sets of phenomena (mental illness and criminal behaviour) and specific legal procedures that apply to mentally ill offenders.
With respect to convergence, it is important to differentiate clinical pathology from criminal behaviour. While socially abnormal behaviour should not be automatically considered a manifestation of mental illness, there are mental disorders whose very behavioural manifestations are, ipso facto, criminal offenses. For example, persons affected with sexual disorders, firesetting and compulsive stealing become criminal the moment their symptoms are expressed, because the symptom is a criminal act. In these cases, the convergence between symptom and criminality is absolute.
In many other disorders, symptoms can be expressed without necessarily breaking the law, such as in addictions, personality, or impulse control disorders. Any convergence in these disorders flows through other social and legal considerations. For example, in some countries mere possession of alcohol is an offense.
Finally, in most cases, convergence is not straightforward. An example is the presumed relationship between serious mental illnesses (such as schizophrenia or depression) and violence toward others. The vast majority of people experiencing these disorders never commit an act of violence or a criminal offense. Indeed, they are more often the victims of violence than the perpetrators.
In most countries specific legal procedures apply to persons charged with a criminal offence, but who may be also mentally ill. These procedures form part of Criminal or Penal Law, the section of the Law that deals with criminal sanctions for crimes against property or persons. As the State has an interest in protecting its citizens, breaches of the law affecting a citizen imposes an obligation on the State to find the culprit and bring him or her to justice. While the aggrieved citizen may not be seeking revenge, it is important to demonstrate that justice has been done and that perpetrators are properly punished. Criminal Law relates to regulations and sanctions the Law prescribes to lawbreakers whether for misdemeanors or felony offences and the ways in which exculpatory reasons such as mental illness could be used to minimize the punishment.
Exculpatory procedures based on the presence of a mental condition are based on the fact that there are occasions when mental illness could negate one of the two elements required by law to judge the accused. The first element is an acknowledgment by all involved that a crime has been committed, actus reus, and that the accused most probably did it. The second element is a considered decision by the Judge alone or with the help of mental health experts, that the act not only took place, but that the perpetrator had the full intention and was fully conscious of what he or she was doing at the time the act took place, besides being aware of the consequences of the act. This is known as having a guilty mind or mens rea. A forensic psychiatric assessment is usually requested if there is any doubt that the person was mentally ill at the time the offence took place, or mentally ill at the time the person appears in court.
Forensic Legal Operations in Criminal Law
There are three major areas in Criminal Law that need consideration as it pertains to the involvement of forensic psychiatrists – fitness to stand trial, criminal responsibility and dangerous offender applications.
Fitness to stand trial pertains to the condition of the accused at the time of the trial and is a legal requirement found in countries that follow the Anglo-Saxon common law system, but it is also found in other legal systems. On appearing in court to face a charge, the law presumes that everybody is fit (or mentally competent to stand trial), but if the court is presented with information that the accused may be mentally ill, it may request a psychiatric examination. If the person is found to be seriously mentally ill the court will order a transfer to a psychiatric institution for an in-patient assessment. The decision that the person is not fit to stand trial remains always on the court, but the forensic psychiatrist is expected to provide an opinion about whether the person suffers from a mental condition, and whether that mental condition affects the parameters of fitness. These parameters are rather simple; in most countries all it is required is to determine whether the person, on account of the mental condition is unable:
1. To understand the nature and object of the legal proceedings
2. To understand the possible consequences of the proceedings, or
3. To communicate with counsel.
A ruling that the accused is not fit (or competent) to stand trial triggers a decision by the court to transfer the accused to a psychiatric facility with the expectation that treatment will restore competence. The question for clinicians revolves on what parameters to use to predict restorability of competence, which relates to an adequate response to treatment.
Assessments for fitness to stand trial, or capacity for processability, are a frequent reason to request a forensic assessment. Persons who are mentally ill at the time of trial cannot be tried; the trial stops until the person improves or regains his sanity. A person cannot be tried in absentia, meaning the person has to be present, or be properly represented by counsel, at the time of the trial. Being present means both physically and mentally present because it is assumed that if the person is mentally ill, it is tantamount to not being present in the proceedings, the mind being somewhere else. To this end, the person may be remanded to a forensic facility and it is expected that, once treatment is instituted as improvement takes place, the person will be returned to court as competent and the trial will continue. As in many other forensic functions, diagnostically, the issue is not whether the person has a particular mental condition, but whether current symptoms would preclude the continuation of the trial.
Criminal responsibility is a legal construct that intends to gauge the mental condition of the accused at the time of the offence. Ingrained in most legal systems is the concept that offenders who are mentally capable at the time of trial, but who were mentally ill at the time the offence was committed, are to be managed through other dispositions than those that apply to any other regular offender. To this effect, once the issue of fitness to stand trial is decided, the next step in the process is to assess whether the accused was the perpetrator of the crime. This step ends with a finding of innocence or guilt. On the assumption that the accused was indeed the culprit the process tries then to determine a level of responsibility to ascribe for the unlawful behaviour. If the accused could demonstrate that, at the time of the offence, his or her mental faculties were impaired by virtue of mental illness, the court may find that requirements to establish a guilty mind (mens rea) have not been met and proceeds to apply insanity regulations as stipulated by the law. These regulations include the legal tests used to decide the level at which a mental condition has impacted on competence to know, to understand or to appreciate the nature of the crime with which the person is charged. A finding that the competence of the accused was severely affected leads to a declaration that he or she was "not criminally responsible because of a mental condition," or similar wording such as "not guilty by reasons of insanity."
Forensic psychiatrists are often required to advise the court about the level of criminal responsibility to be ascribed to the accused. A finding of not being criminally responsible implies that the person committed the act (actus reus), but is nonetheless, absolved in the eyes of society for not having a guilty mind (mens rea); such a finding precludes criminal sanctions. Criminal responsibility is a social construct and cannot be measured scientifically; it is only the judge or jury that can decide what level to ascribe to the accused.
In some countries the issue in law is to decide whether an accused should be considered imputable. Imputability differs from criminal responsibility in that it refers to the fact that the accused, on account of suffering from a mental condition, cannot be considered as capable of having committed the crime. The concept derives from Roman law where "demens, furiosus et mentecaptus" (demented, maniacs and mentally retarded) as well as infants below the age of seven were considered incapable of having the malice aforethought to form the intent to commit a crime. If the person was lacking malice and intent, then, he or she could not be imputed with authorship of a crime. Forensic psychiatrists are often required to arrive at these diagnostic decisions.
As in the case of fitness to stand trial, the basic element of a determination on criminal responsibility is not whether the person had a mental illness at the time the offence was committed. Rather, what is important is to determine whether such illness was severe enough so as to produce incapacity to meet the elements required to establish criminal responsibility, partially or totally. It is for the mental health specialist to evaluate whether the accused had been mentally ill at the time of the offence, but it is for the court to decide whether the mental illness had produced an incapacity that rendered the person not criminally responsible. The role of the mental health specialist is to conduct an in-depth assessment of the personality and mental condition at present and of the claims that the accused was mentally ill at the time of the offence, and, then, to gauge the severity of the incapacity that it might have caused so as to be able to advise the court appropriately.
Legislation to determine the level of criminal responsibility or similar legal concepts is found in the laws of every country. In many of the countries that follow the common law system the test of criminal responsibility follows the McNaughton Rules of Insanity or a variance of the same. The most important of these rules reads: To establish a defense on the ground of insanity it must be clearly proved that at the time of the committing of the act the accused party was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.
A decision that the accused was not criminally responsible triggers the application of special disposition measures. Legislation in many countries dictates that persons who are found not criminally responsible should be sent to special facilities "for the criminally insane" for treatment, supposedly, until the person gets better. In practice, the determination that the person has improved enough to be released to the community is vested on semi-autonomous quasi-judicial Boards, on the courts, on a political appointee, or as in some countries, on the psychiatrists at forensic wards of mental hospitals. Once sufficient improvement has been observed, the person could be released, but would be expected to follow treatment arrangements in the community with enforced compliance under condition of returning to hospital if a relapse occurs or if the person is not compliant. In some advanced mental health systems and depending on the seriousness of the offence and the severity of the mental condition, a court of law may decide not to send the accused to a hospital, but to issue a community treatment order whereby the person abides to enter into a treatment program as specified by the court and under the control of some quasi-judicial body.
Apart from very young children who are deemed not to have the necessary requirements to form a guilty mind by virtue of their emotional and neurological immaturity, everybody else is deemed to be responsible unless proven otherwise based on the presence of some mental condition. The law provides for a gradient for criminal responsibility, from none at all to fully responsible (Arboleda-Flórez and Deynaka, 1999).
Points to remember
FITNESS TO STAND TRIAL
1. Mental illness at time of trial
2. Everybody is deemed to be fit unless the contrary is demonstrated
3. There are two elements - mental illness and resulting incapacity
4. Incapacity is the determinative factor
5. Basic elements pertain to capacity to understand basic issues of law at the time of trial such as nature of the proceedings and the consequences that could flow from them, and to communicate with counsel
6. If the person is found unfit and is not dangerous, the legal proceedings could be discontinued or stayed on minor charges
7. Otherwise, the trial stops and the accused is remanded for treatment until well enough to return to trial
1. Mental illness at time of offence
2. Everybody is deemed to have mens rea unless the contrary is demonstrated
3. There are two elements - mental illness and resulting incapacity
4. Incapacity is the determinative factor
5. Basic elements pertain to mental condition at time of offence severe enough so as to render the person unable to know or to appreciate that he or she is committing a crime, or unable to form the specific criminal intent
6. The person is sent to a hospital for treatment or is placed on a community treatment order according to mental condition and seriousness of offence
7. Eventually, the person could be released from state control.
Finally, the third important function in criminal proceedings and one that requires a major involvement of forensic psychiatrists is the determination of whether a particular offender is dangerous. Dangerous offender applications demand a high level of expertise on the part of forensic experts who are expected to provide courts with technical and scientific information on risk assessment and prediction of future violence, especially dangerous sexual offending. Dangerousness determinations rely heavily on a thorough assessment of the personality of the offender, a history of violent behaviour and responses to specific scales intended to measure risk. Many clinicians are of the opinion that the probability of risk to reoffend is particularly high among certain types of personality and when the last offence is a continuation of the same pattern of escalating violent behaviour in both frequency and severity. In these applications, the focus is on a history of violent behaviour and the likelihood that it will continue in the future, not the specific diagnosis of a mental condition—although again the diagnosis of some mental disorder may be a requirement for entry into the system. Likelihood of future violence is determined through an in-depth forensic psychiatric assessment that includes thorough forensic examinations, neurological examinations, neuroimaging and the application of a series of specialized instruments in the form of tests and scales. Two of these instruments have received worldwide attention, the Hare (1991) Psychopathic Checklist (PCL-R), and the HCR-20 (History, Clinical, Risk – 20 questions) devised by Webster (1996). While the former is more appropriate for long-term predictions regarding psychopathic offenders, the latter is more in use for the management of regular mental patients in clinical settings. Despite claims to more objectivity, these instruments, like other predictive instruments that use clinical and prospective variables, rely heavily on the clinical insights and technical skills of the clinician.
Mental patients have traditionally been considered prone to violence, but results from research on whether mental illness causes violence per se, or whether violence is only associated with mental illness through a host of different variables such as age, gender, or socio-economic status has not yielded a definite answer. It is acknowledged, however, that some mental patients who suffer from particular mental conditions alone or in combination with substance abuse disorders, or comorbid with antisocial personality disorders, or those whose mental symptoms over-ride personal controls could be more violent than other mental patients, or the population at large.
The courts expect that forensic psychiatrists are in a position to provide advice on proper venues for disposition once an offender is found not fit to stand trial, not criminally responsible on account of mental illness or is deemed dangerous. The task for forensic psychiatrists in these situations is to gauge the level of systems interface in relation to different types of receiving and treating institutions. Hospitals for the criminally insane, mental hospitals for civilly committed patients, penitentiary hospitals for mentally ill inmates, as well as hospital wings in local jails, are all part of the mental health system, and their interdependency has to be acknowledged for purposes of system integration and budgeting. How mental patients are managed in prisons systems is also a major matter of concern. Deterrence, punishment, rehabilitation, retribution and incapacitation are among the reasons usually given for the need to impose a sentence. Of these, the one that would most directly involve mental health professionals is rehabilitation, especially because mental illness is rampant in prison and many jails or penitentiaries are practically extensions of the mental health system (Konrad, 2002). In particular, jails in some communities are part and parcel of the local mental health system. Estimates of prevalence of mental illness among inmates in some systems go as high as 65% in any given year. Policies of deinstitutionalization have been blamed for the large number of mental patients in prisons in that having closed the mental hospitals no alternatives have been provided for them in the community. Thus, rather than the actual policies to relocate mental patients back to their communities the real culprit seems to be improper implementation of the policies and lack of adequate resources.
Apart from regular mental conditions among prisoners many of whom having been mentally ill prior to be sentenced to a prison term, prison environments do produce special mental problems. Research on these problems has a long history. Considerable work was done in Germany during the nineteenth century on suicide in prisons, the prevalence of mental conditions among prisoners, and the influence of the prison environment as a risk factor to psychiatric illness. The term prison psychosis originated from that research; it describes an acute psychotic breakdown as a result of the highly stressful situations in the prison. Equally, members of the same school of German prison research, described Ganser Syndrome, a peculiar syndrome in which the person appears confused and psychotic and gives answers that are approximate or "past the point" of the question, such as answering that a chair has three legs instead of four. This syndrome is transitory and has been classified as a form of pseudo-dementia.
The high proportion of individuals who are seriously mentally ill in prison environments is a source of major administrative concern. Mentally ill prisoners have to be housed in an institution that is not typically mandated or funded to provide clinical services. Their needs compete with many other more pressing needs in prisons and resources have to be allocated that are taken away from other health priorities within the system such as treatment for prisoners who suffer from AIDS, hepatitis, tuberculosis, or sexually transmitted diseases. Mental patients often require specialized correctional measures to protect them from suicidal behaviours, from being abused or assaulted by other inmates, or from assaulting others. In general, mental patients in prisons require extra services and higher staff ratios, but the attention given them can never compare with the quality of care at mental hospitals or at psychiatric units in general hospitals.
Forensic psychiatrists are usually in charge of conducting assessments and providing treatment to mentally ill inmates, but their jobs continue once the inmates are released into the community. On exit from the legal-correctional system forensic psychiatrists are expected to provide expert knowledge on matters such as readiness for parole, predictions of recidivism, commitment legislation applicable to offenders about to be released, the phenomenon of double revolving doors for the mentally ill in prisons and hospitals and treatment of ex-inmates in the community.
The need for forensic psychiatric services in all these justice/correctional activities is dictated by the close relationship between the two systems that have developed over the years out of the realization that the population served by both psychiatry and corrections is often one and the same. Many ethical, political, and human rights issues arise out of these situations, but with proper controls and safeguards in the system, compassionate and enlightened programs could be developed and implemented in forensic settings and long stay mental hospitals while community alternatives such as half-way houses could be sought to replace long term institutionalization without impacting on the safety of the public.
Forensic Legal Operations in Civil Law
Civil Law is defined as the body of legal decisions, in Common Law countries, or rules and regulations in those countries that follow Romano-Germanic systems of law that govern the relationship among individuals. Ordinarily, breaches of those rules by one person against another cause conflicts that often end up in courts for adjudication. Psychiatrists and other mental health specialists are regularly required to conduct assessments with a view to determine the presence of mental or emotional problems in one of the parties. However, most issues arising out of Civil Law that require mental health assessments pertain to the individual having lost the ability to manage particular situations or to discharge particular functions. At play are two major concepts, capacity and competence. Although there is a tendency to use these two concepts interchangeably, they are not the same. In general, capacity refers specifically to the presence of physical, emotional and cognitive abilities necessary to make decisions or to engage in a course of action. Competency, on the other hand, refers more specifically to the legal consequences of not having capacity. In these definitions, "capacity" is a medical function whereas "competency" is a legal decision; while capacity refers to symptoms affecting the individual, competency refers to the impact those symptoms may have on legal and social standing. Capacity has also been defined as the ability to make an informed choice with respect to a specific decision, and competence as the ability to process and understand information and to make well-circumscribed decisions based on that understanding. As is obvious, these definitions ascribe to both concepts a legal determinism together with expected teleological consequences. Whatever the definition, however, in the end, a determination of incapacity leading to a finding of incompetence becomes a matter of social control that is used to legitimize the application of social strictures to an individual.
Assessments of capacity and competence are needed in multiple situations that range from cases when psychiatric assessments are required in order to specify the impact and emotional effects of injuries on a third party involved in a motor vehicle accident to capacity to write a will or to enter into contracts. These determinations could also apply to psychological autopsies in order to assess testamentary capacity on suicidal cases or cases of sudden death, or evaluations for fitness and incapacity to work and, of late in many countries, evaluations to determine access to benefits contemplated in disability insurance. In most of these situations the issue at hand is a determination of capacity and competence to perform some function, or the evaluation of autonomous decision making by mentally ill persons, impaired persons or those who have suffered brain damage or are affected by dementia.
The United Nations Declaration on Human Rights, Paragraph 6, states that everyone has the right to recognition everywhere as a person before the law. However, having inherent legal rights is not the same as having legal capacity to benefit from them, since this capacity may be compromised among persons suffering from mental disorders. Given the importance of being able and allowed to exercise one’s rights as an assertion of personal autonomy, any abrogation of that power generally requires a judicial decision. Hence, in most instances (medical treatment settings sometimes constituting an exception) a medical decision that a person has lost capacity enters into effect only after a legal determination of incompetence has been completed.
There is always a presumption of capacity; a person is assumed to be capable and competent to make decisions unless proven otherwise. Decision making capacity requires an ability to understand, to appreciate, and to reason about the relevant information or situation confronting the person, to make an informed choice and to be able to communicate it. Clinicians rely on their clinical knowledge, their judgment and on special scales to make these assessments. However, the presence of a major mental or physical condition does not in and of itself produce incapacity in general or for specific functions. Even in the presence of a condition that may affect capacity, a person may still be competent to carry out some functions, not just because capacity fluctuates from time to time, but also because competence is not an all or none concept. Competence is tied to the specific decision or function to be accomplished. For example, a stroke may render a person incapacitated to drive a motor vehicle and, therefore, incompetent to drive, but the person could still have the capacity to enter into contracts or to manage personal financial affairs. With time and proper rehabilitation, the person might be able to regain capacity to drive. Given that incapacity is often time-limited, findings of incompetence should be reviewed at appropriate intervals. Although the subjects of capacity evaluations should be informed of the purpose of the assessment, consent is not typically required for an evaluation to be completed. Capacity assessments are protracted and take time so it is advisable to use a screening test of capacity and to do a full assessment only if the person fails the screening test. This will reduce the burden on both the subject of the assessment and the evaluator if the screening test is passed. As is the case in criminal law, in civil law what is important is not just a diagnosis—which here may not even be required as a threshold determination—but the incapacity to execute some functions caused by the symptoms of the medical condition. For example, persons suffering from a serious bipolar disorder may during the manic behaviour enter into dubious business deals or spend foolishly the personal or the family fortunes. Under these circumstances the person could be declared incompetent to make financial decisions until the manic symptoms are brought under control. Not to take this step may leave the medical practitioner open to litigation for negligence.
The legal tests for competency are usually defined in broad statutory phrases that are, at times, difficult to operationalize. When conducting incapacity evaluations, clinicians should examine whether the patient:
a) Understands what the problem is
b) Knows what the matters under potential litigation are and why
c) Knows the facts in relation to matters being questioned (whether financial, custody of children, health, etc.) d) Is able to process information in a factual and rational way, and
e) Can function in his or her regular environment.
Clinicians should, then, assess the demands of the environment on the person, the adequacy of the sources of information, and whether more examinations or tests are required. The gist of the evaluation is not only to determine the presence of incapacity, but also to evaluate how best the person could cope under the circumstances, what aides would be required to help the person cope better, and how best to protect the interest and rights of the person. As such, competency evaluations tax the clinical knowledge of the expert as well as his ethical qualities and his knowledge of the systems and resources available in the community.
A determination of incapacity (a medical function) that could lead to a finding of incompetence (a legal decision) legitimizes the restriction on the person’s powers to make autonomous decisions. Given the serious consequences of a decision of incompetence on a person’s autonomy, clinicians have an ethical duty to base their decisions on the best available clinical evidence.
The double revolving door phenomenon whereby mental patients circulate between mental institutions and prisons has made forensic psychiatrists deeply aware of the interactions in the mental health system and the links between this system and the justice and correctional systems. By virtue of their involvement in legal matters forensic psychiatrists have developed a major interest in the drafting and the application of mental health legislation, especially on the issues of involuntary commitment that in many countries is based on determination of dangerousness (application of police power) as opposed to just a need for treatment (parens patriae) concepts. In addition, forensic psychiatrists are asked for expertise in the management of mentally ill offenders and assessment of legal protections for incompetent persons. Given that one major area of their expertise is the assessment of violence and the possibility of future violent behaviour through the evaluation of dangerousness via risk assessment and risk management methodologies, forensic psychiatrists are usually called upon to make decisions on risk posed by violent civilly committed patients. Issues of coercion and protection of human rights of the mentally ill are often major considerations to take into account during these evaluations (Arboleda-Flórez, 2008). Protection of human rights and the acceptance that deprivation of liberty should be only a matter of last recourse has led some jurisdictions to implement special laws for outpatient commitment. These regulations enjoin the patient to accept and comply with special conditions in order to remain free, such as accepting treatment in the community.
There is a close interaction between legislation and the development of adequate mental health systems, and the delivery of care whether in institutions or in the community. Mental health legislation with overly restrictive commitment clauses even for short-term commitment, deinstitutionalization resulting from the closure of old mental hospitals, changes in health care delivery systems towards short admissions to general psychiatric units and subsequent treatment in the community, and the large number of mental patients that end up in jails have created in many countries a sense that the mental health system is adrift. The growth of Forensic Psychiatry may be due to changes in the law and to a more liberal acceptance of psychiatric explanations of behaviour, but a more immediate reason may be the large number of mental patients in forensic facilities, jails, prisons, and penitentiaries. Failures of the general mental health system may, therefore, be at the root of the growing importance of Forensic Psychiatry.
Several ethical concerns arise from the involvement of forensic psychiatrists in so many social, clinical and legal areas as have been mentioned in the sections above. Much ethical debate has resulted about the propriety and ethical imperatives that might be trampled during so many forensic functions and interventions. Stone (1984), for example, felt so concerned about what could take place that he even opined that it was improper for forensic psychiatrists to appear in legal forums and that to do so would indicate that they were not acting as physicians. Waving such a threat of excommunication from the medical fold, Stone compels forensic psychiatrists to abandon all legal premises. To the contrary, Griffith (1998) felt that to do so would be a veritable calamity to vulnerable populations that could expose them to unnecessary hardships and possible abuse. Appelbaum (1997) took a more conciliatory path and sought to satisfy the queasiness and concerns manifested by Stone by producing a model based on the principles of truth-telling on entrance at the moment of the forensic encounter and subsequent respect for the person undergoing the assessment (Arboleda-Flórez, 2005).
Important as these theoretical lucubrations on the ethics of forensic psychiatry are, for purposes of this paper only three practical matters will be considered – those relating to expert testimony including the ethical virtues and the skills of the expert and the quality of the expertise, issues arising from double agentry situations and the matter of research on prisoners.
Expert testimony imposes on forensic psychiatrists an obligation to keep updated on clinical knowledge and on the latest results from research on the subject matter of the particular case. The forensic expert is considered a master in the application of the medico-legal method that entails deep knowledge of medical issues and legal operations. Preparation of a legal report or, specially, verbal presentation of evidence, is tantamount to an examination in public of the practitioner’s depth of knowledge and actualization. Expert evidence demands also that the forensic expert be up to date on issues of research and on technological aids such as laboratory tests or psychological scales that are often used to arrive at a diagnosis. Forensic practitioners should make a point of knowing in detail the scientific bases of those technologies.
Knowledge per se is no guarantee that the expert is an ethical person, as this virtue comes from other constructs in the personality make up of the practitioner, however, it is worthwhile to mention some expected virtues in the application of the medico-legal method. It is expected that the forensic psychiatric expert be aware of the importance of the expert role, the need for rigorous preparation and methodical exploration of alternative conclusions, and the need to anticipate the challenges to be presented at cross examination in court. In addition, experts should also strive to embody the following qualities:
a. Objectivity in interpreting material evidence
b. Impartiality in elucidating truth regardless of the interests of the parties in conflict
c. Veracity, regardless of social, political or legal consequences
d. Knowledge and skills in clinical evaluation
e. Analytical capacity to correlate clinical findings with the legal question
f. Common sense and application of the law of parsimony (Ockham’s razor)
g. Keen critical abilities to avoid assuming extreme positions, premature closure of alternative explanations or believing in the infallibility of one’s clinical findings
h. Excellent grounding in biological, medical and social sciences
i. Good understanding of legal concepts and terminology, and
j. Grounding and a clear understanding of the ethical conflicts in forensic psychiatry.
Ignorance of relevant medical or legal facts, inability to remain neutral, dishonesty and blindness to the ethical quagmires of medico-legal work are incompatible with the role of an expert.
Knowledge is a sine qua non condition to determine the quality of the skills the expert brings to an evaluation including being able to choose the best tools required for the assessment and striving to recognize secondary gain for the expert or for the person being evaluated. Hence, forensic psychiatrists need to verify their conclusions whenever possible via information from third parties, including witnesses, family and friends, who can describe the behaviour of the defendant or litigant, the psychiatric history, and the person’s mental state at the time in question. Efforts should be made to obtain school, military and hospital records and any other documents that could shed light on the development and the presence of symptoms and on the veracity of the client. Similarly, in a quest for objectivity in the diagnostic formulation, clinical aids to diagnosis, such as electroencephalogram, diagnostic imaging, laboratory tests and psychological tests are often indicated. The more the expert bases his conclusions on objective information, the better grounded are likely to be the diagnosis and the conclusions. Finally, quality of the expertise involves quality in the preparation and presentation of the psychiatric legal report.
Double agentry refers to the fact that forensic specialists usually see clients who are referred by some agency requesting the evaluation. The most frequent case is that the person is referred and is under some kind of coercion to attend, or expects that a report will be produced for the referring agency. Very often, the payment for the evaluation is made by the agency, or the forensic expert is on the hire of the agency. This makes it impossible not to have a double allegiance, which an ethical practitioner should openly explain to the patient right from the outset of the evaluation. It would be expected that the practitioner has cleared his involvement with the agency and requested complete independence in the way the evaluation is to be conducted and to arrive at conclusions through a systematic search for answers and to present them even if they are negative to the interest of the hiring agency. Forensic psychiatrists should always be aware that they could not trespass ethical rules no matter what the demands of the master. Less than that would make of the practitioner a simple hire gun or unscrupulous operator.
Finally, in regard to medical research among prisoners it should be kept in mind that research is an area in which major ethical transgressions have occurred throughout history. Books on medical ethics are full of examples about abuse of patients who are at the same time subjects of research, usually at the hands of their own treating physician. Abuse of prisoners as subjects of research has not been an exception. Prisoners have been seen as potential research subjects and have been taken advantage of by providing incentives amounting to trinkets or by abusing their status as a vulnerable population given their condition of subjugation and living in a situation where autonomous decision making would be questionable. Prisoners may have the capacity to make a decision to become a subject of research, but doubts could be raised about whether such decision was entirely voluntary.
An ideology of good for science as being a higher value over the deprivation and suffering of few persons seems to have been at the base of the interest to use prisoners as subjects of research. This ideology would justify the conduct of experiments on human beings without the much needed respect for their autonomy. This was the ideology that was in place until the end of the Second World War, when, under the impact of the horrors practiced by Nazi doctors (Aziz, 1976) steps were introduced to control research among prisoners and to establish ethical guidelines binding the researchers. In the United States, for example, concerns about abuse of prisoners for purpose of research led to the appointment of a National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research in 1976. Recommendations of this Commission include that only prisons characterized by a great deal of openness could allow their inmates to be involved in research, that the prisoner-research subject should enjoy the exercise a high degree of voluntariness and that prisoners should not be deprived access to experimental drugs, if so needed, on account that prisoners are a vulnerable population. This last recommendation was essential in order to strike a just balance between the protection of the prisoner as a subject of research and his or her capacity and competence to make a considered decision to participate in research. The vulnerable status of a prisoner does not prevent participation in research for as long as proper guarantees are in place to prevent abuses. The problem of prisoners becoming subjects of research gets further complicated when so many of them (as described in an earlier section) are also mentally ill. In these cases a double vulnerability will be present, mental illness that may affect capacity and competence decisions and imprisonment that may affect that ability to make them voluntarily. Prison administrators should be more vigilant and take extra-precautions to prevent possible abuse of mentally ill prisoners as subjects of research
Following a historical review to ground the development of Forensic Psychiatry, this paper has dealt with the scope of this specialty and with ethical issues confronting its practitioners. The paper has enumerated four moments in the development of legal-psychiatric thinking. The first two moments - evolution in the understanding and appreciation of the relationship between mental illness and criminality and impacts of mental illness on lawful behaviour were applied to underline the increasing scope of Forensic Psychiatry in practically all areas of Criminal Law and in a large number of situations in Civil Law. The third moment on systems interactions examined issues on the navigating of mentally ill offenders within the three systems of medicine, justice and corrections. Finally, on the last moment, pertaining to ethics, this paper dealt with issues arisen from the functions of forensic psychiatrists as expert witnesses, the problems with double agentry and the potential for abuse while conducting research on prisoners.
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