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A number of definitions of forensic psychiatry are considered, looking at the development of the concept and its practice in the USA, Canada, Britain, and Europe. The relationship between criminal law, civil law, and forensic psychiatry is traced. The author also considers the legal regulation of psychiatry, the special clinical skills needed (particularly in evaluating and treating violent patients), and the likely future organization and direction of the field.
- Forensic Psychiatry Definition
- The Concept
- Criminal Law and Forensic Psychiatry
- Civil Law and Forensic Psychiatry
- The Legal Regulation of Psychiatry and the Forensic Psychiatrist
- Special Clinical Skills of the Forensic Psychiatrist
- Correctional Psychiatry
- Organization and Future of Forensic Psychiatry
Forensic Psychiatry Definition
A number of definitions of forensic psychiatry must be considered. The American Academy of Psychiatry and the Law (AAPL) (1985) endorses the definition of forensic psychiatry adopted by the American Board of Forensic Psychiatry Incorporated which is:
Forensic Psychiatry is a subspecialty of psychiatry in which scientific and clinical expertise is applied to legal issues in legal contexts embracing civil, criminal, correctional or legislative matters: forensic psychiatry should be practiced in accordance with the guidelines and ethical principles enunciated by the profession of psychiatry.
In the preface to the British textbook of forensic psychiatry, its field of operation is defined as
the overlap, interface, and interaction of psychiatry and the law in all its aspects; criminal behaviour, civil litigation, family law, the diagnosis, care and treatment of psychiatric patients where the disorder is associated with abnormalities of behaviour, legislation and numerous other problems such as the management of violence in the study of sexual deviation.
It adds that
forensic psychiatry continues to be concerned primarily with mentally disordered offenders, but now encompasses a wide range of offences and gives much more prominence to diagnosis, management and treatment in prison, hospital or the community using the skills of psychologists, nurses, social workers, and probation officers in addition to psychiatrists.
The Canadian approach to forensic psychiatry mirrors the British definition as is seen in the recent application for subspecialty status by forensic psychiatry under the auspices of the Canadian Academy of Psychiatry and the Law. The goal of forensic psychiatry is defined as
promoting the mental health of Canadians involved in legal matters. We aim to provide a functional interface between psychiatry and the law and to improve Canadian society as a whole through early intervention programs, better diagnosis and treatment and ultimately a reduction in offending.
In twentieth-century Europe, forensic psychiatry has generally centered on advances in the fields of neurology, psychiatry, and sciences related to these disciplines. In general terms, although there is no single definition of forensic psychiatry in Europe, it would tend to follow the British and Canadian approaches. In summary therefore, as we move into the twenty-first century there appears to be a convergence of the American definition of forensic psychiatry with the British, Canadian, and European definitions which relate to the evaluation and treatment of the mentally abnormal offender while at the same time being involved in the psychiatric assessment (for legal purposes) of fitness to stand trial, criminal responsibility in forensic psychiatry dealing with criminal matters, and similar assessments involving the civil aspects of the law. As we approach the twenty-first century, forensic psychiatry in all parts of the world appears to be moving and establishing its roots as a medical specialty and a subspecialty of psychiatry. Even though the medical roots are emphasized, it is quite clear that the forensic psychiatrists must be familiar with basic issues in law.
The forensic psychiatrist needs to be an expert clinician as well as being well versed in law and psychiatry as it applies in the jurisdiction where he or she lives. Law is understood to encompass criminal, civil, and mental health law. In medicine as well as the social sciences there is an increasing number of attempts to complete research studies involving large samples in order better to define the characteristics of disease and aberrant as well as normal behavior. This has led to progress in many areas including forensic psychiatry. This allows the individual to be classified according to whether they have certain clinical and other characteristics in common with a certain reference group. An estimate of the individual’s personality characteristics can be measured against a reference sample. The difficulty in forensic psychiatry is that the legal system looks at unique characteristics of a given individual before the courts, rather than any theoretical concept of how he or she may fit a given reference group. This can potentially create a conflict where the scientific aspect of forensic psychiatry could be seen as more prejudicial than probative in the context of the legal system.
The development of forensic psychiatry in Britain, Europe, and the United States was based on historical events in the eighteenth and nineteenth centuries. In Britain the writings of Sir Mathew Hale and the trials of Arnold, Ferris, Hadfield, Oxford, and McNaughton were major landmarks in the recognition of forensic psychiatry. The development of the Bethlem Hospital and later Broadmoor as special facilities for the criminally insane were also fundamental to the growth and development of forensic psychiatry. This was extended to other facilities such as the special psychiatric facilities at Rampton and Parkhurst in the early part of the twentieth century.
The development of forensic psychiatry in Europe followed a similar path. Forensic psychiatry emerged from events in the eighteenth and nineteenth centuries. The French Revolution brought to light documents about prisons, workhouses, and civil hospitals being used to detain members of the public. This was directed specifically to the way and rationale for the detention of persons who had been found insane. Concerns over the method of detention led to pressure for scientists of the day to define insanity more precisely. The influence of religion declined and this allowed the scientific roots of modern clinical psychiatry to develop. Philippe Pinel had an enormous influence in his Medico-Philosophical Treatise on Mental Alienation or Mania, which was rapidly translated into English and German. This led to a system of classifying mental disorders that was soon adopted in Europe and England. This helped in the development of forensic psychiatry as it brought more consistency to the testimony in insanity hearings before the courts. Esquirol, Morel, Lombroso, Krafft-Ebing, and others contributed to these important advances. As in Britain, special institutions for the criminally insane were developed and further research occurred in these institutions.
The United States saw a similar development with Benjamin Rush delivering the first lecture on forensic psychiatry under the guise of medical jurisprudence. The lecture covered topics ranging from civil incompetence caused by psychiatric disorder, and financial incompetence, to mental disorder and criminal responsibility. Rush was followed by Beck who in 1823 published Elements of Medical Jurisprudence. He referred to British and French psychiatry as well as Benjamin Rush in his book. Isaac Ray followed Rush and Beck and published the A Treatise on the Medical Jurisprudence of Insanity in 1838. This was used to defend Daniel McNaughton. Ray’s approach in which he carefully studied the law and the judicial opinions of the day – in particular, anything in the law that obstructed the psychiatrically ill (the insane) being able to receive treatment. He became the superintendent of the Maine Insane Asylum and later the Butler Hospital. Perhaps most importantly he was one of the original founders of the American Psychiatric Association, and was its President from 1855 to 1859. In 1869 Ray went on to write a paper Confinement of the Insane that has remained fundamental to forensic psychiatry throughout the twentieth century.
In the first place, the law should put no hindrance in the way of the prompt use of those instrumentalities which are regarded as the most effectual in promoting the comfort and restoration of the patient. Secondly, it should spare all unnecessary exposure of private troubles and all unnecessary conflict with popular prejudices. Thirdly, it should protect individuals from wrongful imprisonment. It would be objection enough to any legal provision, that it failed to secure these objects, in the completest manner.
Highly significantly, Quen writing in The Principles and Practices of Forensic Psychiatry (1990) reports ‘These elements remain necessary, valid, and unachieved in America today.’
As outlined above forensic psychiatry was fundamental to the development of psychiatry in the eighteenth and nineteenth centuries and was adopted by the founders of British, European, and American psychiatry as part of their role to promote psychiatry as a medical specialty.
Criminal Law and Forensic Psychiatry
This involves fitness-to-stand-trial evaluations and assessments for criminal responsibility. It involves the forensic psychiatric assessment of mentally abnormal offenders. The forensic psychiatrist is, by virtue of his or her professional training, an expert in psychiatry and specifically in mentally abnormal offenders. This expertise is applied to legal matters such as fitness to stand trial and criminal responsibility. The challenge to the forensic psychiatrist is that the traditional doctor–patient relationship does not exist under these circumstances. The traditional aims of psychiatry of treating or helping the patient are also not obvious and may even be contradicted. The definition of forensic psychiatry by the well-known American forensic psychiatrist Dr Seymour Pollack (1974) addresses these contradictions. Pollack defined forensic psychiatry thus:
forensic psychiatry is limited to the application of psychiatry to evaluations for legal purposes. Psychiatric evaluation of the patient is directed primarily to the legal issues in which he is involved, and consultation is concerned primarily with the ends of the legal system, rather than the therapeutic objectives of the medical system.
Pollack is correct in terms of evaluations for fitness to stand trial and criminal responsibility. In the former, the initial role of psychiatric evaluation is to establish the diagnosis, from the standpoint of either a medical illness or a psychiatric disorder affecting the person’s mental functioning. Once this has been established the next task for the forensic psychiatrist is to assess whether the degree of disorder present affects the person’s capacity to proceed to trial. The legal basis may vary slightly between jurisdictions but all are similar and would be analogous to Section 2 of the Criminal Code of Canada, which defines ‘unfit to stand trial’ as follows:
unfit to stand trial means unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to
understand the nature and object of the proceedings
understand the possible consequences of the proceedings, or
communicate with counsel (Section 2 Criminal Code of Canada 2000).
The process is clearly conducted for a legal purpose and, arguably, not necessarily in the person’s best interest, as it may mean finding them fit for trial which may in turn result in a guilty verdict and possibly lengthy incarceration in a correctional setting. Alternatively, if they were found unfit and remained unfit, while they would still be incarcerated, they would probably be detained in a hospital setting. In Canada and most other jurisdictions, a finding of unfitness means that a judicial hearing would follow as to whether psychiatric treatment would render the individual fit to stand trial. In Canada this could result in a treatment order issued by a judge, ordering psychiatric treatment (most commonly antipsychotic medication) to render the person fit to stand trial. This can be done independently of the person’s capacity to consent or refuse psychiatric treatment.
An assessment of criminal responsibility involves judging whether the person’s mental status at the time the crime took place rendered him or her incapable of appreciating the nature of their actions as well as knowing whether their actions were wrong. It is beyond the scope of this research paper to go into criminal responsibility in detail as the legal basis varies considerably in different jurisdictions. This particularly true in the United States where the criminal law is under state jurisdiction and therefore each state varies in terms of what it uses as the legal basis for a finding of not criminally responsible on the basis of mental disorder. The most commonly used standard in Western countries is the McNaughton Test or some modification of the test. In recent years a number of American states have either abolished or severely limited the application of ‘insanity’ (mental disorder) to reduce the mens rea component of criminal responsibility. In order to be criminally responsible for a crime the state must prove the accused committed the unlawful act (actus reus) and that they also had the intent to commit the crime (mens rea). Mental disorder if present at the time the crime was committed can negate mens rea, leading to a finding of ‘not guilty by reason of insanity,’ not criminally responsible on the basis of mental disorder, or guilty but mentally ill. Such a verdict usually results in confinement in a forensic psychiatric facility until the acquitee is regarded as having recovered and no longer being dangerous to the community at large. In other cases, a mental disorder may result in a diminishing of criminal responsibility, allowing the accused to be found guilty of a lesser offence carrying a less severe penalty. This is seen in situations where a homicide has been committed and the individual suffered from a mental disorder at the time of the homicide. The degree of mental disorder is regarded as not sufficient to negate mens rea but to reduce it. This could result in a finding of manslaughter as opposed to murder where the intent to kill was reduced although the accused was still criminally responsible for the death of the victim. The original McNaughton Test was strictly a cognitive test. In its original form it was: To
establish a defence on the grounds of insanity, it must be clearly proved that at the time of committing the act, the party accused 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.
(Quoted in Hunter and MacAlpine, 1963.)
Various modifications of the original McNaughton Test have occurred in the United States and elsewhere. Themost important of these has been the adoption, in the United States, of the American Law Institute Test (ALI Test), which includes both cognitive and volitional aspects. To complicate things even further the actual legal interpretation of the meanings of the various tests of criminal responsibility is subject to case law. This means the interpretation may change, depending on a specific interpretation by a particular judge in a specific court case that is upheld by various appeal courts. Forensic psychiatrists who act as expert witnesses in cases of criminal responsibility based on mental disorder are therefore becoming involved in a very complicated process where they have to use their psychiatric skills initially to establish a psychiatric or medical diagnosis. Drawing on the observations of others as well as the medical history of the accused, they must establish, by a process of reconstruction, whether the disorder was present at the time of the offence. If it was present, they must assess its degree or severity and how that would affect the operating mind of the accused both cognitively and possibly volitionally. Then they must form an opinion with reference to the legal test for criminal responsibility in the particular jurisdiction where the trial is being held. He or she will need a working knowledge of the case law interpretations as they apply in the specific jurisdiction and in the specific case. Finally, as expert witness he or she must understand the facts of the case as they emerge at the time of the trial and be able to incorporate them into the opinion being rendered.
In addition to criminal responsibility and fitness to proceed with trial, forensic psychiatrists are also involved in the sentencing of mentally abnormal offenders. Here the role of an expert is to address the third principle of sentencing, which is rehabilitation (the first two being retribution and deterrence). In certain jurisdictions this may be the most prominent role for the forensic psychiatrist as it is used to mitigate the sentence while at the same time allowing the judge to direct treatment in a correctional facility for a psychiatric disorder. It therefore provides a link between forensic psychiatry and correctional psychiatry. This linkage varies in different jurisdictions and countries according the degree of development of forensic psychiatry and the availability of treatment resources in the correctional system. A highly contentious issue related to sentencing is the participation of forensic psychiatrists in the death penalty process in the United States, including pretrial assessment, the sentencing phase, the determination of competence to be executed, and most controversially the assessment of restoration of competence to be executed as a result of psychiatric treatment. Most psychiatrists but perhaps more forensic psychiatrists have to give expert evidence in court (Rix, 2011).
Civil Law and Forensic Psychiatry
This branch of forensic psychiatry involves psychiatric malpractice; psychiatric disability determinations; personal injury evaluations; testamentary capacity and guardianship; and family law matters, including parental competence and child custody evaluations. Included here is the specialty of the child and adolescent forensic psychiatrist. These individuals must combine the skills of two psychiatric subspecialties, namely, child and adolescent psychiatry, and forensic psychiatry. In some university divisions of forensic psychiatry these skills are available through a family court clinic. This clinic would receive consultations from the family court system to evaluate parental competence in child abuse and neglect cases and also assist in determining the best interests of the child in divorce custody cases. Family court clinics have also traditionally provided evaluation of young offenders. The evaluation of young offenders, principally adolescents, requires the clinical skills and experience necessary for evaluating children and adolescents. The importance of these dual skills cannot be underestimated and at times has called for the recognition of a sub-subspecialty of child and adolescent forensic psychiatry in some countries.
Testamentary capacity may be a relatively small component of forensic psychiatry, but there is no doubt as to its complexity and the special skills necessary for these retrospective evaluations and being able to communicate the evaluation to the legal authorities.
The Legal Regulation of Psychiatry and the Forensic Psychiatrist
The legal regulation of psychiatry involves informed consent and competence; the right to refuse psychiatric treatment and the right to psychiatric treatment; psychiatric hospitalization and involuntary civil commitment; outpatient civil commitment; confidentiality; the duty to warn or protect against professional misconduct, including the impaired physician, competence to practice, and professional sexual misconduct. These are areas of psychiatry and the law where the average psychiatrist also needs to develop skills and competence and are, therefore, not an exclusive area of practice for the forensic psychiatrist. The forensic psychiatrist, however, contributes special skills and training in the legal system, and the skill to be a competent expert witness. This means their role is to assist the non-forensic psychiatrist by consultation and advice and, in the more complex cases, forensic psychiatric expertise may be desirable.
Special Clinical Skills of the Forensic Psychiatrist
A wide range of special clinical skills is unique to the forensic psychiatrist. Special skills in evaluating and treating violent psychiatric patients are a fundamental requirement for all forensic psychiatrists. This is also expanded to include the assessment of the danger posed by an offender and risk assessment, as well as the risk management of violent mentally abnormal offenders. Associated with these clinical skills are skills in assessing antisocial personality disorder as well as impulse control disorders. Because of the association between organic brain dysfunction and impulsivity and violence, forensic psychiatrists need to develop skills in assessing the neuropsychiatric aspects of psychiatric conditions that can result in violence or can affect competence. They also need to be able to evaluate and treat the most severe and violent major mental disorders. Forensic psychiatrists must develop special skills in evaluating malingering and the use of hypnosis. The forensic psychiatric aspects of certain psychiatric disorders (e.g., multiple personality disorder) are also within the skill set of the average forensic psychiatrist. The assessment and treatment of sexual deviation is also a required skill. In addition assessing capacity to consent becomes important (Zimond, 2013) although all psychiatrists are expected to do this.
The strict definition of correctional psychiatry is ‘psychiatry practiced within a correctional system.’ Broader definitions would include any agency of social control that is involved in the treatment and rehabilitation of adult or juvenile offenders. These populations have significant psychiatric morbidity and clearly would benefit from psychiatric intervention and this had led to a growth of correctional psychiatry in the last few decades. There is a close relationship between correctional psychiatrists and forensic psychiatrists with correctional psychiatric programs often being outreach programs of university departments of forensic psychiatry (as, for example, in Canada).
Organization and Future of Forensic Psychiatry
This is a subject of debate in North America at the beginning of the twenty-first century. There is a consensus that the future growth and development of forensic psychiatry must lie within the field of medicine as a subspecialty of psychiatry. This is already well established in general terms in Canada and Europe. If we accept this consensus, some comment as to the ideal forensic program is warranted. This author strongly endorses the subspecialty status of forensic psychiatry as a critical component of its future development. This implies that the ideal forensic program would be an academic division within a university department of psychiatry. In turn, this would mean that education, clinical training, and research would be fundamental components of the program. General psychiatric residents should be required to do a rotation as part of their residency requirement. As the largest interface between medicine and the law is between psychiatry and the law, it should be part of the basic training of all psychiatric residents. It is almost impossible for the average psychiatrist to go through his career without some interaction with law and psychiatry tribunals, the criminal justice system, or the civil legal system.
An ideal program would provide fellowship training in forensic psychiatry in an accredited program for a minimum of one year. The forensic clinical program should have a medium or maximum inpatient assessment unit to provide pretrial evaluations of fitness and criminal responsibility. In addition, inpatient and outpatient facilities are required for the treatment and rehabilitation of individuals who have been found unfit to stand trial or not criminally responsible on the basis of mental disorder. The length of stay should allow for both acute and chronic care so a cautious approach to treatment and rehabilitation would prevail. There also need to be outreach programs to correctional facilities and an active participation in pretrial diversion programs. In an ideal situation, specialized clinics for the assessment and treatment of sexual deviation, and aggression and impulse control disorders should also be present. A family court clinic with child and adolescent forensic psychiatrists on the staff should also be included. A multidisciplinary team approach to assessment and treatment is essential. Research into all aspects of forensic psychiatry is critical for its future growth and the development of its profile as a medical subspecialty.
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