Forensic psychiatry is a sub-speciality of psychiatry and an auxiliar science of criminology. It encompasses the interface between law and psychiatry. A forensic psychiatrist provides services – such as determination of competency to stand trial – to a court of law to facilitate the adjudicative process.
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Forensic psychiatrists work with courts evaluating an individual's competency to stand trial, defences based on mental diseases or defects (e.g., the "insanity" defense), and sentencing recommendations. There are two major areas of criminal evaluations in forensic psychiatry. These are Competency to Stand trial (CST) and Mental State at the Time of the Offence (MSO).
This is the competency evaluation to determine that a defendant has the mental capacity to understand the charges and assist his attorney. This is seated in the Fifth Amendment to the US Constitution, which ensures the right to be present at your trial, to face your accusers, and to have help from an attorney.
In English and Welsh law a similar concept is that of "fitness to plead".
Forensic psychiatrists are often called to be expert witnesses in both criminal and civil proceedings. Expert witnesses give their opinion about a specific issue. Often the psychiatrist will have prepared a detailed report before testifying. The primary duty of the expert witness is to provide an independent opinion to the court. An expert is allowed to testify in court with respect to matters of opinion only when the matters in question are not ordinarily understandable to the finders of fact be they judge or jury. As such, prominent leaders in the field of forensic psychiatry, from Thomas Gutheil[1] Gutheil, Thomas:The Psychiatrist as Expert Witness Second Edition 2009 from Harvard to Robert Simon and Lisa Gold [1] The American Psychiatric Textbook of Forensic Psychiatry and others[1] Sadoff, Robert Eithical Issues in Forensic Psychiatry Minimizing Harm p 102 have identified teaching as a critical dimension in the role of expert witness. The matter is a simple one: the expert will be asked to form an opinion and to testify about that opinion, but in so doing will perforce explain the basis for that opinion which will include important concepts, approaches and methods used in psychiatry.
This gives the Court an opinion, and only an opinion, as to whether a defendant was able to understand what he was doing at the time of the crime. This is worded differently in many states, and has been rejected altogether in some, but in every setting, the intent to do a criminal act and the understanding that it was a criminal act bear on the final disposition of the case. Much of forensic psychiatry is guided by significant Court rulings or laws that bear on this area which include the following three standards[2]:
"Not guilty by reason of insanity" (NGRI) is one potential outcome in this type of trial. It is important to note that insanity is a legal and not a medical term. Often there will be a psychiatrist(s) testifying for both the defense and the prosecution.
Forensic psychiatrists are also involved in the care of prisoners, both those in jails and those in prisons, and in the care of the mentally ill and dangerous (such as those who have been found not guilty by reason of insanity).
Many past offenders against other people, and suspected or potential future offenders with mental health problems or an intellectual or developmental disability, are supervised in the community by forensic kwame invented forensic psych teams containing a variety of professionals, including psychiatrists, psychologists, nurses and care workers. These teams have dual responsibilities, to promote both the welfare of their clients and the safety of the public. The aim is not so much to predict as to prevent violence, by means of risk management.
Risk assessment and management is a growth area in the forensic field, with much academic work being done in Ontario and British Columbia. This began with the attempt to predict the likelihood of a particular kind of offence being repeated, by combining "static" indicators from personal history and offence details in actuarial instruments such as the RRASOR and Static-99, which were shown to be more accurate than unaided professional judgment. More recently, use is being made also of "dynamic" risk factors, such as attitudes, impulsivity, mental state, family and social circumstances, substance use, availability and acceptance of support, to make a "structured professional judgment." The aim of this is to move away from prediction to prevention, by identifying and then managing risk factors. This may entail monitoring, treatment, rehabilitation, supervision and victim safety planning and depends on the availability of funding and legal powers. These schemes may be based on published assessments such as the HCR-20 (which incorporates 10 Historical, 5 Clinical and 5 Risk Management factors) and the RSVP (Risk of Sexual Violence Protocol) from Simon Fraser University, BC.
In Britain most forensic psychiatrists work for the National Health Service, in specialist secure units caring for mentally ill offenders (as well as people whose behaviour has made them impossible to manage in other hospitals). These can be either medium secure units (of which there are many throughout the country) or high secure hospitals (also known as Special Hospitals), of which there are three in England and one in Scotland (The State Hospital, Carstairs), the best known of which being Broadmoor Hospital. The other 'specials' are Ashworth hospital in Maghull, Liverpool and Rampton hospital in Nottinghamshire. There are also a number of private sector medium secure units, which sell their beds exclusively to the NHS, as there are not enough secure beds available in the NHS system. (There are no 'private' paying patients in Forensic Psychiatry!)
Forensic psychiatrists often also do prison inreach work, in which they go into prisons and assess and treat people suspected of having mental disorders; much of the day to day work of these psychiatrists comprises care of very seriously mentally ill patients, especially those suffering from schizophrenia. Some units also treat people with severe personality disorder, learning disabilities. The areas of assessment for courts are also somewhat different in Britain, because of differing mental health law. Fitness to plead, and mental state at the time of the offence are indeed issues given consideration, but the mental state at the time of trial is also a major issue, and it is this assessment which most commonly leads to the use of mental health legislation to detain people in hospital, as opposed to their getting a prison sentence.
Learning disabled offenders who are a continuing risk to others may be detained in learning disability hospitals (or specialised community-based units with a similar regime, as the hospitals have mostly been closed) as suffering from "Mental Impairment" in England and Wales, and without use of that term in Scotland. This includes those who commit serious crimes of violence, including sexual violence, and fire-setting. They would be cared for by learning disability psychiatrists and registered learning disability nurses (RNLD). Some psychiatrists doing this work have dual training in learning disability and forensic psychiatry or learning disability and adolescent psychiatry. Some nurses would have training in mental health also (RMN and RNLD).
Many past offenders against other people, and suspected or potential future offenders with mental health problems or a learning disability, are supervised in the community by forensic teams containing a variety of professionals, including psychiatrists, psychologists, nurses and care workers. These teams have dual responsibilities, to promote both the welfare of their clients and the safety of the public. The aim is not so much to predict as to prevent violence, by means of risk management.
Court work (medico-legal work) is generally undertaken as private work by psychiatrists (most often 'forensic' psychiatrists) as well as forensic and clinical psychologists, who usually also work within the National Health Service (NHS). This work is generally funded by the Legal Services Commission (used to be called Legal Aid).
In Canada certain credentialed medical practitioners may, and apparently at their sole discretion, make state-sanctioned investigations into and diagnosis of "mental illness". These diagnoses appear to be based at least in part, and in some cases entirely upon, the investigator's expressed perception of the validity of the subject's thoughts and beliefs. This aspect of diagnosis is manifest in the Diagnostic and Statistical Manual of Mental Disorders IV Text Revision (DSM-IV-TR) glossary definition of "delusion" which begins; "A false belief based on...", and is found on page 821 of the DSM-IV-TR and, similarly, elsewhere. Significantly the presence of "delusions" seem to form a primary criterion for the diagnosis of the majority of DSM-IV-TR "psychotic" disorders including Schizophrenia and Schizoaffective Disorder (Criterion A1 in the case of Schizophrenia). The DSM-IV-TR also states that "No laboratory findings have been identified that are diagnostic of Schizophrenia". This statement is also applied to Major Depressive episodes and Manic episodes.
The application of DSM-IV-TR criteria to the various pieces of criminal as well as federal health and provincial mental health law in Canada seems still to occur in spite of their conflict in this respect with Section 2(b) of the Canadian Charter of Rights and Freedoms, [1] which guarantees the "fundamental" "freedom of thought, belief, opinion and expression". Part VII -- General, of the Canadian Constitution Act, 1982 states that "any law that is inconsistent with the provisions of the Constitution "...(which contains the Charter of Rights and Freedoms)..."is, to the extent of the inconsistency, of no force or effect".
The potential for state sanctioned involuntary detainment and treatment exists pursuant to the Criminal Code of Canada, [2] and these health acts. The Ontario Mental Health Act, [3] for example contains references to circumstances under which involuntary admission to psychiatric facilities can occur.
However, legal involvement and involuntary detainment and treatment is not fundamental to the DSM-IV-TR nor, again according to the DSM-IV-TR, are implications of violent behavior at frequencies exceeding that of the general population attributed to those diagnosed. To a significant degree courts are in fact cautioned against the use of DSM-IV-TR diagnosis in the DSM-IV-TR introduction itself in its section entitled Use of DSM-IV-TR in Forensic Settings.
In the Canadian criminal justice system, again, in spite of the Charter Freedoms, individuals continue to be subjected to discrimination based on DSM IV diagnosis within the context of part XX.1 of the Criminal Code of Canada, [4]. This part sets out provisions for, among other things, court ordered attempts at "treatment" before individuals receive a trial as described in section 672.58 of the Criminal Code. Also provided for are court ordered "psychiatric assessments".
Confidentiality
The position of the Canadian Psychiatric Association [5] itself, stated in The Confidentiality of Psychiatric Records and the Patient's Right to Privacy(2000-21S), and [6] holds that "in recent years, serious incursions have been made by governments, powerful commercial interests, law enforcement agencies, and the courts on the rights of persons to their privacy." It goes on to state that "breaches or potential breaches of confidentiality in the context of therapy seriously jeopardize the quality of the information communicated between patient and psychiatrist and also compromise the mutual trust and confidence necessary for effective therapy to occur."
An outline of the Forensic Psychiatric process as it occurs in the Canadian Province of Ontario is attempted in the publication The Forensic Mental Health System In Ontario published by the Centre for Addiction and Mental Health, [7] in Toronto. The Guide states; "Whatever you tell a forensic psychiatrist and the other professionals assessing you is not confidential". The Guide further states; "The forensic psychiatrist will report to the court using any available information, such as: police and hospital records, information given by your friends, family or co-workers, observations of you in the hospital"[8]. Also according to The Guide;"You have the right to refuse to take part in some or all of the assessment. Sometimes your friends or family members will be asked for information about you. They have the right to refuse to answer questions too."[9].
It is noteworthy that the emphasis in The Guide is on the right to refuse participation. The adversarial tone of The Guide may seem unusual given that a result of Not Criminally Responsible by reason of Mental Disorder (NCR) verdict is often portrayed as desirable to the defense. The Insanity defense is the language used to describe the equivalent process in the United States. The language here in Canada can be confusing. In the popular sense NCR is a "defense" (for example in this page from The Supreme Court of Canada website which refers to "mental illness defense" [10]). The Criminal Code of Canada describes "defense of mental disorder" in Part I General section 16. However it is a "defense" which can be imposed by the court or the crown, not one that is sought only through application by a defendant or "the defense" in the usual sense. This process is also described in section 672.12 of The Code. Essentially, the Crown (an adversarial entity in Canadian law) or the Court itself (a neutral entity) can make an application to "defend" the "defendant" against the wishes of "the defense".
Also noteworthy is that an accused placed in a hospital setting is there presumably due to a perception at some level that there are reasonable grounds to believe that that person is ill in the first place. It is difficult to imagine then that they or those around them would not need, or at very least feel a need, to divulge information to that hospital in order to secure appropriate treatment. Indeed information about allergies, medications, past diagnosis etc. may be fundamental to the safety of any stay in custody whether there is an actual "need" for hospitalization proper, or not.
This raises the reasonable possibility that if the information in the guide is correct, and that "any information" can be used for the purpose of reporting to the court, that a dynamic of torture is set up whereby the court is apprised of information gathered from accused persons, their families, and their doctors under the premise of its necessity for the purpose of ethical medical treatment.
Treatment/Assessment Conflict
In Ontario a court ordered inpatient forensic assessment for criminal responsibility will typically involve both treatment and assessment being performed with the accused in the custody of a single multi-disiplinary team over a thirty or sixty day period. An accused may, as may any of the other potential sources mentioned, feel compelled on ethical, medical or legal grounds to divulge information, medical or otherwise, to "assessors" in an attempt to allow for and ensure safe and appropriate "treatment" during that period of custody. This to their own benefit and to that of other "patients" and the facility staff themselves. An accused placed in the custody of a forensic psychiatric practitioner or entity imbued with the dual, and conflicting, responsibilities of caregiver and assessor may be compromised for that reason. Involved parties may also be moved to provide information as a result of concern over how victims, the families on both sides, they themselves, or indeed "society" may be affected by perceived possible outcomes.
The author is at a loss to find an instance of reference to the occurrence of this dual assessment/treatment paradigm in an inpatient criminal setting without citing case law apparently covered by publication ban. The omission of statements ruling out the dynamic of assessment/treatment conflict in The Forensic Mental Health System in Ontario an Information Guide and in descriptions of various Forensic inpatient assessment units in Ontario; Whitby [11], CAMH[12], Royal Ottawa [13], Thunder Bay [14] is perhaps telling enough.
There are however abundant internet references to treatment/assessment conflict as it relates to various justice systems, particularly civil litigation in other jurisdictions including [15], [16], [17].
The American Academy Of Psychiatry and the Law does state in its ethics guidelines [18] that "when a treatment relationship exists, such as in correctional settings, the usual physician-patient duties apply." It is however not clear whether this statement refers to evaluation in a correctional setting or treatment of those living in a correctional setting independent of the involvement of the court system. Arguably the practice of psychiatry involving incarcerated persons independent of the court's interest is by definition not truly forensic psychiatry, but simply psychiatry, though it may be offered by a practitioner with forensic qualifications who happens to practice in a correctional institution.
The dynamic of assessment/treatment conflict, particularly in a court mandated inpatient setting, arguably constitutes "torture". The dangers reasonably perceived and associated with modern psychiatric treatment, and the potential dangers of non-treatment or mistreatment as a result of the lawful omission of information pertaining to an accused by the accused or by interested third parties cause an ethical dilemma. It is akin to placing a person with any dangerous illness or disease into custody, isolating them from outside treatment, and telling them, their families, their doctors, and anyone else with pertinent information, that if they give that information, which they may reasonably feel is vital to management of that disease, that that information can and will be used to produce a case against that person in a court of law.
Notably the experience of torture applies not only to an accused but potentially to third parties such as witnesses, families, friends, associates, doctors, caregivers, police, and even victims. Any party from which information relating to the accused or alleged crime may be collected is vulnerable to the dynamic. The process thus appears to allow these parties to suffer torture as described in section 269.1(1)(a)(i) of the Criminal Code of Canada which states "torture" means any act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person (a) for a purpose including (i) obtaining from the person or from a third person information or a statement. The United Nations Convention Against Torture [19] provides a similar set of criteria. The condition of being tortured set out in these texts seems also to extend to members of the forensic mental health and Justice community itself faced with the conflicting demands of ethical medical care and the precedent of court mandated assessment in an environment that does not separate these two roles.
Outcomes
With a finding of "Not Criminally Responsible on Account of Mental Disorder" as described in section 672.34 of the Criminal Code lifelong restrictions on freedom, mandatory "treatment", and indefinite detention subject to periodic non-judicial review appear possible well beyond the scope of set limits for detention of those found to be criminally responsible for the same or even much more serious offenses. Section 672.12 of the Criminal Code states "The court may make an assessment order at any stage of proceedings against the accused of its own motion, on application of the accused or, subject to subsections (2)and (3), on application of the prosecutor" implying that the test is not universally applied.
Some practitioners of forensic psychiatry have taken extra training in that specific area. In the United States, one year fellowships are offered in this field to psychiatrists who have completed their general psychiatry training. Such psychiatrists may then be eligible to sit for a board certification examination in forensic psychiatry. In Britain one is required to complete a three-year sub-speciality training in forensic psychiatry, after completing one's general psychiatry training, before receiving a Certificate of Completion of Training as a forensic psychiatrist. In some countries general psychiatrists can practice forensic psychiatry as well. However, other countries, such as Japan, require a specific certification from the government to do this type of work.
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