Forensic psychiatry

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Forensic psychiatry is a subspeciality of psychiatry and is related to criminology. [1] It encompasses the interface between law and psychiatry. According to the American Academy of Psychiatry and the Law, it is defined as "a subspecialty of psychiatry in which scientific and clinical expertise is applied in legal contexts involving civil, criminal, correctional, regulatory, or legislative matters, and in specialized clinical consultations in areas such as risk assessment or employment. [2] " A forensic psychiatrist provides services – such as determination of competency to stand trial – to a court of law to facilitate the adjudicative process and provide treatment, such as medications and psychotherapy, to criminals.

Contents

Court work

Forensic psychiatrists work with courts in evaluating an individual's competency to stand trial, defenses based on mental disorders (e.g., the insanity defense), and sentencing recommendations. The two major areas of criminal evaluations in forensic psychiatry are competency to stand trial (CST) and mental state at the time of the offense (MSO).

Competency to stand trial

Competency to stand trial (CST) is the competency evaluation to determine that defendants have the mental capacity to understand the charges and assist their attorneys. In the United States, this is seated in the Fifth Amendment to the United States Constitution, which ensures the right to be present at one's trial, to face one's accusers, and to have help from an attorney. CST, sometimes referred to as adjudicative competency, serves three purposes: "preserving the dignity of the criminal process, reducing the risk of erroneous convictions, and protecting defendants’ decision-making autonomy". [3]

In 1960, the Supreme Court of the United States in Dusky v. United States established the standard for federal courts, ruling that “the test must be whether the defendant has sufficient present ability to consult with his attorney with a reasonable degree of rational understanding and a rational as well as factual understanding of proceedings against him." The evaluations must assess a defendant's ability to assist their legal counsel, meaning that they understand the legal charges against them, the implications of being a defendant, and the adversarial nature of the proceedings, including the roles played by defense counsel, prosecutors, judges, and the jury. They must be able to communicate relevant information to their attorney, and understand information provided by their attorney. Finally, they must be competent to make important decisions, such as whether or not to accept a plea agreement. [3]

In England, Wales, Scotland, and Ireland, a similar legal concept is that of "fitness to plead".

As an expert witness

Forensic psychiatrists are often called to be expert witnesses in both criminal and civil proceedings. Expert witnesses give their opinions 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 [4] to Robert Simon and Liza Gold [5] and others [6] have identified teaching as a critical dimension in the role of expert witness. The expert will be asked to form an opinion and to testify about that opinion, but in so doing will explain the basis for that opinion, which will include important concepts, approaches, and methods used in psychiatry.

Mental state opinion

Mental state opinion (MSO) gives the court an opinion, and only an opinion, as to whether a defendant was able to understand what he/she 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 of the criminal nature of the 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 these three standards: [7]

"Not guilty by reason of insanity" (NGRI) is one potential outcome in this type of trial. Importantly, insanity is a legal and not a medical term. Often, psychiatrists may be testifying for both the defense and the prosecution.

Forensic psychiatrists are also involved in the care of prisoners, both in jails and prisons, and in the care of the mentally ill who have committed criminal acts (such as those who have been found not guilty by reason of insanity).

Risk management

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 psychiatric teams made up of 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 Canadian academic work being done in Ontario and British Columbia. This began with the attempt to predict the likelihood of a particular kind of offense being repeated, by combining "static" indicators from personal history and offense details in actuarial instruments such as the RRASOR and Static-99, [11] 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, and the 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 risk of sexual violence protocol from Simon Fraser University, BC.

United Kingdom

In the UK, 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 three are in England and one in Scotland (the State Hospital, Carstairs), the best known of which is Broadmoor Hospital. The other 'specials' are Ashworth hospital in Maghull, Liverpool, and Rampton hospital in Nottinghamshire. Also, a number of private-sector medium secure units sell their beds exclusively to the NHS, as not enough secure beds are available in the NHS system.

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,[ citation needed ] especially those suffering from schizophrenia. Some units also treat people with severe personality disorder or 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 this assessment most commonly leads to the use of mental health legislation to detain people in hospitals, as opposed to their getting a prison sentence.[ citation needed ]

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 regimen, as the hospitals have mostly been closed). 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. 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.[ citation needed ]

Court work (medicolegal 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 NHS. This work is generally funded by the Legal Services Commission (used to be called Legal Aid).[ citation needed ]

Canada

Criminal law framework

In Canada, certain credentialed medical practitioners may, at their discretion, make state-sanctioned investigations into and diagnosis of mental illness.[ citation needed ] Appropriate use of the DSM-IV-TR is discussed in its section entitled "Use of the DSM-IV-TR in Forensic Settings".

Concerns have been expressed [ citation needed ] that the Canadian criminal justice system discriminates based on DSM IV diagnosis within the context of Part XX of the Criminal Code. [12] 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". Critics have also expressed concerns [ citation needed ] that use of the DSM-IV-TR may conflict with section 2(b) of the Canadian Charter of Rights and Freedoms, which guarantees the fundamental freedom of "thought, belief, opinion, and expression".

Confidentiality

The position of the Canadian Psychiatric Association holds, "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, "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." [13]

An outline of the forensic psychiatric process as it occurs in the province of Ontario is presented in the publication The Forensic Mental Health System In Ontario: An Information Guide [14] published by the Centre for Addiction and Mental Health 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." 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." [15]

Of note, the emphasis in the guide is on the right to refuse participation. This may seem unusual given that a result of a verdict of "Not Criminally Responsible by reason of Mental Disorder" is often portrayed as desirable to the defence, similar to the insanity defense in the United States. A verdict of "Not Criminally Responsible" is referred to as a "defence" by the Criminal Code. [16] However, the issue of the accused's mental state can also be raised by the Crown or by the court itself, rather than solely by the defence counsel, differentiating it from many other legal defences. [17]

Treatment/assessment conflict

In Ontario, a court-ordered inpatient forensic assessment for criminal responsibility typically involves both treatment and assessment being performed with the accused in the custody of a single multidisciplinary team over a 30- or 60-day period.[ citation needed ] Concerns have been expressed that an accused may 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.[ citation needed ]

Some Internet references address treatment/assessment conflict as it relates to various justice systems, particularly civil litigation in other jurisdictions. [18] [19] The American Academy Of Psychiatry and the Law states in its ethics guidelines, "when a treatment relationship exists, such as in correctional settings, the usual physician-patient duties apply", which may be seen as contradiction. [20]

South Africa

In South Africa, patients are referred for observation for a period 30 days by the courts if questions exist as to CST and MSO. Serious crimes require a panel, which may include two or more psychiatrists. Should the courts find the defendant not criminally responsible, the defendant may become a state patient and be admitted in a forensic psychiatric hospital. [21] They are referred to receive treatment for an indefinite period, but most were back in the community after three years. [22]

Training standards

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 subspeciality 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.

See also

Related Research Articles

The insanity defense, also known as the mental disorder defense, is an affirmative defense by excuse in a criminal case, arguing that the defendant is not responsible for their actions due to an episodic or persistent psychiatric disease at the time of the criminal act. This is contrasted with an excuse of provocation, in which the defendant is responsible, but the responsibility is lessened due to a temporary mental state. It is also contrasted with a finding that a defendant cannot stand trial in a criminal case because a mental disease prevents them from effectively assisting counsel, from a civil finding in trusts and estates where a will is nullified because it was made when a mental disorder prevented a testator from recognizing the natural objects of their bounty, and from involuntary civil commitment to a mental institution, when anyone is found to be gravely disabled or to be a danger to themselves or to others.

Insanity abnormal mental or behavioral patterns

Insanity, madness, and craziness are terms that describe a spectrum of individual and group behaviors that are characterized by certain abnormal mental or behavioral patterns. Insanity can be manifest as violations of societal norms, including a person or persons becoming a danger to themselves or to other people. Conceptually, mental insanity also is associated with the biological phenomenon of contagion as in the case of copycat suicides. In contemporary usage, the term insanity is an informal, un-scientific term denoting "mental instability"; thus, the term insanity defense is the legal definition of mental instability. In medicine, the general term psychosis is used to include the presence either of delusions or of hallucinations or both in a patient; and psychiatric illness is "psychopathology", not mental insanity.

Forensic psychology is the application of psychological knowledge and methods to legal questions.

Criminal psychology, also referred to as criminological psychology, is the study of the views, thoughts, intentions, actions and reactions of criminals and all that partakes in the criminal behavior.

In United States and Canadian law, competence concerns the mental capacity of an individual to participate in legal proceedings or transactions, and the mental condition a person must have to be responsible for his or her decisions or acts. Competence is an attribute that is decision-specific. Depending on various factors which typically revolve around mental function integrity, an individual may or may not be competent to make a particular medical decision, a particular contractual agreement, to execute an effective deed to real property, or to execute a will having certain terms.

Involuntary treatment Invountary treatment

Involuntary treatment refers to medical treatment undertaken without the consent of the person being treated. In almost all circumstances, involuntary treatment refers to psychiatric treatment administered despite an individual's objections. These are typically individuals who have been diagnosed with a mental disorder and are deemed by some form of clinical practitioner, or in some cases law enforcement or others, to be a danger to themselves or to others. Some jurisdictions have more recently allowed for forced treatment for persons deemed to be "gravely disabled" or asserted to be at risk of psychological deterioration. Court approval is typically required outside emergencies, although it is widely claimed that courts often act as "rubber stamps" on such matters.

In the law of England and Wales, fitness to plead is the capacity of a defendant in criminal proceedings to comprehend the course of those proceedings. The concept of fitness to plead also applies in Scots and Irish law. Its United States equivalent is competence to stand trial.

Forensic social work

Forensic social work is the application of social work to questions and issues relating to law and legal systems. This specialty of the social work profession goes far beyond clinics and psychiatric hospitals for criminal defendants being evaluated and treated on issues of competency and responsibility. A broader definition includes social work practice which in any way is related to legal issues and litigation, both criminal and civil. Child custody issues, involving separation, divorce, neglect, termination of parental rights, the implications of child and spousal abuse, juvenile and adult justice services, corrections, and mandated treatment all fall under this definition. Forensic social worker may also be involved in policy or legislative development intended to improve social justice.

Forensic psychotherapy

Forensic psychotherapy is the application of psychological knowledge to the treatment of offender-patients who commit violent acts against themselves or others. This form of treatment allows for a therapist to potentially understand the offender and their mental state. It gives the individual providing treatment the opportunity to examine further whether the offender’s criminal behavior was a conscious act or not, what exactly their association with violent behavior is, and what possible motives could have driven them. The discipline of forensic psychotherapy is one that requires the involvement of individuals other than simply the therapist and patient. A therapist may collaborate with other professionals, such as physicians, social workers, and other psychologists in order to best serve the offenders’ needs. Whether the treatment is successful or not relies on a multitude of things, but typically ensuring that a systemic approach is taken and that all involved in the treatment process are well informed and supportive has proven to be the most effective. In addition to group work, forensic psychotherapy may also involve therapeutic communities, individual interaction with victims as well as offenders, and family work. In order for this specialized therapy to be as effective as possible, it demands the compliance of not only the patient and therapist, but of the rest of society as well. The main focus of forensic psychotherapy is to obtain a psychodynamic understanding of the offender in order to attempt to provide them with an effective form of treatment. Guidelines have been set to ensure proficiency in the field of Forensic Psychology.

Michael Mark Welner, M.D., is an American forensic psychiatrist and Chairman of The Forensic Panel. Welner is best known for his work in sensitive and complex litigation. He has acted as lead forensic psychiatric examiner in numerous criminal or court proceedings of national and international prominence, including precedent-setting trials and higher court decisions. Welner is also known for a number of innovations in forensic science, forensic psychiatry and justice, including protocols for prospective peer review in forensic medicine consultation, research to standardize an evidence-based distinction of the worst crimes, The Depravity Standard, and recommendations for upgrading forensic science assessment. He has been featured in network television news coverage of forensic psychiatry issues, has authored publications for professional and public audiences, and has contributed to emerging legislation on mental health reform.

Atascadero State Hospital, formally known as California Department of State Hospitals- Atascadero (DSHA), is located on the Central Coast of California, in San Luis Obispo County, halfway between Los Angeles and San Francisco. DSHA is an all-male, maximum-security facility, forensic institution that houses mentally ill convicts who have been committed to psychiatric facilities by California's courts. Located on a 700+ acre grounds in the city of Atascadero, California, it is the largest employer in that town. Due to security measures, DSHA and its grounds are not open to the public, and those wishing to enter the grounds must have a lawful reason to enter. DSHA does not have a medical Emergency Room, those seeking medical assistance should seek a medical hospital. Members of the general public seeking mental health assistance are referred to SLO County Mental Health. DSHA does not take voluntary admissions, only patients that are referred to the hospital by the Superior Court, Board of Prison Terms, or the Department of Corrections.

In the United States criminal justice system, a competency evaluation is an assessment of the ability of a defendant to understand and rationally participate in a court process.

Frendak v. United States, 408 A.2d 364 is a landmark case in which District of Columbia Court of Appeals decided that a judge could not impose an insanity defense over the defendant's objections.

Barefoot v. Estelle, 463 U.S. 880 (1983), is a United States Supreme Court case. The Court ruled on the admissibility of clinical opinions given by two psychiatrists hired by the prosecution in answer to hypothetical questions regarding the defendant's future dangerousness and the likelihood that he would present a continuing threat to society in this Texas death penalty case. The American Psychiatric Association submitted an amicus curiae brief in support of the defendant's position that such testimony should be inadmissible and urging curtailment of psychiatric testimony regarding future dangerousness and a prohibition of such testimony based on hypothetical data.

Paul Stuart Appelbaum is an American psychiatrist, and a leading expert on legal and ethical issues in medicine and psychiatry.

A psychiatric assessment, or psychological screening, is the process of gathering information about a person within a psychiatric service, with the purpose of making a diagnosis. The assessment is usually the first stage of a treatment process, but psychiatric assessments may also be used for various legal purposes. The assessment includes social and biographical information, direct observations, and data from specific psychological tests. It is typically carried out by a psychiatrist, but it can be a multi-disciplinary process involving nurses, psychologists, occupational therapist, social workers, and licensed professional counselors.

United States federal laws governing offenders with mental diseases or defects provide for the evaluation and handling of defendants who are suspected of having mental diseases or defects. The laws were completely revamped by the Insanity Defense Reform Act of 1984 in the wake of the John Hinckley verdict.

The following outline is provided as an overview of and topical guide to psychiatry:

A mental health tribunal is a specialist tribunals (hearings) empowered by law to adjudicate disputes about mental health treatment, primarily by conducting independent reviews of patients diagnosed with mental disorders who are detained in psychiatric hospitals, or under outpatient commitment, and who may be subject to involuntary treatment.

Involuntary commitment or civil commitment is a legal process through which an individual with symptoms of severe mental illness is court-ordered into treatment in a hospital (inpatient) or in the community (outpatient).

References

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  10. Model Penal Code, Sec. 4.01 (1)
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  17. Criminal Code, RSC 1985, c C-46, ss 672.11, 672.12.
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