FORENSIC PSYCHIATRY

PRESENTER – Dr. Sriram.R, 3Rd year MD Psychiatry

CHAIRPERSON – Dr. Arul Saravanan, Assistant Prof of Psychiatry

DIKE – GREEK GODDESS OF LAW

WHAT IS LAW? Law is generally a system of rules which are enforced through social institutions

to govern behavior. There is no universally accepted definition of law.

Human being is a civilized social animal.

Civilization came with certain requirements one of which is regulation of behavior for security, peaceful coexistence and maintenance of some order in society.

Law and governance came into picture to fulfill this requirement.

Health was desired for happiness and well-being and that could happen through prevention and treatment of diseases. Medicine was invented to fulfill this requirement.

The mental component of health has been there in medicine since ancient times and the specialty of Psychiatry developed gradually in the course of time.

WHAT IS FORENSIC PSYCHIATRY? Subspecialty of psychiatry which deals with the application of psychiatric

knowledge to legal issues (Psychiatry in law) and application of legal knowledge to psychiatric issues (law in psychiatry)

Law can be divided into 2 branches –

Criminal law – Defines certain acts as offences against the state and in doing so makes them punishable. Enforced by, or on behalf of the state

Civil law – Actions are brought by individuals to establish their rights against another person, and not by the state.

FORENSIC PSYCHIATRY

Psychiatry in criminal law.

Psychiatry in civil law.

Law and psychiatric problems of children.

Law in relation to organ transplantation.

Certification in psychiatry.

Indian laws relating to disability.

Disability assessment.

Psychiatrist as expert witness.

Ethics and law.

Human rights and privileges of mentally ill persons.

Law in psychiatry.

PSYCHIATRY IN CRIMINAL LAW

HISTORY Corpus Juris Civilis – Insane person is compos mentis non est (does not have control of

his mind or non-compos mentis)

Henry de Bracton – 1265, devised “wild beast test” Crime is not committed unless a will to harm is present, and intent is lacking in children and mad men.

1349 – Giovanni was exculpated on grounds of insanity

Constitutio Criminalis Carolina – Published in Germany in 1532, recognized that homicide was not punishable if offender was deprived of his understanding.

HISTORY

1553 – Fitz-Herbert

17th century – Sir Matthew Hale – Understanding pertained to what is right and wrong (test). Recognised insanity could be partial or limited. Allowed for 2 verdicts –

1. Not guilty

2. Committed the act but was non-compos mentis

Paulus Zacchias, the personal physician of the Pope in 17th century declared that physicians should have competence in pathological mental states called amentias. Regarded as father of Forensic psychiatry.

First important case with regard to criminal responsibility came in 1800 (Hadfield case)

HADFIELD CASE

James Hadfield or Hatfield (1771/1772 – 23 January 1841) attempted to assassinate George III of the United Kingdom in 1800 but was acquitted of attempted murder by reason of insanity.

Hadfield's early years are unknown but he was severely injured at the Battle of Tourcoing in 1794. Before being captured by the French, he was struck eight times on the head with a sabre

On the evening of 15 May 1800, at the Theatre Royal, Drury Lane, during the playing of the national anthem, Hadfield fired a pistol at the King standing in the royal box but missed. Hadfield was tried for high treason and was defended by Thomas Erskine

HADFIELD CASE

The Criminal Lunatics Act 1800 (39 & 40 Geo 3 c 94) was an Act of the Parliament of Great Britain that required and established a set procedure for the indefinite detention of mentally ill offenders. It was passed through the House of Commons in direct reaction to the trial of James Hadfield, who attempted to assassinate King George III

Hadfield had developed a bizarre delusion that God was going to destroy the world and the only way to prevent it was to sacrifice his own life.

The verdict of not guilty was secured.

MCNAUGHTEN CASE

Scottish woodturner who assassinated English civil servant Edward Drummond while suffering from paranoid delusions.

On the afternoon of 20 January 1843 the Prime Minister's private secretary, civil servant Edward Drummond, was walking towards Downing Street from Charing Cross when M'Naghten approached him from behind, drew a pistol and fired at point-blank range into his back.

M'Naghten appeared at Bow Street magistrates' court the morning after the assassination attempt. He made a brief statement in which he described how persecution by the Tories had driven him to act: The Tories in my native city have compelled me to do this. They follow, persecute me wherever I go, and have entirely destroyed my peace of mind... It can be proved by evidence. That is all I have to say

MCNAUGHTEN CASE

Both defense and prosecution agreed that M'Naghten suffered from delusions of persecution. The prosecution argued that in spite of his "partial insanity" he was a responsible agent, capable of distinguishing right from wrong, and conscious that he was committing a crime.

The verdict in M'Naghten's trial provoked an outcry in the press and Parliament. Queen Victoria, who had been the target of assassination attempts, wrote to the prime minister expressing her concern at the verdict, and the House of Lords revived an ancient right to put questions to judges.

MCNAUGHTEN RULE

Five questions relating to crimes committed by individuals with delusions were put to the 12 judges of the Court of Common Pleas. Mr Justice Maule declined to answer and Chief Justice Tindal delivered the unanimous answers of the other 11 to the House of Lords on 19 June 1843. The answer to one of the questions became enshrined in law as the M'Naghten Rules and stated:

To establish a defence on the ground 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 that what he was doing was

wrong.

‘ACTUS NON FACIT REUM, NISI MENS SIT REA’

(An act does not make a person guilty unless his mind is guilty).

INDIAN PENAL CODE (ACT 45 OF 1860, IPC):

Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.

If there is a CRIMINAL TRIAL, the legal matter is between the State and a person who can be mentally disordered.

Situations of significance in relation to psychiatry in criminal law:

Criminal responsibility for serious crimes (e.g. murder): IPC(Act 45 of 1860; IPC); ‘Partial insanity’: Section 84, IPC; Section 335 CPC; Intoxication (forced or without knowledge): Sections 85 and 86 IPC. Competency to stand trial and subsequent procedure: Act 2 of 1974: CPC.

Consent: Section 90 IPC, Section 89 IPC

Suicide: Section 309 IPC, Section 84 IPC.

Miscellaneous crimes:

Unnatural sex offences-IPC, Section 377.

Paraphilias- e.g. exhibitionism -IPC Section 294

Affrays- Disturbances caused by fighting etc. in public places- IPC, Section 159.

Misconduct in public while drunk-IPC, Section 510.

PSYCHIATRY IN CIVIL LAW

Situations of significance in relation to psychiatry in civil law:

Contract - It’s validity. Indian contract act (act 9 of 1872).

Marriage - Nullity, restitution of conjugal rights, judicial separation, divorce. Special marriage act, 1954 (applicable to all irrespective of religion), different marriage and divorce acts for different religions: Hindu, Muslim, Parsi, Christian; Family courts act, 1984; Domestic violence act, 2005.

Testamentary capacity: Indian succession act,1925; Hindu Succession Act(amendment 2005); Muslim Personal Laws; Indian Registration Act1908; Various state amendments of Hindu Succession act.

Adoption: Hindu Adoption and Maintenance Act(Act 78 of 1956).

Right to vote and stand for election: Act 326 and act 102 of constitution of India.

Witness: Indian evidence act, 1872.

Torts: Common legal principles are applied.

Civil proceedings: Regarding civil suits, guardianships etc.

Driving: Road traffic act and driving license act of India.

LAW AND PSYCHIATRIC PROBLEMS OF CHILDREN

Rights of Children clearly mentioned in Convention on the same by General Assembly of United Nations, Resolution 44/25 of 20 November 1989.

Relevant Indian Laws:

The persons with disabilities(equal opportunities, protection of rights and full participation) act, 1995. Provides for prevention and detection of disabilities, education, employment, non-discrimination, research and manpower development, affirmative action, social security and grievance redress of people with disabilities.

Juvenile justice (care and protection of children) act, 2000. Enacted by the parliament for to provide for the care, protection, development, rehabilitation and social integration of delinquent juveniles and for the adjudication of certain matters relating to, and disposition of, delinquent juveniles.

The national trust for the welfare of persons with autism, cerebral palsy, mental retardation and multiple disabilities act, 1999.

LAW IN RELATION TO ORGAN TRANSPLANTATION

Transplantation of human organs act, 1994.

Transplantation of human organs rules, 1995.

Transplantation of human organs (amendment) act, 2011.

Transplantation of human organs and tissues rules, 2013.

The acts and rules make it mandatory for every proposed live voluntary donor to undergo psychiatric evaluation by a psychiatrist appointed by authorization committees at hospital, district and state levels. The authorization committee has to mention reasons for approval/rejection of application of every voluntary donor in a prescribed form. One of the conditions mentioned for approval is:

‘psychiatric clearance is mandatory to certify the applicant’s mental condition, awareness, absence of any overt or latent psychiatric disease and ability to give free consent.’

CERTIFICATION IN PSYCHIATRY

Medical certificate for Involuntary Hospitalization. Certificate for invalidation from service (Unfitness). Treatment certificate. Mental fitness certificate. Certificate for leave and fitness to resume duties. Certification for mental illness for Government benefits. Certification for disability.

INDIAN LAWS RELATING TO DISABILITY

Mental health act, 1987. Mentions provision for rehabilitation activities in psychiatric hospitals and about licensing of convalescent homes for mentally ill persons.

Rehabilitation Council Act of India, 1992. Deals with development of manpower for providing rehabilitation services. Handicapped in this act means a person who is visually handicapped, hearing handicapped, suffering from locomotor disability or suffering from mental retardation.

Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) (PWD) Act, 1995. Came into force in 1995 with the purpose of providing equal rights to disabled persons and to protect their rights and full participation. Seven conditions recognized by this act: blindness, low vision, leprosy-cured person, hearing impairment, locomotor disability, mental retardation, mental illness.

National Trust for welfare of persons with autism, cerebral palsy, mental retardation and multiple disabilities act, 1999. Has provisions for legal guardianship.

DISABILITY ASSESSMENT

Disability has been defined as any restriction or lack of ability to perform an activity in the manner within the range considered normal for a human being. Disability can be temporary or permanent and can be certified accordingly.

Disability assessment using IDEAS(Indian Disability Evaluation and Assessment Scale) developed by the Rehabilitation Committee of Indian Psychiatric Society, December 2000:

Items in IDEAS: self-care, interpersonal activities(social relationships), communication and understanding, work.

It categorizes disabilities from no disability to profound disability. It can be used for evaluation of four mental illnesses: schizophrenia, bipolar disorder, OCD, dementia.

Disability assessment schedule (WHO-DAS, 1988) is a well validated but research oriented instrument for assessment of disability.

ASSESSMENT OF DISABILITY IN PERSONS WITH MENTAL RETARDATION (ADPMR) :

Developed for assessment of disability in mentally retarded children.

Items-Perceptual motor, self-care, communication and social, academic, occupational.

Categorizes disability from no disability to profound disability.

For the purposes of welfare benefit, cut-off of disability is 40%.

PSYCHIATRIST AS EXPERT WITNESS

Indian Evidence Act, 1872: Common witness, Expert witness.

Psychiatrist in Court-as a common witness, as a professional witness, as an expert witness, as a defendant.

Expert witness may be summoned by: Prosecution, defense, judge or tribunal.

Non-testifying expert versus testifying expert.

Summons is issued by Registrar of the Court to appear as witness.

Attending Court is mandatory except in rare specific circumstances.

Courts rely on oral evidence by the witness and documental evidence.

Preparation of testimony.

Appearance in court - to assist Court in dispensation of justice.

Order of examination of witness: Examination in chief, cross examination by opposing lawyer, re-examination by first party.

Court verdict is not bound by expert’s testimony.

Expert witness is liable for negligence and perjury.

There is a presumption in favor of sanity and the contrary has to be proved to the satisfaction of the court.

There is a presumption of continuity of sanity as well as insanity. The return of soundness of mind, as well as lucid interval, must be proved to the satisfaction of the court.

ETHICS AND LAW

The word ethics is derived from the Greek term ethikos, which stands for rules of conduct that govern natural disposition in human beings.

Encyclopedia Britannica defines ethics as systematic study of the ultimate problems of human conduct. These ultimate problems are concerned with the concepts of right and wrong, morality and similar other issues. Ethics usually represents a system of internal control and is usually voluntary.

In contrast, law represents a mechanism for external control and it’s enforced by the state. Ethics is guided by moral principles whereas law is guided by reality principles. They supplement and complement each other.

Medical ethics is as old as the art of healing itself and the earliest code of medical ethics was formed by Hippocrates in 5th century BC.

Psychiatric ethics is rather of a recent origin. The APA appointed a committee to develop a code of ethics. Subsequently , in 1977, the WPA developed a code of ethics which is known as the ‘DECLARATION OF HAWAII’. IPS adopted its ethical code in 1985.

Main objectives of professional ethics are as under:

To provide guidelines of conduct among the professionals themselves. It includes area like referral from one therapist to another, giving comments on the opinion of another professional, and charging consultation fee from coprofessionals and their families.

To formulate guidelines in dealing with patients, their relatives and third parties. The areas to which these guidelines relate are mainly the following: Psychiatric diagnosis.

Informed consent.

Voluntary and involuntary treatment and hospitalization.

Confidentiality.

Respect for the patient and his human rights.

Third party responsibility.

Psychiatric research.

A committee comprising of Professors J S Neki, D N Nandi, P K Agarwal, V N Vahia and J K Trivedi was requested to prepare the recommendations for a code of ethics for psychiatrists in India. The draft recommendations prepared by the committee were approved by IPS at its annual conference held at Cuttack, Orissa in1989. It has mentioned principles and recommendations.

PRINCIPLES:

Responsibility

Competence

Benevolence

Moral standards

Patient welfare

Confidentiality

RECOMMENDATIONS proposed that ethical committees may be formed at central and zonal levels. These are supposed to consider complaints either from the public or from fellow professionals and then carefully investigate them.

HUMAN RIGHTS AND PRIVILEGES OF MENTALLY ILL

The term human rights in a broad sense means “those claims which every individual has or should have upon the society in which he/she lives.”

According to Richard Wasserstorm, it means it ought to be claimed as entitlements –those minimal things without which it is impossible to develop one’s capabilities and to live life as a human being.

First human rights legal resolutions: Declaration of Human Rights, 1948. It did not specifically address rights of the mentally ill.

Later resolutions: Declaration on the Rights of Mentally Retarded Persons,1979 and Declaration on the Rights of the Disabled Persons, 1975; began the process of establishment of minimum international standards for the treatment of persons with mental disabilities.

Right to health in constitution of India: Mentally ill have fundamental/ human right to receive mental health care and to humane living conditions in the mental hospitals.

Declaration of Hawaii, 1992 by the General Assembly of World Psychiatric Association also talks about rights of the mentally ill.

MAJOR HUMAN RIGHTS STANDARDS APPLICABLE TO MENTAL HEALTH:

UN Principles for the protection of persons with mental illness and the improvement of mental health care, 1991.

Standard rules on the equalization of opportunities for persons with disabilities (Standard Rules, 1993).

WHO TECHNICAL STANDARDS:

In 1996, WHO developed the Mental Health Care Law: Ten Basic Principles and the Guidelines for Promotion of Human Rights of Persons with Mental Disorders, which is a tool to help understand and interpret the principles mentioned by it and to evaluate human rights conditions in institutions.

TEN BASIC PRINCIPLES:

Promotion of mental health and prevention of mental disorders.

Access to basic mental health care.

Mental health assessments in accordance with internationally accepted principles.

Provision of least restrictive type of mental health care.

Self-determination.

Right to be assisted in the exercise of self-determination.

Availability of review procedure.

Automatic period review mechanism Qualified decision maker.

Respect to the rule of law.

IMPORTANT RIGHTS OF THE MENTALLY ILL:

Informed consent.

Confidentiality.

Access to information.

Rights when admitted in mental health facilities.

Voluntary and involuntary mental health care.

Rights during emergency situations.

Rights related to special treatment.

Rights related to competence, capacity and guardianship.

Rights related to seclusion and restraint.

Rights related to clinical and experimental research.

LAW IN PSYCHIATRY

Indian Lunacy Act, Act 4 of 1912.

Mental Health Act , 1987.

Central Mental Health Authority Rules, 1990.

State Mental Health Rules, 1990.

State Mental Health (Amendment) Rules, 2007.

Mental Health Care Bill, 2013.

Narcotic Drugs and Psychotropic Substances Act, Act 61 of 1985 as amended up to Act 2 of 1989.

Narcotic Drugs and Psychotropic Substances Rules,1985.

Narcotic Drugs and Psychotropic Substances (Execution of bond by convicts or addicts) Rules, 1985.

Prevention of illicit traffic in Narcotic and Psychotropic Substances Act, Act 46 of 1988.

Consumer protection act, 1986.

REFERENCES

Textbook of postgraduate psychiatry, second edition. Editors: J N Vyas, Niraj Ahuja. JAYPEE Publications, 1999.

Forensic psychiatry: Clinical Practice Guidelines for Psychiatrists in India. Editors: Prof. Shiv Gautam, Prof. Ajit Avasthi. Published by Indian Psychiatric Society, 2009.

Dr. Nambi, for article on legal aspects of psychiatry in IPS publication for young psychiatrists.