2. OVERVIEW
INTRODUCTION
BASIC CONCEPTS IN FORENSIC PSYCHIATRY
TRIAL OF A PERSON SUFFERING FROM MENTAL ILLNESS
CRIMINAL RESPONSIBILITY
FITNESS TO PLEAD (STAND TRIAL)
PSYCHIATRIST AS AN EXPERT WITNESS / IN COURT
PSYCHIATRIST’S ROLE IN :
• APPOINTMENT OF GUARDIAN AND MANAGER FOR THE MENTALLY ILL
• TESTAMENTORY CAPACITY
• CHILD CUSTODY & ADOPTION
• MARRIAGE & DIVORCE
STEPS OF THE FORENSIC PSYCHIATRIC ASSESSMENT
PREPARING A FORENSIC REPORT
SUMMARY
3. INTRODUCTION
Forensic psychiatry is an important subspecialty of Psychiatry which usually deals
with the application of
Psychiatric knowledge to legal issues (Psychiatry in law) &
Legal knowledge to Psychiatric issues (law in Psychiatry)
The law can be broadly divided into:
Criminal law: it defines certain acts as offences against the State & in doing so
makes them punishable.
Civil law: it defines the rights & duties of individuals in relation to each other.
4. COMMON REASONS FOR FORENSIC PSYCHIATRY EVALUATIONS
A criminal court may issue directions to assess the fitness of a person to plead or stand trial or
to determine the issue of criminal responsibility.
The civil court may ask for psychiatric assessment in cases of determination of need for
guardianship,
for testamentary capacity,
marital dispute and divorce on grounds of mental illness,
child custody &
disability compensation.
5. Request from an employer asking for opinion about the mental
condition of an employee and his/her fitness to continue in the job.
The court may ask whether the person is malingering or is suffering
from memory loss in reality.
A psychiatrist may also be asked about the treatability of the illness
and possible chances of recovery.
6. BASIC CONCEPTS IN FORENSIC PSYCHIATRY
1. Crime
Defined as “an offence for which one may be punished by law”.
It is an act or behavior declared by the law of the land to be an offence at a particular
time which is punishable by the State.
It has two components:
Actus reas : referring to the guilty act against the law and
Mens rea : the evil intent
Both these elements must be present before an accused can be said to have committed
the crime.
7. 2 . Insanity
The Indian Penal Code, though uses the terms ‘insanity’ and ‘unsoundness of
mind’, has not defined the terms.
In simple words, the term insanity refers to a serious mental illness, meaning the
person has lost sanity. Technically, it would be an illness of a psychotic nature.
Legal and medical definitions of insanity differ.
A person may be so severely ill so as to require admission to a mental hospital but that fact
alone will not be sufficient to permit him exemption from punishment.
The Indian Penal Code uses the term ‘unsoundness of mind’ in its Section 84.
In law every person is presumed to be sane and accountable for his acts unless the contrary
is proved. The burden to prove insanity is upon the accused.
8. TRIAL OFA PERSON SUFFERING FROM MENTAL ILLNESS
Mental illness may affect the capacity of a person to understand the legal proceedings being initiated
against him or her and to prepare a defence and other related matters.
In the Indian law, Sections 328-339 of the Code of Criminal Procedure (CPC), 1973 give guidelines for the
trial of a person suspected to be suffering from a mental illness.
Section 328 of the CPC states
“ When a Magistrate holding an inquiry has reason to believe that the person against whom the inquiry is being held is
of unsound mind and consequently incapable of making his defence,
he shall inquire into the fact of such unsoundness of mind, and shall cause such person to be examined by the civil
surgeon of the district or such other medical officer as the State Government may direct, and there upon shall examine
such surgeon or other officer as a witness, and shall reduce the examination to writing’’
9. If the Magistrate is of the opinion that such a person is of unsound mind and consequently
incapable of making his defence, further proceedings in the case are postponed.
If an accused is found to be of unsound mind, the person can then be
detained in safe custody (under the Indian Lunacy Act, 1912, now Mental Health Act, 1987)
or
be released if bail can be taken and sufficient security is provided by a relative regarding
treatment and care of the accused.
The trial can resume only when the accused ceases to be of unsound mind.
10. CRIMINAL RESPONSIBILITY
It means whether a person with a mental illness can be exempted from being responsible
for a criminal act, he/she has committed, on grounds of the mental illness.
In the Indian law, the definition of criminal responsibility has been adapted from the
McNaughten’s Rules.
Section 84 of the IPC refers to criminal responsibility.
It states that “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,
it is either wrong or contrary to law”
11. ORIGIN OF THE RULES ON THE PLEA OF INSANITY
The insanity law as a defense has been in existence from
many centuries.
But, it took a legal status from the last three centuries.
The history of the law of insanity can be traced back to
the 1700s.
12. WILD BEAST TEST
The first case which dealt with the law of insanity was Arnold (1724) in which Edward
Arnold attempted to kill and even wound Lord Onslow.
The evidence clearly showed that the accused was suffering from a mental disorder.
Tracy, J. observed:
“If he was under the visitation of God and could not distinguish between good and evil, and
did not know what he did, though he committed the greatest offence, yet he could not be guilty
of any offence against any law whatsoever.”
As stated in the aforementioned case, a person can demand immunity if, due to his
unsoundness of mind, he was incapable of distinguishing between good and evil and did
not know the nature of the act committed by him.
This test is known as the “Wild Beast Test.”
13. INSANE DELUSION TEST
The second test evolved in Hadfield’s case (1800).
Hadfield was discharged from the army on the ground of insanity and
was tried for high treason in attempting to assassinate King George III.
The counsel of the accused, Lord Thomas Erskine, defended him and
proved in front of the judge that Hadfield is not guilty, on the ground of
insane delusion from which the accused was suffering.
Erskine stated that insanity was to be determined by the fact of fixed
insane delusion and that such delusion under which the defendant acted
is the main reason for his crime. This test was known as the “Insane
Delusion Test.”
14. BOWLER’S CASE (1812).
Finally, the third test was formulated in Bowler’s case (1812).
In this case, Le Blanc stated that the jury has to decide when
the accused committed the offence, whether he was capable of
distinguishing right from wrong or under the control of an
illusion.
After the Bowler’s case, the courts have placed more
emphasis on the capacity of the accused to distinguish right
from wrong, though the test was not that clear.
15. MCNAUGHTEN’S CASE & RULE
The rule was formed following the trial of Daniel McNaughten in 1843.
Daniel McNaughten , 29yr old, decided to murder the Prime Minister of the Tory party Robert Peel
on grounds of delusions of persecution.
He made elaborate plans for the execution but shot his secretary Mr Edward Drummond, fatally
wounding him.
During the trial he confessed to the killing and described his delusions.
He received a verdict of ‘not guilty’and was sent to Bethlem Asylum.
Following the trial, Her Majesty Queen Victoria and her legal advisory council had a re-look into
the case and from their discussion the rule was framed.
16. There have been several tests from time to time, like the Wild Beast Test,
Insane Delusion Test, etc.
But the most important is the “Right and Wrong Test” formulated in
Mc’Naughten’s case.
The hearing of Mc’Naughten and his release was a topic of discussion in
House of Lords, and as a consequence, they called upon fifteen judges to
decide on the question of criminal liability in the cases where the accused is
incapable of understanding the nature of the act and also answered the
questions advanced.
Fourteen judges had the same answers.
The view of the majority was given by Tindal C.J., these answers to the
questions are known as Mc’Naughten’s Rule.
17. THE MAIN POINTS OF MCNAUGHTEN’S RULE:
1. Every man is to be presumed to be sane, until the contrary is proved
2. An insane person is punishable if he knew at the time of committing a crime that he was acting
contrary to law
3. To establish a defense on grounds of insanity, it must be clearly proved that at the time of
committing the act the accused was suffering under such defect of reason from disease of the
mind, as to not know the nature and quality of the act he was doing , or if he did know it, that
what he was doing was wrong.
4. It is the jury’s rule to decide whether the defendant was insane.
Criticism
Only cognitive/intellectual factors or reason are taken into account.
Emotional factors, ability of individual to control impulse, loss of self-control, hallucination,
delusional belief are not taken into account.
18. The irresistible impulse test (New Hampshire Doctrine)
Abner Rodger stabbed and murdered a prison warden in the prison
where he was being held .
He wasn’t held criminally responsible, even when he knew the nature
and quality of the act and knew that it is wrong, as he was incapable
of restraining himself from committing the act due to mental disease.
Criticism:
Whether the impulse was strong or the offender was weak, there is no
answer in law or Psychiatry.
This test is used in combination with ‘right and wrong test’.
19. DURHAM RULE/PRODUCT TEST (1954)
An accused is not criminally responsible if his unlawful act was
the product of mental disease or defect.
It was held that the rule was broader than Mc Naughten rule.
Criticism
The ambiguity of the terms used i.e mental disease, mental
defect, product.
The judge had to solely rely on the psychiatrists to decide
whether the act was the product of mental defect or disease.
Hence judicial authorities had little to do with rendering impartial
and independent judgment
20. CURREN'S RULE(1971)
Donald Curren violated the motor vehicle act
An accused person will not be criminally responsible, if at the time of
committing the act, he did not have the capacity to regulate his conduct to
the requirement of law, as a result of mental disease or defect.
It is superior to Durham rule cause it omits the troublesome 'product'
clause.
Vast majority of mental disease does not result in criminal behavior
It also includes a part of irresistible aspect.
21. AMERICAN LAW INSTITUTE (ALI TEST,1970)
A person is not responsible for criminal conduct if at the time of such
criminal conduct as a result of a mental disease or defect, he lacks
substantial capacity, either to appreciate the wrongfulness of his conduct
or to adjust his conduct to the requirement of law.
This theory combined both (Mc Naughten + Irresistible test) taking into
consideration the violation capacity and the impairment of cognition.
Instead of knowing the difference between right and wrong. (Mc
Naughten and Durham) the defendant is now subjected to appreciate it.
Instead of proving the act as 'product' of disease,it has only shown that the
disease resulted in a loss of 'substantial capacity 'to obey law.
22. ‘INSANITY’AS A DEFENCE FOR ESCAPING PUNISHMENT
If the person can prove that he/she was of unsound mind at the time of committing the crime ,
he/ she can plead ‘insanity’ as a defence for escaping punishment .
A defence can be raised in several ways-
Not guilty by reason of insanity
Diminished responsibility
Incapacity to form intent because of automatism
23. DIMINISHED RESPONSIBILITY
This concept arose as a means of avoiding death penalty. It was subsequently used extensively in the
Scotland courts though it was incorporated in the English law only in the 1957 Homicide Act. It has not been
incorporated in the Indian law as yet.
In criminal law, diminished responsibility (or diminished capacity) is a potential defense by excuse of which
defendants argue that although they broke the law, they should not be held fully criminally liable for doing
so, as their mental functions were "diminished".
It is applied where the accused could understand the nature of his act and its consequences, but was acting
out to his delusions or hallucinations. In these cases, the accused will be considered guilty because even if
his delusions or hallucination were true, killing a person is not the right thing to do.
And at the time of committing the act he knew that what he did was wrong or contrary to law.
The accused is considered guilty with diminished responsibility.
24. AUTOMATISM
A defense to a crime can be made if it was committed involuntarily. When the involuntary act is
beyond the control of the individual‘s mind, the situation is known as automatism.
Apparently purposeful & complex behaviours which occur without conscious control for
which there is amnesia later like somnambulism, epilepsy, concussion & hypoglycemia .
English law distinguishes automatisms occurring in conditions k/a non insane automatisms from
insanity.
Non insane automatism were acquitted(not guilty).
25. INTOXICATION
A person will be prosecuted for a crime committed by a person under the
influence of a substance which he took voluntarily.
But if he received the substance against his wish or unknowingly, then he
will not be prosecuted for the crime.
26. SECTION 84 IPC
Insanity defence (section 84 IPC) in Indian context is adopted from McNaughten rules.
According to the section 84 IPC, ― nothing is an offence which is done by a person
who, at the time of committing it, by reason of the unsoundness of mind, is not
capable of knowing the nature of the act, or that he is doing which is either wrong or
contrary to the law.
Only legal insanity (mental illness at the time committing the crime) but not medical
insanity falls within the purview of the section 84 IPC.
27. A dichotomy of section 84 IPC reveals the following ingredients:
(1) The suspect was insane
(2) He was insane at the time of the offence and not just before or after the
act and
(3) Subsequently of unsoundness of mind, the suspect was incapable of
knowing the nature of the act, or that he was doing what was immoral
or contrary to law
28. FITNESS TO PLEAD (STAND TRIAL)
In cases of fitness to plead, assessment is aimed at, whether a criminal defendant has sufficient ability to
consult with his lawyer with a reasonable degree of rational understanding, and whether he has a rational
as well as factual understanding of the proceedings against him.
Assessment includes
assessing the ability of the accused to understand the charges he/she has been accused of,
ability to distinguish between a plea of guilty and not guilty,
ability to instruct his/her lawyer and
ability to follow the proceedings in the court.
Positive symptoms of psychosis, especially thought disorder and delusions have been known to be
associated with unfitness to plead.
29. PSYCHIATRIST AS AN EXPERT WITNESS
An expert witness is a person whose opinion by virtue of education, training, certification, skills, or
experience is accepted by the judge as expert.
Situations:
State of mind of defendants (fitness to stand trial)
Sentencing of offenders (insanity defence)
Mental health of parents and children in family cases (marriage, divorce, custody of child)
Professional conduct or performance of psychiatrists (Allegations of negligent psychiatric care)
Mental capacity of people making various types of legal (testamentary capacity, make contract, manage
property)
Interviewing the child in case of sexual abuse
Assessment of mental disability
Fitness to work
Psychiatric injuries as personal injury litigation
30. Expert witness can be:
i. “testifying”: testify before the judge, under the oath
ii. “non-testifying”: consultant hired by a contesting party to evaluate facts of the case
Steps:
a) Receiving a subpoena or witness summon to provide documents or give testimony. Appearing is
mandatory.
b) To acknowledge receipt of the summons, note date and time, phone number of the delivering
person, verify details with hospital record.
Failure to respond is contempt of court.
If it is not possible for the psychiatrist to appear on the given date(s), he/she should request permission
from court.
31. c) To contact the client/ client’s lawyer and seek legal advice.
• Assert the doctor–patient privilege.
• Discuss the consequences.
• Failing to assert may be ground for legal action by the client.
d) If client agrees, to seek an authorization letter from him/her.
If not, to assert the privilege. This can be over-ruled only by the court.
Preparation:
To understand the purpose of testimony, collect and study the relevant documents, anticipate questions
On the day of the court:
Bring records,
reach on time,
report to appropriate authorities,
collect certificate of attendance in the end.
32. Answering:
Confident, slow, well-thought, clear, loud, avoid lay terms but explain technical terms, without
interrupting, clarify question if required and always to the point. Respect the judge.
Responding to further questions by advocates:
Examination-in-chief: Open-ended questions, often easier. To be truthful, avoid unnecessary information
and disclosure
Cross-examination: Ambiguous, two-part and closed ended questions, trickier. May request the court that
yes/no answers may need further explanations. To be patient and composed, to not mind personal attacks,
may be required to give a brief detail of skills and experience to be an expert
Not to reveal confidential information until needed explicitly
33. False expert advice can be implicated under:
Punishment for false evidence (IPC193)
False statement made in declaration which is by law receivable as evidence (IPC 199)
Causing disappearance of evidence of offense, or giving false information while screening
the offender (IPC 201)
Destruction of document or electronic record to prevent its production as evidence
(IPC 204)
If treating doctor is called as the expert witness, it is best to state the conflict of interest
and bias to the court and proceed as instructed.
34. RIGHTS OF THE EXPERT WITNESS
The experts witness has several rights in court (Danner, 1993)
i. If the expert is uncertain about how they must answer a question, they may ask the judge
ii. The expert may ask the judge whether the material asked for is privileged
iii. The expert may refuse to answer questions which they do not understand. They may also ask the
examining counsel to clarify or repeat the question.
35. PSYCHIATRIST’S ROLE
APPOINTMENT OF GUARDIAN AND MANAGER FOR THE
MENTALLY ILL
When an application is put to the court to appoint a guardian or manager or both
for a mentally ill person, the Court may direct a psychiatrist or medical officer for
making the relevant examination.
Where a District Court records a finding after examination of the medical report
that the alleged mentally ill person is in fact mentally ill and incapable of taking
care of himself and of managing his property, the respective order is
issued (Chapter VI, Sec 50-77, MHA 1987).
36. Assessment in such cases is focused not just on the presence or absence of the
mental illness, but its severity, which renders the person incapable of taking
care of self or manage his/her property. Other areas which need to be looked
into include:
Capacity to make and communicate reasonable decisions
Capacity to take care of self
Awareness about the nature and extent of property, income being generated
and other assets (unmovable property, movable assets, bank accounts, bank
deposits, shares, etc.)
Awareness of the dependents (spouse, children, etc.)
Cognitive functions & judgement
A person may be mentally ill but capable of taking care of self and property.
The relevant certificate is issued after all the relevant assessments.
37. TESTAMENTARY CAPACITY
Testamentary capacity refers to a person's full sense and mental sanity to have
confirmed and signed the Will after understanding what his assets comprised and what
he is doing by making a Will.
IMPORTANT ELEMENTS IN TESTAMENTARY CAPACITY
It is a voluntary act on the part of the testator
Testator should have a sound disposing mind.
Testator should know what he is doing by making a Will.
Testator should have sufficient capacity to know the extent of his/her property.
Testator should be aware of potential beneficiaries.
Testator should be aware of the consequences of his/her decision.
Testator should be free from undue influence/fraud/coercion.
Testator must know the contents of the Will.
38. According to Section 59 of the Indian Succession Act 1925, any person of sound mind can make a will.
A person who has reached the age of majority can make a will.
A person suffering from mental disorder can make a will provided he is capable of the required
competency for making a will.
Persons who are deaf or dumb or blind are capable of making a will, if they are of sound mind.
Persons, who are ordinarily insane, may make a will during an interval while they are of sound mind.
A psychiatrist may be asked to report on a person, whether the person is competent to make a will.
One needs to assess whether the will is being made voluntarily and there is no external pressure,
coercion or compulsions to make a will.
39. SYMPTOMS OF TESTAMENTARY INCAPACITY (Hayley
Bannet)
Difficulties in attention and information processing
Language difficulties
Memory difficulties
Impairment of higher executive functions
Persecutory delusions
Delusions of poverty
40. PSYCHIATRIST’S ROLE IN CHILD CUSTODY AND
ADOPTION
A psychiatrist may be requested by a court to give an opinion about which parent should be given
custody in cases of divorce.
The psychiatrist should take details of conflicts, if any, between parents, or between parents and
grandparents, regarding the custody of the child.
In adoption cases, a psychiatrist may be asked to give an opinion about the suitability of the
prospective adopting parents.
According to the Hindu Adoptions and Maintenance Act, 1956, any Hindu male “who is of sound mind and is not
a minor” can adopt a child with the consent of his wife unless “she has been declared by a court … to be of
unsound mind”.
Similarly, any Hindu female “who is of sound mind”, is not a minor, and is not married, can adopt a child. If she is
married, then her husband should also be of sound mind.
41. PSYCHIATRIST’S ROLE IN MARRIAGE AND DIVORCE
A psychiatrist may be called to give an opinion about the mental condition of one of the
partners in cases of matrimonial dispute.
According to the Hindu Marriage Act (Act 25 of 1955), Section 5(ii) introduced by Act 68 of
1976, the marriage shall be voidable and can be annulled by a decree of nullity under Section 12
of the Act.
Divorce can be granted under Section 13 of the Hindu Marriage Act on a petition filed by either
spouse on the ground that the other party has been incurably of unsound mind, or has been
suffering continuously or intermittently from mental disorder of such kind and to such extent
that the petitioner cannot be reasonably expected to live with the respondent.
The term mental disorder here means mental illness, arrested or incomplete development of
mind, psychopathic disorder or disability of mind and includes schizophrenia.
42. STEPS OF THE FORENSIC PSYCHIATRIC ASSESSMENT
Comprehensive psychiatric history including details of the event leading to request for current
assessment.
One should always note the marks of identification along with a photo-identity proof and a recent
photograph of the person being examined for the purpose of records.
Photo-identity establishes the identity of the person, who has been referred for assessment, and prevents
the mistake of examining a wrong person or an impersonator.
A photograph is helpful in identifying the person later in the court, if the psychiatrist is called to the
court as an expert witness.
As a part of good ethical practice, the person should be informed that the information divulged during
assessment may go against him or her in the court of law.
43. Assessments should specifically include forensic history, if any; family details like
socioeconomic status, history of psychiatric illness, substance abuse, or a criminal record in the
family; personal history; mental status examination, and personality assessment
Hospitalization may be required if the person needs to be observed over a period, before a
definite opinion can be given about the diagnosis.
If hospitalization is not indicated or is not feasible due to lack of a suitable facility, repeated assessments over a
period should be conducted.
Physical investigations should be ordered depending on the case.
Psychological testing for personality profile, intelligence, cognitive functions and differential
diagnosis may also be required.
44. PREPARING A FORENSIC REPORT
Preparing a report for the court is the final step after a detailed assessment.
The report should mainly address the questions asked by the court.
It should be brief, and use simple and clear language without any scientific
jargon.
Dates and nature of assessments like clinical examination, inpatient observation
and investigations including psychological assessment should be mentioned.
All the questions asked by the court should be answered.
If it is not possible to give a response to a question due to scientific limitations, it should be
mentioned along with the reasons.
Psychiatric diagnosis, if any, should be mentioned.
45. If one thinks that the time given by the court for preparing a report is not adequate for the
assessment, a preliminary assessment can be done and a request is sent to the court for
granting more time for evaluation.
One should never make moral judgments or blame someone in the report.
A psychiatrist simply makes an assessment to the best of his/her ability and the judgement is to be made by the
judge.
If the person being examined is in need of medical or psychiatric treatment, it should be
clearly mentioned, even if it has not been asked.
Names of the doctors or psychologists who conducted the assessment should also be
mentioned in the report.
The report should be accompanied by a photograph of the person examined.
A copy of the report should be kept for the records.
46. Scales in the assessment of :
1. Rogers Criminal Responsibility Assessment Scales (R-CRAS)
30 item scale assesses the degree of severity of clinically relevant symptoms.
The items are grouped under patient’s reliability, organicity, psychopathology, behaviour control and cognitive
control.
Items are rated on a 5 or 6 point ordinal scale
2.Mental state at the time of the offense screening evaluation (MSE)
It is a semi structured interview schedule developed to assess mental status of defendants who at the time
of crime did not have “significant mental abnormality”
The schedule has 3 parts, which includes historical information gathering to assess premorbid
psychological and cognitive functioning, offense information gathering and present mental state
evaluation.
3.NIMHANS detail work up proforma for forensic psychiatry (NDFPP) and NIMHANS behavioural
observation report (NBOR)
47. SUMMARY
Preparing reports of forensic psychiatric evaluation is an essential part of
psychiatric practice.
Psychiatrists need not feel anxious or nervous about preparing forensic
reports.
Psychiatrists should always base the expert opinion on the objective
information available.
If adequate information is not available, it should be put on record and
communicated to the court.
One needs to be clear and honest in making a report and avoid psychiatric
jargon.
48. REFERENCES
Kaplan & Saddock’s Comprehensive Textbook Of Psychiatry
Textbook of Psychiatry: Vyas & Niraj Ahuja
Chadda RK. Forensic evaluations in psychiatry. Indian J Psychiatry
2013;55:393-99.
