useful for specially msc nursing students and bsc students

1. Prepared By:
Vipin Chandran
Asst. Professor (MHN)
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2. Forensic Psychiatry is a subspecialty
of psychiatry and is related to criminology. 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.
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3. It deals with the legal aspects of
psychiatry. Law comes in contact with
psychiatry at many points; for example,
admission of a mentally ill person in a
mental hospital, crime committed by a
mentally ill person, validity of marriage,
witness, will, consent, right to vote, and
drug dependence.
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4. The various legal aspects of psychiatry are
briefly discussed below:
Criminal responsibility
Civil responsibility
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5. McNaughton Rules, Durham Rule,
American Law Institute (ALI) Test
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6. Though mentally abnormal offenders are only a
small minority of all offenders the psychiatrist can
play an important role by helping to identify,
assess and manage them. The psychiatrist may be
asked to give advice in relation to the following
issues:
Fitness to plead (Fitness to stand trial)
Mental state at the time of offence, before and
during trial and during imprisonment.
Diminished criminal responsibility.
The psychiatric management of offenders
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7. Daniel McNaughton was a 29 year old, son of a
Glasgow wood-turner, a man of 'gloomy and
reserved social habits' which included
membership of religious groups and the Tory
party. He decided to murder Sir Robert Peel,
the Prime Minister. He made elaborate plans
and travelled to London, but in fact mistakenly
shot and killed Edward Drummond, Peel's
private secretary, in daylight in front of
numerous witnesses on 20th January,1843.
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8. During the trial, McNaughton himself admitted that
"they have accused me of crimes of which I am not
guilty, they do everything to harass and prosecute
me, in fact they wish to murder me. I was driven to
desperation by persecution".
McNaughton knew what he was doing and was
aware that he was committing a criminal act but felt
compelled to do so, an act he performed with cool
deliberation.
Psychiatrists were called and it was accepted:
That his delusions were real.
That the act was committed under a delusion.
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9. McNaughton was found "not guilty on the
grounds of insanity". He himself was sent to
Bethlehem and later Broadmoor asylum where
he died in 1865.
In McNaughton's case the Lord Chancellor put
to a panel of His Majesty's Judges five
questions designed to clarify the legal position.
Their replies given on 19th June 1843,
constitute the so- called 'McNaughton rules'.
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10. The following contain the main points of the
McNaughton's rules:
Every man is to be presumed to be sane, until
the contrary be proved.
An insane person is punishable, if he knew at
the time of committing such a crime that he
was acting contrary to law.
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11. To establish a defense on the ground of insanity, it
must be clearly proved that at the time of the
committing of the act, the accused was suffering
under such defect of reason, from disease of the
mind, as not to know the nature and quality of the
act he was doing, or if he did know it, that he did
not know he was doing what was wrong".
Finally it is the jury's role to decide whether the
defendant was insane. The 'rules' stressed the
importance of the defendant's notion of
understandability of right and wrong.
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12. ▣ So a mentally ill person is not protected ipso
facto. He must satisfy the above mentioned rule. A
mentally retarded person (called ‘idiot’ in law) is
not considered liable under Indian criminal law.
▣ The Law generally classifies criminal lunatics
into three classes: an under-trial who cannot stand
trial because of mental illness; guilty but insane;
and criminals who later become mentally ill. A
Class II ‘criminal lunatic’ is acquitted under the
law but is detained in a mental hospital (asylum)
for further treatment.
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13. ▣ The McNaughton Rule is used in a slightly
modified form in many countries even now.
▣ In India, Section 84 of the Indian Penal Code (Act
45 of 1860) states that “nothing is an offense,
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”.
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14. "An accused person is not criminally
responsible, if his unlawful act is the product of
mental disease or mental defect". In this, the
causal connection between the mental
abnormality and the alleged crime should be
established. This rule is also known as
"Product Rule".
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15. ▣ “A person is not responsible for criminal conduct
if at the time of such conduct, as a result of mental
disease or defect he lacks adequate capacity either
to appreciate the criminality of his conduct or to
conform his conduct to the requirements of the
Law”.
▣ The ALI Test is similar to the combination of the
McNaughton rule and the Irresistible Impulse
Test. This rule excludes psychopaths. This popular
test is now used by all courts in the USA.
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16. Marriage, Adoption, Testamentary
Capacity, Vote, Witness, Contract,
Transfer of Properties
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17. ▣ There is usually a presumption in the
favour of sanity and the contrary must be
proved. This applies both to the civil and
criminal proceedings in the court of law.
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18. ▣ The Hindu Marriage Act (Act 25 of 1955) provides
for conditions for a Hindu marriage under Section 5.
One of the conditions, i.e. Section 5 (ii) introduced by
Act 68 of 1976, states that ‘at the time of the
marriage, neither party,
is incapable of giving a valid consent... (due to)...
unsoundness of mind; or
though capable of giving consent, has been suffering
from mental disorder of such a kind or to such an
extent as to be unfit for marriage and the procreation
of children; or
has been subject to recurrent attacks of insanity or
epilepsy’.
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19. Any marriage solemnised in the contravention to
this condition shall be voidable and may be
annulled by a decree of nullity under Section
12 of the Act. Another ground of nullity under
the same section is the fact that the consent for
marriage was obtained by ‘fraud’...‘as to any
material fact or circumstance concerning the
respondent’, for example, the fact of mental
illness or treatment for the same.
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20. Divorce can be granted under Section 13 of the
Act on a petition presented 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 an
extent that the petitioner cannot reasonably be
expected to live with the respondent’ (Section
13 (iii) inserted by Act 68 of 1976).
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21. Here, the term mental disorder means ‘mental
illness, arrested or incomplete development of
mind, psychopathic disorder or any other disorder
or disability of mind and includes schizophrenia’.
The term Psychopathic disorder means ‘a
persistent disorder or disability of mind (whether
or not including sub normality of intelligence)
which results in abnormally aggressive or
seriously irresponsible conduct on the part of the
other party, and whether or not it requires or is
susceptible to medical treatment’.
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22. Under the Hindu Adoptions and Maintenance Act (Act 78
of 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’ (Section 7).
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 is dead, or has ...renounced the
world, or ...ceased to be a Hindu, or ...has been declared by
a court ...to be of unsound mind’ (Section 8).
In addition, the person capable of giving in adoption of a
child should be of sound mind.
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23. Under the Indian Evidence Act 1872, a ‘lunatic’ is
not competent to give evidence if he is prevented
by virtue of his ‘lunacy’ from understanding the
questions put to him and giving rational answers
to them (Section 118).
However, such a person can give evidence during
a lucid interval on discretion of the judge (and the
jury).
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24. Testamentary disposition is regulated by the Indian
Succession Act (Act 39 of 1925). Some of the salient
points regarding testamentary disposition are as
follows:
A will must be in writing, though it need not be
registered.
It must be signed by testator in the presence of at
least two witnesses.
A legatee cannot attest a will.
An executor(s) is appointed under the will by the
testator to carry out its terms after his death.
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25. A will can be revoked or modified any time
before the death of the testator.
A will comes into effect after the death of the
testator. It is said to speak from grave and to be
‘ambulatory’.
The testator must be of a ‘sound and disposing
mind’. Section 59 of the Act states that ‘every
person of sound mind, not being a minor, may
dispose of his property by will’.
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26. Explanation 4 of this section states that ‘no person
can make a will while he is in such a state of
mind, whether arising from intoxication or from
illnesses or from any other cause, that he does not
know what he is doing’.
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27. Under the Transfer of Property Act 1882
(Section 7), only persons competent to
contract, are authorized to transfer property.
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28. Under the Indian Contract Act 1872 (Section 11),
every person to be competent to contract must be
a major and of sound mind. A person is said to
be of sound mind for the purposes of a contract,
if at the time of making a contract he is capable
of under standing it and of forming a rational
judgments as to its effect upon his interests.
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29. It is important that advice be given
regarding driving if there is likelihood
that driving can be impaired by the nature
of illness, prescribed medication and / or
misuse of alcohol or drugs.
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30. A person of unsound mind cannot contest for
elections or exercise the privilege of voting. In
conclusion, nursing practice must confirm to pre-
set legal standards and continuously reorient
itself to the ever evolving legal standards. It is
only the motivated and capable nurse who can
incorporate legal knowledge while dispensing
patient care, and it is to her that many patients
will turn for information and care.
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32. ▣ The Care and Treatment Legislation
(Mental Health Legislations)
▣ Criminal Responsibilities Formulation
(Criminal Laws)
▣ Civil Status Provisions (Civil Laws)
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33. ▣ Mental Health Act 1987
▣ Persons with Disabilities Act 1996
▣ Rehabilitation Council of India Act 1992
▣ Juvenile Justice Act 1986
▣ Consumer Protection Act 1986
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34. ▣ Indian Evidence Act 1925, Sec. 118
▣ Law of Contract Sec. 6, 11 and 12
▣ Right to Vote and Stand for Election - Act 326,
102 of the Constitution of India
▣ Law of Torts
▣ Testamentary Capacity- Indian Succession Act
1925, Sec. 59
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35. ▣ Marriage and Mental Health Legislation
 Indian Divorce Act 1869
 Parsi Marriage + Divorce Act 1936
 Dissolution of Muslim Marriage Act 1939
 The Special Marriage Act 1954
 The Hindu Marriage Act 1955, 1976
 The Family Court Act 1984
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36. Provisions as to Accused Persons of Unsound
Mind Secs. 328 - 339 Cr. Pc. 1973
Criminal Responsibility Sec. 84 IPC - 1860
Attempt to Commit Suicide Sec.309 IPC
Right to Private Defense Against an Insane
Person Sec.98 IPC
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37. Unnatural Offences Sec. 377 IPC (Sexual
Perversions)
Affrays (Sec.159 In Mania)
Misconduct in Public under Intoxication (e.g.
Alcohol Defense Sec.510 IPC)
NDPS Act 1985(Amended 1988)
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38. Suicide is the only criminal act for which a person
is punished if he fails in the attempt to do so.
“No person shall be deprived of his life” Act 21
constitution of India
Sec.309 / IPC- attempt to commit suicide
punishable
1994 - S.C. Judgment - Sec. 309 was declared void
Sec.306 - abetment of suicide an offence
No specific laws for assisted suicide and euthanasia
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