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Casebook of Forensic Psychiatric Practice in Capital Cases Casebook of Forensic Psychiatric Practice in Capital Cases Nigel Eastman Sanya Krljes Richard Latham Marc Lyall In association with: Acknowledgements The Death Penalty Project would like to thank Nigel Eastman, Sanya Krljes, Richard Latham and Marc Lyall for drafting the text of this compendium Casebook. It, together with the Handbook of Forensic Psychiatric Practice in Capital Cases, provides an indispensable, practical resource for mental health professionals and all those involved in the criminal justice process. The authors are grateful to Oxford University Press for its permission to use some text, amended, from Eastman N, Adshead G, Fox S, Latham R, Whyte S, Williams H Oxford Specialist Handbook of Forensic Psychiatry, Second Edition, Oxford University Press (publication 2019) and Eastman N, Adshead G, Fox S, Latham R, Whyte S Oxford Casebook of Forensic Psychiatry, Oxford University Press (publication 2019). This publication was made possible by a grant to The Death Penalty Project from the Magna Carta Fund of the United Kingdom Foreign and Commonwealth Office. © 2018 The authors All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or any information storage retrieval system, without permission in writing from the authors. Copies of this report may be obtained from: The Death Penalty Project 8/9 Frith Street Soho London W1D 3JB ISBN: 978-0-9576785-8-3 Contents Preface by Professor Nigel Eastman ............................................................................................. vii Decision-making in clinico-legal practice ........................................................................... 1 Introduction .............................................................................................................................2 Decision-making within clinical assessment and clinico-legal reporting ......................................4 Clinical assessment ...................................................................................................................4 Decision-making within clinico-legal reporting .........................................................................9 How to use the Casebook .........................................................................................................11 The cases ......................................................................................................................... 15 Case 1: Dementia; understanding the police caution; cultural validity of tests ............................18 Case 2: Acquired brain injury; malingering (of memory deficit); fitness to be interviewed .........26 Case 3: Intellectual disability with personality disorder, suggestibility and compliance; rebutted confession; expert opinion on ‘unreliability’ .................................................................35 Case 4: Intellectual disability; fitness to plead and stand trial; disagreement between psychiatrist and psychologist ....................................................................................................41 Case 5: Intoxication, dependence, withdrawal, secondary brain damage; witness statements, professional versus expert witness; fitness to have been interviewed, fitness to plead and stand trial ........................................................................................................................48 Case 6: Intoxication without dependence, substance induced psychosis; capacity to form specific intent; retrospective reconstruction of mental state ..................................................................54 Case 7: Delusional disorder, drug-induced psychosis or intoxication; insanity; retrospective reconstruction of mental state ..................................................................................................59 Case 8: Depression with psychosis, diagnosis of children and adolescents; insanity; detailed ‘mapping’ of mental state onto components of insanity .............................................................68 Case 9: Schizophrenia; diminished responsibility; substantial impairment of mental responsibility, denial of the actus; refusal to discuss the actus ......................................................73 Case 10: Psychopathy and paraphilia, including their diagnostic status; diminished responsibility, conditions accepted as ‘abnormality of mind’; types of mental pathology and abnormality of mind ..............................................................................................................80 Case 11: Depressive illness, psychological consequences of abuse, malingering (of mental illness); provocation, relevant mental characteristics; expressing psychiatric factors within provocation ......................................................................................................87 Case 12: Withdrawal from substances, intoxication; provocation, capacity to form specific intent, insanity, diminished responsibility; ‘woundability’ within provocation, withdrawal or intoxication in relation to capacity to form specific intent, insanity, diminished responsibility ........................................................................................................95 Case 13: Battered woman syndrome; battered woman syndrome and provocation; battered woman syndrome in provocation and diminished responsibility ................................101 Case 14: Acquired brain injury, cognitive impairment, epilepsy; automatism; frontal lobe syndrome, epilepsy in automatism, and sentencing ..........................................................107 Case 15: Intoxication and dependence, drug-induced psychosis; automatism, insanity, incapacity to form specific intent; intoxication, drug-induced psychosis, automatism, insanity ...115 Case 16: Personality disorder, vulnerability; duress; inadequate instructions, expert witness boundary .................................................................................................................122 Case 17: Battered woman syndrome (BWS), PTSD, anxiety and depressive disorders; duress; mental disorder and reasonable fortitude .....................................................................127 Case 18: Autism and intellectual disability; joint enterprise, diminished responsibility, rebutted confession; developmental disorder, joint enterprise, diminished responsibility, rebutted confession ................................................................................................................131 Case 19: Mania; self-defence; relevance of mental disorder to self-defence, insanity .................138 Case 20: High-functioning autism spectrum disorder; discretionary death penalty, capacity for reformation, and corrigibility; clinical correlates of ‘capacity for reformation’ ......................142 Case 21: Post-traumatic stress disorder, classificatory systems, rating scales; sentencing, mitigation, risk assessment towards risk-based sentencing; clinical data and mitigation, clinical risk assessment for penal purposes, going beyond instructions ......................................148 Case 22: Treating doctor as expert, neurotic depression, adjustment disorder; new evidence, appeal for unsafe conviction; assessing for diminished responsibility on appeal ........................155 Postface ......................................................................................................................... 161 Appendices .................................................................................................................... 163 1 Example of elements of a proper letter of instructions ...........................................................164 2 Legal cases .........................................................................................................................165 Biographies ................................................................................................................... 167 About The Death Penalty Project and Forensic Psychiatry Chambers ................................ 168 Preface1 There is a long accepted and strong tradition in medical education of using ‘problem-based’ approaches to learning, which is also represented in legal education. This most usually consists of presenting to the reader ‘a clinical case’ and then setting questions about it, as if in real clinical practice – thereby effectively simulating ‘on paper’ clinical investigation and decision-making. Usually, this is pursued by first describing a clinical presentation – perhaps with the results of some investigations already gained being given – and then inviting the reader to decide how they would, in real practice, proceed. The reader is then invited to ‘turn the page’ in order to read a suggested approach, or more than one approach, to addressing the case. Hence, whereas a textbook offers information, a ‘casebook’ teaches about the use of information. We have adopted this method in the Casebook you are about to use. And in doing so, we have directly linked the book with the second edition of the Handbook of Forensic Psychiatric Practice in Capital Cases,2 so that the two volumes are ‘companion books’, and should be read in conjunction with each other. The Casebook is concerned with both clinical assessment and preparing and presenting expert evidence directed at one or more legal questions, so that the ‘case set’ usually addresses several inter-linking issues.
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