FORUM: FORENSIC PSYCHIATRY TODAY

Forensic psychiatry: contemporary scope, challenges and controversies

JULIO ARBOLEDA-FLÓREZ

Queen’s University, Kingston, Ontario, K7L 4X3, Canada

Forensic psychiatry is the branch of psychiatry that deals with issues arising in the interface between psychiatry and the law, and with the flow of mentally disordered offenders along a continuum of social systems. Modern forensic psychiatry has benefited from four key devel- opments: the evolution in the understanding and appreciation of the relationship between mental illness and criminality; the evolution of the legal tests to define legal insanity; the new methodologies for the treatment of mental conditions providing alternatives to custodi- al care; and the changes in attitudes and perceptions of mental illness among the public. This paper reviews the current scope of forensic psychiatry and the ethical dilemmas that this subspecialty is facing worldwide.

Key words: Forensic psychiatry, mental health legislation, mental health services, ethical controversies

From an obscure and small group of of psychiatry that deals with issues aris- tence to be tried is to be restored: the psychiatrists who dedicated their efforts ing in the interface between psychiatry question for clinicians revolves on what to the study of mental conditions and the law” (1). This definition, how- parameters to use to predict restorabili- among prisoners and their treatment, ever, is somewhat restrictive, in that a ty of competence, which should be and who occasionally would appear in good portion of the work in forensic based on an adequate response to treat- courts of law, forensic psychiatrists have psychiatry is to help the mentally ill in ment (2). Insanity regulations pertain to now developed into an established and trouble with the law to navigate three legal tests used to decide whether the recognized group of super-specialists, completely inimical social systems: impact of mental illness on competence an influential group that is transforming mental health, justice and correctional. to understand or appreciate the nature the practice of psychiatry and that has The definition, therefore, should be of a crime could be used to declare an made deep incursions into the workings modified to read “the branch of psychi- offender “not criminally responsible of the law. This status has not come atry that deals with issues arising in the because of a mental condition”, “not without misgivings about the basic interface between psychiatry and the guilty by reasons of insanity” or any identity of forensic psychiatry and con- law, and with the flow of mentally disor- other wording used in different coun- cerns about its utility and its ethics. dered offenders along a continuum of tries. Applications to declare a person a Modern forensic psychiatry has bene- social systems”. Forensic psychiatry “dangerous offender” usually demand a fited from four key developments: the deals with issues at the interface of high level of expertise on the part of evolution in the medico-legal under- penal or criminal law as well as with forensic experts, who are expected to standing and appreciation of the rela- matters arising in evaluations on civil provide courts with technical and scien- tionship between mental illness and law cases and in the development and tific information on risk assessment and criminality; the evolution of the legal application of mental health legislation. prediction of future violence. tests to define legal insanity; the new Once an offender has been adjudi- methodologies for the treatment of men- cated, a major task for forensic psychia- tal conditions that provide alternatives Penal law trists is to gauge the level of systems to custodial care; and the changes in interface in relation to different types of public attitudes and perceptions about Worldwide, a wider understanding of receiving and treating institutions. Hos- mental conditions in general. These four the relationship between mental states pitals for the criminally insane, mental moments underlie the expansion recent- and crime has led to an increased uti- hospitals for the civilly committed ly seen in forensic psychiatry from issues lization of forensic experts in courts of patients, penitentiary hospitals for men- entirely related to criminal prosecutions law at different levels of legal action. tally ill inmates, as well as hospital and the treatment of mentally ill offend- On entering into the legal system, wings in local jails, are all part of the ers to many other fields of law and men- three major areas need consideration: mental health system, and their interde- tal health policy. fitness to stand trial, insanity regula- pendency has to be acknowledged for tions and dangerousness applications. purposes of system integration and The major developments on the issue of budgeting (3). How mental patients are SCOPE AND CHALLENGES fitness to stand trial pertain to rulings managed in prisons is also a major mat- that defenders found not fit to stand ter of concern. Table 1 shows some of The subspecialty of forensic psychia- trial are sent to psychiatric facilities, the currently available alternatives. try is commonly defined as “the branch with the expectation that their compe- Finally, on exit from the legal-correc-

87 tional system, forensic psychiatrists are of social strictures on a particular indi- the person cooperate to the assessment expected to provide expert knowledge vidual. This imposes on clinicians an or to proceed to collect information on matters such as readiness for parole, increased ethical duty to make sure that otherwise. It is advisable to use a predictions of recidivism, commitment their decisions have been thoroughly screening test of capacity and to do a legislation applicable to exiting offend- based on the best available clinical evi- full assessment only if the person fails ers, and the phenomenon of double dence. the screening test. This will prevent revolving doors for the mentally ill in Ordinarily, there is a presumption of imposing an onerous burden on the prisons and hospitals. capacity and, hence, that a particular person subject of the assessment if the person is competent. A person is screening test is easily passed. assumed to be competent to make deci- Civil law sions, unless proven otherwise (4). The presence of a major mental or physical Mental health legislation and systems Psychiatrists and other mental health condition does not in and of itself pro- specialists are often required to conduct duce incapacity in general or for specif- The double revolving door phenom- assessments with a view to determine ic functions. In addition, despite the enon, whereby mental patients circulate the presence of mental or emotional presence of a condition that may affect between mental institutions and pris- problems in one of the parties. These capacity, a person may still be compe- ons, has made forensic psychiatrists types of assessments are needed in mul- tent to carry out some functions, mostly deeply aware of the interactions in the tiple situations, ranging from examina- because the capacity may fluctuate from mental health system and the links tions to specify the impact of injuries on time to time, and because competence between this system and the justice and a third party involved in a motor vehicle is not an all or none concept, but it is correctional systems. By virtue of their accident, to evaluations of the capacity tied to the specific decision or function involvement in legal matters, forensic to write a will or to enter into contracts, to be accomplished. In addition, a find- psychiatrists have developed a major to psychological autopsies in order to ing of incapacity should be time-limited; interest in the drafting and application assess testamentary capacity in suicidal that is, it will have to be reviewed from of mental health legislation, especially cases or sudden death, or evaluations for time to time. For example, a stroke may on the issues of involuntary commit- fitness to work and, of late in many have rendered a person incapacitated to ment, that in many countries is based countries, evaluations to determine ac- drive a motor vehicle and hence the on determination of dangerousness as cess to benefits contemplated in disabil- person will be deemed incompetent to opposed to just need for treatment, of ity insurance. In most of these situa- drive, but the person could still have the management of mentally ill offenders tions, the issue at hand is a determina- capacity and be competent to enter into and of legal protections for incompetent tion of capacity and competence to per- contracts or to manage personal finan- persons (5). Given that one major area form some function, or the evaluation of cial affairs. With time and proper reha- of their expertise is the assessment of autonomous decision making by im- bilitation, the person may be able to violence and the possibility of future paired persons. A determination of inca- regain capacity and competence to violent behaviour, forensic psychiatrists pacity leading to a finding of incompe- drive. Ordinarily, a person has to con- are usually called upon to make deci- tence becomes a matter of social control sent to an assessment of incapacity or a sions on risk posed by violent civilly that is used to legitimize the application legal order has to be obtained to make committed patients. There is a close interaction between legislation, development of adequate Table 1 Models for the delivery of mental health care to mentally disordered offenders mental health systems and delivery of Ambulatory treatment within prison care, whether in institutions or in the Mental patients remain with other inmates in the regular cells and tiers of the prison and come for visits to community. Mental health legislation the infirmary during psychiatric clinic with overly restrictive commitment Special wing within the prison clauses even for short-term commit- Mental patients are transferred to this wing for the duration of the episode or duration of their incarcera- ment, deinstitutionalization resulting tion from the closure of old mental hospi- tals, changes in health care delivery sys- Specialized security hospitals (penitentiary hospitals) Mental patients or those with special criminal pathology such as sexual offenders are transferred out to tems towards short admissions to gen- these hospitals, usually for the duration of their incarceration eral psychiatric units and subsequent treatment in the community, and the Contractual arrangements with outside psychiatric facilities large number of mental patients that Mental patients are transferred out to these hospitals or psychiatric units for the duration of the episode end up in jails, have created in many Forensic community corrections countries a sense that the mental health Every effort is made to prevent that mental patients enter the prison system or, if released from prison, to system is adrift. The growth of forensic ensure that they not go back psychiatry may be due to changes in the

88 World Psychiatry 5:2 - June 2006 law and to a more liberal acceptance of for research and learning, and it has psychosocial treatment strategies, that psychiatric explanations of behaviour, increased awareness of the human and are also providing new proven ways for but a more immediate reason is the civil rights of mental patients. management of mentally ill persons in large number of mental patients in On the other hand, deinstitutional- the community (12). In this respect, the forensic facilities, jails, prisons, and ization has also been credited with a development of mental health courts in penitentiaries. Failures of the general host of negative effects. Legally, along some countries, diversion alternatives mental health system may, therefore, be with legal activism, deinstitutionaliza- to imprisonment, assertive community at the root of the growing importance of tion has been blamed for giving impulse treatment and intense case manage- forensic psychiatry (6). to litigation and costly over-legalization ment modalities, as well as the use of One reason that has been most com- and over-regulation of psychiatric prac- community treatment orders (13), along monly advanced to explain the large tice (7). Socially, a series of pernicious with better policies in housing, point number of mental patients surfacing in effects have impacted directly on the fate toward a social move to resolve the the justice/correctional system is the of the mentally ill in the community. inequities of deinstitutionalization in policy of deinstitutionalization that gov- These have included reports of “revolv- order to stabilize community tenure for ernments have implemented over the ing door patients” (those patients in the mentally ill. At the same time, evalu- past fifty years. In general, deinstitution- need of repeated and frequent admis- ations of anti-stigma programs seem to alization refers to legislative decisions to sions) (8), and the rise among the home- indicate that some of these initiatives close large mental hospitals and resettle less populations in that at least 30% are helping in changing public attitudes patients into the community, providing among them are chronically mentally ill toward mental illness (14) and increas- short admissions to general hospital psy- persons (9). Even when housing is avail- ing awareness about the human rights chiatric units, outpatient treatment able, it is often in rundown tenements in issues in the treatment and manage- options, psychosocial rehabilitation, inner cities or psychiatric ghettos of ment of the mentally ill in many coun- alternative housing and other communi- large urban centres, where dispossessed tries (15,16). ty services. Sometimes, however, these and confused mental patients walk decisions did not respond to any plan- about in a daze talking to themselves, ning, or any assessment of the needs of and where they are easy victims of rob- ETHICAL CONTROVERSIES those patients that were going to be bery, rape, abuse, and physical violence. resettled, or deinstitutionalized. Neither Some simply die of exposure in the Because of its dual role in medicine was there a clear idea about the nature streets in frigid winter nights (10). Dein- and in law, the practice of forensic psy- of services to be provided, or the charac- stitutionalization has also been blamed chiatry is fraught with ethical dilemmas teristics of the communities where for the criminalization (11) and the worldwide. A forensic psychiatrist is patients were going to be relocated. The transmigration of mental patients from first of all a clinician with theoretical decisions, therefore, were mostly made the mental health system to the jus- and practical knowledge of general on rhetorical and political beliefs, rather tice/correctional system and for violent psychiatry and forensic psychiatry, and than on proper scientific reasoning. behaviour displayed by some mental experience in making rational deci- The idea and policies of deinstitution- patients in the community. sions from a clearly stated scientific alization have been both praised and vil- The most pointed criticisms to dein- base. In law, forensic psychiatrists must ified. To some, deinstitutionalization is stitutionalization, however, are no know the legal definitions, the legal an enlightened, progressive and humane longer aimed at the idea of resettling the policies and procedures, the legal set of policies that has placed the needs patients back into their communities, precedents relating to the question or of the mentally ill front and centre in but about how the idea has been imple- case at hand (17). Forensic psychia- many communities. In this regard, dein- mented. Whether because of financial trists must have knowledge of court- stitutionalization has been very effective. constraints or shortsighted administra- room activity and must possess an abil- Deinstitutionalization should be credit- tions, the fact is that, in many commu- ity to communicate their findings clear- ed with an increase in the involvement nities, mental hospitals have been emp- ly and to the point and to do so under of patients in their own care and rehabil- tied faster than the development of ade- the difficult situation of cross examina- itation, it has raised questions that chal- quate community resources and com- tion. The double knowledge in psychia- lenge the therapeutic nihilism rampant munity alternatives as they were envi- try and law defines the subspecialty of in a previous era, it has increased the vis- sioned in the original policies. forensic psychiatry and provides the ibility of mental patients in the commu- These unfortunate after-effects of ethical foundations for its practitioners. nity and in general hospitals and aca- deinstitutionalization should be coun- This double knowledge should be demic centres, it has allowed for a better teracted with the realization that treat- reflected from the very beginning in the understanding of the disease process ment alternatives to custodial care exist way the forensic psychiatrist first agrees which, previously, had been distorted by in the form of better medications with to get involved in an evaluation, the the negative effects of prolonged institu- enhanced efficacy and effectiveness, way the forensic psychiatrist approach- tionalization, it has provided an impetus that are becoming widely available, and es the person to be evaluated, and the

89 caveats that have to be provided. At those in the military, are called to fulfill be involved in the protection of human this stage, the most important issue for relates to the use of psychiatric judicial rights of mentally disordered offenders the forensic psychiatrist is to make sure hospitals in the Soviet Union and, more and the mentally ill in general. that the person subject of the evalua- recently, in China, and psychiatrists’ On the matter of ethics, we have tion is not misled into believing that, participation in interrogations of pris- dealt with the controversies that the because the psychiatrist is a medical oners and detainees that could lead to enlarged scope of action of forensic psy- doctor, the relationship to be unfolded allegations of torture, especially in the chiatrists have created in the under- is one of physician-patient, in which present climate of concern with terrorist standing of their social functions, from the doctor is expected to do the best for activities (22). This includes turning definitional problems to wavering about the patient and always to act to maxi- over to interrogators confidential psy- whose ethics they should abide by and mize the patient’s benefit, while reas- chiatric material that could be used to on to the latest concerns about the use suring the patient that privacy and con- pinpoint weaknesses and vulnerabilities of clinical knowledge for purposes that fidentiality are protected. In forensic of the prisoner (23), providing consulta- should be completely out of their ethi- psychiatry the relationship is one of tions on interrogation techniques or cal boundaries. evaluation, where the foundation of actively participating in deception tech- Practitioners of forensic psychiatry neutrality demanded from the evalua- niques to gather intelligence (24). It is in have moved their specialty to a frontal tor, and the fact that the evaluator is in this context that the end point motiva- role in society. They now have an obli- no position to reassure the person on tions of those calling for evaluations gation to make sure that they remain matters of confidentiality or privacy cannot be lost on forensic psychiatrists foremost physicians and that their (18), could mean that negative findings or physicians in general. Participation ethics and motivations are beyond will endanger the interests and cause on anything that could lead to torture reproach and impeachment. harm to the person being evaluated, will be a major trespass on the ethics of regardless of this person’s health and medicine. This also should be a clear the evaluator being a physician. Be- reminder to forensic psychiatrists that References cause of this, forensic psychiatrists may medical ethical rules cannot be tres- even be implicated in the criminaliza- passed, no matter what the demands of 1. Gutheil TG. Forensic psychiatry as a spe- tion of mentally ill persons (19). the master (25). cialty. Psychiatric Times 2004;21. 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