FORENSIC PSYCHIATRY

The word ‘‘forensic’’ was derived from the latin word ‘’forum’’ which means ‘‘belonging to
or suitable for the courts or public discussion’’. Therefore forensic psychiatry covers all
aspect legal aspect of psychiatry, including the civil law and other laws regulating psychiatric
practice. It covers areas like

-criminal responsibility

-competences for trial, will, contracts etc

-interrelationship between crime and mental disorders

-compulsory hospitalization

-consent

-custody of children

-malpractice issues

Crime:

Crime is as old as the human history. Its definition varies according to the society where it
occurs. The following factors have been associated etiologically with crime.

-Genetic influences:

some early studies suggested have suggested a high concordance rate for criminality in MZ
twins compared with DZ twins.

Adoption studies have shown genetic influence to be modest, but particularly significant for
severe and persistent criminality. In conclusion, genetic influence on crime may be modified
by other factors e.g environmental, sex, cultural, economic etc.

Contributions of chromosomal aberration to criminality have not been conclusive. Eg initial

studies suggested that XYY chromosome abnormality is more frequent in patients
incarcerated in maximum security hospitals compared to the general population but recent
studies suggest that the XYY constitution is only weakly associated with criminal behaviour.

-Low intellect:

Studies have shown an association between low intelligence and delinquency (Rutter, M;
Giller, H 1983).

M.A.O.type A-low levels in antisocial behavior- gene related.

Neuro imaging - amygdala & orbitocortical dysfunction in antisocial personality disorder.

EEG abnormality in violence/treated with antipsychotics acting on neurotransmitters.

Abnormality in metabolism of serotonin/T.L.E. disturbances.

Sociological-Anomie (Durkheim).

Psychological- id dominated,damaged ego,super ego lacuna,unable to control eros.

Endogenous opiates-”thrills involved in crime cause release of opiates, which produce

elevated mood and thus crime seen as exciting/rewarding experience (positive
reinforcement).

Personality type.

Reduction in violent offending behaviour with increasing age has been associated with
changes in neurotransmitter levels – increasing serotonin, decreasing noradrenaline,
dopamine, acetylcholine, levelling off of reductions in GABA (GABA reduces in the post-natal
period up till about age 20 and then decline levels off through middle-age.

-Psychosocial factors:

Factors such as unemployment, poverty, low social class, drugs, emotional deprivation etc
have been shown to influence criminality

Crime and mental disorder:

The relationship between crime and mental disorder have been studied by

-looking at the extent of mental disorders among offenders

-Criminality in psychiatric populations and the manner in which specific psychiatric disorders
may be associated with criminal acts.

Mental disorder in offenders:

This interrelationship have been studied by looking at populations of asylums, mental

hospitals. Studies have found a high prevalence of psychiatric morbidity amongst prisoners.
While major psychiatric disorder is not much more common in prisoners than in the general
population, many more prisoners suffer from personality disorders, neurotic behavioural
problems, alcoholism/drug dependency and epilepsy with mental handicap. Some of these
may also be secondary to imprisonment.

Criminality in psychiatric populations:

The rate of offending among psychiatric patients compared with that of the general
population is not known with certainty. However different psychiatric disorder may be
associated with offending in several ways e.g
Schizophrenia:

-may be related to florid psychopathology e.g paranoid delusions, delutional mood,

intensive fear, instruction from voices, loss of self control, misinterpretation of the
environment, drug abuse etc. Most violence by schizophrenics is domestic in nature. These
patients may be apathetic and lacking in judgement and require medical attention.

Affective disorders:

-Manic patients:

May patient may spend excessively and not be able to pay, can be grandiouse, may be
charged for fraud, false pretences, impersonation. They are also prone to irritability,
aggression and this may result in violent offenses

-Depression may occur for the first time in middle age and be associated with shoplifting,
impaired concentration, indecisiveness, effects of prescribed medication, homicidal acts in
depressed mothers etc.

Personality disorders:

Studies have reported association between crime and personality disorder, especially
antisocial personality disorder. Repeated offending (recidivism), undue aggression and
socially irresponsible conduct.

Neuroses:

Some offenders may commit the same offence again and again and the behaviour may be
senseless e.g petty shoplifting.

Mental handicap:

They may not understand the implication of their behaviour or may be susceptible to
exploitation by others, high incidence of sexual offences in these patients. Also a high
association with arson.

Alcohol abuse and other drugs:

Drugs can reduce inhibitions and may be strongly associated with crimes of violence,
including murder. Offenses may also be committed during delirium tremens, alcoholic
hallucinosis, alcoholic amnesias or blackout states and in states of morbid jealousy. Alcohol
may contribute to homicide in both victim and offenders. Drug dependent people may be
driven into theft/violence in attempt to procure their drugs.
Organic conditions:

May be related to impaired judgement/disinhibition seen in organic conditions. Dementia

and acute organic brain syndrome can result in offending.

Epilepsy:

No clear cut association between epilepsy and offending. However, certain epileptics may
have brain damage that induce both seizures and criminal behaviour. some may resort to
antisocial behaviour because of general social difficulties.

Erotomania:

Delusion of being loved loved by a distinquished, powerful person. It may lead to conflict
with the law as they may resort to pursuing the personality through unwelcome
approaches, letters and physical pursuits.

Pathological jealousy:

This can be associated with spouse homicide and therefore of forensic importance.

THE MENTALLY ABNORMAL OFFENDERS:

On entry to legal system 3 major areas need consideration-viz.

-Fitness to plead.
-Insanity regulations.
-Dangerousness applications-deal with assessment /prediction of future violence/recidivism.

Mentally ill offenders represent a small proportion of all offenders in general. The presence
of mental illness may make the defendant unfit to plead or it may affect his criminal
responsibility.

Fitness to plead criteria:

This is with regard to the mental state of the mentally ill offender at the time of trial. This is
based on the notion that it is morally wrong to try a person who by nature of mental illness
is deprived of the capacity to defend himself in court. A person may be suffering from
mental disorder but still fit to plead. Fitness to plead may therefore be determined be the
following. Does the defendant

-Understand the charge(s) brought against him.

-Understand the difference between pleading guilty and not guilty.

-Challenge a juror to whom he might object

-Follow proceedings in court.

-Instruct his counsel on his behalf.

Criminal responsibility:

The jurisprudence in most country hold that a person should not be adjudged criminally
culpable unless he was able to control his behaviour and to choose whether to commit an
unlawful act or not. Therefore to determine his criminal culpability it may be necessary to
consider his mental state at the time of the act.

To establish guilt for most crime, it is necessary to demonstrate that not only did the
defendant commit the unlawful act (actus reus), but also that he possessed the necessary
state of mind (mens rea) for that particular crime

-physical component (the act) - actus reus

-mental component (the intention) - mens rea

It is therefore the responsibility of the prosecution to prove intent on the part of the
accused before conviction. However some strict liability offenses exclude men rea it ie the
mere committal of the offense makes one criminally liable irrespective of the state of the
mind e.g abduction of girls under 16 years of age.

The following factors may impair mens rea

-Age

-Mental disorder

-Effects of alcohol and drugs

-Automatism

(1) Age:

It is considered that children under 7 yrs are incapable of forming a criminal intent.
Between 7-12 years, are also excluded unless it can be proved that they knew the nature of
their action and knew it to be morally and legally wrong.

(2) Mental disorder: (Insanity Defence)

Historically, insanity defence or the concept of defence by insanity has existed since ancient
Greece and Rome. Edward 11, under English common law, declared that a person was
insane if their mental capacity was no more than a ‘’Wild Beast’’. The first complete
transcript of an insanity trial dates to 1724. The fate of insane defendants was uncertain in
the UK until the criminal lunatic act 1800, following the acquittal of James Hadfield,
provided for their indefinite detention. The insanity plea was legalised in the United States
with the M’Naghten Rules, which came as a direct consequence of the attempted
assassination of British Prime Minister Robert Peel in 1843.

In 1843, Daniel Mac Naughton, a wood turner from Glasgow killed Edward Drummond
(parliamentary secretary to prime minister sir Robert Peel). He had earlier sought help from
the police because he believed the Tory Government, Catholic church, Free masons were
persecuting him. He decided to kill the head of the conservative government. He was found
not guilty by reason of insanity and admitted to Bethlem Hospital. The outcry from the
public led to judges drawing up rules(M’Naghten rules) which were to serve as guidelines in
subsequent cases. It states ‘’To establish a defence on the ground of insanity, it must be
clearly proved that at the time of the commitment of the act, the 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, if he did know it he did not know it was wrong . it is
sometimes also referred to as ‘’Right-Wrong Test’’.

Thus it is necessary for the defendants to prove either of three issues:

1. that he was suffering from a disease of the mind at the time of the crime
2. that this caused a defect of reason
3. that the defect of reason robbed him of the capacity to know what he was doing or
know that it was wrong. (Mc Naughton’s rule)

In 1922, jurist in England broadened Mac Naughton’s rule concept to include ‘’irresistible’’
impulse. An idea which argue that a person may have known an act was illegal but because
of a mental illness, they couldn’t control their actions.

Criminal code Aspect (Nigeria)

Section 27- Presumption of sanity

Section 28 -Limb 1 (Deals with Insanity)

-Limb 2 (Non exculpatory Delusion)

Section 29- Deals with Intoxication

Section 30- Deals with Immature Age

The law of southern Nigeria (1958, 1963), the criminal code,(section 28, limb 1) states that
‘’a person shall not be held criminally responsible for his acts or omissions, if at the time of
the said acts or omission he was suffering from such a state of disease of the mind or
natural mental infirmity as to deprive him of the capacity to

1. understand what he is doing or

2. control his actions
3. know that he ought not to do the act or make the omission.
Section 28 limb 2: ‘’A person whose mind at the time of his doing or omitting to do an act, is
affected by delusion on some specific matter or matters, but who is not otherwise entitled
to the benefit of the foregoing provisions of this section, is criminally responsible for the act
or omission to the same extent as if the real state of things had been such that as he was
induced by the delusion to believe to exist’’

Diminished Responsibility:

Shades of mental impairment can affect mens rea,not necessarily completely nullifying it.
Lesser degree of intent.

Applicable only to murder.

Responsibility diminished.

Not guilty of murder but manslaughter.

(3) Effects of Alcohol or Drugs:

In the following instance, evidence of voluntary intoxication might affect an accused

person’s criminal responsibility

-if alcohol or drug have caused a diseased of the mind, an insanity defence under the Mac
Naughton rules may be cited.

-if alcohol or drugs have caused an abnormality of the mind such that it substantially impairs
responsibility, a plea of diminished responsibility (in murder only) may be possible in
countries that allow this defence.

-if a crime requires a proof of specific intent e.g murder, thief, burglary), evidence of
intoxication may be used to demonstrate an inability to form that intent. Self induced
intoxication is not a defence in those crime for which evidence of specific intent is not
required e.g manslaughter, rape, indecent assault etc

(4) Automatism:

This may also impair mens rea or criminal responsibility

Not available if person aware of condition prior to offence but failed to take reasonable
steps to prevent crime.

A defendant with history of poorly controlled seizures who kills another cannot assert
defense.

Intoxications, seizures, metabolic & other organic disorders relevant here.

DANGEROUSNESS

Potential to cause serious physical/lasting psychological harm.

Relevant factors – history of violence, nature of offence, adverse childhood experience,

social instability (employment/relationships, substance abuse, history of self harm,
impulsivity, poor compliance to medications, mental state (command hallucinations,
passivity, hostility, suspiciousness, lack of insight.

Risk assessment instruments developed.

HOMICIDE

Include murder, infanticide, manslaughter.

Predominantly masculine, low social class.

Inversely related to suicides.

Role of Alcohol.

Lawful or unlawful.

Normal or abnormal.

INFANTICIDE ACT

Kills infant under 12 months.

Balance of mind disturbed, consequent lactation.

Initial charge is usually murder.

Disposal as for manslaughter

Mental Disorder and Civil Rights

civil rights may be deprived as a result of mental disorder.

Civil commitment:

In the civil commitment of commitments of patients to hospital, the requirements include

(a) There must be the presence of a mental disorder

(b) An element of risk to the welfare of the patients or of others
(c) There is no alternative to hospital admission as a means of safeguarding that risk.
Voting Rights:

Prisoners and idiots may not vote at elections

Marriage and Divorce:

Marriage is seen as a contract in the eyes of the law and can be terminated by divorce or by
annulment. Mental disorder can be cited in both instances. As a contract, both partner must
understand its nature to be valid. Marriage can be annulled if it can be proved their party
did not /could not give consent by virtue of unsoundness of mind.

Parental Rights:

The right of a parent to provide parental care or child custody may be nullified where
mental disorder affects the ability of the parents to provide such care.

Engaging in Contracts:

The validity of a contract entered into by a mentally disordered person depends upon a test
of his capacity to understand the nature of contract and its implications. Thus a mentally ill
patient is bound by his contract, unless he can show that the other party knew of the
incapacity when he made the contract.

Making a Will (Testamentary Capacity):

Testamentary capacity is the capacity to understand the nature and effects of the task of
making a will. When mental disorder exist at the time of making a will, the validity of the will
may be in doubt and such a will may be challenged in court. The testator (mentally ill
person) must be of a sound disposing mind at the time of writing the will for it to be
considered valid.

The following criteria are applied

(a) Does he understand what a will is and its consequences? Is he aware he is making a
bequest?
(b) Does he know the nature/extent of his property?
(c) Does he know which people may reasonably expect to be his beneficiaries even
though he may choose to exclude them, does he know the names of close relatives
and can he assess their claim to his property? The identity of his natural beneficiaries
e.g spouse, children etc
Court Reports:

Purpose is expert advice. Psychiatric recommendation may influence decision about

guilt, responsibility and sentence.

Read all background documents, including statements of witness (proof of evidence)

and all available medical and legal records.

-Report should indicate the name, charge number, charge of the accused.

-note where and when the examination took place and the sources of your information

-cite a brief demography of the patient.

-cite a brief chronology of educational, occupational and social history, emphasizing any
factor of psychiatric significant.

-point of relevance in family history

-previous medical/psychiatric history.

-previous criminal record

-A brief note on the circumstances of the offence

-Features found on psychiatric examination

-Psychiatrist opinion

DISCLOSURES

Poddar was an outpatient who told his therapist that he had intention to kill Tatiana
Tarasoff. He decided to commit him but was overruled by the supervisor. He later
absconded and kill her. Her parents later sued the university and the supreme court
ruled as follows

Tarasoff 1: (Duty to warn)

The establish of a therapist-patient relationship obliges the therapist to care for the
safety of not only the patient but also others. You are expected to warn the appropriate
people or law enforcement authorities when a patient presents a clear threat to another
person.

Tarasoff II: (Duty to protect)

By incarceration of the patient or not discharging a patient not fit enough or without
arranging for adequate follow up.
 The California supreme court issued this second ruling in 1982 to broaden an earlier
ruling (Tarasoff 1).

MALPRACTICE

It is a tort or civil wrong and 4 elements must be proved. These are

-Duty to care

-Deviation from standard of care

-Damage to patient

-Direct causation between deviation and damage.

Examples of Malpractice

Liabilities include failure to properly evaluate, negligent prescription practices (exceed dose,
use wrong meds. failure to disclose side effects), ECT with undiagnosed fracture, failure to
obtain informed consent

resulting in irreversible damage (T.D.), suicides, boundary violations, mechanical restraint

causing disability, breach of confidentiality, prolonged and unnecessary incarceration that is
ultra vires, absconding patient kills self (Dickson Igbokwe vs.U.C.H).

VICARIOUS LIABILITY

This is a legal doctrine also called ‘’ Respondeat Superior’’ . it means ‘’Let the master answer
for the deeds of the servants’’. There is need to take an indemnity.

TESTIMONIAL PRIVILEGE & CONFIDENTIALITY.

Privileged statements-made by certain people within a relationship e.g. couples, priest-

penitent, dr-pt; and the law protects from forced disclosure on witness stand/right to
maintain secrecy under subpoena.

Right belongs to patient, so can waive it.

Waived automatically when patient imports mental condition defense.

Also waived in proceedings for compulsory hospitalization/military courts.

Confidentiality-In medical ethics, physician bound by oath of secrecy on information given

by patients-applicable to some population, not to others. No need for permission to discuss
with clinical team members, supervisor, consultant.

Subpoena duces tecum- obliges you to produce the relevant records & documents.
MENTAL HEALTH LAWS REFORM.

Current legislation obsolete 1916 Lunacy ordinance, shortly after Calabar asylum 1904.

1948 – Lunacy Laws in Nigeria. Largely unchanged since.

New legislation-emergency application for 72 hours, compulsory admission for

observation(max.28days),treatment for maximum of 365 days on recommendation of 2
doctors after relative’s application, removal to place of safety, provision for mental heath
tribunals and offences under the act.

PROPOSED BILL.

In 34 clauses, arranged in 8 parts-viz.

1- defines various ramifications of mental disorder.

2- identifies treatment facilities available.

3- admission/discharges of pts.-compulsory admission for observation, for observation &

treatment, emergency admission, removal to place of safety. Part guarantees patients
human rights.

4 – relates to admission/discharge of m.a.o’s

5- deals with testamentary capacity & related issues.

6- relates to consent for various treatment.

7- offences under the Act – sex with patient, forgery

8-Immunity of carers unless acting in bad faith, transitional provisions (repealed

Acts/sections of criminal code).

ETHICAL ISSUES

Psychiatrist-a doctor-expected to conform to dr.-patient ethics-privacy/confidentiality, do

no harm.

Forensic evaluation-relationship for evaluation/neutrality demanded/confidentiality not

guaranteed-inform you may need to report to court, but if anything does not want, call my
attention and I will use my judgment. Let him know for whom you conduct interview.

Forensic psychiatrists thus implicated in the criminalization of the mentally ill-assist court by
opinion which may increase severity of sentence and harm patients.

TESTIMONY – Should you participate in trial where your testimony might lead to defendant
being punished?
E.G.-can't be helped by treatment, dangerous – Primum non nocere principle-first do no
harm.

But you don’t make decision, only give a scientific opinion-decision by court.

Should psychiatrists be retained by one party in adversarial process?- potential for bias

Base reports on all available data, separate clinical facts, opinions, inferences.