Forensic evaluations in psychiatry.

Forensic psychiatry is an important subspecialty of psychiatry. Forensic psychiatrists play an important role in the society in assisting the judiciary in many complicated cases. In India, forensic psychiatry work is undertaken mostly by the general psychiatrists. Forensic psychiatric assessments are often associated with an element of anxiety or fear for a young psychiatrist. The present paper aims at familiarizing the readers with forensic evaluation in various situations so that they are able to carry out the assessments in real-life situations comfortably. Various steps of forensic assessment in different situations are discussed in the background of real-life cases. Assessment areas include criminal responsibility, fitness to plead, issue of guardianship, assessment of mental status, testamentary capacity and others. The paper gives some general guidelines on forensic psychiatric assessment in practical situations in our country. The readers are advised to refer to the standard textbooks and the Indian law for further details.

INTRODUCTION

Forensic evaluation is an essential part of psychiatric practice. In India, there is no separate specialization available in forensic psychiatry as in the West and general psychiatrists are often requested to conduct the forensic evaluations. This paper discusses principles and common procedures to be followed in forensic assessments. The basic purpose of this paper is to sensitize the readers with forensic assessment in real-life situations, so that they are able to assess the common psychiatric referrals from the court for forensic assessments, and confidently prepare the report and appear in the court for related evidence. The paper also discusses the related issues of ethics and confidentiality.

Common reasons for forensic psychiatry evaluations

Various reasons for forensic psychiatric evaluation can be broadly grouped under criminal and civil groups. 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, to know whether a person with mental illness is able to take care of self and manage his/her affairs or needs a guardian or a manager. Cases of testamentary capacity, marital dispute and divorce on grounds of mental illness, child custody and disability compensation are some other situations where a psychiatrist may be asked by a court to give a report. Sometimes, the psychiatrist may receive a request from an employer asking for opinion about the mental condition of an employee and his/her fitness to continue in the job. An analysis of requests received at a teaching neuropsychiatric hospital from the court or employers for psychiatric assessment by a board of psychiatrists over a period of 18 months found that 57% of the requests referred to psychiatric evaluation for assessment of the mental condition and fitness to stand trial. Twenty-eight percent of the requests referred to the issue of guardianship. Fourteen percent of the requests referred to invalidation from service on grounds of mental illness.[1]

Some examples of the real-life questions taken from the court orders to a hospital regarding psychiatric assessment of an accused person are given in verbatim as under:

Whether the accused is suffering from a mental disorder; if yes, what is the nature of mental disorder?

Whether the accused is of unsound mind? Whether he can understand the proceedings of the court and stand trial?

Whether the accused was mentally ill to the extent that it led to murder?

Whether the said person is capable of taking care of his person and managing his affairs?

Whether the said person suffers from a mental disorder of severity to make him incapable of leading a normal family life?

Whether the said person is incapable of taking care of self and of managing his property?

Whether the said person suffers from a mental disability?

Whether the person is able to live a responsible and meaningful married life?

Which of the parent should be given custody of the child?

There is an unending list of questions, which a psychiatrist may be asked to respond to. As also given above, the questions may refer to the psychiatric diagnosis, presence or absence of insanity or the intelligence of the accused. Questions may refer to the intent, irresistible impulse or premeditation. Sometimes the questions may be very specific, but difficult to answer. For example, one may be asked, ‘was the accused drunk when the crime was committed’, or ‘is the accused addicted to some drugs’, ‘did the accused know the nature of the act charged’, did he know what he did was contrary to law‘? What was the mental condition of the accused, when the crime took place? (the crime might have occurred long time back, and thus the question of assessing condition of the accused at the time of crime may appear illogical).

Sometimes, the accused may feign amnesia. In such a situation, 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. In criminal cases, dangerousness is another area needs to be covered.

Steps of the forensic psychiatric assessment

Forensic psychiatric assessment involves a 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. A photo-identity proof will establish 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.

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. Minor modifications in the assessment format may be required depending on the kind of request.[2]

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.

Specific assessment may need to be modified, which is discussed under the relevant headings. The paper discusses the basic principles.

Some basic concepts in forensic psychiatry

Before going into further details, it is important to discuss here some of the basic concepts related to forensic psychiatry, which are frequently referred to in communications with the courts. These include crime, insanity and mental illness.

Crime

The Oxford Dictionary[3] defines crime as “an offence for which one may be punished by law”. In further detail, a crime is an act or behavior declared by the law of the land to be an offence at a particular time. Since it violates the law of the land, it is punishable by the State.

Crime has two components: Actus reas and mens rea, referring to the guilty act against the law and the evil intent respectively. Thus for an act to be labeled as crime, it should be against the law and be accompanied by an evil intent. Both these elements must be present before an accused can be said to have committed the crime.[4]

Insanity

The word ‘Insanity’ does not have any technical meaning in law or medicine.[5] 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 to enjoy exemption from punishment.

In legal language, the term ‘unsoundness of mind’ is also frequently used synonymously with insanity. The Indian Penal Code uses the term ‘unsoundness of mind’ in its Section 84, but has not defined it. 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.[6]

Trial of a 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 defense and other related matters. In the Indian law, Sections 328-339 of the Code of Criminal Procedure (CPC), 1973[7] 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, the Magistrate 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 thereupon shall examine such surgeon or other officer as a witness, and shall reduce the examination to writing”. If the Magistrate is of the opinion that such a person is of unsound mind and consequently incapable of making his defense, further proceedings in the case are postponed. Subsequent sections give further details of the procedure, discussion of which is beyond the scope of this paper.

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 pending investigation or trial 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.

Criminal responsibility

Criminal responsibility 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 McNaughton Rules. Section 84 of the Indian Penal Code (IPC) refers to criminal responsibility. It refers to it as an act of a person with an unsound mind and states ‘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 he is doing, what is either wrong or contrary to law.’[6]

There is a related concept, partial insanity or diminished responsibility, which has also been a focus of attention. In partial insanity, dysfunction is primarily in form of delusions, while understanding and memory are intact. For example, an accused kills another person under a delusion that he was attempting to take his life. The action is in self-defense, since the person does not know what he was doing was wrong or contrary to law. Or a person sacrifices his child before a Goddess under a delusion that the Goddess will make the child alive by Her powers and bestow his family with Her blessings.[58]

The insanity defense is usually used in charges of murder to escape capital punishment. When successful, the accused is considered ‘not guilty’. However, the person is sent to a mental hospital for treatment. For a defense on ground of the mental illness, the unsoundness of mind should have existed at the time of committing the offence. Subsequent unsoundness is not a defense, but may affect the trial. Sometimes, a person may feign the illness to get bail or to delay the proceedings. The readers are referred to an historical article by Somasundarum,[9] which very lucidly discusses the concepts of insanity and criminal responsibility.

According to the Indian law, idiots, imbeciles and persons who are deprived of all understanding and memory, and children below 7 or those between 7 and 12, of immature understanding, are clearly not criminally responsible.[6]

There are a number of pointers which may indicate that the crime could have been a result of mental illness. These include absence of motive in the crime, absence of secrecy while committing the crime, want of preparedness, use of needless force in the crime, absence of accomplices in the act. The person might have committed multiple murders without any apparent motive. There is often an indifference to the crime committed.

The court often asks about the mental state of the accused at the time of the crime, which might have happened many months or a few years ago. It may not be humanly possible to give a definitive opinion about the mental state of the person at that time. The opinion in such situations depends on circumstantial evidence, old treatment records if available and history gathered from the accused and others. One also needs to be sure how much reliable and accurate information one is getting from different sources.

It is important to mention here that the expert evidence does not relieve the court from forming an independent opinion. The question of insanity is to be primarily decided by the court, based on the available evidences.

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 for fitness to plead or stand trial 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.[10] Positive symptoms of psychosis, especially thought disorder and delusions have been known to be associated with unfitness to plead.[11]

In an assessment of fitness to plead due to mental illness, basically the assessment is aimed at whether a criminal defendant has sufficient present ability to consult his lawyer with a reasonable degree of rational understanding, and whether he has a rational and factual understanding of the proceedings against him.

Some real-life examples about the fitness to plead are given in the following paragraphs.

Case 1: Hallucinations of barking dogs

Mr. A, a 38-year-old male, who was accused of homicide, was referred for assessment with questions, whether he was of unsound mind, and whether he can understand the proceedings of the court? His only complaint was of hearing barking dogs. He had been diagnosed as having schizophrenia in the jail hospital and held an old prescription from a general practitioner with a diagnosis of schizophrenia, which also mentioned about him having been hospitalized in a teaching psychiatric hospital in 1995. He was admitted for observation. A request was sent to the old hospital where he was admitted in the past. It was confirmed from the previous hospital that he was admitted there for about 2 weeks and had received a provisional diagnosis of schizophrenia. He had also attended the follow-up twice after discharge. However, during his current hospitalization, no abnormality could be found on observation and psychological assessment. He often came up with ‘I don’t know response’.

Mr. A probably believed that if he got a certificate from the hospital of his being mentally ill, he would be acquitted. He was always emphatic that he had not committed any crime, but was never able to tell how and why he reached the jail. He was able to give details of his earlier life in Mysore and Bangalore. A medical report was sent to the court, given as below:

“Mr. A had suffered from a psychotic disorder in the past in …………. At present he does not have any psychiatric illness needing treatment. He does not give any details about the criminal charges he has been accused of or details regarding defense saying that he does not know. Objectively there is no significant memory impairment. There is no evidence to suggest that he is of unsound mind and he can’t understand the proceedings of court”.

Case 2: A patient of chronic resistant paranoid schizophrenia

Mr. B, accused of homicide, was sent for assessment, whether he was suffering from a mental illness and whether he was fit to stand trial. The court had suspected him of malingering. There was a history of loss of sleep, wandering on terrace during night, saying that food smelt of meat, talking irrelevantly, suspiciousness and hearing voices for about 15 years. The crime, of which he was an accused, was committed over 10 years ago. He often talked about many superpowers giving instructions to him, controlling him and the world by satellites and being on a mission on their orders. The psychopathology was consistent over the previous 10 years as recorded in the hospital records. The psychological testing also supported a diagnosis of schizophrenia. Mr. B was never able to give any details about his legal case. Observation during hospitalization also did not reveal any inconsistency in symptoms or behavior.

A report was given that “Mr. B suffers from schizophrenia and needs regular treatment. He is not able to understand the nature of offence he has been accused of, and the court proceedings, and hence he is not fit to stand the trial of court.”

Case 3: Malingering of mental illness: Tricks used by criminals

Mr. C., a 40-year-old male, who was accused of triple murder, was sent by the court for assessment, whether he suffered from a mental illness. Mr. C had been trying to get bail, which had been denied. He was hospitalized for observation. After 2-3 days of hospitalization, he started accusing the clinical unit head of being against him. On the next day, he broke the glass of the nursing station and also attempted to assault the consultant in charge of treatment. The hospital staff took protective steps, but did not initiate any treatment. No abnormality was detected on observation and mental health assessment. Apparently, he had been advised by his lawyer to show a violent outburst in the hospital, which might lead to his being given some injections. This would have supported a diagnosis of a mental illness.

Mr. C was discharged and sent back to jail. A report was sent to the court that he did not suffer from a mental illness.

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).[12]

Assessment in such cases is focused not just on the on the presence or absence of the mental illness, but its severity, which renders the person incapable of taking care of self or/and 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.)

What is the level of cognitive functions, judgment level?

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.

Example: Mr. C, a 54-year-old male, an ex-serviceman was referred with a court order asking for a report whether he was capable of taking care of himself and his affairs. Mr. C had been suffering from schizophrenia for nearly 25 years. He had been discharged from the armed forces about 22 years ago on grounds of mental illness. On a detailed assessment, Mr. C was found to have multiple delusions of persecution and control with bizarre quality. He was also actively hallucinating. He, however, was able to take personal care under supervision of his brother, but was not able to give any details about his assets like property or income. He had been maintained on clozapine for nearly 5 years. A report was sent to the court that, “Mr. C suffers from schizophrenia and needs regular treatment from a psychiatrist. Due to his illness, he lacks capacity to take care of self and manage his property”.

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.

In determining who should be given the custody of a child in cases of divorce, generally it is presumed that the welfare of a child of tender years is best served by maternal custody when the mother is a good and fit parent. However, there are a number of related issues, which may need to be looked into. The psychiatrist should take details of conflicts, if any, between parents, or between parents and grandparents, regarding the custody of the child. The issue of granting permission to the divorced father to visit the child with maternal custody also needs to be looked into, especially the frequency and duration of such visits.

There may be a situation where the mother due to mental illness is not able to take care of the child and the father is not available, and no alternative arrangements are possible within the family. In such a situation, the child may need to be placed in a foster agency.

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,[13] 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. The person capable of giving in adoption should also be of sound mind.

Issues like suitability of a child for adoption may also need to be assessed, for example, physical and emotional needs of the child, and whether the proposed adopting parents would be able to fulfill those needs. Emotional stability and generally, resources of the couple planning to adopt the child also need to be assessed.

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. This may include a question about the condition of one of the partners at the time of marriage or whether the husband or wife is suffering from a mental illness, and if yes, whether it is of such severity that the person is not able to lead a responsible married life because of the mental illness.

According to the Hindu Marriage Act (Act 25 of 1955),[14] Section 5(ii) introduced by Act 68 of 1976, if at the time of marriage any 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, the marriage shall be voidable and can be annulled by a decree of nullity under Section 12 of the Act.[14]

Insanity or unsoundness of mind is also grounds for divorce under the Muslim Marriage Act, 1939 and Parsi Marriage and Divorce Act, 1936.

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. Psychopathic disorder here means persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct and whether or not requires or is susceptible to treatment.[14]

Example: Ms. M, a 30-year-old lady was referred from a court with a request to examine her that her husband had filed a petition for divorce on grounds of mental illness. There was history of psychiatric treatment for a few days and she had also been hospitalized for the problem, but no records were available. She did not report any symptoms suggestive of a mental illness, though there had been a history of marital discord. A detailed psychiatric assessment did not reveal any evidence of a psychiatric illness. Psychological assessment also did not reveal any significant abnormality. She was further examined by a medical board of the hospital. A report was sent to the court that “Ms. M has been examined by a medical board. Serial assessments have been conducted and psychological assessment has also been carried out. Based on all these assessments, the medical board opines that she does not currently suffer from a mental disorder”.

Testamentary capacity

Testamentary capacity refers to the ability of a person to make a will. Will is a legal document, signed by the testator, the person making a will. It is essential that the testator should have sufficient capacity to understand the conditions of his property, his relations with the persons who were or should or might have been object of his bequest and the scope or the bearing of the provisions of his will. To be valid, the will needs to be signed by the testator in the presence of at least two witnesses.

According to Section 59 of the Indian Succession Act 1925,[15] 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 not incapable in 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. No person can make a will while he is in such a state of mind, whether arising from intoxication or from an illness or from any other cause, since in these circumstances, the person does not know what he is doing.[16]

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. The person making a will should be aware of the act he is undertaking. The person should not be suffering from a mental disorder or be under the effect of some drugs to the extent that would interfere with his/her judgment.

The testator should have sufficient capacity to know the extent of his/her property and should also be aware of the potential beneficiaries. The testator should be aware of the consequences of his/her decision and know the content of the will he/she is making. The testator should be examined over at least two separate consultations.

Example: Mr. X, an 83-year-old retired officer from a government job, wanted to make a will and approached our outpatient service for a certificate. He was accompanied by his son. Mr. X had retired nearly 25 years ago. He owned a 3-storey residential premise in Delhi, a residential plot in Jaipur and had some bank accounts. He had two sons and two daughters. His wife was not alive. He was well aware of his assets and the beneficiaries. On a detailed assessment, Mr. X was not found to suffer from any psychiatric illness or memory impairment. His MMSE score was 28. On the basis of the assessment, Mr. X was issued a certificate that, “Mr. X does not suffer from any psychiatric illness. He is well aware of his assets and beneficiaries, and hence is competent to make his will”.

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. Sources of information like old clinical records, if available or family members or other informants, need to be mentioned. 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. 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. Psychiatrists more often will not know the outcome of a case unless they make an effort to find out.

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.

Psychiatrist in court

A psychiatrist may be called to the court to testify the report sent earlier. The psychiatrist need not feel anxious or worried. There are some important points that a psychiatrist needs to take care of. One should listen carefully to the questions asked. One should stop talking the moment the judge begins to speak. The mobile phone should be switched off. The psychiatrists should always be aware of the limits of their discipline. It is important to avoid words such as “always” and “never”. If pressed to answer in yes or no to a complex question, one can say that ‘this question cannot be answered in yes or no’. One should not be reluctant in saying “I don’t know”, if one does not have an answer. One should speak in simple and clear language, avoiding medical jargon.

Psychiatric examination has inherent limitations of not being supported by any investigations unlike the other branches of medicine. Therefore the psychiatrists need to be very careful while communicating the medical report. The report should be conveyed in simple and clear language. One should always be brief in the report and can expand when asked to. The psychiatrist also should be careful about the malafide intentions of the informants, if any.

It is important to reiterate that the expert opinion does not relieve the court from forming an independent opinion. The medical evidence helps the court in reaching a judgment. Sometimes it may not be possible to provide answers to all the queries from the courts. In such cases, a reason may be communicated like that of the limitations of the science or limited sources of information.

CONCLUSION

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.