The Psychiatrist as an Expert Witness.

A psychiatrist, in India, unlike in the western developed world often is required to play dual role of being a treating psychiatrist and that of an expert witness for the same patient. In the clinical scenario, the principle of therapeutic alliance comes into play, while in the court of law, he/she needs to play the role of assisting the judicial system to deliver "justice." Psychiatrist role in the court is directed by the court rules and not by the clinical rules. This chapter aims to describe the various roles played by the psychiatrist in the court room and provides a basic outline of the medicolegal expectations from a psychiatrist. Copyright:

INTRODUCTION

Who is an expert? The question seems to answer itself. A person who has sufficient expertise in his/her field of study is an expert. This expertise involves both knowledge and experience. Substantial knowledge in the given field/topic with attendant experience in the matters thereof makes a person an expert. Psychiatrist who has sufficient knowledge from training and necessary experience in mental health through practice makes an expert. A mental health professional with adequate knowledge about the medico-legal aspects of psychiatric practice and who has an ability to deliver relevant information to address the concerns of the legal system makes an expert. An expert may be called as a witness to a court to review and opine on a particular case. This opinion is sought by the court to better educate the counsel or judges and to provide clarity in the issues related. The role of the expert witness hence involves training and educating the legal system with the available updated knowledge and wisdom in the field. The expert might provide relevant reason and information that helps the legal system to arrive at an informed conclusion or decision.

A psychiatrist’s clinical management works with the principle of “therapeutic alliance” but as an expert witness might need to face “adversarial context” which might appear threatening and intimidating for a beginner. In the clinical context, the psychiatrist works for the patient but in the court room, the psychiatrist works first and foremost for his/her own self and to the court. Although the expert is expected to be a lucid teacher in court, it is to be noted that the trial process is not a class room lecture. The expert is expected to be believable and convincing to deliver a testimony and educate the system. Psychiatrist role in the court is directed by the court rules and not by the clinical rules. This chapter aims to clarify the various roles played by the psychiatrist in the court room and provides a basic outline of the medico-legal expectations from a psychiatric expert.

PSYCHIATRY AND MEDICOLEGAL SYSTEM

Health-care delivery system along with the professionals is regulated by the legal system. Importantly, psychiatry is guided more than other clinical specialities. In India, medical system is governed by the following legislations.

Psychiatry as a medical specialty and the legislations are ever-evolving. A practising mental health professional is expected to keep updated about both the clinical and legislative systems. A psychiatrist may be called on by the legislative system for the reasons provided below

TYPES OF WITNESS

A psychiatrist may be called to a court as witness providing facts about a case or as an expert witness providing expert opinion on the subject. Further, the expert witness may be testifying witness or a nontestifying witness. A testifying witness is someone who appears in the court and “testifies” his opinion under oath to utter the truth and only the wholesome truth. A nontestifying expert is someone who is hired by the lawyer/counsel to help them prepare their case and the expert need not testify in the court. They are also known as the “consulting expert” who helps the lawyer to question the methods of the opposite side and provides facts and ideas to defeat the counter arguments.

FACT WITNESS AND EXPERT WITNESS

A fact witness or lay witness is any person who testifies facts observed or experienced through his five senses. In contrast, an expert witness is entitled by the role to draw conclusions or make inferences based on observations/experiences of self or others. This crucial distinguishing feature differentiates an expert from a fact witness. For example, an expert might review the treatment chart of another doctor and “opine” about the presence or absence of medical negligence. A mental health professional may be called to court as a witness providing facts pertaining to a particular case they treated or to provide expert opinion on the case they are not involved. Based on the facts presented in an expert’s opinion, the judge may or may not arrive at an independent decision about that case.

CONFIDENTIALITY

It is mandatory to maintain the privilege of doctor-client confidentiality during any regular hospital interview, treatment, or counseling sessions. Nonetheless, such a privilege is not applicable when a psychiatrist called by/ordered to by a legislative system. However, it is an important duty of the psychiatrist to inform the client about the limited confidentiality of the setting. Such a warning is indeed essential before the interview. The psychiatrist must elaborate the ethical reasons to the service user that the information provided by them may be recorded legally. This should be documented in the file as well clearly. To reveal personal documents about an individual, it is essential to get their consent according to the Indian evidence Act 1872. However, as a witness, the psychiatrist may divulge such information when they are ordered to do so by the court. When presenting facts as a witness (fact witness) for the client the psychiatrist has treated, they may resist providing such information. Nonetheless, when a court orders them to divulge the confidential information, the psychiatrist may request to provide such an information in written format specifically addressed to the specified person rather than revealing it in the open court.

SUBPOENAS

For a psychiatrist, confrontation with the legal system usually starts with the subpoena or summon from the court. Alternatively a psychiatrist may be approached by the lawyer of plaintiff or the defendant to assist them in building their case. A summon is usually issued by the court clerk (in the name of the presiding judge) to the psychiatrist to either produce the related documents or to appear in person to testify under oath. A subpoena should appropriately be received and responded accordingly. Failure to respond might be considered as a contempt of court. If the notice is short or there are emergency unavoidable reasons on the specified date, the psychiatrist should intimate the court seeking a fresh appointment. After receiving summon, the psychiatrist (as a fact witness) may consult their legal counsel and avail clarity about the doctor-patient privilege with client. It is ideal to explain the client/client’s lawyer about the requested information and avail written permission from them to reveal the information in the court. If they refuse to provide such consent, the doctor may not reveal the information till the court overrules the privilege. However, the psychiatrist, as an expert witness, need not mandatorily seek patient’s consent. Psychiatrist is expected by the court to provide all the available information from the interviews and assessments.

PREPARATION BEFORE COURT APPEARANCE

Psychiatrist as an expert witness is expected to prepare well for a coherent and lucid presentation in the court and this skill is developed primarily by practice. The expert should identify the limitations of his/her knowledge, challenges, and unavailable information pertaining to the case and possible pitfalls of the testimony. The expert should reasonably anticipate the counter arguments to the evidence presented and be aptly prepared for the possible challenges. Travel and stay arrangements should be planned well ahead, and ideally, it is better to stay in the court’s town the night before the testimony. It is essential to rehearse the presentation and sleep adequately the night before.

PSYCHIATRIST IN COURT

On the day of court’s appearance, it is essential to go through the summary again and review the files and dress professionally. A quick meet and review with your lawyer/counsel might be helpful. The expert witness should report to the clerk/lawyer who summoned them. It will be prudent to check with them about the time of the actual trial and day’s schedule in the court. It is part of the process to prepare for a lot of waiting time and boredom before the hearing. The testimony might take away an entire day and it is important to have adequate food and water at regular break. Switching off the mobile phones or keeping them in silent mode is advised inside the court.

EXPERT’S TESTIMONY

The expert should be appropriately sceptical of the information provided and constantly seek to clarify, corroborate, and verify all the facts and available data. This again is a key difference in clinical and forensic interview. In a clinical interview, the psychiatrist assesses the patient with warmth and unconditional regard and examines the experiences in a nonjudgmental tone. However, as a forensic expert, the psychiatrist takes the role of a sceptic with curious indifference and scrutinizes the validity of the provided information. The psychiatrist should scrutinize closely the available circumstances, facts, and evidences before arriving at a conclusion. The expert also should ensure the alternative possibilities are ruled out. The testimony should be carefully prepared only with truth and available evidence. The expert should collect and collate all the available information and distinguish carefully between the facts and opinions of the case. Psychiatrist should carefully assess and exclude possible assumptions and potential personal and professional bias. However, tempting, an expert witness should refrain from taking sides but assume a neutral stance while preparing and disposing the testimony.

The expert should be able to explain the final opinion based on the available evidence and scientific rigor. Testimony should importantly include the limitations of the information available and current scientific progress wherever indicated. The expert should provide opinion to the court based on the available facts and accurate data. Such opinion should be limited to criteria based descriptive comments and should not be conclusive statements. For example, the opinion should be “based on these available facts, I opine the concerned person meets the criteria for schizophrenia” and should not be “the person is mentally ill, insane, incompetent” and so on. It is noted that, though the expert may provide an opinion as lucidly as possible, the information might not be used to arrive at a decision. Hence, the expert witness should be aware of this and be humble throughout the process. A novice expert might avail the consultation of a senior in the field to better equip oneself in preparing and collecting required documents for the testimony. The documents prepared for disposition might include (but not limited to) the following:

EXAMINATION IN CHIEF

The expert witness usually will undergo questioning initially by the same party lawyer and this is called examination in-chief. Responding to the advocates in court is a practical skill and mandates certain basic etiquettes. First and foremost is listening to the questions fully and taking a pause before the answer. The response should be pertinent to the question. The speech should be calm, firm and polite. It is important to be patient and not to lose cool. If the question is unclear, it is worthwhile to ask for a repeat and request to rephrase a complex question. The answers should be loud and audible to the people involved and importantly for the court stenographer to record it as needed. It is helpful to speak slower than the usual self and in simpler language/words and in a coherent manner. It is preferred to maintain eye contact with the lawyer while listening to their questions and toward judge while answering them. One of the best practices is avoid giving lengthy explanations with technical jargons. Whenever technical jargons are unavoidable, it is the duty of the expert to ensure the simpler explanation is provided for the technical terms.

CROSS EXAMINATION

Cross examination of the expert is done by the advocate from the opposite party. It is natural and the duty of the opposite lawyer to try and discredit the expert’s testimony. Hence, it is essential for the expert to be aware and prepared to handle the cross examination. This exercise might be highly intimidating for a novice. Psychiatrist should be aware of the possible ambiguous questions, two-part questions, and closed-ended questions. When confronted with such questions, the expert might ask for a clarification and rephrasing of the question. Although the cross examination might test the patience and composure of the expert, it might better be handled with practice and objectivity. It is better not to get intimidated about the remarks on one’s academic position, knowledge, and experience but maintain a calm demeanour. It is essential to be aware of the biological and physical rhythms during prolonged testimony and avail permission for recess. Whenever opportunities arise, take chances to correct the mistakes in the assumed responses and clarify appropriately. The expert should appropriately address the limits of available data, knowledge, conclusions, and testimony. The ability to balance one’s opinion and acknowledge the limits of one’s conclusion comes by practice. Treading a thin line between these two components of testimony makes an expert wise.

POTENTIAL BIASES

Psychiatrists face several biases in the interface of mental health and law. Personal bias means the collective opinion, experience, and values of the particular expert that might interfere with the assessment and ultimate opinion. It is essential for the experts to self-evaluate and state the potential personal bias and decline the specific testimony if possible. For example, an expert possessing negative views about insanity defence might prefer to avoid participating in such trials. If they have prior contact with the current client/patient, the expert might decline his/her participation in the trial. The other witnesses might have recall or memory bias of the past events that might interfere with the assessment. The expert must assess the potential conflict of interests with respect to legal, monetary, administrative, and personal reasons before accepting the potential trial.

PROFESSIONAL FEES AND PENALTIES

It is important to discuss the fees for the legal consultation as an expert psychiatrist. Charging a fee for a legal consult does not necessarily mean the expert might provide a potentially biased and favored opinion to the case. The fee is charged just for the time and effort spent on the case by the expert. It is essential to discuss with the legal counsel about the remunerations before committing to the case. In certain cases, when the court appoints a psychiatrist for expert opinion, a nominal fee may be paid. After the disposition of testimony, it is the duty of the expert to collect the attendance certificate from the court clerk. It is also good practice to check whether the produced documents are appropriately labelled and the testimony is accurately recorded in the court proceedings. If the expert succumbs to the monetary and other benefits from the case and produces a false testimony, he/she is liable for punishments and penalties. The expert may be subjected to trial of perjury and wilful negligence and tried under the Indian Penal Code (IPC) sections (as reproduced) mentioned below;

FUTURE DIRECTIONS

The Mental Health Care Act 2017 and the Consumer protection Act 2019 further emphasise the delivery of medical service from the user perspective. The rights of person with mental illness are to be upheld strenuously. Mental health review boards are quasi-judicial bodies set up across the country to review and address the grievances arising out of mental health service delivery. These boards are constituted with psychiatrists and other mental health professionals as members. Hence it may reasonably be expected to have better expertise from the mental health perspective. During postgraduation, the psychiatry residents are inadequately exposed to the forensic aspects of psychiatry. The essential 2 week forensic psychiatry training is grossly inadequate. It is the need of the hour to integrate the legal aspects of psychiatric presentations in routine bed side clinical teaching. Recent developments in information technology provide newer options in attending and disposing testimony virtually. An expert should be aware for such innovations and be ready to smoothly integrate these novel methods in their forensic psychiatry practice.

CONCLUSION

Psychiatry as a branch of medical science is regulated by the law more often than other fields. A psychiatrist may confront the legal system to defend his professional practice and/or as an expert witness to provide a testimony. Training in forensic psychiatry and practice in preparing a testimony are essential for a psychiatrist. The psychiatrist should be able to distinguish medical insanity from legal insanity. However, these areas are often neglected during psychiatry residency. Legal intrusions in psychiatry practice are increasing. It is essential for the psychiatrist to understand the intricacies and processes/working of the legal system. Improved attention given to forensic training might benefit the psychiatrists to better fulfil their legal responsibilities.

Financial support and sponsorship

Nil.

Conflicts of interest

There are no conflicts of interest.

Indian Medical Council Act 1956

Clinical Establishment Act 2010

Medical Termination of Pregnancy Act 1971

Preconception and Prenatal Diagnostic Testing Act 1994

Transplantation of Human Organs Act 1994

National Trust Act 1999

Domestic Violence Act 2005

Juvenile Justice Act 2015

HIV/AIDS Prevention and Control Act 2017

Transgender persons (protection of rights) Act 2019

Surrogacy bill 2019

Consumer Protection Act 2019

Further, psychiatry is also regulated by the following legislations

Narcotics Drugs and Psychotropic Substances Act (NDPS) 1985

Protection of children from sexual offences (POCSO) 2012

Rights of persons with disability Act (RPwD) 2016

Mental Health Care Act (MHCA) 2017

To opine on admission, discharge, and treatment procedures

To examine and testify about the insanity defence

To assess and report the fitness to stand trial

To evaluate and opine on the testamentary capacity

To assess the capacity to make contract or manage property

To opine on the fitness to continue work/job

To examine the fitness to hold/carry weapons for defence personnel

To get assistance for the decision about divorce and child custody

To assess and quantify the intellectual disability

To evaluate and intervene the child in a case of sexual abuse

In allegations of civil or criminal negligence by self

To opine on the negligence by other professionals

To evaluate and opine on sexual perversions

To examine the claims of reported psychological injury/trauma

• Case history and data given by patient/client and caregivers

• Available verbatim records, audio and video files

• Other professional consultation and referral records

• Serial mental status examination

• Ward/prison observation records

• Investigation reports

• Structured psychopathology/cognitive assessments

• Psychological assessment reports

• Limitations of the available information

IPC - 193: Describes punishment for providing false evidence

IPC - 199: Describes about the false statement made by a witness in declaration by law that is receivable as an evidence

IPC - 201: Describes about disappearance of an evidence of offence or about giving false information while screening a offender

IPC - 204: Describes about destruction of document or electronic record to avoid or prevent its production as evidence

A checklist for expert testimony

Number	Item
1	Receiving the summons and appropriately acknowledging it
2	Determine the summon is for a witness to provide facts or expert opinion
3	Consult legal advisor
4	Important to check the applicability of the doctor-patient privilege
5	Review the case records, interviews and all the available data
6	Prepare the testimony
7	Make prior travel and accommodation arrangements
8	Get adequate sleep
9	Dress professionally and be punctual on the day of hearing
10	At the court, meet the clerk and check the time of testimony
11	Meet your advocate and review the deposition
12	Hydrate and eat at regular intervals while waiting
13	Under oath, provide your testimony/witness
14	Testimony should be logical and based only on evidence. No assumptions
15	Ensure to speak loud, clear and coherent
16	Maintain appropriate eye contact with the lawyer and the Judges
17	Prepare well to face the questions during cross examination
18	Take pauses and breaks as needed
19	Request chance to correct your statement and wrong assumptions
20	Maintain the professional decorum