Forensic psychiatry

Competency to stand trial (CST) is the competency evaluation to determine that defendants have the mental capacity to understand the charges and assist their attorneys. In the United States, this is seated in the Fifth Amendment to the United States Constitution, which ensures the right to be present at one's trial, to face one's accusers, and to have help from an attorney. CST, sometimes referred to as adjudicative competency, serves three purposes: "preserving the dignity of the criminal process, reducing the risk of erroneous convictions, and protecting defendants' decision-making autonomy".[3]

In 1960, the Supreme Court of the United States in Dusky v. United States established the standard for federal courts, ruling that "the test must be whether the defendant has sufficient present ability to consult with his attorney with a reasonable degree of rational understanding and a rational as well as factual understanding of proceedings against him." The evaluations must assess a defendant's ability to assist their legal counsel, meaning that they understand the legal charges against them, the implications of being a defendant, and the adversarial nature of the proceedings, including the roles played by defense counsel, prosecutors, judges, and the jury. They must be able to communicate relevant information to their attorney, and understand information provided by their attorney. Finally, they must be competent to make important decisions, such as whether or not to accept a plea agreement.[3]

In England, Wales, Scotland, and Ireland, a similar legal concept is that of "fitness to plead".

Forensic psychiatrists are often called to be expert witnesses in both criminal and civil proceedings. Expert witnesses give their opinions about a specific issue. Often, the psychiatrist will have prepared a detailed report before testifying. The primary duty of the expert witness is to provide an independent opinion to the court. An expert is allowed to testify in court with respect to matters of opinion only when the matters in question are not ordinarily understandable to the finders of fact, be they judge or jury. As such, prominent leaders in the field of forensic psychiatry, from Thomas Gutheil[4] to Robert Simon and Liza Gold[5] and others[6] have identified teaching as a critical dimension in the role of expert witness. The expert will be asked to form an opinion and to testify about that opinion, but in so doing will explain the basis for that opinion, which will include important concepts, approaches, and methods used in psychiatry.

Mental state opinion (MSO) gives the court an opinion, and only an opinion, as to whether a defendant was able to understand what he/she was doing at the time of the crime. This is worded differently in many states, and has been rejected altogether in some, but in every setting, the intent to do a criminal act and the understanding of the criminal nature of the act bear on the final disposition of the case. Much of forensic psychiatry is guided by significant court rulings or laws that bear on this area which include these three standards:[7]

• M'Naghten rules: Excuses a defendant who, by virtue of a defect of reason or disease of the mind, does not know the nature and quality of the act, or, if he or she does, does not know that the act is indeed wrong.[8]
• Durham rule: Excuses a defendant whose conduct is the product of mental disorder.[9]
• ALI test: Excuses a defendant who, because of a mental disease or defect, lacks substantial capacity to appreciate the criminality (wrongfulness) of his or her conduct or to conform his conduct to the requirements of law.[10]

"Not guilty by reason of insanity" (NGRI) is one potential outcome in this type of trial. Importantly, insanity is a legal and not a medical term. Often, psychiatrists may be testifying for both the defense and the prosecution.

Forensic psychiatrists are also involved in the care of prisoners, both in jails and prisons, and in the care of the mentally ill who have committed criminal acts (such as those who have been found not guilty by reason of insanity).

In Canada, certain credentialed medical practitioners may, at their discretion, make state-sanctioned investigations into and diagnosis of mental illness. Appropriate use of the DSM-IV-TR is discussed in its section entitled "Use of the DSM-IV-TR in Forensic Settings".

Concerns have been expressed that the Canadian criminal justice system discriminates based on DSM IV diagnosis within the context of Part XX of the Criminal Code.[12] This part sets out provisions for, among other things, court ordered attempts at "treatment" before individuals receive a trial as described in section 672.58 of the Criminal Code. Also provided for are court ordered "psychiatric assessments". Critics have also expressed concerns that use of the DSM-IV-TR may conflict with section 2(b) of the Canadian Charter of Rights and Freedoms, which guarantees the fundamental freedom of "thought, belief, opinion, and expression".

The position of the Canadian Psychiatric Association holds, "in recent years, serious incursions have been made by governments, powerful commercial interests, law enforcement agencies, and the courts on the rights of persons to their privacy." It goes on to state, "breaches or potential breaches of confidentiality in the context of therapy seriously jeopardize the quality of the information communicated between patient and psychiatrist and also compromise the mutual trust and confidence necessary for effective therapy to occur."[13]

An outline of the forensic psychiatric process as it occurs in the province of Ontario is presented in the publication The Forensic Mental Health System In Ontario: An Information Guide[14] published by the Centre for Addiction and Mental Health in Toronto. The Guide states: "Whatever you tell a forensic psychiatrist and the other professionals assessing you is not confidential." The Guide further states: "The forensic psychiatrist will report to the court using any available information, such as: police and hospital records, information given by your friends, family or co-workers, observations of you in the hospital." Also according to the Guide: "You have the right to refuse to take part in some or all of the assessment. Sometimes your friends or family members will be asked for information about you. They have the right to refuse to answer questions, too."[15]

Of note, the emphasis in the guide is on the right to refuse participation. This may seem unusual given that a result of a verdict of "Not Criminally Responsible by reason of Mental Disorder" is often portrayed as desirable to the defence, similar to the insanity defense in the United States. A verdict of "Not Criminally Responsible" is referred to as a "defence" by the Criminal Code.[16] However, the issue of the accused's mental state can also be raised by the Crown or by the court itself, rather than solely by the defence counsel, differentiating it from many other legal defences.[17]

In Ontario, a court-ordered inpatient forensic assessment for criminal responsibility typically involves both treatment and assessment being performed with the accused in the custody of a single multidisciplinary team over a 30- or 60-day period. Concerns have been expressed that an accused may feel compelled on ethical, medical, or legal grounds to divulge information, medical, or otherwise, to assessors in an attempt to allow for and ensure safe and appropriate treatment during that period of custody.

Some Internet references address treatment/assessment conflict as it relates to various justice systems, particularly civil litigation in other jurisdictions.[18][19] The American Academy Of Psychiatry and the Law states in its ethics guidelines, "when a treatment relationship exists, such as in correctional settings, the usual physician-patient duties apply", which may be seen as contradiction.[20]