LEGAL PSYCHIATRY (Forensic Psychiatry)


There are many points where the provinces of psychiatry and the law impinge on each other. Some of the most important are the problems of hospitalization of the mentally ill, the legal definition of insanity, and the rights of patients with respect to marriage, divorce, wills, and other contracts. Since modern psychiatry looks at man from the viewpoint of the internal dynamics of behavior, and the law is primarily concerned with the external control of behavior, the two fields are sometimes at odds. Yet there is a common meeting ground in their mutual concern for the individual and his relationships to others.Hospitalization. The question of admission to a mental hospital is a difficult one since the medical right to receive treatment may come into conflict with the legal right to freedom. The mentally ill are frequently too disturbed to enter the hospital of their own free will, and in that case it may be necessary to resort to involuntary hospitalization, or commitment, which by its very nature deprives them of freedom. Moreover, once they are in the hospital, their freedom is further restricted. Not only must they abide by the usual hospital discipline, but— in the older hospitals at least—their freedom may be limited by closed wards, grounds parole, limited outside visits, close supervision of all activities, and even censorship of mail. It must be recalled that mental institutions were originally conceived in terms of protecting society from the insane, and even though we now recognize that the mentally ill are rarely dangerous, these institutions are still, in many cases, bound by outworn restrictions and admissions regulations modeled after criminal procedures.In view of these facts, it is not easy to establish procedures that look upon the patient simply as a sick person who should be admitted solely on the basis of his need for treatment. Progress in this direction is slowly being made, but wide variations still exist in different jurisdictions. One important approach has been to make it possible for a patient to admit himself voluntarily—which, as Redlich and Freedman (1966) point out, means that we are “progressing on a path from custodial segregation to active treatment in which patients are permitted and encouraged to participate voluntarily.” However, since the law usually requires that the individual be deemed mentally competent to make an application, the number of voluntary admissions is still relatively small. A second approach is to provide for temporary commitment in cases of emergency, or certification by one or more physicians. In such cases, the commitment is usually limited to a period of fifteen to thirty days.In cases where commitment for an indeterminate period is necessary, most states require, first, that a petition be filed with a judicial agency; second, that the patient be notified that a hearing will be held; and third, that he must be examined and certified mentally ill by two physicians. One of these physicians must be a psychiatrist, and neither can be related to the patient or affiliated with the institution to which he is sent. In many states the judge is the committing agent, but in twenty- one states the patient may request a hearing before a jury. A few states, however, permit admission by a superintendent of a mental hospital without a judicial hearing or order, provided a relative or guardian makes a sworn petition, and two physicians find the individual mentally ill and in need of hospital treatment. This method obviates legal procedures which tend to be humiliating to the patient.A number of states are slowly modifying their admission procedures in the direction of recommendations made by the American Bar Foundation and the “Model Act” developed by the United States Public Health Service. The Model Act proposes easier voluntary admissions, on the basis of the patient’s own application or an application by a parent or a guardian if he is under sixteen. Release can be obtained through the patient’s (or guardian’s) written request, unless the head of the hospital certifies to the court or judge that it would be unsafe to release him at the time. In that event, the act recommends that proceedings for judicial hospitalization must be started within five days. Involuntary commitment—that is, commitment initiated by someone other than the patient—may be carried out without a judicial hearing provided a request for admission is submitted together with certification that two qualified physicians have examined him and believe he should be hospitalized. If, however, the patient refuses hospitalization, a petition for commitment backed by an examining physician is to be filed with the court, and the court appoints two examining physicians of its own and holds a hearing if they recommend commitment.In addition, the Model Act provides against detention in a jail or other penal facility, except in extreme emergency, pending removal to the hospital. It also provides that during removal to the hospital the patient be accompanied by suitable medical or nursing attendants as well as friends or relatives where practicable. It further guarantees the patient’s right to receive visitors, confer with counsel and community agencies, as well as the right to vote, make contracts, and dispose of property, unless he is adjudicated incompetent. Fortunately many states have already put these provisions into effect.Another area where progress has been made is in the practice of “observation commitment.” In certain states an individual indicted for a criminal offense may be legally transported to a hospital for a limited period of observation. If the hospital finds him psychotic or unable to confer with counsel in preparing his defense, the court usually commits him for treatment. As a result of this new approach, many criminal courts in large cities now employ a part-time or full-time psychiatrist.Confidentiality. Psychiatry also comes into contact with the law on the question of “privileged communications,” the right of the physician to withholdmedical information unless the patient gives consent. By common law and medical ethics as well, no physician may reveal medical data unless the patient agrees. Psychiatrists hold that confidential communication between doctor and patient is particularly important in their field since a relation-, ship of trust is essential to psychotherapy. In some states, confidentiality is protected by statute—but where it is not, it is incumbent on the doctor to inform the patient that he does not have this legal right. Even where privileged communication is granted by statute, as in Connecticut, it may be withheld if the patient is examined at the court’s behest. In some states, the judge may find it in the interest of justice to waive the privilege in civil proceedings in which the patient introduces his mental condition for the purpose of making a claim or a defense. The physician may also be required to reveal the patient’s data when a felony has been or is about to be committed.The question of legal capacity is also extremely important. In most cases the right to marry is upheld if the individuals are able to understand the contract and what it entails; if not, annulment will usually be decreed, although this is seldom done. Some states, however, do not permit the mentally ill to marry, on the basis of the questionable idea that the illness may be transmitted to offspring. Concealment of previous commitment is not grounds for an annulment of marriage unless the party actually stated that he had never been in a mental hospital.Insanity is not a ground for divorce in most states; a few states, however, grant divorce if the individual has been committed for a period of years. Some states specify that the spouse must be “incurably insane,” but psychiatrists are reluctant to testify to that effect.Commitment does not in itself annul the patient’s testamentary capacity, that is, his right to make a will. He must, however, “have a sound mind and memory” and, specifically, must (a) know he is making a will, (b) know what he possesses, and (c) know “the natural objects of his bounty”—that is, relatives, friends, or organizations to whom he might feel grateful. The courts will . invalidate wills made by senile patients or others who may be suggestible, if there is evidence of deception or undue influence.In the more advanced states a mental patient is presumed capable of making contracts and carrying out his affairs unless he is proved to be mentally incompetent. If a guardian is needed to take care of the patient’s affairs, a hearing is usually required, sometimes before a jury, to consider petitions for the appointment. In a few states this is merely an administrative matter because a patient who is hospitalized for mental illness is ipso facto judged incompetent on civil matters. Where contracts have already been made, they cannot be set aside unless there is specific evidence of mental incapacity at the time they were made.Criminal Responsibility. The problem of criminal responsibility has long been a particularly knotty one, since psychiatry recognizes partial responsibility, emotional factors, and unconscious motivation, while the law emphasizes conscious intent and intellectual competence or incompetence. But long before this difference came to the fore, Roman law and early English custom held that the mentally ill were not liable for punishment, on the grounds that “madness is punishment enough” (satis furore ipso punitur). Moreover, “partial” insanity was recognized as early as the sixteenth century, and in 1723 an English court absolved an accused person of guilt provided he did not know what he was doing “any more than a wild beast.” This concept was modified in 1760 to specify that he must not know the difference between right and wrong.American law stems largely from an English case of 1843 in which a Daniel M’Naghten was tried for the murder of Edward Drummond, the private secretary of Sir Robert Peel. M’Naghten’s attorney established that he was suffering from delusions of persecution directed against Peel, but that he had mistaken Drummond for Peel. His plea of “partial insanity” was accepted, and he was declared of unsound mind and committed to an institution for the criminally insane. Shortly afterward the House of Lords established two rules, formulated by the Justices of the Queen’s Bench, to be used as a test of responsibility: (a) “To establish a defense on the ground of insanity it must be clearly proved that at the time of committing the act, the party accused was laboring 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, or, if he did know it, he did not know he was doing what was wrong”; and (b) “Where a person labors under partial delusions only and is not in other respects insane,” and commits an offense in consequence thereof, “he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real.” This formula is still the sole test of responsibility in twenty-eight states, but in nineteen others it is supplemented by the “irresistible impulse test”—that is, an individual is exempt from criminal responsibility if he is acting under an irresistible impulse due to mental illness.The M’Naghten rules have been severely criticized, and as early as 1869 the Supreme Court of New Hampshire, influenced by the psychiatrist Isaac Ray, set them aside and recognized simply that the accused be acquitted if his act was the result of mental illness, as determined by a psychiatrist. This decision, however, was rendered in a civil case and has seldom been applied to criminal cases in New Hampshire.Almost a century later, in 1954, the Court of Appeals of the District of Columbia Circuit in the case of Durham vs. the United States declared specifically that both the right-wrong test and the irresistible test are inadequate. The court objected to the right- wrong test on the ground that it represents only one symptom of mental disease, and that a person of unsound mind may still know the difference between right and wrong. It objected to the second test on the ground that mentally ill persons may commit offenses as a result of “brooding and reflection” rather than impulse. Instead, the court adopted a rule similar to New Hampshire’s, that “an accused is not responsible if his unlawful act was the product of mental disease or mental defect.” In 1957 the Vermont legislature adopted a test of insanity that specifies that a person is not criminally responsible if as a result of mental disease or defect (including traumatic and congenital defect) he “lacks an adequate capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.”If an accused person is found not guilty by reason of insanity, commitment to a mental hospital is mandatory in some states but left to the discretion of the court in others. Upon recovery he usually has to be discharged by the court, although in some states the governor, and in one the legislature, makes the decision.

Cite this page: N., Sam M.S., "LEGAL PSYCHIATRY (Forensic Psychiatry)," in, November 28, 2018, (accessed August 9, 2022).


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