Educationals

For You

LEGAL ASPECTS OF PSYCHIATRY
- Dr. S Nambi

Informed consent

A written consent from the patient (on a specified form provided for the purpose), if competent to sign, should always be taken.

If the patient is not competent to sign, the form must be signed by his guardian or by both the patients and by a close relative. Before getting the consent of the patient or his legal guardian, a full explanation is necessary in regard to the risks involved in the investigation, treatment and/or procedures administered to the patient.

Informed consent to be obtained for the following conditions:

Admission of a person to a psychiatric hospital on a voluntary basis.
Procedures like ECT, psycho-surgery and other invasive investigatory procedures like lumbar puncture, spheoidal EEG etc.
Penthathol analysis (narco- analysis)
Drug treatments like disulfiram therapy and clozapine therapy.
Administration of any research drugs. (Drug trials)

Psychiatrists and the Court

Psychiatry has become established as a medical speciality and psychiatrists now have achieved the status of an expert for the purpose of assisting the Law in performing its role. Based on a plea of insanity a psychiatrists can give evidence convincing a judge that the crimes were committed as a result of his mental illness. Thus one can see that the psychiatrist owes a peculiar duty to himself and to his speciality to create an image of an individual, who is honest, truthful and objective. The rule that an expert's opinion is admissible is to provide scientific information that is outside the experience or knowledge of the judge. It is not normally permissible for a psychiatrist to comment on the intent of the accused person, that is the role of a judge to decide. Psychiatric evidence about the reactions of normal people to provocation will be inadmissible. Psychiatric evidence may be given to show that a witness suffers from a disease, defect or abnormality of the mind that affects the reliability of his evidence and despite these basic rules, exemptions and inconsistencies are common in jurisdiction throughout the world.

Psychiatrists would prefer to believe, that as experts, they can simply offer an informed independent opinion to the court after careful examination that is unbiased and unprejudiced. It has to be kept in mind that many forensic psychiatrists have had the painful experience of learning that their report is not be used or that another report is to be requested to examine the case or that the report is not to be shown to the court fully but selected aspects will be used to assist in eliciting oral evidence. The psychiatrist must also face cross-examination which may tend to place him in a negative and defensive position. Needel (1980) identified three possibilities for the potential abuse of psychiatric testimony :

Experts who offer biased opinions based on either calculated or unconscious prejudices.
Physicians lacking in psychiatric sophistication who give psychiatric testimony.
Fully qualified experts who unintentionally or through laziness perform an examination that does not serve as a professionally adequate basis for their conclusions.

There are three types of witness :

Witness as to fact.
Professional witness.
Expert witness.

The expert witness has special knowledge and experience within a defined field and his opinion is requested rather than his description or recollection of facts which form part of the case itself.

Do's and Don'ts as expert evidence
Do's :

The psychiatrist must be punctual.
He must dress appropriately.
Appear confident (but not arrogant).
Speak clearly and audibly.
Keep to the point.
Evidence should be comprehensible and simple language.
Keep sentences short.

Don'ts :

Do not use jargon.
Do not use technical expressions not generally understandable by a lay person.
Do not use words of foreign origin (eg: cyclothymia instead of 'mood swings').
Do not use polysyllabic or uncommon words.
Do not lose your temper even if provoked by the council.

Replies to questions, although put by the advocate, will be addressed to the judge and head of jury. The conventional appellation to the judge is "your Honour" in the lower courts and "your Lordship" in High Courts. Most often the counsel and judges are courteous and considerate towards the expert witness, but their questions will be probing in nature.

In all cases it is advisable to go over the case-files and documents briefly beforehand to refresh the memory. In criminal cases, it may be helpful to see the accused again before the proceedings start. This is particularly important where the issue is fitness to plead.

The performance in the witness box and the impression that the witness makes on the court are obviously, important in contributing successfully to the proceedings and their outcome.

1 2 3 4 5 6 7 8 9

Printer Friendly