26 Apr 2023
Dear College Members
On Scope Issue 4: Principles of Forensic Psychiatry and Professional Accountability by Psychiatrists
What is forensic psychiatry and what do forensic psychiatrists do?
Forensic Psychiatry was initially and simply defined as the branch of psychiatry that deals with issues arising in the interface between psychiatry and the law. Comprehensively, it is a sub-specialty of psychiatry in which scientific and clinical expertise is applied in legal contexts involving criminal correctional, regulatory and legislative and in specialized clinical consultations in areas such as risk
assessment, employment and determinants of civil and criminal law.
Forensic Psychiatrists also provide care to persons in judicial custody (such as prisoners, correctional psychiatry), care related issues include duty to care, treatment, discharge, follow up, fitness community care and treatment. Civil forensic psychiatry includes matters such as testamentary capacity, marriage, divorce, adoption, fitness to engage in contracts involving business, transfer of ownership of property and fitness to perform specific duties. In the criminal law context, forensic psychiatrists perform assessment in the areas of fitness to stand trial, determination of criminal responsibility, and the crucial task of assessing if diminished responsibility applies in the offence of murder (a specific defense for the act of murder to mitigate the mandatory death penalty upon conviction.)
Difference between clinic and forensic psychiatric work
The psychiatrist engaging in clinic work is generally providing treatment with the clear medical goal of curing or ameliorating illness. In sharp contrast, a psychiatrist engaging in forensic work has to clearly distinguish himself from clinical work. The psycho-legal assessment, while done relying on the same general methodology that is used in standard psychiatric assessment, is focused on gathering information to address specific questions, questions that are relevant to a specific legal matter and have less to do with the general well-being of the individual being assessed. Hence dual role and agency is permitted to a certain degree and with caution in forensic psychiatry. There is no therapeutic alliance developed between the assessing psychiatrist and the person being called upon to be evaluated.
Treating clinicians should avoid being conscripted into the expert role, as it would require them to compromise their treatment alliance with the patient and they would be penalized if they advocate for the interests of their patients in court. The role is generally incompatible with being an expert witness in a legal proceeding.
Principles relating to evidence given by expert psychiatrists in court
The Minister of Law, Mr. K Shanmugam, in a written response to questions posed by a nominated Member of Parliament on expert psychiatric evidence tendered in court, observed the existence of “existing norms” on the “minimum standards and objectivity expected of an expert witness. In that case that was discussed in parliament, the Minister described that the court found that the expert psychiatrist report tendered was “patently lacking in objectivity” and that the report “read more like a fact-finding report than a professional medical opinion”. How do we as psychiatrists avoid being caught in this criticism for our reports?
Foremost, as an expert psychiatrist, we must remain neutral and independent. A useful starting point is O 40A r 2 of the Rules of Court (Caption 322, R 5, 2014 Revised Edition). It states that the duty of an expert is to assist the court on matters within his expertise and this duty “overrides any obligation to the person from whom he has received instructions or by whom he is paid”. An expert should neither attempt nor be seen to be an advocate of for a party’s cause. That being said, it is “entirely permissible for him to propound and press home the opinion he seeks to persuade the court to accept”. The court “will not hesitate, in an appropriate case, to disregard or even draw an adverse inference against expert evidence that exceeds the judicially determined boundaries of coherence, rationality and impartiality”.
Regardless of who enlisted his services, the psychiatrist must do his or her utmost to assist the court. The opinions given should be precise, avoiding ambiguity and minimising room for subjectivity in interpretation. Otherwise, his opinion may be unhelpful and unreliable Ultimately, if the tendered psychiatric report appears “contrived and flimsy”, or the psychiatric report does not show that the offender is “suffering from a clearly diagnosed and recognised psychiatric disorder”, the court will be justified in rejecting the evidence of the offender’s purported mental condition and the expert witness may be discredited or even penalized.
Working together towards maintaining the standards in forensic psychiatry
In conclusion, psychiatrists who wish to engage in forensic psychiatry work would require to adopt a uniquely thorough and ‘ethically-appropriate’ approach, with impeccable clarity about the purpose and focus of the assessment and subsequent production of a report that will offer useful findings and recommendations in the public area of courts and other tribunals. The College, through the Section of Forensic Psychiatry, looks forward to providing training in the coming year to fellow college members, though planned workshops and seminars in the field of forensic psychiatry. Together, we will strive towards a better, safer and more robust quality of practice of the field of forensic psychiatry.
Yours Sincerely,
Dr Derrick Yeo Chen Kuan
Secretary
Section of Forensic Psychiatry
College of Psychiatrists, Academy of Medicine, Singapore