Research Assessment 2

Date: September 16, 2016

Subject: Contemporary Scope, Challenges and Controversies
Source:
Arboleda-Florez, Julio, Dr. "Forensic Psychiatry: Contemporary Scope, Challenges and
Controversies." National Center for Biotechnology Information

. U.S. National Library of

Medicine, 5 June 2006. Web. 15 Sept. 2016.
Assessment:
The article is a general explanation of what forensic psychiatry entails, as well as the
specific complications that come along with it. Not only are there restrictions on the doctor, but
also how the patient is treated. It details their complications along with societies as a whole with
negative connotations and legislation based on bias as opposed to science.
I learned more specific facts and the overall issue of deinstitutionalization. It is the
closing of psychiatric institutions, for better or worse. A few positives have come from it, such as
patients becoming more involved in their treatment and bringing medical treatment and
facilitations to the forefront as issues to be discussed. However, I discovered how it was over
negative. The multiple closings lead to overall worse lives for the mentally ill, for instance,
having to live on the streets and be more subjected to violence and crimes.
I also became more informed about the precautions I would need to take regarding the
ethics of the field. For example, in hostile military situations they have to worry about the
dangers of knowing things that could be exploited. This also ties into the general code of conduct
of anyone working in the medical health field. Confidentiality is a huge factor of forensic
psychiatry since not only do they know things about their own patients, but also about cases and
trials that would need to be kept confidential.
Something I had not thought of in regards to my topic is the presences in civil law. Often
times they will be called in as a third party to assess their mental and emotional state. They also
assess their competence and capacity. These are different in that competency is what someone
could perform well, while capacity is what they are capable of doing, which I was not aware of.
Also, one's incompetence or incapacity can vary from time to time.
I expanded upon my knowledge or penal, or criminal, law. A key factor I learned is how
ready and willing a forensic psychiatrist needs to be for a cross examination. When I enter the

legal system I will need to be able to withstand a trial, have extensive knowledge on the insanity
regulations, and the possible dangerous applications. Not only do they need to be able to assess
the mental state of the patient at the time of the crime, but also their state after and about the
crime as well as the trial and how a negative outcome would impact them. Then also be able to
decide which medical treatment would be best for the defendant. Although, they must be very
careful while deciding to avoid the revolving door effect where they cycle in and out of criminal
life and a penitentiary.
This information added to my overall understanding of the field along with new
complications and aspects I hadnt thought of. This was very helpful to further my general
understanding as well as make me more aware of the issues that are presented in the mental
health society today with alarming facts. I will use what I have learned to guide interviews more
to gain information about their personal experience with the different parts and difficulties.
Although, I would like to know more about the civil aspect of psychiatry and the law, so I will
try to find an article over it for my next assessment.

Forensic psychiatry: contemporary scope,

challenges and controversies
JULIO ARBOLEDA-FLREZ

ABSTRACT
Forensic psychiatry is the branch of psychiatry that deals with issues arising in the interface
between psychiatry and the law, and with the flow of mentally disordered offenders along a
continuum of social systems. Modern forensic psychiatry has benefited from four key

developments: the evolution in the understanding and appreciation of the relationship between
mental illness and criminality; the evolution of the legal tests to define legal insanity; the new
methodologies for the treatment of mental conditions providing alternatives to custodial care;
and the changes in attitudes and perceptions of mental illness among the public. This paper
reviews the current scope of forensic psychiatry and the ethical dilemmas that this subspecialty is
facing worldwide.
Keywords: Forensic psychiatry, mental health legislation, mental health services, ethical
controversies

From an obscure and small group of psychiatrists who dedicated their efforts to the study of

mental conditions among prisoners and their treatment, and who occasionally would appear in
courts of law, forensic psychiatrists have now developed into an established and recognized
group of super-specialists, an influential group that is transforming the practice of psychiatry and
that has made deep incursions into the workings of the law. This status has not come without
misgivings about the basic identity of forensic psychiatry and concerns about its utility and its
ethics.

Modern forensic psychiatry has benefited from four key developments: the evolution in the

medico-legal understanding and appreciation of the relationship between mental illness and
criminality; the evolution of the legal tests to define legal insanity; the new methodologies for

the treatment of mental conditions that provide alternatives to custodial care; and the changes in
public attitudes and perceptions about mental conditions in general. These four moments
underlie the expansion recently seen in forensic psychiatry from issues entirely related to
criminal prosecutions and the treatment of mentally ill offenders to many other fields of law and
mental health policy.

SCOPE AND CHALLENGES

The subspecialty of forensic psychiatry is commonly defined as "the branch of psychiatry that
deals with issues arising in the interface between psychiatry and the law" (1). This definition,

however, is somewhat restrictive, in that a good portion of the work in forensic psychiatry is to
help the mentally ill in trouble with the law to navigate three completely inimical social systems:
mental health, justice and correctional. The definition, therefore, should be modified to read "the
branch of psychiatry that deals with issues arising in the interface between psychiatry and the
law, and with the flow of mentally disordered offenders along a continuum of social

systems/italic--". Forensic psychiatry deals with issues at the interface of penal or criminal law as
well as with matters arising in evaluations on civil law cases and in the development and
application of mental health legislation.

Penal law
Worldwide, a wider understanding of the relationship between mental states and crime has led to
an increased utilization of forensic experts in courts of law at different levels of legal action.
On entering into the legal system, three major areas need consideration: fitness to stand trial,

insanity regulations and dangerousness applications. The major developments on the issue of
fitness to stand trial pertain to rulings that defenders found not fit to stand trial are sent to
psychiatric facilities, with the expectation that their competence to be tried is to be restored: the
question for clinicians revolves on what parameters to use to predict restorability of competence,
which should be based on an adequate response to treatment (2). Insanity regulations pertain to
legal tests used to decide whether the impact of mental illness on competence to understand or

appreciate the nature of a crime could be used to declare an offender "not criminally responsible
because of a mental condition", "not guilty by reasons of insanity" or any other wording used in
different countries. Applications to declare a person a "dangerous offender" usually demand a

high level of expertise on the part of forensic experts, who are expected to provide courts with
technical and scientific information on risk assessment and prediction of future violence.
Once an offender has been adjudicated, a major task for forensic psychiatrists is to gauge the
level of systems interface in relation to different types of receiving and treating institutions.
Hospitals for the criminally insane, mental hospitals for the civilly committed patients,
penitentiary hospitals for mentally ill inmates, as well as hospital wings in local jails, are all part
of the mental health system, and their interdependency has to be acknowledged for purposes of
system integration and budgeting (3). How mental patients are managed in prisons is also a
major matter of concern. Table Table11 shows some of the currently available alternatives.

Models for the delivery of mental health care to mentally disordered offenders
Finally, on exit from the legal-correctional system, forensic psychiatrists are expected to provide
expert knowledge on matters such as readiness for parole, predictions of recidivism, commitment

legislation applicable to exiting offenders, and the phenomenon of double revolving doors for the
mentally ill in prisons and hospitals.

Civil law
Psychiatrists and other mental health specialists are often required to conduct assessments with a
view to determine the presence of mental or emotional problems in one of the parties. These

types of assessments are needed in multiple situations, ranging from examinations to specify the
impact of injuries on a third party involved in a motor vehicle accident, to evaluations of the
capacity to write a will or to enter into contracts, to psychological autopsies in order to assess

testamentary capacity in suicidal cases or sudden death, or evaluations for fitness to work and, of
late in many countries, evaluations to determine access to benefits contemplated in disability

insurance. In most of these situations, the issue at hand is a determination of capacity and
competence to perform some function, or the evaluation of autonomous decision making by
impaired persons. A determination of incapacity leading to a finding of incompetence becomes a
matter of social control that is used to legitimize the application of social strictures on a
particular individual. This imposes on clinicians an increased ethical duty to make sure that their
decisions have been thoroughly based on the best available clinical evidence.
Ordinarily, there is a presumption of capacity and, hence, that a particular person is competent. A
person is assumed to be competent to make decisions, unless proven otherwise (4). The presence
of a major mental or physical condition does not in and of itself produce incapacity in general or
for specific functions. In addition, despite the presence of a condition that may affect capacity, a
person may still be competent to carry out some functions, mostly because the capacity may
fluctuate from time to time, and because competence is not an all or none concept, but it is tied to
the specific decision or function to be accomplished. In addition, a finding of incapacity should
be time-limited; that is, it will have to be reviewed from time to time. For example, a stroke may
have rendered a person incapacitated to drive a motor vehicle and hence the person will be
deemed incompetent to drive, but the person could still have the capacity and be competent to
enter into contracts or to manage personal financial affairs. With time and proper rehabilitation,
the person may be able to regain capacity and competence to drive. Ordinarily, a person has to
consent to an assessment of incapacity or a legal order has to be obtained to make the person
cooperate to the assessment or to proceed to collect information otherwise. It is advisable to use
a screening test of capacity and to do a full assessment only if the person fails the screening test.
This will prevent imposing an onerous burden on the person subject of the assessment if the
screening test is easily passed.

Mental health legislation and systems

The double revolving door phenomenon, whereby mental patients circulate between mental

institutions and prisons, has made forensic psychiatrists deeply aware of the interactions in the
mental health system and the links between this system and the justice and correctional systems.
By virtue of their involvement in legal matters, forensic psychiatrists have developed a major
interest in the drafting and application of mental health legislation, especially on the issues of
involuntary commitment, that in many countries is based on determination of dangerousness as
opposed to just need for treatment, of management of mentally ill offenders and of legal

protections for incompetent persons (5). Given that one major area of their expertise is the

assessment of violence and the possibility of future violent behaviour, forensic psychiatrists are
usually called upon to make decisions on risk posed by violent civilly committed patients.
There is a close interaction between legislation, development of adequate mental health systems
and delivery of care, whether in institutions or in the community. Mental health legislation with
overly restrictive commitment clauses even for short-term commitment, deinstitutionalization
resulting from the closure of old mental hospitals, changes in health care delivery systems
towards short admissions to general psychiatric units and subsequent treatment in the
community, and the large number of mental patients that end up in jails, have created in many
countries a sense that the mental health system is adrift. The growth of forensic psychiatry may
be due to changes in the law and to a more liberal acceptance of psychiatric explanations of
behaviour, but a more immediate reason is the large number of mental patients in forensic

facilities, jails, prisons, and penitentiaries. Failures of the general mental health system may,
therefore, be at the root of the growing importance of forensic psychiatry (6).
One reason that has been most commonly advanced to explain the large number of mental
patients surfacing in the justice/correctional system is the policy of deinstitutionalization that

governments have implemented over the past fifty years. In general, deinstitutionalization refers
to legislative decisions to close large mental hospitals and resettle patients into the community,
providing short admissions to general hospital psychiatric units, outpatient treatment options,
psychosocial rehabilitation, alternative housing and other community services. Sometimes,
however, these decisions did not respond to any planning, or any assessment of the needs of
those patients that were going to be resettled, or deinstitutionalized. Neither was there a clear
idea about the nature of services to be provided, or the characteristics of the communities where
patients were going to be relocated. The decisions, therefore, were mostly made on rhetorical and
political beliefs, rather than on proper scientific reasoning.

The idea and policies of deinstitutionalization have been both praised and vilified. To some,
deinstitutionalization is an enlightened, progressive and humane set of policies that has placed
the needs of the mentally ill front and centre in many communities. In this regard,

deinstitutionalization has been very effective. Deinstitutionalization should be credited with an

increase in the involvement of patients in their own care and rehabilitation, it has raised
questions that challenge the therapeutic nihilism rampant in a previous era, it has increased the

visibility of mental patients in the community and in general hospitals and academic centres, it
has allowed for a better understanding of the disease process which, previously, had been
distorted by the negative effects of prolonged institutionalization, it has provided an impetus for
research and learning, and it has increased awareness of the human and civil rights of mental
patients.
On the other hand, deinstitutionalization has also been credited with a host of negative effects.
Legally, along with legal activism, deinstitutionalization has been blamed for giving impulse to

litigation and costly over-legalization and over-regulation of psychiatric practice (7). Socially, a
series of pernicious effects have impacted directly on the fate of the mentally ill in the

community. These have included reports of "revolving door patients" (those patients in need of
repeated and frequent admissions) (8), and the rise among the homeless populations in that at

least 30% among them are chronically mentally ill persons (9). Even when housing is available,
it is often in rundown tenements in inner cities or psychiatric ghettos of large urban centres,

where dispossessed and confused mental patients walk about in a daze talking to themselves, and
where they are easy victims of robbery, rape, abuse, and physical violence. Some simply die of
exposure in the streets in frigid winter nights (10). Deinstitutionalization has also been blamed
for the criminalization (11) and the transmigration of mental patients from the mental health
system to the justice/ correctional system and for violent behaviour displayed by some mental
patients in the community.
The most pointed criticisms to deinstitutionalization, however, are no longer aimed at the idea of
resettling the patients back into their communities, but about how the idea has been
implemented. Whether because of financial constraints or shortsighted administrations, the fact
is that, in many communities, mental hospitals have been emptied faster than the development of
adequate community resources and community alternatives as they were envisioned in the
original policies.
These unfortunate after-effects of deinstitutionalization should be counteracted with the
realization that treatment alternatives to custodial care exist in the form of better medications
with enhanced efficacy and effectiveness, that are becoming widely available, and psychosocial
treatment strategies, that are also providing new proven ways for management of mentally ill
persons in the community (12). In this respect, the development of mental health courts in some
countries, diversion alternatives to imprisonment, assertive community treatment and intense

case management modalities, as well as the use of community treatment orders (13), along with
better policies in housing, point toward a social move to resolve the inequities of
deinstitutionalization in order to stabilize community tenure for the mentally ill. At the same
time, evaluations of anti-stigma programs seem to indicate that some of these initiatives are

helping in changing public attitudes toward mental illness (14) and increasing awareness about
the human rights issues in the treatment and management of the mentally ill in many countries
(15,16).

ETHICAL CONTROVERSIES
Because of its dual role in medicine and in law, the practice of forensic psychiatry is fraught with
ethical dilemmas worldwide. A forensic psychiatrist is first of all a clinician with theoretical and
practical knowledge of general psychiatry and forensic psychiatry, and experience in making

rational decisions from a clearly stated scientific base. In law, forensic psychiatrists must know
the legal definitions, the legal policies and procedures, the legal precedents relating to the

question or case at hand (17). Forensic psychiatrists must have knowledge of courtroom activity
and must possess an ability to communicate their findings clearly and to the point and to do so
under the difficult situation of cross examination. The double knowledge in psychiatry and law
defines the subspecialty of forensic psychiatry and provides the ethical foundations for its

practitioners. This double knowledge should be reflected from the very beginning in the way the
forensic psychiatrist first agrees to get involved in an evaluation, the way the forensic
psychiatrist approaches the person to be evaluated, and the caveats that have to be provided. At
this stage, the most important issue for the forensic psychiatrist is to make sure that the person
subject of the evaluation is not misled into believing that, because the psychiatrist is a medical
doctor, the relationship to be unfolded is one of physician-patient, in which the doctor is
expected to do the best for the patient and always to act to maximize the patient's benefit, while
reassuring the patient that privacy and confidentiality are protected. In forensic psychiatry the
relationship is one of evaluation, where the foundation of neutrality demanded from the

evaluator, and the fact that the evaluator is in no position to reassure the person on matters of
confidentiality or privacy (18), could mean that negative findings will endanger the interests and
cause harm to the person being evaluated, regardless of this person's health and the evaluator

being a physician. Because of this, forensic psychiatrists may even be implicated in the
criminalization of mentally ill persons (19).
To some commentators, the social control role of forensic psychiatrists sets them apart from the
ethics of medicine and of psychiatry (20,21). These commentators waver on whether in their
legal work forensic psychiatrists are operating as physicians - a point of view that has led to

much controversy. From inception to appearance in court, the forensic psychiatrist derives the
authority to act from the fact of being once and foremost a physician, hence having to uphold the
ethics of medicine, but the end point effects of forensic evaluations are usually at the hand of
other parties. This imposes on forensic psychiatrists an ethical obligation to scrutinize their

motives and the motivations and possible final actions of those who hire them for evaluations,
including ways on how data are obtained, how the evaluator arrives at opinions, how legal
materials such as reports, memos, and expert evidence are prepared, and most importantly, what
would be the final use of their findings.
A major controversy stemming from the double roles that forensic psychiatrists and other
psychiatrists, such as those in the military, are called to fulfill relates to the use of psychiatric
judicial hospitals in the Soviet Union and, more recently, in China, and psychiatrists'

participation in interrogations of prisoners and detainees that could lead to allegations of torture,
especially in the present climate of concern with terrorist activities (22). This includes turning
over to interrogators confidential psychiatric material that could be used to pinpoint weaknesses
and vulnerabilities of the prisoner (23), providing consultations on interrogation techniques or
actively participating in deception techniques to gather intelligence (24). It is in this context that
the end point motivations of those calling for evaluations cannot be lost on forensic psychiatrists
or physicians in general. Participation on anything that could lead to torture will be a major
trespass on the ethics of medicine. This also should be a clear reminder to forensic psychiatrists
that medical ethical rules cannot be trespassed, no matter what the demands of the master (25).

CONCLUSIONS
We have identified four moments in the development of legal-psychiatric thinking. The first two
moments - evolution in the understanding and appreciation of the relationship between mental
illness and criminality, and consequent changes in the different tests of legal insanity - were
applied to underline the increasing scope of forensic psychiatry in practically all areas of

criminal law and in a large number of situations in civil law. The last two moments - new

methodologies for the treatment of mental conditions that provide alternatives to custodial care,
and changes of attitudes and perceptions of mental illness among the public - were applied to
activities of forensic psychiatrists outside of courts of law. These activities range from the
development and implementation of mental health legislation to how their knowledge of systems
help mentally disordered offenders to navigate three inimical social systems and how they should
be involved in the protection of human rights of mentally disordered offenders and the mentally
ill in general.
On the matter of ethics, we have dealt with the controversies that the enlarged scope of action of
forensic psychiatrists have created in the understanding of their social functions, from
definitional problems to wavering about whose ethics they should abide by and on to the latest
concerns about the use of clinical knowledge for purposes that should be completely out of their
ethical boundaries.
Practitioners of forensic psychiatry have moved their specialty to a frontal role in society. They
now have an obligation to make sure that they remain foremost physicians and that their ethics
and motivations are beyond reproach and impeachment.

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