Masterclass on Psychiatric Defences and preparation of Psychiatric Reports Dr Wil Van Veenhuyzen MRCPsych course Southampton 1 July 2010

Overview The criminal justice process The criminal justice process Legal issues & psychiatric defences Legal issues & psychiatric defences –Pre-trial –Trial –Sentencing

Overview The psychiatric court report The psychiatric court report The expert witness The expert witness Confidentiality & reports Confidentiality & reports Conclusions Conclusions

An overview of the criminal justice process ArrestCharges Magistrates court Crown court

Magistrates court Summary (non indictable) offences Summary (non indictable) offences Maximum custodial sentence Maximum custodial sentence –1 year for a single offence –Maximum of 2 years Unable to make certain MHA orders Unable to make certain MHA orders –S36 (remand to hospital for treatment) –S41(restriction order) –S45A (hospital direction (hybrid) order)

Crown court Committal for sentencing Committal for sentencing Committal for trial Committal for trial –Indictable offences –Plea and directions –Trial (by jury)

Psychiatrist in court Coroners court Cause of Death Cause of Death Family court Care orders Care orders Civil courts Compensation Compensation Testamentary capacity Testamentary capacity High court Wardship Wardship Criminal courts Fitness to plead Fitness to plead Legal Insanity Legal Insanity Mental Health Act disposals Mental Health Act disposals Psychiatric defences Psychiatric defences

Pre-trial Stage Psychiatric opinion required Remand on bail for report Remand on bail for report Remand in custody for report Remand in custody for report Remand to hospital - Section 35 or 36 Remand to hospital - Section 35 or 36 Referral from solicitor or CPS Referral from solicitor or CPS Referral from probation service Referral from probation service Automatic reports - Murder or Arson Automatic reports - Murder or Arson

Pre-trial issues Fit to Plead? Unfit to plead Trial of the facts Committed the act? Yes D V, C & V Act 2004 No Acquitted Fit to plead Trial

Fitness to plead Criteria (R v Pritchard, 1836) Criteria (R v Pritchard, 1836) Does defendant have sufficient intellect to: Does defendant have sufficient intellect to: –Instruct solicitor and counsel –Plead to the indictment (Guilty v Not-guilty) –Challenge juror –Understand the evidence –Give evidence and follow proceedings in court

Fitness to Plead The ability to participate to the requisite extent in the trial process The ability to participate to the requisite extent in the trial process Not sufficient that the defendant acts against his own best interests Not sufficient that the defendant acts against his own best interests Decided by a Crown Court Judge without a jury on the “balance of probabilities” Decided by a Crown Court Judge without a jury on the “balance of probabilities” If found unfit to plead, followed by a “trial of the facts”, but is not a finding of guilt. (previously had to be in front of a jury) If found unfit to plead, followed by a “trial of the facts”, but is not a finding of guilt. (previously had to be in front of a jury)

Fitness to Plead Found unfit to plead Trial of the Facts "did the act or made the omission charged" Yes Domestic Violence, Crime & Victims Act 2004 No Acquittal

Fitness to Plead - Disposal Domestic Violence, Crime & Victims Act 2004 Hospital order (S 37) +/- Restriction order (S41) – if fulfils the criteria for detention under the MHAHospital order (S 37) +/- Restriction order (S41) – if fulfils the criteria for detention under the MHA Supervision Order – allows treatment for physical & mental disordersSupervision Order – allows treatment for physical & mental disorders Absolute dischargeAbsolute discharge

Trial issues Fit to Plead? Unfit to plead Trial of the facts Committed the act? Yes D V, C & V Act 2004 No Acquitted Fit to plead Legal insanity Yes D V, C & V Act 2004 No Trial

Legal Insanity M’Naghten rules “ ….at the time of committing the act, the party accused was labouring 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, that what he was doing was wrong.”

Legal Insanity Decided by a jury Decided by a jury Balance of probabilities Balance of probabilities Leads to a finding of “not guilty by reason of insanity” Leads to a finding of “not guilty by reason of insanity” Doesn’t usually apply even to the severely mentally ill Doesn’t usually apply even to the severely mentally ill

Disease of the mind “…any mental disorder which has manifested itself as violence and is prone to recur is a disease of the mind. At any rate it is the sort of disease for which a person should be detained in hospital rather than be given an unqualified acquittal.” (Bratty v Attorney General for Northern Ireland 1963)

Automatism - legal Insane Epilepsy Epilepsy Somnambulism Somnambulism Hysterical Dissociation Hysterical Dissociation Cerebral tumour Cerebral tumour Arteriosclerosis ArteriosclerosisNon-insane Hypoglycaemia induced by insulin Hypoglycaemia induced by insulin Involuntary intoxication Involuntary intoxication Head injury Head injury

Automatism - medical Organic Automatic acts from a disturbance of brain function Psychogenic Automatic acts from dissociative states, which are either, normal (due to alterations inattention), or due to psychopathology

Trial Issues - Murder charge

Diminished responsibility Section 2 of the Homicide Act 1957 reduces murder to manslaughter, where there is an “abnormality of mind (whether arising from arrested or retarded development of mind, disease or injury or other inherent cause) as substantially impaired his mental responsibility” Abnormality of mind means “a state of mind so different from that of ordinary human beings, that the reasonable man would term it abnormal”

Mental Disorder Infanticide Act 1938 “where a woman…causes the death of her child under the age of 12 months, but the balance of her mind was disturbed by reason of not having fully recovered from the effect of giving birth or by reason of the effect of lactation consequent upon the birth of the child, then she shall be guilty of infanticide”

Sentencing issues Mentally disordered under M.H.A. Yes Risk of serious harm to public Yes Section 37/41 Yes Hospital Direction Section 45a No Section 37 No Still requires treatment Yes Informal or Community Order

Reports to the court Code of Practice (1999) The weight of the clinical opinion is particularly important in helping courts to determine the sentence to be passed. In the case of patients subject to criminal proceedings the doctor’s report should set out clearly: a.the data on which the report is based; b.how this relates to the opinion given; c.where relevant, how the opinion may relate to any medical condition defence, or other trial issue; d.factors relating to the presence of mental disorder that may affect the risk that the patient poses to himself, or to others, including risk of re-offending; and e.if admission to hospital is recommended, what, if any, special treatment or security is required and how this would be addressed.

Instructions Letter of instructions Letter of instructions –Issues to be addressed –Location of patient –Timescale Documents Documents –Indictment, statements & interviews –Other psychiatric reports & records

Assessment Pre-assessment Pre-assessment –Read documentation –Suitable venue & ensure patient available –Number & length of interviews Interview Interview –Appropriate room –Safety

Opinion & Recommendations Related to instructions Related to instructions Based on content of report Based on content of report Reasons for opinions Reasons for opinions Recommendations for treatment Recommendations for treatment If MHA disposal – where treated & state appropriate criteria for detention If MHA disposal – where treated & state appropriate criteria for detention

Psychiatric Court report “In so far as this matter can be summarised, the psychiatric report to the court should be clearly understandable, accurate, logical, modest and appearing to be made by a physician, therefore one who is impartial and genuinely concerned with the welfare of the offender.” Scott (1953)

The expert witness Definition An individual who has special skills knowledge, training or experience, engaged to give his / her expertise to provide an informed, independent opinion, to assist the Judge & Jury.

The expert witness LJ Lawton (R v Turner 1975) “The opinion of scientific men may be given by men of science within their own science.” “Jurors do not need psychiatrists to tell them how ordinary folk who are not suffering from mental illness are likely to react to the stresses and strains of everyday life.”

Expert witness - role Provide an informed opinion Provide an informed opinion Stay within their area of expertise Stay within their area of expertise Demonstrate thorough research and understanding of aspects of the case on which they provide an opinion Demonstrate thorough research and understanding of aspects of the case on which they provide an opinion Remain impartial Remain impartial Abide by the rules of evidence Abide by the rules of evidence Do not comment on guilt or innocence Do not comment on guilt or innocence

Expert witness - qualities Sound knowledge & practical experience of subject Sound knowledge & practical experience of subject Communicate opinion & findings clearly, concisely & in a form that is intelligible to lay people, ie the jury Communicate opinion & findings clearly, concisely & in a form that is intelligible to lay people, ie the jury Able to “think on one’s feet” Able to “think on one’s feet” Flexibility of mind, to modify opinions in light of fresh evidence Flexibility of mind, to modify opinions in light of fresh evidence

Expert witness - responsibilities Independent psychiatrist - to the court Independent psychiatrist - to the court –abide by your instructions –inform the defendant Your patient - dual obligation Your patient - dual obligation –if seriously compromised advise the court to instruct an independent expert –abide by your instructions –inform your patient

Confidentiality & Reports W v Egdell W v Egdell –MHRT report, opposing discharge, disclosed to RMO without consent of patient –Duty of confidentiality vs public interest –“…because the number & nature of killings committed by W…decisions leading to his release should not be made unless authorities…were properly able to make an informed judgement.”

Confidentiality & Reports P Cornelius v Dr N de Taranto P Cornelius v Dr N de Taranto –Medical report for personal injury claim –Obtained GP records without consent –Report sent with referral to psychiatrist for treatment without consent –Inaccuracy in report –Damages awarded for “unauthorised disclosure” of report

Confidentiality & Reports RCPsych Recommendations Consent from known patients: Consent from known patients: –Different for statutory & non-statutory reports Court reports: Court reports: –Patient’s consent required –Inform patient in what capacity they are seen –Limits of confidentiality –Reports for solicitors not to be divulged without consent, except in public interest

Conclusions Clinician not lawyer Clinician not lawyer Legal definitions of mental disorder are not the same as clinical definitions Legal definitions of mental disorder are not the same as clinical definitions The law expects an unequivocal answer The law expects an unequivocal answer It is an adversarial legal system It is an adversarial legal system Keep within your own area of expertise Keep within your own area of expertise

Conclusions Structure your report, use sub-headings Structure your report, use sub-headings Summarise relevant findings Summarise relevant findings Make clear recommendations Make clear recommendations If admission to hospital recommended, ensure that a bed is available If admission to hospital recommended, ensure that a bed is available Be aware of the implications of your recommendations Be aware of the implications of your recommendations