ABSTRACT | PDF
Editorial
Legal Psychiatry
Shyamanta Das
Assistant Professor of Psychiatry
Silchar Medical College and Hospital
The Assam State Branch (ASB) of Indian Psychiatric Society (IPS) is organising this year’s mid-term Continued Medical Education (CME) with the theme of ‘Legal Psychiatry’.
While the 19th-century psychiatrist occupied a very circumscribed position in society, the role of his present-day counterpart has expanded considerably. Forensic psychiatry is a good example of this; its practitioners are now involved not only with law, but also with sociology, psychology, social work, and other behavioral sciences.[1]
Forensic psychiatry is a relatively new field in which formal specialty training did not exist until around 1960.[2] Definitions of forensic psychiatry have varied. Pollack described forensic psychiatry as limited to psychiatric evaluations for legal purposes and law and psychiatry as a "broad general field in which psychiatric theories, concepts, principles, and practices are applied to any and all legal issues".[3] Other authors have defined forensic psychiatry in a broader context as related to "sociolegal issues".[4,1]
Although most general psychiatry residents will not specialize in forensic psychiatry, a working knowledge of basic concepts in forensic psychiatry should be considered an important component of general psychiatry education.
Topics Related to Basic Law and the Legal System Study of the evolution of issues such as involuntary commitment, duty to warn/protect, or right to refuse psychiatric treatment gives perspective on psychiatrists’ role in the legal process as advocates, activists, and educators.
Topics Related to Patients and Patient Care Involuntary commitment, right to treatment, and right to refuse treatment are of crucial importance. The societal tension between the need to forcibly treat the mentally ill and the need to honour individual autonomy should be highlighted and placed in historical context. Concepts such as the right to treatment in the least restrictive environment and right to due process when undergoing the involuntary commitment process are important. New concepts, such as involuntary outpatient commitment, offer a good opportunity to involve in debate about what is optimal care for the mentally ill. Nuances of the right to treatment debate, such as whether or not individuals with mental disorders which are not easily treatable or may not rise to the level of serious mental illness can be confined against their will, are fruitful areas of debate.
Psychiatrists are routinely asked to assess patients’ risk of danger to self or others. Such assessments form the cornerstone for commitment to inpatient units. While some cases may be straightforward, others may be fraught with complexity. Although psychiatrists are not able to consistently offer accurate predictions of long-term dangerousness, they are able to assess risk factors that could make a patient dangerous to self or others short term.
Topics Related to the Physician-Patient Relationship Although patients have the right to refuse treatment based on the constitutional right to privacy, their refusal may be invalidated if they are not competent to weigh the risks and benefits of their refusal. If a patient gives a voluntary and informed consent for a procedure but is incompetent to do so, the consent is not valid.
Competency, the mental capacity to carry out a particular task, is a critical concept in forensic psychiatry. Situations in which a patient may be incompetent to make treatment decisions or informed consent may not be possible (e.g. emergency), or even not in the patient’s best interest (e.g. therapeutic privilege) can be explored. The right to refuse treatment is a particularly relevant issue for consultation liaison, where calls are frequently made to psychiatry asking for assistance managing a patient who is refusing a potentially life-saving procedure, or threatening to leave against medical advice. Evaluation of such a patient can be done in an organized, structured, clinically, and legally sound manner.
A review of the Tarasoff decisions (i.e. duty to warn, followed by duty to protect), and examination of relevant case law and statutes of the state in which the training is taking place, is critical. The concept of privileged communication and patients’ general right to keep treatment privileged must be balanced with education about situations where there is exception to this privilege (e.g. patient-litigant exception, court-ordered examinations). Other more advanced topics of interest include confidentiality and HIV, nuances of confidentiality in child psychiatry, and confidentiality and third party insurance providers.
What malpractice is and how to avoid it is important. A bad outcome, in and of itself, does not necessarily indicate malpractice occurred.
Civil Competencies The issue of competency to manage one’s healthcare decisions, finances, and personal care often arises with chronically or severely mentally ill patients, head injured patients, and elderly patients with dementia. The concept of presumed competency and the need for legal intervention to declare a patient incompetent is an important one. A second important issue is that competency is task specific; for example, standards for competency to make out a will differ from competence to consent to medical care which will differ from competence to manage personal affairs.
Topics Related to Criminal Process Learning about criminal aspects of forensic psychiatry is valuable and often enjoyable. Topics might include competence to stand trial, criminal responsibility, issues related to the death penalty, and correctional psychiatry. Patients involved with the legal system are often minority, disenfranchised, young, male, and dually diagnosed with drug and alcohol problems. These patients offer an excellent opportunity to learn about general psychopathology, as well as forensic issues.
Topics Related to Child Psychiatry These could include children’s competency to consent to treatment, right to special education services, right to treatment in the face of parents’ refusal to grant permission for treatment, child custody, and termination of parental rights. Forensic issues related to children are inherently complex because they intertwine two subspecialties.[5]
Legal psychology involves empirical, psychological research of the law, legal institutions, and people who come into contact with the law. Legal psychologists typically take basic social and cognitive theories and principles and apply them to issues in the legal system such as eyewitness memory, jury decision-making, investigations, and interviewing. The term "legal psychology" has only recently come into usage, primarily as a way to differentiate the experimental focus of legal psychology from the clinically-oriented forensic psychology.[6]
Together, legal psychology and forensic psychology form the field more generally recognized as "psychology and law". Following earlier efforts by psychologists to address legal issues, psychology and law became a field of study in the 1960s as part of an effort to enhance justice, though that originating concern has lessened over time.[7]
Generally speaking, any research that combines psychological principles with legal applications or contexts could be considered legal psychology (although research involving clinical psychology, e.g., mental illness, competency, insanity defense, offender profiling, etc., is typically categorized as forensic psychology, and not legal psychology). For a time, legal psychology researchers were primarily focused on issues related to eyewitness testimony and jury decision-making; so much so, that the editor of Law and Human Behavior, the premier legal psychology journal, implored researchers to expand the scope of their research and move on to other areas.[8]
References
1. Robitscher J. The new face of legal psychiatry. Am J Psychiatry 1972;129:315-21.
2. Sadoff RL. Comprehensive training in forensic psychiatry. Am J Psychiatry 1974;131:223–5.
3. Pollack S. Principles of forensic psychiatry for psychiatric-legal opinion making. In: Wecht CH, editor. Legal medicine annual. New York: Appleton-Century-Crofts; 1971. p. 261–97.
4. Ciccone JR. Important forensic issues in psychiatric education. Psychiatr Annals 1986;16:363–9.
5. Lewis CF. Teaching forensic psychiatry to general psychiatry residents. Academic Psychiatry March 2004;28:40-6.
6. Forensic and Legal Psychology, American Psychological Association.
7. Fox DR. Psycholegal scholarship's contribution to false consciousness about injustice. Law and Human Behavior 1999;23: 9-30.
8. Saks MJ. The law does not live on eyewitness testimony alone. Law and Human Behavior 1986;10: 279-80.
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