Forensic Psychiatry in Law

Introduction

“Forensic psychology/psychiatry is an emerging field in India,” specialists who deal with crime in the country frequently state. Forensic psychiatry, like forensic science, plays an important role in solving crimes. In numerous nations, forensic psychiatrists are an important aspect of criminal investigation and jail systems. Criminal profilers, expert witnesses in courts, suspect interrogators, prison rehabilitation officials, and victim counsellors are just some of the jobs they’ve done. But, before we can trace the legal footprints of forensic psychology in India, we must first comprehend the justice system and where forensic psychology fits into the puzzle or judicial system. The police are the first point of contact when a crime has been committed, and they gather evidence from the crime scene and transmit it to forensic science laboratories. When the laboratories finish their scientific analysis, it is sent to a court of law to assist in determining who, when, where, what, why, and how. Forensic psychology tends to play a significant role, particularly when it comes to determining –why? –the motive.

History of Forensic Psychiatry

Many significant milestones in the history of forensic psychology can be found in both the research lab and the courtroom. Many of the early court cases in Europe when psychologists appeared as experts dealt with similar difficulties, and early research consisted of examinations of eyewitness evidence and suggestibility. Hugo Munsterberg was a key figure in the development of forensic psychology in North America, and by the early 1900s, forensic psychologists were working in a variety of settings throughout the criminal justice system. Forensic psychology is now recognised as a unique and specialised field with its own textbooks, journals, and professional organisations.

According to legend, Cincinnatus, a former Roman general, saw a delegation from the city approaching and knew they were going to ask him to head an army. He resolved to mimic insanity by hooking up his plough and sowing salt as if it were seed to avoid becoming involved in that scheme. Suspecting a ruse, the delegates placed Cincinnatus’ young grandson in the path of the plough, and when he turned the plough away, they diagnosed malingering. We now employ approaches that are a little less harsh.

Consider the so-called “truth pellet” that was utilised in Africa in various locations and ages. Suspects in a major crime were gathered and told, with suitable ceremony and pomp, that the criminal’s identity would be determined by a magical pellet of truth that would poison the guilty. Small pellets were placed in each suspect’s mouth and quickly removed in an emotionally charged environment. The pellet was just a shred of leather, but because the criminal’s mouth would have dried up in fear of being discovered, the pellet that was not moistened by saliva was the one who was guilty.

One of a group of merchants on a journey in ancient China allegedly defrauded the others. A magic bell hidden behind an aperture in a curtain, according to the local magistrate, would reveal the culprit[1]. The bell would ring when it was touched by the guilty. The bell had not rang after everyone had pushed their hands through the opening, but the magistrate asked to see their hands. The bell had been coated in soot, and the guilty culprit had avoided touching it for fear of being discovered. The offender was the one with clean hands, in a startling reversal of symbolic.

The current debate about a person’s competency to be executed contrasts dramatically with the ancient Jewish Talmud, which suggests that a criminal be rendered inebriated before being executed to spare him or her the agony of the punishment.[2] Around 880 B.C., the laws of ancient India accorded special respect to handicapped people and children under the age of 15. Murder by a minor or a mentally sick person is considered involuntary homicide under Islamic law, and the victim is only entitled to monetary recompense. The legal code of Draco (who gave us the epithet “draconian”) differentiated murder from involuntary homicide in classical Greece.

In mediaeval Europe, forensic belief maintained that mentally ill people had sold their souls to the devil. This belief was so strong that the latest witch execution in Germany took place only a few years ago, in 1775. Popular attitudes of the mentally sick in late-16th-century Florence were not dissimilar to, or less stigmatising than, those held now. The forensic subject was described as a “crazy, raging, insane, demented, fatuous, short on brains, foolish in the brain, nuts, lacking brains, out of his mind and out of his feelings” in public parlance. The examinee was described as “controlled by humours, delirious, and influenced by mania” when doctors arrived. From the 1820s to the 1850s, the term “monomania” became extremely popular in France. One author suggested that it was partly an issue of professional self-interest in expanding one’s standing; of course, we don’t have that difficulty today.

“One no longer says: It is his hobbyhorse or his interest; one declares, like a grave physician, ′It is a monomania,'” a journal wrote in 1839 about the concept of monomania in France. This last point indicates that, if psychiatry can’t help with anything else, it can always be counted on to provide the necessary language.[3]

During the 1790s, the philosopher Immanuel Kant addressed important issues such as accountability, freedom, and correct use of the abilities of knowing. He recognised four types of psychoses important to forensic psychiatry: amentia (chaotic thought); dementia (delusions of reference, not separating fantasy from reality); insania (disturbed judgment—flight of ideas); and vesania (delusions of reference, not separating fantasy from reality) (disorder of reason like schizophrenia).[4]

Emil Kraepelin advanced naturalistic and context-dependent mental event theories. The following are some major implications:

• Forensic psychiatry is a quantitative (medical) science
• Delinquency is normalised as a societal ailment, and punishment is society’s retaliation for wrongdoing.
• Criminal behaviour is considered to be a form of mental disorder.

 Notable Cases

Assailant-in-waiting Edward Oxford was initially committed to Bedlam before being transferred to the new Broadmoor Institution. He was promised a discharge three years later provided he agreed to leave the country. He disappeared in Australia and was never seen or heard from again. (Prosenjit Poddar, the assassin of Tatiana Tarasoff, had a similar ending.) Oxford was diagnosed with a “will-related lesion.”

James Hadfield was suspected of attempting to assassinate King George III, a felony for which he was charged with high treason. He shot near to the king because he didn’t want to commit suicide or harm the king directly. This could have been an early example of what we now refer to as “police suicide.” Because harming the monarch constituted a grave penalty, he evidently felt he would be slain. We may compare Gary Gilmore, who committed a murder in the only state where people were still executed by firing squad. He supposedly had a long time desire of being shot by a firing squad.

Isaac Ray was a pivotal figure in the history of forensic psychiatry. His Treatise on the Medical Jurisprudence of Insanity, published in 1838, is considered an international classic (and would surely have won the Guttmacher Award). Ray was a general practitioner in Maine, which is remarkable.[5] He had no formal legal background and had come to study insanity through medical jurisprudence. He reminds us of Morton Birnbaum, another excellent general practitioner who, more or less, founded the right to treatment. Although there was no right to treatment, Birnbaum believed there should be. He authored a paper about it, and it became a popular topic in the field of patient rights.[6]

A guy named Abner Rogers murdered the warden of the prison in which he was incarcerated in 1843 (the same year as the famous M’Naghten case was tried). Based on an overdose of chloroform he had during a prior procedure, he pleaded “not guilty by reason of insanity.” He was eventually acquitted and committed to the Illinois Asylum, which was plainly a setback for the prosecution. The lost prosecutor was so tall and skinny that he appeared to have the then-unknown condition now known as Marfan’s Syndrome, according to some. I believe he may come across more familiar with his name. [7]His name was Abraham Lincoln.

More recently, medicolegal associations such as the American Academy of Psychiatry and the Law have attempted to bridge the gap between the profoundly dissimilar fields of psychiatry and law. Karl Menniger, Manfred Guttmacher, William Alanson White, A. Louis McGarry, Seymour Pollock, Bernard Diamond, Jonas Rappeport, and, of course, Robert Sadoff have all contributed to the area of forensic psychiatry. The AAPL presently has around 2000 members, and the clinical-law interface is now populated by a number of additional groups. Despite this increase in the number of practitioners and expertise, I believe the essential challenges are still the same as they were in the early days of the profession, as I have attempted to demonstrate: the clinical foundation of the discipline; honesty and the pursuit of objectivity.

A case of hallucinations of barking dogs : Mr. A, a 38-year-old man suspected of homicide, was referred for evaluation with the following questions: was he of sound mind, and could he understand the court proceedings? His only complaint was that he could hear dogs barking. In the jail hospital, he was diagnosed with schizophrenia and had an old prescription from a medical practitioner with a diagnosis of schizophrenia, which also mentioned that he had been hospitalised in a teaching psychiatric hospital in 1995.

He was admitted to the hospital for observation. A request was sent to his old hospital, where he had previously been admitted. The prior hospital verified that he had been admitted for around two weeks and had been given a tentative diagnosis of schizophrenia. He had also gone to the follow-up appointment twice after being discharged. During his present hospitalisation, however, no abnormalities were discovered during monitoring and psychiatric evaluation. He frequently responded with a “I don’t know” statement.

Mr. A most likely assumed that if he obtained a certificate from the hospital stating that he was mentally sick, he would be found not guilty. He was adamant that he had committed no crime, yet he could never explain how or why he ended up in jail. He was able to tell me about his childhood in Mysore and Bangalore. The following is a copy of the medical report that was sent to the court:[8]

“Mr. A had suffered from a psychotic disorder in the past in …………. At present he does not have any psychiatric illness needing treatment. He does not give any details about the criminal charges he has been accused of or details regarding defence saying that he does not know. Objectively there is no significant memory impairment. There is no evidence to suggest that he is of unsound mind and he can’t understand the proceedings of court”.

Origin of Forensic Psychiatry In India

The origins of forensic psychiatry in India can be traced back to Thomas Babington Macaulay’s mid-nineteenth-century formulation of the Indian Penal Code (IPC). The Mc Naughten’s rules were included into the IPC, Section 84, at the same time, and provided the foundation for the insanity defence. This hasn’t changed since then. However, there have been numerous landmark decisions involving Section 84 of the IPC. Mental illness is relevant in a variety of areas when it comes to civic responsibility. The new provisions in the Mental Healthcare Bill of 2016, as well as the Rights of Persons with Disabilities Act, are likely to result in a paradigm shift in the way people with psychiatric problems are cared for. Forensic psychiatry has very limited infrastructure and training in India.

The majority of forensic evaluations are performed by the treating psychiatrist, who has not received enough forensic psychiatry training. As a result, in many circumstances, the treating psychiatrist must choose between doing what is right for the patient and doing what is right for society. In India, there is a systematic training curriculum for psychiatry as a whole, which is a three-year programme with only two weeks dedicated to forensic psychiatric training. In the UK and Australia, however, there is a 3-year forensic psychiatry training programme that can be pursued after completing the 3-year basic psychiatric training.[9] As a result, in comparison to Western countries, we have a personnel shortage in the field of forensic psychiatry.

When Mental Health and Law Meets

People with mental illnesses are more likely to be abused and have their basic rights violated. Institutions, family members, caretakers, professionals, friends, unrelated members of the community, and law enforcement authorities are all potential sources of abuse or violation. This necessitates the creation of a safeguard to ensure that sufficient, adequate, timely, and humane health care services are provided. Legislative provisions and policies are examples of such protective mechanisms that ensure that the rights of this vulnerable group are respected. Mental health care is one such vital sector that requires suitable regulation in the indisputable premise that every society requires laws in many areas to ensure the well-being of its people.

For convenience, lets divide the laws into hard and soft law. Here hard laws refer to those which are internationally accepted and agreed upon and soft laws on the other hand are not binding which if well-constructed can become a model of future legislations. There has been many laws, conventions, declarations that have reference to mental illness/mental health of an individual

Article 1. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Thus, establishing that people with mental disabilities are protected by human rights law by virtue of their basic humanity”. The Convention on the Elimination of All forms of Racial discrimination, International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, Convention On the rights of the Child, Convention on the rights of the Child all these have mental element as their core subjects and India is a signatory to all of these international conventions. Soft laws are not really lawing rather they are rules or policies that are quasi legal and not binding. they are defined as having “Hortatory “obligations, ie statement in nature of promises. Some examples include the National Mental Health Policy 2014 and National Mental Health programme. There are quite a few legislations related to psychiatry directly or indirectly. Mental Health Act 2017, Persons with Disability Act, National Trust Act, Juvenile Justice Act, Protection of Children from Sexual Offences Act, and different acts related to marriage and divorce.[10]

In these domains, there are a lot of grey zones. The Mental Health Act takes a more paternalistic approach, giving the judiciary a lot of decision-making power and allowing psychiatrists and other mental health specialists to just provide recommendations. Despite the fact that the Mental Health Act provides for free legal assistance to mentally ill people, the magistrate has final power and legal aid is only offered in “deserving” circumstances. There are very rudimentary procedures for independent tribunals, as well as consent to treatment and second opinions, indicating that patient autonomy and human rights are not prioritised.

Mental Illness in Prison

Prison based mental health services are in a very rudimentary state in India, even though some prisons do have certain facilities to address minor health issues. A psychiatrist is called upon when there are any signs of mental illness in a prisoner or if there is a history of mental illness

The mental condition of a prisoner can be at concern in two circumstances

1. When the crime is committed
2. At the time of standing trial

If he was ill at the time of commission of the offence he can plead for insanity under Section 84 IPC, and this plea has to be raised at the time of commencement of the trial. In many circumstances, the offender is evaluated many years after the offence, making it difficult to determine his mental state at the time of the crime. Offenders frequently attempt to pretend insanity, and the lack of objective testing in psychiatry makes it even more difficult to accurately comment on the patient’s mental health. To prevent people from feigning insanity, they should be kept completely separate from the rest of the psychiatric patients.

This can be implanted only by creating  dedicated infrastructure and a strong workforce for forensic psychiatry The latest Prison Statistics of India (2019) reported that only 7,394 inmates suffered from mental illness. Although officially, it is only 1.5 per cent of the total prisoner population in the country, the actual number must be higher as inadequate prison conditions predispose inmates to poor mental health.[11]

Twenty-one states excluding Jammu & Kashmir do not have any psychiatrists or psychologists in prisons. Nationally, there is only one psychologist/psychiatrist for every 16,503 prisoners. Consequently, suicides accounted for 70 per cent of unnatural deaths in prisons. Uttar Pradesh, with zero mental health professionals, witnessed the highest number of suicides and mentally ill prisoners. Last year, Karnataka reported that 33 per cent of its prisoners suffered from various types of mental disorders. If only one state had over 4,900 prisoners with mental illness, then the national number would be much higher than 7,394. A 2011 study published in the Indian Journal of Psychiatry suggested that 23.8 per cent out of the 500 surveyed prisoners suffered from psychiatric illness

In the 2008 Aarushi Talwar murder case, the CBI hired a forensic psychologist, who concluded that the parents — since convicted of murder — were “innocent.” During the evaluation, the specialist performed polygraph testing, narco analysis, and brain signature profiling. The 2006 Nithari murders, the Sunanda Pushkar case, and the 2003 Madhumita Shukla murder all enlisted the help of forensic psychologists.

Fourteen-Year-old Aarushi Talwar was found dead during the early hours of 15th May, 2008 by her parents Dr.. Rajesh Talwar and Dr Nupur Talwar, both of them who’re practicing dentists. They found Aarushi devoid of her life with her throat slit and covered with a blanket. The parents were described to have been in great dismay by their house help, Bharathi. The neighbours were immediately informed and the police was alerted. But as the police reached there late the was no fingerprints found. This along with the absconding of Hemraj, the male help of talwars was the prime reason of suspecting the parents

The case was then transferred to the CBI, which exonerated the parents and suspected the Talwar’s’ assistant Krishna Thadarai and two domestic servants—Rajkumar and Vijay Mandal. Based on the ‘narco’ interrogation conducted on the three men, the CBI assumed that they had killed Aarushi after an attempted sexual assault, and Hemraj for being a witness. The CBI was accused of using dubious methods to extract a confession, and all the three men were released for lack of evidence.

Conclusion

Forensic psychiatry remains a neglected area in India and other countries in South-East Asia. This is unlike many of the developed settings where it has become an established subspecialty with a focus on clinical services, training, and research. Academic institutions must actively participate in the development of this field.

They must take into account the rapidly expanding need for this specialisation, understand the field’s enormous extent, and devise courses that meet the country’s different needs[12]. Dedicated clinical services for this vulnerable patient population must be established. Aside from specific fellowships and super-specialties, training courses catering to several mental health disciplines (psychiatry, clinical psychology, psychiatric social work, and psychiatric nursing) are also required for students in other professions of medicine and law.

Law enforcement agencies, the judiciary, advocates, women and child welfare departments, and mental health commissions (such as Human Rights Commissions, Women’s Commissions, Child Welfare Commissions, and so on) are among the other stakeholders who require regular sensitization and training on mental health issues. Support for targeted study in many areas where mental health and law intersect is also essential. It is critical for the government to take steps to build forensic psychiatry institutes of excellence.

Agencies like government forensic labs, the CBI, and even the police might hire forensic psychologists to compile, analyse, and extrapolate evidence from crime scenes. Various studies and publications from the Netherlands, Australia, and the United States have demonstrated the effectiveness of such profiling, and Indian agencies adopting it on a more formal level would be a step in the right direction. While forensic psychologists’ investigative benefits remain, their involvement in penal systems is equally critical.

When it comes to offender interviewing and post-sentence rehabilitation strategies, Indian prisons lag far behind. When it comes to remanding convicts, there is very little structure in place. While forensic psychologists in countries like the United Kingdom conduct objective interviews of offenders before recommending a basic treatment plan to a clinical psychologist who delves into the subjective issues, there is no such hierarchy in India, where a prison psychologist is almost unheard of.

In India, prisons have a capacity of about 366,000 inmates. However, because of the congestion, an appropriate offender-psychologist ratio would be required to grasp the perpetrators’ mindsets and help them work through their problems. While it is frequently emphasised that prison systems are supposed to be rehabilitative in character, much work remains to be done in order to put this into practise[13].

In fact, the use of forensic psychologists in Indian prisons would be the most beneficial. Working on the perpetrators’ mindset through individual and group treatment, as well as offering an assessment before they are released, may therefore reduce the likelihood of reoffending. Because there are no one-size-fits-all therapies that work for all criminals, proper assessment is required to properly deal with prisoner concerns. India faces significant obstacles in dealing with various facets of crime as a country with one of the highest crime rates in the world. While these treatments sound wonderful in theory, there is still a long way to go before they can be applied successfully. The aim is to solve the case of the missing forensic psychologists and make the best use of their resources.

This article has been contributed by Bhadra Anil, Adwaith Raja S Menon, Ria Jeen, students at The National University of Advanced Legal Studies, Kochi.

References

1. Spruitt JE: The penal conceptions of the Emperor Marcus Aurelius in respect of lunatics: reflections on D. 1,18,14. Int J Law Psychiatry 21:315–34, 1998
2. Magherini G, Biotti V: Madness in Florence in the 14th–18th centuries: judicial inquiry and medical diagnosis, care and custody. Int J Law Psychiatry 21:335–68, 1998
3. Goldstein J: Professional knowledge and professional self‐interest: the rise and fall of monomania in 19th century France. Int J Law Psychiatry 21:385–96, 1998
4. Eigen JP, Andoll G: From mad doctor to forensic witness: the evolution of early English court psychiatry. Int J Law Psychiatry 9:159–70, 1986
5. Mooij A: Kant on criminal law and psychiatry. Int J Law Psychiatry 21:335–42, 1998
6. Hoff P: Emil Kraepelin and forensic psychiatry. Int J Law Psychiatry 21:343–54, 1998
7. Mendelson D: English medical experts and the claims for shock occasioned by railway collisions in the 1860’s: issues of law, ethics and medicine. Int J Law Psychiatry 25:303–30, 2002
8. American Academy of Psychiatry and the Law: Ethics Guidelines for the Practice of Forensic Psychiatry, Section IV. Revised 1995
9. Gold LH: Rediscovering forensic psychiatry, in Textbook of Forensic Psychiatry. Edited by Simon RI, Gold LH. Washington, DC: American Psychiatric Press, 2004, pp 3–36
10. Ray I: A Treatise on the Medical Jurisprudence of Insanity. Boston: Little, Brown, 1838
11. Birnbaum M: The right to treatment. ABA Journal 46:499–505, 1960
12. Mann T: Confessions of Felix Krull, Confidence Man: The Early Years. NY: Vintage International, 1992
13. Gee, Officer Krupke, West Side Story. Book by Arthur Laurents, Music by Leonard Bernstein, Lyrics by Stephen Sondheim, 1956

End Notes

[1] 3. Goldstein J: Professional knowledge and professional self‐interest: the rise and fall of monomania in 19th century France. Int J Law Psychiatry 21:385–96, 1998

[2] Eigen JP, Andoll G: From mad doctor to forensic witness: the evolution of early English court psychiatry. Int J Law Psychiatry 9:159–70, 1986

[3] Mooij A: Kant on criminal law and psychiatry. Int J Law Psychiatry 21:335–42, 1998

[4] Hoff P: Emil Kraepelin and forensic psychiatry. Int J Law Psychiatry 21:343–54, 1998

[5] Mendelson D: English medical experts and the claims for shock occasioned by railway collisions in the 1860’s: issues of law, ethics and medicine. Int J Law Psychiatry 25:303–30, 2002

[6] American Academy of Psychiatry and the Law: Ethics Guidelines for the Practice of Forensic Psychiatry, Section IV. Revised 1995

[7] Ray I: A Treatise on the Medical Jurisprudence of Insanity. Boston: Little, Brown, 1838

11. Birnbaum M: The right to treatment. ABA Journal 46:499–505, 1960

[8] Gold LH: Rediscovering forensic psychiatry, in Textbook of Forensic Psychiatry. Edited by Simon RI, Gold LH. Washington, DC: American Psychiatric Press, 2004, pp 3–36

[9] Mann T: Confessions of Felix Krull, Confidence Man: The Early Years. NY: Vintage International, 1992

[10] Spruitt JE: The penal conceptions of the Emperor Marcus Aurelius in respect of lunatics: reflections on D. 1,18,14. Int J Law Psychiatry 21:315–34, 1998*

[11] (2022), https://theprint.in/opinion/prisoners-are-twice-as-likely-to-die-by-suicide-existing-laws-do-little-to-help-them/705282/ (last visited Jun 6, 2022).

[12] Gee, Officer Krupke, West Side Story. Book by Arthur Laurents, Music by Leonard Bernstein, Lyrics by Stephen Sondheim, 1956

[13] Magherini G, Biotti V: Madness in Florence in the 14th–18th centuries: judicial inquiry and medical diagnosis, care and custody. Int J Law Psychiatry 21:335–68, 1998