Forensic psychiatry in India: The road ahead

“I construct my memories with my present. I am lost, abandoned in the present.

I try in vain to rejoin the past: I cannot escape.”

Jean-Paul Charles Aymard Sartre: Nausea (1938)

Distinguished guests, fellow members, friends, ladies, and gentlemen, let me express my deep gratitude for bestowing the honor by electing me as the President of Indian Psychiatric Society (IPS) for the year 2014. I pray that I prove worthy of your choice and pledge to work for the betterment of our great fraternity to the best of my capacity. I have chosen “Forensic psychiatry in India – The road ahead” as my theme for today's presidential address.

“Concepts carry consequences-classifying things one-way rather than another has important implications for the way we share toward such things.[1] ” There is no consensus view about a definition of forensic psychiatry. It is the field of activity which is still defining its boundaries.[2]

Differing legislative, philosophical, and community traditions shape the style of forensic psychiatry from one jurisdiction to another. Clinical psychiatry operates within therapeutic contexts and forensic psychiatry operates within legal contexts.

Pollack[3] construed forensic psychiatry as limited to psychiatric evaluations for legal purposes and described it as a “broad general field in which psychiatric theories, concepts, principles, and practices are applied to any and all legal issues.” The history of forensic psychiatry is often conceived of as “the entrance of medicine into court” or even a “medicalization of law.”

Forensic psychiatrist has to substantiate and prove the bases for his opinions, differentiate between what he sincerely believes and what he can demonstrate, and distinguish the hard data and the Meta psychological theories that purport to explain the data.

The need to establish a sophisticated forensic mental health system is the result of the global trend of deinstitutionalization of the mentally ill.[4]

Modern forensic psychiatry has benefited from the evolution in the medico-legal understanding and appreciation of the relationship between mental illness and criminality, evolution of the legal tests to define legal insanity and the new methodologies for the treatment of mental conditions that provide alternatives to custodial care.

Ancient tragic narratives described by Aristotle were arguably the first forensic examination of the psychology of human cruelty and misfortune. Their form and structure still influence the contemporary criminal courts that investigate the terrible events that occur between people and decide what to do with the perpetrators.

De Praestigs Demonium by the German Physician Weyer[5] (1515-1518) which appeared in Latin in 1563 may be considered as the first medical treaties in the common milieu of mental disorders and law. Medico-legal perception of mental illnesses came into existence in 17^th century. Custodial placement was decided by the judges based on the request of the relatives of the mentally ill. Prisoners were segregated from the mentally disordered with the reorganization of existing institutions and creations of asylums. Ray's[6] “treatise on medical jurisprudence on insanity”(1838) was used as a reference by defense in the trial of Daniel McNoughton (report 3 and 4^th March 1843: Ref: 26, 31, 33, 39, and 43).

The role of medical witness gradually changed in 19^th century and physicians became more involved in detecting insanity, especially within the legal system.[7] Psychiatric services surfaced the criminal justice system in 20^th century.[8]

In this presidential address, I would like to focus on the legislations in the Indian mental health milieu which guided the destiny of psychiatry in India. The second issue is a contentious one, the ethical dilemma faced by the forensic psychiatrist, who has to wear two hats at the same time providing treatment for the patient and making an assessment for the evaluee.[9]

Another pivotal issue in the forensic realm is the psychiatrist's explications about past mental state to determine criminal responsibility. Much water has flown in this area and the interpretation during the trial with reference to criminal responsibility had not gone beyond the concept of intellectual comprehension.

Teaching and training facilities in forensic psychiatry are still in the toddler stage and these issues have to be given prime importance, considering the future of psychiatry.

In British India, treatment and care of the mentally ill were governed by the following acts:

• The Lunacy Supreme Court Act 1858 (Act XXXIV of 1858)

• The Lunacy District Courts Act 1858 (Act XXXV of 1858)

• The Lunatic Asylum Act 1858 (Act XXXVI of 1858)

• The Military Lunatics Act 1877 (Act XI of 1877)

• The Indian Lunatic Asylums (Amendment) Act 1886 (VIII of 1886)

• The Indian Lunatic Asylums (Amendment) Act 1889 (Act XX of 1889)

• Chapter XXXIV of the Code of Criminal Procedure 1898

• Section 30 of Prisoners’ Act III 1900.

The first three acts were based on two English acts of 1853 namely: (1) Law relating to the custody of lunatics and (2) management of their estates. Lunacy enactments were influenced by the British acts that existed in the mid-19^th century.[10]

The guidelines for admission and treatment of lunatics were incorporated in the Lunatic Asylum Act 1858 and with some modifications, the central supervision of the mental hospital was established in 1906 and this had paved way for the Indian Lunacy Act 1912. The fear of false detention of sane people was reflected in the statement of objects and reasons for the introduction of the bill. The procedures for the issue of the reception order was based on the English Lunacy Act 1890 and method of examination and manner of issuing the medical certificates were clearly prescribed in the act.

Indian Lunacy Act 1912, prioritized custody over care and the sections were heavily biased in favor of courts.[11] A change was insisted by IPS and a draft of Mental Health Bill was submitted in 1949. The Mental Health Bill was passed by the Rajya Sabha on November 26, 1986 and Lok Sabha on March 19, 1986 and assented to on May 22, 1987 and became an Act No. 14 of 1987. It came into force with effect from April 1, 1993.

With conceptual superiority and concordance with the advances in psychopathology and psychopharmacology, Mental Health Act (MHA) 1987 was compiled with 10 chapters and 98 sections. Emphasis on more humane approach to the problems, rechristening the term, “lunatic” as “mentally ill,” creation of Central and State Mental Health Authorities, simplified admission-discharge procedures of the voluntary patients, admission avenue of minor with the consent, separate provision of involuntary patients, separate centers for drug seekers, establishment of psychiatric hospitals and nursing homes in the private sector, highlighting human rights issues, guidelines for cost maintenance and management of properties of the mentally ill are some of the positive changes of MHA 1987.

Discordance with the WHO guidelines, criminal flavor of admission and discharge of noncriminal mentally ill persons and neglect of community psychiatry are some of the criticisms.[12]

The sufferings of profound mental retardation are more severe than some mental illnesses, but MHA 1987 bars treatment for the mentally retarded. The maximum time allowed for nonvoluntary admission by the psychiatrist in charge is a period not exceeding 90 days. For further stay, an order based on section 20 (2) is needed, but the court can be approached for further stay beyond 180 days.[13]

Mental Health Care Bill (MHCB) 2012 was introduced in the Rajya Sabha on August 19, 2013. The bill repeals the MHA 1987. The statements of objects and reasons of the bill state that the government ratified the United Nations convention on the rights of persons with disabilities in 2007. The new bill was introduced as the existing act does not adequately protect the rights of persons with mental illness nor promote their access to mental health care.

The objectives of the bill are:

• Protection and promotion of rights of persons with mental illness

• Ensuring treatment and rehabilitation in the least restrictive environment possible without intruding their rights and dignity

• Fulfillment of obligations under the constitution and the obligations under various international conventions ratified by India

• Regulation of public and private mental health sectors

• Provision of quality public mental health services and nondiscrimination in health insurance

• Integration of mental health system in all levels of general health care

• Promotion of principles of equity, efficiency and active participation of all stakeholders in decision making.

MHCB 2012 has 16 chapters and 137 sections.

The following are the recommendations of parliamentary standing committee on MHCB 2013 (presented on November 20 2013)[14]

• Provision for the mental health professional to make application to the concerned board if not desirous of advance directives

• Rules to be framed for the establishment of community-based rehabilitation services

• To relook the scope of misuse of medical records

• Explicit definition of the word “authority"

• Two qualified professionals in Mental Health Review Board

• Amendment of subsection 11 of section 99

• Deleting subsections 2-9 and retaining subsection 1 of 100

• ECT with informed consent

• Deletion of the word “seclusion” in clause 106

• Right for the nominated representative to withdraw at any stage of research, if he has given informed consent

• Reexamination of clause 112 (with ref to prisoners) and explain in an explicit manner

• Amendment to clause 113 (persons in custodial institutions)

• Deletion of sub-clause (1) of clause 114 (notwithstanding anything concerned in any other law for the time being in force, a person's current or past admission to a MHE or current/past treatment of mental illness without prejudice to provisions, be a ground for divorce

• Amendment of section 124 presumption of severe stress in case of an attempt to commit suicide.

The concept of “psychiatric will” in the name of advance directives may appear appealing on a bird's eye view but in emergency situations to implement certain therapeutic strategies considering the best interests of the patient, the therapist's freedom is akin to a bird without wings. The recommendation by the parliamentary committee for a provision to apply to the board against advance directives is an arduous and time consuming task. A detailed review by Sarin[15] concluded that advance directives have not worked as intended even in the west.

Decentralization of clinical decisions to Mental Health Review Commissions and Board would mean loss of time and denial of mental health services, especially emergency treatments, to the neediest patients, which would seriously compromise their health and safety.

Mandatory information into the board about admissions under sections 96, 98 and women and minors would only add to the stigma of mental illness, which is against the spirit of the MHCB (chapter VI, clause 30).[16]

The involvement of Indian family with patient care cannot be disputed and invoking a new concept of nominated representative who can take all decisions regarding care and property is totally unwarranted. Introducing a brand new concept which positions the family and the patient as adversaries is fraught with consequences which may do harm to patient's interests than good. In the absence of community-based rehabilitation services, the noble intention of MHCB would never be realized.

The inclusion of alcohol and drug abuse in the definition of mental illness will sort out the prevailing confusion about character of services catering to these conditions.[17]

As per Mental Health Care Act, all admissions in psychiatry ward in medical colleges and general hospitals would be under the purview of the court. The shift from “custodial care” of mental hospitals to general hospitals facilitated deinstitutionalization and paved way for destigmatisation. General hospitals, with the open ward system and with the facility to stay with family members catered the needs of mentally ill and people with problems of substance abuse, sex related disorders and behavioral problems of children. General Hospital Psychiatry Units with 30-40 beds are involved with acute care and they are the main avenues of undergraduate and postgraduate teaching.

If they come under MCHA, these units would be converted as places for longer staying involuntary patients. The concept of advance directives and nominated representative is going to open a new Pandora's box in the milieu of general hospital psychiatry.

Psychiatric services in the private sector are meeting a growing and urgent need, but their functioning was not envisaged in the MHA 1987. There is a twin need to encourage these treatment care facilities as well as regulate the functioning, so that human rights abuses do not occur.[16]

Psychiatrists with more than 10 years of intensive medical training have been equated with others without medical training, for making diagnosis and taking decision regarding treatment and certification.

Provision of exemption from prosecution of those, who attempt suicide due to mental illness and the commitment of government to provide mental health care, is an appreciable aspect of this bill.

The views of the IPS which is the major stakeholder in the welfare of the mentally ill should be considered by the government either by amendment of the above issues or by drafting a new one.

ETHICAL ISSUES

Stone[18] is skeptical and critical of the role of psychiatry in the courtroom setting and he declared that forensic psychiatry was a “moral minefield.” Bonnie[19] stated that forensic psychiatry had served as a pace setter for professional practices that defend the privacy of the patients and has been committed to traditional duties of the medical profession.

The forensic psychiatrist has to choose between the well-being of the person he is asked and the well-being of the society as a whole. Ethical tensions are derived from conflicting moral theories. The deontologic school highlights rules of moral obligation that are binding on all persons. According to its principles, punishment of a criminal offender is a moral imperative and failure to punish a criminal would itself be morally wrong. The consequentialist or Utilitarian school holds that what makes some behavior right is the desirable outcome. It suggests that punishment has a deterrent effect on the perpetrator and thus beneficial to the society.[20]

According to Smith,[21] the insanity doctrine in the court system constituted a battle between law and medicine over which two discourses dominate: A legalistic idealist language of knowledge or a medical, mechanistic language of causation.

The story of insanity in court is the story of battle between medicine and law with different languages allowing for different explanations, conceptualizations, and conclusions. Both medicine and law are vying each other to describe the psychological facts and the result at times is the discursive controversy.[22]

The forensic psychiatrist is faced with dual tension of discovering the objective truth based on the legal system and providing treatment as part of the medical field. In western milieu, some forensic psychiatrists divide their work between providing medical treatment to patients and performing mental assessments of evaluees on behalf of the legal system.[23]

The 19^th century narrations highlight the closeness of forensic psychiatry to the legal system and the pursuit of truth (the forensic component), whereas the 20^th century narrations illuminate the integral component of medical professionalism and beneficence in forensic psychiatry that encompass modern human rights conceptions (the psychiatry component).

Expertise and credibility are two major achievements of the 20^th century forensic psychiatry in addition to ethics based integrity of the psychiatric profession.

The ultimate aim is the revelation of truth as part of the pursuit of justice, without compromising the privacy and autonomy of the people, as required by human rights and traditional professional ethics. The revelation of the truth is not the end but a manifestation of benevolence toward the mentally ill and their unfortunate condition. The unique demands of 19^th century and the dualistic effects of social forces 20^th century condemning paternalism while promoting human rights reared and shaped the present forensic psychiatry. Future depends on the challenges and opportunities.[24]

The most common ethical dilemma in forensic psychiatry arises from a conflict between two principles: (1) Beneficence or promotion of welfare and (2) respect for justice. Based on the concept of Parens Patriae, the government should care people who are legally unable to act on their own behalf. It is not just patient's welfare, but welfare of others is also considered. The justice paradigm has its roots in criminal jurisprudence and the practice of criminal law.

The values of justice and welfare clash in complex ways for the forensic psychiatrist in the court room. Welfare proponents recommend on ethical duties to the evaluee and justice proponents criticize that the evaluee is not a patient in an ordinary sense.

The welfare paradigm with its emphasis on traditional medical duties of beneficence and nonmaleficence seem to dominate English forensic psychiatry. The justice paradigm with its emphasis on respect, objectivity and the pursuit of truth dominates American forensic psychiatry.

Both the paradigms are important, but forensic psychiatry is wedded to justice, whether as a process or fairness, even if practitioners are not always conscious of it.[25]

CRIMINAL RESPONSIBILITY

Criminal law is conceptualized on the reality of intentional and controllable wrongdoings and it holds the offender both morally blameworthy and legally culpable. The general elements of the crime are subdivided into: (1) Actus Reus and (2) Mens Rea. According to the theory of subjective fault, a person is liable only if he subjectively foresaw or was aware of all the elements which make his behavior culpable which is related to punishment. There must be a mind at fault to constitute a criminal act. The concurrence of the act and guilty mind constitutes a crime. This theory has its basis in the Latin maxim “actus non facit reum nisi mens sit rea.”

Insanity defense is the single most controversial legal doctrine relating to the mentally ill. McNaughton rule states that “to establish a defense on the grounds of insanity, it must be clearly proved that, at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of mind, as not to know the nature and quality of the act he was doing or if he did not know it, that he did not know he was doing what was wrong.”

McNaughton rules stressed the importance of the patients notions of understandability of right and wrong, a causal relationship between the content of delusions and crime and the status of the offence if the content of the delusions were true. No reference was made to lack of control, irresistible impulses or drives. The irony invested in the McNaughton rules is that if the right-wrong test had been applied at the time of trial, he could not have been found not guilty on the grounds of insanity.

McNaughton rules are criticized for two reasons. First, by focusing on “knowing” that an act is “wrong” it is said to limit the scope of testimony to cognitive assessments alone; second, in so doing it is alleged to adopt the “outdated” faculty of oldest concept, which divided the mind into several discrete, nonoverlapping compartments, thereby ignoring the modern concept of understanding the interrelationship of mental functions.

The potential breadth of a word like “know” in the McNaughton rules for example, whether “knowing” the nature of an act or the knowing the quality of wrongfulness-no court has read it to mean more than intellectually comprehend.

SECTION 84 IPC

Insanity defense (section 84 IPC) in Indian context is adopted from McNaughton rules. According to section 84 IPC, “nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of an act, or that he is doing what is either wrong or contrary to the law.”

Only legal insanity (mental illness at the time committing the crime) and not medical insanity falls within the purview of section 84 IPC. Unsoundness of mind should be established is the time when the crime is actually committed and the burden of proving this lies on the accused and it is sufficient if this plea is established by the preponderance of probabilities and not by proof beyond a reasonable doubt. Such a plea can be established from the circumstances which preceded, attended and followed the crime.

A dichotomy of section 84 IPC reveals the following ingredients: (1) The accused was insane, (2) he was insane at the time of the crime and not merely before or after the act and (3) as a result of unsoundness of mind, the accused was incapable of knowing the nature of an act, or he was doing what was really wrong or contrary to law.

Irresistible impulses, mental agitation, annoyance, and fury all merely indicate loss of control and are not indicative of unsoundness of mind. Mild mental aberration is not insanity and the circumstances indicating mere probability of legal insanity cannot however be sufficient to discharge the onus of the accused to establish the plea of insanity.

ASSESSMENT OF LEGAL INSANITY

The criminal law asks different questions with reference to assessment of legal insanity:

• “Did the defendant “know” or “appreciate” that his conduct at the time?”

• “Did the defendant “premeditate” the crime?”

• “Was he aware of risks his conduct posed?”

There are two sources of testimonies:

• Lay testimony from the defendant and

• From the psychiatrist.

The expert's testimony is based on four influences:

• Particular symptomatology

• Diagnosis

• Presence of legally relevant impairments (the defendant thought that the killing was justified)

• Ultimate legal conclusion (the defendant was insane at the time of the offence).

In case of assessment of “legal insanity” any description of past mental state is closer to a story than a depiction of an observable event. Conclusion about past mental state with available present mental state findings is criticized by some as interpretation of reality rather than identifying objective reality. The difference of past mental status from assessment of conduct can be explained by “relevance ratio” (a pioneering work by Thomas D. Lyon and Jonathan J. Koeheler).

Relevance ratio is the ratio between the proportion of cases in which a symptom is observed in the population of interest and the proportion of cases in which the same symptom is observed in the rest of the population.[26]

For example, 60% of murderers with Schizophrenia suffer from X, Y, and Z symptoms and 20% of schizophrenics without crime history suffer from X, Y, and Z symptoms and the relevance ratio in this case is 3:1 (60/20%) meaning that a schizophrenic has these three symptoms and it has significant value in the commission of the crime. If relevance ratio is >1, the evidence has some tendency to prove a fact at issue. Lyon and Koeheler argued that the relevance ratio is the most efficient way to think about evidentiary relevance.

The second problem is matching the dependent variable. A person with a persecutory delusion commit more crime than the control group and this information tells us very little about whether the former group experience stronger urges or more cognitive impairment at the time of their offence.

Analog research is the most fruitful line of scientific enquiry into past mental state, but it too has significant problems. This research might investigate the extent to which people with psychosis feel “compelled” or are “confused” about reality in noncriminal situations, compared to a matched control population. Admissibility of clinical testimony requires consideration of four issues: (1) Materiality, (2) probative value, (3) helpfulness, and (4) prejudicial impact. It is better to analyze under 1^st and 4^th components of admissibility analysis namely 1 materiality and prejudicial impact than as an aspect of probative value.

Psychiatrist's explications about past mental state should be based on the knowledge on research using controlled populations, adequate samples and meaningful criterion variables. Psychiatric report should have “criterion validity” (those who receive a particular diagnosis have the same traits) and “construct or discriminant validity” (whether a diagnosis avoids significant overlap with other diagnoses).

In Indian scenario, the opinion about mental status from the psychiatrist is sought after a long period after the commission of the crime and in this regard, Prof. Somasundaram recommended for a mandatory pretrial observation in suspected offences by the mentally ill. Updated analyses by Grondahl of Norwegian report system, state that the use of screening reports in forensic psychiatric practices seems to be useful for the prosecution authorities as a time and money saving procedure. In the Norwegian legal milieu, screening reports with three options like: (1) Recommended, (2) not recommended, and (3) undecided are obtained, but they are not considered as a valid document in the court. The prosecution may ask for a full report which is a valid legal document. The concordance between screening reports and final full reports was 46% for psychosis, 78% for unconsciousness and 94% for mental retardation.

The screening reports produced false positive conclusions, but not no false negative conclusions when using conclusions of full reports as gold standard. This implies that the screening reports fulfilled their task as a screening device, whose purpose is to detect possible legal insanity by the defendant and advising prosecution authorities. False positive conclusions must be considered a far better risk for the defendants than the false negative.[27]

One may anticipate changes in the following with reference to expert witness:

• Elaboration of training approaches

• Expansion of expert roles outside the courtroom

• Vast expansion of technologic approaches to assessment and presentation

• Evolution of ethical issues with preservation of core forensic values but changes in confidentiality, due process, and the nature of assessments

• Expansion of hard sciences in relation to understanding psychopathology.

RESEARCH AND TRAINING IN FORENSIC PSYCHIATRY

There are four major components in forensic research. Firstly, the study of legislation with regards to mental health; secondly, the associations between crime and mental disorder; thirdly the study of systems and services not normally dealt with in medical practice, such as special secure hospital provision, prisons and probation; and lastly study of victims and survivors of crime and abuse.[28]

Research in forensic psychiatry is clinically based and its impact lies in changes in practice. The dissemination of such practice is better effected through forensic journals. Research strategies with inputs from psychiatrists, criminologists, lawyers, and independent and user agencies would be better. If research confirms its effectiveness and identify factors to overcome barriers, unnecessary incarceration of mentally ill in prison and psychiatric hospitals may be avoided.

There are 50 articles on forensic psychiatry published in the Indian Journal of Psychiatry during the last 50 years by many legends of IPS.[29] In the educational milieu, postgraduates receive little or no experience of using mental health related acts.[30] There is a wide gap between clinical Psychiatry and forensic health system.

Postgraduate trainees in psychiatry should receive adequate training in legislative aspects of psychiatry. Basic didactics can be taught in seminar format. Self-assessment questions and tests can help residents learn and retain key material. CMEs, seminars, workshops in forensic psychiatry should be conducted at national and state levels to create more legal awareness among young graduates. Adequate training must be given in writing a forensic report.

The creation of the American Academy of Psychiatry and the Law in 1960, the American Board of Forensic Psychiatry in 1976, and sub-specialty certification examinations sponsored by the American Board of Psychiatry and Neurology in 1994 contributed to the recognition of “forensic psychiatry” or “law and psychiatry” as fields worthy of formal recognition in residency and fellowship programs. Such a move in Indian context will definitely become a new dawn for the field of forensic psychiatry to address the unfortunate sufferings of the mentally ill.

FUTURE DIRECTIONS

Telepsychiatry involves the use of telecommunication technologies to deliver mental health services from a distance. Video conferencing – a live two-way interactive video and audio communication system – is the most widely used technology. It offers opportunities for clinical consultations, treatment, education, and other activities in the context of mental health care.[31]

Telepsychiatry is appropriate in forensic settings,[32] and its use is associated with costs savings.[33] There are certain legal and ethical challenges in telepsychiatry related to licensure, privacy, security, confidentiality, consent, and professional liability.[34]

The use of telepsychiatry in the prison setting may help to improve the quality of care provided and overcome some barriers to achieving the goal.[35] Its use may enable agencies such as the courts or prison to access forensic psychiatrists’ expertise in a timely and efficient manner.[36]

It has also been used for forensic examination in cases where physical or sexual abuse is alleged, particularly for children.[37] This allows clinicians to share images and discuss results with forensic experts, and has the potential to improve the evidence-gathering process.

Seeking amendments in MHCB, creating legal awareness among psychiatrists and psychiatric awareness among legal professionals, framing guidelines for the present ethical issues and explications for the past mental state to assess legal insanity, promoting research in forensic psychiatry and certification course in forensic psychiatry by IPS are some of the needs to be addressed.

I conclude with the saying of Abraham Lincoln:

• “The dogmas of the quiet past are inadequate for the stormy present and future. As our circumstances are new, we must think anew and act anew.”

• And so must we. We need to look at these issues in a new way, not simply for today but to make our tomorrows more rewarding, more fulfilling, and more compelling because of the change we make today. With your help, we can think anew and act anew on the issues before us today.