Summary The mental condition in criminal law

This summary of 'The mental condition in criminal law - Forensic Psychiatric and Psychological Assessment in a Residential Setting' (Koenraadt, Mooij & van Mulbregt) is written in 2014


Chapter 1. The background to forensic psychiatry in a residential setting

Forensic psychiatry

Forensic psychiatry would seem to occupy a circumscribed and isolated position in the field of psychiatry. The special nature of forensic psychiatry lies precisely in the fact that it connects the psychiatric and legal angles, taking psychiatry in the broad sense as relating to disturbed behaviour and perception. We thus define forensic psychiatry as forensic behavioural science relating to disturbed behaviour and perception. As the connection between psychiatry and the law is seen particularly in the process of producing forensic psychiatric reports, these lie at the heart of forensic behavioural science.

The legal question can be a criminal or civil nature, or can relate to social security legislation. We confine ourselves to criminal law questions. A vital question is that of criminal responsibility. Given the centrality of criminal responsibility, diagnosis plays a key role in forensic psychiatry. The independent nature of diagnosis is characteristic of forensic psychiatry.

Applying this general principle of independence can give rise to difficulties, especially if the accused denies the offence or refuses to cooperate with the assessment. Problems that require careful handling arise not only if the accused denies the offence, but also if he refuses to cooperate with the assessment. Respect for the legal position is also necessary in the interests of mental hygiene. Another aspect of the problems that result from the enshrinement of forensic psychiatry in the law is the setting in which it takes place, especially the residential setting. The final aspect of problems that result from the enshrinement of psychiatric and behavioural assessment in law is the nature of the assessment. Because of the gradations possible when establishing criminal responsibility, an individualistic diagnosis is called for rather than a classifying one. It is very important for the presence of symptoms to be established unreservedly. Although the classifying approach is very important in general psychiatry, in forensic psychiatry its importance is only relative. Because of the criminal law context, which requires an individualistic approach.

Chapter 2. Dutch criminal law and procedure: a bird’s eye view

General characteristics

Criminal law and criminal procedure are the raison d’etre of mental health assessments ordered by the courts. Current Dutch criminal law and procedure are highly influenced by French and German law. The trial systems associated with these legal systems are generally referred to as inquisitorial and adversarial respectively. Inquisitorial is no longer the case with criminal law procedures in today’s continental legal systems: the two systems could even be said to be converging to some extent. Dutch criminal law and procedure is characterized as moderately inquisitorial and predominantly accusatorial.

Dutch criminal law does not lay down mandatory sentences or minimum sentences. The law only lays down maximum sentences for each offence. The public prosecutor as dominus litis has certain discretionary powers to refrain from prosecution in the public interest.

Although nowadays there is a lot that could be said about the relative mildness of the criminal law climate and proverbial Dutch tolerance, our criminal policy in certain areas has been praised as well as criticized in other countries. There is a lot of undiluted criticism what is generally misplaced and unfounded. It gives a distorted picture of the serious efforts being made to tackle and solve sensitive social problems rationally. The keystone of this development at present is the requirement to include specific terrorist crimes in national criminal law. Cooperation is being promoted through increasingly efficient legislation. Dutch criminal policy needs to steer a middle course between the domestic and international pressures to step up crime control and make it more effective.

 

Substantive criminal law

The principle of legality applies in the Netherlands: no act is punishable other than under a pre-existing provision of criminal law (nullum crimen, nulla poena). The principle requires the law to be clear and accessible, the definitions of offences must be transparent and not too vague or too open (lex certa).

Another fundamental principle underlying Dutch criminal law is that of no punishment without guilt. This principle is particularly important to the subject of this book. This guilt principle sets both the lower and upper limit of sentencing.

A longstanding principle has been that the criminal law should be the ultimate response to the problem of crime. It is a last resort (ultimum remedium) and should only be used where other, non-punitive, responses are likely to fail. The criminal law is now considered the first and foremost resort (primum remedium) to counter criminal and socially undesirable conduct.

Under Dutch criminal law a defendant can raise an affirmative defence, consisting of a justification or an excuse.The law recognises the following justifications:

  • necessity

  • self-defence

  • executing a legal order

  • executing an authorized official offer.

 

The law recognises the following excuses:

  • lack of criminal responsibility due to a mental disorder

  • duress

  • excessive self-defence

  • executing an unauthorized official order.

 

The Criminal code sets out the types of sentences and non-punitive orders that can be imposed once the defendant is found guilty of having committed an offence.

  • Imprisonment and detention

  • Fines

  • Alternative sanctions

  • Suspended sentences

  • Special non-punitive orders

  • Forensic mental health care

 

Criminal procedure

The criminal process can be divided into two main stages:

  • The pre-trial stage of police investigation, supervised by the public prosecution service and if necessary by the examining magistrate.

  • Once the decision to prosecute has been taken and the suspect has been charged with the offence, the case is brought before the court. At this trial stage the judiciary decides on the defendant’s factual guilt, his culpability, the unlawfulness of the act and the penalty.

 

Chapter 3. Historical roots and recent developments

Early mental health assessments

This chapter looks at some early mental health assessments, those that were presented to the courts at the end of the eighteenth century and during the nineteenth. Around the turn of the twentieth century the fields of psychiatry and criminal justice were brought closer together and statutory provisions were introduced to regulate the contacts between them. One of the early extant psychiatric assessments used in a trial is that of Maria Meybeek. Although Dutch forensic medicine was still in a deplorable condition, interest in this special area of expertise gradually developed.

Two schools can be identified as having determined the direction in which criminal law developed: the classical and the modern school. An important exponent of the classical school was Cesare Beccaria. Revenge remained the guiding principle. The modern school, with Cesar Lombroso as its champion, rejected the idea of punishment as revenge, proposing instead that individual offenders be retreated.

The years of occupation left deep marks both in Dutch society and elsewhere, but especially on the Dutch criminal justice system and prison system. The occupation and the liberation had a major influence on the proposals of the Commission.

The 1970s can to a large extent to be seen as a period of preparation for the move to the new accommodation and the accompanying increase in the scale of the Hospital’s work. According to Petersen was the decision in principle to build a new facility made as early as 1964. The reports that the observation hospital produced during the years that it existed gradually changed in style and tone and they also grew in size. The central figure at the observation hospital is the defendant. The pattern of judicial clients ordering reports from the hospital changed over the years.

This chapter gives an insight into inmates and their motives from their own point of view and form an exceptional source of information. Information of this kind can be found in forensic mental health reports, but this is of a different nature. Assessment at the Pieter Baan centre is designed to portray the subject as faithfully as possible.

In a period of over half a century many detainees have been carefully assessed in a residential, relational setting, based on extensive contacts with the detainees wherever possible. Recent decades have shown a marked trend here, from the initial hierarchical medical approach, through the dialogue advocated by Kloek, and the family interaction and systemic diagnosis championed by Beyaert, to the prudence emphasised by Mooij. Systematic and objective research into the subject’s ability to take individual responsibility.

In order to do justice to the defendant as a person and the person of the defendant, the Pieter Baan Centre sets strict standards for forensic mental health assessment, as demonstrated by history and various chapters in this book.

Chapter 4. The legal framework

Indications for assessment

In most cases when a personal assessment is ordered the expert is asked to ascertain whether the defendant has a mental disorder and to what extent this could have been a factor in the commission of the offence. By obtaining information is the court able to judge the legal question of the extent to which he can be held responsible for the crime.

One indications for admission to the Pieter Baan Centre can be the nature of the defendant’s pathology. Medical examination may also be required, and information on the cultural background may be needed for a proper understanding of any mental disorder and possible connections with the crime.

 

The expert’s role in proceedings

The personal assessment can only be conducted on the assumption that the detainee committed the offence. There is nothing in the rules of procedure to say that the report cannot be used in evidence. When answering the questions put by the court, the expert may need to take a range of scenarios into account for the charges in the file.

 

The legal counsel

The legal counsel is a member of the assessment team, where he supervises and monitors the process. He produces a summary of the criminal case file, maintains contacts with the judicial authorities, chairs the team meetings, monitors the progress of the assessment, contributes to the decision-making, and takes charge of the editing of the report.

 

Criminal law doctrines

A few questions are put by the court: whether the defendant has a mental disorder, whether this was also the case at the time of the offence, whether there is a demonstrable causal link between the disorder and the offence. The conclusion question is whether the defendant can be held criminally responsible for the offence.

 

Complications

A personal assessment can have criminal law consequences for the defendant. The interviews can result in information that is very privacy-sensitive. It is not always possible in practice for the mental health expert to carry out the assessment ordered by the court. Although defendants have no statutory right under the criminal law to refuse to cooperate with a forensic mental health assessment, the right to respect for private life is an obstacle to investigating a defendant against his will.

 

Different measures have made it easier for the Pieter Baan Centre to investigate a non-cooperating detainee. Not only can observation continue against the detainee’s will, the amendments have sometimes been an encouragement to detainees to cooperate after all. The reasons for the detainee’s refusal and the possible consequences as regards criminal procedure are discussed with him. Attempts are made to make him feel at easy, remove any unreal fears and motivate him to cooperate with the assessment.

As of 1 januari 2005 the Centre’s approach to non-cooperating detainees has been changed again: now all defendants sent by the courts are kept at the Centre for the full weeks and investigated as far as possible.

Chapter 5. Social inquiry report

Forensic social workers have a special role to play in forensic mental health as practised in the Pieter Baan Centre. Their task is: describing the detainee’s life in interaction with his surroundings.

 

Planning the external inquiry

It is not always easy to write a life story of the detainee. It requires an inquiring relationship based on cooperation. Many detainees will enter into this kind of relationship for one thing, because they themselves are keen to get a handle on their lives. The next step in the inquiry is to talk to various referees. This enables him to provide a well-differentiated picture of the development of the trainee. It can be deduced from the autobiography which people have played important roles in their life. The detainee’s self-description and the referee’s interpretations will be based on their memories. The process often becomes apparent when written sources can be examined. If the detainee is of non-indigenous origin, the forensic social worker may need to consult out-of-the-way referees.

 

The forensic social worker decides in consultation with the other members of the assessment team which referees to contact and which written sources to examine. When a person is ordered to undergo a personal assessment there is a well-founded suspicion that he committed the crime with which he has been charged, but sometimes the suspect denies the charge. The Pieter Baan Centre does not normally concern itself with the legal argument. A suspect who denies the charge may refuse to cooperate with the inquiry. But sometimes he may be keen for a social inquiry to be carried out, because he expects it to prove his innocence. This is an important consideration for the forensic social worker: it is not only the suspect who may have an interest in this, the referees may also have an interest in clearing him or on the contrary proving his guilt.

 

In the case of non-indigenous suspects will the forensic social worker need to consider the socio-economic and cultural situation in the country of origin. Where necessary and possible will the worker provide the assessment team with a brief introductory account of the circumstances there. The account must make it clear that the description is a general one. It needs to be placed in perspective and treated with some caution. It is not easy to obtain the information required in the case of immigrants from other countries. A fairly new task for the Pieter Baan Centre is analysing the cases of suspects who are political refugees. This is a category of people who are particularly difficult to access, as they come from literally every corner of the earth. They have been uprooted and many of them are severely traumatized. The remit of the centre is to assess anyone charged with a serious crime, even detainees of non-indigenous origin. This is a task that requires creativity and special efforts on the part of letter. The social worker is however not only faced with different immigrant cultures: Dutch culture too has a wide variety of subcultures that influence the way people develop.

 

Referees cannot be forced to assist with the social inquiry, so the forensic social worker needs to convince his proposed referees that it is important for them to cooperate. The primary referees are important sources of information. Because of the interconnections a primary referee can be not only an information provider but also part om the problem, and in some cases thus also the object of the assessment. Primary referees usually have a certain realization that the detainee is mentally ill or has a personality disorder and this awareness often makes them very willing to assist the forensic social worker. Secondary referees are less likely to be part of the problem. They are more detached from the suspect and more able to confine themselves to playing the role of information providers.

 

The external inquiry

The information supplied by referees is intended for the inquiry into the detainee, but their statements almost always include an element of self-evaluation as the referee is talking about his relationship with the detainee and what took place in it. A basic attitude of respect is paramount. The physical conditions in which an interview takes place have a major influence on the atmosphere. The forensic social worker takes note not only of the relationship itself but also the circumstances in which it developed. How close the referee was to the detainee is a major factor in the considerations.

 

The detainee has been charged with a serious crime and this will have a strong influence on people in his immediate environment. Interviews with primary referees are generally highly emotionally charged. Coming to terms will certainly take time and in many cases assistance from care providers in the community of the referee. It is important for the forensic social worker to understand what stage the referee has reached in coming to terms with the event. Interviews with the detainee need to be structured, as do those with the primary referees. Referees are expected to provide a whole lot of information on the person’s development over the years while respect is shown for their current emotions. The worker visits the referees at their homes and asks them detailed questions about their perceptions based on the facts they have given. This kind of interrogation sometimes leads to incomprehension on the part of referees.

 

Primary referees are generally only too happy to be interviewed by the forensic social worker, motivated partly by their own need to understand the whys and wherefores. Many of them expect an answer to this question. Many referees also realize that by cooperation they can help prevent similar crimes. The interview with the forensic social worker is the first time that many referees are able to talk about their pain, anger and concerns.

 

The interviews with secondary referees are generally less emotionally charged, although they too may feel deeply shocked. These interviews are always concerned with particular stages in the detainee’s life. The provide an evaluation of the nature of the working relationship between the detainee and the referee during that stage. They focus on the quality of the relationships the detainee had with people around him. The interviews with these particular referees generally explain patterns found in the interviews with the primary referees. The secondary referees are usually able to provide a broader view of the detainee’s functioning in the local community. The relationship between the detainee and the secondary referees does not take place in a vacuum.

 

Referees are notified in writing and orally of what will happen to the information they have supplied. Despite this a referee may object to information that he has supplied being included in the report, or there may be information that compromises the forensic social worker’s independence. This can result in the following complications:

  • The referee may have provided information that relates to a third party which the judicial authorities are not aware of.

  • The referee have provided information that is emotionally shocking.

  • There may be a fear of reprisals.

 

The social inquiries are carried out by social workers. The methods and techniques become more system-based. The crime with which the detainee has been charged can evoke violent reactions, as can the person himself. The forensic social worker needs to keep a constant eye on his opinions and emotions and they effect they are having on the relationship with the detainee and those around him. The self-assessment takes place in the relationship between the forensic social worker and the other members of the assessment team and his discussions with fellow social workers.

Chapter 6. Residential staff

Residential staff constitute the largest occupation group at the Pieter Baan Centre in terms of numbers. They are often referred to as group leaders, but the term residential staff reflects better the diversity of responsibilities these people take on. The main job of the residential staff is to report on detainees’ behavioural capabilities and handicaps in the report from the Centre. Despite the fact that the Centre has the official status of a remand centre, detainees there come into contact almost exclusively with residential staff.

The relational security in fact works in two ways: not only does the detainee feel more secure when he is treated well, the member of staff feels more secure physically and mentally in an atmosphere of that kind. The training these staff receive is a typical occupational training: whereas theory and theoretical grounding are to the fore at universities, the training of residential staff needs to be based above all on the applied sciences and training in social skills.

 

Security and safety

Security is a topic that is often discussed at the Centre. The way in which staff deal with security rules and procedures depends on their particular role and their personal sense of responsibility. But even when there is optimum security and safety, incidents cannot always be avoided. Experience shows that over-regulation is more likely to increase the lack of security. The remedy is worse than the disease. The residential staff need to keep the issue of distance and closeness constantly in mind. Crisis situations can be predicted and prevented or resolved by timely intervention. Most crisis situations can be nipped in the bud by spotting them in time and intervening physically if necessary.

 

Care and nursing

Detainees need not only supervision but also care. Staff are even obliged to take on nursing duties in some cases. Handling these detainees often presents an additional problem for residential staff. In general a group needs to have a certain amount of space to enable the individuals’ initiative and sense of responsibility to be observed. But psychotic patients simply cannot be given that kind of space. The situation is even more problematic when patients refuse to take the medication they need precisely because of their medical condition. The residential staff sometimes have to devote a lot of time to care and nursing, but it cannot be said that they provide treatment in the narrow sense. The Centre is not there to cure patients.

 

The group

The observation work at the Pieter Baan Centre is organized in such a way that every weak at least one detainee is admitted to each ward and another is discharged. As a result it is uncommon for real group ties to develop. Another reason is that the detainees’ highly personal problems lead many of the mto be concerned almost exclusively with their own affairs, forcing group interests in other people onto the back burner.

 

The social stratification in penitentiaries is also found at the Pieter Baan Centre. For those inmates with the lowest status is the penitentiary a decidedly unsafe environment. This is much less of a problem at the Centre because of the close attention the residential staff pay to small groups and individuals. Even there, though, are these inmates in danger of being outcasts.

 

The detainee

The timetable of a detainee is similar in many respects to the one he would have in a normal remand centre. The difference is that the activities at the Pieter Baan Centre are designed for observation and not merely to pass the time. An essential feature is that the residential staff take an active part in these programmes wherever possible, based on the principle of participant observation.

 

Visits from detainees’ families and friends take place in a separate visiting room. The visits are regarded as important to the observation process and attended by the residential staff. In al their other activities are detainees accompanied by residential staff when moving around the building, going to the shop, the library, the hairdresser and so on. Although detainees are not obliged to participate in the daily timetable, the question of why not inescapably arises if they are conspicuous by their absence.

 

Obtaining and processing observation data

Residential staff not only need to keep going under pressure, they also need to be able to distil from the sometimes complicated emotional events the behaviour of each individual and his share in events. A recurring and difficult fact for the residential staff is that they, because of the participant observation, are involved in every event themselves and influence and direct situations through their presence and actions. Most of the information for the residential staff member’s report comes from the group. This generally gives a sufficiently clear picture of the events and developments relating to the detainee. These reports have to back the assessments by the other members of the assessment team.

 

The report

The report by the residential staff is in a fixed format. It describes the initial, intuitive impressions they gained of the detainee when he was admitted. These intuitions are important, because the picture has not yet been influenced by habituation and because they can set the wrong tone for the detainee’s time at the Centre. 

 

Chapter 7. The psychological assessment

 

The diagnostic process has a clearly defined aim: to produce a report for the Distric Court or Court of Appeal that provides independent and impartial information on the person in the dock. It is then up to the court to convict and sentence the defendant or not. The forensic psychologist operates in and between two areas:

  • That of the person under assessment with his particular nature

  • That of the law with its requirements of transparency and clarity.

 

Types of forensic psychological assessment

The ways in which psychologists can contribute to the criminal justice system in the Netherlands can be very varied. We find psychologists involved in the behavioural profiling of offenders with the aim of catching the crimina land providing evidence. Another way is by undertaking a mental health assessment of the reliability of statements made by the defendant, the victim and or the witnesses.

 

A special role is set aside for the psychologist who acts as a lay appeals judge. There the standard role of the psychologist in court is changed radically. He is an internal expert with the power to administer justice. The psychologist’s attitude is the key: having generally been trained as a care provider is the forensic psychologist nevertheless expected to adopt a neutral and independent stance towards the person under assessment.

 

The psychological assessment embedded in the residential assessment

The psychological assesment is an individual mental health assessment and forms part of an assessment carried out by a team of experts. It is important for each mental health expert to maintain and safeguard his professional independence and responsibility within the multidisciplinary assessment.

 

The multidisciplinary approach is an essential feature of mental health assessment at the Centre. The team seeks to answer the questions put by the court based on:

  • Knowledge

  • Methods and perspectives of psychiatry

  • Psychology

  • Social work

  • Residential work and the law

  • Interaction with the detainee

 

The detainee has to deal with very different personalities. He comes into contact with various people and each of them arouses something in him and provokes very particular reactions in some cases. The psychologist differs markedly from the other team members in that he is able to input data from tests.

 

Sources and tools

Forensic psychology has a wide range of tools for gathering relevant data on the defendant:

  • Observation and perception

  • Interviews

  • Psychological tests: IQ testing, neuropsychological tests, personality assessment, processing the psychological test data

  • The criminal case file.

 

Psychopathology and diagnosis

In order to ascertain precisely what is wrong with the detainee in psychological terms are various tools and methods and a multidimensional approach employed to diagnosis, identifying six domains of psychodiagnosis:

  • Objectively and subjectively observable symptoms and syndromes

  • The situation, system and context

  • Consciously accessible cognitive schemas

  • Dynamics

  • The security of the familiy environment

  • Largely genetic stable personality traits and temperament factors.

 

Thus a broad set of assessment tools produce a dynamic, evidence-based picture of functional connections in the mental state of a detainee.

 

The report of the assessment describes the defendant as a person, using the tools and methods employed. Any pathology present and what course it has taken, is also described. When discussing the offence and the risk of re-offending, the person comes into the picture as a defendant. The report answers the questions put by the court and thus needs to be a product that the court can work with. It also gives an account of the work carried out and provides underpinning for the conclusion and the recommendation. It represents the professions who have worked on it and the assessment institution.

 

Special cases

Every detainee admitted to the Pieter Baan Centre for observation and assessment is regarded as a unique person. Some detainees fall, however, more or less into a category as they share the common factor that they require the same special handling in some respect. Categories ares:

  • Non-cooperating detainees

  • Detainees who deny the charges

  • Defendants who acted in concert

  • Ethnic minority detainees

  • Under-age detainees

  • Tbs order patients

 

The psychological as expert witness

The trial provides a place for the litigants to confront another. In Kelk’s view is this important in:

  • Enabling a critical comparison tob e made

  • Promoting good communication between everyone involved

  • Defining the responsibilities of those involved

  • Promoting the quality of reporting.

 

In addition to the written report, the oral evidence enables a dialogue to take place between the expert and the litigants. In many cases provides the report sufficient information to the participants in the trial. But there are situations where the court consider it desirable or essential for the psychologist to appear at the hearing. At the hearing the expert is in the position of being required to answer the questions put by the parties in the public trial.

 

As an expert witness at the hearing the psychologist is required to stay outside questions of proof. Faced with the situation he can only navigate safely by using his own expertise and independence as a compass. Appearing in court is all part of reporting to the court and it is the most personal aspect of it. After all, the expert is limited by his competence and the domain in which his profession operates.

Chapter 8. The psychiatric assessment

The psychiatrist is a member of the assessment team and is, along with the social worker, the representive of the group leaders and the psychologist. This chapter looks at the three responsibilities of the psychiatrist in the assessment.

 

The psychiatrist’s three responsibilities

The psychiatrist has three responsibilities:

  • Psychiatric diagnosis

  • Assessing what role the disorder played in the crime

  • Care and treatment responsibilities

 

The psychiatric assessment

The psychiatrist is responsible for the psychiatric assessment of the defendant during the observation period. This involves consequently and systematically evaluating the causes, symptoms, progression and consequences of any mental disorder found in a particular defendant.

 

The guiding principle for the psychiatrist’s work at the Pieter Baan Centre is the current state of art among psychiatrists as a profession. The personal contacts for the psychiatric assessment is formed by the personal contacts that the psychiatrist maintains with the defendant. The actual psychiatric assessment begins soon after the defendant arrives in the Centre. During the seven-week observation period at the Centre the psychiatrist has contacts with the defendant at least once a week. Right from the start the psychiatrist points out that the relationship is only a temporary one and the interviews will be concluded in the time of seven weeks. It is necessary to point this out to:

  • Prepare the defendant for the cessation of the relationship

  • Make it clear that it cannot be a carer-patient of psychotherapeutic relationship.

 

In the seven weeks of the assessment the relationship with the psychiatrist can develop and grow to the point where in some cases the defenant for the first time expresses his thoughts and feelings about the events he experienced before being sent to the Pieter Baan Centre.

 

An important part of the psychiatric assessment in the broad sense is the psychiatric assessment proper. It involves assessing all the psychiatric symptoms that are present carefully in terms of their nature and magnitude and how they relate to one another. It involves the psychiatrist examining such things as:

  • General impressions

  • Affective functions

  • Psychomotor function

 

Assessing the person of the defendant involves looking at three areas:

  • His outer and inner world

  • How it developed

  • How it relates to the crime

 

This assessment is based initially on interviews with the defendant against the background of the questions put by the court.

 

The pscyhiatrist assesses whether the defendant’s world is rooted in his life story and how this has manifested itself over the years. This includes looking at the life of the previous generation, to examine not only the similarities, but especially the differences. This enables hi mto gain a picture of the person’s individuality.

 

Another important question is whether the course of the defendant’s life displays a clear continuity with the period leading up to the offence and whether the period around the time of the offence differed from what had occurred in his life.

 

Diagnosing a defective development or pathological impairment

The presence of particular symptoms may lead to the diagnosis of a psychiatric condition. With a view to possible treatment it is vital to know what causal factors underlie the psychiatric condition. Incorporating the findings of the psychiatric assessment can improve the consistency of the report as a whole, but it can also reveal apparent contradictions in the findings or show that relevant information is missing. This will lead the assessment team to carry out further assessments or to check whether other sources can provide more or better information.

The diagnostic process should result in a transparent, individualized description of the disorder, couched in standard terminology, giving a clear picture of any mental problems the defendant has and how they limit him or make him dysfunctional.

The disorder has also to be classified in criterias. The classification systems set out what minimum criteria a person needs to meet in order for a particular disorder tob e diagnosed. Classifying a particular disorder in a system of this kind has it advantages and disadvantages.

The questions put by the court on which a forensic mental health report is based start with whether the defendant is suffering from a pathological impairment and/or defective development of his mental faculties. This is generally a question that psychiatrists and psychologists are able to answer. The assessment demands more of these experts, however.

Chapter 9. Conclusion

    The draft report provides the basis for the team’s final deliberations at the end of the observation period on their joint answers to the questions put by the court. They attempt to form a reliable multidimensional picture of the defendant. If he has a mental disorder they examine ho wand to what extent this may have influenced him to commit the offence and to what extent he can be held responsible.

    An important legal principle in the threat of punishment that the law lays down for the contravention of rules is that people are responsible for their actions. A person who commits an offence is held culpable. This implies that there is a choice and it presupposes the defendant’s ability to weigh up the pros and cons and make estimations (free will). The law recognizes that there are situations where a criminal act has been committed according to the letter of the law but the perpetrator cannot be held criminally responsible for it. To answer this legal question the court can call on the assistance of one or more mental health experts.

    The standard questions put by most courts for the forensic mental health assessment are as follows:

    • Is the defendant suffering from a pathological impairment of his mental faculties, and if so how can this be described in diagnostic terms?

    • What was the situation in the time of the offence?

    • Did any pathological impairment of the defendant’s mental faculties influence his behavioural choices at the time of the offence?

    • If so, can the expert with reasons state:

      • how this came about

      • to what extent this came about

      • what conclusion is advisable on this basis?

    • What different factors arising from the defendant’s disorder could affect the risk of re-offending?

    • What recommendations of a mental health can be made on intervening to change these factors in which they affect one another and in what legal context could they be implemented?

     

    Conclusion:

    The existence of a disorder at the time of the offence is sometimes clear from the nature of the defendant’s pathology. In other cases it can be much more difficult to establish retrospectively that there was a disorder. Additional information is then often essential. Caution is called because of the trial context in which the assessment takes place. A conclusion of full criminal responsibility can be drown in some cases where there is insufficient information to assess the defendant’s mental state at the time of the crime properly.

    Another subject was the question whether a causal relationship can be demonstrated between the disorder and the offence. The relationship between a mental disorder and a specific offence is determined by the extent to which the disorder impaired the person’s ability to realize the illegality and consequences of the act and then to act on this realization. The question of the degree of free will can be defined in mental health acts as that of the ability of an individual to reflect on his behaviour and thus decide how to act, whether to act or to refrain from acting. A mental disorder can impair this ability of internal dialogue, which may ten he reflected legally in the verdict on the defendant’s criminal responsibility for the offence he has committed. The existence of a mental disorder in itself says, however, nothing about a defendant’s criminal responsibility for the offence. The key question is whether the disorder limited his free will by impairing his ability to make choices and estimations, his ability of internal dialogue.

    The final piece of the jigsaw when it comes to determining criminal responsibility is the legal doctrine of culpa in causa. This states that a person who culpably places himself in circumstances leading to the offence is in principle criminally responsible. This can be the case, for example, with drug or alcohol use.

    Criminal responsibility can be diminished by a mental disorder that impaired the ability of internal dialogue at the time of the offence and thus limited the defendant’s free will, for which disorder the defendant is not culpable.

    Mental health experts also need to answer the question of the risk of re-offending. The mental health expert can give an indication of the expected nature of any likely re-offending and, depending on relevant situational factors, when fresh offences are likely to occur. This conclusion is important to the final judgment on the seriousness of the danger to society resulting from the disorder and the legal context in which any treatment of the detainee should take place.

    This chapter looked at the various questions put by the court to the forensic mental health expert. It is very important for the mental health experts and lawyers in every case to indicate and understand the legal criteria that need to be applied when making recommendations, what mental health information is and is not relevant under the criminal law if the person is convicted. Also is relevant what conclusions the court may and may not draw from the mental health expert’s report. This book provides a basis for both professions to engage in a further exchange of ideas. 

     

    Chapter 10. Research in the Pieter Baan Centre

    A forensic mental health assessment is about one person, the defendant, and the offence he has been charged with. The offence can be explained wholly or partly by a disorder. The research usually involved looking at groups of defendants. Generalizing on a number of cases provides knowledges that is useful, but there are limitations on the research carried out at the Centre:

    • The relationships between the experts and the detainees are often vulnerable and trial interests are regularly a factor in the assessments. It is not possible to ask defendants t complete detailed questionnaires or participate in empirical research.

    • It also may well be difficult for them to distinguish between the forensic mental health assessment and the voluntary research.

    • A limitation of the file material of the Centre in its records is that it has been collected for a purpose other than research.

    • Another limitation relates to the anonymity of the defendants. A lot of the data has to be edited to avoid defendants being identifiable.

     

    In spite of these limitations there is plenty of scope for conducting research that can make a major contribution to forensic psychiatry knowledge. There are different research topics:

    • Reporting (the writing and value of reports)

    • Criminal responsibility

    • The population of the Pieter Baan Centre

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