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Psychiatric expert examination in criminal cases
In Belgium, the psychiatric expert examination in criminal cases takes place in the context of a criminal law system based on the personal responsibility of the individual. Criminal law considers people to be individuals who are able to judge autonomously between good and evil and make a responsible and free choice between the two.
Nevertheless, criminal law in this country does provide for an exception to this principle: Article 71 of the Code of criminal law states that there is no question of a criminal offence if the perpetrator was in a state of psychiatric illness or was driven to such as state by a force that he was unable to withstand.
This is also the context of the law of 9 April 1930, amended by the law of 1 July 1964, on the protection of society against abnormal and habitual criminals. This places mentally ill delinquents, who are not answerable under criminal law, under another measure that deprives them of their freedom, namely internment.
The following conditions have to be fulfilled for the judge to be able to consider this measure: the suspect must have committed a criminal offence or crime (which means that he must have committed a sufficiently serious infringement of the social order); the suspect must be in the state of mental illness, in a serious state of mental disturbance or a serious state of mental deficiency at the time of the court decision, which makes him or her unfit to control his or her acts; and the suspect must be a danger to society as a result.
This decision can be pronounced by the examining courts, which are the judge's chambers or the chamber of indictment, and by the courts passing judgement. The decision can be appealed before higher courts. Responsibility for supervising the enforcement of the internment measure lies with the Commission for the Protection of Society, which also decides on whether to release individuals who have been interned and which comprises a magistrate, a lawyer and a psychiatrist.
The judge rules with supreme authority on accountability, but can request a psychiatric expert examination for this purpose. For most internees, this examination is their gateway to this measure. Consequently, for the individual in question, the psychiatric expert report is a crucial element in the criminal law procedure and can have a fundamental impact on his or her life.
It is also important to realise that a psychiatric expert report, although originally produced at the request of an authority in the criminal law system, may also take many other paths. For instance, this report will be used, among other things, for the subsequent evaluation of the individual concerned in the context of the activities of the psycho-social services of the prison system, to asses whether the individual concerned is eligible for a particular therapeutic setting.
The psychiatric expert examination
The judicial body concerned decides autonomously whether an expert is to be appointed.
Practical experience has shown that an appointment is made in only a minority of criminal law procedures. An English survey, according to Bluglass, reveals that a psychiatric expert is only appointed in 5% of criminal law procedures. However, an upward trend has been observed in England in this respect.
However, for cases that come before the assizes in Belgium the appointment is part of the routine investigative process.
The appointment usually depends on e nature of the offence. For instance, with the following offences a psychiatric expert is usually appointed: killing, delinquent sex offences, arson, repeated theft, repeated hold-ups, offences with assault, strange or out-of-the ordinary offences. For financial, industrial, environmental and political corruption, this is less often the case. If there is a prior history of psychiatric problems, possibly linked to psychiatric treatment, or in cases of clearly disturbed behaviour while the individual is in custody or during the interrogation, the chance that a psychiatric expert will be appointed increases.
The public prosecutor has a list of psychiatric experts who can be appointed on a case by case basis. An appointment may be rejected at any time without the need for justification. Appointments are made and paid for on a case by case basis. The psychiatric expert is therefore not a permanent employee of the judicial bodies that appoint him.
The appointment is made by post or in urgent cases by telephone, after which the appointment will be forwarded to the expert by post.
Once the psychiatric expert has accepted the assignment, he has a duty to assist the judicial body having appointed him by providing all useful information and ultimately, within a reasonable period, submitting a scientifically meticulous, independent and comprehensible report that answers the questions asked.
The psychiatric expert does not have to provide any proof, but has to fulfil the assignment set out when the appointment is made.
The assignment consists of questions that the psychiatric expert has to answer. The three traditional questions in a criminal law procedure are as follows:
- whether, at the time of the facts of which he or she is accused, the suspect was either in a state of mental illness, or in a serious state of mental disturbance or mental deficiency that rendered him or her unfit to control his or her deeds;
- whether he/she is currently still in one of these states;
- whether the state of the suspect is of a nature to pose a threat to him- or herself or to society.
After this, the judicial body is free to put additional questions to the expert, such as requesting a description of the behavioural interaction between the perpetrator and his or her spouse.
When answering these questions it is important that the psychiatric expert does not express any moral judgement.
In practice, an evolution may be observed from a narrow description of the presence or absence of psychiatric symptoms to a detailed description of the personality of the perpetrator and the relationship between this personality structure and the criminal offence, the so-called criminogenesis. An attempt is made here to understand the facts and reconstruct them from a psychological point of view, although this does not mean offering justification or exoneration.
However, the principle to be applied is that thee psychiatric expert is strictly bound by the formulation of the assignment and should confine himself to this.
The legislator does not stipulate how the terms "mental illness", "serious degree of mental disturbance" and "serious state of mental deficiency" should be interpreted and this can give rise to disagreement between different experts.
Generally speaking is may be said that a psychiatric pathology should mean that the individual in question is no longer able to conduct him- or herself adequately and will behave abnormally or aggressively or display severe irresponsibility owing to his or her psychiatric pathology.
Psychiatric expert examination
The psychiatric expert should inform the suspect of his assignment. As is stipulated by Article 123 of the Code of Medical Ethics of the Order of Medical Professionals: “ the doctor ... must inform the individual in question in advance of the capacity in which he is acting and tell him or her of his assignment. The doctor-legal expert will above all give a warning that he has to inform the examining authorities of everything that the individual concerned may tell him in the context of his assignment."
The psychiatric expert must clearly inform the individual in question, who is often in a psychologically difficult and desperate condition, that this conversation differs from the conventional patient-doctor relationship and that the information provided will be passed on to third parties and will be read by many other people.
The individual in question is free to refuse to cooperate with this examination. In this case, the expert will inform the judicial body of this fact.
The entire psychiatric expert examination, as least as regards the criminal law aspects, is undertaken on an irrefutable basis, unlike the expert examination in civil cases.
The psychiatric expert has access to the full records of the criminal case to carry out his examination, and this usually also includes a morality report and a social survey that can provide further useful information.
If a psychiatric expert deems this necessary, he can ask the principal for additional examinations. These may include an additional blood test, for instance, or an X-ray. Such additional examinations may not be harmful for the individual in question or affect his or her freedom of will.
The expert may also call upon other sources, such as the reports from witnesses, and possibly video recording of the interrogation.
In terms of content, the clinical psychiatric examination does not differ from the conventional psychiatric examination. This means that the following aspects, among others, will be the focus of attention: awareness, temporal and spatial orientation, attention and ability to concentrate, memory, intelligence, perceptual disorders such as hallucinations, derealisation, train of thought, thought content (delusion), affective life and emotions, the way in which behaviour is regulated (impulsiveness), intra-psychological functioning, insight into the functioning of the individual in question, possibilities for the individual in question to accurately represent his or her condition.
Clearly, the de psychiatric expert takes the time necessary to gather the required information and conduct the necessary interviews and examinations.
The psychiatric expert report
This report is usually characterised by a fixed structure that makes it easier for all concerned to use it in the judicial procedure. However, there is no mandatory set-up required by law.
The title page contains the assignment, an overview of the tasks and an account of the activities: list of the documents consulted, the research data, the sources used in the context of a hetero-anamnesis, any additional examinations requested, etc.
The charge is then stated, along with the explanation given by the individual in question of what occurred. Quotations can of course be used here and every endeavour is made to provide as faithful an account as possible of the statement made by the individual in question.
The next point contains the biographical development history of the individual, with attention paid to the various areas of life (including training, relationships, work, free time, etc.) and the relevant data are given. In this section or under a separate heading the individual’s social background and social environment are considered, including their family relationships.
Another section in the report covers the previous legal history and here it is important to examine whether the acts committed are becoming more serious, or more frequent.
After this, a separate paragraph is devoted to the previous medical and psychiatric history of the individual, including any substance abuse, and the relevance of this for the acts committed or the previous legal history of the individual.
A separate subsection can then be devoted to a report on the psychological examination, consisting of the intelligence, personality and psycho-organic tests carried out. This is followed by an account of the clinical psychiatric examination, followed by a discussion, with attention focusing on making a psychiatric diagnosis, the criminogenesis, the danger involved, whether or not the individual is eligible for internment measures, etc. This discussion must come to clear conclusions and must be consistent with the content and logic of the report as a whole.
The last section of the psychiatric expert report consists of the conclusions, which constitute the responses to the assignment set out when the appointment was made. This is usually fairly short.
These conclusions are followed by a number of formal requirements, namely the taking of the oath, the signature and the date.
When drawing up his report, the psychiatric expert must keep clearly in sight the fact that this report is to b read by laymen in psychiatric terms. He will need to use clear, understandable language. If technical terms do have to be used, then these must be adequately explained. It is also important to ensure that it is sufficiently clear to those reading the report which elements fall within the domain of established facts, what belongs to the domain of unverified facts and what constitutes opinions. To this end, the expert will make frequent use of constructions such as "the individual states that...".
The report must be clear and must drawn attention to the most important data. A psychiatric expert is not expected to be able to express his literary abilities in edifying prose.
The psychiatric expert examination must result in a substantiated, objective report, free of moral and other preconceptions, based on a through psychiatric assessment, taking account of the question s put to the expert.
Because of the huge impact that a psychiatric expert examination has on the individual in question it is important that a coherent criminal law policy be drawn up in this respect. An initial impetus in this direction has been given in the pending bill on internment. Moreover, it is also important for psychiatric experts to have certain qualifications, designed to guarantee that these expert examinations are carried out to an adequate standard of quality.
The various training courses currently being organised in academic circles (KU Leuven, RUG) are the first instruments aimed at achieving this goal.
Bluglass, R., Writing reports and giving evidence, Seminars in Practical Forensic Psychiatry, Gaskell, London, 1995, 134-163.
Brockman, B., The Court Report, A guideline to the preparation of Medical Reports.
Cosijns, P., Psychiatrisch deskundigenonderzoek in strafzaken, in gerechtelijke psychiatrie, Garant, Leuven/Apeldoorn, 1999, 39-72.
Vandenbroucke, M., Geïnterneerde, Wie bent u ? Een vraag naar de diagnose van de geïnterneerde in België, in internering, Garant, Leuven/Apeldoorn, 1997, 63-72.