PSYCHIATRIC EVIDENCE IN
COURT
Expert ‘evidence’ (written or oral) is psychiatric
information presented for a non-psychiatric (civil or criminal legal) purpose.
A) PREPARATION OF REPORTS:
Preliminary Matters
Question 1: Is it appropriate to take the case?
(1) Query within your expertise
(a) Query within psychiatry.
(b) Query requires sub-specialist
(e.g. neuro-psychiatry).
(2) Query practically sensible (e.g. can
you offer treatment if necessary?) Question 2: What role Is requested?
(I) ‘Witness to court’ or ‘advice to
Counsel’?
(2) ‘Professional witness’ or ‘expert
witness’? Question 3: What issues are at stake?
(1) Distinguish legal/psychiatric
issues.
(2) Distinguish (legal) verdict/disposal
issues.
(3) Understand how psychiatric matters
relate to legal issues.
Question 4: What forum will report be used in?
Medico-Legal Issues
Vary according to (1) fora (2) verdict/disposal issues.
Magistrate Courts - vast majority of
cases, mainly minor, mainly disposal issues.
Crown Courts - minority of cases,
mainly serious, mainly disposal but sometimes verdict issues.
Case Preparation
Providing a psychiatric report does not begin with
interviewing the client.
There is preparatory work:
(I) Ensure instructions are adequate
(not “please provide a psychiatric report”).
i.e. what legal issues and what
psychiatric aspects of those issues.
(2) Confirm receipt and reading of
documents i.e. depositions/social enquiry reports/previous psychiatric history.
(3) List for self the legal and
psychiatric issues that appear relevant.
Interviewing the Client
(1) Query location is adequate (e.g. is
it possible to assess in prison or requires admission to hospital?).
(2) Query time is adequate (especially
where visiting in prison). Ethical Considerations
Distinguish ‘client’ from ‘patient’; different
‘expectations’ and necessary involvement of third parties
(e.g. courts and lawyers).
See all interviewees
as ‘clients’ (even though coincidentally ‘patients’) since that ensures
‘boundary keeping’.
Especially relevant to:
(I) Confidentiality (because of ‘dual’
medical/legal significance of some information).
(2) Access to medical records; consent
of client required.
(3) Query discussion of the ‘actus
reus’. Clinical Interview
Essentially as for any general psychiatric interview;
however, it is conducted in the awareness of ‘clinico-legal’ issues which have
been determined as relevant (therefore differences in weight and focus of
interview).
Interviewing styles are individual. However, following
suggested guidelines:
o Discuss the offence (if going to) towards the end of
the interview.
o Family History, Personal History, Social History all
weighted according to relevance to diagnosis, prognosis and recommendations,
avoid repetition of a ‘social enquiry report’.
o Previous Medical History and Previous Psychiatric
History, especially important. Further Investigations
(1) Interview ‘objective’ informants.
(2) Use depositions to ‘reconstruct’
mental state at the time of actus reus.
(3) Read (if possible) Hospital
Case Papers if seen in prison (to confirm recent mental state).
(4) Psychometry where necessary,
query special psychometry, e.g. suggestibility.
(5) Organic investigations, where
necessary.
Other Psvchiatric Experts
Discuss: (I) To
ensure same information base.
(2) To narrow
the issues (where relevant).
Do so after having formed your own opinion.
Structure of the Written report
Psychiatrists vary, therefore general points only:
o Note that a court report is not a ‘formulation’ or
‘case presentation’ but is the presentation of psychiatric information for a
non-psychiatric (i.e. legal) purpose.
o Clarity is crucial.
o Avoid over inclusiveness, with ‘pursuit of legal
relevance’ as the aim.
o Minimise use of, and explain technical terms.
o Write in awareness that you might have to defend the
exact form of words in cross-examination in court.
o Write with conscious reference to limitation of
psychiatric role.
o Write ‘past the court’ (in knowledge that the report
will/might be used later in relation to psychiatric treatment and/or sentence
serving (e.g. referral of prisoners with psychopathic disorder to HMP Grendon
Underwood).
o Avoid value laden statements.
o Avoid general terms, specify.
o Give reasons for opinions expressed.
o Exclude psychiatric information not directly relevant
to the court’s purposes.
o Length, only as necessary for legal purpose to which
applied; Magistrates Courts apply little time to each case, Crown Courts are
more deliberative and reports should be written in awareness of this
difference. Brevity can be assisted by limitation of Background History to that
which supports/makes more comprehensible the opinion expressed.
o Use headings for ease of reading;
ensure have sections headed ‘Opinion’ and ‘Recommendations’.
Opinion:
Opinion is best written in terms of
answers to specific legally relevant questions.
Re: Verdict issues, may need to deal
with the link between the actus reus and psychiatric diagnosis.
Re: Other experts, only refer to
other experts’ opinions in order to explain differences, avoid report becoming
a debating ground.
Recommendations:
Concerned with disposal!.
Argument and clarity just as
important as in relation to verdict issues.
Give rehearsal of options if
appropriate.
Restrict recommendations to
psychiatric care (no comments on penal alternatives).
If recommendation made for Mental
Health Act disposals then ensure inclusion of
appropriate form of words to allow
Court to make relevant order.
Signature:
Ensure inclusion of qualifications
used as basis of expertise.
(B) GIVING ORAL EVIDENCE
o Relate directly to written report
o Make ‘evidential notes’, to avoid fumbling through a long report
(or ‘highlight’)
o Use few, chosen words - spoken slowly
o Apply the degree of ‘strict logic’ which will be used against you
in cross examination
o Be aware of the weaknesses in your argument
o Avoid jargon - where do use technical terms then find ways
of lay explanation (e.g. analogy)
o Avoid dogmatism
and
be aware that you are playing ‘rugby-cricket’!