Forensic psychiatry and law in relation to

psychiatryDr RJ

No person can treat another person without that person’s consent

If he tries to treat, by injecting him when he refuses treatment, or even draw blood, it will be assault

The person who tried to treat is committing an offence and could be prosecuted

However if the person develops a mental illness which needs treatment, he has to be treated even if he refuses

Why?

Because he could be a danger to self and others if untreated, because of the nature of some mental illnesses

The person who gets the mental illness also has a fundamental right to be free of the illness as he could be suffering

So treatment has to be provided by the state

But how can you treat a person who refuses treatment?

Laws have been passed so that the mentally ill could be treated even against their will

These laws form the Mental Health Act (MHA) and most countries in the world have such laws.

In Sri Lanka the MHA is rather outdated, having been enacted in the 19 century

These laws in Sri Lanka are called ‘Lunacy Ordinance of 1873’ enacted by the British when the country was part of their Empire

There have been minor modifications since then

Last one was in 1957

A new Mental Health Act has been under preparation from at least 2000

There is a final draft which has been agreed upon by the relevant parties in 2007

It is yet to be passed in our parliament

So we still follow the Lunacy Ordinance which is 140 years old with few modifications

Where can we treat such a patient against his wishes?

The place or (hospital) should be gazetted as a ‘designated’ hospital

Under the MHA valid at present, there is only one such hospital in Sri Lanka i.e. Mental Hospital, Angoda now called the National Institute of Mental Health (NIMH)

In practice, psychiatric patients who are ill and who have no insight and refuse admission are still treated against their will in other psychiatric units in the country

This is a practical necessity though not quite legal

Otherwise what are the problems?

We are using the “in best interests of the patient” clause, in treating such patients even though against the law and psychiatrists are putting themselves at risk of litigation

How can a patient get admitted for treatment of a psychiatric condition?

He can willingly get admitted like for any other illness

Then it is called a voluntary admission

This could be to any psychiatric unit or to NIMH Angoda

A patient on voluntary admission has the right and can discharge himself from the hospital if he decides to go home

After treatment, he can be discharged, if the psychiatrist or the medical officer-in-charge decides he is fit to take treatment outside

Most patients are admitted and discharged this way in Sri Lanka at present

If a psychiatrically ill patient refuses admission or treatment, the MHA can be used

A relative has to apply to a District Court (DC) with a medical report from any medical officer that the person needs observation and treatment for a mental disorder

The District Judge then decides and orders admission to NIMH as a ‘DC admission’

This order is to detain the patient in the NIMH up to 28 days

He can be discharged only by the District Judge. The psychiatrist has to send a report to the DC. If the psychiatrist reports that he is fit for discharge, the Judge will discharge him. If he reports that he needs further treatment and requests extension, the Judge will order him detained further.

If at the end of 28 days patient has made progress but still needs treatment which he is willing to take, he can be made a voluntary patient to remain in NIMH for whatever period he needs, for a more complete recovery

If a person behaves irrationally in a ‘public’ place the police have the power to take him to NIMH and he will be admitted for 72 hours on an emergency order

He has to be examined by a psychiatrist and if found ‘ill’ the admission is converted to a DC admission by reporting to DC. If the psychiatrist finds him ‘not ill’ he would be discharged

If a person who has committed a crime is suspected to be mentally ill, the judge who is the Magistrate, (as such cases are first heard in a magistrate’s court (MC) ) would order the suspect be assessed by a psychiatrist who may report that he be assessed in a mental hospital viz. NIMH

Such persons are admitted as ‘MC admissions’ to a ‘secure ward’ there

The psychiatrist has to assess the accused and has to decide whether he is ‘fit to plead’

If he has a major psychiatric illness, he may be unfit to plead

Then he has to be treated in the secure ward

If he recovers from the illness he may become fit to plead, then the case against him will proceed

If he is found guilty of the crime but he is also mentally ill, it is not proper for a civilised society to punish a mentally ill person

What should we do?

Should we release him?

But he has committed a crime so we cannot do that

He should not be sent to prison but to a hospital

For how long should he be kept in hospital?

His dangerousness and the odds of him doing a crime again have to be considered

This is very difficult to predict

So in some countries they are never released

They are the criminally insane

The psychiatrist has to give evidence in courts for the judge to decide whether the mentally ill person is guilty of the crime or ‘not guilty by reason of insanity’

In Sri Lanka ‘McNaughton rules’ are used in this decision

In 19 century Briton, McNaughton developed a belief that the Liberal party which was governing the country was persecuting him. So he wanted to kill the leader of the party Sir Robert Peel who was the Prime Minister. He shot at the person who he thought was the PM and killed him, but it was his secretary who got shot.

The public wanted McNaughton hanged but he was clearly deluded and insane

So the judges brought in some rules to decide what should be done in similar cases when an insane person has committed a major crime

The rules are called McNaughton rules and are very strict and very few will be found not guilty by reason of insanity if they are strictly applied

Sometimes the person has committed the major crime but his mental state may have influenced his thinking

So is he fully responsible?

The concept of ‘diminished responsibility’ is considered here

This concept looks very rational but it is not in Sri Lankan law yet

Infanticide

Killing of a child below 12 months by the mother

When it occurs within 24 hours of the birth, mother is not usually mentally ill, baby is unwanted, mother is distressed, often young and unable to cope to bring up the child

When the killing is after 24 hours, the mother usually has a mental illness e.g. post partum psychosis, psychotic depression

There is obvious ‘diminished responsibility’ here

Maximum sentence is two years in contrast to murder which could be ‘life’

What sort of psychiatric illnesses cause patients to commit crimes?

Personality disorders – antisocial,

Schizophrenia – may carry out ‘command’ hallucinations, matricide

Delusional disorders – jealous patients may kill their spouses/partners

Depressions – some mothers kill their children due to delusions, then kill themselves, it is recognised that some depressives do minor crimes like shop-lifting

Very occasionally manic patients

Patients with alcohol and drug abuse

Testamentary capacity – capacity to make a will

Medical doctors could be asked to assess this capacity

Whether person understands what a ‘will’ is, whether he knows the extent of his possessions, whether he knows to whom he should give his property in normal circumstances, whether his judgement is intact and not affected by any psychiatric phenomena like delusions