Psychiatric Consultation and Evidence

• Author: Hy Bloom, Richard D Schneider
• Pages: 49-75

49

chapter two

Psychiatric Consultation and Evidence

A. DEFINITION OF FORENSIC PSYCHIATRY

Forensic psychiatry is that area of psychi atric sub-specia lization that focus-

es on mental state and psychological issues that mi ght arise in the course of

any legal, ad ministrative, or professional regulator y body proceeding.

1) Correctional Psychiatry

The interface of law and psychiatr y further inc ludes psychiatric consulta-

tion and treatment carried out wit hin penal facilities. This par ticular area is

commonly refer red to as correctiona l psychiatry.

B. ROLE OF THE PSYCHIATRIC CONSULTANT

1) Duty of Care Owed by the Forensic Psychiatrist

The forensic psychiatric exp ert serves as a consultant to the party reta ining

him, and it is to that part y the mental health care ex pert operating i n a for-

ensic context owes a primary duty of ca re.

2) Task of the Expert

Behavioural sciences exp erts are often in a position to provide their lega l

colleagues and the crim inal justice system wit h a unique perspective. T he

primary ta sk of the expert is to ser ve as a consultant; that is, to diag nose a

mental disorder; to def‌ine psychological var iables that may be at play in a

case; and, above all, to educate the court (and law yers and retaining agen-

cies) about matters the court knows litt le about.

50 MENTAL DISORDER AND THE LAW

3) Qualif‌ications Required of Exper ts

There are no specif‌ic professional qualif‌ic ations in Canada necessary in order

to offer an expert opin ion in court. A psychiatr ist will be ex pected to hold a

medical licence and higher quali f‌ications in psychiatr y. Other mental health

professionals w ill req uire corres ponding c redentia ls. The re is no desig nated

experti se (that is, a Royal College of Physicians and Surgeons of Canada spe-

cialty designation) in forensic psychiatr y. Forensic psychiatrists obtain their

experti se in that area either by having taken a spec ial course of training durin g

or after their residency programs (for example, a fellowship in forensic psych-

iatry), or accumulating e xpertise t hrough exper ience. Expertise i n specif‌ic

areas (for example, domestic violence or sexual deviation) in which there are

also no formal qualif‌ic ations, will be assessed by the cour t on a case-by-case

basis, drawing on criter ia such as professional experience, publications, etc.

4) Biased Exp erts and Hired Guns

A psychiatric ex pert involved in a medico-legal matte r is presumed to be neu-

tral, regardless of whether he or she was retained by t he accused or the prosecu-

tion. Most experienced ex perts are likely to concede that complete impartiality

and objectivity are close to impossible. Impart iality is not itself the pivotal con-

sideration. Rather, the key concern, absent marked bias, is whether the exper t

is able to recognize problems with her impartialit y that could impinge upon,

or potentially even contaminate, the eva luation and her participation in the

process. Firmly entrenching herself i n the role of consultant/educator is gen-

erally the safest and most comfortable way for an exper t to avoid the sugges-

tion of bias. The term “hired g un” is a pejorative term that refers to a clinician

who is prepared to contour the results of her assessments and testimony to

meet the needs of the part y paying her fees, regardless of what the data in the

case actually deter mines. Lawyers should k now — but it is otherwise inc um-

bent on psychiatrists to ma ke clear — that clinician s/experts are not a part of

either the defence or the prosecution team, as much as spirited involvement

and camaraderie can someti mes motivate that degree of partic ipation.

a) “Forensic Identif‌ication”

Zusman and Simon have hypothesized the role of a concept called “forensic

identif‌ic ation”1 to designate the unintentional process whereby clinicia ns

1 MD Zusman & J Simon, “Diffe rences in Repeated Psychiatr ic Examinations of Liti-

gants to a Lawsuit ” (1983) 140 American Journ al of Psychiatry 1300.