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 psychiatric sub-specialization 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 psychiatry further includes 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 retaining

him, and it is to that party the mental health care expert operating in a for-

ensic context owes a primary duty of ca re.

2) Task of the Expert

Behavioural sciences experts are often in a position to provide their legal

colleagues and the criminal justice system with a unique perspective. The

primary task of the expert is to serve as a consultant; that is, to diagnose a

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

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

cies) about matters the court knows litt le about.

50MENTAL 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 opinion in court. A psychiatrist will be expected to hold a

medical licence and higher qualif‌ications in psychiatry. Other mental health

professionals will require corresponding credentials. There is no designated

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

cialty designation) in forensic psychiatry. 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 expertise through experience. Expertise in specif‌ic

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

also no formal qualif‌ications, will be assessed by the court 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 expert involved in a medico-legal matter 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 impartiality that could impinge upon,

or potentially even contaminate, the evaluation and her participation in the

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

erally the safest and most comfortable way for an expert 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 determines. Lawyers should know — but it is otherwise incum-

bent on psychiatrists to make clear — that clinicians/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

identif‌ication”1 to designate the unintentional process whereby clinicians

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.