Forensic psychiatry is a sub-speciality of psychiatry and is related
to criminology. It encompasses the interface between law and
psychiatry. A forensic psychiatrist provides services – such as
determination of competency to stand trial – to a court of law to
facilitate the adjudicative process and provide treatment like
medications and psychotherapy to criminals.
1.1 Competency to stand trial (CST)
1.2 As an expert witness
1.3 Mental state opinion
2 Risk management
3 United Kingdom
Criminal law framework
4.3 Treatment/assessment conflict
5 South Africa
6 Training standards
7 See also
9 External links
Forensic psychiatrists work with courts in evaluating an individual's
competency to stand trial, defenses based on mental disorders (e.g.,
the insanity defense), and sentencing recommendations. There are two
major areas of criminal evaluations in forensic psychiatry. These are
Competency to Stand trial (CST) and Mental State at the Time of the
Competency to stand trial (CST)
This is the competency evaluation to determine that a defendant has
the mental capacity to understand the charges and assist their
attorney. In the United States, this is seated in the Fifth Amendment
United States Constitution, which ensures the right to be
present at one's trial, to face one's accusers, and to have help from
In English and Welsh law, a similar concept is that of "fitness to
As an expert witness
Forensic psychiatrists are often called to be expert witnesses in both
criminal and civil proceedings. Expert witnesses give their opinion
about a specific issue. Often the psychiatrist will have prepared a
detailed report before testifying. The primary duty of the expert
witness is to provide an independent opinion to the court. An expert
is allowed to testify in court with respect to matters of opinion only
when the matters in question are not ordinarily understandable to the
finders of fact be they judge or jury. As such, prominent leaders in
the field of forensic psychiatry, from Thomas Gutheil to Robert
Simon and Liza Gold and others have identified teaching as a
critical dimension in the role of expert witness. The expert will be
asked to form an opinion and to testify about that opinion, but in so
doing will explain the basis for that opinion which will include
important concepts, approaches, and methods used in psychiatry.
Mental state opinion
This gives the court an opinion, and only an opinion, as to whether a
defendant was able to understand what he/she was doing at the time of
the crime. This is worded differently in many states, and has been
rejected altogether in some, but in every setting, the intent to do a
criminal act and the understanding of the criminal nature of the act
bear on the final disposition of the case. Much of forensic psychiatry
is guided by significant court rulings or laws that bear on this area
which include the following three standards:
M'Naghten rules: Excuses a defendant who, by virtue of a defect of
reason or disease of the mind, does not know the nature and quality of
the act, or, if they do, do not know that the act is indeed wrong.
Durham rule: Excuses a defendant whose conduct is the product of
ALI test: Excuses a defendant who, because of a mental disease or
defect, lacks substantial capacity to appreciate the criminality
(wrongfulness) of his conduct or to conform his conduct to the
requirements of law.
"Not guilty by reason of insanity" (NGRI) is one potential outcome in
this type of trial. It is important to note that insanity is a legal
and not a medical term. Often there will be a psychiatrist(s)
testifying for both the defense and the prosecution.
Forensic psychiatrists are also involved in the care of prisoners,
both those in jails and those in prisons, and in the care of the
mentally ill who have committed criminal acts (such as those who have
been found not guilty by reason of insanity).
Many past offenders against other people, and suspected or potential
future offenders with mental health problems or an intellectual or
developmental disability, are supervised in the community by forensic
psychiatric teams made up of a variety of professionals, including
psychiatrists, psychologists, nurses, and care workers. These teams
have dual responsibilities: to promote both the welfare of their
clients and the safety of the public. The aim is not so much to
predict as to prevent violence, by means of risk management.
Risk assessment and management is a growth area in the forensic field,
with much Canadian academic work being done in Ontario and British
Columbia. This began with the attempt to predict the likelihood of a
particular kind of offence being repeated, by combining "static"
indicators from personal history and offence details in actuarial
instruments such as the RRASOR and Static-99, which were shown to be
more accurate than unaided professional judgment. More recently, use
is being made also of "dynamic" risk factors, such as attitudes,
impulsivity, mental state, family, and social circumstances, substance
use, and the availability and acceptance of support, to make a
"structured professional judgment." The aim of this is to move away
from prediction to prevention, by identifying and then managing risk
factors. This may entail monitoring, treatment, rehabilitation,
supervision, and victim safety planning and depends on the
availability of funding and legal powers. These schemes may be based
on published assessments such as the HCR-20 (which incorporates 10
Historical, 5 Clinical and 5 Risk Management factors) and the RSVP
(Risk of Sexual Violence Protocol) from Simon Fraser University, BC.
Research in this area has been extended to the use of Bayesian
networks (BNs), which are probabilistic graphical models typically
designed to model cause and effect or dependent relationships. In
2015, two BN models were published with application to forensic
psychiatry for violence risk assessment and risk management purposes.
DSVM-P (”Decision Support Violence Management – Prisoners”):
a BN model for risk assessment and risk management of violent
reoffending in released prisoners, many of whom suffer from mental
health problems with serious background of violence.
DSVM-MSS (”Decision Support Violence Management - Medium
Security Services”): a BN model for violence risk analysis in
patients discharged from medium security services.
Both of these models demonstrated competitive to superior predictive
performance in comparison to other well-established predictors in this
area of research. In addition to the improved accuracy, the BN models
provide enhanced decision support by allowing for specific risk
factors to be targeted for intervention for risk management purposes,
and enabling experts to incorporate their knowledge for factors that
are important for violence risk analysis but which historical data
fail to capture.
In the UK, most forensic psychiatrists work for the National Health
Service, in specialist secure units caring for mentally ill offenders
(as well as people whose behaviour has made them impossible to manage
in other hospitals). These can be either medium secure units (of which
there are many throughout the country) or high secure hospitals (also
Special Hospitals), of which there are three in England and
one in Scotland (The State Hospital, Carstairs), the best known of
which being Broadmoor Hospital. The other 'specials' are Ashworth
hospital in Maghull, Liverpool and Rampton hospital in
Nottinghamshire. There are also a number of private sector medium
secure units, which sell their beds exclusively to the NHS, as there
are not enough secure beds available in the NHS system.
Forensic psychiatrists often also do prison inreach work, in which
they go into prisons and assess and treat people suspected of having
mental disorders; much of the day-to-day work of these psychiatrists
comprises care of very seriously mentally ill patients[citation
needed], especially those suffering from schizophrenia. Some units
also treat people with severe personality disorder or learning
disabilities. The areas of assessment for courts are also somewhat
different in Britain, because of differing mental health law. Fitness
to plead and mental state at the time of the offence are indeed issues
given consideration, but the mental state at the time of trial is also
a major issue, and it is this assessment which most commonly leads to
the use of mental health legislation to detain people in hospital, as
opposed to their getting a prison sentence.
Learning disabled offenders who are a continuing risk to others may be
detained in learning disability hospitals (or specialised
community-based units with a similar regime, as the hospitals have
mostly been closed) as suffering from "mental impairment" in England
and Wales, and without use of that term in Scotland. This includes
those who commit serious crimes of violence, including sexual
violence, and fire-setting. They would be cared for by learning
disability psychiatrists and registered learning disability nurses
(RNLD). Some psychiatrists doing this work have dual training in
learning disability and forensic psychiatry or learning disability and
adolescent psychiatry. Some nurses would have training in mental
health also (RMN and RNLD).
Court work (medico-legal work) is generally undertaken as private work
by psychiatrists (most often forensic psychiatrists) as well as
forensic and clinical psychologists, who usually also work within the
National Health Service
National Health Service (NHS). This work is generally funded by the
Legal Services Commission (used to be called Legal Aid).[citation
Criminal law framework
In Canada, certain credentialed medical practitioners may, at their
discretion, make state-sanctioned investigations into and diagnosis of
mental illness. Appropriate use of the
discussed in its section entitled "Use of the
DSM-IV-TR in Forensic
Concerns have been expressed that the Canadian
criminal justice system discriminates based on DSM IV diagnosis within
the context of Part XX of the Criminal Code. This part sets out
provisions for, among other things, court ordered attempts at
"treatment" before individuals receive a trial as described in section
672.58 of the Criminal Code. Also provided for are court ordered
"psychiatric assessments". Critics have also expressed
concerns that use of the
DSM-IV-TR may conflict with
section 2(b) of the Canadian Charter of Rights and Freedoms, which
guarantees the fundamental freedom of "thought, belief, opinion and
The position of the Canadian Psychiatric Association holds that "in
recent years, serious incursions have been made by governments,
powerful commercial interests, law enforcement agencies, and the
courts on the rights of persons to their privacy." It goes on to state
that "breaches or potential breaches of confidentiality in the context
of therapy seriously jeopardize the quality of the information
communicated between patient and psychiatrist and also compromise the
mutual trust and confidence necessary for effective therapy to
An outline of the forensic psychiatric process as it occurs in the
province of Ontario is presented in the publication The Forensic
Mental Health System In Ontario: An Information Guide published by
Centre for Addiction and Mental Health
Centre for Addiction and Mental Health in Toronto. The Guide
states: "Whatever you tell a forensic psychiatrist and the other
professionals assessing you is not confidential." The Guide further
states: "The forensic psychiatrist will report to the court using any
available information, such as: police and hospital records,
information given by your friends, family or co-workers, observations
of you in the hospital." Also according to the Guide: "You have the
right to refuse to take part in some or all of the assessment.
Sometimes your friends or family members will be asked for information
about you. They have the right to refuse to answer questions too."
It is noteworthy that the emphasis in the Guide is on the right to
refuse participation. This may seem unusual given that a result of a
verdict of "Not Criminally Responsible by reason of Mental Disorder"
is often portrayed as desirable to the defence, similar to the
insanity defence in the United States. A verdict of "Not Criminally
Responsible" is referred to as a "defence" by the Criminal Code.
However, the issue of the accused's mental state can also be raised by
the Crown or by the court itself, rather than solely by the defence
counsel, differentiating it from many other legal defences.
In Ontario, a court ordered inpatient forensic assessment for criminal
responsibility will typically involve both treatment and assessment
being performed with the accused in the custody of a single
multi-disciplinary team over a thirty- or sixty-day period.[citation
needed] Concerns have been expressed that an accused may feel
compelled on ethical, medical or legal grounds to divulge information,
medical, or otherwise, to assessors in an attempt to allow for and
ensure safe and appropriate treatment during that period of custody
There are Internet references addressing treatment/assessment conflict
as it relates to various justice systems, particularly civil
litigation in other jurisdictions. The American Academy Of
Psychiatry and the
Law states in its ethics guidelines that "when a
treatment relationship exists, such as in correctional settings, the
usual physician-patient duties apply", which may be seen as
In South Africa patients are referred for observation for a period
thirty days by the courts if there is question of Competency to Stand
trial (CST) and Mental State at the Time of the Offense (MSO). Serious
crimes require a panel which may include two or more psychiatrists.
Should the courts find the defendant not criminally responsible the
defendant may become a state patient and be admitted in a forensic
psychiatric hospital. They are referred to receive treatment for
an indefinite period, however most were back in the communityafter
three years. 
Some practitioners of forensic psychiatry have taken extra training in
that specific area. In the United States, one year fellowships are
offered in this field to psychiatrists who have completed their
general psychiatry training. Such psychiatrists may then be eligible
to sit for a board certification examination in forensic psychiatry.
In Britain, one is required to complete a three-year sub-speciality
training in forensic psychiatry, after completing one's general
psychiatry training, before receiving a Certificate of Completion of
Training as a forensic psychiatrist. In some countries, general
psychiatrists can practice forensic psychiatry as well. However, other
countries, such as Japan, require a specific certification from the
government to do this type of work.
Daubert v. Merrell Dow Pharmaceuticals, Inc.
Daubert v. Merrell Dow Pharmaceuticals, Inc. which established the
Daubert standard delimiting the admissibility of scientific expert
Rennie v. Klein - right to refuse treatment
Kansas v. Hendricks
Kansas v. Hendricks - involuntary civil commitment for sexual
Bruneri-Canella case, an early landmark case which introduced new
forensic techniques in juridic debate
^ Howells K, Day A, Thomas-Peter B (2004). "Changing Violent
Behaviour: Forensic Mental Health and Criminological Models Compared".
Journal of Forensic
Psychiatry & Psychology. 15 (3): 391–406.
^ Gutheil, Thomas G. (2009). The
Psychiatrist as Expert Witness (2nd
ed.). American Psychiatric Publishing. ISBN 1585623423.
^ Simon, Robert and Liza Gold, ed. (2010). American Psychiatric
Textbook of Forensic Psychiatry. American Psychiatric Publishing.
^ Sadoff, Robert. Ethical Issues in Forensic Psychiatry. Minimizing
Harm. John Wiley and Sons, Inc. p. 102.
^ Bursztajn HJ, Scherr AE, Brodsky A (1994). "The rebirth of forensic
psychiatry in light of recent historical trends in criminal
responsibility". Psychiatric Clinics of North America. 17:
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^ M'Naghten's Case, 8 Eng. Rep. 718 (1843)
^ Durham v. United States, 214 f.2d 862 (D.C. Cir. 1954), overruled in
U.S. v. Brawner, 471 f.2d 969 (D.C. Cir. 1972)
^ Model Penal Code, Sec. 4.01 (1)
^ Constantinou, Anthony; Freestone, Mark; Marsh, William; Fenton,
Norman; Coid, Jeremy (2015). "Risk assessment and risk management of
violent reoffending among prisoners". Expert Systems with
Applications. 42: 7511–7529. doi:10.1016/j.eswa.2015.05.025.
^ Constantinou, Anthony; Freestone, Mark; Marsh, William; Coid, Jeremy
(2015). "Causal inference for violence risk management and decision
support in Forensic Psychiatry". Decision Support Systems. 80:
^ Criminal Code, RSC 1985, c C-46, Part XX.1.
^ Canadian Psychiatric Association, The Confidentiality of Psychiatric
Records and the Patient's Right to Privacy(2000-21S)
^ Centre for Addiction and Mental Health, The Forensic Mental Health
System in Ontario: An Information Guide."
^ Centre for Addiction and Mental Health, "What Happens Inside the
Forensic Mental Health System?"
^ Criminal Code, RSC 1985, c C-46, s 16, "defence of mental disorder".
^ Criminal Code, RSC 1985, c C-46, ss 672.11, 672.12.
^ Henley Woody Robert (2009). "Ethical Considerations of Multiple
Roles in Forensic Services". Ethics & Behavior. 19: 79–87.
^ West, Sara; Friedman, Susan H. (1 May 2007). "To Be or Not to Be:
Psychiatrist and Expert Witness".
Psychiatry Times. Retrieved
12 December 2017.
^ American Academy of
Psychiatry and the Law, "Ethics Guidelines for
the Practice of Forensic Psychiatry". Adopted May, 2005.
^ Kaliski, S. Z. (2006). Psycholegal assessment in South Africa.
Oxford: Oxford University Press.
^ Marais B, Subramaney U. Forensic state patients at Sterkfontein
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reprinted 1969, from Project Gutenberg
The Role of a Forensic
Psychiatrist in Legal Proceedings, by Harold J.
Bursztajn, MD, 1993, from Journal of the Massachusetts Academy of
Trial Attorneys with permission of Harold J. Bursztajn, MD.
Forensic psychiatry, by Samuel Lézé, Ph.D, 2014, from Andrew Scull
(ed.), Cultural Sociology of Mental Illness : an A-to-Z Guide,
Sage, pp. 313–14
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Campaign Against Psychiatric Abuse
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Global Initiative on Psychiatry
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