Forensic assessment of a death row prisoner

Hello, my name is Richard Leatham, I am a forensic psychiatrist in London. This is the first of two videos on the role of mental health experts in assessment and reporting for sentencing in capital cases. In this first video, I’d like to cover four main areas. The first is the rationale for mental health experts being instructed at all. The second is the process of giving, receiving and accepting instructions in these kind of cases. The third is the process of conducting an assessment, the things that an expert needs, the assessment itself. And then finally, the report and the way in which an expert prepares and structures their reports.

Both psychiatrists and psychologists are experts beyond diagnosis, in formulation of mental health problems, and that is a term that’s used to mean that psychiatrists and psychologists develop an understanding of someone’s mental functioning as a whole. And in these kinds of cases, it might be to develop an understanding of the relationship between that mental functioning and any offense that has been committed.

Psychiatrists and psychologists are also experts on the impact of trauma, and that is often trauma in childhood, be it physical trauma, emotional trauma or sexual trauma. All of these traumatic events predict mental health problems in later life and understanding that relationship is often an essential part of the court deciding on what should happen to someone at the time of sentencing. And experts can assist in that area. Why would I argue that these kind of experts are specifically needed in death penalty cases? Well, I would answer that question by posing another question. Is it okay to sentence mentally disordered people to death?

If the assumption is that it is not okay to sentence mentally disordered people to death, then there must be mental health experts involved in all of these cases before sentencing. But beyond that rather crude example of why experts are necessary, mental health experts can assist the court in understanding the relationship between someone’s mental functioning, their early life, traumatic experiences in adult life, a diagnosis of mental disorder and their offending. And that might assist the court in understanding or making determinations about the degree of culpability that somebody has. And although experts won’t or shouldn’t directly say to what extent someone is culpable, that evidence is often helpful to the court in determining that issue.

The experts are usually instructed by the defense or the prosecution, but sometimes by the court themselves. But whoever instructs the expert, a well trained expert, will understand that their duty is to the court. And the decision about who the right expert is involves a part of that being considered, and that is that a good expert is someone who understands what their role as an expert is, as well as having experience or training in the area or field that is being considered.

And the next stage of instructing an expert is making sure that the expert has a very detailed set of questions and that might need to be a set of questions that’s mutually agreed because there is a risk that questions are asked the experts simply can’t or shouldn’t answer. But also, the court needs to make sure that the expert is not answering questions that are of no relevance to them.

In preparing for an assessment, as well as an agreement on the instructions and an agreement that those instructions are going to be the basis of the assessment and report, a mental health expert needs the legal and medical papers, and that means all of the legal and medical papers that might be of any relevance. It can be very difficult to get these papers but the court can assist in ensuring that the expert has all the relevant information before conducting that assessment. The assessment itself must involve a direct assessment and examination of the defendant. It cannot be done without that. The entire basis of medical and psychological assessment is direct examination, and that might take several hours face to face.

So the courts can assist in ensuring that this happens. The content of the assessment itself will vary depending on the circumstances, but will usually include a very detailed developmental family and background history. There will also be attention to the medical and psychiatric history of the person who is being assessed, as well as any history of trauma and abuse. There will be attention to any use of substances, but also a detailed account of any offense and the relationship of that offense with their mental function. Following the assessment, which, as I have said, may take several hours, there may be a need to interview family or friends. This provides what’s often referred to as a corroborative history of the mental disorder.

Prison records may also be relevant, and then the expert may decide that there needs to be some physical investigations, for example, brain injury, which might involve brain scans, or it may be that there are other biological investigations, such as blood tests, which are necessary.

Having completed the whole assessment, the mental health expert will then prepare a report. And that report should be structured to include all of the information that has informed that report. And that will include a detailed description of the entire interview with the defendant. In general terms, the interview with the defendant will be described in the most detail because that’s information that the court will not otherwise have. The other information that the expert has used will usually be information, for example, legal papers or medical records that the court have access to. And so that might simply be summarized.

And then the opinions in the report will usually consist of a detailed description of the diagnosis, the formulation or understanding of the patient or defendant, their likely mental states at different times, including at the time they’ve been assessed and retrospectively by looking at all the relevant information, from the time of any alleged offense or any offense they’ve been convicted of. And then there will be opinions on the relevance of mental disorder or psychological problems to that offense. There is then the need to engage in a process of mapping those medical or psychological opinions onto any of the legal tests in a way that assists the court in making the ultimate determination.

The experts may describe in detail the necessary treatment that the person needs for their mental health problems or to reduce their risk of committing further offences, and those two things may overlap.

There are risks for experts and the risks are that they misunderstand their role, and that might mean that an expert makes their own judgments on facts, which is obviously not their job. They may fail to consider alternative opinions and they may use jargon excessively. So their report ends up needing translating. All of these things are problems and an experienced expert will seek to avoid them.

But there are risks for the courts. There are risks that the court assumes that they know about mental disorder or they have attitudes about mental disorder that are stigmatizing.

It may be that the courts fail to oversee the instructions being given to experts so that the experts are embarking on a task without a proper set of questions. The courts have a role in ensuring that the expert receives the relevant information and is able to conduct their assessment properly.

And if the courts don’t understand how psychiatrists and psychologists conduct their assessments, then there is a risk that they don’t oversee that process happening properly. That’s the end of this first video, and I will move on to some further considerations, specifically in relation to sentencing in the second video.