Practical concerns and challenges

Hello, this is the second video relating to the role of mental health experts in assessment and reporting for sentencing in capital cases. In this second video, I want to cover the issue of experts giving oral evidence in court, the specific issues of mental health experts addressing reform, and then some thoughts about the limitations of the system in considering expert mental health evidence. Giving oral evidence in court is something that involves medical and psychological professionals doing something which is largely unfamiliar. Being asked questions in that adversarial manner is not necessarily familiar to them. A good report will anticipate many of the questions that might be asked even in cross-examination.

Those questions, for example, might be about how did you conduct your assessment and details about that process. There may be questions about how did your assessment lead on to your opinions. There may be questions in court that are posed about specific legal questions, but all of those questions are questions that a good report will have already anticipated and addressed. And that’s not just a recommendation as a trick to deal with cross-examination, but it is a recommendation so that the courts have all of the information that might be relevant to them reaching their ultimate decisions.

There’s a very important thing for most experts, which is at all times, you remember that you’re there for the court. And so even if you’re subject to slightly aggressive or difficult questions, you are there to assist the court and keeping that in mind is often helpful to maintain both your composure, and to remember that your job is not to be a lawyer and defend a particular argument, but rather to assist the court.

There may be things that are useful to understand about the advice that is given to mental health experts. For example, questions asked in court might seek to oversimplify something by cross-examination saying, isn’t it, yes or no, doctor. If that happens, then the advice to the expert is to obviously concede obvious points, but nevertheless, there is an opportunity to then explain where there is nuance. One useful thing to advise experts about is that if they use any psychiatric or psychological concepts or diagnoses, that they are able to explain them without resorting to the use of more jargon.

And finally, and related to the issue of the expert having an ultimate duty to the court, that the expert should keep an open mind. It may be that there’s information that is put to them that does alter their opinion and they must be prepared to acknowledge that.

Another issue that might arise in relation to sentencing is the question of mental health evidence and reform. And this issue begs the question, what is reform? And reform or the ability to be reformed is not a psychiatric issue, but it might map onto a question of whether someone can benefit from treatment or whether they might indeed be treatable at all. But what is very difficult and advised against is for psychiatric and psychological experts to describe someone as untreatable simply because that treatment is not available in the system that you’re working in.

So, for example, if I was to see someone knowing that the prison they were going to didn’t really offer any treatment, that should not mean that I say they are untreatable. There are some issues that risk contaminating your objectivity as an expert when it comes to the question of reform and one of those is remorse. But remorse is not well defined and although we might all individually have our own ideas about what remorse is, remorse is something that I would suggest is a very poor indicator. Another thing that has a real tendency to influence your view is the offense itself.

If an offense causes you personally a sense of disgust or is an abhorrent crime, then there is a danger that you assume that means they cannot be reformed. But it is very dangerous to assume that the details of the offense help you decide whether someone can benefit from any treatment that they might be offered and whether they can actually turn their life around and live a more law-abiding life. There is also a danger in psychiatry and psychology that assumptions are made based on ideas 20, 30, 40 years ago. It is important that all mental health experts are giving a contemporary opinion and not an opinion that’s rooted in ideas, attitudes or treatment aims decades old.

Now, even with this system working, even if in every case where there is the possibility of a death sentence, a psychiatric and psychological assessment occur, even if they are to a very high standard where people have all the relevant information, they’re allowed proper assessment space and time in the prison. Even then, if there is still a death penalty available, some mentally disordered people will be missed because even the best assessment will still miss the odd person. And so that is a limitation of the system if the system aims to never execute mentally disordered people. But having a comprehensive system will achieve the aim of minimizing the likelihood that mentally disordered people are sentenced to death or actually executed.

There are also big problems with the system beyond that issue. There are problems because at sentencing there may be a need to consider how someone might be in 20, 30 or 40 years time. And while psychiatric and psychological evidence can assist in thinking about what someone’s prognosis is, what treatment they might need and how they might be at some point in the future, those kind of long term protections are nigh on impossible.

And finally, people having their own views about mental disorder, either a scepticism that mental disorders don’t really exist and sometimes preferring to see someone as evil rather than mentally disordered. And so probably the biggest barrier is getting the legal system to accept that there is a value in psychiatric and psychological evidence. There is an acknowledgement that serious offenders might need to be punished, that is a decision that a society will make. But it is also worth remembering that most serious offenders have also been victims. And what people actually need, who have been victims of violence or aggression themselves, is treatment. And so there should be medical and psychological treatment in prisons and hospitals.

And that treatment is in the interest of society, because whilst it might be treatment to alleviate the suffering of the convicted person themselves, it is also treatment that will have an impact on risk. And if reducing, if by providing that treatment, the risk that that person poses can be reduced, then that must be overall in the interests of everyone concerned. Finally, psychiatry and psychology will not answer all of the questions, but the court can’t answer many of the questions they have without this evidence. I realize that people may disagree with that proposition, but that’s my position.

And if it is agreed that mentally disordered people should not be executed, then the very best quality mental health evidence will reduce but not eradicate that risk. And finally, if the court accept that they need this high quality mental health evidence, then they must support experts in providing that evidence by supporting the process of assessment and reporting. Thank you very much.