Introduction to Forensic Mental Health

I’m Dr. Danny Sullivan, I’m the executive director of clinical services at Forensicare, which is the Victorian Institute of Forensic Mental Health. I’m a consultant forensic psychiatrist by training, that means that after a medical degree, I did further training in England and in Australia to specialize in mental health in forensic settings, particularly prisons and secure hospitals. In my clinical role, I also provide much expert evidence to the courts, and that’s what I hope to be sharing with you today. A forensic psychiatrist has a qualification in medicine, followed by specialist training in psychiatry and also has specialised in the mental health of offenders.

Similarly, forensic psychologists have training in psychology but have chosen to specialize in the assessment, management and treatment of people with mental disorders involved with the criminal justice system. Why would you choose a psychiatrist or a psychologist? Well, it really depends on the question to be asked. Psychiatrists have expertise in the management of major mental illness such as schizophrenia, depression and bipolar disorder. Psychologists often have much more adeptness at dealing with personality disorder or other forms of offending behaviour, not necessarily associated with major mental illness. Psychiatrists can prescribe medications. Psychologists use talking therapies. In the field of forensic mental health, both psychiatrists and psychologists have a place.

There are also psychologists and psychiatrists who have specialised in different forms of mental health. They may be specialised in intellectual disability, in women’s mental health, in the mental health that’s associated with physical illness, which we call consultation liaison psychiatry. And they may also have special areas of expertise, such as the assessment and treatment of sexual disorders or prison psychiatry or other forms of specialisation which give them unique perspectives on populations who can otherwise be very challenging. Expert witnesses have to adhere to codes of ethics. There is a distinct difference between the responsibilities of a treating doctor and those of an expert witness. A treating doctor has a primary duty towards the patient.

That primary duty means that they have to act in their best interests, and it may at times be contrary to what is required in a court of law. On the other hand, an expert witness has an objective duty to the court. They must be impartial. They must be partisan. It’s important that their ethics are unimpeachable. As a result, the expert witness often is a different doctor from the one who is treating the person with the mental disorder. In addition, the ethics of the expert witness means that an ideal expert witness will give evidence for the prosecution, for the defence and for the courts. And that evidence should be the same in each of those situations.

An expert witness who predominantly gives evidence of one sort may be perceived as biased or as having a particular bent towards a type of evidence, that means that their objectivity may be questioned. However, a witness working for all parties in a matter can be seen as unimpeachable and fair and objective. In my field of work, reputation is really important. If my reputation is challenged as being partisan, the expert evidence that I give will be of less value and utility to the courts. When I assess a patient for expert evidence, I will see them in prison, I will see them by video conference or I will see them in another location such as hospital or even a barrister’s chambers.

When I perform that assessment, I firstly provide a clear, informed consent to the person so that they understand exactly what’s being done with the information that they provide to me. It’s very rare for a person not to agree to that, but it is important that they understand that it is different from a standard medical consultation. That is, the information that I will be obtaining will not be kept confidential, will not be simply for their own benefit. That may be discussed at large in a court of law and may even be reported in the media. Thus, it’s very important for the professional relationship with any patient to ensure that they give that information freely.

Secondly, when I’m asking questions, I need to be cautious not to incriminate the person. Just as a police caution may be given to prevent a person from providing information which is prejudicial to their potential defence, I also need to make sure that if the person is discussing matters about the court case, which have not been put before the court, that they have the opportunity to cease and to stop and to think about what they’re saying or that I simply don’t venture into that area, should it be prejudicial towards them after the consent has been obtained, the assessment proceeds with an exploration of the person’s background that includes details of their birth history, of adverse childhood experiences when they were growing up, an estimation of their educational attainment, an idea of their employment history, a discussion of their relationships, exploration of various medical issues such as previous operations, head injuries, or other health conditions which might be relevant to a mental disorder, exploration of a range of mental illnesses.

And finally, a focus upon the matter at hand for the court. In obtaining a mental health history. I will be seeking to explore a range of potential diagnoses, and I’ll do that through screening questions. In some cases, the answers provided may not be consistent with the materials that I’ve been provided, and then I’ll need to explore further and find out for myself whether or not a particular diagnosis is satisfied, determine its severity, and also rule out some of the alternative explanations for that diagnosis. When I perform an assessment, I normally have the advantage of having been provided materials by the requesting party be that the court, the prosecution or the defense.

So, in addition to the question which they want answered, I’ll be provided with a brief of evidence, relevant witness statements, in some cases video footage or other forms of information and evidence, relating to the accused person. My job is to explore in an objective fashion their understanding of what occurred at the time, and that might involve at various times probing or challenging the self report of the patient. The patient may have a different reflection or recollection of what occurred, or they may have a very different appreciation of the matters. My job is not to be the finder of fact and to determine whether or not something occurred.

But my job is to determine what role, if any, mental disorder may have played in the offending. One aspect of self report is that people will frequently seek to present themselves in a favourable light. And of course, why should they not? In some situations, this may involve telling untruths or falsifying information. In some psychiatric circles, this is described as malingering. Malingering can involve pretending to have a mental illness when one does not, or can involve embellishing or accentuating the severity of that mental illness when it’s actually quite benign. Or it can involve denying that there is a mental illness present when in fact there isn’t one.

The detection of malingering can involve both objective tests, which have psychological properties and can be replicated and reported in a court. It can involve an effort to understand inconsistencies between the brief of evidence and the information provided. But whatever happens, it is important that the psychiatrist forms a view as to the genuineness and the veracity of what it is that a patient is reporting. What’s important in malingering is that you’re looking for evidence of a secondary gain. A secondary gain is something that the person stands to benefit from.

And obviously in a criminal case that can involve being found innocent or being found not to have committed the offence or finding in other ways a disposition that involves mental health rather than the criminal justice system. So although I’m not a lie detector, I’m certainly alive to the possibility that people will be accentuating or pretending to have symptoms that they don’t or that they will claim that they were present when they were not.

And for that reason, being aware of the brief of evidence, being able to challenge inconsistencies and being able to form an opinion about how real it is that the person has a mental illness is an important aspect of what a psychiatrist or psychologist does for the courts.