Q&A

In death penalty cases, individuals with mental disorders are at a serious disadvantage in the criminal justice process. They may struggle to instruct their lawyers. They may not present well in the courtroom. And when this is combined with a lack of understanding of the impact of mental disorder on the behaviour of an individual, this certainly puts persons at a disadvantage in capital cases. Mental health forensic psychiatric practice is a very complex area, and lack of understanding of the medico-legal interface is problematic in many jurisdictions. And the need for judges and lawyers to understand basic mental health concepts can only improve the criminal justice process for many individuals.

The downside is often that people with disorders are regarded or treated often as more dangerous, and this can go to culpability and issues as to sentencing. Whereas the issue of mental disorder should be a total bar to the imposition of the death penalty. So this is a very complicated area that needs a lot of understanding and a lot of work. Otherwise, there is a serious risk that individuals with mental disorder will not be treated fairly in the courts, and this will impact on their human rights and due process considerations.

Having provided legal assistance to prisoners facing the death penalty for more than 30 years, I can say with absolute certainty that it’s never obvious whether a mental disorder is present in an individual. On occasions it is obvious, but in the majority of cases where we’ve acted, mental disorders are subtle, complicated. And as a lawyer, I’m simply not qualified to make an assessment as to whether somebody has a recognized mental disorder. For that reason, we would routinely instruct mental health experts to assess individuals and provide a diagnosis and, if necessary, a report to court. In majority of Caribbean countries,in all Caribbean countries, psychiatric assessments are mandatory, a mandatory requirement for the sentencing stage.

So in any event, we would always need to provide the court with a report when it comes to sentencing.

As I said, I’m not trained to diagnose, and lawyers and judges simply do not have the necessary insight or qualifications to identify mental disorders when they may exist. When it comes to providing instructions to a mental health expert, as a general rule, the more information that we can provide, the better. So we would provide a mental health expert in all cases with as many of the court documents, medical reports as we can possibly obtain. And we would also provide very detailed instructions based on why the assessment we regard the assessment to be necessary. This could be based around the facts of the case, the circumstances of the case, our interactions with the defendant or the appellant.

And then we would ask a series of very detailed questions to the mental health expert in relation to aspects of the case. But ultimately, we would ask the mental health expert to provide us with a detailed, detailed diagnosis at different stages. So at the stage, the offence was committed and also subsequently to see whether there are any mental health concerns at the stage of during the criminal process. So pending appeal, for example, because we may want to tender fresh evidence at that particular stage.

Adverse childhood experiences or traumatic events in childhood are incredibly important when conducting any psychiatric assessment in death penalty cases. They are important because adverse experiences in childhood are very strongly predictive of adult mental disorders. This may be more obvious where a traumatic experience is manifest in an adult mental disorder directly, for example, where someone has a traumatic experience that leads to post-traumatic stress disorder. But there are also several other mental disorders which are influenced by adverse experiences in childhood, for example, anxiety, depression, schizophrenia and other mental disorders. The reason, therefore, is both in terms of identifying whether someone is at risk of having developed a mental disorder, but also to inform the formulation of someone’s mental health.

Problems and formulation is as important as diagnosis when a psychiatric assessment is conducted and formulation refers to developing an understanding of someone’s mental health problems, but also the relationship between their mental health problems and any offending. And that formulation incorporates social factors, psychological factors and, biological factors sometimes. And diagnosis is only one part of that. Therefore, taking a proper history of someone’s experiences early life is vital.

The kinds of mental disorders that might be seen in people who are being tried for capital offenses or at risk of being sentenced to death is incredibly diverse. It is true that a lot of mental disorders are associated with deprivation, and therefore there is an overlap between the social factors that are associated with the death penalty and the medical factors that relate to mental disorders. The severity again can be at all levels, but perhaps most importantly, in the death penalty, the severity might be underestimated and there may be attribution of someone’s mental symptoms to their circumstances, rather than careful consideration of whether they in fact have a mental disorder that should be diagnosed.

Another factor that is sometimes a risk is that the question for a psychiatrist when they approach a case in terms of whether there is a psychiatric disorder is sometimes treated as if the importance of this is whether that person needs some kind of treatment in hospital urgently. In other words, the question of clinical need is conflated with the question of diagnosis. For example, someone may have a diagnosis of depression that would not ordinarily need immediate transfer to a hospital, but may nevertheless be important in considerations before the court in a capital case. In summary, all mental disorders are a possibility and that all levels of severity.