INTRODUCTION
As a medical specialty, psychiatry did not really exist before late 18th century, but issues involving legal and social problems go back as far as civilization itself. In ancient Babylonia legal system, intention was considered important in judging actions, known as the Code of Hammurabi. In ancient Hebrew Law, an act, was determined by intent, would keep safe someone who had killed by accident, preventing from being captured by avenging relatives.1 In India, insanity was seen as ground for leniency. Around 880 BC, laws in India permitted special consideration to retarded individuals and children younger than 15 years of age.2 Greek philosopher Plato differentiated rational and irrational behaviors and said that humans are free to choose their actions. He further said that harsher punishments should come to those who committed harms with a calculation.3 The writings of Macer in 180 AD, during the time of Marcus Aurelius, reveal that a lunatic, if escaped from the custody of his relatives and caused harm to others made the relatives liable for execution. A curious form of kinship malpractice, with a very harsh penalty was established because of this format.4 In England in the pre-Norman times, there was no separate criminal code – family of an insane murderer's was expected to pay compensation and look after the victim's family. In Norman times, insanity was no defense but a special circumstance for referral to the king for pardon.5 Ancient Jewish Talmud recommended execution of the murderer who committed the crime under intoxication of alcohol.6 In Islamic law, murder by a mentally ill person or minor is considered as involuntary homicide and subject is only to compensate for the loss.2 While the legal code of Draco (for harshness of the code “draconian” is derived) in Greece distinguished murder from involuntary homicide.3
Aristotle held a person morally responsible if, he knowing the circumstances and without external compulsion, deliberately chose to commit an act.6 In 5th century AD Europe, an insane was considered as compos mentis non est (not having control in mind and unable to understand consequences of his act), like infant or a four-footed animal. Henry Bracton, Chief 4Justice of England believed that crime was not committed unless ‘will to harm’ is present and such an intent lacked in young children and mad people. In 1265, he devised a test to identify insane known as “Wild beast test”.5 However, the medieval period in Europe and other parts of the world was dominated by ‘witch-craft’ and super-natural beliefs and the mentally ill were thought to be in league with the devil.7 The subjects of forensic attention, in the public language, were “madman, stupid, crazy, raving, insane, demented” etc.8
Since 14th century, the defense of insanity has been well recognized in English courts, when complete madness was considered as a defense to a criminal charge. By 1518, it was fully established that the lack of guilty mind and intellect meant a lack of criminal responsibility.9
In 17th century, Sir Mathew Hale opined that mere presence of insanity was not enough to remove criminal responsibility10 as insanity could be partial or limited and allowed two kinds of verdicts:
- Not guilty
- Committed act was non compos mentis.
In the 18th century, monomania became an immensely popular term in France11 and people used this term in their usual conversation for erratic behavior. In Europe, from 1760 to 1845, 350 criminal defendants used insanity in their defense. They alleged a mental disturbance for their crime and the claim came from their own statements, neighbors or the relatives who had observed their condition. However, about 25% of them also produced medical evidence in favor of their defense.12 During 1790s, Immanuel Kant used the terms like, accountability, freedom and proper use of mental faculties, while pleading. He distinguished four types of psychosis relevant to forensic psychiatry: (a) amentia (chaotic thinking), (b) dementia (delusions of reference), (c) insania (disturbed judgment) and (d) vesania (disorder of reason). In 1800, he suggested courts for opinion of psychologists and not physicians for, understanding capacity and insanity status in cases of criminal responsibility. Case of Hadfield in 1800 is an illustration, who after severe brain damage started having bizarre delusions, “…. going to destroy the world so he has to sacrifice his life to prevent it.” He tried to shoot at King George III and was held not guilty as his insanity was proved.13 Before the 19th century, law did not see any requisite for psychiatric testimony, as the judges only set the standards but it was in the 19th century that the psychiatric witness came into existence.
The independent medical witness started replacing the judges as expert witness after 1825. The beginning of 19th century saw Thomas Percival in England describing expert testimony in his book Medical Ethics and Gold emphasizing the need for co-evolution of general and forensic psychiatry.14 Treatise on the Medical Jurisprudence of Insanity written in 1838 by Isaac Ray became an international classic15 and during the same time, Morton Birnbaum, a general practitioner advocated for the right to treatment.16 In 1843, warden of the prison was murdered by a man named Abner Rogers who pleaded “not guilty by reason of insanity” based on the chloroform overdose which he was given during a previous surgery. He was acquitted of the act and sent to the Illinois Asylum.17
The same year, M'Naughten of Scotland claimed “voice of God” had instructed him to kill Mr Robert Peel the then Prime Minister. But mistakenly he killed prime minister's private secretary. He was declared not guilty by reason of insanity. The House of Lords developed the 5insanity test: “To establish a defense on the ground of insanity, it must be clearly proved that, at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”
In the 1870s and 1880s came the organic versus functional distinction, the distinction between disease of the brain and the disease of the mind. In US in 1881, occurred an important case involving a presidential assassination. The 20th president of the USA, President James A Garfield, was assassinated by person named Charles Guiteau within 200 days of his election. Guiteau was obviously insane but he was still found guilty and subsequently was hanged. His brain autopsy displayed “fairly good evidence for syphilis”.18 At the trial, a vital issue had been whether there was mind or brain disease present.
In the later part of 19th century, Emil Kraepelin advocated theories of context and naturalistic dependence of mental events relevant in forensic perspective. The forensic field and in fact the society as a whole, tussles with the problem of the psychopaths who are often referred as suffering from “moral insanity” and the phrase ‘manie sans délire’ in the French literature, suggests disturbance without cognitive impairment in such people.19
Many medicolegal societies have evolved with the more recent developments, such as the American Academy of Psychiatry and the Law (AAPL), which attempt to fill the gaps between the drastically different disciplines of psychiatry and law. The AAPL currently has about 2000 members, moreover a number of other organizations around the world inhabit this clinical-law interface.20
On the basis of these developmental facts, the modern forensic psychiatry can be conveniently described as the combination of three historic roles psychiatrists have performed: the physician tending the mentally ill; the superintendent of lunatic asylum; and the expert witness to the court. All three have their own origin.21
PHYSICIAN
The physician applies his specialized knowledge in order to treat the sick. The theme across many cultures, including India, China, Europe and the Islamic world, is that physicians deal only with physical health; mental ill-health was not seen as a medical problem, but as a personal, or family one, mostly dealt with by socioreligious rituals.
The 18th century witnessed industrial revolution, leading on to dislocation of families and disruption of kinship network; as a by-product, mentally ill confined to boundaries of home, reached on to roads as homeless or landed up in jails unfortunately. Mental illness became more a cause of social concern than medical attention. Intolerant approach of the society lead to establishment of lunatic asylums in outskirts of city to provide relief to the society from the nuisance created by the mentally ill and segregate them from mainstream society rather than to treat.22
The European traders who encroached upon the Indian subcontinent brought asylum culture to this part of the world where kinship network was still very strong and institutionalization of the mentally ill was unknown before their arrival to this part of the world.6
LUNATIC ASYLUM SUPERINTENDENT
When mentally ill became a recognized social problem and the mentally ill were committed to the lunatic asylums, which were non-medical institutions till the beginning of 20th century, asylums offered a human sanctuary to the distressed, in the over-crowded ‘bins’ whose sole purpose was removal of the obviously mentally ill from the streets and to provide only the custodial care. Each asylum had a superintendent as its in-charge who was a non-medical person who merely oversaw the unqualified ‘lunatic attendants’ in the service of lunatics. Nineteenth century asylums included those developed specially-to-deal with the ‘criminally insane.’
EXPERT WITNESS
The importance of an expert witness is traceable back to the Roman Empire with courts accepting evidence from physicians, amongst others. In case of mentally ill, it was not yet seen as part of medicine; therefore, juries and judges regarded themselves as competent to decide the question of insanity. With the proliferation of asylums in the late 19th century, the asylum administrators came to be recognized as expert witnesses.
With the new scientific developments of early 20th century, such as Kraepelin's identification and classification of psychotic disorders, Charcot's research on hypnosis and hysteria, and Freud's establishment of psychoanalysis, the practitioners of psychiatry, who now had an institutional home in the asylums, were recognized as a single profession with a specialized body of knowledge. Psychiatrists, now so-called edged out office-based neurologists from the treatment of mentally ill.
Psychiatry consolidated its professional position during the 20th century, with armies turning to it after the World Wars (I and II) for treatment of their shell-shocked soldiers and that led to development of group therapy. With the discovery of antipsychotics—which presaged the ascendency of Biological Psychiatry and side-lining of psychoanalysis, medical model of psychiatry was affirmed renew. During the latter half of the 20th century, psychiatry subspecialties developed such as Child Psychiatry, Liaison Psychiatry and Community Psychiatry.
FORENSIC PSYCHIATRIST
This specialty was a relatively late entrant and separated from mainstream general psychiatry because of institutional and ethical reasons. From 1980s onwards, a group of psychiatrists in Europe established themselves with a distinctively different job–caring for patients detained in a secure hospital environment, or in prison who were adequate in number to develop their own sub-professional identity.
Many psychiatrists in the United States who had traditionally concentrated on assessment of defendants or litigants for the courts, rather than treating patients, re-designated themselves as ‘forensicists’ and sought separate recognition in the American Academy of Psychiatry and Law (AAPL). Thus somewhat, divergent ethical and clinical traditions of forensic psychiatry 7were established in US and Europe, where the doctor's duty primarily was to facilitate justice for state than formal doctor-patient therapeutic relationship.20
Forensic Psychiatry is considered a poorly defined specialty and there is little structured training in most countries including India (WHO working group).23 A working knowledge of law regulating the psychiatry practice assists clinicians in providing patients a good care. It is difficult to expect psychiatrists to be as knowledgeable of the law as lawyers, but they should have understanding of how the psychiatry and law interact in various common clinical situations.17 Pollack20 interpreted forensic psychiatry being limited to psychiatric evaluation for legal purposes and described it as broader general field in which psychiatric principles, theories, practices and concepts are applied to legal issues. The history of forensic psychiatry is perceived as “entrance of medicine into court”.21
India has very few qualified forensic psychiatrists at present, who are largely working in general psychiatry setting.24 Over the years, concerns in psychiatry in India have changed and the discipline has moved from the concept of the colonial period “Mad Doctor” who attempted to treat florid psychoses, to “Superintendents” who ran lunatic asylums, to “Alienists” whose concern was a careful examination, description, and classification, of mental illness,25 and then to the new field of psychoanalysis, or inquiry into individual psychic pain and suffering caused by unconscious drives and neurotic conflicts. Stalwarts like Girindersekhar Bose and David Satyanand, with an emphasis on psychoanalytic techniques and in-depth therapy over long periods of time, during the 4th and 5th decades of 20th century dominated the scene of psychiatry in India.26,27 The present-day psychiatry increasingly places more emphasis on behavior, and has moved away from theories of neurotic conflict or lengthy analytic treatment. Emphasis has shifted to modification of behavior in the present, rather than primarily formulating an understanding of how such behavior may have developed in the past. Human Rights Activists and Judicial interventions28,29 have brought both structural and functional change to deliver mental health services in the country. Change is visible on what used to be a mental hospital or a Department of Psychiatry at a medical college is variously called Institute of Human Behavior or a Department of Human Behavior, Department of Behavioral Science, or the Department of Behavioral Health. Forensic Psychology is an emerging field in the country during the recent years.30 Psychological skills have been used in certain high profile criminal cases in recent past to assess the criminal behavior of the accused. To name, some of these cases are, Poetess Madhumita Shukla murder case of 2003, Nithari serial killing case 2006, Aarushi-Hemraj murder case 2008 and Sunanda Pushkar case 2017.31 Global trend of deinstitutionalization of the mentally ill and the introduction of Mental Healthcare Act 2017 has resulted in the need to establish a sophisticated forensic mental health system,32,33 and thus has enhanced the scope for Forensic Psychiatry to develop in the country.
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- Mental Healthcare Act, 2017. Ministry of Health and Family Welfare, Government of India Publication, New Delhi.