Clarify with the court when you should attend. Prepare in advance by examining the papers a nd re-reading your report. Consult references and anticipate questions. Present in a smart, con \201 dent, professional manner and be punctual. Counsel may request a conference befo re the court sits. Have a brief interview with the accused in the court cells if he has not been seen for some time and particularly where \201 tness to plead may be an issue. \200 \200 \200 17_Semple_Chap17.indd 708 12/7/2012 3:49:48 PM COURT REPORTS AND GIVING EVIDENCE 2 709 When called to give evidence you will be asked to take the oath, and then will be questione d by the barrister or solicitor who called you. You will then be cross-examined by the \200\230other side \200\231 before being re-examined. You may take notes with you, but ask the judge before referring to them. Speak clearly and slowly, and explain technical terms. Address the judge. If counsel \200\231s questioning is not allowing you to get the appropri ate informa- tion across, then ask the judge if you may clarify your response. A note on addressing the judge: \200 England and Wales judge \200\230Your Honor \200\231; Magistrate \200\231s Court \200\230S ir \200\231 or \200\230Madam \200\231. Scotland Lady \200\231 or \200\230Ma \200\231am \200\231. NI RoI \200\224High Court \200\230My Lord \200\231 or \200\230My Lady \200\231; local \200\224High Court and Sheriff Court \200\230My Lord \200\231 or \200\230Sir \200\231 an d \200\230My \200\224as England and Wales. \200 \200\224 \200\230Your Lordship \200\231, \200\230Ju dge \200\231, or \200\230Sir \200\231. 17_Semple_Chap17.indd 709 12/7/2012 3:49:48 PM CHAPTER 17 Forensic psychiatry 710 Suggested format for criminal court report \200 The following sets out a comprehensive list of the matters that may be set out in a report. Not all of the issues will be relevant in every case. For example: \200 Where there is little information available and the recommendation is for further assessmen t, then the report may be relatively brief, focusing on the issues of relevance to the maki ng of any relevant order. Where the person has been convicted, consideration of \201 tnes s to plead, insanity at the time of the offense, and diminished responsibility (in murder c ases) is irrelevant. Where a report is updating a previous report prepared in the same case relating to the same offense (or alleged offense) or is recommending the extension of an o rder, then the report may be relatively brief, as long as it addresses whether the person f ul \201 ls the criteria for that order and why extension is necessary. Preliminary information \200 At whose request the assessment was undertaken, circumstances of assessment (place, time, a ny constraints on assessment such as inadequate time to complete assessment due to prison r outine). Sources of information used (interview with the person, interviews with others, do cuments examined). The person \200\231s capacity to take part or refuse to take part and un derstanding of the limits of con \201 dentiality. If any important sources of information could not be used, there should be a statement as to why this was the case. Background history Family history; personal history; medical his- tory; psychiatric history ; recent social circumstances; personality; forensic history. Circumstances of offense or alleged offense Progress since offense or alleged offense: part icularly where there has been a considerable period of time since the (alleged) offense. Current mental state Opinion \200 \200 Fitness to plead. Presence of mental disorder currently and whether the criteria for the re levant order are met. Presence of mental disorder at the time of the offense: \200 The relationship between any mental disorder and the offense (this is still relevant even i f the person has been convicted as it may affect the choice of disposal). Whether the perso n was insane at the time of the offense. 17_Semple_Chap17.indd 710 12/7/2012 3:49:49 PM SUGGESTED FORMAT FOR CRIMINAL COURT REPORT 711 In murder cases, whether there are grounds for diminished responsibility. Assessment of ris k: \200 \200 \200 The risk that the person might pose of reoffending. The relationship between this risk and any mental disorder present. Does the person require to be managed in a secure setting (med ium-security unit, high-security hospital)? What assessment or treatment does the person require? \200 Does the person need further assessment? (Where? Does the person need a period of inpatient assessment and at what level of security? Why? What issues remain to be clari \201 ed?) D oes the person require treatment? (What treatment do they need and where?) State any matters that are currently uncertain and the reasons they remain uncertain. Recommendation \200 Should the court consider using any particular order (and if so, what arrangements have bee n made for the person to be received in hospital or elsewhere under this order)? Whose care will the person be under? Consider whether an alternative order may be appropriate if circum- stances change so that the order recommended here cannot be acted on, e.g. \200 \200 If the person is or is not found to be insane. If the person is or is not convicted. Medical practitioner \200\231s details: name; current post; current employer; quali \201 c ations; whether fully registered with the GMC; approved under relevant mental health legisl ation; a statement that the report is given on soul and conscience (in Scotland); statement s as to whether the medical practitioner is related to the person and has any pecuniary int erest in the person \200\231s admission to hospital or placement on any community-based ord er (if a mental health disposal is being recommended); the medical practitioner should sign the report. 17_Semple_Chap17.indd 711 12/7/2012 3:49:49 PM CHAPTER 17 Forensic psychiatry 712 Overview of the pathways of mentally disordered offenders through the criminal justice and health systems The following gives an overview of the criminal justice process, and how at each stage mental disorder may lead to certain courses of action being taken. Different pro cedures are available in the four main jurisdictions of the British Isles (see Table 17.3 f or a summary of the legal provisions for each jurisdiction). The numbers appearing in super script in the following bullet points give an indication as to which procedures are not app licable in all four jurisdictions: 1: England and Wales and Scotland only; 2: Not in RoI; 3 : Scotland only. Arrest and police custody After being apprehended, an individual may be diverted to mental health services informally or under civil procedures. Police may also have speci \201 c po wers allowing them to take mentally disordered individuals for assess- ment by psychiatric services. Pre-trial \200 At a pre-trial court appearance a mentally disordered individual may be remanded to hospita l for assessment and/or treatment.2 With more minor offenses criminal proceedings may be ta ken no further and an individual may receive care from mental health services either inform ally or using compulsory measures under mental health legislation. If an individual is rema nded in prison, but appears to be mentally disordered, procedures may allow for the transfe r of that person to hospital. If an individual is remanded on bail, conditions may be attac hed so that they are required to be assessed and/or treated by psychiatric services. Trial \200 If a person \200\231s mental state is such that they cannot participate in the court proces s then they may be found un \201 t to plead and would subsequently only be liable to recei ve a mental health disposal. Mental disorder may affect a person \200\231s legal responsibi lity for their actions: \200 Automatic behavior (automatism) may lead to complete acquittal or acquittal on the grounds of insanity. A severe mental disorder may be such that a person is held not to be legally r esponsible for their actions and they are acquitted on the grounds of insanity (also known as not guilty by reason of insanity). Following such a \201 nding they would only be liab le to receive a mental health disposal. In murder cases, mental disorder may lead to dimini shed responsibility, reducing the offense to manslaughter, thus avoiding the mandatory life sentence and allowing \202 exibility in disposal (which may be a penal or mental health disposal). 17_Semple_Chap17.indd 712 12/7/2012 3:49:49 PM OVERVIEW OF THE PATHWAYS OF MENTALLY DISORDERED OFFENDERS 713 Despite the presence of mental disorder at the time of trial and/or at the time of the offe nse, a mentally disordered offender may plead or be found guilty. Mental disorder may then be taken into account when sentence is passed. Post-conviction/pre-sentence \200 Procedures may allow a mentally disordered offender to be assessed in hospital after convic tion but prior to sentencing.2 Individuals remanded in prison awaiting sentence may be tran sferred to hospital if they appear mentally disordered, as at the pre-trial stage.2 Sentencing Following conviction, a mentally disordered offender may receive a mental health disposal:2 \200 \200 A compulsory order to hospital. A compulsory order to hospital with special restrictions in more serious cases. A compulsory order to hospital with a prison sentence running in paral lel.1 3 A compulsory order in the community. Other community disposals. \200 They may alternatively, despite the presence of mental disorder, receive a penal disposal e ither in prison or the community. During a prison sentence if a person appears to be mental ly disordered they may be transferred to hospital. 17_Semple_Chap17.indd 713 12/7/2012 3:49:49 PM CHAPTER 17 Forensic psychiatry 714 Table 17.3 Legal provisions for procedures relating to mentally disordered offenders England and Wales Scotland NI RoI Police s136 MHA 1983 s297 MH(CT)(S)A 2003 a130 MH(NI)O 1986 s12 MHA 2001 Detention of mentally disordered person found in public place Detention of mentally disorde red person in private premises s135 MHA 1983 s293 MH(CT)(S)A 2003 a129 MH(NI)O 1986 s12 MHA 2001 Pre-trial Remand to hospital for assessment Remand to hospital for assessment Transfer of untried pri soner to hospital s35 MHA 1983 s52B-J CP(S)A 1995 a42 MH(NI)O 1986 \200\224 s36 MHA 1983 s52K-S CP(S)A 1995 a43 MH(NI)O 1986 \200\224 s48 MHA 1983 s52B-J P(S)A 1995 or s52K-S CP(S)A 1995 a54 MH(NI)O 1986 Trial Criteria for \201 tness to plead Procedure relating to a \201 nding of un \201 tness t o plead Criteria for insanity at the time of the offense Procedure relating to a \201 ndi ng of insanity at the time of the offense Criteria for diminished responsibility R v Prichard HMA v Wilson Stewart v HMA s54 \200\22357 CP(S)A 1995 R v Prichard R v Prichard (s3 CL(I)B 2002) Lunacy (Ireland) Act 1821, Juries Act 1976 (s3CL(I)B 2002) Do yle v Wicklow County Council s2 \200\2233 and sch 1 \200\2232 CP(IUP)A 1991 M \200\231Naghten Rules a49 and 50A MH(NI)O 1986 HMA v Kidd CJ(NI)A 1966 s1&3 and sch 1 \200\2232 CP(IUP)A 1991 s54 and 57 CP(S)A 1995 a50 and 50A CJ(NI)O 1996 Trial of Lunatics Act 1883 (s4CL(I)B 2002) s2 Homicide Act 1957 Galbraith v HMA CJ(NI)O 1996 \200\224 (s5 CL(I)B 2002) Post-conviction but pre-sentence Remand to hospital for assessment s35 MHA 1983 s52B-J CP(S)A 1995 s200 CP(S)A 1995 a42 MH(NI)O 1986 \200\224 17_Semple_Chap17.indd 714 12/7/2012 3:49:49 PM OVERVIEW OF THE PATHWAYS OF MENTALLY DISORDERED OFFENDERS 715 England and Wales Scotland NI RoI Remand to hospital for treatment Interim hospital/ compulsion order Transfer of untried pri soner to hospital s36 MHA 1983 s52K-S CP(S)A 1995 a43 MH(NI)O 1986 \200\224 s38 MHA 1983 s53 CP(S)A 1995 \200\224 \200\224 s48 MHA 1983 s52B-J CP(S)A 1995 s52K- S CP(S)A 1995 a54 MH(NI)O 1986 Sentence s37 MHA 1983 s57A CP(S)A 1995 a44 MH(NI)O \200\224 Compulsory treatment in hospital under MHA Restriction order 1986 s41 s59 MHA 1983 a47 CP(S)A 1995 \200\224 MH(NI)O 1986 \200\224 Hybrid order (hospital disposal with prison sentence) Compulsory treatment in community und er MHA Guardianship s45A-B MHA 1983 s59A CP(S)A 1995 \200\224 \200\224 s57A CP(S)A 1995 \200\224 \200\224 s37 MHA 1983 s58(1A) CP(S)A 1995 s60B CP(S)A 1995 \200\224 a44 MH(NI)O 1986 \200\224 Intervention order for incapable adult Psychiatric probation order \200\224 \200\224 sch2 (p5) Powers of Criminal Courts (Sentencing) Act 2000 s230 CP(S)A 1995 sch1(p4) \200\224 CJ(NI)O 1996 Post-sentence s47 MHA 1983 s136 MH(CT)(S)A 2003 a53 MH(NI)O 1986 Transfer of sentenced prisoners to hospital Restriction direction for transferred prisoner s49 MHA 1983 a55 MH(NI)O 1986 \200\224 Notes: A, article; p, paragraph; s, section; sch, schedule; CJ(NI)A1 966, Criminal Justice (NI) Ac t 1966; CJ(NI)O 1996, Criminal Justice (NI) Order 1996; CL(I)B 2002, Criminal Law (Insanity ) Bill 2002; CP(IUP)A 1991, Criminal Procedure (Insanity and Un \201 tness to Plead) Act 1 991; CP(S) A 1995, Criminal Procedure (Scotland) Act 1995; MHA 1983, Mental Health Act 1983 ; MHA 2001, Mental Health Act 2001; MH(CT)(S)A 2003, Mental Health (Care and Treatment) (Sc otland) Act 2003; MH(NI)O 1986, Mental Health (NI) Order 1986; \200\223, no such procedure in this jurisdiction; ( ), proposals in CL(I)B 2002 for RoI are in parentheses; *, p rocedure may involve various old pieces of legislation, **, all s136 MH(CT)(S)A 2003 transf er directions in Scotland are restricted. 17_Semple_Chap17.indd 715 12/7/2012 3:49:49 PM CHAPTER 17 Forensic psychiatry 716 Fitness to plead 1: assessment Essence If a person \200\231s mental disorder is such that t hey cannot participate adequately in the court process, then it has long been held that it is unfair for the person to be tried. If this is the case the court \201 nds the person u n \201 t to plead and the trial does not proceed. Legal criteria The details of these vary in different jurisdictions, but broadly cover the same issues (see Box 17.6). Clinical assessment of \201 tness to plead The assessment of \201 tness to plead is con cerned with the current mental state and ability of an accused. This involves: \200 Makin g a diagnosis of mental disorder. \200 Determining the impact of this disorder on the abi lities covered in the legal criteria. Clinicians should be aware that the mental state of an individual may change and therefore if some time has elapsed between a clinical exami- nation and the accused \200\231s appeara nce in court then a brief re-examination may be necessary. Diagnoses that may be relevant: Dementia and other chronic organic conditions, delirium, sc hizophrenia and related psychoses, severe affective disorders (mania and depression), LD. Features of an individual \200\231s mental state due to their disorder to be taken into con sideration: \200 Ability to communicate (schizophrenic thought disorder, manic \202 ight of ideas, depress ive poverty of speech, dysphasia of dementia). Beliefs (e.g. the individual may have delusi ons that they have a divine mission and that the court process is irrelevant to them). Comp rehension (may be impaired in dementia, acute confusion, or learning disability). Attention and concentration (may be impaired in any of the conditions listed here). Memory (as noted , amnesia for the alleged offense is irrelevant, but short-term memory failure due to organ ic impairment may be such as to make following proceedings in court impossible). In some cases suggestions may be made as to how the communication and understanding of the accused may be facilitated. However, such sugges- tions must be practicable in court. In most cases psychiatric evidence is unanimous and followed unques- tioningly in court. A recommendation that an individual is un \201 t to plead should be reserved for cases where this is beyond doubt. In borderline cases certain measures (such as a hospital remand) may allow further assessment and treatment to clarify the issue. Where the index offense is re latively minor it may be appropriate for charges to be dropped and for civil detention to b e initiated. In such cases prosecutors are usually keen to take this course. 17_Semple_Chap17.indd 716 12/7/2012 3:49:50 PM FITNESS TO PLEAD 1: ASSESSMENT 717 Box 17.6 Fitness to plead \200\224legal criteria for \201 nding England and Wales: R v Prichard (1836) 7 C&P 303 \200\230Whether he can plead to the indic tment [and] whether he is of suf- \201 cient intellect to comprehend the cour se of proceedings on trial, so as to make a proper defense \200\224to know that he might ch allenge any of you [the jury] to whom he might object \200\224and to comprehend the details of evidence \200\231 Scotland: Criminal Justice and Licensing (Scotland) Act 2010 This Act replaced the common l aw understanding of un \201 tness to stand trial with a new statutory de \201 nition unde r Section 170: (1) A person is un \201 t for trial if it is established on the balance of probabilities that the per- son is incapable, by reason of a mental or physical condition, of participating effectively in a trial. (2) In determining whether a person is un \201 t for trial the court is to have regard to: (a) the ability of the person to: (i) understand the nature of the charge, (ii) understand the requirement to tender a plea to the charge an d the effect of such a plea, (iii) understand the purpose of, and follow the course of, the trial, (iv) understand the evidence that may be given against the person, (v) instruct and otherwise communicate with the person \200\231s legal representative, and (b) any other fa ctor which the court considers relevant. NI: As for England and Wales. RoI: Statutory de \201 nition under s4(2) Criminal Law (Insanity) Bill 2002: \200\230An a ccused person shall be deemed un \201 t to be tried if he or she is unable by reason of me ntal disorder to understand the nature or course of the pro- ceedings so as to: (a) plead t o the charge, (b) instruct a legal representative, (c) make a proper defense, (d) in the ca se of a trial by jury, challenge a juror to whom he or she might wish to object, or (e) und erstand the evidence. \200\231 17_Semple_Chap17.indd 717 12/7/2012 3:49:50 PM CHAPTER 17 Forensic psychiatry 718 Fitness to plead 2: procedures What happens after a person is found un \201 t to plead? A person who is un \201 t to plead may not be subject to penal sanctions. Traditionally the person would be detained inde \201 nitely in a secure hospital with special restrictions o n discharge until they recovered to the extent that they could be tried (although the perso n would rarely go back for trial even if they recovered!). This unsatisfactory arrangement is still the case in the RoI. In England and Wales, Scotland, and NI, following a \201 nd ing of un \201 tness to plead, there is a trial of facts where the court determines if the person did the act charged. If the facts are found the person may be subject to one of a r ange of mental health disposals depending on their mental state, their needs, and the risk they might pose. Proceedings following a \201 nding England and Wales \200 Proceedings set out in the Criminal Procedure (Insanity and Un \201 tness to Plead) Act 19 91. Following a \201 nding of un \201 tness to plead there is a determine whether on the balance of probability it is likely that the person committed the offense. If this is not found to be the case the defendant is discharged; if it is found to be the case the person may be subject to one of the following disposals: \200 \200 trial of facts held to Hospital order (almost identical to s37 MHA 1983). Hospital order with restriction order (a lmost identical to s37 and s41 MHA 1983). Guardian order (almost identical to s37 MHA 1983) . Supervision and treatment order (similar to psychiatric probation order). No order. \200 If the person had been charged with murder then there is a mandatory hospital order with an unlimited restriction order. Scotland \200 Proceedings set out under s54 \200\22357 CP(S)A 1995, as amended by Criminal Justice and Li censing (Scotland) Act 2010. Following a \201 nding of facts \200\231. Whilst awaiting th is the person may be placed in prison, on bail, or in hospital under a temporary compulsion order. At the \200\230examination of facts \200\231 a determination is made as to whether on the balance of probability it is likely that the person committed the offense. If this is not found to be the case the defendant is discharged; if it is found to be the case the person may be subject to one of the following disposals: \200 un \201 tness for trial there is an \200\230examination of Compulsion order (almost identical to s57A CP(S)A 1995) in hospital or the community. 17_Semple_Chap17.indd 718 12/7/2012 3:49:50 PM FITNESS TO PLEAD 2: PROCEDURES 719 Compulsion order in hospital with a restriction order (almost identical to s57A and s59 CP( S)A 1995). Interim compulsion order (almost identical to s53 CP(S)A 1995) Guardianship orde r or intervention order (identical to such orders under the Adults with Incapacity (Scotlan d) Act 2000). Supervision and treatment order (similar to a psychiatric probation order). N o order. \200 In Scotland there is no longer a mandatory restriction order in murder cases. The interim c ompulsion order is to be used in all cases where the person appears to pose a considerable risk to others; following assessment, if the person is determined to pose a high risk accor ding to the criteria set out under section 210E CP(S)A 1995, then the mandatory disposal is a compulsion order to hospital with a restriction order. NI \200 Articles 49 and 50A MH(NI)O 1986 set out almost identical procedures as for England and Wal es. RoI Under the Criminal Law (Insanity) Bill 2002: \200 If a person is found un \201 t to be tried, and the court is satis \201 ed that there is a reasonable doubt that he committed the act alleged, it will acquit him and no further act ion under criminal proceedings will be taken. If that is not the case, then following a \201 nding of un \201 tness to be tried the person must be examined by a doctor to determi ne if they meet the criteria for detention under the Mental Health Act 2001; this may occur via a 28-day period of assessment in a designated center. If the person does meet such cri teria then they are detained in a designated center until they are \201 t to be tried or they no longer require detention in hospital. The designated center may be a prison or hosp ital. Fitness to stand trial Fitness to stand trial is a separate issue from \201 tness to plea d. It concerns whether a person is so unwell (either mentally or physically) that they are unable to appear in court or appearing in court would be detrimental to their health. In mo st circumstances an individual who was un \201 t to stand trial due to mental disorder wou ld be un \201 t to plead. 17_Semple_Chap17.indd 719 12/7/2012 3:49:50 PM CHAPTER 17 Forensic psychiatry 720 Criminal responsibility 1 If a person was mentally disordered at the time of an offense thi s may affect their legal responsibility for their actions. The relevant legal issues are: \200 \200 \200 \200 Insanity at the time of the offense. Automatism. Diminished responsibility ( Infanticide ( b p. 722). b p. 722). Insanity at the time of the offense In some cases the court may \201 nd that a person \200\231s mental condition was such that they cannot be held responsible for their actions; they are then acquitted on the grounds of insanity (also known as insanity at the time of the offense, not guilty by reason of insanity, or guilty but insane [the present term in th e RoI]). For legal criteria, see Box 17.7. Automatism \200 If an individual commits an offense when his body is not under the control of his mind (e.g . when asleep) he is not guilty of the offense. Legally this is called an automatism. (Note : this is different from the clinical concept of automatism occurring during a complex part ial seizure.) two legal types of automatism are recognized: In England and Wales insane and sane (automatism simpliciter). The distinction is based on whether the behavior is likely to recur: \200 Insane automatism brain tumors, epilepsy) results in an acquittal on the grounds of insanit y. Sane automatism states, concussion, re \202 ex actions after bee stings, dissociative s tates, night terrors, and hypoglycaemia) results in a complete acquittal. Note: the distinc tion is less important now that there is a \202 exible range of disposals available for t hose found insane. \200 \200\224due to an intrinsic cause (e.g. sleepwalking, \200\224due to an extrinsic cause (e.g. confusional sane automatism was not recognized \200\224it In Scotland (until recently) is now recognized only in cases where an external factor is sh own to have caused the accused \200\231s dissociated state of mind. What happens after a person is acquitted on the grounds of insanity? \200 Disposal after an acquittal on the grounds of insanity is identical to that following a \201 nding of un \201 tness to plead with the facts found in England and Wales, Scotland, and NI; and that following a \201 nding of un \201 tness to plead in the RoI (see Box 17 .7). 17_Semple_Chap17.indd 720 12/7/2012 3:49:50 PM CRIMINAL RESPONSIBILITY 1 721 Box 17.7 Insanity at the time of the offense \200\224legal criteria England and Wales: M \200\231Naghten Rules of 1843 (West and Walk 1977) \200\230Every man is presumed to be sane, until the contrary be proved and that to establish a defense on the grounds of insanity it must be clearly proved that at the time of committing the act the a ccused party was laboring under such a de \201 cit of reason from disease of the mind to n ot know the nature and quality of the act; or that if he did know it, that he did not know that what he was doing was wrong. \200\231 Also: \200\230If the accused labors under a partial delusion only [meaning an isolated del usional belief or system, rather than a partially held delusion or over- valued idea], and is not in other respects insane, he should be considered in the same situation as to respon sibility as if the facts with which the delusion exists were real. \200\231 Scotland: Criminal Justice and Licensing (Scotland) Act 2010 As for the issue of un \201 t ness to stand trial this Act replaced the com- mon law understanding of insanity at the tim e of the offense with a new statutory de \201 nition under Section 168: \200\230(1) A per son is not criminally responsible for conduct constituting an offense, and is to be acquitt ed of the offense, if the person was at the time of the conduct unable by reason of mental disorder to appreciate the nature or wrongfulness of the conduct. (2) But a person does not lack criminal responsibility for such conduct if the mental disorder in question consists only of a personality disorder which is characterized solely or principally by abnormally a ggressive or seriously irresponsible conduct. \200\231 NI: Criminal Justice (NI) Act 1966 A defendant who is found to have been \200\230an insane person \200\231 at the time of the alleged offense shall not be convicted. \200\230Insane person \200\231 means \200\230a person who suffers from mental abnormality which prevents him \200\224 1. from appreciating what he is doing; or 2. from appreciating that what he i s doing is either wrong or contrary to law; or 3. from controlling his own conduct. \200\231 Mental abnormality is de \201 ned as \200 \230an abnormality of mind which arises from a condition of arrested or retarded developmen t of mind or any inherent causes or is induced by disease or injury \200\231. RoI: s5 Criminal Law (Insanity) Bill 2002 \200\230Where an accused person is tried for an offense and, in the case of the District Court or Special Criminal Court, the court or, in any other case, the jury \201 nds that the accused person committed the act alleged again st him or her and, having heard evidence relating to the mental condition of the accused gi ven by a consultant psychiatrist, \201 nds that \200\224(a) the accused person was suffer ing at the time from a mental disorder, and (b) the mental disorder was such that the accus ed person ought not to be held responsible for the act alleged by reason of the fact that h e or she \200\224(i) did not know the nature and quality of the act, or (ii) did not know t hat what he or she was doing was wrong, or (iii) was unable to refrain from committing the act, the court or the jury, as the case may be, shall return a special verdict to the effec t that the accused person is not guilty by reason of insanity. \200\231 17_Semple_Chap17.indd 721 12/7/2012 3:49:50 PM CHAPTER 17 Forensic psychiatry 722 Criminal responsibility 2 Diminished responsibility \200 In murder cases, a person \200\231s mental condition may be such that although they cannot be fully absolved of responsibility they are found to be of diminished responsibility (know n as impaired mental responsibility in NI). A \201 nding of diminished responsibility doe s not result in acquittal, but in conviction for the lesser offense of manslaughter (or cul pable homicide in Scotland). For legal criteria, see Box 17.8. Infanticide \200 In cases involving the killing of a child aged under 12mths by the mother she may be convic ted of infanticide instead of murder if the court is satis \201 ed that the balance of her mind was disturbed by reason of her not fully having recovered from the effect of giving b irth to the child, or by reason of lactation consequent upon the birth (Infanticide Act 193 8 for England and Wales, Infanticide Act (NI) 1939, Infanticide Act 1949 for RoI). These cr iteria set a lower threshold than those for diminished responsibility. Disposal in such cas es is \202 exible, as with manslaughter. This defense is not available in Scotland where diminished responsibility would be used instead in such cases. \200 What happens following a \201 nding of diminished responsibility? \200 A person is convicted of manslaughter (or culpable homicide in Scotland) instead of murder. There is therefore no mandatory sentence of life imprisonment and the court may pass any s entence it sees \201 t: penal sanctions in the community or prison, or any of the mental health disposals available following conviction (see b p. 712). 17_Semple_Chap17.indd 722 12/7/2012 3:49:50 PM CRIMINAL RESPONSIBILITY 2 723 Box 17.8 Diminished responsibility \200\224legal criteria England and Wales: Section 2 Homicide Act 1957 states \200\230When a person is party to th e killing of another, he shall not be convicted of murder if he was suffering from such abn ormality of mind (whether aris- ing from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing. \200\231 In R v Byrne (1960) 44 Cr App R 246 \200\230abnormality of mind \200\231 was inter- preted widely: \200\230A state of mind so different from that of ordinary human beings tha t the reasonable man would term it abnormal. It appears to us to be wide enough to cover th e mind \200\231s activities in all its aspects, not only the perception of physical acts an d matters and the ability to form a rational judgment whether an act is right or wrong, but also the ability to exercise will-power to control physical acts in accordance with that r ational judgment. \200\231 Scotland: these were recently set out in Galbraith v H MA Advocate 2001 SCCR 551. The concl usions of the court were: \200\230In essence, the judge must decide whether there is evide nce that, at the relevant time, the accused was suffering from an abnormality of mind which substantially impaired the ability of the accused, as compared with a normal person, to de termine or control his acts. \200\231 \200\230Psychopathic personality disorder \200\231 a nd voluntary intoxication are excluded. The effect of a \201 nding of diminished responsi bility is that the accused is found guilty of culpable homicide rather than murder. NI: Criminal Justice Act (NI) 1966 de \201 nes the defense of \200\230impaired mental res ponsibility \200\231: \200\230Where a party charged with murder has killed or was party to the killing of another, and it appears to the jury that he was suffering from mental abnor mality which substantially impaired his mental responsibility for his acts and omissions in doing or being party to the killing, the jury shall \201 nd him not guilty of murder but shall \201 nd him guilty (whether as principal or accessory) of manslaughter. \200\231 RoI: s6 Criminal Law (Insanity) Bill 2002 \200\230Where a person is tried for murder and t he jury or, as the case may be, the Special Criminal Court \201 nds that the person \200 \224(a) committed the act alleged, (b) was at the time suffering from a mental disorder, an d (c) the mental disorder was not such as to justify \201 nding him or her not guilty by reason of insanity, but was such as to diminish substantially his or her responsibility for the act, the jury or court, as the case may be, shall \201 nd the person not guilty of t hat offense but guilty of manslaughter on the ground of diminished responsibility. \200\231 17_Semple_Chap17.indd 723 12/7/2012 3:49:51 PM CHAPTER 17 Forensic psychiatry 724 Assessing \200\230mental state at the time of the offense \200\231 Clinical examination \200 Necessitates the reconstruction of the circumstances of the offense and in particular the m ental state of the accused at that time. Along with interviewing the accused it is extremel y helpful to peruse witness statements, police reports, and transcripts of police interview s (or if possible, to view videotaped interviews). Other important sources to help with \200\230retrospective \200\231 assessment: \200 \200 Relatives, or other persons, who knew the defendant at the time. Any psychiatric assessment carried out soon after the offense (if the police or court were suf \201 ciently concerne d about their mental state). Any records of contact with psychiatric services at the time, and the views of relevant staff who were involved in these contacts. Putting the legal criteria into clinical terms For insanity at the time of the offense: \200 The accused should have been suffering from a severe mental disorder which was the overwhel ming factor in determining the occurrence of the offense. There should be a clear relations hip between the offense and the symptoms of the mental disorder. However, it should be note d that the criteria for insanity at the time of the offense in Scotland, NI, and the RoI ar e broader than not knowing what one is doing or that it is wrong, and encompass an inabilit y to control one \200\231s actions due to mental disorder (see criteria on b p. 721). Diagn oses that may be relevant: dementia and other chronic organic disorders (including those se condary to alcohol or drug misuse); delirium (including delirium tremens); schizophrenia an d related psychoses; severe affective disorders with psychotic symptoms; severe LD. Note: in most successful cases the diagnosis is a psychotic disorder, and delusions or hall ucinations are directly relevant to the behavior consti- tuting the offense. For diminished responsibility: \200 The accused should have evidently been suffering from an \200\230abnormality of mind \200 \231 (i.e. a mental disorder not severe enough to deem them \200\230insane \200\231, but o f suf \201 cient degree to substantially impair their ability to determine or control thei r actions; see criteria on b p.722). Diagnoses that may be relevant: any of the diagnoses l isted here for insanity, as well as: non-psychotic affective disorders; acute stress reacti ons, adjustment disorders, and post-traumatic stress disorder; personality disorders (not p rimary dissocial personality disorder in Scotland); sexual deviation (not in Scotland); mil d to moderate LD and pervasive developmental disorders (including autistic spectrum disorde rs). Other conditions that have been successful in gaining a diminished responsibility verd ict are premenstrual syndrome and \200\230battered spouse syndrome \200\231. 17_Semple_Chap17.indd 724 12/7/2012 3:49:51 PM 725 Chapter 18 Learning disability Introduction 726 Historical perspective 728 Classi \201 cation 730 Impairments, disabiliti es, and handicaps 732 Etiology 734 Establishing the cause 736 The process of assessment 738 Considering management choices 740 Treatment methods 742 Down \200\231s syndrome 744 Delet ions and duplication syndromes 746 Autosomal dominant syndromes 748 Autosomal recessive syn dromes 750 X-linked dominant syndromes 752 X-linked recessive syndromes 754 Sex chromosome disorders 755 Non-genetic causes of learning disability 756 Disorders of unknown etiology 7 57 Pervasive developmental disorders 758 Autism 760 Epilepsy and learning disability 762 Ps ychiatric comorbidity in LD 764 Behavioral disorders and \200\230challenging \200\231 beha vior 766 Management of behavioral disorders 768 Transition periods 770 Family issues 772 18_Semple_Chap18.indd 725 12/7/2012 3:52:11 PM CHAPTER 18 Learning disability 726 Introduction Patients with a learning disability (LD) have unique needs, suf \201 ciently dif- ferent from those of the general population as to require specialist psy- chiatric ser vices. The incidence of mental illness is approximately two to three times that of the gene ral population and illness often presents in a different manner. It is a complex subspecial ty, encompassing everything from molecular genetic diagnostic techniques to provision of ad equate social supports, and which requires an enquiring mind and a truly holistic approach to medicine. Psychiatrists in learning disability will be involved in the assessment and treatment of ac ute and chronic mental illness, challenging behavior, and pervasive developmental disorders , and will require a more detailed knowl- edge of how physical illness, epilepsy, sensory i mpairments, and environ- mental factors affect the presentation of mental disorders (see Bo x 18.1). While challenging, it can be a very rewarding specialty, where appropriate managem ent can dramatically improve quality of life for patients. The LD psychiatrist will work with children, adolescents, adults, the elderly and families, and carers in a variety of clinical settings, usually in col- laboration with a range of o ther professionals in a variety of disciplines: \200 