forensic psychiatry.pptx

III YR BSC NURSING

1. Mental H ealth Nursing UNIT :XIV Legal Issues in Mental Health Nursing TOPIC :FORENSIC PSYCHIATRY Prepared By: Mrs Bemina JA Assistant Professor ESIC College of Nursing Kalaburagi

2. It deals with the legal aspects of psychiatry. Law comes in contact with psychiatry at many points; for example, admission of a mentally ill person in a mental hospital, crime committed by a mentally ill person, validity of marriage, witness, will, consent, right to vote, and drug dependence. FORENSIC PSYCHIATRY

3. The various legal aspects of psychiatry are briefly discussed below: Criminal responsibility Civil responsibility CRIMINAL RESPONSIBILITY McNaughton Rules, Durham Rule, American Law Institute (ALI) Test

4. Though mentally abnormal offenders are only a small minority of all offenders the psychiatrist can play an important role by helping to identify, assess and manage them. The psychiatrist may be asked to give advice in relation to the following issues: Fitness to plead (Fitness to stand trial) Mental state at the time of offence, before and during trial and during imprisonment. Diminished criminal responsibility. The psychiatric management of offenders CRIMINAL RESPONSIBILITY

5. Daniel McNaughton was a 29 year old, son of a Glasgow wood-turner, a man of 'gloomy and reserved social habits' which included membership of religious groups and the Tory party. He decided to murder Sir Robert Peel, the Prime Minister. He made elaborate plans and travelled to London, but in fact mistakenly shot and killed Edward Drummond, Peel's private secretary, in daylight in front of numerous witnesses on 20th January,1843. During the trial, McNaughton himself admitted that "they have accused me of crimes of which I am not guilty, they do everything to harass and prosecute me, in fact they wish to murder me. I was driven to desperation by persecution". McNaughton knew what he was doing and was aware that he was committing a criminal act but felt compelled to do so, an act he performed with cool deliberation. Psychiatrists were called and it was accepted: That his delusions were real. That the act was committed under a delusion. McNaughton was found "not guiltily on the grounds of insanity". He himself was sent to Bethlehem and later Broadmoor asylum where he died in 1865 THE MCNAUGHTON RULES

6. In McNaughton's case the Lord Chancellor put to a panel of His Majesty's Judges five questions designed to clarify the legal position. Their replies given on 19th June 1843, constitute the so- called 'McNaughton rules'. The following contain the main points of the McNaughton's rules:  Every man is to be presumed to be sane, until the contrary be proved.  An insane person is punishable, if he knew at the time of committing such a crime that he was acting contrary to law.

7. To establish a defense on the ground of insanity, it must be clearly proved that at the time of the committing of the act, the accused was suffering under such 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". Finally it is the jury's role to decide whether the defendant was insane. The 'rules' stressed the importance of the defendant's notion of understandability of right and wrong. So a mentally ill person is not protected ipso facto. He must satisfy the above mentioned rule. A mentally retarded person (called ‘idiot’ in law) is not considered liable under Indian criminal law

8. The Law generally classifies criminal lunatics into three classes: An Under-trial Who Cannot Stand Trial Because Of Mental Illness; Guilty But Insane; And Criminals Who Later Become Mentally Ill. A Class II ‘criminal lunatic’ is acquitted under the law but is detained in a mental hospital (asylum) for further treatment.   The McNaughton Rule is used in a slightly modified form in many countries even now. In India, Section 84 of the Indian Penal Code (Act 45 of 1860) states that “nothing is an offense, which is done by a person, who at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law”.

9.  "An accused person is not criminally responsible, if his unlawful act is the product of mental disease or mental defect". In this, the causal connection between the mental abnormality and the alleged crime should be established. This rule is also known as "Product Rule". DURHAM RULE (1954)

10. “A person is not responsible for criminal conduct if at the time of such conduct, as a result of mental disease or defect he lacks adequate capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the Law”. The ALI Test is similar to the combination of the McNaughton rule and the Irresistible Impulse Test. This rule excludes psychopaths. This popular test is now used by all courts in the USA. AMERICAN LAW INSTITUTE (ALI) TEST

11. CIVIL RESPONSIBILITY Marriage , Adoption , Testamentary Capacity, Vote , Witness , Contract , Transfer of Properties There is usually a presumption in the favour of sanity and the contrary must be proved. This applies both to the civil and criminal proceedings in the court of law.

12. MARRIAGE The Hindu Marriage Act (Act 25 of 1955) provides for conditions for a Hindu marriage under Section 5. One of the conditions, i.e. Section 5 (ii) introduced by Act 68 of 1976, states that ‘at the time of the marriage, neither party, I s incapable of giving a valid consent... (due to)... unsoundness of mind; or T hough capable of giving consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or H as been subject to recurrent attacks of insanity or epilepsy’. Any marriage solemnized in the contravention to this condition shall be voidable and may be annulled by a decree of nullity under Section 12 of the Act. Another ground of nullity under the same section is the fact that the consent for marriage was obtained by ‘fraud’...‘as to any material fact or circumstance concerning the respondent’, for example, the fact of mental illness or treatment for the same.

13. Divorce can be granted under Section 13 of the Act on a petition presented by either spouse on the ground that the other party ‘has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent’ (Section 13 (iii) inserted by Act 68 of 1976). Here, the term mental disorder means ‘mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia’. The term Psychopathic disorder means ‘a persistent disorder or disability of mind (whether or not including sub normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment’.

14. Under the dissolution of Muslim Marriages Act 1939, a woman married under Muslim law is entitled to obtain a decree for the dissolution of marriage on the ground of her husband being insane for a period of 2 years. The husband under the Muslim law has the power to pronounce divorce ( talak ) at anytime, anywhere, and without assigning any reason. Any married person may be granted divorce, under the Parsi Marriage and Divorce Act 1936, on the ground that the other party had been of unsound mind at the time of marriage (and the petitioner was ignorant of the fact) and has been habitually so till the date of petition, which should be within 3 years of the date of marriage.

15. ADOPTION Under the Hindu Adoptions and Maintenance Act (Act 78 of 1956), any Hindu male ‘who is of sound mind and is not a minor’ can adopt a child, with the consent of his wife unless ‘...(she) has been declared by a court...to be of unsound mind’ (Section 7). Similarly, any Hindu female ‘who is of sound mind’, is not a minor, and is not married, can adopt a child. If she is married, ‘then her husband is dead, or has renounced the world, or ceased to be a Hindu, or has been declared by a court to be of unsound mind’ (Section 8). In addition, the person capable of giving in adoption of a child should be of sound mind.

16. WITNESS Under the Indian Evidence Act 1872, a ‘lunatic’ is not competent to give evidence if he is prevented by virtue of his ‘lunacy’ from understanding the questions put to him and giving rational answers to them (Section 118). However, such a person can give evidence during a lucid interval on discretion of the judge (and the jury).

17. TESTAMENTARY CAPACITY Testamentary disposition is regulated by the Indian Succession Act (Act 39 of 1925). Some of the salient points regarding testamentary disposition are as follows: A will must be in writing, though it need not be registered. It must be signed by testator in the presence of at least two witnesses. A legatee cannot attest a will. An executor(s) is appointed under the will by the testator to carry out its terms after his death. A will can be revoked or modified any time before the death of the testator. A will comes into effect after the death of the testator. It is said to speak from grave and to be ‘ambulatory’. The testator must be of a ‘sound and disposing mind’. Section 59 of the Act states that ‘every person of sound mind, not being a minor, may dispose of his property by will’of this section states that ‘no person can make a will while he is in such a state of mind, whether arising from intoxication or from illnesses or from any other cause, that he does not know what he is doing’.

18. If a medical practitioner is called to examine a testator as to his fitness to make a valid will, the following points must be kept in mind: Testamentary capacity consists of: A n understanding of the nature of the will, A knowledge of the property to be disposed of, and A n ability to recognize those who may have justifiable claims on his property. The testator should be tested on the above mentioned points by thorough questioning. If the testator is seriously ill, he must be made to read out aloud the will in the presence of the doctor.

19. A will is invalid if it is executed under undue influence of any other person. If there is reason to suspect that such is the case, the testator should be questioned when he is alone. A will is invalid under the following conditions (for example): Imbecility arising from advanced age or by excessive drinking. Insane delusions making the testator incapable of rational views and judgement . Deaf, dumb or blind persons who are not thereby incapacitated for making a will and are able to know what they do by it. L ucid intervals. I f testator commits suicide immediately after making the will, in the absence of evidence of mental disorder. P resence of delusions not affecting in any way the disposal of the property or the persons affected by the will. A will may be declared invalid if the testator disposes his property in a way which he would not have done under normal conditions.  

20. TRANSFER OF PROPERTY Under the Transfer of Property Act 1882 (Section 7), only persons competent to contract, are authorised to transfer property. CONTRACT Under the Indian Contract Act 1872 (Section 11), every person to be competent to contract must be a major and of sound mind. A person is said to be of sound mind for the purposes of a contract, if at the time of making a contract he is capable of under standing it and of forming a rational judgment as to its effect upon his interests.

21. DRIVING It is important that advice be given regarding driving if there is likelihood that driving can be impaired by the nature of illness, prescribed medication and / or misuse of alcohol or drugs. VOTE A person of unsound mind cannot contest for elections or exercise the privilege of voting.

22. In conclusion, nursing practice must confirm to pre-set legal standards and continuously reorient itself to the ever evolving legal standards. It is only the motivated and capable nurse who can incorporate legal knowledge while dispensing patient care, and it is to her that many patients will turn for information and care. C onclusion