" ever since the new penal system - that defined by the great codes of the eighteenth and nineteenth centuries- has been in operation , a general process has led judges to judge something other than crimes; They have been lead in their sentences to do something other than judge ; and the power of judging has been transferred , in part , to other authorities than the judges of the offence. The whole judicial process has taken on extra-judicial elements and personnel. Beneath the increasing leniency of punishment , then, one may map out a displacement of it's point of application ; and through this displacement, a whole new system of truth and a mass of roles hitherto unknown in the exercise of criminal justice, a corpus of knowledge , techniques , scientific discourses informed and becomes entangled with the practice of the power to punish. "
Further on he writes:" Today , criminal justice functions and justifies itself only by this perpetual reference to something other than itself , by this unceasing reinscription in non-judicial systems . Its fate is to be redefined by knowledge. "
He goes on to make reference to the shadows behind the judges and clearly he has misgivings about this dilution of judicial power. He specifically sees psychiatry as a threat to juridical power;
" Psychiatric expertise, but also in a more general way criminal anthropology and the repetitive discourse of criminology, find one of there precise functions here; by solemnly inscribing offences in the field of objects susceptible of scientific knowledge, they provide the mechanisms of legal punishment with a justifiable hold not only on offences, but on individuals; not on what they do, but also on what they are, will be, may be. The additional factor of the offender's soul , which the legal system has laid hold of , is only apparently explanatory and limitive, and is in fact expansionist. During the 150 or 200 years that Europe has been setting up its new penal systems, the Judges have gradually , by means of a process that goes back very far indeed, taken to judging something other than crimes , namely the 'soul ' of the criminal."
He seems to see psychiatrists as generally having little basic good and an exchange between Dr David Cooper (an anti-psychiatry psychiatrist) and Foucault is a good example of the evident distaste that Foucault has for psychiatry;
" Foucault ; We seem to be seeing two different functions - The medical function of psychiatry , on the one hand , and the strictly repressive function of the police , on the other- coming together at a given moment, in the system we're talking about . But in fact the two functions were only one from the outset. You must have read Castel's book on the birth of the psychiatric order; he shows very well how psychiatry, as it developed in the early nineteenth century was not at all localised in the asylum , with a medical function , and then became generalised and extended to the entire social body. right up to the confusion that we see today- somewhat discreet in France , but much more evident in the Soviet Union. But from the outset, psychiatry has had as its project to be a function of the social order. "
Further on the exchange was;
"D.C.: During the press conference given by Fainberg and Pliuch, I was very struck by Claude Bourdet's question to Victor Fainberg ; why do they use psychiatry in the Soviet Union? When they have the whole police and penitentiary apparatus , which is perfect in itself , and which could take charge of anybody, why use psychiatry ?
"Foucault : There's no answer, except perhaps , that the question is inappropriate. Because it always functioned like that.
"J-P. F.: It was always there...
"Foucault: It was already there,. Once again it is not a question of distortion of the use of psychiatry ; that was its fundamental project.
"D C: The movement in the 1930's toward depsychiatrization in the Soviet Union was reversed by Stalin. The legal prohibition of psychological tests - and lobotomy, around 1936- was then followed by resumption of it , though not as widespread as in the West."
The conversation goes on to discuss the use of psychiatry in Nazi Germany in "scientific euthanasia" , of psychoanalysts who were torture advisors in Argentina, the ideology of pain translating the language of psychiatry to the language of pain, and the fundamental project of psychiatry being "social hygiene " at any cost to the individual freedom and rights.
Many other anti-psychiatrists such as Thomas Szasz saw psychiatry as fundamentally flawed and in the Myth of Mental Illness he wrote; " The introduction of psychiatric considerations into the administration of the criminal law - for example, the insanity plea and verdict, diagnosis of mental incompetence to stand trial and so forth- corrupt the law and victimise the subject on whose behalf they are ostensibly employed."
So during the development of psychiatry voices have been raised expressing concern at its coercive nature and perhaps today it is even more so. A modern definition of the law displays this recognition when it defines law as;
Some psychiatrists do not see themselves as punitive and do not recognise the subtle and insidious effects that they are having perhaps not till long after they have seen the patient. An example of this was a woman who was diagnosed as " mildly schizophrenic " by a very eminent psychiatrist . In fact the woman at the time was 22 years old and passing through a troubled late adolescent crisis which appeared to be eased with Anatensol 1 mg per day for several months.Twenty years later the letter surfaced after she again had problems during the completion of her Degree which had been delayed to have several children . This had the effects of throwing doubt on her whole self and ability to do anything and generally labelled her. Her latter day psychiatrist managed to correct these effects. Had she been involved in a court case a Barrister would have had a meal with this labelling and it would have been quite Criminalising .
On March 31 1978 in the early hours of the morning in Sydney Australia, about three hundred people of Greek background and some of their medical attendants were forcibly detained and removed from their families, then taken to central police headquarters. They were herded into same small cell for many hours , referred to as "Greeks " or worse. The families suffered loss of face in the community ,had their social security benefits removed and had no food unless their families gave them some money but many families simply disowned them . At the police station they were interrogated, finger printed and photographed with the name tag around their neck with the word " Greek " under it. Of the hundreds of people detained 181 people were charged with conspiracy to defraud the commonwealth. The charges related to fraudulent claims for Social Security benefits in Australia.
It was strongly rumoured that these heavy handed and incompetent arrests were triggered off by a psychiatrist informing authorities that some of the people claiming Social Security benefits were not showing the medication in their urine that they were supposed to be taking and that there seemed to
be an excess of Australian Greeks involved in this. In fact no one bothered to enquire about the customs in Greece where it is the usual practice to get an agent to assist these, usually, very poorly educated people to deal with bureaucracy. This agent is paid by the people who he provides the service, however, in Australia we also get people to help in this way but call them Social Workers and they are paid by the Government.
Many of the people arrested commented that they had been treated better by the German Army during the occupation of Greece even when they were suspected of sabotage.
In some cases the commonwealth withdrew the conspiracy proceedings in January 1979 and preferred no other charges. Intermittently over the next three and a half years the conspiracy proceedings against the great majority of the defendants were withdrawn by the Commonwealth.
In January 1984 a Commission of Enquiry by Judge Dame Roma Mitchell, was established to decide compensation. No one was found guilty of anything eventually and the whole exercise cost the Australian tax payer many millions of dollars. The compensation was fixed under the following
|Personal injury||Injury to feelings||Restriction of liberty||Interference with property rights|
|Injury to reputation||Interference with domestic relationships||Economic loss|
Other medical specialties do not see themselves as this coercive although they have been seen as paternalistic by others especially the feminist movement. Compared with psychiatry however this is a lesser degree of paternalism , sometimes referred to as " soft paternalism ". Even here though there has been a move against this in society with the patients gaining better control of of their bodies and playing more prominent role in the medical decisions concerning their bodies. This is seen in Sidaway which involved questions of informed consent and Gillick involving questions about duty of care and there was the suggestion that there could be an exemption for social justification or tolerable risk and it could be that a medical assistant would suggest that this is applicable .
More recently Rogers v Whitaker decision has further eroded paternalism by ruling that in future the doctors will not be judged by a body of peers (Bolam Principle) but that the courts will decide what is reasonable. "Essentially , the High Court has thus indicated that the judiciary across Australia ( people who almost always have a background confined to law) from now on is regarding itself as being more competent in architecture then architects, in medicine than doctors , in engineering than engineers and so forth."
However I am putting forward the idea that criminalisation is more than mere paternalism in that it is distinctly more coercive and aggressive. In recent times the worst example has to be the use of the so called" Deep Sleep Therapy " at the Chelmsford Private Hospital which was finally brought to an end in 1979 after a meeting of other doctors which exerted peer pressure and caused nurses at the hospital and the financial backers to exert further pressure to cease this lethal treatment regime. This treatment resulted in the deaths of over 20 people directly and another 20 who died of complications or suicide soon after. " The Report of The Royal Commission Into Deep Sleep Therapy " conducted by Justice J P Slattery. Volume three describes in detail the incarceration of people in Chelmsford Private Hospital in Sydney Australia by psychiatrists and the imposition , without permission , of the drug induced toxic coma known as Deep Sleep Therapy ( DST ). It also covers the main issues and problems under the following headings;
|Infections||Cyanosis and respiratory problems||Incontinence and skin||Blood pressure||Thrombosis and embolism|
|Hallucinations||Pulse rate||Avoiding foot drop||Tube feeding||Cruelty|
|Weakness||Condition and position||Restraints||Absconding||Secrecy|
|Effects of drugs||Intellectual difficulties|
It must be pointed out that every one agrees that the Deep Sleep Doctors were competent as doctors but these DST doctors felt that this medically highly dangerous treatment was reasonable treatment even despite the deaths and even when confronted with a group of peers who strongly opposed it. They still held that it was reasonable to so incarcerate patients and treat them without permission. One could hardly get a more coercive attitude.
Like the Greek Conspiracy case the Deep Sleep Saga has been and is continuing to cost the community millions of dollars as compensation cases continue to tell the appalling horror that the the victims endured, most of whom have been getting almost maximum amounts from the Victims Compensation Tribunal and many will go onto common law claims. Many of the claims revolve around brain damage and the effects of prolonged toxic coma.The damage to Psychiatry's reputation can never be really estimated except to say there have been very severe . Fundamental changes and rather excessive checks and balances have been introduced , in Sydney, to the practice of both Psychiatry and medicine as a whole following the release of the findings of the Royal Commission into Deep Sleep Therapy.
Much of the problem that led to these situations was a certain apathy within psychiatry and perhaps ignorance of the Criminalising effects psychiatrists have. Similar apathy and a numbing effect that the South African Regime had on the doctors there who allowed Steve Biko to be tortured to death with the collusion of the three doctors involved who said after examining him that he was malingering . In South Africa a commission of enquiry said in relation to this matter;
" Failures in the doctors judgement were the result of complex influences including the effects of their own social conditioning, the risk of habituation of the state doctors to degrading conditions, the inroads that apartheid has made to medical practice , the possibility of reprisals if state doctors oppose the wishes of the police ". There was also criticism of the medical organisations for not giving better leadership to doctors to help them to combat hierarchical pressures .
An issue that can often lead to the criminalisation of the mentally ill or even those not mentally ill is when they are labelled by a psychiatrist as " dangerous". There is the widely held belief that mental illness predisposes to violent and dangerous behaviour , and that violent and dangerous behaviour is indicative of mental illness. Dangerousness is a difficult concept which is ill defined, emotional, open to abuse , easily attached and difficult to remove. It has been suggested that maybe the person who give the direction that a person is dangerous is the more dangerous !
Prediction of dangerousness is very difficult and generally it is felt that mental health professionals over predict dangerousness and that prolonged incarceration is not required for most offender patients. Various methods have been suggested to predict dangerousness and but it seems to come down to subjective assessment and past behaviour predicting future behaviour. The Butler Committee (1975) in recognising the limitations of objective assessment , wondered whether it would be better to rely on the continuing process of management and subjective forms of assessment in which checks on adjustment could constantly be made in the light of the developing pattern shown by the individual concerned.
They also made four recommendations about mentally abnormal offenders. Firstly that a new sentence be introduced for those considered by psychiatrists and others dangerous. Secondly it only apply to serious offences and that they get compulsory treatment if needed . Fourthly that the parole board review these prisoners every two years. It was recognised that the assessment would need to be done by recognised psychiatrists.
Nevertheless there can be few other more Criminalising actions by a psychiatrist than to inform society that a particular person is dangerous thus setting in progress the whole sequence of labelling that a person finds so difficult to rid themselves of. There has been criticism of the use of labels to criminals such as psychopathy, sociopath and antisocial personality disorder which do not do anything to identify the problems these prisoner actually have or understand why they behave this way or help treat them in the long run. It has been suggested by Thomas Szasz that "mental illness is a myth which obscures difficulties located in social relations "
This is somewhat of an overstatement but there is an element of truth in it in that once a psychiatric label is attached to a person they may tend to behave in this expected manner especially if in a prison. Sharyn L Roach Anleu felt that;" the labelling theorist's main contribution to the study of mental illness is the analysis of the variability of the process of definition and the consequences of being identified as mentally ill. On the other side, mental illness does not involve real symptoms requiring medical treatment, which has become more apparent with the deinstitutionalisation of mental health facilities in most Western societies "
This is a rather naive assertion as there may be a reduction in symptoms when there is the halo effect brought to bear on these patients by deinstitutionalisation but their illness is still present. Once again there is an element of truth is this assertion and the labelling of someone as mentally ill is a significant step in the way society views them and will affect the forces that cause a person to be criminalised.
This bring us to the area of forensic psychiatry which is the most coercive sub-specialty within psychiatry. It would seem however that most people professing to be involved in this area have faced the conflicts that occur between their roles as regards coerciveness and social control and how this conflicts with their role as a member of a nurturing and caring profession. Certainly some compromise is required and exactly where this balance ends up has a lot to do with the persons own attitudes and psychological equanimity and the training they have had. The influence of psychiatrists can be quite pronounced and a court case will often hinge on psychiatric evidence. The qualifications of the expert are often not well tested especially in countries where there is no formal training for forensic psychiatrists or accreditation . In December 1993 the Federal courts in US changed rule 26 concerning expert witnesses in order to reveal
"all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and the listing of any other cases in which the witness has testified as an expert at trial or by deposition with in the preceding four years"
This is then available to go to argument in court about the witnesses credibility and is the legal answer to the question of qualifications as well as the guns for hire problem. Another problem area is that court procedure and the rules of evidence are often side-stepped by using experts to introduce evidence that would normally be inadmissible and prejudicial. Yet another problem is that the adversarial system is at odds with the training such experts may have been given and this can distort the evidence. For example an expert witness may wilt under cross examination despite holding correct views thus doing his his evidence a gross disservice . Doctors are just not trained to be advocates.
Further problems are that the constitutional rights of the person may be eroded by an expert ; for example the right to silence . Evidence can be 'crafted' by an expert to fit the case that his side is putting either deliberately or unconsciously. When it comes to the mental defences there's the suggestion that a hidden agenda exists " in which the moral controversies underlying the ascription of responsibility and blame-worthiness are played out through the roles of experts ".
It is not hard to see examples of criminalisation occurring in courts as a result of the activities of psychiatrists. This year a situation occurred when a person who made threats against some doctors at a large hospital and as a result he was charged with assault . However this did not stand up in court and he was subsequently placed under the Mental Health Act and reviewed by the Mental Health Review Tribunal. There was a variation of opinion as to whether he was in fact suffering from any mental illness at all and whether he was dangerous . This man had never been violent and the matter was taken to the appeals court with psychiatrists testifying on both sides of the case. At least there was a supreme court order stopping him from being forced to have medication. The courts were quite shocked that the medication suggested was not going to affect his paranoia in all likelihood , if indeed he had this, and was capable of causing brain damage in the long run. The whole issue seems to have been that the Mental Health Act operates on a lower standard of proof than the criminal courts and thus he was easier to criminalise under this civil standard of proof. If a person is in fact a serious danger to society then the the legally problematic concept of preventative detention will have to be addressed. In the Gary David case in Victoria Australia the legal and political parts of society were forced to address this question. " Theory and consequent action needs to be based on knowledge ; facts cannot be conveniently be changed to conform to theory. An understanding of Gary David's mental state lies in the realm of the discipline of psychiatry. If the knowledge and the insights contributed by psychiatry are discomforting , it is pointless that the realities of that science should change.Fictions should be avoided . By the simple fiction of deeming David to be mentally ill community protection can be ensured and the claims of civil libertarians and the views of adherents of traditional legal theory accommodated. The experience of common law , however , is that the adoption of fictions ultimately give rise to new problems as the internal contradictions of the fiction become apparent. Difficult issues are best faced and faced squarely."
Here the law and society is having problems coming to terms with the Criminalising effects of psychiatry.
Another area where psychiatrists are prominent is in the discourse that has occurred around syndromes and their use in court. These can be quite Criminalising and one of the best examples is the Premenstrual Tension Syndrome (PTS) which has been criticised by feminists for its use in Diminished Responsibility instead of Self Defence. It is a questionable collection of symptoms which cover too diverse a grouping for scientific comfort and there is some doubt as to its aetiology. It does not fit into the widely held belief that it is " due to the hormones " and can occur at various stages in the menstrual cycle. Of course there could turn out to be some biological basis to it and could , for example end up being due to the rate of drop of hormones . However at present and despite numerous attempts there is no unitary aetiological explanation for the various physical and mental disturbances that occur. There have been doctors such as Dr K Dalton in UK who have given evidence which persuaded the English courts that this is a real and convincing condition that warranted a Diminished Responsibility verdict rather than any other even though in some, a provocation defence may well has sufficed. A feminist position is that; " it is theoretically incoherent to treat the legal questions of responsibility, guilt and proper punishment as reducible to any demonstration of biological state. Nothing of judicial relevance can be read off from evidence of the defendant's biological status as a sufferer from premenstrual tension, and there's every reason to resist the reductionism upon which the appeal to premenstrual tension depends. Second there is the consistency in the treatment of male and female defendants....... the general arguments against ' chivalry' are familiar and need no rehearsal here."
Psychiatrists may be asked to give evidence about the defendant's state of mind at the time of the offence and to expand on the reason behind this as regards to the PTS and how this would go to a more lenient treatment especially if there is a cyclical and recurrent story but in fact "cyclical recurrent behaviours are not inherently less reprehensible than others" and they may also be asked to comment of the propensity to crime by these women but again " exceptional propensity to crime is not constituted elsewhere as grounds for special lenience"
The fact that some of these women seem to responds to treatment with hormones is not relevant to culpability or prevention when considering past crimes and what punishment is due. Some might say well this is an example of decriminalisation, in that the Criminalising effects are lessened with psychiatric evidence but one has to remember that there is the question of whether self defence would have been even better and maintained the integrity of women. We all know that a barrister, quite rightly will use anything that is within the rules of evidence to put their case forward. The PMT syndrome also allows the offender to see their behaviour as not due to their free choice and consciously or not convince themselves that the problem is that she is at the mercy of her hormones as well as the issue of learned behaviour where she has learnt to blame her behaviour on her hormones to get the response from society that she wants. By raising a condition to the status of a syndrome although it appears to be scientific there is a deceptive element to it . Another example is the Post Traumatic Stress Disorder widely used at present in the courts to explain a multitude of behaviours especially in the civil courts. " The emerging area of victim's rights has been strengthened and paradoxically divided by PTSD. Yet the newly defined disorder of PTSD has not borne such a heavy forensic burden easily . Indeed the diagnosis poses for psychiatry some of the very problems it supposedly solves for legal purposes, including the illusory objectivity of the causative traumatic event and the expert's dependence upon the victim's subjective and unverifiable reports of symptomatology for the diagnosis ".
Thus it can be seen that there is still a lot of difficulty when a new syndrome appears and the acceptance of this entity.
Previously it was the analytical explanations that the courts swallowed with such unquestioning nativity from the mouths of psychiatrists. Although this has fallen into disrepute by all reasonable psychiatrists, there are still a few who pronounce upon it at the first opportunity. Prostitution , for example would be explained by psychiatrists in terms of excessive penis envy and the need to humiliate the male to keep some control and /or taking revenge for the castration that they perceive has occurred instead of the more realistic need for financial support of their children that criminologists have found to be the main motivation for this occupation. Thus the person is criminalised as an individual and seen to have little hope unless they undergo an analysis to rid themselves of this " medical condition " where as in reality the provision of practical support such as finance and emotional support is in fact what is needed. The usefulness of psychoanalysis in the development of psychiatry cannot be denied but it is its insidious and largely unrecognised function to label and criminalise any behaviour that it turned its mind to that was most objectionable as far as the law is concerned. This may not be seen very much today but it was only 10-20 years ago that to write such a statement would label the author as having some problems with authority figures that stemmed from early development and had to do with the failure to resolve the jealousy experienced in the Oedipus complex and the competition between the authors father and the author for the sexual attachment with the the mother, assuming that the author was a male and if a female then it would be the competition between the mother and the author for the father. The explanations were totally flexible and did not need proof.
These psychoanalytic concepts were accepted into our culture and the law almost without question to explain sex offenders , murder, assault, public disorder,drug offences etc. and psychiatrists were accepted as expert witnesses without much argument by the law.
So is the story all negative? No, psychiatry does have a role to play otherwise it would not still be in there and flourishing. It plays a part at all levels of the criminal justice system and is clearly a great help if used with care. One of the best examples is in the Mental Disability Defences where it can assist the court in coping with these difficult concepts and the handling these merciful excuses for crime. One outstanding problem that has to be overcome is the difference in the technical terms that exist between Psychiatry and the Law. It is for this reason that there is the need for an education across the two disciplines otherwise confusion reigns. There are other areas that are of concern.
Stone (1984) raised a number of issues about the intellectual and ethical boundaries of forensic psychiatry:"1. Does psychiatry have anything true to say the courts should listen to? (sic )
2. There is a risk that one will go too far and twist the rules of justice and fairness to help the patient.
3. There is the opposite risk, that one will deceive the patient in order to serve justice and fairness.
4. There is the danger that one will prostitute the profession as one is alternatively seduced by the power of the adversarial system and is assaulted by it.
5. there is the need for clear guidelines as to what is proper and ethical."
From this it can be appreciated that psychiatry is walking a very fine line and the personal standards of the person will play a significant role in where the psychiatrist places his or her feet. When the outcome is merely a matter of money as in most civil cases one sees a lessening of the ethical standards with hired guns being quite unethical and mercenary. In the criminal courts the use of the psychiatrist seems more controlled due to the due process being more thorough and the approach to defences such as Insanity, Automatism , Diminished Responsibility, Provocation and Infanticide being more ethically handled or perhaps the standards looked for in expert witnesses by the barristers are higher. In any case it seems the beliefs of the psychiatrists are more genuinely held and perhaps the psychiatrists chosen for these roles are selected for their integrity and demonstrated awareness for , and knowledge of, the law. Most of these psychiatrists are more likely to be aware of the delicate path between Criminalising and decriminalising the client /patient. However it is of some concern that in the lower courts some psychiatrists do not realise that they are on that path and lurch from one side to the other. It would seem logical that there is a need for accreditation of forensic psychiatrists to help overcome these deficiencies and included in this accreditation some study of the law should be required.