Forensic Psychiatry: An Emerging Phase of Law

    Forensic psychiatry is defined as an interface between psychiatry and law, where the flow of mental disorder offenders exist along with the continuum of social systems. With the emergence of offenders pleading defense on the grounds of mental disorders, the need arises to have an in-depth analysis to ensure that justice prevails.

    History of Forensic Psychiatry 

    Lord Venkateshwara Temple, Tamil Nadu during the Chola Period had traces of inscriptions on its pillars referring to the hospitals and schools, some of which were for the people suffering from mental illness. Then, in 1750 A.D. in British India, the first asylum for lunatics was built in Bombay. 

    Later in 1954 on the recommendation of the Bhore Committee, an institute was set up to ensure mental health named All India Institute Mental Health later named National Institute of Mental Health And Neurosciences (1974).

    Legislative Background of Forensic Psychiatry

    Sooner, Britishers realized the need for laws that would govern the people who are suffering from mental health. In 1858, three laws were formulated namely the Lunatic (Supreme Court) Act, Lunatic (District Court) Act, and the Indian Lunatic Asylum Act. Further, in 1877 the Military Lunatics Act was passed. These acts revolved around the basic notion of incarceration of the people suffering from mental illness until they are cured, which was generally never. To amend and rectify such errors, the Indian Lunacy Act, 1912 was passed, but still, not much emphasis was laid on the issues stated above. 

    The legislative authorities felt the need for serious amendments in laws relating to individuals suffering from mental health. In 1987, the Mental Health Act was passed with a progressive approach in improving and ensuring that the rights of people suffering from any mental illness are duly protected. The act ensured

    • Aim at removing offensive statements or terms used for such patients, 
    • Protect the rights of individuals who suffer from mental illness,
    • To build hospitals for such individuals,
    • To authorize Central and State authorities for implementation of the act.

    The Act did cater to certain essential points that were not available in the Indian Lunacy Act, 1912 but it failed to incorporate provisions relating to the needs and rehabilitation of the patients suffering from mental illness post-discharge. 

    The Mental Health Act, 1987 was then amended in 2017 to ensure that:

    • Ensures right to life
    • To live life with dignity
    • No discrimination based on sex, religion, caste, gender, race, etc.
    • Right to confidentiality of treatment
    • To decriminalize suicide
    • To formulate and design roles for patient security.

    Some Indian Acts that Relate to Mental Health 

    Some acts/laws that relate to mental health are as follows:

    Civil Laws

    • THE EVIDENCE ACT 1925

    Section 118 of the Evidence Act provides for the person eligible to testify. The section states that any person suffering from lunacy is incompetent to testify provided he/she can give rational answers to the questions raised to him/her.

    • LAW OF CONTRACT

    Various provisions are enshrined in the act that specifically excludes any person suffering from mental illness from entering into a contract. Section 6 states that a proposal is revoked if any party to such a proposal becomes mentally unfit.6  Section 11 and Section 12 of the act define a person competent to contract and the person who is mentally fit (of a sound mind) to be a party to contract respectively. 

    • RIGHT TO VOTE AND STAND FOR ELECTION ACT

    Article 326 excludes any person of unsound mind to contest elections for a representative of the House of the People or to the Legislative Assemblies of States.7  Further, Article 102 relates to the disqualification of membership if any person who is a member of either Lok Sabha or Rajya Sabha on the grounds of unsoundness of minds.8

    • INDIAN SUCCESSION ACT 1925

    Section 59 of the Act relates to testamentary succession. Any person who is not of a sound mind is excluded to make a will of the property. If any person who is sane at intervals can make a will provided he/she is sane while making such will.

    Criminal Laws

    • MENTALLY ILL PERSONS WHO COMMIT A CRIME

    Section 328 of the Criminal Procedure Code, states that any person who refers himself to be of unsound mind would be examined by a qualified surgeon/medical officer as per the orders of State Government. The medical officer or surgeon would then be a signatory witness to the examination of insanity.

    Section 329 of the Criminal Procedure Code, states the procedure by which a person of unsound mind should be tried in the court of justice.

    • DEFENSE OF INSANITY 

    Section 84 of the Indian Penal Code defines the act done by a person when in the state of unsound mind. The section states that, if a person at the time of committing the crime is of an unsound mind will not be held liable for such an offense.

    The M’naghten Rule implies that if any person at the time of committing an offense is unable to differentiate between right or wrong, or is unable to abide by the moral values due to the mental illness is termed ‘person of unsound mind’ hence, non-guilty of the offense so committed.

    • ATTEMPT TO COMMIT SUICIDE 

    Earlier, any person who attempts to commit the act of suicide was held liable for punishment specified under the Indian Penal Code. However, Section 115 of the Mental Health Act, 2017 led to redundancy of Section 309 of IPC.

    • RIGHT TO PRIVATE DEFENSE AGAINST AN INSANE PERSON

    Section 98 of the Indian Penal Code grants a right to private defense from any person who is of an unsound mind. The person who is of unsound mind is not guilty of an offense but the other person does have a right to private defense.

    Other Acts

    • DOMESTIC VIOLENCE ACT 2005

    The act ensures that mental health and torture come under the purview of Domestic Violence.9 The act also ensures that compensatory benefits are given to the victims of mental torture or emotional distress if any.10

    • PERSONS WITH DISABILITY ACT 2016:

    Mental illness is defined as one of the 21 disabilities under the Rights to Persons with Disability Act, 2016. The individuals who are considered ‘disable’ under the act are granted the right to protection from interference of law and the protection of personal data relating to health and rehabilitation.

    • JUVENILE JUSTICE ACT (CARE AND PROTECTION OF CHILDREN) ACT 2000, AMENDMENT ACT 2006:

    The act aims to lay a focus on the developmental needs of the children and ensure a friendly approach in adjudication and rehabilitation processes.

    • NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT (NDPSA) 1985 (AMENDED 1988)

    Section 35 of the Act specifically includes the presumption of a culpable state of mind. The essence of this provision is that the burden of proof lies on the person charged for the prosecution to provide shreds of evidence to the court to believe the ‘culpable mental health.’ Culpable mental health includes actus reus, knowledge of the fact, and the reasons to believe the person accused. The court if beyond reasonable doubt believes the person accused, finds him/her non-guilty of the offense.

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    Role of Forensic Psychiatrist 

    The individuals of the 21st century find loopholes very easily the same is the case in the defense of mental disorders or insanity. To determine that no one falsely claims such defense, the need and role of forensic psychiatry come into play. These forensic psychiatrists ensure that they work very closely with the legal system to ensure that the defendants facing trials get expert recommendations for their mental illness. The psychiatrists give a testimonial in the court after ensuring that the criminal facing trial is a patient of such illness and not using dense tactics to save him/her from the trial or punishments.

    Forensic Psychiatry vs Forensic Psychology 

    Forensic Psychology is practiced by the professionals who first qualify to be psychologists and then do specialization in the field of forensic psychiatry whereas Forensic Psychiatrists first study and then qualify in the stream of medicines and then after the professional pieces of training qualify as the psychiatrist having a forensic specialty.

    Evaluation by Forensic Psychiatrists 

    The forensic psychiatrist ensures that they do a close evaluation of the defendant on the following grounds:

    • Emotional Injury 
    • Defense of Insanity
    • Mentally Ill but Guilty
    • Evaluation of Sex offenders
    • Competency to make Confession in front of courts.

    Further, such patients  generally classified into two types:

    • AXIS 1 (DSM-IV): This relates to any psychosis or personality disorder amongst the patients.
    • AXIS 2 (DSM-IV): This relates to any diagnosis of alcohol and/or any illicit addiction to drugs.

    Need for Forensic Psychiatry 

    The need for forensic psychiatry based on the following main principles: 

    1. To ensure that any person who under a mental disorder or illness committed a crime, he/she must get treatment to ensure that it acts in the best interest of both individuals and society at large.
    2. The imprisonment worsens the mental health of the offender that would lead to unnecessary suffering. Forensic psychiatrists could be of assistance in the same by utilizing their skills to treat the offenders rather than keeping them in the criminal justice system.
    3. This will improve the medico-legal education explaining the relationship of mental health (illness) and the criminal intent of the offender.
    4. To ensure that legal tests for proving mental illness define legal insanity.
    5. In general, this will help change the general public attitude and mindsets relating to mental illness. 

    References

    1. Article 21, Fundamental Rights, The Constitution of India, 1950
    2. Ibid.
    3. Article 15, Fundamental Rights, The Constitution of India, 1950
    4. Article 21, Right to Privacy, Fundamental Rights, The Constitution of India, 1950  
    5. Section 115, Mental Health Care Act, 2017 (Section 309 of Indian Penal Code 1860 now redundant)
    6. Section 6(4), Indian Contract Act, 1872
    7. Article 326,Constitution of India, 1950
    8. Article 102,Constitution of India, 1950
    9. Section 3(a) & (d), Domestic Violence Act, 2005
    10. Section 22, Domestic Violence Act, 2005

    BY KHUSHBOO GARG | UNIVERSITY INSTITUTE OF LAW, REGIONAL CENTER, LUDHIANA

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