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Classification for Control in Jails and Prisons
View Preview. Learn more Check out. Citing Literature. Volume 5 , Issue 1 March Pages Related Information. Close Figure Viewer. Browse All Figures Return to Figure. Previous Figure Next Figure. Email or Customer ID. However, by providing a compendium based on a review of the pertinent clinical and research literature, DSM-5 may facilitate the legal decision maker's understanding of the relevant characteristics of mental disorders.
According to Allan, 37 when asked to give a diagnosis in legal settings practitioners should be mindful of the tentative nature of psychiatric diagnoses and that courts require that such a diagnosis must have scientific credibility. South African courts have not been explicit on how they determine the credibility of scientific evidence. Vorster 38 argues that Allan appears to overstate the tentative status of psychiatric diagnostic categories by giving little weight to the large body of systematic research on which these diagnostic categories are based.
Allan makes the point that the diagnosis must be generally accepted by other experts in the field. His comments, although valuable, are less pertinent to the South African context where the situation is quite different. In South African courts there are usually no experts available other than the one giving the evidence.
Allan concedes in his article that the DSM contains disorders that are controversial. According to Vorster, the converse can also be stated; for example, that psychiatric disorders that may be pertinent are not included. Peer review and publication should be included. In South African courts these are frequently accepted with the presentation of a single source of reference discouraged. Fortunately case law is vital and the system of precedence is always followed. Allan fails to refer to the importance of this procedure. However, he makes the important point that making a psychiatric diagnosis is only the beginning of the task of a forensic psychiatrist.
Vorster further states that if forensic diagnoses and assessments are to be reliable and credible, it is essential that forensic psychiatrists and not interfering relatives or legal representatives be in control of the psychiatric examination. Stevens refers to Sales and Shuman, who state that whereas diagnosis in clinical settings is an evolving phenomenon that the clinician can modify as therapy proceeds, a forensic assessment in most instances is a snapshot described on the witness stand. Finally, although the questions sought to be answered in clinical settings are defined by the clinician and the patient, the questions raised in the forensic setting are defined by the law without regard to their grounding in constructs that respond to clinical or scientific knowledge.
Since the defence of insanity in South Africa has been governed by statute. Burchell 42 argues that this approach can severely prejudice an accused who has a defence to the charge or where the State has a weak case against him or her. The Criminal Matters Amendment Act 43 addresses this problem.
Section 3 b of this Act provides that the court may order that such evidence be placed before the court so as to determine whether or not the accused committed the act. This enquiry can be initiated by the prosecution, the defence, or the court of its own accord. The court usually relies on medical evidence and must be satisfied that there is a reasonable suspicion that the accused lacks the capacity to appreciate the nature of the trial proceedings or to conduct a proper defence.
If the defence of insanity is raised, the test to determine the accused's criminal responsibility must be applied. This test is set out in section 78 1 of the Crimnnal Procedure Act.
Risk-need-responsivity model for offender assessment and rehabilitation
Section 78 1 reads as follows:. A person who commits an act which constitutes an offence and who at the time of such commission suffers from a mental illness or mental defect which makes him incapable -. It is clear from the content of section 78 1 that the words "an act which constitutes an offence" do not refer to an offence for which the accused is liable, but only to an act which corresponds to the definitional elements of the relevant crime. It is important to note that since the decision of the court depends on the facts and the medical evidence of each case, Rumpff JA stated in S v Mahl'nza 46 that it is impossible and dangerous to attempt to lay down any general symptom by which a mental illness could be recognised as a mental "disease" or "defect".
Therefore, for the purposes of the insanity defence in South Africa there is no formal definition of mental illness. However, the court held in S v Stellmacher 47 that in order to constitute a mental illness or defect it must at least consist in: "[A] pathological disturbance of the accused's mental capacity and not a mere temporary mental confusion which is not attributable to a mental abnormality but rather to external stimuli such as alcohol, drugs or provocation.
He was acquitted on the basis of his lack of intention due to his level of intoxication. The court, however, accepted that there were degrees of intoxication and depending on the extent to which an individual was intoxicated, his or her intoxication could impair either his or her intention, criminal capacity or the voluntariness of the conduct. Due to tremendous criticism with regard to Chretien's being acquitted due to a lack of intention, the legislature enacted a special offence in the Criminal Law Amendment Act 1 of that made it a criminal offence when the level of the accused's intoxication was such that he or she lacked capacity.
Furthermore, every person is presumed not to suffer from a mental illness or mental defect so as not to be criminally responsible in terms of section 78 1 until the contrary is proved on a balance of probabilities. In terms of section 78 2 , if it is alleged at criminal proceedings that the accused is by reason of mental illness or mental defect or for any other reason not criminally responsible for the offence charged, or if it appears to the court at criminal proceedings that the accused might for such a reason not be so responsible, the court must in the case of an allegation or appearance of mental illness or mental defect, and may, in any other case, direct that the matter be enquired into and be reported on in accordance with the provisions of section In the case of S v Kavin, 51 Kavin was charged on three counts of murder.
He took a gun one evening and shot his wife and two children.
When his sister asked him what was going on, he replied that it was only a car backfiring. His defence was one of insanity. An inquiry in terms of section 78 of the Criminal Procedure Act was held. Kavin suffered from severe reactive depression super-imposed on a type of personality disorder displaying immature and unreflective behaviour. In the opinion of Dr Shubitz and Dr Garb it produced a state of dissociation. Both these psychiatrists as well as Prof Bodemer agreed that Kavin could not act in accordance with an appreciation of the unlawfulness of his act.
They based their opinion on the basis of progressive depression. He was therefore not regarded as being criminally responsible for the acts in question. He was thereafter admitted into a psychiatric clinic in terms of section 78 6 of the Criminal Procedure Act.
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In terms of section 79 of the Criminal Procedure Act, the court can refer an accused at any stage of the trial for a psychiatric or psychological assessment of his or her mental state with reference to either section 77 or 78 of the Criminal Procedure Act. The Act distinguishes between offences that involve serious violence and those that are non-violent. Effectively the court must appoint a panel of two or three psychiatrists if the alleged offence involved serious violence. The court has the discretion to appoint a clinical psychologist as well.
The court may, for the purposes of the relevant enquiry, commit the accused to a psychiatric hospital or to any other place designated by the court for such periods not exceeding thirty days at a time as the court may from time to time determine, and where an accused is in custody when so committed, he or she shall, while so committed, be deemed to be in the lawful custody of the person or the authority in whose custody he or she was at the time of such committal. According to Kaliski, 55 it is important to note that the critical first stage in any assessment is to determine whether the accused is suffering from a mental illness or whether there are other psychological or psychiatric factors that are associated with the terms of referral.
The Criminal Procedure Act requires that mental illness or defect must be present before the question of whether the accused is fit to stand trial or criminally responsible can be examined. However, the courts will demand a variety of deeper insights into the accused and his or her behaviour. Consequently, it is good practice to conduct complete clinical examinations and to learn how to anticipate the court's requirements.
With reference to S v Van As, 56 the role of the expert witness is not to take over or replace the function or duties of the court. The court has to debate and decide on every fact. This contribution has sought to provide an overview of some clinical aspects of psychiatry as well as an explanation of its functioning in forensic settings. It has further included discussion with regard to the classification and diagnosis of mental illness in clinical and forensic settings and provided an explanation of the concept of mental illness, which served as a background for the discussion on the defence of mental illness.
It is clear from the discussion above that psychiatrists work to develop a valid and reliable body of scientific knowledge based on research.
They apply that knowledge to human behaviour in a variety of contexts. In doing so they perform many roles, such as researcher, educator, diagnostician, therapist, supervisor, social interventionist and expert witness. Their goal is to broaden the knowledge of behaviour and, where appropriate, to apply it pragmatically to improve the condition of both the individual and society.
They further strive to help mentally ill persons in developing informed judgments and choices about their treatment and behaviour. Psychiatrists are also important role players in the legal environment. As explained by Allan in view of the tentative nature of psychiatric and psychological disorders, it is imperative that practitioners remind themselves and legal practitioners that diagnostic constructs should be used with caution in legal settings, preferably only if the diagnosis satisfies the legal perception of scientific credibility.
Even then a diagnosis should be given only if the required diagnostic criteria are present. A competent witness should also have data on the other indicators of scientific credibility that may also be relevant, depending on the specific issues contested in the case. However, he makes the important point that making a psychiatric diagnosis is only the beginning of the task of a forensic psychiatrist.
Vorster further states that if forensic diagnoses and assessments are to be reliable and credible, it is essential that forensic psychiatrists and not interfering relatives or legal representatives be in control of the psychiatric examination. Stevens refers to Sales and Shuman, who state that whereas diagnosis in clinical settings is an evolving phenomenon that the clinician can modify as therapy proceeds, a forensic assessment in most instances is a snapshot described on the witness stand.
Finally, although the questions sought to be answered in clinical settings are defined by the clinician and the patient, the questions raised in the forensic setting are defined by the law without regard to their grounding in constructs that respond to clinical or scientific knowledge. Since the defence of insanity in South Africa has been governed by statute. Burchell 42 argues that this approach can severely prejudice an accused who has a defence to the charge or where the State has a weak case against him or her.
The Criminal Matters Amendment Act 43 addresses this problem.
Related correctional psychology deals with the diagnosis and classification of offenders
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