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Forensic Psychiatry In South Africa

South African law is an amalgam of Roman Dutch law, common law, judicial precedent and legislation. Although psychiatric opinion is relatively commonly used in South African courts there are fewer than five full time forensic psychiatrists. Our case law is replete with decisions that contain surprising conclusions based on the idiosyncratic testimony of an unopposed expert witness. South Africa has no jury system, and judges alone decide cases (they may have assistance from two assessors in serious cases).

Most initial assessments in criminal cases are by state employed psychiatrists who regard themselves to be impartial court witnesses. It is uncommon for state psychiatrists to be opposed by a defendant's hired expert. Civil litigation generally pits hired gun experts against each other.

A law commission has been established to review mental health legislation. Unfortunately they have appointed no forensic psychiatrist as a consultant, although many have made submissions. There is general recognition that mental health law has to be reviewed, not only because it is outdated (and that the overall transformation of South African society demands it) but that human rights abuses are occurring within its operation. There is no registration requirement (yet) for forensic psychiatry or psychology. Any generalist can do forensic work (however badly) with impunity. The lack of formal peer review and CME requirements compound this problem.

It is apposite to note that the Mental Health Act of 1973 resulted from the findings of a judicial commission that was set up in the wake of Verwoed's assassination (who was the then prime minister and one of the chief architects of apartheid) by a paranoid schizophrenic in 1966. The death of apartheid now urges us to reconsider our management of psychiatric patients.

CRIMINAL LAW

Section 79(2) of the Criminal Procedure Act of 1977 provides for referral of a defendant for a 30-day psychiatric observation at a state psychiatric hospital. The primary enquiry is directed at establishing the presence of mental illness (which they vaguely define in the Mental Health Act of 1973 as a disability or disease of the mind', i.e., the courts entrust its definition to the attending psychiatrists), or mental disability (which practically encompasses mental retardation and dementia). Section 77 requires that the defendant be tested for fitness to stand trial' (competence), and section 78 directs that the assessment consider whether the mental illness or disability interferes with the defendant's appreciation of wrongfulness, or his ability to act in accordance with such an appreciation. It is an interesting anomaly in that the question of criminal responsibility is assumed to be juridical (in that only the court can decide this) but the Act requires psychiatrists to comment on this.

Criminal responsibility depends on mens rea (guilty mind), which our jurists have not adequately defined. However, pathological and nonpathological incapacity can abrogate mens rea. Pathological incapacity derives from an inherent condition, such as mental illness, epileptic seizures etc. Nonpathological incapacity is loosely conceptualized as a circumstance which is not due to an internal disorder. Originally it was applied to enable children less than seven years of age (and those between seven and 14 years relatively) to escape criminal responsibility (culpa incapax). Over recent years (in some persuasive precedents)it has expanded to include alcohol intoxication and provocation (which has itself been broadened to include emotional turmoil). Section 79(2) defines psychiatric observations which determine whether pathological incapacity due to mental illness or defect operates.

If a defendant is not competent to stand trial and /or lacks criminal responsibility the charges are withdrawn and he is referred to a state psychiatric hospital for indefinite hospitalization under section 28 of the Mental Health Act (whereupon he becomes known as a 'state patient'). Discharge depends on a lengthy process whereby the Attorney-General has to be petitioned to allow his discharge to proceed. If the original charge was nonviolent then the Attorney-General generally advises the hospital that the hospital board (which sits quarterly) can effect discharge. If the original charge is deemed to have been violent then reports have to be obtained from a social worker (to investigate the patient's social circumstance and to determine if he will be adequately cared for and controlled by family), the attending psychiatrist, a medical officer familiar with the patient and the superintendent of the hospital. These reports are then submitted via the Attorney-General for consideration by a judge in chambers. The Attorney-General retains the discretion not to pass the application onto the judge. On occasion the documents have been returned to the hospital with a cursory note advising the forensic unit that the Attorney-General does not agree with their opinion that the patient is ready for discharge. It is often overlooked that none of these defendants has been tried and convicted of the original charge, yet the discharge procedure assumes that he is indeed guilty and has to treated like a dangerous felon. A judge in chambers will generally issue an order for the conditional discharge (usually for two years) of the state patient. A breach of the discharge conditions can result in readmission and rescind of the discharge. In practice hospitals generally readmit relapsed state patients as voluntary patients, and discharge them when well.

The referral for observation can follow minor offences. It has been relatively common for psychotic patients to be charged with possession of cannabis or loitering, referred for observation, and then certified as a state patient. If their social circumstances prove to be abject, convincing even the hospital board to discharge them has been difficult. Recently the courts have agreed to admit such defendants/patients under civil commitment procedures.

The court decides nonpathological incapacity (of criminal responsibility). It has not been definitely decided whether they require that expert testimony support this defense although experts almost invariably are introduced. There has been a spate of cases over the last 12 years of defendants who provide an account of preceding (and progressively worsening) stress, usually from a conflictual or abusive relationship, which culminates in a provocation that causes them to enter an altered state which robs them of the ability to appreciate wrongfulness or act in such accordance. Psychiatrists for the defense have described their clients as suffering from a 'disintegration of the ego', 'rage reaction' etc. which has convinced the courts. Unfortunately when they raise this defense the burden of proof shifts to the prosecution. In South Africa there is no law of discovery which has meant that the defense, and their expert witness, have often taken the prosecution by surprise. The defense of nonpathological incapacity, when raised successfully, results in acquittal, even though there is some realization that similar circumstances in the future may provoke a similar response from the defendant. Many psychiatrists would have little difficulty in conceptualizing the contributory causes of nonpathological incapacity as due to inherent disorder (such as personality factors, dissociative disorder etc.), and would prefer this defense to be regarded also as a not guilty by reason of insanity.

There are no advocates for a guilty but insane finding by our courts. It has become a standard assumption that mental illness (or defect) causes such cognitive deficits that they must grossly impair an appreciation of wrongfulness and ability to act accordingly. Arguing that a psychotic defendant can nevertheless pass the tests of competence and responsibility has met with little success, especially in the lower magistrates courts.


CIVIL COMMITMENT (INVOLUNTARY HOSPITALIZATION)

The Mental Health Act of 1973 provides for the commitment of mentally ill individuals to state psychiatric hospitals. This process is accomplished either as an urgent procedure (section 12) or electively (section 9). A family member has to apply to a local magistrate. Two formal applications by medical practitioners accompany the application, in which it is stated that the person is mentally ill, and a danger to others, or to himself, or refuses needed treatment (this latter provision is an interpretation that implies the first two requirements). If the application is made by a person other than a family member then that applicant has to state why he/she is making the application. A psychiatrist or physician working in the receiving institution may not be involved in this application. The reception order allows for the involuntary admission into a psychiatric hospital for an initial period of 42 days. During the first 7-10 days of the admission the attending psychiatrist (usually a resident ) has to issue a certificate either agreeing or disagreeing with the certification. All the documentation is then forwarded to a judge in chambers who then issues an order (section 19) which can confirm indefinite (involuntary) hospitalization, or order the discharge. Although the judge may request that the parties make further depositions, this does not occur in practice. Discharge from a section 19 order is at the attending psychiatrist's discretion. Certification confers the right to detain and treat the patient.

Urgent certification (under section 12) can be achieved by a family member and a medical practitioner (who must have examined the patient within two days of the issue of the certificate). The requirements are as for section 9 committal except that circumstances demand immediate hospitalization. A psychiatrist at the admitting institution can certify patients under this provision. If a voluntary patient threatens to discharge himself/herself then the attending psychiatrist is then able to certify the patient urgently. Following admission under this section 2 district surgeons (general practitioners usually with only rudimentary knowledge of psychiatry) are required to assess the patient while in hospital and issue certificates under section 9 (i.e., they then follow the elective procedure, which can culminate in a section 19 order). If no further steps are undertaken after admission, the patient can nevertheless be detained in the hospital for 10 days. The hospital superintendent may apply for an extension of this period to 21 days.

Psychiatric hospitals serve large geographic areas. Valkenberg hospital received patients from areas that can be 500 miles from the institution. Most towns and rural areas do not have psychiatrists practicing within a radius of 200 miles, and assessments are made by general practitioners who usually guess at a psychiatric diagnosis. Intoxicated individuals are not uncommonly labeled schizophrenic, sedated and referred by ambulance to a psychiatric hospital 500 miles from home.


CIVIL LITIGATION

Many psychiatrists and psychologists have lucrative practices devoted to custody assessments, insurance claims (usually head injury sequelae, depression as a cause of permanent disability, etc.), and testamentary capacity. Unfortunately there is no coherent body of law that has developed as a general guide. Most cases are decided ad hoc, and many often have only one expert testifying, whose testimony (because it is unopposed) has to be accepted however idiosyncratically derived.


There is no peer review system for experts, and no requirement that any engage in CME. Relying on ancient texts to substantiate their claims in court is not unusual for so-called experts.

Current issues that have only recently been introduced into our courts include the rights of unmarried fathers, and spouse abuse (legislation that allows for indictment for marital rape was passed two years ago ). Expert witnesses will no doubt be involved.


With thanks to:


Sean Z Kaliski FCPsych(SA)
Dept of Psychiatry,
University of Cape Town
Forensic unit, Valkenberg Hospital
Private Bag X1, Observatory, Cape Town 7935
South Africa
If you want to post a similar page about your country, please e-mail James F. Hooper, M.D.