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WHAT IS LAW?
Law is generally a system of rules which are enforced through social
institutions to govern behavior. There is no universally accepted definition of
Human being is a civilized social animal.
Civilization came with certain requirements one of which is regulation of
behavior for security, peaceful coexistence and maintenance of some order in
Law and governance came into picture to fulfill this requirement.
Health was desired for happiness and well-being and that could happen
through prevention and treatment of diseases. Medicine was invented to fulfill
The mental component of health has been there in medicine since ancient times
and the specialty of Psychiatry developed gradually in the course of time.
WHAT IS FORENSIC PSYCHIATRY?
Subspecialty of psychiatry which deals with the application of psychiatric
knowledge to legal issues (Psychiatry in law) and application of legal knowledge
to psychiatric issues (law in psychiatry)
Law can be divided into 2 branches –
Criminal law – Defines certain acts as offences against the state and in doing so makes them
punishable. Enforced by, or on behalf of the state
Civil law – Actions are brought by individuals to establish their rights against another person, and
not by the state.
Psychiatry in criminal law.
Psychiatry in civil law.
Law and psychiatric problems of children.
Law in relation to organ transplantation.
Certification in psychiatry.
Indian laws relating to disability.
Psychiatrist as expert witness.
Ethics and law.
Human rights and privileges of mentally ill persons.
Law in psychiatry.
Corpus Juris Civilis – Insane person is compos mentis non est (does not have control of his
mind or non-compos mentis)
Henry de Bracton – 1265, devised “wild beast test” Crime is not committed unless a will to
harm is present, and intent is lacking in children and mad men.
1349 – Giovanni was exculpated on grounds of insanity
Constitutio Criminalis Carolina – Published in Germany in 1532, recognized that homicide
was not punishable if offender was deprived of his understanding.
1553 – Fitz-Herbert
17th century – Sir Matthew Hale – Understanding pertained to what is right and wrong
(test). Recognised insanity could be partial or limited. Allowed for 2 verdicts –
1. Not guilty
2. Committed the act but was non-compos mentis
Paulus Zacchias, the personal physician of the Pope in 17th century declared that
physicians should have competence in pathological mental states called amentias.
Regarded as father of Forensic psychiatry.
First important case with regard to criminal responsibility came in 1800 (Hadfield case)
James Hadfield or Hatfield (1771/1772 – 23 January 1841) attempted
to assassinate George III of the United Kingdom in 1800 but was acquitted of attempted
murder by reason of insanity.
Hadfield's early years are unknown but he was severely injured at the Battle of
Tourcoing in 1794. Before being captured by the French, he was struck eight times on the
head with a sabre
On the evening of 15 May 1800, at the Theatre Royal, Drury Lane, during the playing of
the national anthem, Hadfield fired a pistol at the King standing in the royal box but
missed. Hadfield was tried for high treason and was defended by Thomas Erskine
The Criminal Lunatics Act 1800 (39 & 40 Geo 3 c 94) was an Act of the Parliament of Great
Britain that required and established a set procedure for the indefinite detention
of mentally ill offenders. It was passed through the House of Commons in direct reaction
to the trial of James Hadfield, who attempted to assassinate King George III
Hadfield had developed a bizarre delusion that God was going to destroy the world and
the only way to prevent it was to sacrifice his own life.
The verdict of not guilty was secured.
Scottish woodturner who assassinated English civil servant Edward Drummond while
suffering from paranoid delusions.
On the afternoon of 20 January 1843 the Prime Minister's private secretary, civil servant
Edward Drummond, was walking towards Downing Street from Charing Cross when
M'Naghten approached him from behind, drew a pistol and fired at point-blank range
into his back.
M'Naghten appeared at Bow Street magistrates' court the morning after the assassination
attempt. He made a brief statement in which he described how persecution by the Tories
had driven him to act: The Tories in my native city have compelled me to do this. They
follow, persecute me wherever I go, and have entirely destroyed my peace of mind... It
can be proved by evidence. That is all I have to say
Both defense and prosecution agreed that M'Naghten suffered from delusions of
persecution. The prosecution argued that in spite of his "partial insanity" he was a
responsible agent, capable of distinguishing right from wrong, and conscious that he was
committing a crime.
The verdict in M'Naghten's trial provoked an outcry in the press and Parliament. Queen
Victoria, who had been the target of assassination attempts, wrote to the prime minister
expressing her concern at the verdict, and the House of Lords revived an ancient right to
put questions to judges.
Five questions relating to crimes committed by individuals with delusions were put to the
12 judges of the Court of Common Pleas. Mr Justice Maule declined to answer and Chief
Justice Tindal delivered the unanimous answers of the other 11 to the House of Lords on 19
June 1843. The answer to one of the questions became enshrined in law as
the M'Naghten Rules and stated:
To establish a defence on the ground of insanity it must be clearly proved, that, at the time of
committing the act, the party accused was labouring under such a 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 that what he was doing was wrong.
‘ACTUS NON FACIT REUM, NISI MENS SIT REA’
(An act does not make a person guilty unless his mind is guilty).
INDIAN PENAL CODE (ACT 45 OF 1860, IPC):
Nothing is an offence 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.
If there is a CRIMINAL TRIAL, the legal matter is between the State and a person who can be
Situations of significance in relation to psychiatry in criminal law:
Criminal responsibility for serious crimes (e.g. murder): IPC(Act 45 of 1860; IPC); ‘Partial
insanity’: Section 84, IPC; Section 335 CPC; Intoxication (forced or without knowledge):
Sections 85 and 86 IPC. Competency to stand trial and subsequent procedure: Act 2 of 1974:
Consent: Section 90 IPC, Section 89 IPC
Suicide: Section 309 IPC, Section 84 IPC.
Unnatural sex offences-IPC, Section 377.
Paraphilias- e.g. exhibitionism -IPC Section 294
Affrays- Disturbances caused by fighting etc. in public places- IPC, Section 159.
Misconduct in public while drunk-IPC, Section 510.
Situations of significance in relation to psychiatry in civil law:
Contract - It’s validity. Indian contract act (act 9 of 1872).
Marriage - Nullity, restitution of conjugal rights, judicial separation, divorce. Special
marriage act, 1954 (applicable to all irrespective of religion), different marriage and
divorce acts for different religions: Hindu, Muslim, Parsi, Christian; Family courts act,
1984; Domestic violence act, 2005.
Testamentary capacity: Indian succession act,1925; Hindu Succession Act(amendment
2005); Muslim Personal Laws; Indian Registration Act1908; Various state amendments of
Hindu Succession act.
Adoption: Hindu Adoption and Maintenance Act(Act 78 of 1956).
Right to vote and stand for election: Act 326 and act 102 of constitution of India.
Witness: Indian evidence act, 1872.
Torts: Common legal principles are applied.
Civil proceedings: Regarding civil suits, guardianships etc.
Driving: Road traffic act and driving license act of India.
Rights of Children clearly mentioned in Convention on the same by General
Assembly of United Nations, Resolution 44/25 of 20 November 1989.
Relevant Indian Laws:
The persons with disabilities(equal opportunities, protection of rights and full
participation) act, 1995. Provides for prevention and detection of disabilities,
education, employment, non-discrimination, research and manpower
development, affirmative action, social security and grievance redress of people
Juvenile justice (care and protection of children) act, 2000. Enacted by the
parliament for to provide for the care, protection, development, rehabilitation
and social integration of delinquent juveniles and for the adjudication of certain
matters relating to, and disposition of, delinquent juveniles.
The national trust for the welfare of persons with autism, cerebral palsy, mental
retardation and multiple disabilities act, 1999.
Transplantation of human organs act, 1994.
Transplantation of human organs rules, 1995.
Transplantation of human organs (amendment) act, 2011.
Transplantation of human organs and tissues rules, 2013.
The acts and rules make it mandatory for every proposed live voluntary
donor to undergo psychiatric evaluation by a psychiatrist appointed by
authorization committees at hospital, district and state levels. The
authorization committee has to mention reasons for approval/rejection of
application of every voluntary donor in a prescribed form. One of the
conditions mentioned for approval is:
‘psychiatric clearance is mandatory to certify the applicant’s mental
condition, awareness, absence of any overt or latent psychiatric disease and
ability to give free consent.’
Medical certificate for Involuntary Hospitalization.
Certificate for invalidation from service (Unfitness).
Mental fitness certificate.
Certificate for leave and fitness to resume duties.
Certification for mental illness for Government benefits.
Certification for disability.
Mental health act, 1987. Mentions provision for rehabilitation activities in psychiatric
hospitals and about licensing of convalescent homes for mentally ill persons.
Rehabilitation Council Act of India, 1992. Deals with development of manpower for
providing rehabilitation services. Handicapped in this act means a person who is visually
handicapped, hearing handicapped, suffering from locomotor disability or suffering from
Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation)
(PWD) Act, 1995. Came into force in 1995 with the purpose of providing equal rights to
disabled persons and to protect their rights and full participation. Seven conditions
recognized by this act: blindness, low vision, leprosy-cured person, hearing impairment,
locomotor disability, mental retardation, mental illness.
National Trust for welfare of persons with autism, cerebral palsy, mental retardation and
multiple disabilities act, 1999. Has provisions for legal guardianship.
Disability has been defined as any restriction or lack of ability to perform an activity
in the manner within the range considered normal for a human being. Disability can
be temporary or permanent and can be certified accordingly.
Disability assessment using IDEAS(Indian Disability Evaluation and Assessment
Scale) developed by the Rehabilitation Committee of Indian Psychiatric Society,
Items in IDEAS: self-care, interpersonal activities(social relationships),
communication and understanding, work.
It categorizes disabilities from no disability to profound disability. It can be used
for evaluation of four mental illnesses: schizophrenia, bipolar disorder, OCD,
Disability assessment schedule (WHO-DAS, 1988) is a well validated but
research oriented instrument for assessment of disability.
ASSESSMENT OF DISABILITY IN PERSONS WITH MENTAL
RETARDATION (ADPMR) :
Developed for assessment of disability in mentally retarded children.
Items-Perceptual motor, self-care, communication and social, academic,
Categorizes disability from no disability to profound disability.
For the purposes of welfare benefit, cut-off of disability is 40%.
Indian Evidence Act, 1872: Common witness, Expert witness.
Psychiatrist in Court-as a common witness, as a professional witness, as an
expert witness, as a defendant.
Expert witness may be summoned by: Prosecution, defense, judge or
Non-testifying expert versus testifying expert.
Summons is issued by Registrar of the Court to appear as witness.
Attending Court is mandatory except in rare specific circumstances.
Courts rely on oral evidence by the witness and documental evidence.
Preparation of testimony.
Appearance in court - to assist Court in dispensation of justice.
Order of examination of witness: Examination in chief, cross examination
by opposing lawyer, re-examination by first party.
Court verdict is not bound by expert’s testimony.
Expert witness is liable for negligence and perjury.
There is a presumption in favor of sanity and the contrary has to be proved
to the satisfaction of the court.
There is a presumption of continuity of sanity as well as insanity. The
return of soundness of mind, as well as lucid interval, must be proved to
the satisfaction of the court.
The word ethics is derived from the Greek term ethikos, which stands for rules of conduct
that govern natural disposition in human beings.
Encyclopedia Britannica defines ethics as systematic study of the ultimate problems of
human conduct. These ultimate problems are concerned with the concepts of right and
wrong, morality and similar other issues. Ethics usually represents a system of internal
control and is usually voluntary.
In contrast, law represents a mechanism for external control and it’s enforced by the
state. Ethics is guided by moral principles whereas law is guided by reality principles.
They supplement and complement each other.
Medical ethics is as old as the art of healing itself and the earliest code of medical ethics
was formed by Hippocrates in 5th century BC.
Psychiatric ethics is rather of a recent origin. The APA appointed a committee to develop
a code of ethics. Subsequently , in 1977, the WPA developed a code of ethics which is
known as the ‘DECLARATION OF HAWAII’. IPS adopted its ethical code in 1985.
Main objectives of professional ethics are as under:
To provide guidelines of conduct among the professionals themselves. It includes area like
referral from one therapist to another, giving comments on the opinion of another
professional, and charging consultation fee from coprofessionals and their families.
To formulate guidelines in dealing with patients, their relatives and third parties. The
areas to which these guidelines relate are mainly the following:
Voluntary and involuntary treatment and hospitalization.
Respect for the patient and his human rights.
Third party responsibility.
A committee comprising of Professors J S Neki, D N Nandi, P K Agarwal, V N Vahia and J
K Trivedi was requested to prepare the recommendations for a code of ethics for
psychiatrists in India. The draft recommendations prepared by the committee were
approved by IPS at its annual conference held at Cuttack, Orissa in1989. It has
mentioned principles and recommendations.
RECOMMENDATIONS proposed that ethical committees may be formed at
central and zonal levels. These are supposed to consider complaints either
from the public or from fellow professionals and then carefully investigate
The term human rights in a broad sense means “those claims which every individual
has or should have upon the society in which he/she lives.”
According to Richard Wasserstorm, it means it ought to be claimed as entitlements –
those minimal things without which it is impossible to develop one’s capabilities and
to live life as a human being.
First human rights legal resolutions: Declaration of Human Rights, 1948. It did not
specifically address rights of the mentally ill.
Later resolutions: Declaration on the Rights of Mentally Retarded Persons,1979 and
Declaration on the Rights of the Disabled Persons, 1975; began the process of
establishment of minimum international standards for the treatment of persons with
Right to health in constitution of India: Mentally ill have fundamental/ human right
to receive mental health care and to humane living conditions in the mental
Declaration of Hawaii, 1992 by the General Assembly of World Psychiatric
Association also talks about rights of the mentally ill.
MAJOR HUMAN RIGHTS STANDARDS APPLICABLE TO MENTAL HEALTH:
UN Principles for the protection of persons with mental illness and the improvement
of mental health care, 1991.
Standard rules on the equalization of opportunities for persons with disabilities
(Standard Rules, 1993).
WHO TECHNICAL STANDARDS:
In 1996, WHO developed the Mental Health Care Law: Ten Basic Principles and the
Guidelines for Promotion of Human Rights of Persons with Mental Disorders, which is a
tool to help understand and interpret the principles mentioned by it and to evaluate
human rights conditions in institutions.
TEN BASIC PRINCIPLES:
Promotion of mental health and prevention of mental disorders.
Access to basic mental health care.
Mental health assessments in accordance with internationally accepted principles.
Provision of least restrictive type of mental health care.
Right to be assisted in the exercise of self-determination.
Availability of review procedure.
Automatic period review mechanism Qualified decision maker.
Respect to the rule of law.
IMPORTANT RIGHTS OF THE MENTALLY ILL:
Access to information.
Rights when admitted in mental health facilities.
Voluntary and involuntary mental health care.
Rights during emergency situations.
Rights related to special treatment.
Rights related to competence, capacity and guardianship.
Rights related to seclusion and restraint.
Rights related to clinical and experimental research.
Indian Lunacy Act, Act 4 of 1912.
Mental Health Act , 1987.
Central Mental Health Authority Rules, 1990.
State Mental Health Rules, 1990.
State Mental Health (Amendment) Rules, 2007.
Mental Health Care Bill, 2013.
Narcotic Drugs and Psychotropic Substances Act, Act 61 of 1985 as
amended up to Act 2 of 1989.
Narcotic Drugs and Psychotropic Substances Rules,1985.
Narcotic Drugs and Psychotropic Substances (Execution of bond by convicts
or addicts) Rules, 1985.
Prevention of illicit traffic in Narcotic and Psychotropic Substances Act, Act
46 of 1988.
Consumer protection act, 1986.
Textbook of postgraduate psychiatry, second edition.
Editors: J N Vyas, Niraj Ahuja. JAYPEE Publications,
Forensic psychiatry: Clinical Practice Guidelines for
Psychiatrists in India. Editors: Prof. Shiv Gautam, Prof.
Ajit Avasthi. Published by Indian Psychiatric Society,
Dr. Nambi, for article on legal aspects of psychiatry in
IPS publication for young psychiatrists.