Daily Times

Forensic psychiatry is a sub-speciality of psychiatry and is related to criminology. It encompasses the interface between law and psychiatry.

There are two major areas of criminal evaluations in forensic psychiatry: competency to stand trial and mental state at the time of committing an offense.

CST is the competency evaluation to determine that a defendant has the mental capacity to understand the charges, object and consequences of proceedings or assist his attorney.

MSO gives the court opinion, as to whether a defendant was able to understand what he or she was going to do at the time of committing the offence.

In the Pakistani legal system, competency to stand trial is called capacity to defend and mental state at the time of committing an offense is called criminal responsibility. The test for capacity to defend is not laid out in the Pakistani law as it is in Europe and North America’s legal systems.

Forensic psychiatrists work with courts to evaluate an individual’s competency to stand trial; criminal responsibility of an accused; defences based on mental disorders (e.g. the insanity defence) and sentencing recommendations.

Forensic psychiatrists are often called as expert witnesses in both criminal and civil proceedings. Expert witnesses give their opinion about a specific issue and often have to prepare a detailed report before testifying. The primary duty of the expert witness is to provide an independent opinion to the court on forensic psychiatric issues. An expert witness is allowed to testify in court with respect to matters of opinion only when the matters in question are not ordinarily understandable to the judge or jury.

Mental abnormality affects the criminal liability of an accused person to varying degrees

The legislation on forensic psychiatry in Pakistan exists in various general thematic codes and exclusive acts. Forensic psychiatry is not extensively practised in Pakistan as it is practised in most Western and European countries. The law relating to mentally ill people, until 2001, was set out by the Lunacy Act of 1912, which was superseded in 2001 with Mental Health Ordinance 2001. The Mental Health Ordinance 2001 was a federal law in the form of a presidential order and set out to amend the law relating to the treatment and care of mentally disordered persons, to make better provision for their care, treatment, management of properties and affairs and to encourage community care and further to provide for promotion of mental health and prevention of mental disorder. However, in April 2010 with the 18th Amendment to the Constitution and devolution of health responsibilities to the provincial governments, it became the task of the provinces to pass appropriate mental health legislation through their respective assemblies. Currently, the mental health legislative picture is fragmented and unsatisfactory. Only the provinces of Sindh and the Punjab have a Mental Health Act in place. There is an urgent need for similar legislative frameworks in other provinces to protect the rights of those with mental illness.

The Criminal Procedure Code 1898 (CrPC) sets out the rules that govern criminal procedure in every court in Pakistan. Part VIII, Chapter XXXIV of CrPC describes the procedure of conducting a trial or enquiry, in the case of a lunatic accused. Section 465 of CrPC provides that if an accused during the trial before a Court of Session or a High Court appears to the Court to be of unsound mind and consequently incapable of making his defence, the court shall in the first instance, try the fact of such unsoundness and incapacity, and if the court is satisfied with the fact, it shall record a finding to that effect and shall postpone further proceedings in the case. The trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the court and evaluation of the mental state of the accused from a medical board attended by a forensic psychiatrist besides others is essential for a just decision of the case.

Section 466 of CrPC provides a procedure for release of a lunatic accused in non-bailable offences during pending investigation or trial. The magistrate or court may release such a person on sufficient security being given that he shall be properly taken care of and shall be prevented from doing injury to himself or to any other person, and for his appearance when required before the magistrate or court or any other officer. If the case is one in which, in the opinion of the magistrate or court, bail should not be taken, or if sufficient security is not given, then the accused shall be detained in safe custody in such place and manner as magistrate or court may think fit and shall report the action taken to the provincial government.

The Pakistan Penal Code provides an exemption from criminal responsibility to the juvenile and people of unsound mind or lunatics. Provisions of Sections 82 and 83 of PPC show that a child below the age of 10 years is incapable of committing offence because he is incapable of forming or possessing necessary mensrea for an offence, whereas a child between age of 10 and 14 years can be capable of forming or possessing necessary mensrea for an offence, unless it is established that he has not attained sufficient maturity of understanding to judge of nature and consequences of his conduct.

Section 84 of PPC provides that nothing is an offence, which is done by a person who, at the time of committing an offence 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. A mentally ill person has no accomplice in the criminal act. Section 84 PPC is based upon the principle that an act is not criminal unless there is criminal intent. But, every person suffering from a mental disorder is not exempted from criminal responsibility. Where a person’s behaviour indicates that he knows and is capable of knowing the nature of the act done by him, such a person would not fall within the domain of Section 84.

Mental abnormality affects the criminal liability of an accused to varying degrees depending upon nature and severity of the mental abnormality. The Supreme Court of India declared in one of its judgments that once a person is found to be suffering from mental disorder or mental deficiency, which takes within its ambit hallucinations, dementia, loss of memory and self-control, at all relevant times by way of an appropriate documentary and oral evidence, the person concerned would be entitled to seek resort to the general exceptions from criminal liability.

A special law in the form of Juvenile Justice System Act 2018 provides a procedure for provision of forensic psychiatric services in cases of juveniles who have an immature understanding at the time of the commission of the offence. The law provides that investigation in cases of juveniles shall be completed through assistance from social welfare officer. The social welfare officer shall prepare a social investigation report to be annexed with the challan submitted by police in the court. The social investigation report describes the juvenile’s character, educational, social and moral background along with any evidence of the commission of the offence by juvenile and the possibility of sending the juvenile to Juvenile Rehabilitation Center or release on probation for his psychotherapy. The report shall also include all legal and appropriate assistance provided to the juvenile for his understanding, concept and consequences. JJSA 2018 also provides that if a juvenile before the court is suffering from serious physical or mental illness, the court shall send such a juvenile to a hospital or a medical institution where treatment shall be given to the juvenile at the expense of State.

Forensic psychiatry needs to develop in Pakistan by fully implementing the relevant laws, rules and making amendments in the existing laws to harmonise those with international forensic psychiatric standards. The police require more training in triaging detainees and offenders who may have a mental illness and police need to know how to divert mentally disordered offenders to psychiatric hospitals.

Prison staff and psychiatric profession in Pakistan must work together for the assessment and rehabilitation of mentally ill offenders in prisons. There is a need to conduct capacity-building training for police, judiciary, jail authorities and personnel of relevant departments on the issue of forensic psychiatry. The existing liaison between the legal and psychiatric profession needs to be enhanced. Therefore, it is the foremost responsibility of courts to exercise the provisions related to forensic psychiatry as mentioned in Mental Health Acts, CrPC, PPC and JJSA 2018 in cases of juveniles and insane or lunatic persons to determine the fact of ‘capacity to defend the case’ and ‘criminal responsibility of accused’ at the time of commission of offence.

The writer is an Islamabad-based advocate