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Abstract
Within the context of South African criminal law, the defence of pathological criminal incapacity, or more commonly referred to as the insanity defence, is well established. Whenever the insanity defence is invoked, the Criminal Procedure Act 1977 (‘CPA’) provides that an accused shall be referred for observation at a mental institution. Such observation will essentially be conducted by three forensic psychiatrists and one clinical psychologist. Within this context various ethical issues come into play. One of the primary issues relates to the confidentiality of statements made by an accused during such observation. In terms of section 79(7) of the CPA, statements made by an accused during the enquiry into his or her criminal incapacity may be admissible during the subsequent trial, provided that they are relevant to the assessment and determination of the accused's mental state. The latter section necessarily raises various ethical and constitutional concerns. The focus of this article is on the ethical dilemma of confidentiality within the context of mental capacity proceedings. Dual relationships, bias and ‘hired gun’ experts are also discussed canvassed against the backdrop of the defence of pathological criminal incapacity. Recommendations for possible reform are provided in conjunction with a proposed ethical code of conduct for mental health professionals conducting forensic assessments during the course of mental capacity proceedings.
Disclosure Statement
No potential conflict of interest was reported by the author.
Notes
1. T Berger, as quoted in RG Meyer, ER Landis and JR Hays, Law for the Psychotherapist (W.W. Norton and Co., 1988) 220.
2. Hereinafter referred to as the ‘CPA’. CR Snyman, Criminal Law (6th edn, LexisNexis, South Africa 2014) 164–75; CR Snyman, Strafreg (6th edn, LexisNexis, South Africa 2012) 167–84; J Burchell and J Milton, Principles of Criminal Law (3rd edn, Juta, South Africa 2005) 348–60; SZ Kaliski, Psycholegal Assessment in South Africa (OUP, South Africa 2006) 93–110, 237–49; C Tredoux et al, Psychology and Law (Juta, South Africa 2005) 384–410; SA Strauss, Doctor, Patient and the Law: A Selection of Practical Issues (3rd edn, Van Schaik, South Africa 1991) 121–35; Du Toit et al, Commentary on the Criminal Procedure Act (Juta, Durbanville, South Africa 2012) 13–1–13–30; AA Landman and WJ Landman, A Practitioner's Guide to the Mental Health Care Act (Juta 2014) 143–68; PHJ Van Rensburg, J Verschoor and JL Snyman, ‘Psigiatriese en juridiese aspekte van die begrip geestesongesteldheid’ (1983) 8 Juridical Sciences 162–71; FFW Van Oosten, ‘The Insanity Defence: Its Place and Role in the Criminal Law’ (1990) 3 South African Journal of Criminal Justice 1–9; J Plomp, ‘Die psigiater en die vasstelling van toerekeningsvatbaarheid’ (1983) 8 Journal of Juridical Sciences 154–61.
3. Landman and Landman (n 2) 153; Du Toit et al (n 2) 13–31.
4. Section 78(1) of the Act reads as follows: ‘78 Mental illness or mental defect and criminal responsibility: (1) A person who commits an act or makes an omission which constitutes an offence and who at the time of such commission or omission suffers from a mental illness or mental defect which makes him or her incapable – (a) of appreciating the wrongfulness of his or her act or omission; or (b) of acting in accordance with an appreciation of the wrongfulness of his or her act or omission, shall not be criminally responsible for such act or omission’.
5. Snyman (n 2) 170; Burchell and Milton (n 2) 373; Van Oosten (n 2) 1–9; Du Toit et al (n 2) 13–18.
6. Snyman (n 2) 171.
7. Snyman (n 2) 171.
8. Snyman (n 2) 172; Burchell and Milton (n 2) 377.
9. Snyman (n 2) 173; Burchell and Milton (n 2) 380–81; Du Toit et al (n 2) 13–14. See also Landman and Landman (n 2) 143–66.
10. Snyman (n 2) 173; Burchell and Milton (n 2) 381.
11. See, for example, S v Kavin 1978 2 SA 371 (W); S v Mcbride 1979 4 SA 313 (W).
12. R Slovenko, ‘The Meaning of Mental Illness in Criminal Responsibility’ (1984) 5 The Journal of Legal Medicine 1–4.
13. Section 79(7) of the CPA.
14. Section 14(d) of the Constitution of the Republic of South Africa, 1996. Hereinafter referred to as the ‘Constitution’.
15. S v Forbes and Another 1970 (2) SA 594 (C). See also Du Toit et al (n 2) 13–30.
16. At [595] H–I.
17. At [596] D.
18. At [599] A–C.
19. At [599] A–C.
20. At [600] A–B.
21. At [599] A.
22. 1971 (2) SA 340 (T). See specifically 341 C–D.
23. 1971 (2) SA 340 (T).
24. At [341] E–G.
25. At [341] H–342 F.
26. At [342] F–G.
27. See T Zabow, ‘Psycho-Legal Assessment in South Africa’ in Kaliski (n 2) 342–55; PA Carstens and D Pearmain, Foundational Principles of South African Medical Law (LexisNexis 2007) 943–52; LH Strassburger, TG Gutheil and A Brodsky, ‘On Wearing Two Hats: Role Conflict in Serving as Both Psychotherapist and Expert Witness’ (1997) American Journal of Psychiatry 451; See also R Slovenko, Psychotherapy, Confidentiality and Privileged Communication (C.C. Thomas 1966) 18–20, 53–92; RI Simon, Clinical Psychiatry and the Law (American Psychiatric Press 1987) 132–61. Section 14 of the Constitution as stated in chapters 2 and 3 provides that everyone has the right to privacy, which includes the right not to have the privacy of their communications infringed. It is further interesting to note that the ethical guidelines of the HPCSA pertaining to ‘Confidentiality: Protecting and Providing Information’ 30 May 2007 provides that a practitioner may only divulge information regarding patients amongst others if it is done in terms of statutory provisions; at the instruction of the court; in the public interest; or with the express consent of the patient. The guidelines further provide that patients have the right to expect that information regarding them will be held in confidence by health care practitioners (4.1).
28. T Zabow and S Kaliski, ‘Ethical Considerations’ in Kaliski (n 2). It is notable that the Promotion of Access to Information Act 2 of 2000 defines ‘personal information’ as: ‘information about an identifiable individual, including, but not limited to – (a) information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the individual’. It is further stated in section 7 of the Act that the provisions of the Act do not apply to records required for criminal or civil proceedings after the commencement of the proceedings. Section 7 provides as follows: ‘(1) This Act does not apply to a record of a public body or a private body if – (a) that record is requested for the purpose of criminal or civil proceedings; (b) so requested after the commencement of such criminal or civil proceedings, as the case may be; and (c) the production of or access to that record for the purpose referred to in paragraph (a) is provided for in any other law. (2) Any record obtained in a manner that contravenes subsection (1) is not admissible as evidence in the criminal or civil proceedings referred to in that subsection unless the exclusion of such record by the court in question would, in its opinion, be detrimental to the interests of justice’. Accordingly, within a criminal proceeding where the defence of criminal incapacity is raised, the Promotion of Access to Information Act, 2000 will not apply in respect of records requested provided that the proceedings have commenced.
29. Zabow and Kaliski (n 28) 374. See also R Slovenko, Psychotherapy and Confidentiality: Testimonial Privileged Communication, Breach of Confidentiality and Reporting Duties (C.C. Thomas 1998) 154–55 where he states: ‘In the case of a defendant who asserts a defense of insanity … the prevailing law is that he cannot claim possible self-incrimination with respect to psychiatric evidence, be it by a treating or examining psychiatrist.… By pleading and offering evidence of insanity, the accused puts his mental state in issue, and thus waives any psychotherapist-patient privilege; his medical or psychiatric history is open to the prosecution’; DL Shapiro, Forensic Psychological Assessment: An Integrative Approach (Allyn and Bacon 1991) 202–203; TG Gutheil, ‘Psychiatric Expert Witnesses in the New Millennium’ (2006) Psychiatric Clin North America 829–30; GH Gudjonsson and LRC Howard, Forensic Psychology: A Guide to Practice (Routledge 1998) 48.
30. Zabow and Kaliski (n 28) 374. See also T Zabow, ‘Forensic Psychiatry’ in MA Dada and DJ McQuoid-Mason (eds), Introduction to Medico-Legal Practice (LexisNexis 2001) 111.
31. See S Kaliski, A Allan and L Meintjies-Van der Walt, ‘Writing a Psycholegal Report’ in Kaliski (n 2) 339. It is interesting to note that Regulation 41(1) of the General Regulations made by the Minister of Health Care Act 17 of 2002 states that when a person is referred to a health establishment by a court of law in terms of section 79 of the CPA for observation, he or she must be informed that a report will be compiled and submitted to the court by a mental health professional and that he or she is under no obligation to disclose information. See Du Toit et al (n 2) 13–30.
32. Slovenko, Psychotherapy and Confidentiality (n 29) 537.
33. A Allan and L Meintjies-Van der Walt, ‘Expert Evidence’ in Kaliski (n 2) 353; A Memon, A Vrij and R Bull, Psychology and Law: Truthfulness, Accuracy and Credibility (Wiley 2003) 178; L Meintjies-Van der Walt, ‘Expert Evidence and the Right to a Fair Trial: A Comparative Perspective’ (2001) South African Journal of Human Rights 134–36.
34. BL Diamond, ‘The Psychiatric Expert Witness: Honest Advocate or “Hired Gun”?’ in R Rosner and R Weinstock (eds), Ethical Practice in Psychiatry and the Law (Springer 1990) 76–77. See also HC Weinstein, ‘The Impartial Expert: Myth or Reality’ in Rosner and Weinstock (eds) 117–28; R Slovenko, ‘The Role of the (Psychiatric) Expert in the Judicial Process’ in Rosner and Weinstock (eds) 85–105 specifically at 86 where it is noted: ‘Quite often, lawyers crudely accuse their opponents of “buying” experts, and call them “hired guns”. Actually there is nothing unethical about hiring those with favorable opinions, as long as the lawyers do not ask the expert to fabricate or falsify’. See also R Slovenko, ‘The Lawyer and the Forensic Expert: Boundaries of Ethical Practice’ (1987) Behavioral Sciences and Law 119.
35. Allan and Meintjies-Van der Walt (n 33) 353–54.
36. Meintjies-Van der Walt (n 33) 136. See also A Wolmarans, ‘Die sielkundige as deskundige getuie in strafsake’ (Unpublished LLM dissertation, University of Johannesburg 1986) 7–18 and 62, where it is noted that some motivating or causal factors towards biased experts are the fact that the expert would not be in the witness box if he or she did not support their side's view; the instructions received could have been one-sided or incomplete; the expert's own preparations could have been superficial; the nature of the legal process often renders it impossible to provide a scientific and objective opinion; the atmosphere in court is often unsound and distressing; inadequate knowledge can often lead to unconscious bias.
37. Allan and Meintjies-Van der Walt (n 33) 354; Meintjies-Van der Walt (n 33) 136. See also Memon, Vrij and Bull (n 33) 178 where it is noted that during a survey conducted pertaining to the effectiveness of expert testimony, it was revealed that experts who were highly paid for their testimony were viewed by jurors as ‘hired guns’ and were held less credible and effective. The moderately paid expert from a less well-known institution was deemed as someone who was testifying merely as a result of his expertise in a particular area. See also MS Gutmacher, The Role of Psychiatry in Law (C.C. Thomas 1968) 87–91.
38. Diamond (n 34) 81–83.
39. Diamond (n 34) 83.
40. Diamond (n 34) 84.
41. Zabow and Kaliski (n 28) 361. See also the ‘Rules of Conduct Pertaining Specifically to the Profession of Psychology’ as contained in the ‘Ethical Rules of Conduct for Practitioners Registered under the Health Professions Act’ 1974 GNR 717 of 4 August 2006 at [71] which reads as follows: ‘Conflicting roles – (1) A psychologist shall avoid performing multiple and potentially conflicting roles in psycho-legal matters’.
42. Strassburger, Gutheil and Brodsky (n 27) 448–56, 451. See also TW Campbell, ‘Psychotherapy with Children of Divorce: The Pitfalls of Triangulated Relationships’ (1992) Psychotherapy 646–52, where it is noted that often therapists find it difficult to competently evaluate their clients, as the therapeutic alliance between the client and therapist reduces the therapist's objectivity. Conversely, evaluators will find it problematic to act therapeutically to the subjects of their evaluations. (As discussed in R Slovenko, ‘On a Therapist Serving as Expert Witness’ (2002) Journal of American Academy of Psychiatry 10–13, 10).
43. Strassburger, Gutheil and Brodsky (n 27) 450–53. See also AA Stone, ‘Revisiting the Parable: Truth Without Consequences’ (1994) International Journal of Law and Psychiatry 79–97; PS Appelbaum, ‘The Parable of the Forensic Psychiatrist: Ethics and the Problem of Doing Harm’ (1990) International Journal of Law and Psychiatry 249–59; JR Rappeport, ‘Differences Between Forensic and General Psychiatrists’ (1982) American Journal of Psychiatry 331–34.
44. Strassburger, Gutheil and Brodsky (n 27) 450–53.
45. RD Miller, ‘Ethical Issues Involved in the Dual Role of Treater and Evaluator’ in Rosner and Weinstock (n 34) 132.
46. Miller (n 45) 132.
47. Miller (n 45) 132.
48. Miller (n 45) 132.
49. Slovenko, Psychotherapy and Confidentiality (n 29) 527.
50. R Slovenko, Psychiatry in Law/Law in Psychiatry (Brunner-Routledge 2002) 8–9. See also Allan and Meintjies-Van der Walt (n 33) 355; Zabow and Kaliski (n 28) 361. See also Shapiro (n 29) at 235 where the problem of dual relationships is encapsulated as follows: ‘From the point of view of professional ethics, an important point to be made is that one cannot be an effective therapist, in terms of helping the patient deal with his or her difficulties, if one has also been involved in doing a comprehensive forensic evaluation of that individual if one has done a comprehensive assessment, interviewed many witnesses, reviewed many reports, and assessed the possibilities of malingering or secondary gain, then one in a sense “knows too much” to be of assistance to the patient and to maintain the “free-floating attention” necessary to truly help that patient unravel his or her personal difficulties’.
51. Strassburger, Gutheil and Brodsky (n 27) 455. See also Appelbaum (n 43) 258.
52. Allan and Meintjies-Van der Walt (n 33) 355.
53. Competency to stand trial is another area where the input of mental health professionals is pivotal. It is regulated in terms of section 77 of the CPA.