Mental disorder and legal responsibility: the relevance of stages of decision making

Structured instruments for insanity defense evaluations: Opportunities and limitations

Insanity evaluations are often criticized for their-alleged-lack of objectivity, reliability and transparency. Structured tools to guide and support forensic evaluators during these evaluations have been developed-but they are rarely employed in forensic practice. In the present article, we consider the value of these tools for forensic practice in terms of opportunities and limitations. First, we briefly describe different insanity criteria used in Western countries. Next, we will review five structured instruments to guide insanity assessment together with their performance measures. Finally, we draw conclusions on the value of such instruments for forensic practice.

Validation of a new instrument to guide and support insanity evaluations: the defendant's insanity assessment support scale (DIASS)

The insanity defense represents one of the most controversial and debated evaluations performed by forensic psychiatrists and psychologists. Despite the variation among different jurisdictions, in Western countries, the legal standards for insanity often rely on the presence of cognitive and/or volitional impairment of the defendant at the time of the crime. We developed the defendant's insanity assessment support scale (DIASS) based on a wide view of competent decision-making, which reflects core issues relevant to legal insanity in many jurisdictions. To assess the characteristics of the DIASS we asked 40 forensic experts (16% women; years of experience = 20.6 ± 12.9) to evaluate 10 real-life derived forensic cases with the DIASS; cases included defendants' psychiatric symptom severity, evaluated through the 24-itemBrief Psychiatric Rating Scale (BPRS). Exploratory factor analysis by principal axis factoring was conducted, which disclosed a two-factor solution explaining 57.6% of the total variance. The DIASS showed a good internal consistency (Cronbach's alpha = 0.86), and substantial inter-rater reliability (Cohen's kappa = 0.72). The capacities analyzed through the DIASS were mainly affected by mania/excitement and psychotic dimensions in nonresponsible and with substantially diminished responsibility defendants, while by hostility and negative symptoms in responsible defendants. The DIASS proved to be an effective psychometric tool to guide and structure insanity defense evaluations, in order to improve their consistency and reliability.

Factors related to bias in forensic psychiatric assessments in criminal matters: A systematic review

OBJECTIVE

Identify factors related to bias in forensic psychiatric assessments in criminal matters.

METHOD

Based on the PRISMA guidelines, we searched the following keywords with Boolean operators: (criminal responsibility OR legal responsibility OR neurolaw OR insanity defense) AND (forensic psychiatry OR assessment OR evaluation OR bias OR decision-making OR capacity OR psychometric). The search included publications from January 1998 to December 2019 in the English language, published in PubMed, Web of Science, Taylor & Francis, and Scopus databases.

RESULTS

The final sample consisted of 30 articles separated into three groups: (1) legal elements and the wording of expert reports, (2) psychometric tools applied to criminal inquiries, and (3) expert forensic technique and inter-examiner agreement.

DISCUSSION

Multiple factors for biases were identified: difficulties in equivalence between legal and psychiatric terminologies, elements of countertransference between the expert and the examinee, absence of standardization of expert evaluations, low quality of expert reports, differences in the training of professionals involved in the evaluations, use of psychometric tools, number of professionals working on the same case, and the methodology adopted. Psychometric tools developed specifically for forensic psychiatric evaluations allowed the introduction of objective parameters in expert evaluations. Special attention was found in psychometric tools structured as vignettes that allowed the detailed evaluation of legal capacities, present in the legal texts. Psychometric tools in checklist format appeared to be more susceptible to interviewer biases.

CONCLUSION

The control of inherent biases in forensic psychiatry assessments on criminal matters remains a current challenge, difficult to control in forensic practice. The identification, control and avoidance of them may improve the quality the forensic psychiatric expertise in criminal matters.

Criminal Responsibility Scale: Development and Validation of a Psychometric Tool Structured in Clinical Vignettes for Criminal Responsibility Assessments in Brazil

Criminal responsibility assessment is undertaken by psychologists or psychiatrists to assess offenders' legal capacities, which vary among countries or regional legislations. There are two psychometric tools (i.e., checklists) validated for criminal responsibility assessment: the Roger Criminal Responsibility Scale, and the rating scale of criminal responsibility for mentally disordered offenders. Despite the existence of psychometric tools structured in clinical vignettes for evaluating legal capacities, none serve the purpose of assessing criminal responsibility. This study aims to validate a novel psychometric tool structured in vignettes for the assessment of criminal responsibility called the "Criminal Responsibility Scale." We applied the tool to 88 defendants referred for criminal responsibility assessment in a forensic medical institute in the city of Rio de Janeiro, Brazil, from December 2017 to December 2018. The validity of the Criminal Responsibility Scale and subscales were evaluated using confirmatory factor analysis. The two-factor solution proved satisfactory and met the needs for practical application of the tool (Kaiser-Meyer-Oklin = 0.82; p < 0.001). Moreover, the inter-rater reliability was evaluated by comparing the tool's final score with that of the expert's conclusion in each case and was found to be satisfactory (k = 0.667-1.0), with a resulting cutoff point of 30.50 (±2) and a Youden index of 0.509. Hence, the Criminal Responsibility Scale is an effective psychometric tool for assessments of criminal responsibility that may encourage future research in assessments of legal capacity with clinical vignette-based psychometric instruments.

Translating clinical findings to the legal norm: the Defendant's Insanity Assessment Support Scale (DIASS)

Insanity definition and the threshold for satisfying its legal criteria tend to vary depending on the jurisdictions. Yet, in Western countries, the legal standards for insanity often rely on the presence of cognitive and/or volitional impairment of the defendant at crime time. Despite some efforts having been made to guide and structure criminal responsibility evaluations, a valid instrument that could be useful to guide forensic psychiatrists' criminal responsibility assessments in different jurisdictions is lacking. This is a gap that needs to be addressed, considering the significant forensic and procedural implications of psychiatric evaluations. In addition, differences in methodology used in insanity assessments may also have consequences for the principle of equal rights for all citizens before the law, which should be guaranteed in the European Union. We developed an instrument, the Defendant's Insanity Assessment Support Scale (DIASS), which can be useful to support, structure, and guide the insanity assessment across different jurisdictions, in order to improve reliability and consistency of such evaluations.

Older offenders deemed criminally irresponsible in Flanders (Belgium): Descriptive results from a retrospective case note study

INTRODUCTION

In Belgium, offenders who are deemed criminally irresponsible for their criminal actions because of mental illness or intellectual disability are subject to a specific safety measure with the dual objective of protecting society and providing mandated care to the offender. While Belgian law requires that offenders who are deemed criminally irresponsible should be in a hospital, clinic or other appropriate institution outside of prison, in practice, about one-third of all such offenders still reside in prison. Whether imprisoned or living in settings outside prison, there is a dearth of knowledge on the characteristics of the aging population among the criminally irresponsible offenders.

OBJECTIVE

This paper aimed to explore the characteristics of older offenders categorized as criminally irresponsible in Flanders (northern Belgium) with a focus on the differences between imprisoned older offenders deemed criminally irresponsible and their peers who are residing outside prison.

METHOD

A retrospective case note study of all offenders deemed criminally irresponsible, >60years of age (n=174), was conducted in the four Commissions of Social Defense, which implement the procedure in the case of those deemed criminally irresponsible in Flanders. The files were screened for (1) demographic characteristics, (2) criminal history as well as (3) mental and physical health issues.

RESULTS

One-fourth of the population were >70years of age. A total of 30.5% were in prison. Compared to their non-imprisoned peers, the imprisoned offenders had a history of having committed more serious violent crimes towards persons, such as homicides and sexual crimes. In addition, imprisoned older offenders categorized as criminally irresponsible are characterized more explicitly by personality traits that are likely to reduce their chances of being transferred to more appropriate settings in the community.

IMPLICATIONS

A comprehensive and systematic screening of all older offenders deemed criminally irresponsible with regard to health needs and social functioning, including age-related deterioration, alcoholism, and other causes of social disadvantages, is warranted to detect potentially hidden problems.