Newletter Masthead
January 1999 · Vol. 24, No. 1

Royal College of Psychiatrists

Multiple contrasts to American forensic law

James C. Beck MD, PhD

The Annual Meeting of the Forensic Section of the Royal College of Psychiatrists was held in Edinburgh, Scotland, February 12-14, 1998. Herewith is a partial summary of the proceedings.

Capacity to refuse treatment

The opening session was a discussion of some possible major revisions to mental health law in England and Wales. (Scotland has its own separate mental health law that tracks broadly but not exactly with English law). The issue was competency to refuse treatment. Currently, individuals with capacity to decide have the right to accept or refuse treatment for physical illness, but not for mental illness. When a psychiatrist determines that an individual requires treatment for a mental illness because of danger to self or others, the psychiatrist can order the individual into the hospital and can order medication. The patient has no right to refuse in this latter case.

Several recent cases have considered the question of whether a person has the right to refuse treatment for medical illness which results from mental illness. When the law finds, as it has, that the same individual has the right to refuse treatment for one condition but not for another this has led to a serious discussion of whether the distinction makes any sense.

Under discussion is a standard of capacity for all health care decisions, relating to mental and physical illness. The potentially dangerous individual who is competent would be allowed to refuse treatment, and appropriate legal action would follow if the person was in fact violent. Psychiatrists are generally opposed to the change because it would potentially tie their hands in the treatment of some quite ill patients. Attorneys argue for the change.

Diminished Capacity

The invited Lundbeck (a UK drug company) lecture was given by Donald Downes, a law professor from the University of Wisconsin. He spoke on syndrome evidence, arguing that battered women’s syndrome was a simplistic concept and suggesting that the issue was one of diminished capacity. He contrasted legal defenses that attempt to justify an act (e.g., self-defense) with those that attempt to excuse an act (e.g., PTSD or diminished capacity). He suggested that the law of self-defense should be redefined to include a standard of reasonable fear that takes account of the overall context in which the crime occurs. Imminence should be redefined to include violence that is about to occur.

Derrick Chiswick, a distinguished Scottish forensic psychiatrist gave an excellent presentation of the history of diminished responsibility—a concept initiated by the Scots in an 1867 case, and developed further by the English. This is a legal concept referring to ‘an abnormality of mind,’ which is not further defined. This lack of psychiatric definition distinguishes the concept from mental disorder, personality disorder and mental defect. These three terms have psychiatric meaning and legal relevance.

In fact, diminished responsibility is a verdict that juries reach with sympathetic defendants—battered women or mercy killers. He noted that the absolute number of diminished responsibility verdicts has remained constant over a 15-year period in which the number of murders has increased substantially.

Derek Bolton, a psychologist, followed this with a discussion based in cognitive psychology about the relationship between reality and action. Ordinarily reality leads to perceptions that are then impinged on by beliefs and desires. Action follows. There is usually a meaningful connection between all these, so that the connection between reality and action is clear. When there is not a meaningful connection between one or more of these, there is an appearance of diminished responsibility.

Ronnie Mackay, a lawyer, then discussed legal aspects of abnormality of mind. The burden of proof is on the defendant to show that he or she has an abnormality of mind, and the standard is more likely than not. Abnormality of mind is what a reasonable man would call abnormal. Unlike McNaughton, it can include irresistible impulse. Self-induced intoxication is not a basis for diminished responsibility. He noted that seven women convicted of murdering their partner (which carries a mandatory life sentence in England) were found on appeal to have diminished responsibility. Their sentences were reduced and some were freed based on time served.

The mock trial presented a partial reprise of a celebrated Scottish case on diminished capacity. The defense attorney and the prosecutor were both present to read from their trial arguments, and one of the several forensic psychiatrists who testified originally also presented testimony. The audience then broke up into mock juries to consider their own verdicts.

Victim Interests

Helen Reeves, a victim advocate with broad clinical, organizational and international experience then spoke of how victim’s needs are often ignored in the criminal justice process. Victims in the UK have no right to attend hearings, and are not even necessarily told of outcomes. There are competing interests between the needs of victims to know about the psychological status of an about-to-be-released rapist or pedophile and the perpetrators’ right to confidentiality. In the UK the perpetrator’s rights over-ride any interest of the victim. This is an issue that psychiatrists have not generally considered, and most questions and comments from the audience suggested that psychiatrists consider confidentiality of patient information more important than any possible victims’ need to know.

Michael Boyle, a civil servant from the home office, discussed the increasing awareness of victim’s legitimate psychological needs and what rule changes the home office may be contemplating to address those.


Professor Christopher Cordes led a session on confidentiality. He noted that psychiatrists are slow to oppose inroads on confidentiality, and he deplored the extent to which confidentiality is being eroded. In the UK psychiatrists have a duty to disclose past crimes when patients talk about them. Further, there is a current National Health Service Guideline that follows from a 1997 police act. In cases of serious crimes in which psychiatrists have any knowledge, they have a duty to disclose this knowledge to the police. Discussion brought out that no one present had apparently had occasion to act on this duty.


Because there is almost no private civil practice of forensic psychiatry in the UK, the papers at this meeting focus on public sector related issues: civil, clinical and criminal. The papers presented are consistently of high quality, and guests from the USA are warmly welcomed, so that this is a worthwhile and enjoyable meeting for American forensic psychiatrists. Other papers presented this year dealt with mental health law, prison psychiatry, ethnicity, adolescence, rehabilitation, sex offenders, massacres, women offenders, and secure hospitals.

Next meeting: February 11 to 13, 1999 in Amsterdam, Holland. For further information: Royal College of Psychiatrists, 17 Belgrave Square, London, SW1X 8PG. Tel: 011 44 171 235 2351; fax: 245 1231.