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 Table of Contents    
REVIEW ARTICLE
Year : 2019  |  Volume : 41  |  Issue : 2  |  Page : 126-132  

Psychiatrist in court: Indian scenario


Department of Psychiatry, National Institute of Mental Health and Neurosciences, Bengaluru, Karnataka, India

Date of Web Publication4-Mar-2019

Correspondence Address:
Dr. Vinay Basavaraju
Psychiatrist Specialist Grade, Department of Psychiatry, National Institute of Mental Health and Neuro Sciences, Bangalore - 560 029, Karnataka
India
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Source of Support: None, Conflict of Interest: None


DOI: 10.4103/IJPSYM.IJPSYM_53_19

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   Abstract 


The impetus for practical exposure to legalities that arise in the context of psychiatry and law is minimal in postgraduate training in psychiatry and curriculum. Those who choose to get trained often do not get first-hand exposure to court proceedings. Law and psychiatry often come into each other's interface, and psychiatry is regulated by the legal system more often than the other specialties in medicine. This article is an attempt to equip the psychiatrist in dealing with instances where they will present themselves in court.

Keywords: Court, expert witness, forensic psychiatry, India, MHCA 2017, psychiatry


How to cite this article:
Basavaraju V, Enara A, Gowda GS, Harihara SN, Manjunatha N, Kumar CN, Math SB. Psychiatrist in court: Indian scenario. Indian J Psychol Med 2019;41:126-32

How to cite this URL:
Basavaraju V, Enara A, Gowda GS, Harihara SN, Manjunatha N, Kumar CN, Math SB. Psychiatrist in court: Indian scenario. Indian J Psychol Med [serial online] 2019 [cited 2019 May 21];41:126-32. Available from: http://www.ijpm.info/text.asp?2019/41/2/126/253376




   Introduction Top


Health professionals and health establishments are regulated by the Medical Council of India,[1] State Medical Council, Clinical Establishment Act,[2] Medical Termination of Pregnancy Act (MTP Act),[3] Pre Conception and Pre-Natal Diagnostic Techniques Regulation and Prevention of Misuse Act (PC-PNDT Act),[4] Surrogacy Act,[5] HIV Act,[6] Transplantation of Human Organs Act (THOA),[7] and Consumer Protection Act.[8] In addition, psychiatrists come under the purview of Mental Health Care Act, 2017 (MHCA 2017),[9] Rights of Persons with Disability Act (RPWD Act),[10] and Narcotics Drugs and Psychotropic Substances Act (NDPS Act).[11] Law and psychiatry come into interface more often than the other specialties in medical discipline. Psychiatrists appear in court when accused of breach of contract, negligent acts (medical negligence, criminal negligence) and behavior, and violation of the rights of the patients.[12] They are also called upon to act as experts in the court of law or quasi-judicial bodies to comment upon the following areas: (a) fitness to stand trial, (b) insanity defense, (c) testamentary capacity related to execution of a will, (d) capacity to make a contract, (e) capacity to manage property, (f) marriage and divorce, (g) custody of the child, (h) interviewing the child in case of sexual abuse, (i) fitness for job, (j) assessment of mental disability, and so forth.[13],[14]

In the current Indian scenario, psychiatry residents often do not get first-hand exposure to court proceedings.[15],[16] Forensic psychiatry training is mandated for 2 weeks only, and on many occasions, budding psychiatrists are let down in terms of equipping themselves with the skills and practical inputs needed to handle the court scenario. Appearing in the court as an expert witness may make the psychiatrist, especially the beginner, anxious, due to lack of such exposure. This article attempts to equip the psychiatrist in dealing with such scenarios as a witness.


   Common Legal Terminologies Used in Court Top


Expert witnesses and fact witness

An expert witness is a person whose opinion by virtue of education, training, certification, skills, or experience is accepted by the judge as expert. The Indian Evidence Act, under section 45, enumerates the laws relating to the opinion of experts.[17] The section says that an “expert” means a person who has special knowledge, skill, or experience in any of the following: foreign law, science, art, handwriting, or finger impression, and such knowledge has been gathered by him by practice, observation, logical reasoning, or proper study.[12]

A psychiatrist may be requested to testify as either a “fact witness” or an “expert witness” [Table 1]. Broadly, an expert witness and a fact witness are often called the “court witness” in the summons. A fact witness testifies about direct observations. A common example would be the treating psychiatrist asked to testify about his or her observation on his or her own patient's symptoms, treatment, the course of the illness, and the outcome of treatment. In this situation, the psychiatrist is not ordinarily asked to give opinions on the subject matter of dispute. The court witness can be summoned by the defense or prosecution, depending on the need.
Table 1: Comparison between expert witness and fact witness

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Expert witnesses are not witnesses of facts. The expert is expected to depose his or her evidence as an advisory and to test the accuracy of the conclusion that is derived upon by somebody else. This enables the judge to form his or her independent judgment by application of the criteria to the facts proved by the evidence.

Furthermore, the expert witness can be a testifying or nontestifying expert witness:

a. A nontestifying expert is hired by a contesting party to evaluate facts of the case. The expert helps the lawyer to prepare a case, without testifying in the court. An example of a nontestifying expert is a consulting expert. A consulting expert helps in questioning the other side's theory and methods and often helps drill a hole in their arguments, without testifying in court.[18]

b. The testifying expert appears in the court to testify before the judge, under the oath that the expert will “speak the truth and nothing but the truth” and seek help from God.

Generally, the issue of appearing in the court of law starts with the receiving of the summons and includes preparing for the appearance in the court, discussion with the lawyer who summoned, taking an oath, deposing in the court of law, and receiving an attendance certificate.

In the case of criminal case, the lawyer representing the state is called Public Prosecutor. He or she is a public official in charge of the investigation and prosecution of punishable acts on behalf of the state or an international commission.[19] The lawyer representing the accused is called the Defense Lawyer. A defense lawyer is a lawyer representing the legitimate interests of the suspect or the accused at the proceedings of the criminal case. The defense lawyer offers the suspect legal assistance by all means, not prohibited by law.[20]

Subpoenas/Summons

A subpoena or witness summons is a legal document, usually issued by the clerk of a court in the name of the judge, which requests a party (e.g., a psychiatrist) to:

  1. Provide documents or
  2. Appear and give testimony.


Receiving and responding to a subpoena

There should be a well-documented procedure for the receipt, registry, and timely response to the summons by an appropriate official. The protocol of receiving the summons should be known to the staff of the medical record department of the hospital, doctor, and the main office receiving the incoming documents of the hospital. Recipient must acknowledge receipt of the summons, note the date and time of receipt while signing acceptance, and note the phone number of the person delivering the summons. He or she should verify the summons and details of the case pertaining to the summons, hospital file number, contact number of the lawyers and investigating officers (in criminal cases), and address of the court. If the time is unsuitable or if it is too short a notice, it is recommended to note the same on the summons at the time of receiving and seek a fresh date either in writing or after personal appearance. The psychiatrist should prepare to testify. Attending the court is mandatory except in rare emergencies that should be conveyed to the court (registrar of the court).

On receiving the subpoena, one should not fail to respond to it.[21] A subpoena is part of a court's legal process, and failure to respond to a subpoena is considered contempt of court. Once the subpoena is acknowledged, it is advisable to seek legal advice and assert the doctor–patient privilege. Once the doctor–patient privilege is asserted, then the doctor withholding information on the basis of confidentiality clause is acceptable. Failure to assert the privilege can be grounds for legal action by the client, especially in civil cases. The doctor should contact the client and/or the client's lawyer to seek consent from the patient before deposing the information in the court of law. If the client wants the doctor to comply with the subpoena, then the psychiatrist should get written authorization from the client before sharing the requested information. If the client does not consent, the doctor can continue to assert the privilege, until the court overrules that privilege and orders the psychiatrist to depose. At this point, the doctor must abide by the court order. The expert witness, however, does not have to mandatorily seek patient authorization or consent to produce evidence related to litigation. However, it would be advisable to seek the consent or authorization of the patient on ethical grounds. [Figure 1] depicts the procedures to be followed while receiving and responding to a subpoena.
Figure 1: Procedures followed while receiving and responding to a summons

Click here to view


Evidence in the court of law

The evidence that the court relies on are divided into two, as follows:

  1. Oral evidence of the witness
  2. Documentary evidence.


Psychiatrists are often needed to give evidence in medicolegal cases in the court of law as a fact/expert witness or as a professional accused of negligence. The psychiatrist needs to understand the importance and implication of evidence under the Indian Penal Code[22] and the Indian Evidence Act. In many situations, the doctor testifying may be put under pressure to change their statement in favor of the accused or alter the facts in the medical records. The psychiatrist should maintain professional integrity at all cost.


   Preparation Before and on the Day of Appearing as an Expert Witness Top


Preparation prior to appearance in the court of law

It is very important that the psychiatrist is well-prepared while representing himself in the court of law, since it is more a test of a skill that comes only with repeated practice. Testifying and winning cases in a court will depend on the writing, verbal, and nonverbal skills of the expert witness. Certain prerequisites which the psychiatrist should be equipped with are as follows:[12]

The preparation before the said date of appearance involves preparing for the presentation of the evidence. This is often considered the easiest part of your testimony compared with the intricacies involved in answering questions. One should be well-prepared and well-rehearsed to confidently handle any unforeseen situations and questions. It is important to proof-read the documents and exhibits. There should also be ample preparedness to respond to the anticipated questions.

Preparation of testimony as an expert witness

The preparation as an expert witness will primarily involve understanding what is expected through the testimony. The psychiatrist should collect and study all the relevant documents and should be prepared to differentiate between the facts of the case and derived opinions. There is also a need to anticipate likely questions and be prepared with the responses.[23] Documents for presentation should include data given by the patient and caregivers, preferably verbatim, including the source of information, the details of investigations, joint consultations, referrals, serial mental status examination, ward observations, cognitive function testing, and so on, and opinion derived and the reasons of deriving the opinion.

It is required to present the documents at the time of appearance before the court. The court may also make the documents available to both the parties as per the need. It would be prudent to discuss the case with the lawyer who summoned.[12],[24] A young psychiatrist can seek the help of senior colleagues who are well versed in attending and deposing in the court of law. If psychiatrists have to travel to another city to attend the court, it is advisable to go before the day of deposing and get a good night's sleep before one attends the court.

On the day of the court

The psychiatrist should report to the authority who summoned them, specifically the court clerk or the lawyer who summoned, on reaching the court. Before testifying, one will have to take an oath as per the protocols of the law. The psychiatrist should wait for their turn to speak and should avoid talking out of turn. After deposing as a witness, the psychiatrist should also collect the certificate of attendance. In civil cases, there is also a provision to apply for remuneration from the court.


   Answering Questions on the Witness Stand Top


It is important to understand that the entire process will revolve around establishing one's credibility, starting from the moment one stands up, to proceeding to the witness box to take a stand, including the gait and preferred dressing.[23] Switch off your mobile phone or any other communicating devices while in the court of law. The preferred posture is to stand with your shoulders over your hips with the feet shoulder width apart. One can place their hands comfortably by their sides and preferably not in their pocket. It is also important to hold one's chin up, such that it is parallel to the ground while speaking. Avoid speaking softly. It is important that one is audible and clear so that one does not have to repeat the questions or answers. When asked, state your name without hurry, pausing between your first name and last name. Take care to speak clearly, fully pronouncing your words. Avoid slang, lazy speech, and colloquial language. Also watch out for filler words such as um, ah, okay, right, and you know. Instead of these filler words which give you time to think and answer, silence will have a larger impact on what one will say next.[23] Maintain eye contact with the lawyer when asked a question. It is important to look at the judge when one answers the questions raised by the lawyer. Adequate eye contact is often a sign of truthfulness and respect. It is of utmost importance to listen in entirety to the questions raised before responding. Interrupting midway when someone is answering is considered aggressive behavior. In addition, answering a question too quickly gives the appearance of being too anxious or over-rehearsed. Neither response will show you in your best light. Always take a few seconds to gather your thoughts before responding. It is important to ensure that one does not ramble on in a lengthy explanation and is precise. What you say and is out of the context can be used against you and may help the opposite counsel in framing new questions. Avoid technical jargon. If it is unavoidable to use technical jargon, then take time to explain what the terminology means.[23]


   Responding to the Advocates Top


Examination-in-chief

In the court of law, the expert witness will usually undergo examination-in-chief, that is, the questioning of a party's own expert witness under oath, at trial. Witnesses are introduced to a trial by their examination-in-chief, which is when they answer questions asked by the lawyer representing the party which called them to the stand,[25] followed by cross-examination.

Cross-examination is the questioning of a witness at a trial or hearing by the lawyer from the opposing party, who has called the witness to testify.[26]

The examination-in chief will be less difficult if the psychiatrist has discussed with the advocate in advance about what to expect in the court. However, the psychiatrist must be truthful and avoid unnecessary information and disclosure. When responding to the court, one must have a logical thought process while arriving at a conclusion, and evidence should be produced with proper reference for the same. Most of the questions in this stance will be open-ended. During the examination-in-chief, the advocates are forbidden from asking their witnesses leading questions. A leading question is one which requires a “yes” or “no” response.

Cross-examination

The cross-examination often gets tricky and can put the psychiatrist in a fix. There are three types of questions which may catch you off-guard and discredit your testimony.

a. Ambiguous question

Ambiguous questions are usually vague, often with a meaning other than what it conveys. The answers to ambiguous questions can be raised against the psychiatrist. One way of tackling an ambiguous question is to request clarification or ask for the question to be rephrased before attempting to answer. Take time to answer such questions.[27]

b. Two-part question

Example of a two-part question is “Was there a lack of care on your part, because of which the patient has deteriorated?” When advocates tactfully put such questions, the psychiatrist should identify such questions and become aware of the trap that one part of the question is obviously true and the other part false. If the psychiatrist attempts to answer both parts of the question at the same time, there is a probability of getting tangled in a difficult situation. The solution is to answer only one part of the question. One must carefully select which part of the question one would like to answer and then state, “Since this is a two-part question, let me answer the (first/second) part.” One should also be careful not to automatically start answering the second question once you finish answering the first part. The answer to the second question can be given once it is redirected to you. If you are unable to answer the question, ask for clarification or for time to think or to look into the medical records.[27]

The example question given above addresses a lack of care and deterioration, and answering both the questions with a “yes” or “no” will lead to a different meaning than what one tries to convey. This can be answered by addressing first the part on lack of care and then addressing the deterioration after requesting the judge for permission.

c. Closed-end questions

When a question is framed by reducing it into a “yes” or “no” response, it becomes a closed-end question. These questions are answered with a “yes” or a “no.” For instance, consider this situation where one is asked, “Is there a chance that your diagnosis would be wrong?” or “Is schizophrenia an incurable disease?” This again is a difficult situation for the psychiatrist. In such situations, the psychiatrist should look at the judge and put forward the difficulty in answering the question with a “yes” or a “no.” One could state that such answers would not serve the purpose of the oath taken in the court of law and hence a request to grant permission to explain the same with evidence.

Cross-examination will always be a matter of concern. It will test the patience and composure of the psychiatrist. There will be blatant attempts by the opposite panel to unnerve and discredit the testimony. If an attempt at discrediting the testimony fails, they could follow this with personal attacks that could discredit credentials such as attempts taken to pass exams, donation for undergraduate/postgraduate seats, and number of forensic cases seen. Being mindful of such attacks can help one maintain composure and integrity in the court of law. There is also a need to familiarize with the responses that can possibly be challenged and be prepared in advance to answer them head on. The credibility of the person can also be influenced by the manner in which one responds. Remember to look the part, speak the part, and act the part. The more one practices, the more perfect one becomes in responding. The expert witness may also be asked to provide the details of one's training and skill set that would make them an expert. One should be prepared to give them a brief description of the same. It is important to maintain objectivity in the court of law. There is no room for personal opinions in the courtroom. Be objective and keep to the facts of the case and logical conclusions. You are summoned as an expert, and it is important to keep the decorum of an expert in mind.


   Confidentiality of Medical Records Top


Confidentiality is of paramount importance in the judicial system, just like in the medical system. Under the provision of the Indian Evidence Act 1872, personal documents may not be revealed without explicit written consent of the individual.


   Privileged Communication Top


In India, Sections 126–129 of the Indian Evidence Act, 1872 deal with privilege that is attached to professional communication between a legal adviser and the client. Sections 126 and 128 mention circumstances under which the legal adviser can give evidence of such professional communication.[28] Privileged communication arises in the context of matters of great public interest. In the case of privileged communication in the court of law, under the orders of the presiding judge, the professional secrecy clause may be violated. However, the communication may be kept to the barest minimum and essential. The barest minimum communication is in line with Section 25 of MHCA 2017[9] (which states that the patient and nominated representative are eligible to receive the basic medical records), thereby ensuring confidentiality in communication. The doctor should not volunteer confidential information about the patient until ordered by the court. There is reason enough for the doctor to protest if requested for confidential information about the patient on the grounds of professional secrecy.[29] If insisted by the court, the doctor may reveal the information in writing to those entitled to receive it so that it does not become public knowledge. Only as a last resort should the doctor divulge the information in the open court.


   Penalties for False Expert Evidence Top


If the doctor succumbs to the pressure and offers false expert advice, they can be implicated under:

  1. Punishment for false evidence (IPC193)
  2. False statement made in declaration which is by law receivable as evidence (IPC 199)
  3. Causing disappearance of evidence of offense, or giving false information while screening the offender (IPC 201)
  4. Destruction of document or electronic record to prevent its production as evidence (IPC 204).



   Future Directions in Line With the Mental Healthcare Act 2017 Top


MHCA 2017 provides the provision for a Mental Health Review Board (MHRB) which will be a quasi-judicial body. The patients can approach the board without the hassles of legal procedures, unlike the prevailing system. Any issues related to admission, discharge, or right violations will be taken up by the MHRB. The psychiatrist will find themselves appearing before the MHRB in issues pertaining to the care of the patient, and it is important that we maintain the same decorum, keeping in mind the intricacies of the legal system. Unlike the existent legal system, the MHRB comprises of psychiatrists and mental health professionals in its panel. It is reasonable to assume that this representation will be helpful for psychiatrists.


   Conclusion Top


The law and psychiatry will always go hand in hand, and it is imperative that the psychiatrist will have to appear in court, either to defend himself/herself or to provide evidence. It is important for the psychiatrist to be cognizant of the increasing legal intrusions that could crop up in patient care and take steps to avoid such situations altogether. It is also important to understand the intricacies in the legal system and its processes and be prepared well, if ever a need arises to present themselves in court.

Financial support and sponsorship

Nil.

Conflicts of interest

There are no conflicts of interest.



 
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    Abstract
   Introduction
    Common Legal Ter...
    Preparation Befo...
    Answering Questi...
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    Confidentiality ...
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    Penalties for Fa...
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