Introduction

The relationship between psychiatry and the law is bilateral. It comprises both the giving of psychiatric information in various legal contexts and the use of law for clinical purposes and for the regulation of clinical practice. It is also at the heart of forensic psychiatry. This is obviously true semantically, but it is made evident by any attempt to determine what it is ultimately that distinguishes forensic psychiatry from general psychiatry and from other psychiatric subspecialities. The most robust response is that it is involvement with the law. Although forensic psychiatry is also properly conceived of clinically to include its obvious and close association with mentally disordered offenders, to define the subject in such a way would infer, by analogy, defining a subspecialty of 'self-harm psychiatry' (where forensic psychiatry would be equated with 'harm to others psychiatry'). Thus, all psychiatrists practice 'forensic psychiatry'.

Some branches of psychiatry are associated with a greater frequency of involvement with legal questions, or with special types of legal question, than others. However, all patients dealt with by all psychiatrists come within the terms of common and statute law relevant to medical treatment. Therefore even the jobbing general psychiatrist must be acquainted with such law, as well as, in all legally sophisticated jurisdictions (and many less sophisticated ones), (!) with specialist law relating to civil commitment for treatment for mental disorder. All general psychiatrists can also be required to write reports and to give evidence in relation to their patients in criminal and civil courts, however strenuously they may attempt to avoid frequent practice of the discipline of forensic psychiatry. Finally, even though an individual psychiatrist may elect never to act as an expert witness in relation to cases alleging negligence against other psychiatrists, he or she is him- or herself subject to that same body of law in relation to his or her own clinical practice. Therefore some understanding of how the law defines and addresses psychiatric negligence may be of particular personal professional concern.

This chapter deals with some general and specific aspects of the relationship between psychiatry and law. In doing so it relates naturally to various other chapters in the forensic psychiatry section of this book. However, it is most obviously and closely associated with C.h.apt.e.L.1!...!., which deals with the general principles of law relating to people with mental disorder. Indeed, the core of the present chapter, which mainly addresses capacity and responsibility in various forms and contexts, is intimately related to the approach of Chapter.!.!.!. This chapter represents, essentially, the clinical side of a clinico-legal coin where the legal side is described in its 'sister chapter'. There is also a particularly important relationship with the chapter which deals with the psychiatrist in court ( Ch.a.p.t§I...!.1:.6.). Whereas that chapter offers practical advice on the presentation of psychiatric evidence in court, the present chapter offers a theoretical underpinning of both report writing and the giving of oral evidence, by attempting to describe the nature of the relationship between psychiatry and the law in such a way that the origins of pitfalls and schisms in that relationship are made evident. Hopefully, some means of avoiding difficulties will also become evident.

Finally, although many of the examples given in this chapter are from one particular common-law jurisdiction, that of England and Wales, the aim of the chapter is to offer an understanding of the nature of the interface between psychiatry and the law which is beyond sole relevance to any single jurisdiction. Indeed, the major issues which will emerge from the chapter, such as the legally defined role of psychiatrists as public or patient protectors, or determining how properly to set the balance between the protective or therapeutic effects of law against its civil rights functions, or the setting of proper boundaries in relation to the giving of expert evidence in civil and criminal courts, are all truly international in their relevance. To most doctors, including psychiatrists, law is 'something out there', (2) originating from a very different epistemology from that of medicine. This chapter cannot, and should not, teach law. Hopefully, it may illuminate the relationship between law and clinical practice.

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