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DR JYOTIRMOY DAS
ASSO PROF DR DEEPANJALI MEDHI
FORENSIC PSYCHIATRY-CONCEPT &
"Forensic Psychiatry is the branch of medicine that
deals with disorders of mind and its relation to law.
It is a subspecialty of psychiatry or an auxiliary
science of criminology.
It encompasses the interface between law and
psychiatry in all aspects.
a) Provide services such as determination of
competency to stand trial in a court of law to
facilitate adjudicative process.
b) Involved in care of prisoners , both in jails and
mental health institutions.
c) Often also do research work related to prison
Patients requiring expert mental health professionals opinion
i. those harming themselves and others
ii. Those who are incapable of looking after themselves and
unable to handle welfare of their family and properties
iii. Patients who are acting out to be dangerous due to
iv. Spouses of mentally ill patients in cases of divorce, etc
v. Patients who are having criminal and civil litigation as a
consequence of mental illness
vi. Mental patients who are going for some contract or want to
make a will
vii. Mental fitness certificate of the person is needed for
adoption of child and other issues
Psychiatric disorders which are medico legally important
2. Bipolar mood disorder-mania
4. Disorders of consciousness and other higher functions of brain-
confusion, delirium, fugue, amnesia, lucid interval,
somnambulism, narcolepsy etc.
6. Mental retardation
7. Impulse control disorders- kleptomania, pyromania, mutilomania,
dipsomania, sexual impulses, pathological gambling, suicidal and
homicidal impulses, intermittent explosive disorders
8. Disorders of anxiety-phobia
9. Feigned mental illness-malingering
The law can be broadly divided into two branches:
1. Criminal law: It defines certain acts as offences
against the State and in doing so make them
punishable. The criminal law is enforced by, or on
behalf of, the State.
2. Civil law: It defines the rights and duties of
individuals in relation to each other. In this branch
of law, actions are brought by individuals to
establish their rights against another person, and
not by the State.
Definition: A legal acknowledgement of an individual’s
capacity to accomplish a act of crime.
History of the Concept
It has been considered unjust to call a person criminal in
law unless his act was voluntary and done with a guilty
In early Jewish laws the imbeciles, infants and deaf-
mutes were not considered blameworthy for their
‘Corpus Iuris Civilis’ in 5th century- the insane person is
‘compos mentis non est’ (i.e. does not have control on his
mind) and can not understand the consequences of his
Henry de Bracton- a crime is not committed unless ‘ the will
to harm’ is present, and such an intent is lacking in ‘mad
Sir Matthew hale( 17th century AD)- the mere presence of
insanity was not sufficient to remove criminal responsibility.
He recognized that insanity could be partial or limited.
Paulus Zacchias (17th century AD)- he provided classification
of mental disorder keeping in mind the legal issues of that
time- fatuitas, insania and phrenitis. One of the subtypes of
fatuitas was ignorantes which were criminally responsible.
Immanuel Kant (18th century)- suggested that in cases
involving criminal responsibility courts should take opinion of
a psychologist to decide insanity.
Paranoid schizophrenia- delusion of persecution, auditory
Attempted murder of British PM
Found not guilty on grounds of insanity
McNaughten Rules – To establish defense on the ground of
insanity, it must be clearly proved that at the time of
committing the act, the party was laboring under such a defect
of reason, from disease of mind, as not to know the nature and
quality of the act he was doing or, if he did know it, that he did
not know he was doing what was wrong or contrary to the law
Sec 84 of IPC states that “ nothing is an offence
which is done by a person who, at the time of doing
it, by reason of soundness of mind, is incapable of
knowing the nature of the act, or that he is doing
what is either wrong or contrary to the law”.
The insanity defense is usually used in charges of
murder in order to escape capital punishment.
The law presumes every major person to be sane
unless the contrary is proved to the satisfaction of
The burden of proof is on the defense.
To benefit from the section, it must be proved that
unsoundness of mind existed at the time of
committing the offense
Examination of a criminal defendant
Absence of motive
Want of secrecy
Lack of concealment
Want of preparedness
Use of needless force
Want of accomplices
Indifference to the crime committed
The expert evidence does not relieve the court from
forming an independent opinion. In fact, the question of
insanity is primarily to be decided by the court, keeping
in reference to the evidence.
If the defendant is acquitted in the ground of
unsoundness of mind, it is required by sec 334, CrPC,
that the finding state specifically whether he committed
the act or not.
If the act has been committed, then the magistrate can
either order for detention in safe custody or in
psychiatric hospital or hand him over to friends or
relatives (sec 335 CrPC)
Criminal Liability of Mentally ill Offenders arises
in three areas
i. Fitness to plead ( fitness to stand trial)
ii. Mental state at the time of offence
iii. Diminished criminal responsibility in certain
FITNESS TO PLEAD/ FITNESS TO STAND TRIAL:
o The law provides an accused the right to consult his
lawyer to ensure that fair treatment is provided to
o If the accused lacks the capacity to understand the
nature and the proceedings against him, to consult
his lawyer and to assist in preparing the defense,
then he may not be subjected to a criminal trial.
o Sec 328-339 CrPC
o When an accused is found to be ‘lunatic’, after
examination by an expert the magistrate can
postpone further proceedings in the case
o Detained in safe custody/ released in bail
o Trial can resume if the accuse ceases to be of
MENTAL STATE AT THE TIME OFFENCE
o Mentally ill offenders usually face trial in the same
manner as other offenders, though consideration is given
to their mental state at the time of crime.
o Before anyone can be convicted of crime, the prosecution
must prove that he carried out an unlawful act (actus
reus) and an “ intent” that he had a certain guilty state
of mind necessary at the time of committing a crime
( mens rea, i.e. guilty mind).
o When a person is charged with an offence, defense can be
made that he is not culpable because he did not have a
sufficient degree of mens rea.
Different degrees of Mental Element or ‘Mens Rea’
i. Intent: the person perceives and intends that his act of
omission will produce unlawful consequences.
ii. Recklessness: deliberately taking an unjustifiable
iii. Negligence: “ a man acts negligently when he brings
about a consequence which is reasonable and prudent
man would have foreseen and avoided.
iv. Blameless inadvertence: “ a man may reasonably
fail to foresee a consequence of his act or reasonably
fail to consider the possibility of existence of a
o This defense can be raised in three ways:
i. Not guilty by reason of insanity ( sec 84 IPC,
McNaughten rule, 1843)
ii. Diminished responsibility ( not guilty of murder,
but of culpable homicide not amounting to murder
or manslaughter). There is lesser degree of criminal
intent (mens rea)
iii. Inability to form intent because of automatism
the concept of diminished responsibility arose as a mean
of avoiding the death penalty
It has not been incorporated in Indian law yet.
Homicide Act 1957 of England- “ when a person kills or is
party to the killing of another, he shall not be convicted
of murder, if he was suffering from such abnormality of
mind as substantially impaired his mental responsibility
for his acts and omissions in doing or being party to the
Usually employed in cases of ‘mental unsoundness’
or ‘partial insanity’ due to arrested or retarded
development of mind or any inherent causes or
induced by disease or injury.
Not used in bad temper, jealousy, hatred, political
o It is defined as an apparently purposeful and complex
behavior which occurs without conscious control, and for
which there is amnesia later.
o If a person has no control over a act, he cannot be held
responsible for it.
o It occurs in- epilepsy, somnambulism, concussion,
intoxication, hyperglycemia in diabetics, hypoglycemia not
caused by insulin and other sleep disorders
o Indian law has no special provision for it.
o Sec 85 and 86 of IPC provide that an accused is not criminally
responsible , if the intoxication was administered to him
without his knowledge or against will.
It is a period of normalcy, during the course of an
organic brain disorder.
In this period, a patient is able to stand trial or testify
for legal purposes
His testimony is accepted as evidence in the court of
law as the person is in full capacity of mental
Suicide and criminality
Sec 309 in the IPC lays down the punishment
for attempted suicide. The maximum punishment
which can be awarded is imprisonment for a term of
But in December 2014 Govt of India decided to do
away with the law.
Sec 90 IPC- “ a consent is not a consent…..if…given
by a person who from unsoundness of mind, or
intoxication, is unable to understand the nature and
consequence of that to which he gives consent….”
The question of invalidity of consent may arise in
rape, murder, grievous hurt etc.
Sec 89 IPC- An act done in good faith for benefit of
an insane person by guardian or with consent of
guardian, is not an offence.
Assessment of sex offenders
a full history and mental state evaluation
obtaining a collateral history from other sources
psycho physiological methods of assessment, including penile
Presence of comorbid mental disorders:
• misuse of alcohol
• cortical pathological changes, especially in the temporal lobe
• diagnosis of personality disorder
• patients with mania may show sexual disinhibition
A contract is an agreement enforced by law,
according to the Indian Contract Act ( act 9 of 1872)
Sec 6, 11, 12- the person has to be of sound mind to
be competent of contract
MARRIAGE AND DIVORCE
The following Acts have a bearing on the legal aspects of
1. The Special Marriage Act, 1954
2. The Hindu Marriage Act, 1955 with amendment in 1976
3. The Dissolution of Muslim Marriage Act, 1939; The
Muslim Women Protection of Rights on Divorce,1986
4. The Parsi Marriage and Divorce Act, 1936
5. The Christian Marriage Act, 1872
6. The Indian Divorce Act, 1869
7. The Family Courts Act, 1984
8. Domestic violence Act, 2005
THE SPECIAL MARRIAGE ACT,1954
Mental soundness - neither party is
A) incapable of giving valid consent to it as a consequence of
unsoundness of mind
B) though capable of giving valid consent, has been suffering
from mental disorder to an extent to be unfit for marriage and
procreation of children
C) has been subject to recurrent attacks of insanity
Ground for divorce
• Mental disorder
• Psychopathic disorder
Hindu marriage act
Neither party is
Incapable of giving valid consent as a consequence of
unsoundness of mind
Unfit for marriage and the procreation of children
Subject to Recurrent attack of insanity
It says that, lunatics or persons of unsound mind
may be validly contracted into marriage by their
Women entitled to obtain judicial divorce
Husband insane for a period of 2 years
Impotence at the time of marriage and continuing
PARSI MARRIAGE AND DIVORCE ACT
Unsoundness of mind is not a ground for divorce
Divorce shall not be granted on the ground of
unsoundness of mind, unless
i. Ignorant of the fact at the time of marriage
ii. Unsoundness of mind for a period of 2 years and
Christian law of marriage and IDA
Marriage is void if either party is suffering of
unsoundness of mind
Ground for divorce- unsoundness of mind which is
Incurable ( medical record required for it )
Present for at least 2 years .
Means the incapacity to perform sexual intercourse
which is full and natural
Ground for dissolution of marriage
Not refusal to have sex
Testamentary capacity/Mental capacity
DEFINITION: It refers to person’s full sense and mental
sanity to have confirmed and signed the Will after
understanding what his assets comprised and what he is
doing by making a Will. “Ability to make a will”
important elements in testamentary capacity
It is a voluntary act on the part of the testator
Should have sound disposing mind
Should know what he is doing by making a Will
Should have sufficient capacity to know the extent of his/her
Should be Aware of potential beneficiaries
Should be aware of the consequences of his/her decision
Should be free from any undue influence/fraud/coercion.
must know the contents of the will.
Factors affecting testamentary capacity
1. Physical factors- brain dysfunction due to certain disease,
trauma or medication. It includes-alcohol, head injury ,
systemic illness, medication.
2. Psychiatric disorders
Psychosis or delusional state
3. Undue influence
Symptoms of testamentary incapacity
Difficulties in attention and information processing
Impairment of higher executive functions
Delusion of poverty
Role of expert: it involves confirmation of
1. When cognitive and mental state is concerned
2. To assess the role of undue influence
3. To give retrospective opinion after the death of the
testator when the Will is challenged
Process for assessing testamentary capacity ( Jacob and Steer
o Get a letter from competent authority
o Set aside enough time for evaluation
o Assess whether the client has dementia
o Thorough Physical and neurological examination
o Psychiatric examination – presence of delusions, hallucination,
thought disorder, mood state, cognitive functions and their effect
on decision making.
o Recording of the answer verbatim.
o Check facts
o Review previous Wills
o Ask why potential beneficiaries are included or excluded
o If in doubt about mental capacity - seek second opinion
Obtaining all relevant document
All medical records
Results of any neuropsychological examination
References to mental state or behavior
Relevant financial documents
Other personal documents
Obtaining corroborative information from- surviving
spouse, relatives, friends and business associates
Under the Hindu Adoption and Maintenance Act,1956-
any Hindu male/female “ who is of sound mind” can
adopt a child, with the consent his/her wife/husband
unless” …..(she/he) has been declared by a court ….to be
unsound mind ( sec 7, 8)
Under the Indian Evidence Act,1872 a lunatic is not
competent to give evidence (sec 118). He can give
evidence during lucid interval on the discretion of judge.
GUARDIANSHIP BY LAW the district court
a) mentally ill,
b) incapable of taking care of himself and of managing
To maintain professional secrecy, even of drug and
To inform parents/legal guardian of life threatening situation
Duty to warn/protect third party from potential harm by the
THE MENTAL HEALTH ACT( MHA),1987
The Mental Health Act,1987 became a act on 22nd
It replaced the Indian Lunacy Act,1912
The Act is divided into 10 chapters consisting of 98
Chapter I deals with the various definitions
Chapter II deals with mental health authorities
Chapter III deals with psychiatric hospital and
psychiatric nursing homes.
The term ‘ mentally ill person’ in MHA replaces the
term ‘lunatic’ in ILA, means “ a person who is in
need of treatment by reason of any mental disorder
other than mental retardation”.
The term ‘ mentally ill prisoner’ replaces the term ‘
The terms ‘ psychiatric hospital’ and ‘psychiatric
nursing home’ replaces the term ‘asylum’
CHAPTER IV of MHA- admission and detention in
psychiatric hospital or psychiatric nursing home.
Consists of 3 parts, with part III divided into 4 further
1. Admission under voluntary basis-sec 15, 16
2. Admission under special circumstances-sec 19
3. Admission under reception order
i) Reception order on application-sec 20
ii) Reception order on production before magistrate-sec 23
iii) Reception order after inquest-sec 26
iv) Admission and detention of mentally ill person
Admission on a Voluntary basis
a) A major mentally ill person requests for admission
as a voluntary admission
b) The guardian of a minor mentally ill person
requests for admission of a minor as a voluntary
Admission under special circumstances
Admission of an unwilling patient or inability to express
his willingness for admission as a voluntary patient.
A relative or friend of the mentally ill person , can make
an application on behalf of him
Application to be accompanied by two medical certificates by two
medical practitioner (one has to be government medical officer)
Final decision by medical officer in charge.
Maximum of ninety days only
Other relative/friend may apply to magistrate for his
Reception Order on Application
On application by friends, relatives or other people
in the community.
Police may also pick up an alleged mentally ill person
found wandering at large and produce him before
The magistrate can order detention of an alleged
mentally ill person for short periods pending report
by medical officer ( for a period not exceeding 10
days in aggregate ) or pending his removal to
psychiatric hospital or psychiatric nursing home( for
a period not exceeding 30 days)
Reception Order without application
Can be issued by a Magistrate, if an officer in-charge
of a police station arrests a,
(a) wandering mentally ill person, who is believed to
incapable of taking care of himself or
(b) dangerous mentally ill person or,
( c) ill treated or neglected mentally ill person or,
(d) mentally ill person, not under proper care and
Admission after Judicial Inquisition
A person alleged to be mentally ill, the District Court
may order an inquisition upon application made be
any relative. The Court, if it is satisfied may order to
admit such person in a psychiatric hospital.
Admission of Mentally Ill Prisoner
A mentally ill prisoner can be admitted into any psychiatric hospital, by an
order passed by an appropriate authority .
Admission of an Escaped Mentally Ill person
A mentally ill person escaping from a psychiatric hospital, can be taken
by any person of the society. The person can be a police officer, or in charge
of the hospital or servant of the psychiatric hospital and readmitted into
CHAPTER V is divided into 4 parts:
Part I, Inspection
Part II, Discharge
Part III, Leave of absence
Part IV, Removal
The State/Central Govt. shall appoint for every
psychiatric hospital and nursing home not less than 5
visitors. Of whom at least 1 is a medical officer,
preferably psychiatrist and 2 social workers.
The head of the medical services of the state shall be an
ex-officio visitor to all such institutes.
The visitors are bound to inspect the psychiatric
hospital/ nursing home on the following lines:
1. Inspection at least once in every month.
2. At lest 3 visitors should be present at the joint
3. Shall write their remarks in the visitors book
regarding management and conditions of those
4. Shall not inspect any personal record of patient
which are confidential in nature.
Discharge of mentally ill person from mental
It is based on certain factors:
i. Recovery or cure
ii. Request from person who had brought petition
iii. The order of an authority, on assuring proper care
by the relatives
iv. A judicial requisition confirmed to be sane.
Chapter VI deals with Judicial inquisition regarding
mentally ill person possessing property, custody of
his person and management of property.
Chapter VII deals with liability to meet the cost of
maintenance of mentally ill person detained in these
Chapter VIII deals with protection of human rights
of mentally ill person.
Chapter IX deals with penalties and procedures
Chapter X deals with miscellaneous issues.
Restraining of mentally ill
Authorized by accredited mental health practitioner .
Adequate facility in that health facility
Risk of Harm to self or others
Person suffering from delirium
No less restrictive alternative available
Done under the personal care of attendants
The consent of the lawful guardian of the insane person has
to be taken, except when the insane person is dangerous to
himself or the others
Treatment given to ensure speedy termination .
Full records – including duration
Information to family members/guardian.
Evaluation of the patient within 4 hour ( 2 hours for
children and adolescent )
CERTIFICATION IN PSYCHIATRY
Psychiatrists are increasingly requested to provide a certificate or
report in connection with the administrative, legal proceedings or
for welfare measures.
Occasionally such certificates may be demanded in a court of law in
relation to civil or criminal matters.
Certificates may be required in psychiatric practice in the following
1. Involuntary hospitalization: a) admission under certain special
circumstances, b) reception order
2. Employment: a)certificate for medical leave from job b) certificate
of fitness to resume duties c) certificate for invalidation from
3. Treatment certificate
4. Disability certificate: a) pension, b) railway concession, c) income
5. medical certificate provided for availing the facilities of
National Illness Assistance Fund or Rastriya Arogya Nidhi.
6. matrimonial matters
7. child custody
8. Criminal responsibility( insanity defense)
Most of the medical certificates are issued by the medical
officer including psychiatrist working in Govt. organization.
Clarity is essential and one should not be over-inclusive
Legal relevance should be kept in mind
Privileged information about others should not be disclosed in
The confidentiality of the certificates should be maintained.
INDIAN DISABILITY EVALUATION AND ASSESSMENT
The Rehabilitation Council Act of India (RCI,1992)
1. Visually handicapped
2. Hearing handicapped
3. Suffering from locomotor disability
4. Suffering from mental retrdation
Persons with Disability( Equal Opportunities,
Protection of Rights and Full Participation) (PWD)
2. Low vision
3. Leprosy-cured person
4. Hearing impairment
5. Locomotor disability
6. Mental retardation
7. Mental illness
Not a criminal proceeding
Prove of negligence
Duty – arise with establishment of treatment relationship
Dereliction – failure to maintain care and skill
Direct causation – direct result of clinician’s action
Damage– physical, emotional
Punishment – fine
The doctrine of res ipsa loquitur
In absence of negligence injury would not have occurred
Doctor had exclusive control over the injury producing
Patient is not guilty of contributory negligence
Gross absence of skill and care, causing serious
injury or death of a person.
Punishment – imprisonment up to 2 years or fine or
both, Sec.304a., IPC
Expert witness- who on account of his professional training is
capable deducing opinions and inferences from the facts
observed by himself or noticed by others.)
In civil case
In criminal case
Two summons on same day from two courts
Proceedings in court-
Examination in chief
Question by Judge
1. Speak the truth
2. Give evidence, irrespective as to whether it is likely to
lead to conviction or acquittal of the accused.
3. Listen closely to the questions asked and give clear
4. While answering, keep in mind the limits of the field
5. Do not use words like ‘always’ or ‘never’
6. If there is no clear answer to the question asked, say “ I
7. Use plain and simple language. If necessary use
8. Speak slowly, distinctly and audibly
9. If in doubt regarding the identity of a previously seen
patients, then one should not hesitate to check past case
10. To clarify doubt check case reports.
11. Should not loose temper
12.Avoid lengthy discussions
13. If a passage is quoted from a textbook, take the book and
check title, year of publication, context of the quoted text or
any other relevant details before answering.
14. Finally it must be remembered that medical/psychiatric
evidence, though admissible, is not conclusive. The final
judgment is delivered by the judge or jury.
The essential of forensic medicine and toxicology- K.S.
Comprehensive textbook of psychiatry
Forensic psychiatry-clinical practice guidelines for
psychiatrists in India, IPS
Oxford handbook of psychiatry
Modern textbook of forensic medicine & toxicology-Putul
Textbook of post graduate psychiatry- Vyas and Ahuja
Various internet sites