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The psychiatrist as expert witness - between a rock and a hard place

The independence, or lack of it, of the Russian judiciary has been much discussed, but Emmanuil Gushansky makes an impassioned plea for the role of mental health experts to be more clearly defined and strengthened
Emmanuil Gushansky
13 December 2009

The problem of mental health expert evidence is becoming increasingly acute in the Russian legal process. It forms the basis for court decisions in grave and dangerous criminal cases, property cases in civil litigation and magistrates’ decisions on issues that are of particular concern to the public.

Expert evidence is experiencing a crisis, as indeed is the whole Russian judicial system.  In my opinion this stems from the important and unresolved problem of the dependence/independence of the judiciary as a whole. An expert must be independent to be able to deliver just and well-founded opinions, but they are not independent.  The courts are not specialized and the judges are reluctant to get involved in the niceties of medical criteria concerning fitness to stand trial and capacity.  But the lives of many thousands of Russian citizens depend on these opinions. 

The crucial role of any expert is surely to make assessments independently of external circumstances and, especially, of the interests of the body commissioning the investigation – whether it’s the infamous “Gazprom tower”, or fitness to stand trial. In actual fact, forensic psychiatric experts are primarily dependent on the investigating authorities, who have no need of their assistance or professional assessments.  What they require is a ready-made alternative decision to absolve the judges from responsibility for the sentences or findings they deliver.

This is all the more dangerous, as opinions concerning mental health must contain an element of probability and not offer the investigators and the court identical conclusions.   Medical and psychological findings are based on biological and social factors and for this reason can only be fairly inconclusive.

Forensic psychiatric committees are not independently monitored, which provides the investigating authorities with unlimited opportunities for influencing the case. The work of these committees is not open and not public: the parties in the case cannot be represented there, even if the representatives are specialists. Committees have nothing to do with court proceedings, when the nuances of the case and the characters of the accused, the plaintiffs and the defendants are, or should be, revealed. They only have access to the case files, which are compiled to suit one concept or another and are by no means always objective.

One case where the experts were treated as equals and were independent and effective was the Budanov trial.  The expert evidence was delivered by representatives of various schools of psychiatry and was unique of its kind.  It was a truly independent exercise; it rejected all the previous decisions which had been made independently of the trial and subject to influences unconnected with the due process of law.

There are various ways of exerting pressure on an expert.  They can be bought off, though such cases do not, unfortunately, fall within the remit of the prosecutor’s office or the higher courts. Or members of the psychiatry committee can be subjected to administrative pressure.  They are not directly involved in the experts’ investigations, but can “guide” them by directly or indirectly making the expert aware of their opinion, which is slanted towards the higher courts and various political or corporate interests and ideas.

For example, at the V.P. Serbsky National Research Centre of Social and Forensic Psychiatry, there is effectively a system of administrative and corporate pressure on the body of experts in operation.  These are usually young, insufficiently qualified and being paid low and undifferentiated salaries (not related to the complexity of the case), so they expect various “services” from influential members of the commission, such as career advancement and help in defending dissertations etc.

The committee system in forensic psychiatric examinations leads to “collective irresponsibility”:  despite the statement of truth, the source of non-objectivity and/or venality of a specific expert cannot be detected.

This collective irresponsibility is well illustrated by the Serbsky Institute expert opinion in the case of N, when the murderer was found unfit to stand trial with a diagnosis of “acute stress”.

In fact, the situation was not one of sudden disaster or catastrophe.  The murderer had kept in touch with the victim, he had clear memory of the disagreement and during a drunken family argument was able (1) to find the weapon in the basement of his house, take aim and fire, (2) hide the weapon and rub it clean of fingerprints, (3) hide from the scene of the crime until the victim had been buried.

As the Serbsky Institute conclusion was that it had been a crime of passion, the murderer needed no compulsory medication and was released.  Now he swaggers about the town, living proof of our equitable system of justice and the unassailable wisdom of our psychiatric experts.

There is unfortunately no discussion of such occurrences in the medical or legal specialist press.

In Russia medical testing is widespread in cases of drunken driving and this test forms the basis for any magistrates’ decisions.  The doctor carrying out the test often works in tandem with the traffic police, who have an interest in the resulting kickback or bribe.  Clinical evidence of drunkenness (or drugs) is omitted; the biological test results are uninformative, because there are no technical records of the findings.

The test does not have specialist status, so it cannot be disputed.  The doctors who do the testing are not obliged to sign a statement of truth, which is why legal decisions on these cases, even if they are sometimes just, cannot be considered lawful.

These are just a few examples of the way in which experts can be pressured, their lack of objectivity and the atmosphere in which they have to operate.  Constant professional development work is needed. This is particularly important, as experts are usually young, insufficiently experienced, and lacking material or other stimuli to work. They are essentially clerks and civil servants, and not doctors who are guided by their conscience in their decisions and bear personal responsibility for them.

The role of the clinical psychologist in mental health expert committees is essentially restricted to an experimental psychological study.   This means that the “psychological portrait in cross-section” of the accused is analysed, whereas what the court needs is a general psychological picture, an analysis of the motives, emotions and behaviour of the person under consideration, together with his domestic, interpersonal and social contacts during the relevant period. For this to happen there must be direct input from a psychologist: he alone is able to give an assessment of mental state and to discuss matters on an equal footing with psychiatrists.  Unfortunately, the psychologists play a secondary role and are “under the thumb” of the psychiatrists who put pressure on them.

In practice, committee members hear a report from the doctor, without going into any detail. They have only a brief meeting of 10 or 15 minutes with the person under consideration. All that is discussed is whether he is in principle fit to stand trial and legally capable.

Committee members either simply agree with the reporting doctor or put pressure on him. They do not avail themselves of their right to express their “particular opinion” in writing, as they cannot know the details of the case and do not take part in the court hearing. So responsibility for the conclusion must lie with the expert who does take part. The court should give each party in the trial the right to call a responsible expert, who should take part in the trial from beginning to end, and be exempt from other work during the time of the court hearings.

If someone is unable to appear in court, the medical institution where he is held is obliged to provide facilities for the court to sit there. 

As a general rule the courts try to avoid using specialists at any stage of a case, but this must be changed and the role of the specialist recognized.  There can also be used as mediators in pre-trial proceedings (in civil cases).  Acting impartially, they can use their professional knowledge to try and bring the parties together.  This sort of mediation is widespread in European court procedure. Russia’s Civil and Criminal codes are unfortunately not sufficiently clear on the role of specialists. The Independent Psychiatric Association of Russia did submit some proposals, but there was no response from the legislature.  

The list of problems is a long one.  They could be solved, if there were the will to do so. To my mind an expert should be a responsible and constant participant in the court proceedings, and present at all stages. Then there would no longer be any need for collective committee decisions, which are almost invariably “irresponsible”. The expert should be paid individually depending on the amount of work and its intensity, and partially out of the court expenses. Medical tests should be carried out at specialized institutions with the results passed to the expert by the doctors, who cannot influence his decision.

The committees should be charged with monitoring expert decisions.  They should be made up of competent representatives of the parties in the trial and specialists from various, not necessarily specialized, psychiatric institutions.

At the same time, doctors treating patients from mental hospitals should be able to defend the interest of those patients when considering the psychiatric expert evidence. Medical tests for drink or drugs charges must have expert status with appropriate responsibility and monitoring systems.

Furthermore, specialists should have an expanded role and more responsibilities when explaining to the court special issues related to their competence and mediation in civil cases, primarily property disputes. All cases involving forensic psychiatry and the abuse of psychiatry in non-medical matters should be opened up to public discussion and published in the specialist press, with public condemnation of unscrupulous practitioners. Data relating to the monitoring of expert activity should also be regularly published and discussed.

To my mind, these are just some of the issues for a general public discussion.

Emmanuil Gushansky is a highly qualified psychiatrist with 53 years of work experience, an academic, and an expert psychiatrist witness at the Versiya bureau of independent examination. 

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