Ethical issues can arise between psychology and the legal system and Compare the legal definition of insanity with the psychological concept of mentally ill

Criminal Responsibility Evaluations: Role of Psychologists in Assessment

Murray Ferguson and James R.P. Ogloff

Centre for Forensic Behavioural Science, Monash University and Victorian Institute of Forensic Mental Health, Australia

The defence of insanity has been in existence for centuries, but it underwent a significant reformulation in English law in the first half of the 19th century. Since that time it has remained largely unchanged. Since its inception, expert evidence in these cases has primarily been the domain of medicine. In spite of this, more recently psychology has been gaining acceptance in this field of mental health and law. Victorian legislation allows for the assessment of mental impairment to be undertaken by psychologists but some courts have been trepidatious in allowing it. The aim of this article is to outline the role that psychologists can and do play in the evaluation of those who plead that they are not criminally responsible on account of mental disorder.

Key words: assessment; criminal responsibility; insanity; mental impairment; psychologist.

What I have

That might your nature honour and exception

Roughly awake, I here proclaim was

Madness Wasn’t Hamlet wronged Laertes? Never Hamlet

If Hamlet from himself be ta’en away, And when he’s not himself does wrong Laertes,

Then Hamlet does it not. Hamlet

denies it Who does it then? His Madness

—Shakespeare (Hamlet)

The idea that one is not responsible for one’s actions when the actions are the product of mental illness, such that they cannot appreciate the nature of their actions, has in one form or another been in existence for centuries (Ogloff, Roberts, & Roesch, 1993). Under law, except for

strict liability offences, to be found guilty of a criminal act one must not only have voluntarily committed the act (actus reus), but also have had the capacity to under- stand the criminality of the act, or form the intent to commit a criminal act (mens rea). ‘‘Insanity’’ is a legal term and not a psychiatric or psychological one. It implies that, because of the effects of mental illness on one’s cognitive process, one cannot form the intent to commit a criminal act or, if intent is formed, it is formed on the basis of irrational thinking caused by the mental illness. Criminal intent is not negated by virtue of having a mental illness or even experiencing specific symptoms of such. It is negated only when such illness renders a person unable to appreciate or understand the nature of their behaviour.

Although the use of the insanity defence in England existed before the 18th century, it

Correspondence: James R. P. Ogloff, 505 Hoddle Street, Clifton Hill, Victoria 3068, Australia. Email: [email protected]

Psychiatry, Psychology and Law Vol. 18, No. 1, February 2011, 79–94

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was rarely used. From 1740 onwards the use of this defence increased dramatically. In the 60 years to 1800 the insanity defence was entered 100 times, and resulted in 50 insanity acquittals in London courts (Moran, 1985); the majority of these, however, were for non-violent property offences such as theft.

Today’s use of the ‘‘not criminally responsible’’ defences in Australia (e.g., Crimes (Mental Impairment and Unfitness to be Tried) Act, Victoria 1997) are steeped in the results of three sensational cases in 19th century England. These cases set in motion a number of changes to the outcomes (R v Hadfield, 1800), expert witness involve- ment (R v Oxford, 1840), and definition of the then insanity defence (R v M’Naughten, 1843). In the case of Hadfield this was the first occasion in which an insanity acquittee was not by law afforded the right of release following the verdict of insanity but was sentenced to indeterminate detention in a mental health institution. Oxford was the first recorded case in which ‘‘expert medical’’ witnesses were allowed to provide opinion evidence rather than fact evidence to which lay witnesses are limited. Finally, M’Naugh- ten is the case on which many jurisdictions today base their definition of criminal responsibility in the statute law.

Following the acquittal of Daniel M’Naughten in 1843 for the murder of Edward Drummond, the private secretary to Sir Robert Peel, then Prime Minister of Britain, the House of Lords were asked to determine a definition of the insanity defence (Schneider, 2010). Their definition became known as the M’Naughten rules (Memon, 2006; Moran, 1985). The rules set out were in part as follows.

A person is presumed sane unless it can be ‘‘clearly proven that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did it, that he did not know he was doing what was wrong.

The mode of putting the latter part of the question to the jury .. . had generally been, whether the accused at the time of doing the act knew the difference between right and wrong.’’

A medical doctor, who never examined the accused, cannot be asked his opinion of the defendant’s state of mind at the time he committed the offence. Such a question involves a judgement on the truth of the facts, which is the province of the jury (R v M’Naughten, 1843, p. 722).

As will be discussed subsequently, the M’Naughten standard consists of three substantive elements. First, it must be determined that the defendant was suffer- ing from ‘‘a defect of reason, from disease of the mind’’. Next, evidence must show that, as a result of the mental disease or defect, the defendant did not ‘‘know’’ the ‘‘nature and quality of the act he was doing’’. Finally, the M’Naughten standard also requires an inquiry to determine whether the defendant knew ‘‘what he was doing was wrong’’. Therefore, the defendant who has a cognitive understand- ing or ‘‘knowledge’’ of his or her act, but who does not demonstrate knowledge that the act was morally wrong, may also be acquitted under the M’Naughten test. The M’Naughten test is referred to as a ‘‘cognitive’’ test of insanity because of its focus on the quality of the defendant’s thought processes at the time of the crime (e.g., Low, Jeffries, & Bonnie, 1986).

With rules of criminal responsibility set out, the next question becomes: who can assess mental impairment for the purpose of a criminal responsibility defence? Since the earliest insanity pleas, the courts have relied on the observations and testimony of medical practitioners, initially general practitioners and, as the field of psychiatry emerged, it became primarily the domain of psychiatrists. Following the end of World War II, the field of clinical psychol- ogy emerged with great fervour (Ogloff, Tomkins, & Bersoff, 1996). While

80 M. Ferguson and J.R.P. Ogloff

psychologists had first entered the courts in the early 20th century, it was this post-war boom that saw clinical psychology make its entrance (Viljoen, Roesch, Ogloff, & Zapf, 2003). In the United States psychologists have been accepted as expert witnesses in criminal responsibility cases for more than 60 years (see Viljoen et al., 2003 for a review of relevant cases). In Australia, in some respects psychologists are still prying the doors to court rooms open in regards to criminal responsibility assessments (Freck- elton & Selby, 2009). This issue will be addressed below in the discussion of case law regarding psychologists as expert witnesses in criminal responsibility assessments.

When it is understood who can assess responsibility, how to assess it must then be evaluated. Earliest evaluations of insanity relied on medical practitioners who had either been treating the accused, had treated family members for madness, or had simply observed the accused in the court room. Today there are a number of ways in which clinicians can assess the mental impairment and mental state of the accused, even retrospectively. Primarily, this is done through observation, interview with the accused and collateral sources, file reviews (Dietz, 1985; Ogloff et al., 1993; Simon & Shuman, 2002) and, in the domain of psychologists for the most part, the use of structured assessment instruments. Importantly, clinicians must be mindful of the motivation of accused persons to malinger their symptoms for the purpose of being found not criminally responsible (Ogloff et al., 1993). Prior to the introduction of the Crimes (Mental Impairment and Fitness to be Tried) Act 1997 in Victoria, as was the case in most States, so-called insanity acquittees were held under indeterminate detention ‘‘at the Governor’s pleasure’’. With the introduc- tion of the new act, however, legislative reform was put in place to replace the system that derived from English law in

1800 (Criminal Lunatics Act, 1800). A discussion of the new procedures of senten- cing and release of those found not criminally responsible is beyond the scope of this article.

This article will discuss the areas introduced above, beginning with an over- view of the M’Naughten rules, followed by a discussion of the relevant statute and case law in the area of criminal responsibility on account of mental impairment. The re- search findings supporting the role and ability of psychology to undertake the required components of a criminal respon- sibility assessment will also be reviewed. Finally, the article will conclude with a brief discussion of some practical and ethical concerns for psychologists working in this field.

M’Naughten Rules

Definition of the Rules

The terms that constitute the M’Naughten rules are perhaps not as straight forward as they might first appear. Various jurisdic- tions have sometimes interpreted the mean- ing of the rules, ‘‘defect of reason from disease of the mind’’, ‘‘nature and quality of the act’’, and ‘‘wrongfulness’’, in differ- ent ways. Indeed, while the Victorian law follows the M’Naughten rules, many no- table exceptions and distinctions have been drawn and are noted below.

Mental illness (i.e., disease of the mind), with respect to Victoria, is defined as ‘‘being a medical condition that is char- acterized by a significant disturbance of thought, mood, perception or memory’’ (Mental Health Act, 1986). In law, this is further expanded to include not only all forms of physical change to the structure of the brain but also to every recognizable disorder, whether or not it can be under- stood, that involves derangement of under- standing (for an early discussion see Dixon, 1957). Further, it is understood to be a disorder of reasoning processes, in part at

Psychology in Criminal Responsibility Evaluation 81

least, caused by stress internal to a person (McSherry, 1990; Yannoulidis, 2003). Per- haps a more clear and legally useful definition has been given in the United States Court ruling in McDonald v United States (Slovenko, 1999), where it is defined as a ‘‘substantial disorder of thought or mood which significantly impairs judge- ment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life’’ (p. 171).

One must be careful in using legal definitions, however, to define psychiatric phenomena. What is seen to be useful legally is not always useful clinically. The above definition, while useful for under- standing mental illness under the rules of criminal responsibility, is a rather vague understanding of not only the large num- ber of known mental disorders, but the way in which persons are idiosyncratically affected by them. Moreover the apparently passing mention of ‘‘substantial disorder of . . . behavior’’ is particularly vexing be- cause neither the M’Naughten standards, nor the Victorian law for that matter, include a volitional prong (Ogloff et al., 1993). In reality it is the effect of the symptoms on the person, not necessarily the disease itself, that are important in understanding a person’s ability to reason (Ogloff et al., 1993).

The term wrongfulness can be viewed by two meanings: moral wrongfulness and legal wrongfulness. Knowing an act is morally wrong implies that regardless of an act’s legality, a reasonable person would view the act as one that society would not condone. For an act to be illegal it must be deemed so under the law of the jurisdiction in which the act takes place. The issue for criminal responsibility is that by taking a view of wrongfulness as simply that which is legally wrong, the defence is significantly narrowed. For example, returning to the case of James Hadfield, while he knew that killing the King was an illegal act for which he would be hanged (the reason he

committed the act), he believed that it was morally the correct decision in that his action and ensuing death would ensure the salvation of mankind. Had the law been restricted to the legal definition of wrong- fulness, Hadfield’s original wish would likely have come to fruition. In Canada the courts had originally adopted the nar- row interpretation that the accused must merely know that his or her act was legally wrong (R v Codere, 1916) This was similar to the courts in England. Ensuing cases, however, Chaulk v The Queen (1990) and R v Ratti (1991), saw the Supreme Court of Canada overrule a previous decision by one of its own (Verdun-Jones, 1994). In Chaulk v The Queen (1990) the Supreme Court of Canada ruled the following.

In considering the capacity of a person to know whether an act is one that he ought or ought not to do, the inquiry cannot terminate with the discovery that the accused knew that the act was contrary to the formal law. That person may well be aware that an act is contrary to law but by reason of disease of the mind is, at the same time, incapable of knowing that the act is morally wrong in the circumstances according to the moral standards of society. This would be the case where for example the accused by reason of disease of the mind knew that it was legally wrong to kill, but kills in the belief that it is in response to a divine order and therefore not morally wrong (para. 10).

As in Canada, the High Court of Australia has ruled that the term ‘‘wrong- fulness’’ should take the line of the less restrictive view. In R v Porter (1933), Dixon ruled that ‘‘what is meant by wrong is wrong having regard to everyday stan- dards of reasonable people’’ (para. 189). This is taken to mean morally wrong as in Stapleton v The Queen (1952), where it was also ruled that wrongfulness does not only imply legally wrong, but that one must be incapable of appreciating that his act was wrong according to the ordinary standards adopted by reasonable men.

82 M. Ferguson and J.R.P. Ogloff

Australian Law

Statute Law

The statute law in regards to the defence of mental impairment in Australia does have some jurisdictional differences, but the jurisdictions generally follow the M’Naughten rules with some degree of similarity. Specifically, in the State of Victoria, which will be the focus of this article, the Act in which mental impairment is considered is the Crimes (Mental Im- pairment and Unfitness to be Tried) Act (1997). Under s20:

(1) The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that— (a) he or she did not know the nature and quality of the conduct; or (b) he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).

While the Commonwealth and other Australian jurisdictions have chosen to define mental impairment (Freckelton & Selby, 2009; McSherry, 1999), Victoria has refrained. While this serves the purpose of keeping the interpretation of mental impair- ment broad and flexible, in reality it continues to be defined, under the common law at least, by the same standard set out under the old insanity legislation as a disease of the mind (Victorian Law Reform Com- mission, 2004). It can be argued that this lack of definition is not problematic given that it is the M’Naughten elements rather than the illness itself per se, that determine the limits of the defence. While a diagnosis of a mental disorder may be necessary, which disorder it may be is relatively inconsequen- tial (Viljoen et al., 2003).

In terms of Australian statutory law there is nothing to suggest that

psychologists are not legally entitled to conduct mental impairment assessments. Many Australian States have not enacted laws that specifically list those who are entitled to undertake these assessments (i.e., New South Wales, Northern Terri- tory, Queensland), while, others have legislation that specifically stipulates psy- chologists as professionals who are entitled to undertake these assessments (i.e., Tas- mania and Victoria), and the remainder have neither specifically stipulated psychol- ogist entitlement nor refused it. In South Australia, for example, s. 296F of the Criminal Law Consolidation Act (1935) states the following.

(1) The court— (a) must hear relevant evidence and

representations put to the court by the prosecution and the defence on the question of the defendant’s mental competence to commit the offence; and

(b) may require the defendant to undergo an examination by a psychiatrist or other appropri- ate expert and require the re- sults of the examination to be reported to the court.

There is no reason to suggest that psychol- ogists should not be accepted as an ‘‘other appropriate expert’’.

Case Law and the Role of the Psychologist

In the past, and currently (see discussion of case law below), the common law has relied upon medical practitioners and psychia- trists to undertake these assessments and inform the court. Initially, this was the case largely because effectively clinical psychol- ogy did not exist until after World War II (Viljoen et al., 2003). As such, medical practitioners and then psychiatrists were relied upon to make medical diagnoses. While one might reasonably expect that the

Psychology in Criminal Responsibility Evaluation 83

assessing clinician would have a profes- sional background in the assessment of mental illness, this does imply that it is the domain of only psychiatrists or other medical practitioners.

Early case law in Australia indicated that, like in Canada and the United States, mental impairment defence assessments were the domain of psychiatrists. In A-G (SA) v Brown (1959), in which a seemingly unmotivated killing occurred, the High Court implied that medical evidence is that which is required in relation to the mental state of the accused at the time of the killing. Furthermore, in R v MacK- enney (1981), it was stated by the bench that ‘‘a psychologist with no medical qualifications cannot be called to give expert evidence whether a defendant is suffering from any specific disease or defect or abnormality of the mind. However . . . it may, in a proper case, be permissible to call psychiatric evidence. . .’’ (p.271). This is a curious judgement when one considers the definition of psychology as ‘‘the scientific study of the human mind and its func- tions’’ (Soannes & Hawker, 2005).

In The Queen v D’Aloisio (2006) the testimony of a clinical psychologist diag- nosing mental impairment was again brought into question. In this case the psychologist’s testimony was rejected be- cause it was at odds with the evidence of an experienced forensic psychiatrist. While Eames did not dismiss the psychological testimony outright he did rule that the testimony of a psychiatrist was more credible and valid than that of a psychol- ogist with specialized knowledge in the area. Ultimately, however, the psycholo- gist’s testimony was questioned not due to it being that of a psychologist but rather due to the psychologist’s lack of compar- able forensic experience to that of the psychiatrist. Eames stated the following.

I will assume, without deciding the ques- tion, that [the psychologist] was qualified

to make the diagnosis of major depres- sion. Nonetheless, whilst I accept that you had symptoms of depression both before and at the time of these offences I am not persuaded as to the accuracy of the diagnosis of major depression, given [the psychiatrist’s] failure to make the same diagnosis. [The psychologist] had vastly less experience in a forensic context than [the psychiatrist]. . .. Unlike the hundreds of court appearances made by [the psychiatrist], [the psychologist] had given evidence on few occasions: only once before in the Magistrates’ Court, once in the County Court and also (apparently more than once) to the Medical Registra- tion Board (at [36]).

A third clinician, also a psychologist, gave evidence that included diagnosing mental illness. Although this evidence was not called into question, it may have been in large part due to the expert’s support of the diagnosis of the psychiatrist.

In an earlier judgement in R v Kucma (2005), Batt expressed the view that psy- chologists are not qualified to give evidence on mental impairment. ‘‘In my opinion, the field of expertise responsive to the matters raised by s 20 of the 1997 Act is psychiatry, the discipline concerned with mental health, and does not include psychology. The experience of counsel for the respon- dent that it has always been psychiatrists who give evidence in cases of insanity or mental impairment tends to support this opinion’’ (at [26]). It is of some concern that judges are of the belief that psychology is not a discipline concerned with mental health, and furthermore that this belief is partially based on the ‘‘experience of counsel for the respondent’’, in this case the prosecution.

A review of the case law in Australia reveals very few cases in which psycholo- gists’ testimony has been sought and, as noted above, many have been less than accepting of said testimony. There are however, at least three cases in Australia in which judges have accepted that psy- chologists are qualified to present expert

84 M. Ferguson and J.R.P. Ogloff

testimony in regards to mental impairment defence assessments. In the Court of Criminal Appeal (Victoria) in R v Whit- bread (1995), Hampel stated the following.

In my opinion the assumption on which his honour proceeded, namely that the witness was an expert in his field and therefore able to express opinions of the kind which are proffered was perfectly correct. Standard and medical diction- aries define ‘‘psychology’’ as a branch of science which deals with the mind and mental processes. They refer to ‘‘psychol- ogy as the science of nature, functioning and development of the human mind and the study of the behaviour of the mind. ‘‘A psychologist’’ is an individual who has made a professional study of and who practices in the field of psychology. The definition in the Glossary of Psychiatric Terminology refers to a psychologist as ‘‘A [sic] person, usually with an advanced degree, who specializes in the study of mental processes and the treatment of mental disorders . . . There is nothing in the definitions or the literature about the functions of a psychologist and a psy- chiatrist which differentiates between them on the basis that one has more or less understanding and knowledge of the nature and functioning of the mind in its normal or abnormal states (at [28]).

It is quite clear from the comments of Hampel that there is a place for clinical psychology in the assessment of mental impairment for the purpose of criminal responsibility within the courts of Victoria. Furthermore, while one of the bench colleagues of Hampel agreed with him, the other dissented for reasons of the admissibility of the evidence in question but not for the reason that the expert was a psychologist (Freckelton, 1997). One cau- tionary note must be stated here. Although Hampel reported the definition of ‘‘a psychologist’’ as an individual usually with an advanced degree, this is not as likely as other jurisdictions to be the case in Australia (Freckelton & Selby, 2009). Although a discussion of the registration requirements of psychologists is well

beyond the scope of this article it is necessary to point out that a large number of Australian psychologists do not have advanced degrees, or specific training in the diagnosis of mental disorders, having completed an honours year and a further 2 years of supervision. Hampel’s statements should likely be restricted to clinical psychologists with at least Masters level training and preferably Doctoral training.

In further support of psychologists in the assessment of mental impairment Hampel went on to say the following.

It is, I think, common knowledge and experience that some psychologists have a greater knowledge and qualifications in the science which is concerned with the mental states and processes of the mind than some psychiatrists. Once the ques- tion of medical treatment of mental illness is put to one side there is no reason why a psychologist may not be just as qualified or better qualified than a psychiatrist to express opinions about mental states and processes . . . In my experience I have not heard an objection taken to the expres- sion of such opinions by psychologists on the ground that they are not qualified (at [28]).

It is also the case that in R v Telford (2004), psychological testimony was pre- ferred to that of two psychiatrists. Perry stated the following.

There are obviously some differences of opinion between the three medical experts whose reports are before the Court. Resolution of those differences is not made any easier by reason of the fact that neither counsel saw fit to call any of the experts to give evidence. I am there- fore in the position of having to do my best to come to findings as to the likely mental state of the accused, on the basis of the written material alone. Where necessary to resolve differences, I prefer the opinions expressed by [the psycholo- gist]. He had an extended interview with the accused, and as well, gives an impressively detailed account of the ac- cused’s personal history (at [84]).

Psychology in Criminal Responsibility Evaluation 85

In the case of Nepi v Northern Territory of Australia (Freckelton, 1998; Freckelton & Selby, 2009, 684) the original judgement ruled that although the psychologist had the right to give evidence on psychological disorders, the testimony in regards to psychiatric evidence should be inadmissi- ble. This was based on the earlier case of R v Peisley (1990) in which Wood opined the following.

It is important that psychologists do not cross the barrier of their expertise. It is appropriate for persons trained in the field of clinical psychology to give evi- dence of the results of psychometric and other psychological testing . . . It is not, however, appropriate for them to enter into the field of psychiatry (at [52]).

In Nepi v Northern Territory (1997), however, Martin on appeal looked not at what was psychological or psychiatric per se, but rather what the expertise of the witness was and whether, as required under the relevant legislation the psychologist possessed specialized knowledge as a result of their study, training or experience. It was determined that if a psychologist is possessed of this specialized knowledge, in this case the diagnosis of post-traumatic stress disorder, then they should be ac- cepted by the court as an expert in their field with the capability of providing the expert evidence in question.

Given evidence of both support and rejection for the notion of psychologists providing assessment and evidence in criminal responsibility cases, the state of the common law in terms of the expertise of psychologists to diagnose remains un- clear. Having said that, the judiciary has been accepting of psychologists’ testimony in a number of cases. Perhaps the hege- mony of psychiatrists in mental impair- ment assessments is coming to an end. In any case, as stated above, under statute law in Australia there is no restriction on the admissibility of expert evidence by psychol- ogists in relation to mental impairment

defence so long as it falls within the Evidence Act (Cth, 1995; NSW, 1995; Tas, 2001; Vic, 2008), where under section 79 it is provided that, ‘‘If a person has specialized knowledge based on the per- son’s training, study or experience, the opinion rule [section 76] does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge’’ (p. 51). An early criticism of psychological evidence was that, unlike that of psychiatry, it was not beyond the knowledge of the average layperson (Pacht, Kuehn, Basset, & Nash, as cited in Viljoen et al., 2003). If, however, psychologists are providing technical/specialized evidence then it follows that this early criticism, at least in the area of mental impairment, is unfounded.

Assumptions the Law Makes about Psychology

Under the Crimes (Mental Impairment and Fitness to be Tried) Act (1997), a number of assumptions are made about the role that psychology can play in assessing mental impairment for the purpose of the pleas of not criminally responsible on account of mental impairment. First and most importantly, there is an assumption that it is possible to assess a person’s mental state and mental health at the time of the offence. This can be difficult given that assessments are often undertaken well after the completion of the criminal act. The law also assumes that psychologists are capable of diagnosing and assessing mental illness (in common law this equates to a ‘‘disease of the mind’’). Furthermore, the law assumes that not only can psychol- ogists assess whether a person was mentally ill at the time of the offence and whether this may have played some impact on the offending behaviour, the law must also assume that psychologists can identify those who are feigning or malingering their symptoms. Finally, by putting trust in

86 M. Ferguson and J.R.P. Ogloff

psychologists in informing the court about matters related to mental impairment, the law assumes that psychologists will carry out their professional duties in an ethically and responsible manner.

Assessment of Mental Impairment

Retrospective Assessment of Mental State

It seems intuitive that assessing an indivi- dual’s mental state at a time in the past has some significant problems – especially when that person may have a poor ability to adequately describe their experiences due to the very issue an evaluator is trying to assess: the mental state. Research has sought to address the reliability and validity of retrospective mental state ex- aminations. Studies assessing reliability are rare and those assessing validity almost non-existent (Melton, Petrila, Poythress, & Slobogin, 2007). The validity of criminal responsibility evaluations is difficult to study and measure as a result of the absence of ‘‘ground truths’’ (Rogers & Ewing, 1992). As such, research has assessed validity through studies of agree- ment between the evidence reported by expert witnesses and outcomes in the courts. Agreement has been reported in the range of 88–93% (Daniel & Harris, 1981; Fukunaga, Pasewark, Hawkins, & Gudeman, 1981) and psychologists have been shown to attain high levels of validity in this regard (Rogers, Wasyliw, & Cava- naugh, 1984).

There is some discrepancy between the evaluations of psychologists and psychia- trists as a result of their training and theoretical backgrounds. Clinical inter- views tend to be utilized more readily by psychiatrists, while psychologists seek to obtain their information through inter- views, observations, obtainment of collat- eral information (Beckman, Annis, & Gustafson, 1989; Petrila & Poythress, 1983) and the use of objective tests (Borum & Grisso, 1995). A number of objective

tests have been utilized in the past to assess mental state and diagnose mental illness retrospectively. The two most used instru- ments, the Rorschach and the Minnesota Multiphasic Personality Inventory-2 (MMPI-2), have both fared poorly at distinguishing between groups of offenders found guilty and those found not crimin- ally responsible (Boehnert, 1985, 1987, 1988; Rogers & Semen, 1983). In light of the poor performance on these previous measures the Rogers Criminal Responsi- bility Assessment Scale (R-CRAS) (Rogers 1984) was developed to quantify specific symptoms of mental illness related to mental impairment for the purpose of assessing criminal responsibility. Studies have shown the R-CRAS to be a highly reliable measure for retrospectively asses- sing symptoms and characteristics that are associated with criminal responsibility as- sessments (Rogers & Sewell, 1999). The Schedule of Affective Disorders and Schi- zophrenia (SADS) (Spitzer & Endicott, as cited in Rogers & Sewell, 1999) has also been shown to have excellent interrater reliability, and additionally allows clini- cians to assess symptoms of severe mental illness at discrete times. Rogers and Cava- naugh (1981) reported that the SADS, with slight modification, can be used to retro- spectively evaluate the accused’s function- ing at the time the offence was committed.

Diagnosis

Clinical psychologists are specialists in the assessment, diagnosis and treatment of psychological problems and mental illness (American Psychological Association, 2002; Australian Psychological Society [APS], 2007), and diseases of the brain (MedicineNet, 2007). While past research has indicated that diagnosis of specific psychiatric disorders has had marginal interrater reliability (Matarazzo, 1983), according to the American Psychological Association (1992) diagnosis is where the

Psychology in Criminal Responsibility Evaluation 87

greatest agreement between criminal re- sponsibility evaluators occurs. Research has shown that many clinical psychologists are able to reliably diagnose mental dis- orders (Viljoen et al., 2003). But this does not mean that all psychologist or clinical psychologists are competent to diagnose and undertake mental impairment defence assessments.

Like the medical profession, psychol- ogy is a discipline with wide-ranging areas of practice and expertise. Furthermore, training in psychiatry does not in and of itself render one competent to undertake mental impairment assessments, and nor does training in clinical psychology. One must have training and qualifications specific to the assessment of mental im- pairment before they can be thought of as competent to perform such evaluations. So too this is the case in psychology. A postgraduate degree in clinical psychology is necessary but not sufficient to render someone competent to undertake mental impairment assessments. But as in psychia- try and other disciplines involving those who are called as expert witnesses, the competence of the expert is in some ways a matter for the court to decide. That is, the court decides whether, given the indivi- dual’s training, qualifications, and experi- ence, their testimony should be admissible and how much weight it should be given when coming to a decision about the matter at hand.

There can be no argument that an individual properly trained in clinical psychology, with practice experience in assessment of mental illness, is well suited to diagnosing mental illness. Further train- ing in respect to the specific and specialized area of mental impairment defence assess- ments, however, is necessary. But this is also the case for any other mental health professional undertaking such evaluations.

Under the Crimes (Mental Impairment and Fitness to be Tried) Act (1997), a person must have been suffering a mental

impairment. At common law this has been construed as suffering a disease of the mind. The Diagnostic and Statistical Manual of Mental Disorders-IV-Text Revision (Amer- ican Psychiatric Association, 2000) is one resource used by psychiatrists and psychol- ogists in making diagnoses of mental dis- orders or diseases of the mind. While this has become the standard assessment tool, it is not without its caveats in the area of mental health and law. The American Psychiatric Association (2000) acknowledges that there is a risk of diagnostic information being misunderstood or even misused. ‘‘These dangers arise because of the imperfect fit between the question of ultimate concern to the law and the information contained in a clinical diagnosis . . . When used appropri- ately diagnoses and diagnostic information can assist decision makers in their determi- nations’’ (American Psychiatric Associa- tion, 2000, p. xxxiii). One must remember that although a diagnosis of mental impair- ment or disease of the mind is necessary, it is not sufficient for the negation of criminal responsibility. It is necessary to separately assess functional mental capacity or impair- ment (Simon, 2002). A person with schizo- phrenia may still be able to understand the nature of their actions and that the act in question is wrong (both morally and leg- ally). It is ironic that if Daniel M’Naughten were tried under the current standard of M’Naughten rule in Victoria, he would have been found guilty because he knew both the nature and quality of the act and that what he was doing was wrong (Memon, 2006).

Psychologists must be careful in pro- viding their evidence around diagnosis and mental state to ensure that the meaning of constructs and terms are clear to the decision-maker (judge or jury), assisting them in the ultimate issue decision. Because a psychologist giving evidence is not the trier of fact, their role is to speak to the mental state and mental impairment pre- sent at the time of the offence. It is not their responsibility to form an opinion about the

88 M. Ferguson and J.R.P. Ogloff

ultimate issue but to provide information for others to make that decision.

Malingering

The ability of properly trained and experi- enced clinical and forensic psychologists to accurately differentiate real symptoms from those that are feigned is critical in criminal responsibility evaluations (Cornell & Hawk, 1989). The intentional produc- tion or exaggeration of psychological symptoms motivated by external incentives is commonly known as malingering (Amer- ican Psychiatric Association, 2000). Two characteristics that differ between assess- ment in forensic and civil evaluations of mental impairment are ensuring that in- vestigative procedures fall within legal criteria and ensuring that due considera- tion is given to malingering or exaggeration (Waysliw & Cavanaugh, 1989). In clinical settings, clients may distort the truth in an unconscious manner, but rarely have rea- son to actively deceive or manipulate the clinician (Melton et al., 2007). In the case of criminal behaviour, deception may be an attempt to avoid criminal prosecution, incarceration and in some jurisdictions (although not Australia) the death penalty for capital crimes (Bourg, Connor, & Landis, 1995; Melton et al., 2007).

While psychologists should be mindful of malingering when undertaking any for- ensic evaluation, they should be comforted in the fact that research suggests that psychologists are quite adept at assessing it. Bourg et al. (1995) conducted a study to assess the accuracy with which clinical and forensic psychologists could distinguish be- tween malingerers and insanity acquittees. Participants were asked to review a variety of psychological data from one of four cases (two cases of malingering, two cases of insanity). Results showed that 86.4% of psychologists accurately categorized indivi- duals into the two groups. Interestingly, both forensic and clinical psychologists rated

their confidence in having made the correct decision as moderate (M ¼ 3.0 on a scale of 1–6). Further studies have found similar results, with correct classification reaching as high as 90% (Kucharski, Ryan, Vogt, & Goodloe, 1998).

Studies of malingerers have noted some specific symptoms and clinical indicators indicative of feigning. Symptoms often expressed by malingerers include auditory and visual hallucinations, mutism, depres- sion or melancholia, mania and even mental retardation. Clinical indicators include over- acting, calling attention to the illness, lack of subtle signs or residual schizophrenia, and sudden onset of symptoms (Cornell & Hawk, 1989; Resnick, 1993).

Like the R-CRAS and SADS, there are also structured assessment tools that can be used for the evaluation of malingering in forensic contexts. The MMPI/MMPI-2 has been the subject of extensive research in the assessment of malingering. Results have in some respects been variable across various studies but with careful interpretation the MMPI/MMPI-2 is thought to be the most empirically supported among conventional tests (Melton et al., 2007). Another useful tool in the assessment of malingering in the forensic context is the Personality Assess- ment Inventory (PAI) (Morey, 1991). Re- search has consistently shown the PAI to be valid for screening potential malingers (Boccaccini, Murrie, & Duncan, 2006). Its validity in this respect, however, is limited to the Negative Impression Scale (Kucharski, Toomey, Fila, & Duncan, 2007; Rogers, Sewell, Cruise, Wang, & Ustad, 1998) and the Malingering Index (Rogers, Sewell, et al., 1998). The Structured Interview of Reported Symptoms (SIRS) was specifically designed to assess feigning and related response styles (Rogers, Bagby, & Dickens, 1992). The SIRS has been extensively validated (Rogers, 2001), including a screen- ing version (Norris & May, 1998).

Malingering is likely to be a serious issue in forensic assessments, especially

Psychology in Criminal Responsibility Evaluation 89

when criminal responsibility is a question, with estimated prevalence in the range of 10–25% (Heinze, 2003; Lewis, Simcox, & Berry, 2002; Rogers, Salekin, Sewell, Gold- stein, & Leonard, 1998; Rogers, Ustad, & Salekin, 1998). With training in its detec- tion (Rogers, 1997; Rogers & Bender, 2003), however, and the use of the afore- mentioned evaluation instruments, clini- cians have the tools required to correctly assess this phenomenon in forensic assess- ments. While the skills to carry out these assessments are attainable, it is the respon- sibility of the practitioner to ensure that they have sufficient expertise in the area before embarking on work in this field.

Ethical Practice

If psychologists are to play an active role in assisting courts to make determinations of criminal responsibility, it is important that psychologists carry out these duties in a professional and ethical manner. Although no specific guidelines are in place in Australia to inform psychologists about ethical issues specific to their foray into the legal system, guidance can be found in other jurisdictions such as the Medico-Legal Guidelines published by the Medical Practi- tioners Board of Victoria (2006), and the Expert Witness Code of Conduct (Supreme Court of Victoria, 2005). Furthermore, guidance specific to psychologists can be found outside of Australia. For example, the Committee on Ethical Guidelines for For- ensic Psychologists, a joint taskforce of the American Psychological Association and the American Psychology–Law Society, has developed specialty guidelines for forensic psychologists (Committee on Ethical Guide- lines for Forensic Psychologists, 1991). Briefly, those guidelines relate to the assess- ment of criminal responsibility and suggest that psychologists should serve only where they have specialized knowledge in the area, they must inform the court of limits to their competency, and decline referrals when they

may not be able to prevent their own personal values and moral beliefs from interfering with their work. Furthermore, psychologists must always have available for the court all evidence used in the formation of their expert opinion, they must have approval of the legal party to access third party or collateral information, unless access is ordered by the court, and psychologists must refrain from giving evidence when they have managed nothing more than an inadequate evaluation of the legal party.

To put this into the current context, psychologists should not engage in criminal responsibility assessments unless they have undergone specialist training in the areas of mental state examinations, diagnosis of mental illness related to the forensic popula- tions, and assessment of malingering. One criterion, at the very least, in the Australian context should be membership of or at least eligibility for membership in both the College of Forensic Psychologists and the College of Clinical Psychologists of the APS. Furthermore, as outlined in the APS Code of Ethics (APS, 2004a) and the Ethical Guidelines (APS, 2004b) psychologists should use psychological assessment instru- ments only with appropriate training and experience, and psychologists must ensure that tests are ‘‘chosen, administered and interpreted appropriately and accurately’’ (p. 54). Although an array of assessment instruments is available for use in mental impairment evaluations, many of which have been found to be both valid and reliable, psychologists are responsible for ensuring their proper use. Being insuffi- ciently trained in the use of such instruments and selecting inappropriate assessment tools will render their outcomes invalid and negatively impact on psychologists’ reputa- tion for competence in diagnosing.

Conclusion

The legal rules governing what is known today as the Not Criminally Responsible

90 M. Ferguson and J.R.P. Ogloff

on Account of Mental Disorder defence, were established in the outcomes of three significant English law trials, those of James Hadfield, Edward Oxford and Da- niel M’Naughten. In the intervening years since 1843, the rules governing this defence, previously known as the insanity defence, have remained largely unchanged. Initially evaluations of the accused pleading not criminally responsible fell first to medical practitioners and then, with the develop- ment of mental health specializations, psychiatry. Psychology’s first foray into the courts came in the early 1900s but it was not until the birth of clinical psychol- ogy after World War II that psychologists began evaluating criminal responsibility (Viljoen et al., 2003). Although psycholo- gists’ capacity to diagnose has generally been accepted in the United States and, to a lesser extent, Canada, this is far from the case in jurisdictions such as Australia. In spite of this, psychology has continued to insert itself where possible with varying degrees of success. Indeed, the second author has prepared reports and given evidence in many mental impairment cases without question or incident.

In the current legislation in Australia and, more specifically Victoria, there is nothing that prohibits criminal responsibil- ity evaluations being undertaken by regis- tered psychologists. Indeed, there is a precedent for the appropriateness of such opinions being expressed by psychologists in Victoria (R v Whitbread, 1995), but this has not come without its critics. Despite the ongoing confusion in the case law at present, psychology does have much to offer in regard to this area of law. Requirements of evaluations of criminal responsibility re- quire a number of difficult tasks, but tasks in which many clinical psychologists have competence. As discussed above, assessing criminal responsibility often requires eva- luation well after the commission of the act. Research has shown that mental health professionals and clinical psychologists in

particular are quite capable of this. The use of structured assessment tools such as the SADS and R-CRAS has greatly increased the reliability and validity of such assess- ments. Research has also shown that psy- chologists are capable of reliably diagnosing mental illness, which, although a require- ment of the mental impairment defence, is in reality a side issue. It is the assessment of the components of the M’Naughten rules that are the basis of the evaluation. Having said that, it is important to remember that the role of psychology is not to decide on the ultimate issue in law. Although psychology can assist the trier of fact in determining the mental state and underlying mental illness, it the task of the trier of fact (i.e., the judge or jury) to determine whether the experiences of the accused, at the time of the offence, were enough to prevent him or her from reasoning about the nature and quality of the act in question or to prevent him or her from knowing that the act was morally wrong.

Finally, in order for psychologists to continue to develop their role in the discipline of law, and gain the respect of those in the discipline, psychologists must continue to work in a professional and ethical manner. This includes knowing and acknowledging the limits of their specia- lized knowledge, and not overstepping these boundaries. One issue in Australia is the immense variability in the educational and experiential background of psycholo- gists. While there is no doubt that a significant number of psychologists have the expertise to undertake forensic work, and more specifically mental impairment assessments, it must be clear that being a psychologist, just like merely being a medical practitioner, is not enough. As in medicine, where mental impairment assess- ments are conducted by a specialist trained forensic psychiatrist, so too in psychology these assessments should be conducted only by specialist trained clinical and forensic psychologists.

Psychology in Criminal Responsibility Evaluation 91

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