Legal frameworks and key concepts regulating diversion and treatment of mentally disordered offenders in european union member states

Drug-facilitated sexual assault followed by femicidal chloroform poisoning and suffocation: A case-report of criminal responsibility

INTRODUCTION

Criminal responsibility evaluation represents one of the most controversial and debated issues in forensic psychiatry. Although clear procedures have been recommended, little research exists on decision-making process by forensic psychiatrists. We present a case assessing the criminal responsibility of a murderer who committed femicide as a result of chloroform poisoning and suffocation after a drug-facilitated sexual assault.

MATERIALS AND METHODS

A.S., a 30-year-old female, was found dead in the home of S.P., a 50-year-old male. S.P. recounted killing A.S. by forced inhalation of chloroform, when the woman had experienced sensory clouding following unintentional ingestion of Zolpidem, a hypnotic agent. A multidisciplinary approach was taken to resolve the case. Autopsy, histological, genetic, and toxicological examinations were performed by a forensic pathologist, while a digital forensic examiner analysed electronic devices. A pool of three forensic psychiatrists and two psychologists was asked to assess the mental state of S.P. at the time of the crime.

RESULTS AND CONCLUSIONS

The cause of death of A.S. was identified as a lethal chloroform intoxication in altered consciousness caused by Zolpidem, while homicidal suffocation was also described. Mobile forensics demonstrated that S.P. had videotaped the crime scene, clearly revealing that A.S. had been sexually assaulted by S.P. before dying. Criminal responsibility of S.P. was evaluated through various psychological tests and seven interviews with the accused, each lasting an average of 180 min. Specialists concluded that S.P. could not be exempted from being responsible for the homicide.

Diminished criminal responsibility: A multinational comparative review

This article reviews the legal frameworks of diminished criminal responsibility in eighteen civil law jurisdictions across the globe-Brazil, Chile, China, the Czech Republic, Finland, France, Germany, Greece, Italy, Japan, Luxembourg, Poland, Portugal, Russia, Spain, Switzerland, Taiwan, and Turkey. Specifically, it reports the legal standards and main features of partial responsibility, associated penalty reductions, and potential dispositions following a partial responsibility finding. It also surveys empirical data on the prevalence of diminished responsibility as compared to criminal nonresponsibility. This article, which reflects contemporary penal codes and draws from both English and non-English sources, is the only known existing source to compile these partial responsibility standards or to delineate their precise sentencing consequences. It is also the only known source in English to describe Portugal's and Chile's treatment of diminished responsibility. Providing a comparative overview of graduated responsibility in nearly twenty countries invites global discussion on whether and how society should recognize partial responsibility, as well as the punitive and therapeutic consequences that should attend this finding.

Difference between forensic patients with schizophrenia spectrum disorders in Italy and other European countries: Results of the EU-VIORMED project

BACKGROUND

There has been a substantial change in the law on the provision of secure health services for offender-patients in Italy, a country currently with the lowest general psychiatry bed availability per head of the population in Europe, raising questions about possible differences in offender-patient admissions between European countries.

AIMS

In this multicentre case-control study, our aim was to compare the socio-demographic, clinical and criminological characteristics of a sample of Italian forensic in-patients with schizophrenia or similar psychosis with patients in a similar diagnostic range in specialist in-patient services elsewhere in Europe.

METHODS

Secure hospital unit in-patients with psychosis were recruited across five European countries (Italy, Austria, Germany, Poland and England). Consenting patients were interviewed by researchers and assessed using a multidimensional standardised process. Within country similarities between Austria, Germany, Poland and England were confirmed.

RESULTS

Overall, 39 Italian participants had had fewer years of education than the 182 patients in the other countries and were less likely to have ever had skilled or professional employment. The Italian patients had been older at first contact with any mental health services than the other Europeans. Diagnosed comorbidity rates were similar, but the Italian group reported higher levels of disability. Although the other European forensic patients were more likely to be undergoing treatment at the time of their index offence, they were also more likely to have been poorly compliant with treatment. The rate of suicide-related behaviours was significantly lower among the Italian patients than among the others.

CONCLUSIONS

Notwithstanding similar diagnoses, important differences emerged between patients in Italian forensic mental health resident services and those in four other European countries, some possibly reflecting less access to earlier relevant services in Italy. Others, including lower disability ratings among the Italian patients and a lower rate of suicide-related behaviours, may indicate that the Italian reforms carry benefits. This is worthy of further evaluation.

What Makes Forensic Psychiatric Experts Change Their Opinion in Supplemental Evaluations?

There are cases in forensic psychiatric evaluations with inconclusive information or with important information missing. In such situations, when new information becomes available the judge may ask an expert to supplement his/her report in the light of new information. For the purpose of this study, we collected 42 supplemental evaluations written in the University Psychiatric Hospital Vrapče to determine possible factors which were associated with changes in supplemental evaluations. The following data were gathered: demographic data, types of criminal offenses, reasons for the supplement evaluation, court questions, and diagnoses. Changes in supplemental evaluations occured more often when the defendants were diagnosed with a personality disorder (PD) only, compared to those who had a PD with a comorbidity, especially substance use disorders. Defendants with the diagnosis of a substance use disorder were 63.7% less likely to have changed experts' evaluations. The evaluations remained the same when the reason for supplemental evaluations were new witnesses' testimonies. Considering the principle of economy of actions in a judiciary system, a more critical approach should be taken when the judge requests a supplemental report.

Treatment Decision-Making Capacity in Forensic vs Non-forensic Psychiatric Patients: A European Comparison

Background

Consent to treatment is a cornerstone of medical ethics and law. Nevertheless, very little empirical evidence is available to inform clinicians and policymakers regarding the capacities of forensic patients with schizophrenia spectrum disorders (SSDs) to make decisions about their treatment, with the risk of clinical and legal inertia, silent coercion, stigmatization, or ill-conceived reforms.

Study Design

In this multinational study, we assessed and compared with treatment-related decisional capacities in forensic and non-forensic patients with SSD. 160 forensic and 139 non-forensic patients were used in Austria, Germany, Italy, Poland, and England. Their capacity to consent to treatment was assessed by means of the MacArthur Competence Assessment Tool for Treatment (MacCAT-T). Multiple generalized linear regression models were used to identify the socio-demographic and clinical variables associated with MacCAT-T scores.

Study Results

In total, 55 forensic (34.4%) and 58 non-forensic patients (41.7%) showed high treatment-related decisional capacity, defined as scoring ≥75% of the maximum scores for the understanding, appreciation and reasoning, and 2 for expressing a choice. Forensic patients showed differences in their capacity to consent to treatment across countries. Of all socio-demographic and clinical variables, only "social support" was directly relevant to policy.

Conclusions

Forensic patients have treatment-related decisional capacities comparable with their non-forensic counterparts. Social contacts might provide a substantial contribution towards enhancing the decisional autonomy of both forensic and non-forensic patients, hence improving the overall quality and legitimacy of mental health care.

Factors Influencing Length of Stay of Forensic Patients: Impact of Clinical and Psychosocial Variables in Medium Secure Setting

OBJECTIVES

Forensic psychiatric care has two, often contradictory, aims-the treatment of mentally ill offenders and the isolation of the perpetrators to ensure public safety. It is essential to ensure that any periods of liberty deprivation do not last longer than necessary to provide appropriate treatment. Therefore, identifying the factors affecting the length of stay (LoS) is one of the most important research areas in the forensic psychiatry. The literature on this subject is scarce and to date there no data available on LoS for patients in Eastern or Central European patients.

METHODS

We conducted a retrospective analysis of data for 150 inpatients in a medium secure unit. Based on a literature review and clinical experience, variables potentially influencing LoS were identified and included in the analysis.

RESULTS

The variables that were significantly associated with LoS included duration of mental illness; severity of index offense; whether a crime was committed as a result of hallucinations or during drug treatment discontinuation; if the index offenses was a continuous crime (crimes committed over an extended period of time); persistent psychosis; multiple antipsychotic treatments; as well as a diagnosis of schizophrenia and schizoaffective disorder.

CONCLUSIONS

Our findings are highly consistent with observations made by other researchers. However, contrary the majority of previous studies our project incorporates data concerning the clinical presentation of patients. For example, we demonstrate that variables measuring treatment resistance might be one of the crucial determinants of LoS, which is a novel research finding.

Court sentences to forensic-psychiatric treatment and imprisonment in Germany: Types of crimes and changes from 1995 to 2009

The management of mentally disordered offenders varies widely across countries. Given the high prevalence of individuals with mental disorders throughout the criminal justice system, it is not always clear why some people receive forensic treatment and others a prison sentence. This project investigated trends in criminal justice sentencing practices in Germany from 1995 to 2009. We analysed officially recorded data taken from 14,100,329 court rulings to describe differences in the index offences committed by individuals sentenced to prison of at least two years and those given a forensic treatment order. The distribution of offence types differed substantially. Forensic patients committed 6.6% of all severe crimes. There was a 50% increase in the number of forensic treatment orders compared to a 11.6% increase in the group of individuals sentenced for crimes of a similar severity. Forensic patients were more likely to have committed a serious offence. This paper provides key epidemiological data and offers a basis for future comparative research. It also concludes that these trends are indicative of a moderate penal policy, without a drift towards penal populism arguably visible in other jurisdictions. Instead, it is argued that the findings are consistent with actuarial social control policies oriented towards risk prediction and crime prevention of high-risk offender groups.

European violence risk and mental disorders (EU-VIORMED): a multi-centre prospective cohort study protocol

BACKGROUND

The link between schizophrenia spectrum disorders (SSD) and violence is a core issue for most forensic psychiatric services. However, the drivers of violence in this population remain unclear, and, to date tools to predict violence risk have a range of limitations. Perhaps because of this uncertainty about the nature of violence risk, treatment programmes and care pathways for mentally disordered offenders vary substantially across the European Union, and differences in legal and policy frameworks are highly relevant.

METHODS

The three-year EU-VIORMED project (Grant Number PP-2-3-2016, November 2017-October 2020) involves forensic centres in Italy, Austria, Germany, Poland, and the U.K. It aims to: (a) identify and compare violence risk factors, clinical needs, and decision making capacity in violent (N = 200, "cases") and nonviolent patients with SSD (N = 200; "controls") using a case-control design; (b) test the predictive validity of the HCR-20v3, OxMIS and FoVOx among cases alone (N = 200), using a prospective cohort study; and (c) compare forensic-psychiatric care pathways across the EU, in a continent wide service mapping study.

DISCUSSION

Data collection started in September 2018 and continues. By September 2019, 333 participants have been enrolled (201 cases and 132 controls were recruited). Experts from 23 countries provided data for the service mapping exercise.

TRIAL REGISTRATION

Retrospectively registered on January 2, 2019 as researchregistry4604 January 2, 2019.

Comparison of offenders in forensic-psychiatric treatment or prison in Germany

PURPOSE

Arrangements for the management of mentally disordered offenders vary widely across countries, as do rates of imprisonment and detention in forensic-psychiatric settings of such individuals. This study aims to quantify the characteristics of offenders detained in forensic-psychiatric settings in Germany over a 15 year period from 1995 and compare these with those sentenced to imprisonment over the same period.

METHODS

Using official national statistical data, the index offences, demographic characteristics and criminal histories for all individuals convicted to forensic-psychiatric detention during the study period are described together with changes over time. This group was then compared with offenders convicted to a prison sentence of at least two years in the same time period for equivalent offences.

RESULTS

Relevant differences and similarities between the two treatment groups were identified. Compared to offenders in prison, those in forensic care were older, with a higher proportion of women and a lower proportion of those with foreign backgrounds. Significant previous offending and levels of diminished responsibility were present in both groups.

CONCLUSIONS

These findings provide data for future comparative research and indicate potential opportunities for earlier intervention to prevent trajectories into more serious offending, particularly in young people and those with mental disorder.

The tension between cross-border cooperation in the European Area of Freedom, Security and Justice and the fundamental rights of mentally ill offenders in detention

In two recent judgements, the European Court of Human Rights (ECtHR) has given an alarming signal regarding the placement, care and treatment of mentally disordered offenders in Belgium. This article analyses these judgements and the Court's assessment that Belgium faces a structural problem regarding the detention of people with a mental illness in prison. By exploring other recent ECtHR decisions across the EU and combining this with an analysis of international norms and standards, it contends that there is something amiss regarding the post-trial approach towards mentally disordered offenders in an EU-wide context. The potential hazards of this situation, from both an individual and an EU perspective are then presented by analysing the EU Framework Decision on the transfer of prisoners (which aims to facilitate offender rehabilitation) and the EU Court of Justice's interpretation of the relationship between instruments like the Framework Decision that are based on mutual recognition and fundamental rights. Lastly, the EU's initiative for enhancing procedural rights in criminal proceedings through the Roadmap trajectory, and the subsequent Commission Recommendation of 27 November 2013, are scrutinized. Based on this research, the article pinpoints the flaws and vacuums that currently exist for mentally disordered offenders, and the negative outcome this may have on the legitimacy and effectiveness of the European Area of Freedom, Security and Justice.

Caring potentials in the shadows of power, correction, and discipline - Forensic psychiatric care in the light of the work of Michel Foucault

The aim of this article is to shed light on contemporary forensic psychiatric care through a philosophical examination of the empirical results from two lifeworld phenomenological studies from the perspective of patients and carers, by using the French philosopher Michel Foucault's historical-philosophical work. Both empirical studies were conducted in a forensic psychiatric setting. The essential results of the two empirical studies were reexamined in a phenomenological meaning analysis to form a new general structure in accordance with the methodological principles of Reflective Lifeworld Research. This general structure shows how the caring on the forensic psychiatric wards appears to be contradictory, in that it is characterized by an unreflective (non-)caring attitude and contributes to an inconsistent and insecure existence. The caring appears to have a corrective approach and thus lacks a clear caring structure, a basic caring approach that patients in forensic psychiatric services have a great need of. To gain a greater understanding of forensic psychiatric caring, the new empirical results were further examined in the light of Foucault's historical-philosophical work. The philosophical examination is presented in terms of the three meaning constituents: Caring as correction and discipline, The existence of power, and Structures and culture in care. The philosophical examination illustrates new meaning nuances of the corrective and disciplinary nature of forensic psychiatric care, its power, and how this is materialized in caring, and what this does to the patients. The examination reveals embedded difficulties in forensic psychiatric care and highlights a need to revisit the aim of such care.

GPs and involuntary admission: a qualitative study

BACKGROUND

In many countries, medical authorities are responsible for involuntary admissions of mentally ill patients. Nonetheless, very little is known about GPs' experiences with involuntary admission.

AIM

The aim of the present study was to explore GP's experiences from participating in involuntary admissions.

SETTING

General practice, Aarhus, Denmark.

METHOD

One focus group interview and six individual interviews were conducted with 13 Danish GPs, who had recently sectioned one of their own patients.

RESULTS

GPs experienced stress and found the admission procedure time consuming. They felt that sectioning patients was unpleasant, and felt nervous, but experienced relief and professional satisfaction if things went well. The GPs experienced the doctor-patient relationship to be at risk, but also reported that it could be improved. GPs felt that they were not taken seriously by the psychiatric system.

CONCLUSION

The unpleasant experiences and induced feelings resulting from involuntary admissions reflect an undesirable and stressful working environment.

Free will and psychiatric assessments of criminal responsibility: a parallel with informed consent

In some criminal cases a forensic psychiatrist is asked to make an assessment of the state of mind of the defendant at the time of the legally relevant act. A considerable number of people seem to hold that the basis for this assessment is that free will is required for legal responsibility, and that mental disorders can compromise free will. In fact, because of the alleged relationship between the forensic assessment and free will, researchers in forensic psychiatry also consider the complicated metaphysical discussions on free will relevant to the assessment. At the same time, there is concern about the lack of advancement with respect to clarifying the nature of the forensic assessment. In this paper I argue that, even if free will is considered relevant, there may be no need for forensic researchers to engage into metaphysical discussions on free will in order to make significant progress. I will do so, drawing a parallel between the assessment of criminal responsibility on the one hand, and the medical practice of obtaining informed consent on the other. I argue that also with respect to informed consent, free will is considered relevant, or even crucial. This is the parallel. Yet, researchers on informed consent have not entered into metaphysical debates on free will. Meanwhile, research on informed consent has made significant progress. Based on the parallel with respect to free will, and the differences with respect to research, I conclude that researchers on forensic assessment may not have to engage into metaphysical discussions on free will in order to advance our understanding of this psychiatric practice.

Personality disorders and criminal responsibility in the Spanish supreme court

The aim of this study is to determine how personality disorders (PDs) are viewed in relation to criminal responsibility (CR) within the jurisprudence of the Spanish Supreme Court. All sentences with PD from 2000 to 2006 were included. The most frequently occurring PDs are cluster B and nonspecific disorders, alongside another Axis I disorder. The Spanish Supreme Court admitted appeals on 50%, and sentencing criteria were changed in 25% of the cases. The most frequent outcome was in the first instance a minor reduction in CR and second full CR being upheld. The borderline PD and the comorbidity between a PD and an Axis I disorder are the variables associated with the decrease in CR. The assessment of CR in PD should be undertaken using the diagnosis as a base taking into account other elements, such as the type of PD, its seriousness, comorbidity, and relationship with the criminal behavior on trial.