Overview
There is a significant intersection between mental health1 and legal practices. Mental health practitioners (MHP) commonly provide assessments and opinions for a variety of criminal and civil legal processes. Conversely, many people with mental illness are confronted with legal issues that require coordination between their treating clinicians and lawyers. These issues vary greatly, from criminal cases to civil actions that can involve child custody, testamentary capacity, assessments of impairment for disability claims. MHPs are often requested to compile and submit reports that are used either in the courts or in juridical processes that involve lawyers, social services, employers and insurance companies. Often the MHPs are subsequently tasked with treating and supporting those they have assessed.
The book will describe how psycho legal assessments and rehabilitation should be conducted and applied in the South African context.
The title refers to the pathways that start with assessments, progress to treatment and rehabilitation and end usually with an acceptance of a comfortable level of functioning.
1 Mental health is used here as a general term to describe the practices of psychiatrists, psychologists, occupational therapists, social workers and psychiatric nurses.
Introduction
Despite the ubiquitous overlap between mental illness/health and the law few seem to understand how the concepts and principles from each field should be reconciled to produce valid outcomes. Mental health clinicians (MHCs) usually panic when confronted with legal issues (or demands) around patient care. Our legal colleagues are generally bemused at MHCs frequent inability to provide clear unambiguous opinions and predictions.
Much of this chapter will explain to MHCs some basic legal concepts such as, “competence and capacity”, and to legal practitioners the meaning of psychiatric diagnosis and mental illness. The difficulties each experience with other will be discussed.
The South African Legal System
This will attempt generally to describe and explain to MHCs how our legal system is organized and implemented. Mental health practitioners (MHP) generally have little knowledge about the legal system and how the courts operate. This section is aimed at providing such an overview. The subsections below list and describe legislation relevant to mental health practice. It is envisaged that the book could have an appendix in which important legislation and court decisions can be listed.
Criminal and civil law
At the outset the reader will learn about the important distinctions between criminal and civil law, and how or when they might be involved in such proceedings.
- The Constitution
- The SA Constitution has a Bill of Rights and makes direct reference to health care
- Mental Health Care Act, National Health Act, Criminal Procedure Act and other relevant legislation
- Organisation of the Courts
General Principles
(Download) Chapter 1: An Introduction and General Principles
(Download) Chapter 2: The Forensic Mental Health Assessment
(Download) Chapter 4: The Perils of Disclosure: Writing the Forensic Report
(Download) Chapter 7: Export Testimony: Jack's in the Box!
Assessment
(Download) Chapter 3: Assessing The Accused
(Download) Chapter 5: Malingering
(Download) Chapter 8: Emotionally Triggered Involuntary Violent Behaviour not Attributed to A Mental Disorder
- General principles
- The Criminal Procedure Act (CPA) & referral for 30-day observation
- Fitness to stand trial (section 77 of the CPA)
- Criminal responsibility (section 78 of the CPA):
- Pathological and non-pathological incapacity
- Amnesia
- Automatisms
- Substance intoxication and abuse
- The “Dangerous Offender” and Risk Assessment
- Domestic Violence
Closed
- Sexual offenders
- Children, Adolescents and the Elderly
- Intellectual Disability
- Personality Disorders
- Malingering
Closed
- Introduction to civil litigation
- Divorce: Child Custody and Access
- Curatorship, Administratorship (& Power of Attorney)
- Testamentary capacity
- The determination of psychiatric impairment for disability claims
- Assessment of pilots
- Driving and gun ownership
- The impaired health professional
Closed
- Writing a psycho-legal report
- Expert testimony in court
- The use of psychometric tests
Closed
- International Conventions that are relevant to Mental Health:
UN Convention on disabilities, Conventions of Tokyo, Hawaii - Professionalism
- The problem of dual agency and harm
- Duty to third parties
- Confidentiality and Disclosure
- Informed consent
- Record keeping
- Promotion of Access to Information Act
- General liabilities
- Research in groups that are doubly vulnerable; as mentally ill and held involuntarily
Closed
General Principles
Recovery as a guiding concept: most MHPs accept that many of their patients/clients cannot return to their previous level of functioning and that efforts have to be focused on optimizing what can be achieved in order to assist the person live as fully as is possible. Symptoms may never disappear, and impairments can be enduring, yet much can be offered so that these patients can get the most out of their lives. An important focus will be on how a therapeutic alliance can be established with mentally ill offenders.
Closed
- How an accused is certified as a state patient-admission to a designated forensic hospital-progress from high to low secure wards, and eventually allowed leave in the community
- Mechanisms of leave and discharge/re-classification
- The roles of the multidisciplinary team (psychiatrists, psychologists, occupational therapists, social workers, professional nurses)
- The modalities of treatment and rehabilitation: medication; psychotherapy(individual as well as group); counselling; family therapy and support; use of community resources; occupational therapy with some emphasis on vocational rehabilitation and supported employment.
- Special groups: rehabilitation of sex offenders, learning disabilities, children and adolescents, the elderly and dual diagnosis groups (i.e. those who are mentally ill and abuse substances)
- Community resources
- How to apply for discharge
Closed
Proposals and Controversies
The National Prosecuting Authority is considering changing the law with respect to how defendants are managed by the courts.
(Download) Chapter 6: Proposals on the revisions of Criminal Procedure Act 1977
Guidelines for Authors
General purpose of the book
This book is intended to be a resource for clinicians, students and researchers who assess and treat people in forensic settings. The book intends to differentiate between assessment methods, including those of special groups, and rehabilitation and recovery. Ideally assessment and rehabilitation should be described in different chapters, but it will be acceptable, where appropriate, to include both aspects in one chapter.
Format
Manuscripts must be submitted electronically (ideally via e-mail) in MS Word. Use Times New Roman font, point size 11, with 1.5 line spacing. There should not be more than 3 levels of headings, i.e. level A will be the chapter heading, level B a major topic, and level C subheadings within each major topic. Paragraphs etc. will not be numbered. Include a chapter summary (no longer than 150 words) with a list of keywords, and a bulleted list of Learning Outcomes (i.e., ‘Core Essentials’). Definitions should be highlighted in bold so that these can be pulled out into the margin, or else highlighted in the text as being important. Items that may be important for inclusion in the Index should be italicized.
Content and language
Use straightforward language and avoid jargon and abbreviations. Unusual technical terms must be followed by a definition, and frequently used abbreviations should be used in full in the first instance of usage. Many readers will not have sufficient knowledge and expertise to understand many concepts. Brief case vignette scan be used to illustrate complex points. Do not use readily recognizable actual cases and provide just relevant details. Length There is no limit to the length (number of words) that can be used. A general guide is to consider using between 3,500 and 10,000 words. Remember, very long wordy chapters can discourage readers. Diagrams, tables, pictures etc. Flow diagrams, charts, tables, and pictures are excellent means of conveying core concepts and methods. Although inclusion of these is encouraged, please do not use copyrighted material unless you have express approval to do so.
In the interests of the public good, the book will be registered online with a Creative Commons License(CC-BY-NC-ND).
References
I would recommend the use of a citation/reference manager, especially Endnote. Use the Harvard system of citation, e.g. Adams, J. Q., Lincoln, A., van Buren, M., & Truman, H. S.1976, “An imaginary conversation", Journal of Historical Fantasy, vol. 76,no. 11, pp. 204-212. Within the text the above would be cited as (Adams et al;1976). It would be helpful if your reference list consisted of ‘Recommended Readings’ apart from those you have already quoted. Be careful about quoting sources that cannot be easily traced.
Editorial function
To eliminate repetitions of some material, and to ensure consistency of style the editor may make changes to your manuscript. However, the contributor will be shown these for comment and assent.
Regards
Sean Kaliski
Resources
(Download) Criminal Procedure Act
(Download) Mental Health Observation and Related Matters Protocol 2022
(Download) State Patient Protocol 2022
(Download) Prevention of and Treatment for Substance Abuse Act
(Download) Mental Health Care Act
(Download) National Health Act
(Download) Mental capacity and the Criminal Justice System