On the Roots of Modern Forensic Psychiatry: Ethics Ramifications

The Origin of Modern Forensic Psychiatry: Bonnie's Narrative

The December 2010 issue of the Journal contained a gift to its readers, especially those interested in the ethics of forensic psychiatry. As part of the festschrift honoring Howard Zonana, several of the leading figures in the field presented fascinating state-of-the-art snapshots of the ethics-related aspects of forensic psychiatry practice. One of these distinguished scholars, Richard J. Bonnie, reflected on the collective achievements of the field that he has witnessed over three decades.

Bonnie regarded the critical role that forensic psychiatry played in establishing professional standards that “nurtured and protected the ethical integrity of the psychiatric profession” (Ref. 2, p 574) as one of its three major achievements. Despite several challenges, forensic psychiatry has served as the pacesetter for professional practices that defend the privacy of patients and has been committed to the traditional duties of the medical profession. A special duty of forensic psychiatry, according to Bonnie, has been the preservation of the core ethics of the medical profession.

Bonnie acknowledges that “the field of law and psychiatry was not created from scratch” (Ref. 2, p 571). However, he highlighted the historical and social influences on the evolution of forensic psychiatry in the United States during the 20th century: public awareness of the central importance of respect for individual autonomy; the protection of vulnerable populations that emerged in the wake of the Nuremberg trials; and notorious cases of abuse of human research subjects. These events, along with other “intellectual and institutional forces” (Ref. 2, p 571) originating outside the field of psychiatry, played a transformative role in the evolution of forensic psychiatry. Bonnie dated the roots of modern forensic psychiatry to this transformational period in the late 1960s and early 1970s. It seems that many psychiatrists subscribe to this narrative of the evolution of modern forensic psychiatry, which connects forensic psychiatry and the doctrine of human rights.

Bonnie's dating of the origin of modern forensic psychiatry may have been influenced by his focus on its human rights aspect, in which he has played an important role and that he associates with Howard Zonana. There is no doubt that the development of forensic psychiatry in the United States during the last three decades of the 20th century has been led by psychiatrists who took human rights very seriously and struggled to promote ethics-based conduct in practice and research, not only in psychiatry, but more broadly in medicine in general. To mention but one example, Paul Appelbaum, a past president of the American Academy of Psychiatry and the Law (AAPL) and the American Psychiatric Association (APA), who is mentioned several times in Bonnie's article, is one of the leading figures in the United States in the field of general medical ethics and of informed consent in particular.

The characterization of modern forensic psychiatry as a phenomenon of the second half of the 20th century positions human rights doctrine at the center of its heritage. However, a more balanced historical perspective that traces the origins of forensic psychiatry to the 19th century reveals other dimensions of the field's heritage. The evolution of forensic psychiatry should be construed as a developmental process that has its origin in the 19th century. While some characteristics of contemporary forensic psychiatry are the fruits of 20th century developments, other dimensions derive from earlier contributions.

Thus, the following suggested perspective should be perceived as an elaboration on Bonnie's narrative rather than a substitution for it. Nevertheless, to emphasize the different historical and ethics-based views in a simplistic way, I will ascribe to Bonnie a narrative according to which the 20th century transformation reveals the primary role of forensic psychiatry.

The Origin of Modern Forensic Psychiatry: 19th Century-Oriented Narrative

To say that modern forensic psychiatry originated in the 20th century is not necessarily accurate. The M'Naughten case, one of the most famous trials in the history of forensic psychiatry, took place in the United Kingdom in 1843. In the United States, Dr. Isaac Ray, one of the founding fathers of the field, whose work was referred to by the defense in the M'Naughten case, made his contribution during the 19th century.³ It was during the 19th century that the role of medical witnesses gradually changed and physicians became more involved in detecting insanity, especially within the legal system.^4,–,10 The role of physicians in court was transformed from merely providing information regarding their well-known patients who were involved in criminal acts, to providing expert testimony regarding unfamiliar defendants. In providing their testimony, physicians relied increasingly on clinical experience, critical judgment, and theoretical scientific knowledge rather than on personal, firsthand knowledge of the patient.⁴ The trials of Edward Oxford and M'Naughten in the 1840s constituted an important turning point. “When nine medical witnesses offered testimony in the 1843 trial of Daniel M'Naghten, few observers in the courtroom could have appreciated the evolutionary dynamics which were transforming the mad-doctor into an expert witness” (Ref. 8, p 159).

Several explanations have been suggested for the rise of the expert witness doctrine in the 19th century, most coming from a sociological perspective.¹¹ For example, Roger Smith argued that the story of the insanity doctrine in the court system constituted a battle between law and medicine over which of the two discourses should dominate: a legalistic idealist language of knowledge or a medical, mechanistic language of causation.¹² Joel Eigen¹³ held a different view, that the introduction of defense lawyers is crucial in promoting the insanity defense and hence in enhancing the influence of the medical and psychiatric discourse in court. An alternative explanation is that at that time physicians came to be perceived as more knowledgeable and as standing on more solid scientific ground.¹ The objectivity of the field had been positively demonstrated in cases such as in M'Naughten, in which all of the experts consulted construed the case in the same fashion; however, in many other cases, both the defense and the prosecution were able to find objective, scientific medical experts to support their positions.^6,7 The gradually increasing involvement of physicians in court modified the relationship between the physician and the subject of his testimony, as the clinical doctor-patient relationship was replaced, in some instances, by a relationship resembling the forensic investigator-evaluee relationship.

That these 19th-century cases marked the origin of modern forensic psychiatry is plausible. However, the ethics of 19th century forensic mental assessment are disturbing to the sensitive human rights activist of the 21st century who prefers to think of modern forensic psychiatry as beginning in the mid-20th century. Awareness of the 19th century narrative is a necessary corrective, as it provides a more complete picture of the development of forensic psychiatry and identifies the ethics that continue to inform the field.

Given the limited scope of this article, I will illustrate the different orientation in the ethics of forensic psychiatry in the 19th century through two examples: a description of the forensic evaluation of Daniel M'Naughten and the writings of Dr. Isaac Ray.

Daniel M'Naughten's Mental Evaluation and Informed Consent

One of the landmark trials, if not The Trial, in the history of forensic psychiatry is the trial of Daniel M'Naughten, which took place in March 1843.^14,15 While suffering from paranoid delusions, M'Naughten killed Edward Drummond. The M'Naughten Rules, which were formulated in the wake of that trial and serve as the foundation for the insanity defense in Anglo-American law,¹⁶ are well known. However, the details pertaining to the mental examination that led to the landmark ruling, including the informed consent process of M'Naughten's evaluation, are far less familiar. Apparently, Daniel M'Naughten, possibly the most famous evaluee in the history of forensic psychiatry, did not know that he was being evaluated by physicians.

Given the immense public interest in the M'Naughten trial and the understandable concern regarding the possibility that Daniel M'Naughten had feigned insanity to avoid punishment, it is not surprising that the expert witnesses were asked directly to address the question of his insanity. The following is from the cross examination of the defense expert, Dr. Edward Thomas Monroe: Q. Do you mean that you are capable of distinguishing a delusion of mind by questioning the party, that you can satisfy yourself, by going into a cell where a prisoner is, whether his mind is diseased at all? A. I believe I can, without knowing his previous history—in a great many instances I can, by ascertaining what is passing in his mind…. I think I can ascertain whether a man is really laboring under delusion, by merely questioning him, by questioning him sufficiently…. I do not in all instances assume, that a party is telling me truly what is passing in his own mind—I believe the prisoner [M'Naughten] was honest in his answer [Ref. 17, pp 758–9].

One of the methods of distinguishing real from feigned insanity, at that time, was to identify certain physical signs thought to be indicative of mental illness. In his reply to the suggestion that M'Naughten was lying, Monroe testified as follows: …[T]here are often appearances about the body—I did not feel the prisoner's pulse, and I purposely abstained, because I all along wished he should not know I was a physician—I believe he did not know any of us were physicians—I thought there was a very wild expression about his eyes, a peculiar expression, but I do not lay much stress on that, and a dilated pupil… [Ref. 17, p 759].

Daniel M'Naughten did not know that he had been evaluated by physicians. Not because of delusional thinking or lack of cognitive capacity to comprehend the nature of the mental evaluation process, but rather because Monroe did not present himself to M'Naughten as a physician, nor did any of the other eight physicians who attended the evaluation. Moreover, he intentionally avoided any action that could reveal that he was a physician, such as measuring M'Naughten's pulse. To expose faked symptoms, he faked his own identity. This vignette illustrates the ethics of certain forensic psychiatrists of the 19th century, which supported the discovery of the truth as the supreme value and was oblivious of values that the contemporary medical profession holds dear, such as the right to informed consent.

Isaac Ray and Feigned Mental Conditions

Exposing malingerers was a skill demanded of the 19th century expert witness (as it is today), and methods were needed to differentiate between real and simulated insanity. In 1844, H. W. Acland published a book entitled Feigned Insanity: How Most Usually Simulated and How Best Detected.¹⁸ Isaac Ray dedicated two chapters in his pioneering book, A Treatise on the Medical Jurisprudence of Insanity,¹⁹ to the problem of the impersonation of insanity.

In one of the chapters in his book, Ray addressed the problem of detecting “concealed insanity,” defined as an attempt by a person who is genuinely mentally ill to minimize or conceal his condition. He proposed a three-stage hierarchical method to address this condition (Ref. 19, pp 381–7). According to him, the physician must engage in subterfuge to gain the examinee's confidence. He recommended that the interview of the patient be conducted with “a free and courteous deportment, and an air of kindness and unaffected interest in his welfare” (Ref. 19, p 365), to avoid suspicion and distrust as far as possible. The physician's sincere manner is not motivated by a beneficent spirit but rather, at least in part, by a well-planned strategy to reveal the truth for legal, not clinical, purposes. The air of kindness is possibly just an air, a devious means of eliciting the truth rather than a manifestation of a genuine therapeutic concern.

If several personal interviews of the patient have been attempted without success, Ray recommended “exercising a general surveillance over his conduct and conversation” (Ref. 19, p 368) in which the patient is watched “at times when he supposes himself unobserved” (Ref. 19, p 368). In addition, based on the assumption that “those who are most successful in concealing every indication of disordered mind, in their conversation, will betray themselves the moment they commit their thoughts to paper” (Ref. 19, p 386), Ray suggested that patients be induced to write letters, with the belief that such an exercise would reveal their underlying insanity. For Ray, the pursuit of truth overrode what we would have defined today as the patient's right to privacy.

In a different chapter, Ray elaborated on simulated insanity, in which a perfectly healthy person fakes mental illness. He states that “insanity is not easily feigned, and consequently that no attempt at imposition can long escape the efforts of one properly qualified to expose it” (Ref. 19, p 350). He provided methods of exposing simulated insanity, among them several that would be considered today to be not just unethical, but illegal. Following are several examples.

Narrowing the Gap Between the Two Narratives

The two narratives differ with regard to the definition of the main mission of forensic psychiatry. As its name implies, forensic psychiatry is bound by two different, and at times contradictory, objectives. On the one hand, as a forensic field, it is part of the legal system, and as such it assists the pursuit of justice through the discovery of the objective truth. On the other hand, as a medical field, it is sensitive to the traditional professional value of medicine. This tension is not theoretical, but rather is embedded within the everyday practice of forensic psychiatrists, some of whom divide their work between providing medical treatment to patients at correctional facilities and performing mental assessments of evaluees on behalf of the legal system. This inherent tension within forensic psychiatry has been discussed at length in the literature.^20,–,29

The two different narratives concerning the roots of modern forensic psychiatry may reflect different aspects of the ultimate mission and underlying core values of the field. The 19th century narrative highlights the closeness of forensic psychiatry to the legal system and the pursuit of truth (the forensic component), whereas the 20th century narrative illuminates the integral component of medical professionalism and beneficence in forensic psychiatry that encompass modern human rights conceptions (the psychiatry component).

Despite the different ethics-related perspectives that arise from the norms of 19th and late 20th century forensic psychiatry, a closer look suggests that the gap between the two narratives is not so profound. For example, although Isaac Ray's recommended methods of revealing the accurate mental status of an evaluee seem to contradict the medical professional legacy of beneficence, a closer look at his motivation for applying these seemingly unethical measures reveals that he was not inspired solely by a fanatic legalistic effort to reveal the truth, but rather that he was partially motivated by concern for the mentally ill. At the beginning of the above-mentioned chapter of his book, Ray pointed out that the prevalent (but inaccurate) assumption that there is an “insurmountable difficulty of distinguishing between feigned and real insanity” has resulted in the binding of “the legal profession to the most rigid construction and application of the common law” with regard to mental illnesses and “is always put forward in objection to the more humane approach” (Ref. 19, p 349). In other words, some defendants who genuinely suffer from mental illness were being punished in a nonhumane way because of the overly suspicious attitude with respect to the validity of the mental status evaluation. Ray opined that improvement in the effectiveness of the forensic mental evaluation would contribute to a more humane legal system.

There is no need to mention that there is a significant difference between Ray's paternalistic approach toward forensic evaluees and Bonnie's approach, which derives from the 20th century human rights doctrine. Even in the more compassionate reading of Ray's writings, it would be anachronistically mistaken to perceive his humane motivation to promote the condition of the mentally ill as seeds of human rights ideology. The paternalistic approach, which was ubiquitous in the 19th century medical arena, is clearly evident in Ray's writing, as he advocated questionable techniques for promoting what he perceived as the greater good.

Nonetheless, the humanitarian spirit is clearly detectable at the foundation of the emerging forensic field in the 19th century. The driving force behind this new endeavor was the conviction that the application of valid clinical experience regarding mental conditions to the determination of legal issues would serve to promote a more humane attitude toward the mentally ill. It is true that beginning in the 19th century, some expert witnesses perceived themselves to be an integral part of the legal system and accordingly considered the pursuit of truth to be their main obligation in regard to ethics. However, this notion by itself does not necessarily oppose traditional values of the medical profession. Protecting the mentally ill was a central motive for forensic psychiatrists long before the formulation of the human rights doctrine in the second half of the 20th century. The modified 19th century narrative of the development of forensic psychiatry can be summarized as follows: “the result of kind, benevolent, invariably male doctors, who have championed the cause of psychiatry through grounding it in scientific credence and claiming it to be a unique body of knowledge ” (Ref. 1, p 1).

Given the complementary 19th century narrative, Bonnie's 20th century narrative and his reflections become even more closely related to each other. Expertise and credibility are mentioned by Bonnie as the other two major achievements of forensic psychiatry, in addition to promotion of the ethics-based integrity of the psychiatric profession. These contributions should not be attributed solely to the developments of the past few decades but rather should be considered the fruits of a significant effort, beginning in the 19th century, to reveal the truth in the pursuit of justice. This legacy of the founding fathers of the field, having become an inherent component in forensic psychiatry, justifiably required the restraints and limitations imposed in the late 20th century. In a similar fashion, once human rights values had been formulated into normative legal standards, the gap between legal demands and professional values narrowed, alleviating some of the tension between the forensic and the psychiatric dimensions of the field. It is also worth mentioning that Isaac Ray's sensitivity to injustices with regard to the implementation of the law to mentally ill defendants illustrates that the humane component in the legacy of forensic psychiatry is not solely a reaction to external intellectual and institutional forces of the late 20th century; it is also a reinvigoration of internal values that have been an integral part of the field for decades.

The 19th century narrative reminds us not to take for granted the level of expertise of forensic psychiatry that we praise today, while the 20th century narrative demands that we not ignore the negative impact on ethics involved in its attainment. The two narratives illuminate the broader multidimensional nature of forensic psychiatry. Overall, the core mission of forensic psychiatry is the revelation of the truth as part of the pursuit of justice, without compromising the privacy and autonomy of people, as required by human rights and traditional professional ethics. Moreover, in the context of forensic psychiatry, the revelation of the truth may not be perceived as an end in itself but rather a manifestation of benevolence toward the mentally ill and their unfortunate condition. The exact mixture of the core objectives and values of forensic psychiatry in practice is dynamic. It was different in the 19th century, given the unique demands of an evolving field. It was different in the 20th century, as, at the time, psychiatry itself was under attack in the context of the rise of social forces condemning paternalism while promoting human rights; and it could be quite different in the future, the result of challenges or opportunities that we cannot even imagine today.