Law and Psychiatry
Family law, for example, is relatively reflexive; it adopts quite loose concepts and process, and can accommodate a wide range of types of expert evidence and constructs generally without apparent conflict or distortion of such evidence, albeit at the cost of apparent imprecision and some risk of different courts faced with the similar facts reaching different decisions.
Criminal law, however, is highly autopoetic, that is, non-reflexive. It employs only its own strictly defined concepts, within a strictly observed discourse and process, which greatly inhibits adoption of the concepts or methods of other disciplines, and this can seriously distort the meaning of concepts given in evidence. Tis is because it is preoccupied with ensuring that its procedures are scrupulously fair to defendants and prosecution.
However, law operating in a sentencing mode is less binary and less rigid in its approach, making it more accommodating of information admitted from experts in psychiatry and psychology. Hence, in administering the discretionary death penalty, although a court will be subject to sentencing guidelines, it will inevitably be more open and more flexible in its addressing of expert psychiatric or psychological evidence than it will be when hearing such evidence in the context of a trial and the determination of whether the defence of insanity or the partial defence of diminished responsibility is satisfied, or whether the defendant is fit to plead.
Translation between discourses
As described in the Preface, the relationship between psychiatry (also other mental health disciplines) and the law can be seen in terms of being between two different ‘discourses’ each with their own constructs and methods of enquiry, derived from their very different social purposes and roles. Hence there must be ‘translation’ between, or across, discourses.
Put otherwise, law and psychiatry are therefore like two neighbouring countries each with its own purposes and languages, and each with its own districts and regions expressed in the various branches of the law and in different psychiatric diagnoses and diagnostic categories. Hence travelling from one to the other involves translating the language of one into that of the other, and this creates many opportunities for confusion and distortion of meaning.
It follows that there is the potential for both a lack of coherence between constructs and, even where that is not the case, simple misunderstanding on either or both sides.
Hence the route to proper, and just, use of psychiatric and psychological evidence within the criminal justice process, as well as to minimising misunderstanding, must be one of ‘each understanding the discourse of the other’, whilst never ‘adopting the discourse of the other’. Tat is, the relationship should be based upon mutual recognition but always be clearly ‘boundaried’.
Further, an understanding on both sides of there being different manifestations of the relationship between psychiatry and law in different legal circumstances is crucial to the effective, and just, use of expert evidence.
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