Psychiatrists, in contrast with psychologists (although they have overlapping interests in physiology and neurology), undertake a medical education and have a medical qualification. Medical education, largely because of its duration and consequent cost, is broadly perceived as a 'professional education'. It is undertaken with a view to becoming a practitioner. In that regard there is a similarity with the study of law. In the United States law is a post-graduate degree. In the United Kingdom, at least, a law degree exempts its holders from part of their professional training. In both countries students invariably choose the course with an expectation of practising. Law and psychiatry courses are rarely undertaken purely out of intellectual curiosity, perhaps unfortunately. That is more likely to be the case with the study of psychology. Indeed, in popular formats, articles on psychological topics help to sell many popular magazines and books. Indeed popularised psychology may be as important to magazines and general bookshops as law, law enforcement and the courts are to the visual media of television and film.
A greater 'affinity' between judges, practising lawyers and psychiatrists may be perceived. Various explanations may be offered. For example, both law and medicine are much older professions and have been recognised subjects for study in universities for much longer than psychology. There are, also, similarities and differences in social status and earnings between the three groups in many countries. But, it is submitted, a very important factor is the role that psychiatrists play in court. Unlike most other professions appearing before courts, psychiatrists often hold a 'key' to the disposal of the case. By giving evidence that a psychiatric disposal is appropriate, and being able to offer a service (a hospital bed or outpatient treatment), the psychiatrist can remove a difficult human problem from the courts. On other occasions, by affirming that a particular test applies, the psychiatrist can provide the judge with a solution to a case. For example, a psychiatrist may give evidence that a defendant was suffering from 'diminished responsibility' even when, as in England and Wales at least, the tests are legal and moral rather than medical (Gunn et al., 1993). Such evidence allows a judge to deal with the case in a particular manner, a conviction for manslaughter rather than murder in England and Wales (Homicide Act 1957, s. 2). Redding, Floyd and Hawk (2001) provide empirical support for this. In their study lawyers preferred psychiatrists' evidence to that of psychologists and sought evidence on the ultimate legal issue even though it was legally prohibited!
A problem with 'psychiatry and law' is that it connotes, and regularly appears to be limited to, 'mental health law'. Certainly that is a significant and substantial area of law. It encompasses many important topics: liberty of the individual through detention issues, freedom of decision and action through decisions about capacity. But it overwhelmingly focuses on solving problems with or for individuals. Should a particular person be detained because mentally disordered and with certain kinds and degrees of problems? Should treatment be imposed because of mental disorder, lack of capacity and perceived need? Mental health law is very applied. That is not a criticism! The point is that by limiting 'psychiatry and law' to, or equating it with, 'mental health law' we close off or reduce opportunities for enriching our understanding of human behaviour, individual and social, through psychiatric research and insights. And any limits in our understanding of human behaviour will, consequentially, follow through into less than ideal legal responses. 'Psychiatry and law' ought not to be limited to mental health law. A greater understanding of the brain and mind could challenge and invigorate several legal assumptions about human behaviour. New techniques for mapping brain activity are leading to major questions being asked about such assumptions as free will, consciousness, subjectivity (e.g. see Libet, Freeman and Sutherland, 1999). These have major implications for law.
The distinctions, and divisions, between psychiatry and psychology may be exaggerated. Organisational differences, based upon education routes, may be more important than is necessary for the functional duties. It has been suggested that psychologists are as (or more) competent to treat neuroses, the more behavioural mental disorders. Psychiatrists could specialise on the psychoses. Psychologists are increasingly being recognised as the lead discipline with regard to treating, or responding to, personality disorders (Blackburn, 1993). They have certainly been prominent in the analysis and prediction of dangerousness (Monahan et al., 2001). An official inquiry into abuses at a secure mental health hospital in England, chaired by a judge, readily meted out criticism of individuals (Fallon et al., 1999). It received a recommendation that the principal provider of therapy, for those with personality disorders only, should be forensic psychologists. But it dismissed the proposal insisting that medical supervision and leadership was necessary (paras. 4.5.6-4.5.9). Its reasoning was cursory, which was all the more surprising giving its finding that there were major problems with the quality of medical supervision. It should not be impossible to devise a scheme whereby a psychologist is the responsible clinician, in practice and law, even if he or she is required by legislation, or just by the implications of the ordinary law of negligence, to have regard to psychiatrists' and other doctors' analyses, assessments and recommendations. But the problems start further back. The terms 'treatment' and 'patient' tend to prejudge the issue. We do not have to accept that people require 'treatment' for their behaviour. That approach presupposes a medical model and context that is rarely given. Unfortunately such issues are not taken up when we limit 'psychiatry and law' to 'mental health law'.
A distinction is regularly drawn between normal and abnormal psychology. The former is concerned with understanding and predicting the behaviour of 'ordinary' people, those who would not be considered patients or criminals, for example. 'Normal' psychology might be utilised when seeking an understanding of, for example, decision-making by jurors. After all, jurors are supposed to be representative of the broader community. But then the legal context, of trials and jury rooms, are hardly normal experiences. It is very difficult to replicate conditions equivalent to a trial, and the experience of a jury, in jury research (see chapter by Greene and Wrightsman, in this volume). Indeed the legal contexts for human behaviour can create a number of unique circumstances making inference and generalisation very difficult. So it is submitted that both 'psychiatry' and 'psychology' are far too narrow perspectives for analysing human behaviour in legal contexts and that 'behavioural sciences' is to be preferred. However, while 'behavioural sciences' is a broad enough expression it does not actively involve, or recognise the need for the perspectives and support of, social sciences such as sociology, economics, politics, cultural studies and history.
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