As a psychiatrist, what is your role?
Dr. Georges Klein (GK): The objective of the psychiatric expertise is to help the justice to render its judgment. Our work consists in investigating on the psychiatric plan an accused person who could suffer from a psychic disorder. It is a question of helping justice to come to a conclusion about the irresponsibility of the subject compared to the act which is reproached to him. The expert therefore intervenes as an auxiliary of justice. It should be noted that psychiatric expertise is a clinical activity which involves relational issues between the experts – in general, there are two – and the person appraised. But this is not a therapeutic activity.
You talk about responsibility. It is a concept that is important to assess because it can influence the nature of the sentence imposed…
GK: Everyone is held responsible for their actions. It is therefore not a question for us of ruling on responsibility but of demonstrating, if necessary, the total – which is extremely rare – or partial irresponsibility of an accused. To this end, we base ourselves on the study of the file provided by justice and on a psychiatric clinical examination. Our report can indeed influence the sentence that will be pronounced by the judge, as well as the advisability of ordering therapeutic measures.
Dr. Marie Pflieger (MP): It should be emphasized that the expert is not there to rule on the guilt of a defendant. This is within the jurisdiction of the judiciary.
Should the expert also decide on the dangerousness of the individual?
GK: No, because there are no medical tools to decide on the dangerousness of a person. On the other hand, we must provide the judge or the judge with an assessment of the risk of recidivism, which we evaluate according to the clinical state of the person at the time of the expertise, his background and the circumstances in which he has committed the act with which he is charged. For this, the expert can rely on criminological tools.
When therapeutic measures are ordered by the court, does the Prison Medical Service, which you are in charge of, Dr Pflieger, intervene?
PM: Indeed, our service, strictly ambulatory, carries out several missions in Valais Romand. We are in charge of medical care, including psychiatric care, whether or not ordered by the courts, for patient-detainees in prison, on the one hand. On the other hand, we intervene on mandate of the justice for follow-ups out of detention within the framework of therapeutic measures.
We often hear it said that psychiatrists are too complacent towards the person being assessed. What do you think ?
GK: We are often criticized for helping to soften the pain of offenders. This is not the case. When we conclude that the person’s responsibility is diminished, it results in therapeutic measures that are far from gentle.
PM: For the people concerned, these measures are often felt as a double penalty. A prison sentence has an end and when prisoners are released they are deemed to have paid their debt to society. While the therapeutic measure sometimes extends when people are out of the prison environment. They therefore remain indebted to the sentence enforcement services, they must consult a therapist they have not chosen and follow a therapy whose objectives are not necessarily theirs. However, for some people, it is also an opportunity. One of our objectives is to ensure that the person concerned can find a personal interest in this orderly follow-up, the stakes of which for justice are also of a societal and security nature. However, the therapist in charge of the patient is not responsible for these aspects, which are specific to the penal system.
You are both psychiatrists, but you collaborate with justice. Isn’t your status ambiguous?
GK: No, because for the experts, the work is very clear: it is supervised, explicit and transparent for the person appraised.
PM:As therapists, even if we have care reports to submit to justice, our priority remains the therapeutic interest for the patient.
But does this still raise the question of the lifting of medical secrecy?
GK: It is true that the expert is not subject to medical secrecy vis-à-vis the authority that appoints him or her. But we warn the person appraised from the outset that all that we learn of relevance in our investigative work with him will appear in our report. The defendant must also sign a document informing him of this fact. The expert is also invited to release his doctors and other stakeholders from their professional secrecy vis-à-vis the expert.
PM: As therapists working in the forensic field, we have a different posture. We must be released from medical secrecy by patients for any communication with the justice system concerning care. In addition, we respect confidentiality in our daily work with patients for elements that are not considered relevant for this type of report.
How does the work you do under court order differ from your regular practice as a psychiatrist?
PM: To feel comfortable in this environment, I think it would be necessary to be able to show even more kindness and humility than what any care mission already requires. We are not here to exercise a power that our knowledge would give us.
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Published in Esprit(s), the review of Pro Mente Sana, May 2022.
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