Justice Is Not a Psychiatric Term* 
ROBERT 
KENNETH 

C. MARVIT, M.D.,M.SC.,and 
FUKUNAGA, J.D.,PH.D.·· 

The centipede had a terrible problem: he was developing a case of extremely 
painful arthritis. For expert help on the matter, he sought out a wise old owl. The 
owl pondered the problem and told the centipede that he should turn himself into a 
frog, since frogs do not get arthritis. The centipede was very happy until he realized 
that he knew no way he could turn himself into a frog. He returned to the owl for 
further instructions; the owl replied, "I just advance concepts; don't bother me 
with solutions." 

Introduction 

Today, more than any other medical specialty, psychiatry is being confronted by 
challenges from all directions. Justice is the banner being carried by the challengers to the 
practice of psychiatry, and the battle lines cross all aspects of the judicial system - civil, 
criminal, family court, state and federal. The purpose of this paper is to utilize the 
traditional medical format of a case presentation for an analysis of issues in order to gain 
insight from past errors and, one hopes, to avoid further losses on the parts of 
psychiatrists, courts and patients. 

Issues 

The basic issue is the role of psychiatry in providing proper input to the processing of 
the mentally ill offender. The case under discussion involves at least eighteen current 
battlefronts: fitness to stand trial, criminal responsibility, civil commitment, right to 
treatment, right to refuse treatment, unusual and hazardous treatments, informed 
consent, guardianship, release from confinement, prediction of dangerousness, duty to 
warn, community outrage and its effect on decision-making, impartiality of the expert, 
and malpractice exposure in acting as an agent of the court, just to mention a few. These 
issues are not new, but rather like the dormant locust, have arisen en masse to devour any 
semblance of reason in their path. 

The Case 

A 21-year-old man with a juvenile record was charged with burglary. The public 
defender asked for a sanity commission to determine his fitness to proceed, his criminal 
responsibility and a recommendation for treatment. He was found not fit to proceed, not 
responsible and dangerous. Charges were dropped and he was civilly committed to the 
state hospital. He received a potpourri of treatments, ranging from isolation to placement 

-The paper was presented at the annual meeting of the AAPL, San Francisco, October, 1976. 
- -Dr. Marvit is Research Coordinator. Mental Health Division, State Department of Health, P.O. Box 

3378, Honolulu, Hawaii 96801. Dr. Fukunaga is of the Department of Psychology, University of 
Hawaii. 

264 



J 

in a boarding home, along with a wide variety of diagnoses. While still under 
commitment, he walked away from his least restrictive alternative and two months later 
was charged with a brutal murder/rape. At this point he was mute, and his attorney asked 
for, and received, the appointment of a sanity commission. Its recommendation was that 
the patient/defendant was not fit to proceed, but the court did not agree. A rehearing was 
granted and an amy tal interview was done, with the appointment of a guardian ad litem 
since the defendant was unable to give informed consent. Following this procedure, three 
more psychiatrists recommended that he was not fit to proceed and was in immediate 
need of medical/psychiatric treatment. The court went ahead with a hearing until the 
defendant became physically assaultive in court, abruptly ending the hearing. 

Since, as a matter of public record, there was no institution in the state capable of 
managing this defendant, requests were made of 39 other states, all of whom declined to 
receive this man. After remaining in jail, he was ultimately transferred to the maximum 
security unit at the state hospital to await some final decision. 

Additional Problems 

Further complicating the indeterminate status of this man's criminal charges, the 
family of the victim of his crime has instituted a civil action against the hospital and 
treatment authorities for negligence/malpractice in the death. A civil liberties group has 
threatened action for inadequate treatment. Last, but not least, the treating physicians 
feel they have nothing in their armamentarium either to make him well enough to stand 
trial or effectively to predict his future conduct. 

Analysis of Issues 

The economic and social costs of the eleven psychiatrists, one psychologist, one priest, 
and various physician-administrators and psychiatric consultants who have been involved 
with the meandering course of this one individual's travels through the civil and criminal 
psychiatric justice systems are tremendous, and there is every possibility that these costs 
will continue to increase. If this process should lead to a more definitive diagnosis and 
prognosis and a more "just" disposition of the case, then the costs might be acceptable. 
Yet the disposition of this case is no more certain now than it was more than two years 
ago. It is not clear that the patient will ever become "competent to stand trial," in terms 
of the understanding of that phrase by the examining psychiatrists in the sanity 
commissions. In fact, the commitment of the patient to the custody of the Director of 
the Department of Health may very well result in an indefinite incarceration at the state 
hospital. Therefore, in an attempt to decrease costs and ameliorate the plight of a 
patient/defendant caught on the mental health merry-go-round, we suggest the following 
alternative dispositions. 

Alternate Methodology 

We start by noting that the criminal justice system is a legal system, with rules 
governing the legal rights and duties of the individuals traveling in that system. 
Additionally, the adversarial role of lawyers causes them to go into battle as combatants, 
striving for their clients' interests. Therefore, the issues of insanity and competency are 
settled by an adversarial method in the criminal justice system. The use of expert 
psychiatric testimony to aid the decision maker in settling these issues often results in 
confusing and usurping the decision-making function of the judge and jury. In addition, 
the large influx of expert opinion, as in the present case, increases the economic costs of 
the criminal justice system and embroils psychiatrists and other mental health 
professionals in a time-consuming, frustrating attempt at evaluation and treatment. A 

The Bulletin 265 



simple way of decreasing these costs, possibly lessening this confusion and giving the 
decision-making power back to the judge and jury may be to prohibit the use of expert 
psychiatric-psychological testimony in the courtroom. This choice is buttressed by the 
basic observation that the criminal law attempts " .... to define socially intolerable 
conduct and to hold conduct within limits which are reasonably acceptable from the 
social point of view." Hence, the criminal law is essentially applying societal judgments to 
individual conduct. By prohibiting psychiatric-psychological judgments from displacing 
these societal judgments, the essential nature of the criminal justice system may be 
preserved. Nevertheless, psychiatrists and other mental health professionals do have 
expertise in the area of mental illness, and to disregard this expertise entirely may 
arguably be a denial of a fair trial to the defendant. In this case, a perusal of the medical 
records and the trial transcripts indicate that all experts are essentially agreed that he 
cannot reasonably assist his counsel at the present time. Therefore, the suggestions which 
follow do not entirely disregard the contribution of mental health professionals to the 
criminal justice system. 

Incompetency 

A defendant who is legally incompetent probably cannot be constitutionally convicted 
of a crime. The test for determining competency is whether the defendant " ... has 
sufficient present ability to consult with his lawyer with a reasonable degree of rational 
understanding - and whether he has a rational as well as factual understanding of the 
proceedings against him." In order to test each defendant against these criteria, courts 
presently rely on the testimony of expert witnesses. The test for fitness to stand trial is 
phrased in terms of nonpsychiatric/psychological language. Furthermore, the 
commitment of defendants to state hospitals for the purpose of making them fit to stand 
trial often results in indeterminate confinement, which is constitutionally impermissible. 
A patient/defendant should speedily be given a fair trial, civilly committed as dangerous 
to himself or others, or released. He should not be allowed to languish in the never-never 
land of "psychiatric justice." For this reason, we suggest a time limit of at least six 
months within which to treat a defendant in order to make him competent to stand trial. 
The role of the expert will be to testify to the presence of mental illness and to fashion an 
individual program to treat this illness. The expert will be allowed to testify as to the legal 
competency of the defendant, but laymen who are familiar with the defendant will also 
be allowed to testify. If it appears that the defendant cannot be treated successfully 
within a specified period, then the court may proceed to trial with special legal safeguards 
(e.g., the primary test would be whether all relevant evidence reasonably appears to be 
present). If this suggestion sounds harsh, it is no more so than the disposition of the 
amnesic defendant who is brought to trial despite his memory loss. If later, newly 
discovered evidence may result in a reversal of a previous guilty verdict, the court may 
reopen the case and order a new trial. If the defendant is legally incompetent to stand 
trial, and no effective treatment can be elucidated, together with a lack of relevant 
evidence (e.g., no witnesses), then the charges should be dismissed and the defendant 
either released or civilly committed as being dangerous to himself or others. 

While all psychiatrists were in agreement that the defendant in the case presented 
could not reasonably assist his counsel, not all lay witnesses described the defendant as 
unable to communicate effectively with others. Of course the lay witnesses were not 
asked whether or not the defendant was competent to consult with his attorney - but 
they should have been asked. No treatment plan was offered to make the defendant 
competent to stand trial. No agreement existed among the psychiatrists as to the diagnosis 
of the defendant. These factors indicate the confusing and time-consuming ritual, largely 
ineffective, in present competency hearings. Under our suggestions, the court would have 
considered all witnesses' testimony as to competency, asked for a diagnosis, asked for a 

266 Justice is Not a Psychiatric Term 



) 
treatment plan based on the diagnosis, and once having decided the defendant was 
competent, proceeded to trial. The next stage would be to determine if special safeguards 
were needed at trial. Once this question was decided, the defendant should have been 
placed on trial unless his participation was absolutely essential to a fair trial. In that case, 
the charges should have been dropped, and a decision on civil commitment should have 
been made. 

This approach would have reduced the time and number of psychiatrists involved, 
focused the attention of the court on the issue of proceeding to trial, and disposed of the 
defendant in a constitutionally sanctioned method of incarceration, instead of the 
commitment to the state hospital with no reasonable likelihood of regaining competency. 

In the interest of conserving time, I shall summarize our recommendations on several 
other main issues: 

1. Insanity - there needs to be explicit clarification of the legal relationship of mens 
rea and mental illness. The psychiatrist relating diagnoses to criminal responsibility 
converts the criminal justice system into one of psychiatric justice, allowing for exposure 
to liabilities which are not scientifically defensible. 

2. Prediction of dangerousness - in spite of the disclaimers of the possibility of 
predicting dangerousness, there are instances where the probabilities are significant and 
overt and the basis of such predictions should be explicated. Full disclosure of the process 
by which one reaches a requested conclusion is the best protection against redress for an 
honest mistake. 

3. Relying on sovereign immunity - in the past, we psychiatrists have made a series 
of significant, unwarranted assumptions, not the least of which has been to assume that if 
one is performing a function requested by the court, state agency or another type of 
official administrative body, then he is protected from suit if something happens. The 
Donaldson case burst that bubble, as did Tarasoff, and now in Hawaii, members of a 
court-appointed sanity commission are being sued as individuals. We believe that 
sovereign immunity must be established for classes of psychiatrists who are performing 
legally sanctioned roles. The lack of clarification of the roles and their qualifications 
allows for unrealistic discretion and then liability. 

Corrective Measures 

1. Boycott - many psychiatrists feel that we should simply refuse to participate in 
any legal proceeding as experts, avoid state or institutional employ until adequate funding 
and facilities are provided, and, by and large, restrict our activities to those areas which 
are safe, clean and free from ambiguity. At this point in time, this position is undesirable 
and impossible to implement. 

2. Pass the ball back to the courts and legislators - this is not as unreasonable as 
boycotting, but probably not workable either. Psychiatry was not handed a desirable ball, 
but it is very unlikely that the originators are going easily to resume the burden of 
re-stitching and re-inflating it. 

3. Collaboration - this obviously is the key word in working toward realistic 
solutions. Clearly, in no way can psychiatry disentangle itself from these issues. To engage 
in adversarial maneuvers with well-equipped, powerful challengers is foolhardy at best 
and suicidal at worst. If a supreme judicial psychiatrist were appointed by a higher power 
to appoint a sanity commission for the profession as it engages in its current battles, I 
wonder if we would be found fit to proceed, responsible, dangerous to ourselves and/or 
others or simply gravely disabled. 

Collaboration cannot be accomplished without trust, and trust, in this instance, is 
based on credibility derived by an open and honest expression of professional limitations 
on both sides. 

The last question I leave you to ponder is not unlike that of the future of the 

The Bulletin 267 



defendant in the case presented. This man is in psychiatric never-never land, neither 
criminally prosecuted nor civilly committed, and his future is more ambiguous than it was 
over two years ago. Psychiatry is in a legal never-never land. Having few, if any rights, but 
many duties, we find our future significantly more uncertain than at any time in the past. 

This is not to say that things won't change, but rather to say that we must influence 
change through a wider understanding of the processes we have backed into or accepted 
naively. Lawyers develop a special arrogance in the practice of their profession, for in 
order to pursue a lawsuit, they must become rapid experts in the area under litigation. 
Therefore, they begin to see themselves as experts in a wide variety of arenas. Rather than 
denigrate this attitude, psychiatrists could learn from it. We must become experts in the 
areas that we are litigating. Without such knowledge nothing shall be learned and change 
will not be for the better. 

268 Justice is Not a Psychiatric Term