Competing ethical paradigms in forensic psychiatry and forensic psychology: Commentary for a special section of legal and criminological psychology

In her paper Gwen Adshead (2013) identifies the principle of respect for justice as the foundation for ethical practice in forensic psychiatry. This commentary discusses how forensic psychologists have approached a key aspect of the justice principle, the ethical imperative to promote the welfare of the individual client. The approaches of the psychiatric and psychological professions are compared and the role of psychologists as allied health professionals working in the forensic setting considered.     

Doing justice to justice

Adshead's recognition that only when taken together can the many different conceptions of justice accommodate what is called for in the particularly demanding setting of forensic mental health care, is to be applauded. Each must be honoured and built into the systems of assessment and treatment that are the tasks of the forensic psychiatrist, she demonstrates. Adshead's far‐reaching revisions could resolve much that is troubling about the present practice of forensic psychiatry. Yet how much these revisions can overcome the moral dilemmas associated with dual roles in forensic psychiatry, is not so clear.     

Of Normal Human Sympathies and Clear Consciences: Comments on Hyman Gross’s <Emphasis Type="Italic">Crime and Punishment: A Concise Moral Critique</Emphasis>

Contemporary criminal justice systems are extraordinarily unfair. Focusing on Hyman Gross’s Crimes and Punishment: A Concise Moral Critique, however, I identify ways in which scholarly criticisms of these criminal justice systems tend to miss their target. In particular, I argue against the assumption that in order to criticize these criminal justice systems we need to cast doubt on the very practice of blaming people and on the notion of desert, or that we need to reject wholesale retributive rationales for punishment. Quite the contrary: an important reason why contemporary criminal justice systems are unfair is that they punish many people undeservedly.     

Retributive and Inclusive Justice Goals and Forgiveness: The Influence of Motivational Values

Who is more likely to forgive, given that justice is important and motivating for people? In this article, we argue that the relation between justice and forgiveness depends on the type of justice involved; specifically, the goals of justice, i.e. retributive versus inclusive. We also explored the influence of motivational values on justice goals and forgiveness. Using data from 178 undergraduate psychology students who responded to measures of retributive and inclusive justice attitudes, forgiveness attitudes and dispositions, and values, we found support for our hypotheses that retributive justice goals are negatively related to forgiving attitudes and dispositions; inclusive justice goals are positively related to forgiveness; and benevolence and power values play the dominant role in predicting forgiveness. The results have implications for how the relation between justice and forgiveness is conceptualised and applied.     

Medical school forensic psychiatry units in health care delivery facilities rather than criminal justice institutions: an alternative model

We have presented a model for developing forensic psychiatric treatment and teaching services of a medical school Department of Psychiatry, but where these services are the basic comprehensive health care delivery system for the entire community. These offer consultative and treatment services for adult and family court clinic, psychiatric forensic services, of forensic psychiatry open bed and medium security-type bed, as well as day hospital and outpatient services. All of these are sited in the normal health care delivery system of the university teaching hospitals and its patient treatment, teaching, and research facilities. Consultative services are offered on request to the criminal justice system, but the basic health care delivery system is controlled administratively by the ordinary university teaching hospital authorities and exists as a one of a kind unit at the Royal Ottawa Hospital. The Royal Ottawa Hospital is a private nonprofit hospital, with its own Board of Trustees, and is affiliated with the medical school, as part of a major university network. We believe it important to present this model for an overall forensic psychiatric service, in contradistinction to the more commonly established forensic psychiatric facilities in state mental hospitals, in a special facility for the criminally insane, or in a criminal justice system institution such as a penitentiary. We believe that our model for forensic psychiatric facilities has great advantages for the patient. Here the patient is treated in a specialized facility (as all psychiatric patients with specialized problems should be); but one which is a specialized forensic facility, within the range of specialized psychiatric facilities that are needed by an urban community.(ABSTRACT TRUNCATED AT 250 WORDS)     

Should We Aim for a Unified and Coherent Theory of Punishment?

Thom Brooks criticizes utilitarian and retributive theories of punishment but argues that utilitarian and retributive goals can be incorporated into a coherent and unified theory of punitive restoration, according to which punishment is a means of reintegrating criminals into society and restoring rights. I point to some difficulties with Brooks’ criticisms of retributive and utilitarian theories, and argue that his theory of punitive restoration is not unified or coherent. I argue further that a theory attempting to capture the complex set of rules and behaviors that constitute the practice of legal punishment cannot persuasively be unified and coherent: legitimate features of the practice advance goals and promote values that in some cases conflict.     

The concept of free will and forensic psychiatry

This text examines how conceptions of free will impact on legal systems and forensic psychiatry: free will is generally regarded as a prerequisite for responsibility, criminal responsibility included, while forensic psychiatry to a large extent deals with the limits imposed on responsibility by mental disorder. First we discuss the question of whether there is and has been such an impact. The answer is yes: different conceptions of free will have inspired different systems of law and forensic psychiatry, as becomes clear when looking at the accountability doctrine as compared to the unique Swedish system rejecting this doctrine. However, there is no necessary connection between doctrines of responsibility and conceptions of free will, since the former primarily says something about when someone should be held responsible and the latter says something about when someone really is free in a sense relevant to responsibility. This leads to the second question: should conceptions of free will have an impact on law and forensic psychiatry? We argue: that they should not, given the implausibility the normative theory retributivism, which posits a direct connection between free will and punishment. More importantly, questions of free will are complicated and unresolved philosophical issues that are better left out of the everyday decision-making incumbent on the legal and psychiatric systems. Instead, we recommend using an empirically useful and gradual conception of autonomy to facilitate the determination of legal responsibility. This autonomy conception, being neutral on the question of free will, eliminates the need to take a stand on it.     

Russian and Soviet forensic psychiatry: Troubled and troubling

Russian forensic psychiatry is defined by its troubled and troubling relationship to an unstable state, a state that was not a continuous entity during the modern era. From the mid-nineteenth century, Russia as a nation-state struggled to reform, collapsed, re-constituted itself in a bloody civil war, metastasized into a violent “totalitarian” regime, reformed and stagnated under “mature socialism” and then embraced capitalism and “managed democracy” at the end of the twentieth century. These upheavals had indelible effects on policing and the administration of justice, and on psychiatry's relationship with them. In Russia, physicians specializing in medicine of the mind had to cope with rapid and radical changes of legal and institutional forms, and sometimes, of the state itself. Despite this challenging environment, psychiatrists showed themselves to be active professionals seeking to guide the transformations that inevitably touched their work. In the second half of the nineteenth century debates about the role of psychiatry in criminal justice took place against a backdrop of increasingly alarming terrorist activity, and call for revolution. While German influence, with its preference for hereditarianism, was strong, Russian psychiatry was inclined toward social and environmental explanations of crime. When revolution came in 1917, the new communist regime quickly institutionalized forensic psychiatry. In the aftermath of revolution, the institutionalization of forensic psychiatry “advanced” with each turn of the state's transformation, with profound consequences for practitioners' independence and ethical probity. The abuses of Soviet psychiatry under Stalin and more intensively after his death in the 1960s–80s remain under-researched and key archives are still classified. The return to democracy since the late 1980s has seen mixed results for fresh attempts to reform both the justice system and forensic psychiatric practice.     

Ethical analysis of a curious event of a forensic case becoming an involuntarily hospitalized psychiatric patient

It is not uncommon in forensic psychiatry that the duty to care for the patient conflicts with the responsibility to the court, or the duty to protect the public from harm from the potentially dangerous patient-offender. This paper exemplifies the scenario of what happens when the line between forensic and clinical psychiatry is crossed and whether crossing that boundary can be justified. Ethical discussion also embodies and clarifies the issues of unjustified violation of the patients’ autonomy and an undue infringement on their right to liberty on the arbitrary basis of existing or perceived mental illness. The paper provides an in-depth analysis of the issues of physicians’ conflicting duties, vulnerability of patient-offenders, and their human rights in the light of court orders and involuntary hospitalizations.

I argue that in order to promote ethical decision-making we must establish clear rules and guidelines for psychiatric practice, separate conflicting roles, and provide sufficient training of health-care professionals regarding topics of human rights and legislation governing clinical and forensic psychiatric practice. Empowering patients and enhancing their rights to autonomy and liberty can also be potent tools of promotion and protection of their human rights and prevention of ethical breaches in practice.     

法医学鉴定实践中的伦理考量

法医学鉴定的对象是人及与人相关材料,因此在法医学检案实践中需要考虑伦理问题。基于法医学鉴定中的公平正义、尊重、真相告知三大基本原则,进一步衍生出法医学检案实践活动的具体伦理要求,即法医学鉴定的称职性、对鉴定涉及案件及其当事人伦理考虑、如何处理案件检材。然而当前法医学鉴定却存在部分法医鉴定人不称职、重技术轻程序、鉴定机构选择出现争议、利益输送与利益冲突等问题。笔者针对以上问题提出相应对策,并重点讨论三大矛盾,保证法医学鉴定称职性。     

Beyond retribution,restoration and procedural justice: the Big Two of communion and agency in victims’ perspectives on justice

Victims’ perspectives on justice in the aftermath of crime are a key victimological topic. The main justice concepts that have received scholarly victimological attention are retributive justice, value restoration and procedural justice. In this paper, we argue that the so-called Big Two framework – agency and communion – can further help us understand victims’ experiences with justice. Agency refers to a person striving for individuality, while communion refers to the participation of the individual in and connection with a group. According to the framework outlined in this paper, we argue that victimization by crime involves an impaired sense of agency and communion, and justice can be viewed as an attempt to repair both these dimensions. Retributive justice is a prominent means to repair agency, but other options to do so are also open to the victim. A similar observation can be made about value restoration with respect to communion. Acknowledging this can be of particular importance in cases where no offender is apprehended. As to procedural justice, the framework emphasizes the need to distinguish process participation as a means to re-establish agency from participation to re-establish communion with representatives of society.     

Toward More Interesting Research Questions: Problematizing Theory in Social Justice

The majority of research in social justice, indeed in all of social science, is incremental, has received few citations, has garnered little attention in the public, and can be viewed as dull and uninteresting by both academics and lay readers. Although often well versed in a variety of methodological techniques for testing research questions, we rarely receive explicit guidance in how to construct them in a way that is interesting, useful, and pushes theory forward. A novel “problematization” approach for constructing interesting research questions has been proposed by Alvesson and Sandberg (Constructing research questions: doing interesting research. Sage Publications, London, 2013). In this essay, I introduce the problematization method to social justice scholars in a comprehensive review and critique that identifies the benefits and limitations of the approach. Then, to provide a cursory illustration of the method in practice, I problematize the domain of retributive justice, attempting to identify potentially interesting directions for future research inquiry.     

Rethinking the restorative–retributive dichotomy: is reconciliation possible?

While the use of restorative justice within Western criminal justice systems continues to grow, its philosophical foundations remain uncertain. This inconclusiveness impacts directly upon the theoretical discussion of restorative justice and its relationship with existing paradigms of punishment, precipitating debate regarding its ability to integrate within justice systems governed by retributive paradigms. Specifically, this ambiguity of definition renders debate regarding the extent to which restorative justice philosophy exists as an alternative punishment or an alternative to punishment, and its existence as complementary or axiomatic to retributive justice unresolved. The philosophy of restorative justice, identifying its central features and addressing those previous attempts of contrasting restorative justice with the prevailing paradigm of retribution is explored here. However, it is suggested that aspirations of reconciling restorative justice philosophy with the retributive paradigm will be ultimately unsuccessful, due to the persistent latent ambiguity regarding the central foundation upon which restorative justice philosophy is built. Such concerns are also present when seeking to affirm the continued opposition of retributive and restorative justice.     

Putting risk factors in their place: an evolutionary-developmental approach to understanding risk

ABSTRACT

The assessment of criminal risk plays a prominent role in the criminal justice systems of many different countries and risk assessment is employed in a number of different domains. Given the importance of risk assessment tools in forensic contexts, and the amount of research devoted to evaluating their accuracy in predicting re-offending, it might be expected that risk assessment tools are grounded in our best theoretical understanding of the causal processes that give rise to criminal actions. However, it is not at all clear that this is the case. In this article, I will argue that one important area of neglect is the failure to fully engage with the literature in developmental and life-course criminology which also has directed an enormous amount of effort in to identifying risk factors for offending. At the heart of this neglect, I will claim, is the failure to fully recognise the key distinction between predicting offending and predicting re-offending. I will further argue that an evolutionary developmental perspective provides the theoretical resources to provide fully explanatory accounts of offending and re-offending, and in which risk factors can be appropriately located. I conclude by briefly considering some implications for theory, research, and practice.     

Restoring the Victim: Emotional Reactions, Justice Beliefs, and Support for Reparation and Punishment

Psychological responses to criminal wrongdoing have primarily focused on the offender, particularly on how (and why) offender punishment satisfies people’s need for justice. However, the restoration of the victim presents another way in which the “psychological itch” that injustice creates can be addressed. In the present article, I discuss two lay theories of how crime victims can be restored: a belief that the harm caused to crime victims should be directly repaired (a restorative justice approach) versus a belief that victim harm should be addressed via the punishment of the offender (a retributive justice approach). These two lay theories are discussed with regard to their emotional and ideological determinants, as well as situational and chronic factors that can affect whether people adopt a reparative or punitive “justice mindset” in dealing with victim concerns (and crime in general).     

Do Retributive and Restorative Justice Processes Address Different Symbolic Concerns?

In support of a unitary conceptualization of retributive justice (justice through the imposition of punishment) and restorative justice (justice through dialogue aimed at consensus), three studies using hypothetical and recalled experiences of victimization found that people’s endorsement of, and satisfaction with, either justice notion depends on the symbolic meaning of the transgression. In Study 1, perceiving the transgression as a status/power violation was uniquely related to the endorsement of retributive justice, whereas perceiving it as a violation of shared values was uniquely related to restorative justice. In Study 2, motivation to restore status/power was related to retributive responses, whereas motivation to restore value consensus with the offender was uniquely related to restorative responses. In Study 3, a scenario experiment, respondents called for greater additional sanction when the applied justice process (retributive vs. restorative) did not fit the salient meaning of the transgressions compared to when it did (status/power vs. values).     

新冠疾病对法医精神病鉴定的挑战与思考

新冠疾病(COVID-19)传染性强,潜伏期长,已在全球快速蔓延,给司法鉴定带来新的挑战.本文对COVID-19疫情下法医精神病鉴定的日常工作相关环节如何避免感染,COVID-19导致的器质性与功能性精神损伤特点及其损伤/伤残评定,COVID-19与精神卫生医疗机构医疗纠纷的防范及法医学鉴定思路等方面进行了探讨,并提出...     

Can an employer-based health insurance system be just?

It is America's distinctive practice to tie private health insurance to employment, and recent proposals have tried to retain this link through mandating that all employers provide health insurance to their employees. My primary approach to these issues is neither economic, nor historical, nor political but ethical. After a brief historical overview, I outline a general approach to evaluating the ethical significance of linking the distributions of distinct goods. I examine whether an unjust distribution of jobs spoils justice in the distribution of health insurance, taking as a central example gender inequities in employment and exploring their impact on job-based health insurance. Second, I explore the possibility that justly awarding jobs guarantees justice in employment-sponsored insurance. However, linking the distributions of different goods remains problematic, because such links inevitably undermine equality by enabling the same individuals to enjoy advantages in many different distributive areas. Finally, I examine recent proposals to reform America's health care system by requiring all employers to provide health insurance to their employees. I argue that such proposals lend themselves to the same ethical problems that the current system does and urge greater attention to alternative reform options.     

刑事诉讼中法医精神病鉴定争议的反思与理论诠释

法医精神病鉴定在一些重大刑事案件中持续成为舆论关注的焦点。不论法医精神病鉴定启动与否均会陷入被质疑的困境。这既存在制度安排的问题,也存在鉴定本身的问题,还存在凭直觉判断的问题,更存在理论误导的问题。这些问题叠加在一起衍生了较为复杂的中国性问题。这一复杂问题的解决,需要合理配置启动法医精神病鉴定程序的权力(利),科学对待法医精神病鉴定本质,尊重法医精神病鉴定的医学认定,正确使用法医精神病鉴定意见中的刑事责任能力判断,在正当程序中维护法医精神病鉴定的科学性。对于非制度问题需要正确的理论诠释,避免因实践难题与理论缺陷交织触发一些不具有实质意义的纷争和枉顾科学的呼吁。     

What restorative justice might learn from administrative theory

Two administrative ideal‐types related to competing forms of justice: retributive and restorative include ontological and epistemological foundations and associated organizational theory. The alternate understandings are coherently linked with the principles of justice informing retributive and restorative practices. Retributive justice is linked to formal organization based on instrumental rationality and individualist ontology, while restorative justice is linked to substantive organization based on ethical reasoning and relational ontology. Once constructed, ideal‐types can be used both to assess actual conditions on key characteristics as well as to make recommendations for organizational design. Therefore, conclusions are drawn about the importance of matching context to purpose, pointing toward further empirical research that will inform system design for restorative justice practices.