Derecho Constitucional

Tarea Mirna.

Specific aspects of forensic psychiatric in different cultures

In their approach of similarities and differences practices of forensic psychiatric in the world, Velinov an Marinov found a certain commonality; the ethical and professional difficulties in the daily practice, especially regarding conflicts of interest between the individual and the society. Another difficulty found by the forensic psychiatrist is the pressure of working in institutions of social control and having to solve all the problems of violent behavior of the patients.

However, the same authors highlighted some differences as well. One is that, in many countries, forensic psychiatry is not recognized as a distinct specialty. Even where it is recognized, there are enormous variations as to the duration of the training, as well as in the composition of the curriculum. The differences in judicial practices are also noteworthy, since they do not allow for standardization in the practice of forensic psychiatry. Finally, there are enormous differences from one country to another or from one culture to another regarding the availability of forensic psychiatric services, as well as the kind of services rendered.

Some peculiarities of forensic psychiatric practiced in different regions and cultures are described below.

1. - THE AMERICAN CONTINENT

The countries of Latin America adopt the Roman juridical tradition. In the penal area, in contrast to the Anglo-Saxon model, they consider the cognitive and motivational aspects for the assessment of the penal responsibility. Therefore, in the expert examination, not only is the capacity of understanding the unlawful nature of the act at the moment of its perpetration (cognition) assessed but also the decision-making capacity (volition) in accordance with this understanding, creating, beyond the possibilities of accountability or unaccountability, the condition of limited accountability.

However, even today, most of the expert assessment carried out in Latin America are performed by professionals who are not specialized in the are of forensic psychiatric. However, continuous progress has been observed in the professional formation of new experts, since learning opportunities, both in theory and in practice, are increasing in this area of scientific knowledge.

Although Folino describes a real connection between the forensic psychiatric system and the public health system in the capital of Argentina, this is not the case in Brazil neither is it true of Latin America in general. The existing relationship between the health and the legal systems is, in general, unsatisfactory relationship is also found among the professionals working in the fields of psychiatric and the law, a relationship equally marked by the lack of greater integration. Although a process of psychiatric reform has also been initiated in Latin America, this movement has not reached the forensic sphere, and the prison population has not been invited to participate in it.

In the United States, where common law is applied, there is a movement that alms at legislative alterations, including the debate regarding the inclusion or exclusion of the element of volition in relation to the forensic psychiatric assessment. Although a Model Penal Code was created in 1962 by American Law Institute, it is not unanimously followed. Although the American state and federal laws are generally similar in structure, they vary significantly in definitions and probably in practiced. Therefore, there is no legal homogeneity, and, consequently, the forensic psychiatric assessment can vary substantially from region to region.

In comparing the North-America and the Brazilian criminal systems, Taborda analyzes the similarities and differences between them. Regarding the points of convergence, the author calls attention to the fact that the Brazilian concept of unaccountability bears some resemblance to the Model Penal Code, since it combines the concept of an irresistible impulse (that affects the decision-making capacity of the examinee), created in 1834 in Ohio, whit the M´Naghten rules of 1843, which focus the forensic psychiatric assessment on the cognitive condition of the examinee, although there is a difference between the American and the Brazilian concepts of the cognitive element.

However, in contrast to what occurs in Brazil, where the defendant is passively defended by a lawyer, defendants in the United States participate actively in the trail. Consequently, the defendant needs to be mentally competent to stand trial, a condition known as “capacity to stand trial” or “fitness to stand trial”. Since numerous defendants are not mentally competent to stand trial, they remain awaiting trial, indefinitely.

The same happens in Canada, since, according to Anglo-Saxon law, the assessment of the competence to stand trial is fundamental for an individual to plead guilty or innocent. The laws that rule the treatment of mental patients who have broken the law in the Canadian criminal Judicial system were recently reformed. However, despite this reform (in 1992), the changes observed in both clinical and judicial practice were minimal.

2. - EUROPE

In European countries, there are a great number of individuals whit mental disorders in the prison system. As an example, the prevalence rates of mental disorders, including personality disorders and disorders related to the use of chemical substance, in individuals not convicted of a crime as of 1996 were as follows: 64% in Denmark; 62% in England; 63% in England and Wales; and 62% in Ireland. However, not all such individuals actually require treatment. Regarding sentenced individuals, the data are different.

Blauuw et al. carried out a study in 13 European countries, investigating mental disorders in prison system. The following countries were included: England and Wales; Finland, France, Greece, Hungary, Ireland, Latvia, Malta, the Netherlands,

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