SINGAPORE, May 3 — In recent years, more people in Singapore have asked for their mental health to be assessed for court proceedings, say some legal and mental health practitioners.
In several cases, the accused cited mental health issues as part of their mitigation, with varying outcomes.
In March, the lawyer for a woman who drove off with an angry cyclist on her car bonnet in Katong brought up his client’s history of depression, though he did not go so far as to say that she was suffering from it while driving away.
The following month, the cyclist in the same case had her sentencing adjourned as she recently was diagnosed with a brain tumour. Her lawyer said it was “highly probable” that it influenced her behaviour at that time.
In January, a man took intimate photographs of two women asleep at his home, claiming that he had done so as he suffered from “digital hoarding” — a defence that the judge dismissed.
On the other hand, a university student had his schizophrenia condition taken into consideration when he was sentenced for voyeurism-related offences.
While legislative changes — such as mandatory treatment orders (MTO) in lieu of punishments — and a rising awareness of such issues in the public sphere have led to more psychiatric assessments, it is still unclear if more people are using them as a way to get a lighter sentence in court, experts said.
TODAY asked mental health and legal practitioners to break down the nuts and bolts of mental health issues in relation to criminal court proceedings — how and why one gets assessed in the first place, what such assessments entail, and how mental health reports could count towards the outcome of a case.
Why people get assessed
Not all mental health assessments related to court proceedings are solely for mitigation purposes, said clinical and legal practitioners.
They can be done for insurance, for instance, or when families try to contest an elderly member’s mental capacity when writing a will, said Dr Geraldine Tan, director and principal psychologist at The Therapy Room.
A psychiatric report can also form part of a wider assessment, such as to ascertain if someone is suitable for rehabilitation, noted criminal lawyer Chooi Jing Yen.
Dr Jacob Rajesh, senior consultant psychiatrist at Promises Healthcare, said that a psychiatric assessment can also be made to determine aggravating factors instead of mitigating ones — like whether a person was abusing substances or alcohol and if that contributed to the offence.
Not all persons taken to court automatically undergo a mental assessment, the experts said.
Those accused of capital offences automatically require one upon arrest, said Mr Chooi, who is a partner at Eugene Thuraisingam law firm.
Beyond that, there are two main scenarios warranting an assessment, said Mr Gary Low from Drew & Napier.
- When the accused is aware or believes that they have a mental condition
- When the accused displays signs which indicate that they may have a mental condition
These might include acting in a bizarre manner or being unable to understand questions or proceedings. The prosecution or defence may apply to the court to order the accused to undergo a psychiatric assessment.
What does an assessment involve?
Dr Christopher Cheok, who heads the department of forensic psychiatry at the Institute of Mental Health (IMH), said that court-ordered assessments are done by an IMH psychiatrist.
Accused who are assessed by IMH can undergo assessments either at the institution or as an outpatient.
However, those accused of serious and violent offences such as murder and sexual assault will be remanded for psychiatric assessment in prison, said Dr Cheok.
While the accused is out on bail, the defence may also arrange for an assessment by any other psychiatrist, including those at restructured hospitals or in private practice, said the senior consultant.
The length of an assessment varies depending on the case’s complexity, said the experts.
Assessments could include certain tests in the form of questionnaires or a series of activities in order to derive quantitative data about them, said Dr Tan, the principal psychologist.
“An average person may take perhaps half a day, (to) three quarters of a day. Those who are compromised in their abilities may take longer,” she said.
For a forensic report, a psychiatrist would examine “multiple sources of information”, including speaking to family members and going through footage from security cameras, among other things, said Dr Jacob.
When is a mental health issue relevant?
A person is first assessed on whether he or she is mentally fit to testify in court and was of unsound mind when committing the alleged offence.
Dr Jacob said that in producing a forensic report, a psychiatrist would focus on a few key questions, namely whether a person has a mental disorder and, more crucially, whether it was present at the time of the offence.
“Somebody can have a mental health condition, but (it) was not active at the time the crime was committed, (so) it doesn’t really affect the outcome of the case,” he said.
If a disorder was present at that time, a causal or contributory link needs to be established, he said.
Dr Cheok said that to count towards the mitigation of an accused person, the psychiatric illness must be serious enough to impair one of the following:
- The appreciation of the nature of the offending behaviour
- The appreciation of the wrongfulness of the offending behaviour
- The ability of the accused person to exert self-control of the offending behaviour
A psychiatric illness may even have nothing to do with an accused’s offending behaviour.
“For example, a person has obsessive compulsive disorder (OCD) and has fear of dirt and washes his hands. However, he chose to shoplift which has nothing to do with his OCD symptoms,” said Dr Cheok.
What happens when psychiatrists have differing opinions on the mental condition of an accused?
A judge is entitled to question the basis of a psychiatrist’s opinion and conclusion, and accept one side or the other, said Mr Chooi.
In some instances, where the judge is not fully satisfied, the judge may also call upon the psychiatric experts to be cross examined in court.
Like with all other mitigating factors submitted by the defence, ultimately it is the courts that decide how much weight, if at all, is given to the mental health condition of an accused person.
“Where the court relies on the psychiatric report in its findings or decision on conviction and sentence, parties can also appeal against the decision of the court if they are of the view that the court has wrongly decided the case,” said Mr Low.
Impact on case outcomes
There are a few ways in which a person’s mental health condition may affect case outcomes, such as the prosecution proceeding with a lesser charge.
For example, a teenager who was originally accused of murdering his schoolmate at River Valley High School had his charge amended to culpable homicide.
Criminal lawyer Che Wei Chin said that if it deems suitable, the court may also order an accused to undergo an MTO in lieu of other punishments.
“MTO is a community-based sentencing which focuses on the rehabilitation of the accused, to help him reform any criminal tendencies by allowing his mental illness through treatment,” said Mr Che, who is director at Fervent Chambers.
He pointed out that the accused would also no longer have a criminal record after serving the MTO, hence it is often seen as a more lenient sentence.
A judge may also take into account a mental condition and mete out a lighter sentence within the range of sentences allowed by law for the charge that a person is convicted for, said Mr Chooi.
A more common defence?
The legal and mental health practitioners were of mixed views on whether there have been more requests for mental health assessments for mitigation purposes.
Mr Low of Drew and Napier and Dr Tan of The Therapy Room, for example, found the number for such requests has largely remained the same throughout their years of practice.
However, there are some who approach clinicians to, in their words, “certify them with depression” hoping for a lighter sentence, added Dr Tan.
And they sometimes do this even without the advice of their lawyers, she added.
Mr Chooi, the lawyer, said that he does not think the number of people approaching psychiatrists has changed.
In some cases, an accused may approach a psychiatrist to get assessed, but if the defence lawyers do not find the report useful, they may not surface it to the court as mitigation, he added.
This means that how frequently the public hears about mental health in court may not reflect the actual number of such assessments done.
Meanwhile, Dr Cheok of IMH said there has been an increase in assessments done now, compared to 10 years ago.
This is in part due to legislative changes, such as the MTO and its expansion from just criminal cases to certain civil cases.
The increase is also driven in part by more lawyers submitting a psychiatric defence, he said.
“Each time the defence mounts a psychiatric defence by a private psychiatrist, the prosecution may request IMH to make an assessment. Additionally, with the Public Defender’s Office, there are more people mounting defences to prosecution,” said Dr Cheok.
Mr Low of Drew and Napier said the firm has seen more cases where people rely on their mental condition as a factor for mitigation, as awareness about mental conditions has improved within society in general.
“Nevertheless, whether an accused suffers from a psychiatric condition and whether it can act as a mitigating factor is ultimately at the discretion of the court.”
TODAY has reached out to the courts to comment on whether there has been an increase in cases where the accused has successfully sought a lighter sentence due to mental health reasons. — TODAY
