Is the French criminal psychiatric assessment in crisis?

IJLP-01248; No of Pages 9 International Journal of Law and Psychiatry xxx (2017) xxx–xxx

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International Journal of Law and Psychiatry

Is the French criminal psychiatric assessment in crisis? J. Guivarch a,b,⁎, M.-D. Piercecchi-Marti c,d, D. Glezer e, V. Murdymootoo a, J-M. Chabannes f, F. Poinso a a

Service de Pédopsychiatrie, CHU Sainte Marguerite, 270 Boulevard de Sainte Marguerite, 13274 Marseille Cedex 9, France Institut des Sciences Criminelles, Poitiers, France c Service de Médecine Légale et Droit de la Santé, CHU Timone, 13385 Marseille Cedex 5, France d CNRS, EFS, ADES UMR 7268, Aix Marseille Université, 13916 Marseille, France e CRIR AVS PACA, CHU Sainte Marguerite, 270 Boulevard Sainte Marguerite, 13274 Marseille Cedex 9, France f Service de Psychiatrie Adulte, CHU Conception, 147 Boulevard Baille, 13385 Marseille Cedex 5, France b

a r t i c l e

i n f o

Article history: Received 8 February 2016 Received in revised form 1 November 2016 Accepted 18 January 2017 Available online xxxx Keywords: Forensic psychiatry French law Criminal psychiatric assessment Disagreement between experts

a b s t r a c t The criminal psychiatric assessment in France seems to be facing growing criticism related to disagreements between experts and, on the other hand, a lack of interest of psychiatrists for the assessment. We start by explaining the current framework of the criminal psychiatric assessment in France, which differs from the assessment used in English-speaking countries, where Roman law applies. Then, we will describe the disagreements through a literature review and two clinical vignettes. Finally, we will try to understand the causes of discrepancies between experts and the reasons for a supposed lack of interest of the psychiatrists for the expertise. For this, we conducted a survey among the psychiatric experts. We individually questioned experts on the discrepancies and on their awareness of the expertise. We found that 75% of the experts we surveyed had already faced the divergent opinion of a colleague. In addition, the experts were divided on their conclusions related to the fictional scenario we gave them for an a priori assessment (a person with schizophrenia who was accused of murder), particularly in the specific contexts that we submitted to them. The main cause of disagreement between experts was the various schools of thought that influence the psychiatric experts in the forensic discussion and, therefore, the conclusions of a case. Moreover, the experts believed that the decrease in the number of psychiatric experts could be attributed to the adverse financial situation of the assessment, the considerable workload required, and the extensive responsibility that falls on the expert. Calling on a team of forensic experts to perform assessments seems to be the first solution to this crisis. Furthermore, if the experts were better compensated for the assessments, more people would want to undertake this work. © 2017 Elsevier Ltd. All rights reserved.

1. Introduction Psychiatry in France has its origins in forensic psychiatry and, more specifically, the current psychiatric assessment has its origin in the criminal psychiatric assessment first used during the 19th century. Those who were referred to as “alienists,” such as Pinel and Esquirol, went into jails to help the alienated of society (i.e., mentally ill people), so they could receive psychiatric treatment rather than punishment (George, n.d.). The dichotomous view of who should be termed “alienated,” and, thus, not responsible for their actions and those who are truly criminals, responsible and hence punishable, has continued to the present day (Manzanera, 2007; Manzanera & Senon, 2008). Although the debate has become more refined over the years, we can say that the psychiatric assessment has played a central role in linking justice ⁎ Corresponding author at: Service de Pédopsychiatrie du Pr. Poinso, CHU Sainte Marguerite, 270 Boulevard de Sainte Marguerite, 13274 Marseille Cedex 9, France. E-mail address: [email protected] (J. Guivarch).

and psychiatry for the past two centuries (Manzanera & Senon, 2008; Pradel, 2007; Senon & Manzanera, 2005, 2006; Senon, Pascal, & Rossinelli, 2007). Nowadays, criminal psychiatric assessment seems to go through an unease with a collapse in the number of psychiatric experts (Manzanera & Senon, 2008; Senon & Manzanera, 2006). The number of experts decreased from 1400 to 800 between 2004 and 2007, and today is only approximately 500. Furthermore, today's experts are much more committed to assessments, particularly risk assessments, with less experts available (Association Nationale des Psychiatres Experts Judiciaires, 2013; Herzog-Evans, 2016; Senon & Manzanera, 2005, 2006; Senon et al., 2007). At the same time, assessment faces strong criticism at the institutional, material, and organizational levels (Manzanera, 2007; Manzanera & Senon, 2008; Schweitzer & Puig-Verges, 2006; Senon & Manzanera, 2006). Public opinion, the media, magistrates, and healthcare professionals weigh in on this topic (Manzanera, 2007; Manzanera & Senon, 2008).

http://dx.doi.org/10.1016/j.ijlp.2017.01.002 0160-2527/© 2017 Elsevier Ltd. All rights reserved.

Please cite this article as: Guivarch, J., et al., Is the French criminal psychiatric assessment in crisis?, International Journal of Law and Psychiatry (2017), http://dx.doi.org/10.1016/j.ijlp.2017.01.002

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Among the criticisms, some are “disagreements between experts” (Bouley et al., 2002; Manzanera, 2007; Schweitzer & Puig-Verges, 2006; Senon & Manzanera, 2006; Zagury, 2007, n.d.), disagreements that we could define as a lack of concordance within the experts' conclusions. As a result, experts are blamed for a lack of scientific accuracy (Schweitzer & Puig-Verges, 2006; Zagury, 2007). Criticisms made of expert assessment and the differences between the experts do not limit themselves to the French judiciary system (Combalbert, Andronikof, Armand, Robin, & Bazex, 2014; Fuger, Acklin, Nguyen, Ignacio, & Gowensmith, 2014; Geary & Law, 2015; Gowensmith, Murrie, & Boccaccini, 2013; Kacperska, Heitzman, Bąk, Leśko, & Opio, 2016; Large, Nielssen, & Elliott, 2009; Nielssen, Elliott, & Large, 2010). But these issues have taken a quite particular scale in our country since a judicial scandal, namely the Outreau trial in 2005, during which a lack of reliability of the expertise was pointed (Combalbert et al., 2014). We cannot quantify the rate of disagreement between experts in France concerning forensic conclusions, because no statistical study was ever done on this issue. The fact is that very few documents concerning these inconsistencies are available in the international literature, although it is an important matter (Fuger et al., 2014; Gowensmith et al., 2013). The importance is particularly profound for the defendant whose future—between the hospital and the prison—in a large part depends on the experts' conclusions (Combalbert et al., 2014; Gowensmith et al., 2013; Kacperska et al., 2016). Moreover, this question concerns the judiciary system and the psychiatric profession, both of which can be weakened by these disagreements (Zagury, 2007). For these reasons, it seems important that research is undertaken on this issue (Guivarch, Piercecchi, Glezer, & Chabannes, 2015; Kacperska et al., 2016). Our goal was to question the psychiatric experts working for a court of appeals and dealing with a large number of criminal cases to try to find the basis of this “crisis of confidence” and how these disagreements arise within the limited framework of the assessment of the schizophrenic patient accused of murder. After outlining the current framework of the criminal psychiatric assessment in France and explaining–through a literature review and clinical vignettes–what the disagreements are, we will introduce the results of our study. 2. Framework of the criminal psychiatric assessment in France France is a Romano-Germanic legal country that adopted a nonadversarial procedure for psychiatric assessment in criminal law (Combalbert et al., 2014). The magistrate, in order to answer a technical question (Sections 156 and 158 of the Criminal Procedure Code), can decide either on his own or at the Criminal Prosecutor's or the parties' request, to ask for an expert (Jonas, Senon, Voyer, & Delbreil, 2013). The expert acts as “a technician” who assists the judge, by providing “information in an area that lays outside the judge's field of competency” (Jonas et al., 2013; Jean-Louis Senon et al., 2007) but does not decide on the merits of the case. The expert appointed, attached to the Court of Appeals, is independent from the parties. Most of the time, he is the sole expert instructed by the court to answer precise questions determined by the judge himself. More rarely, in difficult court cases, the judge can appoint two experts who work together in a “forensic team of experts,” what is called “dual expertise.” Furthermore, the parties and the prosecutor can request to change the questions of the assignment or add another expert to a team of forensic experts, but the judge is free to accept or refuse it (Section 161-1 of the Criminal Procedure Code) (Jonas et al., 2013; Senon et al., 2007). The foundation of the psychiatric assessment is on one hand to recognize, among indicted persons, the mentally ill, in order to provide care for the latter (Senon et al., 2007), and on the other hand, to determine “the impact of the mental disease considered as potential abolition of

discernment at the time of criminal attempt.” Therefore, the assessment enables the defendant to leave the legal setting for healthcare in the form of a compulsory hospitalization (Senon & Manzanera, 2006). Indeed, the expert's mission is focused on the mental element, one of three elements alongside the legal and material elements, required for the definition of the offense, to search the accused person's liability (Leturmy & Senon, 2012). Failing one of these three elements, the accused will not be judged liable. More precisely, under French law, in order for us to say that a mental element is present, it is necessary that the person acted with “intelligence and freedom,” meaning that during the offense he proved to have discernment and willpower. This is what covers the concept of imputability, which is the first feature of the mental element to be considered before looking at the question of culpability (Leturmy & Senon, 2012) [Supreme Court criminal section, case: “Laboube” (Crim 13 dec 1956)]. There are non-liability causes directly linked to the accused and which refer to personality, such that the moral imputability cannot be held, for example, people with psychiatric disorders that lead to the abolition of discernment at the time of the offense (paragraph one, section 122-1 of the Criminal Code) (Leturmy & Senon, 2012). The psychiatric expert's assignment is focused on the provisions of section 122-1 of the French Criminal Code, which provides for two possibilities. In paragraph one, the complete abolition of discernment due to psychiatric disorders is raised, which can entail criminal nonliability. Paragraph two addresses the alteration of discernment because of psychiatric disorders (between a complete discernment and an abolition of discernment), which will not entail criminal non-liability, but at least in theory, will lead to lessening the liability and thus a reduction of the sentence.

Section 122-1 of the Criminal Code: “A person is not criminally liable who, when the act was committed, was suffering from a psychological or neuropsychological disorder which destroyed his discernment or his ability to control his actions. A person who, at the time he acted, was suffering from a psychological or neuropsychological disorder which reduced his discernment or impeded his ability to control his actions remains punishable; however, the court shall take this into account when it decides the penalty and determines its regime. If the offense is punishable by imprisonment, it is reduced to one-third or in case of crime punishable by imprisonment or criminal detention for life, it is reduced to thirty years. The jurisdiction can nevertheless decide not to apply this reduced sentence by a specifically justified decision. If after medical advice, the Court considers that the nature of the disorder is justified, it can decide that the sentence imposed allows the convicted person to benefit from adequate healthcare”

The information given by the expert will help the judge or the court to understand whether a psychiatric disorder makes the fault attributable or not. While the expert gives his opinion on the discernment and the self-control of the acts, the judge, as far as he is concerned, rules on the imputability and criminal liability. It is important to note that the magistrate is not bound to the expert's opinion. He may seek for a second assessment, which is compulsory when it is requested by the prosecutor or the parties. Furthermore, it is to be noted that nowadays, it is quite uncommon at the pretrial investigating phase for the investigating judge to order a criminal irresponsibility on account of mental disorder with access to sanitary services (compulsory hospitalization). Moreover, the judge can decide to refer the case to the trial court against the expert's advice.

Please cite this article as: Guivarch, J., et al., Is the French criminal psychiatric assessment in crisis?, International Journal of Law and Psychiatry (2017), http://dx.doi.org/10.1016/j.ijlp.2017.01.002

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Most often since the procedural changes were introduced by the law dated February 25, 2008 in relation to the declaration of lack of criminal liability for mental disorder, the judge decides, whether on his own or at the request of the prosecutor or the parties, to refer the case to the Investigation Chamber. The Investigation Chamber is a particular court with three judges who must decide—in a public hearing—where the mental patient is present and where the experts give evidence on a) the validity of the allegations against the accused, and b) the existence of a mental disorder that abolished his discernment. This chamber will decide either to order a conventional dismissal if the criminal charges are insufficient or to refer the case to the Trial Court, but does not have to determine the guiltiness of the defendant. This chamber will have to order a decision of non-criminal liability alongside safety measures (e.g., prohibition to have a weapon, to meet the victim) if it considers that the provisions of Section 122-1 of the Criminal Code are applicable (Congrès de Psychiatrie et de Neurologie de Langue Française, Vacheron-Trystan, Cornic, & Gourevitch, 2010). 3. Information on the disagreements between experts 3.1. Review of the literature In the international literature, few data dealing with the disagreements between the psychiatric experts are available (Combalbert et al., 2014; Fuger et al., 2014; Gowensmith et al., 2013). Moreover, those publications come from authors living in English-speaking countries, in which the psychiatric assessment will be dealt with in accordance with adversarial proceedings. The adversarial proceedings have most probably an implication with these discrepancies (Dietz, 1985; Large & Nielssen, 2008; Large et al., 2009), even if it cannot be considered as a leading factor (Davis, 1994; Dietz, 1985; Large & Nielssen, 2008; Large et al., 2009; Nielssen et al., 2010). As a matter of fact, even when it is a non-contradictory procedure, the degree of agreement among experts remains fair. Gowensmith et al. showed that, in a nevertheless non-contradictory procedure, only 55.1% of the experts agreed to legal sanity. In the same way, K Fruger et al. conducted a specific study regarding the quality of penal psychiatric experts' reports and analyzed 150 reports regarding 50 criminal cases. They noticed a “fair” rate of agreement on criminal responsibility that they explained by the use of various non-standardized methods in assessment, by different trainings of the experts, and by an evolution in the clinical condition of the patient between assessments (Fuger et al., 2014). Davis noted there was a “psychiatrist effect”: he noticed important variations between the experts in their propositions of criminal irresponsibility [from 12.5% to 60% of the cases depending on the experts (Davis, 1994)]. Dietz mentioned the institutional pressures, the fluctuating usual conditions of the realization of the assessment that could lead to a poor quality work (leading to these discrepancies). He insisted in particular on the expert himself, on his training, and on the weight of his ideologies that will influence the forensic discussion and the opinion of the expert (Dietz, 1985). In France, the assessment is non-adversarial as we have seen previously; thus, there are other factors that are involved in the disagreements. Combalbert et al. also wrote about differences in experts' trainings and in choice of tools (Combalbert et al., 2014). Data available in the French literature in this field suggest that the discrepancies would lie, not at the diagnosis level, but in relation to the forensic discussion which is the outcome of the expert mission (Guivarch et al., 2015; Senon et al., 2007; Zagury, 2007, n.d.). As a matter of fact, to enable the expert to conclude to a suppression of the discernment at the time of the offense, the expert will not only have to make a precise diagnosis of the psychiatric state at the time of occurrence, but also to perform a forensic discussion during which he will have to demonstrate a direct and exclusive link between the offense and this retrospective mental state, which implies taking into consideration a twofold requirement

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(Kolb & Leturmy, 2012): a time-based requirement, the mental disease must exist at the time of the offense—and a causation requirement—the offense must solely be due to the mental disease. However, the “exclusive” nature of the relationship between the mental disease and the facts does not appear either in the legislation or in the expert's mission. It must, therefore, be understood as an “expert jurisprudence” concerning the forensic interpretation but not as a simple jurisprudence. The term “jurisprudence” reflects the trend followed by different psychiatric experts in relation to improvement in psychiatric care context, to adopt a “much more demanding” approach. This approach involves seeking an exclusive link between the pathology and the facts to retain a suppression of the discernment (Zagury, n.d.). In view of this explanation, one can appreciate that an expert who will proceed to a strict observance of his mission will not abide to the above-mentioned double requirement or the jurisprudence related to the expertise. In this way, the latter will have divergent points of view with another expert who will respect the jurisprudence. Furthermore, one can suppose that the disagreements will be even more important that it will be an in-depth discussion of medico-legal issues and that it will require taking more factors into account (Guivarch et al., 2015). These are the contexts in which the experts are more inclined to question the part due to a potential mental disease within the act committed and the one linked to the person himself and to comorbidities (Felthous, 2008). The different contexts in which discrepancies arise are found in the literature, in particular when a defendant suffers from schizophrenia. These contexts are: 1) discontinuation of neuroleptic treatment, 2) use of illicit drugs, 3) premeditation, and 4) denial of facts (Bénézech, 2010; Gowensmith et al., 2013; Guivarch et al., 2015; Senon et al., 2007; Zagury, 2007). 3.2. Clinical vignettes 3.2.1. Case A: disagreements in forensic interpretation Mr. A, aged 30, was accused of attempted murder after stabbing a man in the abdomen. A first expert found that there was alteration of discernment; the second found abolition. 3.2.1.1. Biography. Mr. A was the eldest of two children. He had a fairly normal childhood, brought up by his two parents. He stopped school at the end of junior high school and did an apprenticeship. When he was 19, he had a job for a few weeks shortly before a first admission to the hospital for psychiatric care. At that time, he had little contact with his family and moved several times to be closer to them in different towns. At the time of the events, he was isolated. He lived alone in an apartment, leading a ritualized existence in his everyday life and spending most of the day watching TV. He was under guardianship and received a disability benefit. 3.2.1.2. Background of the illness. He was hospitalized for the first time for psychiatric care at the age of 19 for a brief psychotic disorder (DSM-IVTR). He then had several hospitalizations due to delirious episodes and was hospitalized 15 times during the 3 years prior to the events, in various towns. These were mostly involuntary admissions. The psychiatrists noted that he used cannabis and stopped taking treatment during episodes of decompensation. At the time of the events, the patient had not stopped his treatment. He was treated by an injected depot neuroleptic/with extended/prolonged-released (Haloperidol). 3.2.1.3. Concerning the facts. Mr. A explained that he was having breakfast in a bar near his home. He says a man, a customer from the bar, insulted him, although he could not remember the exact insults uttered (he later said that the man knocked into him, without explaining the circumstances further). The police enquiry indeed

Please cite this article as: Guivarch, J., et al., Is the French criminal psychiatric assessment in crisis?, International Journal of Law and Psychiatry (2017), http://dx.doi.org/10.1016/j.ijlp.2017.01.002

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showed that the man had made fun of Mr. A's appearance. Mr. A then went home to get a knife and stabbed the man in the abdomen. He was not under the influence of alcohol or any other toxic substances. 3.2.1.4. Expert assessments. The first expert met Mr. A in psychiatric care shortly after the incident. The second one met him a few months later. Both observed extensive delusional symptoms, with auditory and visual hallucinations centering on the theme of persecution and grandeur. They also noted disorganized speech and affective dissociative symptoms. They both diagnosed paranoid schizophrenia. The first expert suggested that the insults perceived by the accused were in fact auditory hallucinations. He reached the conclusion of an alteration of discernment for two reasons: - Mr. A was aware of the seriousness of his act, as he said, “I stabbed the person in the abdomen so as not to kill him.” To the expert, this implies that there was no abolition of discernment, as Mr. A was capable of anticipating the effects of his act. - Because the man made fun of Mr. A., there was no longer a direct and exclusive link between the schizophrenia and the attempted murder. The attempted murder was a reaction to the mocking, whose inappropriateness was due to the mental disorder and to an altered perception of the reality. The second expert saw the accused 9 months later and found that interpersonal contact was still profoundly altered. He found that intellectual efficiency was normal but greatly altered in its expression by an impairment of “higher mental processes.” He based his conclusion that there was abolition of discernment on two reasons: - There was a direct and exclusive link between the mental illness and the attempted murder. The expert mentions significant delusional and dissociative symptoms despite the treatment provided. He particularly found that the accused presented psychotic judgment and reasoning disorders that caused him to misunderstand interpersonal situations, including the encounter with the man. - The altercation was minimal but took on a particular meaning in the patient solely as a result of his delusion. 3.2.1.5. Analysis of the disagreements. The discrepancies concern the identification and interpretation of the role played by factors external to the illness—here the altercation—in the patient's reaction to it. In other words, it is necessary to look for a personal implication of the patient in his acting-out, in response to elements of reality that interfere in the relationship between the mental illness and the offense; this would mean the illness is no longer the sole cause of the reaction and that there is no longer a direct and exclusive link with the illness and thus no abolition but rather an alteration of discernment. As mentioned previously, it is important to note that judges are not bound to the experts' opinion. The latter provide psychiatric analysis regarding psychopathology of the acting-out and the discernment ability of the accused at the time of the offense. With regard to these evidences, the judge will decide on the imputability or irresponsibility due to mental illness. In this case, the judge took into account the second expert's advice. Mr. A was found irresponsible regarding his mental health causing abolition of discernment and was maintained in compulsory psychiatric care. 3.2.2. Case B: role of discontinuation of treatment and use of toxic substances in disagreements Mr. B, 31, was accused of attempted murder using a knife on three of his neighbors. Five expert psychiatrists examined the patient: a single expert and then two teams of two experts each. The first psychiatric expert concluded to an alteration of discernment. Given the seriousness of the crime and psychiatric history of the accused, the magistrate

decided to mandate two panels of experts to have a second opinion. The four psychiatrics experts of the two teams concluded on an abolition of discernment. 3.2.2.1. Biography. Mr. B was the youngest of four children who grew up in a family that he described as close, stable, and affectionate. In school, he achieved good results. However, he was isolated and had no friends. He earned a master's degree in math after his high school diploma. Later, after a break-up in a relationship, he changed pathway and studied accounting. When he again lived with a partner, he committed the first murder attempt on a neighbor, for which he was found irresponsible and admitted to hospital. After the hospitalization, he gave math lessons and then decided to focus on artistic activities. He then prostituted himself for financial reasons. 3.2.2.2. Background of the illness:. Mr. B consulted a psychiatrist for the first time when he was 10 years old, for atypical OCD with physical violence on his family and people close to him. After a break-up with his partner, he attempted suicide by defenestration. He was admitted to a hospital for atypical depression with psychotic features and treated with a neuroleptic (Olanzapine). At that time, he then began to drink alcohol regularly. He soon stopped taking his medicine and ceased attending follow-up. He first attempted murder on a neighbor in a delusional fit of jealousy, convinced that his partner was cheating on him with the neighbor. The judge found him irresponsible following a dual psychiatric expertise, and he was admitted to the hospital, including a year in a unit for difficult patients due to his resistance to the drug treatment and his particularly dangerous nature.

In France, units for difficult patients (called “UMD” in French) care for patients suffering from psychiatric disorders who are psychiatrically very dangerous, causing a fear of hetero-aggressive behavior underpinned by the illness (Raymond, Léger, & Lachaux, 2015).

When he was discharged from hospital a few years later, he was followed by a psychiatrist in a private practice. He again discontinued the treatment and continued to drink. 3.2.2.3. Concerning the facts:. Eighteen months after stopping his psychiatric care, he was accused of a triple attempted murder. Mr. B's explanations were delusional: he said his neighbors were part of a “mafia conspiracy with his family to make him crazy,” and that they “wanted to reveal his past as a prostitute.” On the night of the events, his girlfriend had left him. He had consumed alcohol. His neighbors apparently made noise, and he went to see them to ask them to quiet down. He said that he found his neighbors aggressive and sensed that they wanted to get rid of him. That was when he stabbed them. He then fled abroad. 3.2.2.4. Expert assessments. The five experts saw Mr. B several months after the events. He was in the hospital and treated with neuroleptics. The experts all diagnosed schizophrenia and found delusional symptoms of persecution, hallucinations, and affective coldness. The first expert's finding of alteration of discernment was based on four points: - Mr. B suffered from schizophrenia but the attempted murder could not be directly and exclusively linked to the schizophrenia as it was favored by some important factors: alcohol consumption and discontinuation of treatment. - During a previous attempted homicide, Mr. B had told the experts that he “had realized how important it was to continue his chemotherapeutic treatment and his follow-up, and was aware of the

Please cite this article as: Guivarch, J., et al., Is the French criminal psychiatric assessment in crisis?, International Journal of Law and Psychiatry (2017), http://dx.doi.org/10.1016/j.ijlp.2017.01.002

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risks of stopping his treatment.” - The accused told the expert that he knew he “suffered from schizophrenia” and that “an alcohol addiction was contraindicated due to his mental health and the drugs he was on.” - Mr. B therefore deliberately chose to stop taking his treatment and to continue drinking alcohol, which caused the exacerbation of the symptoms and thus the attempted murder. The first team of experts saw Mr. B more than a year after the attempted murder. The experts found that the accused still suffered from auditory hallucinations. They concluded that there was an abolition of discernment after a forensic discussion on four points: - The acting-out was directly linked to the delusion caused by active phase schizophrenia. The neighbors were thus part of a delusional conspiracy against him, involving “his family and the mafia.” - The discontinuation of treatment was due to anosognosia, itself inherent in schizophrenia, and therefore not a result of the patient's will. - Alcohol, which can facilitate acting-out, was consumed here, not for a festive purpose but to provide escape and sedation, to calm the patient faced with a recurrence of symptoms. - Finally, the patient was in the same circumstances as the previous murder attempt 5 years earlier, in which the accused has been exempted from criminal responsibility. The experts thus demonstrated that there was a direct and exclusive link between the events and the schizophrenia, as Mr. B had committed the crime in a moment of delusion, the recurrence of his symptoms being due to the discontinuation of treatment, explained by the anosognosia of schizophrenia. The second team of experts saw the patient 2 years after the events. Mr. B was again placed in a unit for difficult patients. The experts found delusional symptoms still present and disorganized speech. Going by the accused's statements, they considered him to be delusional at the time of the events. They found that there was abolition of discernment, justifying their opinion in five points: - The violent act had occurred in a delusional context. It was the outcome of a delusional interpretation on the theme of persecution, which fully explains it. - The symptoms were particularly significant, as demonstrated, according to the experts, by Mr. B's admission to the unit for difficult patients due to a “therapeutic impasse.” - The current episode “presents several analogies” with the attempted murder committed 5 years earlier on another neighbor: delusion at the time of the events, discontinuation of treatment, and consumption of toxic substances. Mr. B had then been exempted from criminal responsibility. - Regarding the discontinuation of treatment, they added that it was inherent in the mental illness. The patient is not responsible for it. They said that the care system had a duty to be vigilant. - Drinking alcohol was the last argument. At the time of the events, it could be directly induced by delusional interpretations: the patient told the experts that he had realized on that day that he “should drink until he could no longer tell good from evil.”However, it could also have a tranquilizing effect, given the recurrence of symptoms. Alcohol consumption was therefore directly linked to the schizophrenia. 3.2.2.5. Analysis of the disagreements. In this case, again, the variance between the experts did not concern the diagnosis, but the question of discernment and control over acts, between abolition and alteration, and thus between paragraph 1 and paragraph 2 of section 122-1 of the French Criminal Code. It is again a discrepancy in the forensic discussion on the link between the pathology and the crime at the time of the events.

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It would seem that two particular circumstances give rise to this variance: the patient's discontinuation of treatment and the consumption of alcohol at the time of the events which favored the violent act. To the first expert, it was a deliberate choice made by the accused–as he was informed and apparently aware of the risks–that led him to act out. There is therefore no longer a direct and exclusive link between the pathology and the events, the accused's choices interfering in this relationship, even if the accused has symptoms at the time of the offense. For the two teams of experts, on the other hand, the two factors are directly linked to the illness and not to the patient. The discontinuation of treatment is thus considered to be a consequence of the anosognosia inherent in schizophrenia. The consumption of alcohol is regarded as having a sedative and tranquilizing aim faced with the recurrence of symptoms. Two different theoretical conceptions are therefore in opposition with regard to discontinuation of treatment and alcohol consumption. The weight of ideologies influences the forensic discussion and the expert's opinion regarding the following questions: - Is the accused solely responsible for the discontinuation of treatment and alcohol abuse, and can we consider these behaviors as his personal and conscious choices, regardless of his mental pathology? If yes, his act could not be directly and exclusively imputable to his mental health, implying that there was no abolition of discernment if we consider the “expert jurisprudence.” - Or, are discontinuation of treatment and alcohol abuse caused by his mental illness as a symptomatic expression or as a consequence? If yes, his act could be directly and exclusively imputable to his mental health, implying abolition of discernment. Furthermore, it should be noted that in practice, in the present case, it is not possible to know whether the discontinuation of treatment caused the recurrence of symptoms or whether the recurrence of symptoms (due to treatment failure) had determined the discontinuation of treatment. Mr. B was found irresponsible by the Investigation Chamber. It found sufficient charges against him but held Mr. B to be irresponsible owing to his illness. Mr. B was placed in involuntary care, and safety measures were ordered: he was banned from carrying a weapon and from contacting the victims. 4. Our investigation involving the experts of the court of appeals of Aix-en-Provence In order to understand the crisis that affects the psychiatric expertise in France, we conducted a survey among psychiatric experts. 4.1. Objectives Our objectives were to understand the causes of disagreements in experts' conclusions and to discuss prospects to try to reduce them. We also wanted to understand the reasons for the decrease of psychiatrists wanting to be criminal experts. 4.2. Methods 4.2.1. Participants and study design Between 2012 and 2014, we interviewed psychiatric experts of the Aix-en-Provence Court of Appeals, one of the most important Courts of Appeals in France. We used semi-structured interviews to question the experts about the discrepancies that concern exclusively the assessment of schizophrenic patients accused of murder and, most particularly, the reasons for the discrepancies. We chose the assessment of schizophrenic patients because schizophrenia is one of the mental diseases that can

Please cite this article as: Guivarch, J., et al., Is the French criminal psychiatric assessment in crisis?, International Journal of Law and Psychiatry (2017), http://dx.doi.org/10.1016/j.ijlp.2017.01.002

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entail an abolition or an alteration of discernment according to the forensic discussion. We also questioned experts about the lack of interest shown by the psychiatrists for psychiatric assessment. We studied their awareness of expertise and the desired changes for the future. Interviews lasted an average of 30 min. The comments of psychiatrists were faithfully transcribed. 4.2.2. Questionnaire development The questionnaire was developed from preliminary interviews with psychiatric experts and non-expert psychiatrists and from data in the literature about discrepancies (Amador & Paul-Odouard, 2000; Beaudoin, Hodgins, & Lavoie, 1993; Bénézech, 2010; Guivarch et al., 2015; Leturmy & Senon, 2012; Manzanera, 2007; Manzanera & Senon, 2008; Obata et al., 2005; Senon et al., 2007; Senon & Manzanera, 2006; Zagury, 2007). Thus, we could question experts about specific situations that would be likely to lead to disagreements between experts (see Annex A). 4.2.3. Processing collected data The results are expressed in percentages in a table. The expressions used by experts are in quotation marks.

discernment only when delirium was directly connected with the facts and discussed the part of the delusional symptoms attributable to drug use. The three other contexts—interruption of neuroleptic treatment, use of drugs, and premeditation—changed the conclusions for half of the experts. The interruption of medication by the defendant meant for experts a greater involvement of schizophrenia in the offense. This was in favor of an abolition of discernment and therefore a decrease in liability. The experts explained that the discontinuation of treatment by the patient is inherent in schizophrenia, with a worsening of the disease after interruption of medication. In contrast, drug use at the time of the offense was rather tending toward a lower involvement of the mental illness in taking action and thus an increase of liability. It was even clearer concerning premeditation (52.9%) although one third of the experts claimed not to be influenced by this circumstance if the premeditation was delirious (Table 2). The last context referred to the accused's denial of facts. Half of the experts insisted on the importance to study this denial in order to distinguish the psychotic denial from the concealment of his defense dealing with the justice. The majority of the experts, despite this denial, make assumptions on the questions of the discernment or control of the actions at the time of the act in question; this would potentially enable them to consider as relevant the abolition or alteration of discernment.

4.3. Results 4.3.1. Participant characteristics Seventeen psychiatric experts, predominantly male (88.2%) and most with psychoanalytic training (41.2%), were included. The mean age was 58 years. Less than half of them had been previously trained in law, forensics, or psychiatric expertise (Table 1). Over 75% of the experts told us that they had been in situations of discrepancy with another expert. 4.3.2. Points of difference between experts First, we asked the experts about their conclusions regarding the discernment at the time of the offense when examining a schizophrenic person accused of murder. The experts were sharply divided between the three possible conclusions, namely abolition of discernment for a criminal nonliability (paragraph one, section 122-1 of the Criminal Code), alteration of discernment for a lessening of liability (paragraph two, section 122-1 of the Criminal Code), and absence of alteration of discernment for a full liability. A quarter of the experts distinguished theory from practice. They explained that if it is theoretically possible to conclude to absence of alteration of discernment, in practice they always conclude at least an alteration or even an abolition of discernment when they examined a schizophrenic person accused of murder. Then, we questioned the experts about five situations that pertained to the occurrence of disagreements. First, the presence of delirium at the time of the offense: this context brought half of the experts to conclude to an abolition of discernment. The other half (52.9%) explained that they concluded to an abolition of Table 1 Characteristics of population recruited.

1) Gender Men Women 2) Theoretical guidelines Psychoanalytical Pharmacological Neuroscience Polymorphic 3) Previous training in law, forensic or expertise 4)Average age 5)Average number of years of psychiatry practice 6)Average number of years of expert practice

Percentages

Workforce

88.2 11.8

15 2

41.2 23.5 17.6 23.5 47.1 57.9 years 33.5 years 16.7 years

7 4 3 4 8

4.3.3. Causes of disagreements The major cause of disagreements, which is highlighted by 65% of the experts, is the existence of schools of thought or personal beliefs that could have the primary effect of distorting forensic interpretation concerning the link between medical disorder and offense and therefore the experts' conclusions. Some would even give priority to dogmatic positions, since “There can be no premeditation in a schizophrenic patient or it is a delirium state.” Another position was stated as, “With a schizophrenic, the empowerment is therapeutic.” Some experts would conclude to mental disorder just by reference to the type of act committed. Another reason given for disagreements is the inadequate work of some experts (23.5%), who would lack experience and would solely base their conclusions on the clinical examination the day of the expertise, without making the effort to get back to the clinical examination of the day of the offense. According to some experts, the disease's progress between the times of evaluation of different expert could also be involved in discrepancies. 4.3.4. Means to reduce the disagreements More than 75% of the experts suggested solutions to reduce the disagreements, especially by either coming back to “dual expertise”—as it used to be—or to a larger forensic team of experts working together. The team method would enable the experts to better study the clinical aspects of the subsequent action. Another solution was suggested: the organization of a working group among experts (23.5%) in order to reach consensual criteria for abolition or alteration of discernment on specific contexts the experts have to decide on. In other words, working on clinical analyses of discernment. Other experts suggested that identical training should be organized for all the experts and that research should be continued on the discrepancies (17.5%). 4.3.5. Awareness of psychiatric assessment and desired changes A total of 23.5% of the experts complained about not being well esteemed by the public and the media, and suggested it was mostly because of the disagreements between them. However, this issue does not, in itself, explain the disinterest of psychiatrists to work in the field of criminal expertise, which was noted by all the psychiatrists surveyed. The disinterest could be explained by the poor financial compensation of experts (58.8%). The experts experience delays in payment, and would even sometimes have difficulties getting paid by the Department of Justice.

Please cite this article as: Guivarch, J., et al., Is the French criminal psychiatric assessment in crisis?, International Journal of Law and Psychiatry (2017), http://dx.doi.org/10.1016/j.ijlp.2017.01.002

J. Guivarch et al. / International Journal of Law and Psychiatry xxx (2017) xxx–xxx

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Table 2 Consequences of the different contexts on the expert's decisions. Consequences on the liability expertise's decision

Yes

No

Variable

Increase of the liability

Reduction of the liability

Neuroleptic treatment stopped Use of toxic substances at time of the action Premeditation

41,2 35,3 23,5

52,9 47,1 35,3

5,9 17,6 35,3

17,6 29,4 52,9

29,4 17,6 5,9

Furthermore, the fees paid appear to be insufficient to those surveyed, considering the amount of work performed: traveling time to court, examination of the accused in jail, drafting of the expert's report, and providing testimony to the Criminal Court. The other reasons raised to explain the lack of vocation concern the heavy burden of the expert's responsibilities, which could cause anxiety (47.1%), the considerable workload caused by the expert's activity (47.1%), and the lack of proper training for forensic psychiatry and expertise during the training of psychiatric residents (29.4%). Bearing these findings, the changes expected by the experts concern above all a revaluation of the remunerations and a speedier payment (29.4%), the return to “dual expertise” in order to train young psychiatrists and to generate their interest in criminal expertise (23.5%), and the improvement of the technical conditions for the experts (e.g., medical examination room ensuring confidentiality, longer terms given to the experts for their assignments) (17.6%). 4.4. Discussion We were satisfied with the number of psychiatrists who participated in our survey because they represented the vast majority of the psychiatric experts attached to the second most important French Court of Appeals. Moreover, our sample was adequate considering the present limited number of psychiatric experts who practice in France (Association Nationale des Psychiatres Experts Judiciaires, 2013). Experts were at the end of their career, and the main theoretical training was psychoanalysis. This corresponds to the national trend in France (Combalbert et al., 2014). The different experts' points of view from our survey that pertain to the question of liability on schizophrenic subjects who are accused of homicide can be found in the French-speaking scientific literature. From this literature, three dominant experts' positions can be ascertained: -1) Some experts argued for systematic lack of liability (Bénézech, 2010). Nevertheless, schizophrenia is a mental illness that does not imply a systematic irresponsibility (Fuger et al., 2014; Wills & Gold, 2014; Zagury, 2007). Moreover, it is what the DSM-V specifies in the section “Cautionary Statement for Forensic Use of DSM-V” (American Psychiatric Association & American Psychiatric Association, 2013). The main interest of the psychiatric examination is to determine the part of the mental illness in the offense (Zagury, 2007). -2) Others noticed among some of their colleagues a move of “empowerment of the psychotic person,” suggesting that the empowerment “would have therapeutic virtue” (Protais & Moreau, 2009; Zagury, n.d.). -3) Some others would take a middle position, retaining the abolition of the discernment solely in cases of acute psychosis and an alteration of the discernment in the other cases (Coutanceau, 2012; Zagury, n.d.). The bases of these positions have different theoretical concepts for schizophrenia. Experts considering this as an episodic disease, with a normal inter-critical functioning, will tend to retain full responsibility, whereas, those considering schizophrenia as a chronic illness with a constantly changing interpretation of the world, will therefore always find a link with the subsequent action and thus retaining abolition of discernment (Crocq, 2012). The fact that half of the experts in our survey systematically conclude to an abolition of the discernment in the event of

a delirium symptom of the schizophrenic person during the offense is not satisfying since, as previously seen, the expert must proceed to a forensic discussion to select an abolition of the discernment. In his arguments, he will tend to show that the commitment to action is exclusively and directly linked to the mental disorder. It is indeed possible to meet schizophrenic patients with a delirium symptom who committed sordid crimes. The fact that some experts do not follow the jurisprudence applicable to the experts leads to discrepancies (Guivarch et al., 2015; Zagury, 2007, n.d.). The majority of the experts surveyed did not consider that stopping the psychotropic treatment is a liability factor, corresponding to the data of the international literature, which showed that the interruption of the treatment is directly connected to schizophrenia by a lack of insight (Amador & Paul-Odouard, 2000; Bénézech, 2010; Schmitt, Lefebvre, Chéreau, & Llorca, 2006). Ideologies, as the basis of the inconsistencies between the experts, were also highlighted in the literature. The inconsistencies may arise from differences in schools of thought, in connection with different trainings and thus different interpretations of the acting-out, but also jurisprudences that belong to the expert himself (Combalbert et al., 2014; Guivarch et al., 2015; Schweitzer & Puig-Verges, 2006; Zagury, 2007). Concerning the lack of interest of psychiatrists for the field, the financial issue is of some importance. As a matter of fact, experts face much difficulty in getting paid due to important budget cuts affecting the Department of Justice. In addition, the fees amounting to 277.50 Euros per case (i.e., $310 US Dollars per case) is viewed as insufficient for the work performed. This amount was not revised for years, while the social charges that burden the experts have steadily increased. The psychiatrists' lack of awareness of this branch of work during their initial training also appears to be involved (Combalbert et al., 2014; Jean-Louis Senon et al., 2007). A tutoring of young psychiatrists could be put in place within a team of forensic experts to promote the criminal expertise and to provide training. Finally, the perspectives drawn by the experts in order to reduce the discrepancies and improve the attractiveness of the assessment were in conformity with the suggestions of the 2007 professional brainstorming session related to the field of criminal psychiatric expertise (Senon et al., 2007). The return to dual expertise might seem paradoxical because of the actual lack of experts. Nevertheless, it seems to be a good method to reduce inconsistencies and to attract new experts by reassuring them. Having said that, even in case of dual expertise, disagreements between teams of forensic experts occur (Kacperska et al., 2016). The disagreements are to a certain extent inevitable, in particular in the complex cases. There is always a part of subjectivity in expert's opinion when the expert has to estimate the mental state of the defendant at the time of the offense, in particular when the latter is seen at a much later date after the crime (Kacperska et al., 2016; Zagury, 2007). The retrospective reconstruction of the mental state makes all the difficulty of the mission (Fuger et al., 2014). The objective is to reduce at the most this subjectivity (without being able to completely cancel it) by recourse to common training, consensus, and dual expertise. In the international literature, many authors insist on the creation of specific training programs that give the experts consensual tools for assessment (Combalbert et al., 2014; Gowensmith et al., 2013). Although some of the experts in our survey suggested this idea, it was not the most quoted one. As we stated in our introduction, the question of the expert liability and disagreements in psychiatric assessment is not only relevant to France, but is of global importance (Combalbert et al., 2014; Fuger et al., 2014; Geary & Law, 2015; Gowensmith et al.,

Please cite this article as: Guivarch, J., et al., Is the French criminal psychiatric assessment in crisis?, International Journal of Law and Psychiatry (2017), http://dx.doi.org/10.1016/j.ijlp.2017.01.002

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2013). The place and role of experts in every country is particular to that country's connection with the societal context, its history, and, most particularly, its legal system and judiciary procedures. Thus, solutions should be chosen in the national context (Combalbert et al., 2014). 5. Conclusion In our article, we have tried to understand the reasons for the crisis that the French psychiatric expertise have experienced by inquiring with psychiatric experts of the second most important Court of Appeals in France. About the disagreements for which the experts are criticized, it seems that these disagreements are mostly in relation to the forensic interpretation, more particularly to establish the link between the offense and the mental pathology at time of the crime. The main cause of the discrepancies is the existence of different schools of thought between the experts and the difficulty in complying with the jurisprudence applicable to the experts.

The lack of interest of psychiatrists to enter the field of legal psychiatric expertise does not seem to be linked directly to the problem of discrepancies, but rather to the adverse financial situation of the assessment, the extensive responsibility on the expert, and a lack of proper specific training. From this point of view, it appears that the best solution to approach the uneasiness of psychiatric expertise would be the returning to “dual expertise.” This would enable younger psychiatrists to be trained to this particular activity and to foster exchanges between experts in order to improve the work on forensic interpretation, so that there will be a harmonization of the professional practice and thus a reduction in the discrepancies. It would be of some importance to associate, in addition to what is mentioned here, a financial revaluation of the expertise and a decrease in the number of psychiatric assessments, giving importance to the liability expertise—and not to the post-trial (dangerousness) expertise—which represents the primary objective of the criminal psychiatric expert.

Please cite this article as: Guivarch, J., et al., Is the French criminal psychiatric assessment in crisis?, International Journal of Law and Psychiatry (2017), http://dx.doi.org/10.1016/j.ijlp.2017.01.002

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Conflicts of interest The authors declare no conflict of interest.

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