Forensic Issues in Child Psychiatry

1
Forensic Issues in Child Psychiatry
Lt. Col. Neatu Narang Associate Professor
Psychiatry Classified Specialist Psychiatry Base
Hospital Delhi Cantt.
2

• Child population is not homogeneous. Large
  numbers of children have no home, no school and
  no family.
• They can be in orphanages, destitute homes,
  beggars homes, juvenile homes, rescue homes,
  remand homes and on streets.

3
Tenth Five Year Plan (2002-07)

• "The development of children is the first
  priority on the countrys development agenda,
• not because they are the most vulnerable,
• but because they are our supreme assets
• and also the future human resources of the
  country".
• these words underlines the fact that the future
  of India lies in the future of Indian children
• across income groups, geographical locations,
  gender and communities.

4
As per 2001 census

• India has around 157.86 million children,
  constituting 15.42 of India's population,
• - who are below the age of 6 years.
• 75.95 million children are girls
• Remaining 81.91 million children are boys.
• Sex ratio among children (0-6 years) - 927
• - i.e. 927 females per 1000 males.
• A significant proportion of these children lives
  in economic and social environment which impedes
  the child's physical and mental development.

5
Magnitude of Child Psychiatric Morbidity

• ? 10-12 of lt 18 yrs suffer from disorders in
  behavior, learning and development.
• ? ICMR (2001) - Mental Behavioural Disorders
• in children adolescence 12.8
• ? WHO (2001) Serious Emotional Disturbances in
• children adolescents 15

6
Constitution of India

• Article 15(3) ensure that there is no
  discrimination and access to all public
  facilities
• Article 39 (e) protects child labor
• (f) opportunities to develop in healthy manner
  and protect against moral and material
  abandonment
• Article 45 State will provide early childhood
  care and education till 6 years age
• Article 47 - State to raise level of nutrition
  and prohibit harmful intoxicating substance and
  drugs

7
Criminal procedure code 1973

• Section 125
• Any person having sufficient means neglects or
  refuses to maintain . . .
• (b) his legitimate or illegitimate minor child
  whether married or not unable to maintain itself.
• (c) . . .(not being married) attained
  majority, where such a child is, by reason of any
  physical or mental abnormality or injury is
  unable to maintain itself . . .

8
Admissions under MHA 1987

• Section16
• voluntary admissions - on request by guardian for
  admission of ward patient
• Involuntary admissions

9
Discharges under MHA 1987

• Section 18
• On request by guardian
• On attaining majority while inpatient intimate
  at the earliest and unless continuance is
  requested within a month

10

• Common psychiatric evaluations include
• Determination of child custody,
• Evaluation of parenting capacity, and
• Termination of parental rights. 
• Child custody evaluations focus on
• the "best interests of the child." 
• Interviews with the parents, children, and
  collateral contacts play an integral role in
  forming recommendations for the court.

11
Scope of Forensic Child Psychiatry

• In the juvenile justice arena,
• the child forensic psychiatrist assists the court
  in determining
• juvenile's - psychiatric diagnosis,
  - amenability to treatment,
  - eligibility for being tried in court,
  - risk for future
  dangerousness.

12
Scope of Forensic Child Psychiatry

• Important assessments of many juveniles
  involved in the justice system
• Competency to participate in delinquency
  proceedings,
• Competency to stand trial as an adult
• Evaluate Adolescents tried in adult court who
  raise an "insanity" defense.

13
WHO Definition-Child Abuse

• ''Child abuse or maltreatment constitutes all
  forms of physical and/or emotional ill-treatment,
  sexual abuse, neglect or negligent treatment or
  commercial or other exploitation, resulting in
  actual or potential harm to the child's health,
  survival, development or dignity in the context
  of a relationship of responsibility, trust or
  power.

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Form

• Physical Abuse
• Sexual Abuse
• Emotional Abuse
• Negligence

16
Epidemiology

• US - 1 in 50 infants-non fatal abuse
• 12.1/1000 children suffer abuse.
• India - 2/3rd children physically abused
• ? 50 are sexually and emotionally abused.

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Physical Abuse

• Bruises or welts Burns, scalds, sprains
  dislocation, bites, Fractures, especially in
  infants Shaking injuries e.g. retinal
  Haemorrhage Inappropriate explanation of
  childs injury Wariness of adult contacts

19
Child Sexual Abuse

• Out of the most fundamental violations of
  childrens rights and an underlying obstacle to
  their overall development.
• The offenders are usually
• Family members
• Neighbours
• Friends
• Teachers, etc
• Prevention mainly includes the conception of
  personal safety education to children.

20
Sexual Abuse

• Discloses sexual abuse Sophisticated
  sexual behaviour
• Constant headache or abdominal pains
  Difficulties at school Persistent habit
  disorders
• Sleep disorders Inhibition to play
  Serious difficulties relating to peers
  
• Self-destructive behaviour.

21
Role of Psychiatrist in Child Abuse

• Acquire specialized knowledge
• Be alert to the fact abuse is highly prevalent
• To protect the child from continuing harm
• Take measures to diminish long-term effects
• Collaborate with multi-disciplinary team that
  deal with child abuse

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• Child Abuse

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MINISTRY OF WOMEN AND CHILD DEVELOPMENT
NOTIFICATION

• New Delhi, the 26th day of October , 2007
• Rules under the Juvenile Justice
• (Care and Protection of Children) Act 2000
  (56 of 2000)
• as amended by the Amendment Act 33 of 2006,
• to be administered by the States

26
MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT
NOTIFICATIONNew Delhi, the 22nd June, 200IRules
under the Juvenile Justice (Care and Protection
of Children) Act, 2000 (56 of 2000)

• Considered expedient to re-enact the Juvenile
  Justice Act, 1986
• Bearing in mind the standards prescribed in the
  Convention on the Rights of the Child,
• The United Nations Standard Minimum Rules for the
  Administration of Juvenile Justice, 1985 (the
  Beijing Rules),
• The United Nations Rules for the Protection of
  Juveniles Deprived of their Liberty (1990),
• and all other relevant international instruments

27
Juvenile Justice (care and protection of
children) Act, 2000

• (herein under referred to as the said Act) was
  enacted to consolidate and amend the law relating
  to juveniles in conflict with law and children in
  need of care and protection,
• by providing for proper care, protection and
  treatment by
• catering to their development needs,
• and by adopting a child friendly approach in the
  adjudication and disposition of matters in the
  best interest of children and
• for their ultimate rehabilitation through various
  institutions established under that Act.

28
Few Important Definitions of JJ Act.

• abandoned means an unaccompanied and deserted
  child who is declared abandoned by the Committee
  after due inquiry
• best interest of the child means a decision
  taken to ensure the physical, emotional,
  intellectual, social and moral development of
  juvenile or child

29

• child friendly means any process and
  interpretation, attitude, environment and
  treatment, that is humane, considerate and in the
  best interest of the child
• community service implies service rendered to
  the society by juveniles in conflict with law in
  lieu of other judicial remedies and penalties,
  which is not degrading and dehumanizing.
  Examples
• - cleaning a park
• - getting involved with Habitat for Humanity
• - serving the elderly in nursing homes
• - helping out a local fire or police
  department
• - helping out at a local hospital or nursing
  home
• - serving disabled children.

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individual care plan

• comprehensive development plan for a juvenile or
  child based on age specific and gender specific
  needs and the case history of the juvenile or
  child, prepared in consultation with the juvenile
  or child, in order to restore
• juveniles or childs self-esteem,
• dignity and self-worth and nurture him
  into a responsible citizen

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individual care plan

• Accordingly the plan address following needs of
  a juvenile or a child
• - Health needs
• - Emotional and psychological needs
• - Educational and training needs
• - Leisure, creativity and play
• - Attachments and relationships
• - Protection from all kinds of abuse, neglect
  and maltreatment
• - Social mainstreaming and
• - Follow-up post release and restoration.

32
Fundamental Principles Of Juvenile Justice
Protection Of Children

• Principle of presumption of innocence
• A juvenile or child or juvenile in conflict with
  law is presumed to be innocent of any malafide or
  criminal intent up to the age of eighteen years.
• The juveniles in conflict with law or child's
  right to presumption of innocence shall be
  respected throughout the process of justice and
  protection, from the initial contact to
  alternative care, including aftercare.
• Any unlawful conduct of a juvenile or a child or
  a juvenile in conflict with law which is done for
  survival, or is due to environmental or
  situational factors or is done under control of
  adults, or peer groups, is ought to be covered by
  the principles of innocence

33

• Age of innocence
• - is the age below which a juvenile or child or
  a juvenile in conflict with law cannot be
  subjected to the criminal justice system.
• - The Beijing Rule 4(1) clearly lays down that
• - the beginning of the age of criminal
  responsibility shall not be fixed at too low an
  age level bearing in mind the facts of mental and
  intellectual maturity.
• - the mental and intellectual maturity of
  juvenile or child or a juvenile in conflict with
  law below18 years is considered insufficient
  through out the world.

34
The idea is to allow certain benefits to a
juvenile in conflict with law vis a vis his
mental development assessed by the experts in the
field through out the world as of 18 years being
the time of demarcation and with this end in view
the yardstick can only be the' date of occurrence
because the whole spirit is to impart benefit to
such juvenile on grounds of lesser development of
his mental faculty.

• A juvenile or child is presumed to be innocent of
  any malafide or criminal intent up to the age of
  seven years in all cases and upto twelve years in
  the cases wherein he is unable to understand the
  consequences of his action on account of
  immaturity of understanding

35
Indian Penal Code

• Section 82 nothing is an offence which is done
  by a child under 7 years of age
• Section 83 nothing is an offence which is done
  b a child between 7 to 12 years of age who has
  not sufficient maturity to understand the nature
  of conduct and the consequences

36
Provisions of Legal aid and Guardian Ad Litem

• Juveniles in conflict with law have a right to be
  informed about the accusations against them and a
  right to be legally represented.
• Provisions must be made for guardian ad litem,
  legal aid and other such assistance through legal
  services at State expense.
• This shall also include such juveniles right to
  present his case before the competent authority
  on his own.

37
Principle of dignity and worth

• Treatment that is consistent with the childs
  sense of dignity and worth is a fundamental
  principle of juvenile justice.
• Reflects the fundamental human right enshrined in
  Article 1 of the Universal Declaration of Human
  Rights that all human beings are born free and
  equal in dignity and rights.
• Respect of dignity includes not being humiliated,
  personal identity, boundaries and space being
  respected, not being labeled and stigmatized,
  being offered information and choices and not
  being blamed for their acts.
• The juveniles or childs right to dignity and
  worth has to be respected and protected
  throughout the entire process of dealing with the
  child from the first contact with law enforcement
  agencies to the implementation of all measures
  for dealing with the child.

38
Principle of Right to be heard

• Every childs right to express his views freely
  in all matters affecting his interest shall be
  fully respected through every stage in the
  process of juvenile justice.
• include -creation of developmentally appropriate
  tools and processes of interacting with the
  child,
• -promoting childrens active
  involvement in decisions regarding
  their own lives -providing opportunities
  for discussion and debate.

39
Principle of family responsibility

• The primary responsibility of bringing up
  children, providing care, support and protection
  with the biological parents.
• However, in exceptional situations, this
  responsibility may be bestowed on willing
  adoptive or foster parents.
• All decision making for child should involve the
  family of origin unless it is not in best
  interest of the child to do so.
• Family - biological, adoptive or foster (in that
  order), must be held responsible and provide
  necessary care, support and protection to the
  juvenile or child under their care and custody
  under the Act, unless the best interest measures
  or mandates dictate otherwise.

40
Principle of Safety (no harm, no abuse, no
neglect, no exploitation and no maltreatment)

• At all stages, from the initial contact till such
  time he remains in contact with the care and
  protection system, and thereafter, the juvenile
  or child or juvenile in conflict with law -
• - shall not be subjected to any harm, abuse,
  neglect, maltreatment, corporal punishment or
  solitary or otherwise any confinement in jails
  and extreme care shall be taken to avoid any harm
  to the sensitivity of the juvenile or the child.
• The state has a greater responsibility for
  ensuring safety of every child in its care and
  protection, without resorting to restrictive
  measures and processes in the name of care and
  protection.

41
Principle of non-stigmatizing semantics,
decisions and actions

• The non-stigmatizing semantics of the Act must be
  strictly adhered to,
• Use of adversarial or accusatory words, such as,
  arrest, remand, accused, charge sheet, trial,
  prosecution, warrant, summons, conviction,
  inmate, delinquent, neglected, custody or jail is
  prohibited in the processes pertaining to the
  child or juvenile in conflict with law under the
  Act.

42
Principle of non-waiver of rights

• No waiver of rights of the child or juvenile in
  conflict with law, whether by himself or the
  competent authority or anyone acting or claiming
  to act on behalf of the juvenile or child, is
  either permissible or valid.
• Non-exercise of a fundamental right does not
  amount to waiver.

43
Principle of equality and nondiscrimination

• There shall be no discrimination against a child
  or juvenile in conflict with law - on basis of
• - age, sex, place of birth, disability, health,
  status, race, ethnicity, religion, caste,
  cultural practices, work, activity
• - or behaviour of the juvenile or child or that
  of his parents or guardians,
• - or civil and political status of juvenile or
  child.

44
Principle of right to privacy and confidentiality

• Juvenile's or child's right to privacy and
  confidentiality shall be protected by all means
  and through all the stages of the proceedings and
  care and protection processes.

Principle of last resort Institutionalization
of a child or juvenile in conflict with law
shall be a step of the last resort after
reasonable inquiry and that too for the minimum
possible duration.
45
Principle of repatriation and restoration
Every juvenile or child or juvenile in
conflict with law has the right to be re-united
with his family and restored back to the same
socio-economic and cultural status that such
juvenile or child enjoyed before coming within
the purview of the Act or becoming vulnerable
to any form of neglect, abuse or
exploitation. who has lost contact with his
family, eligible for protection under the Act
and to be repatriated and restored, at the
earliest, to his family, unless such
repatriation and restoration is likely to be
against the best interest of child.
46
Principle of Fresh Start
The principle of fresh start promotes new
beginning for the child or juvenile in conflict
with law by ensuring erasure of his past
records The State shall seek to promote
measures for dealing with children alleged or
recognized as having impinged the penal law,
without resorting to judicial proceedings.
47
Rehabilitation and Social Reintegration.?

• The primary aim
• - is to help children in restoring their dignity
  and self-worth and mainstream them through
  rehabilitation within the family where possible,
• or otherwise through alternate care programmes
  and long-term institutional care shall be of last
  resort.

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Adoption.? The primary aim of adoption is to
provide a child who cannot be cared for by his
biological parents with a permanent substitute
family.

• Surrendered child
• - is one who had been declared as such after due
  process of inquiry by Committee and in order to
  be declared legally free for adoption, can be any
  of the following
• born as a consequence of non-consensual
  relationship
• born of an unwed mother or out of wedlock
• child in whose case one of the biological parents
  is dead and the living parent is incapacitated to
  take care
• child where the parents or guardians are
  compelled to relinquish him due to physical,
  emotional and social factors beyond their control

49
Foster Care.?

• For children who cannot be placed in adoption,
  order shall be issued for carrying out foster
  care, under the supervision of a probation
  officer or case worker or social worker, as the
  case may be,
• and the period of foster care shall depend on the
  need of the child.
• Every State Government shall design its own
  foster care programme so as to reduce
  institutionalization of children and enable a
  nurturing family environment for every child.

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Criteria for selection of families for foster
care

• Foster parents should have stable emotional
  adjustment within the family
• Foster parents should have an income in which
  they are able to meet the needs of child and are
  not dependent on the foster care maintenance
  payment
• Monthly family income shall be adequate to take
  care of foster children
• Medical reports of all the members of the family
  residing in the premises should be obtained
  including checks on HIV, TB and Hepatitis B to
  determine that they are medically fit

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Criteria for selection of families for foster care

• Foster parents should have experience in child
  caring and the capacity to provide good child
  care
• Foster parents should be physically, mentally and
  emotionally stable
• Home should have adequate space and basic
  facilities
• Foster care family should be willing to follow
  rules laid down including regular visits to
  pediatrician, maintenance of child health and
  their records
• Family should be willing to sign an agreement and
  to return the child to specialized adoption
  agency whenever called to do so
• Foster parents should be willing to attend
  training or orientation programmes

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Juvenile or Child suffering from dangerous
diseases or mental health problems.?

• When a juvenile or a child placed under the care
  of a fit person or a fit institution under the
  provisions of the Act,
• is found to be suffering from a disease or
  physical or mental health problems requiring
  prolonged medical treatment,
• or is found addicted to a narcotic drug or
  psychotropic substance,
• the juvenile or the child be sent to an
  appropriate place for such period as may be
  certified to be necessary for proper treatment
  of the juvenile or the child
• or for the remainder of the term for which he has
  to stay.

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• When the juvenile or the child is cured of the
  disease or physical or mental health problems,
• if the juvenile or child is still liable to stay,
  order the juvenile or the child to be placed back
  in the care of fit person or institution from
  where the juvenile or child was removed for
  treatment
• and if the juvenile or the child is no longer
  liable to be kept under the care of fit person or
  institution, the competent authority may order
  him to be discharged.
• The order of restoration of a juvenile or a child
  suffering from an infectious or contagious
  disease to his parents or guardian shall be based
  on the principle of best interest of the juvenile
  or child,
• keeping in mind the risk of stigmatization and
  discrimination and discontinuation of treatment.

54
Commissions For Protection Of Child Rights 2005

• No. 4 of 2006 (20th January, ,2006,
• An Act to provide for the constitution of a
  National Commission and State Commissions for
  Protection of Child Rights and Children's Courts
  for Providing speedy trial of offences against
  children or of violation of child Rights and for
  matters connected therewith or incidental
  thereto.
• United Nations (UN) General Assembly Summit
  in1990, which adopted a Declaration on Survival,
  Protection and Development of Children
• India has also acceded to the Convention on the
  Rights of the Child
• (CRC) on the ll th December, 1992
• in order to ensure protection of rights of
  children
• one of the recent initiatives that the Govt have
  taken for Children is the adoption of National
  Charter

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Functions and powers of commission

• Examine and review the safeguards provided by law
  being in force for the protection of child
  rights and recommend measures for their Effective
  implementation.
• Present to the Central Government, annually and
  at such other intervals, as the Commission may
  deem fit, reports upon the working of those
  safeguards
• Inquire into violation of child rights and
  recommend initiation of proceedings in such
  cases
• Examine all factors that inhibit the enjoyment of
  rights of children affected by terrorism,
  communal violence, riots, natural disaster,
  domestic violence, HIV /AIDS, trafficking
  maltreatment, torture and exploitation,
  pornography and prostitution
• - Recommend appropriate remedial measures .

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Functions And Powers Of Commission

• look into the matters relating to children in
  need of special care and protection
• - including children in distress, marginalized
  and disadvantaged children,
• - children in conflict with law, juveniles,
• - children without family and children of
  prisoners and recommend appropriate remedial
  measures
• study treaties and other international
  instruments and - - undertake periodical review
  of existing policies, - programmes and other
  activities on child rights and - make
  recommendations for their effective
• implementation in the best interest of children

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Functions And Powers Of Commission

• undertake and promote research in the field of
  child rights
• spread child rights literacy among various
  sections of the society and promote awareness of
  the safeguards available for protection of these
  rights through publications, the media, seminars
  and other available means
• inspect or cause to be inspected any juvenile
  custodial home, or any other place of residence
  or institution meant for children, under the
  control of the Central Government or any State
  Government or any other authority,
• - including any institution run by a social
  organization
• - where children are detained or lodged for the
  purpose of treatment, reformation or protection
• - and take up with these authorities for
  remedial action, if found necessary

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Functions And Powers Of Commission

• inquire into complaints and take suo moto notice
  of matters relating to -
• - deprivation and violation of child rights
• - non-implementation of laws providing for
  protection and development of children
• - non-compliance of policy decisions, guidelines
  or instructions aimed at, mitigating hardships to
  and ensuring welfare of the children and to
  provide relief to such children
• or take up the issues arising out of such matters
  with appropriate authorities and
• such other functions as it may consider necessary
  for the promotion of child rights and any other
  matter incidental to the above functions.

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Consent of a Minor

• In general minors, so far, have been considered
  as incapable of giving consent
• Exceptions to this can be when minors seek birth
  control, treatment of STD, substance abuse and
  emergencies
• Informed consent for adolescents seems like the
  right thing in the therapeutic setting
• Patient, parent and therapist conflicts in
  consent.
• The debate continues as minors are becoming high
  income earners and self sufficient

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Refusal of Treatment

• Legal right to refuse med or psych treatment
• Complex Evolving area
• Who may exercise that right ?
• - The Parent
• - The Minor
• - or Both
• Fact that pt is hospitalized does not
  automatically mean that pt lacks legal capacity
  to consent or withhold consent

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Refusal of Care by Parents

• Law recognizes greater auth on the part of
  parents to refuse Elective Care
• Significant Factors include -
• - Whether Refusal based on religious grounds
• - Whether parents child are in conflict or
  
• in agreement
• When parents refuse care that courts believe to
  be essential, jurisdiction invoked under child
  neglect laws to remove child, at least
  temporarily, from parents legal custody to
  authorize Rx

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Confidentiality Disclosure Mandatory
--Permissive

• What must not be disclosed?
• What may be disclosed?
• What must be disclosed?
• Who controls Disclosure ?

Circumstances in which parents are the ones to
consent for care, they may well be the ones who
have right to authorize or to Withhold
permission to release information Ethically
Appropriate it not legally required to seek
Concurrence of minor / adolescent to release
information
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Confidentiality Disclosure Mandatory

• At least 3 key situations for mandatory
  Disclosure
• Determination of suicidal risk or serious risk of
  harm to himself or others
• Necessary to take preventive measures
• Legal duty to warn intended victim of a pt who
  has expressed direct threat against identifiable
  indls life or to alert law enforcement auth. to
  that threat
• Duty to report Sexual or Physical Abuse abrogates
  Physician-pt psychotherapist-pt privileges

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ADOPTION

• The legal situation in India
• Laws governing adoption In India Are
• The Hindu Adoption and Maintenance Act 1956
• The Guardians and Wards Act 1890
• Juvenile Justice Act 2000

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WHO CAN ADOPT

• A couple desirous of giving a child, a family can
  adopt
• They should have a reasonable and regular source
  of income
• Neither the parents should have a major illness
  that would come in the way of parenting
• There should be no criminal record
• Preferable age between 25 -45 years
• Single parenting up to 45 years can Adopt

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Malpractice Issues

• Failure to get informed consent
• Diagnostic and medication errors
• Failure to warn a third party of endangerment
• Disclosure of information
• Inappropriate behavior towards a child

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Ethical conflicts

• Conflict of interest with the referral agency and
  that of the patient
• Consent for collecting collateral sources of
  information
• Privileged communication and confidentiality
• Privacy and confidentiality of information given
  to the therapist and demands of the parents

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Guidelines for Assessment

• Why this child?
• Who requests assessment?
• When is the report needed?
• Who will pay for the cost?
• Will the report have secondary aims?
• Where will the report be filed and who will
  access it?

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Future research

• Outcome of legal decisions
• Maintenance of links with non-residential parents
  by children who are adopted
• Assessment of non-family based care in relation
  to the welfare of children
• Effects of social and economic policy on mental
  health of children
• Effectiveness of legislation and legal structure