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Title: PSYCHIATRIST AS AN EXPERT WITH Special Reference to Family Court Dr' Ravindra Kamath Prof


1
PSYCHIATRIST AS AN EXPERT WITH Special
Reference to Family Court Dr. Ravindra Kamath
Prof Head , Dept of Psychiatry, Nair Hosp,
Mumbai
2
B. Y. L. NAIR CHARITABLE HOSPITAL, MUMBAI
3
DR. A P.PATKAR My Mentor
4
Principles of Criminal Jurisprudence
  • Every person presumed to be sane unless the
    contrary is proved
  • 99 guilty can be scot free but 1 innocent cant
    be punished
  • Ignorance of law is no excuse

5
Raman Raghav Case 1970-1987
  • 42 MURDERS and yet no death sentence
  • Dr. Franklin Police Surgeon
  • Dr. A P. Patkar Defense Expert
  • H O D NAIR HOSP
  • Board of 3 psychiatrists
  • Dr. J C. Marfatia H O D J.J. HOSP
  • Dr. V N. Bagadia H O D K.E.M. HOSP
  • Dr. Kelkar Superintendent
  • Central Institute of Mental
    Health Research,
  • Pune

6
Medical Vs Legal Insanity
  • Sec 84 IPC Nothing is an offence which is done
    by a person who
  • At the time of doing it
  • by reason of unsoundness of mind
  • Is incapable of knowing the nature of act
  • That he is doing either wrong or contrary to law

7
  • EXPERT IN COURT

8
Expert Witness
  • General psychiatric training and clinical
    experience are sufficient for some forensic
    purposes.
  • In most, however, familiarity with highly
    specialized clinical issues (e.g., sexual
    harassment, hospital standards, violence, child
    psychiatry) and/or forensic topics (e.g.,
    criminal responsibility, competencies
    capacities, wrongful death, child custody
    proceedings) is required.

9
Expert Witness
  • The psychiatrist is hired primarily for his or
    her ability to clarify the psychological and
    medical issues of a case, not to interpret legal
    ones.
  • This does not mean that the forensic psychiatrist
    must have a large clinical practice, but some
    contact with clinical care and/or medical
    teaching is relevant to most (especially civil)
    cases

10
Expert Witness
  • Such expertise may be demonstrated by additional
    training, relevant experience, special
    certification (e.g., forensic psychiatry
    certification), research, or publications related
    to the topic at hand.

11
Psychiatrist as Expert Witness
  • On account of professional training, capable of
    deducing opinions inferences from the facts
    observed by himself or observed by others
  • One must possess special knowledge, skill,
    training experience that lie beyond the
    experience general knowledge of judge the
    jury.

12
Qualities of Expert Witness
  • Degree
  • Certification
  • Credibility expertise
  • trustworthiness
  • dynamism
  • Adequate training more theatrical aspects of
    courtroom work- vocal inflection, body language
  • Good reputation within the profession

13
Rights of Expert Witness
  • To ask the judge how one should whether one
    must answer the question
  • To ask whether the material asked for is
    privileged
  • Refuse to answer if question is not understood
  • To say dont know

14
  • Rights of Expert Witness
  • To ask for qualifying the answer when yes or no
    question is asked
  • Right to complete the answer protest if
    interrupted
  • May refer to written records to refresh
    recollection

15
First Experience
  • 1984 - 26 year Registrar DPM qualified few months
    ago standing in the witness box at the CITY CIVIL
    COURT
  • Profuse sweating, shirt fully drenched,
    tremulous, palpitations, insomnia for few days
  • Mind blank with incomplete documentation in
    indoor papers

16
Attendance in Court
  • Prepare well
  • Anticipate questions
  • Not to volunteer
  • Be calm

17
Expert Vs Expert Witness
  • Referrals to hospitals from
  • Family court
  • State womens commission
  • Juvenile remand homes
  • Jails

18
Why Important ???
  • Non- theoretical
  • Real life situation
  • Probability 100
  • Reduce fear, anxiety

19
Divorce Family Court
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24
Family Courts Act - 1984
  • To promote concillation in, secure settlement
    of disputes related to marriage family affairs
  • Jurisdiction validity/nullity of marriage,
    divorce
  • Maintenance, custody of children, property,
    adoption
  • Procedure of evidence judgment informal
  • Proceedings in camera confidentiality
  • Assistance of legal expert
  • Mumbai 7 judges, 14 counselors

25
Family Courts
  • Population - gtone million
  • Maharashtra - 4 Pune, Nagpur, Aurangabad
    Mumbai
  • Marriage counselors introduced by
    TISS,Mumbai,1980
  • Marriage problems social problems, need
    societal help

26
Multidisciplinary Approach
  • Client Gynecologist
  • Marriage counselor Speech therapist
  • Psychiatrist Sexologist
  • Psychologist
  • Legal practitioner
  • Urologist
  • Sec 12 Assistance of Medical Experts

27
Divorce Rates
  • USA- 1 2 or 1.8 million marriages come to an
    end yearly (National center for Healths divorce
    rate statistics)
  • India - no formal statistics, but the divorce
    rate has greatly increased
  • Divorce rates in India are amongst the lowest in
    the world

28
  • India -11 in 1,000
  • Lower - villages and higher - urban.
  • These days divorce rates in Indias urban sphere
    are shooting up.
  • India Divorce rate twice as high as ten years
    ago

29
Divorce Rates
  • India - Divorce rates rising alarmingly.
  • Delhi - doubled over the past five years.
  • Bangalore - tripled in the last four years.

30
  • February 16, 2008, Times of India
  • LOVE/MARRIAGE Divorces on the rise in India, and
    re-marriage
  • India's Times News Network- for every 5 weddings
    registered in Mumbai and Thane since 2002, family
    courts have received 2 applications for divorce.

31
Mumbai and Thane
  • Jan 2002 - Oct 2007.
  • 104,287 marriages registered
  • 44,922 applications for divorce.
  • Jan to Oct 2007
  • 17,221 marriages registered.
  • 7,813 applications for divorce

32
Pending Divorce Cases
  • Maharashtra till may 2007 17,213
  • Mumbai 8000
  • Delhi 8000
  • Bangalore 4600
  • Pune 4700

33
Indian Laws Divorce
  • Hindu marriage act 1955- Hindus, including
    Buddhists, Sikhs and Jains
  • Indian Divorce Act, 1869- Christians
  • Parsi Marriage and Divorce Act, 1936- Parsis
  • Dissolution of Muslim Marriages Act, 1939-
    Muslims
  • Special Marriage Act, 1956 (Kapur and Cossman
    101) - Civil marriages and inter-community
    marriages and divorces

34
Mental Abnormality Marriage Law
  • Does it affect validity or continuance of
    marriage?
  • What should be the nature intensity?
  • Can a person be prevented from marrying?

35
Nullity of Marriage Mental Abnormality
  • Initial or supervening
  • Section 5 of Hindu marriage act-marriage declared
    to be
  • void if, at the time of marriage, either
    party
  • - incapable to give consent
  • - though capable, has been suffering from
  • mental disorder of such a kind or to such an
  • extent as to be unfit for marriage
  • - has been subject to recurrent attacks of
  • insanity or epilepsy

  • case

36
  • Post Marriage Abnormality
  • Section 13 of Hindu marriage act a spouse can
    petition when other spouse
  • Incurably of unsound mind or suffering
    continuously or intermittently from mental
    disorder of such a kind to such an extent that
    the petitioner cant reasonably be expected to
    live with him or her

37
Mental Disorders
  • Mental illness
  • Arrested or incomplete development of mind
  • Psychopathic disorder
  • Other disorders or disabilities of mind including
    schizophrenia

38
Supreme Court 1998 Ram Narain vs Rameshwari
Gupta J. VENKATACHALIAH
  • Each case of schizophrenia has to be considered
    on its own merits
  • SCHIZOPHRENIA IS NOT
  • WHAT SCHIZOPHRENIA IS
  • SCHIZOPHRENIA IS WHAT
  • SCHIZOPHRENIA DOES
  • IS VS HAS

39
Supreme Court 1998 JUSTICE. VENKATACHALIAH
  • Two elements necessary are-
  • Unsound mind or intermittent schizophrenia or
    mental disorder
  • Disease must be of such a kind of extent that
    other party cant reasonably be expected to live

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41
Grounds for Divorce
  • India - 5 main reasons
  • Chronic Disease - Both mental and physical
    illnesses are included in this category, as well
    as sexually transmitted diseases
  • Impotency - Physical inability of the couple to
    consummate the marriage or the refusal by one
    spouse to do so. Sterility can be construed to
    mean non-consummation if the other partner is not
    aware of the condition before the marriage

42
Grounds for Divorce
  • Adultery - the voluntary sexual intercourse of a
    married man or woman with a person other than the
    offender's wife or husband
  • Desertion - disruption of cohabitation, absence
    of just or reasonable cause and their combination
    throughout 3 years" before the abandoned spouse
    may petition for a divorce
  • Cruelty def. varies according to gender
  • includes both physical and mental abuse and
    neglect

43
Indian Divorce (Amendment) Act, 2001
  • Certain changes in the Act.
  • Section 10- A - mutual consent has also been
    made a ground for divorce.
  • Deletion of the right of a husband to claim
    damages from the adulterer
  • Provision to penalise a husband who is guilty of
    adultery
  • Provision for children of broken marriages

44
Indian Divorce (Amendment) Act, 2001
  • After the present amendment, both husband and
    wife can seek a divorce on the grounds of,
  • Adultery
  • Cruelty
  • Desertion for more than two years
  • Insanity for more than two years
  • Incurable leprosy for more than two years
  • Conversion to another religion

45
Indian Divorce (Amendment) Act, 2001
  • Willful refusal to consummate the marriage
  • Not being heard of for 7 years
  • Venereal disease in communicable form for two
    years
  • Failure to obey the order for restitution of
    conjugal rights.

46
Family Court - Mumbai
  • Total no of cases 9174 (2007)
  • Mutual consent -
    785 (8.56 )
  • Other divorce -
    4028
  • Maintenance,
    custody etc rest
  • of mental illness in cases 7.1
  • of mental illness with violence 3.5
  • Dont call expert witness, instead send concerned
    person to govt. hosp.
  • No panel

47
Clinicians Advise
  • 1980s dont marry
  • 1990s inform marry
  • 21st century marry ??

48
Acknowledgements
  • Dr. A. P. Patkar, Ex HOD Nair Hosp.
  • Dr. Abhijeet Faye, Resident.
  • Mrs. Madhavi Desai, Marriage counselor, Family
    court, Mumbai.

49
  • THANK YOU

50
Divorce in Mumbai
51
US Statistics
  • The divorce rate per capita per year in 2005 (per
    1,000 people) was 3.6 the lowest rate since
    1970, and down from 4.2 in 2000 and from 4.7 in
    1990 (divorce magazine 2005)
  • 2003, 7.5 marriages per 1,000 people and 3.8
    divorces, according to the National Center for
    Health Statistics (Divorce Rate It's Not as
    High as You Think By DAN HURLEY The New York
    Times April 19, 2005).

52
  • SPECIAL night courts have been set up in India's
    western state of Gujarat to help clear some of
    the up-to 30 million cases currently choking the
    country's legal system.
  • The Indian judicial system is known for its
    delays, with most civil and criminal cases taking
    up to 15-20 years to be settled. Divorced women
    go grey while waiting for maintenance

53
Bolam test
  • Deals with negligence cases
  • Depressive patient advised ECTs by psychiatrist,
    didn't warn about slight risk of bone fracture,
    didn't administer muscle relaxant or restraint
    pt suffered b/l fracture of acetabula
  • Complaint-alleging… failing to administer
    relaxant, manual control warn of risks

54
  • A man need not possess the highest expert skills,
    it is sufficient if he exercises the ordinary
    skill of an ordinary competent man exercising
    that particular art
  • A doctor is not guilty of negligence if he has
    acted in accordance with a practice accepted as
    proper by a responsible body of medical men
    skilled in that act

55
  • If proper practice requires some warning to be
    given, the second question is,if a warning had
    been given, would it have made any difference?

56
Family laws
  •   Protection of Women from Domestic Violence Act,
    2005. The Dowry Prohibition Act, 1961 The
    Foreign Marriage Act, 1969 The Guardians And
    Wards Act, 1890  The Hindu Marriage Act, 1955 The
    Hindu Minority and Gaurdianship Act, 1956   The
    Indian Divorce Act, 1869 The Maternity Benefits
    Act, 1961 The Muslim Personal Law (Shariat)
    Application Act, 1937

57
  • The Muslim Women (Protection of Rights on
    Divorce) Act, 1986 The Dissolution of Muslim
    Marriages Act, 1939 The Special Marriage Act,
    1954 The Hindu Succession Act, 1956 The Hindu
    Adoptions and Maintenance Act, 1956 Indian and
    Colonial Divorce Jurisdiction Act, 1940 The Anand
    Marriage Act, 1909 The Arya Marriage Validation
    Act, 1937 Matrimonial Causes (War Marriages) Act,
    1948 The Child Marriage Restraint Act, 1929   

58
References
  • Amato, P. R. "The Impact of Divorce on Men and
    Women in India and The United States." Journal of
    Comparative Family Studies 25 (1994) 207-221.
  • Choudhary, J. N. Divorce in Indian Society A
    Sociological Study of Marriage Disruption and
    Role Adjustment. Jaipur, India Printwell
    Publishers, 1988.
  • Diwan, Paras. Family Law Law of Marriage and
    Divorce in India. New Delhi, India Sterling
    Publishers Private Limited, 1983.

59
References
  • Kapur, Ratna, and Brenda Cossman. Subversive
    Sites Feminist Engagements with Law in India.
    New Delhi, India Sage Publications, 1996.
  • Atakan SA Stages Encountered in the course of
    Divorce. Psychology Journal, 1987 6 72-75.
  • Kaplan JH, Sadock BJ Comprehensive Textbook of
    Psychiatry, fifth edition. Marland, Williams and
    Wilkins 1987 1409.

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61
Developmental Stages of Divorce
  • EMOTIONAL DIVORCE
  • LEGAL DIVORCE
  • ECONOMIC DIVORCE
  • DIVORCE AS PARENTS
  • SOCIAL DIVORCE
  • PSYCHIC DIVORCE

62
Professional secrecy
  • Refers to secrets about the health of patient
    which a doctor comes to know of during the
    practice
  • Every RMP takes a pledge for maintaining
    professional secrecy which can not be revealed
  • Even to parents if the patient is major
  • Even to spouse

63
Emotional stages of Divorce
  • I. DISILLUSIONMENT OF ONE PARTY (sometimes 1-2
    years before verbalized)
  • II. EXPRESSING DISSATISFACTION (8-12 months
    before invoking legal process)
  • III. DECIDING TO DIVORCE (6-12 months before
    invoking legal process)

64
Emotional stages of Divorce
  • IV. ACTING ON DECISION (beginning the legal
    process)
  • V. GROWING ACCEPTANCE (during the legal process
    or after)
  • VI. NEW BEGINNINGS (completing the legal process
    to four years after)

65
Divorce child
  • Children experience two losses together
  • Anxiety , loneliness, fear and weakness.
  • Young children - regression, detrition in the
  • training of toilet, being reluctant to go to
    nursery school and irregularities in sleep.
  • 50 of them - distorted school relations

66
Divorce child
  • Crying often, worrying and weeping and decrease
    in school performance
  • Adolescence - anxious about the parents, wonder
    about their own future marriage.
  • Feel anxious in relation with the opposite sex
    and their attitude towards marriage is not
    favorable

67
  • The statistics have alarmed psychiatrists and
    sociologists. Mumbai, say sociologists, is
    increasingly time-stressed with many couples
    doing about 80 km of commuting every day in
    addition to eight- to ten-hour jobs.
  • Even longstanding, stable matrimonial
    relationships may eventually crack under severe
    pressure, a Tata Institute of Social Sciences
    sociologist said.

68
  • While it true that divorce rate is on a steady
    incline in India and Asia the magic numbers
    generated in the study are not remotely
    conclusive.
  • The comparison between marriages registered and
    divorce applications filed is relevant if people
    filing for divorce were among those who got
    married during the period. The study does not
    make this clarification which makes the validity
    questionable.
  • The official divorce rate for India is estimated
    to be at 1.1 or 11/1000 couples (Time, July
    2007) which is said to have doubled in urban
    India over last five years.

69
  • according to a study of 2001 census data by two
    Indian demographers, Ajay Kumar Singh and R.K.
    Sinha, Mumbais divorce rate - with about 7
    percent of marriages failing - is roughly on a
    par with that of other metropolises and not much
    higher than the national level, offering a
    reliable gauge of the national trend.

70
  • To warden of the hostel if the student is major
  • To insurance company unless he is appointed M.O.
    of that company
  • To employer or master, if major
  • It is no defense that the patient is insane
  • While publishing medical articles identity of the
    patient should not be revealed.

71
  • For a person in police custody
  • 1.if an under trial , details of his health can
    not be leaked to jailor or police officer
  • 2. If a convict, details of his health should not
    be revealed to jailor or jail superintendent

72
  • Privileged communication- under certain condition
    doctor is duty bound to reveal secrets to another
    officer or person who has a corresponding legal ,
    social or moral duty to perform.
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