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Ethical Issues Pertaining to Forensic Assessments in Mental Capacity Proceedings: Reflections from South Africa

Within the context of South African criminal law, the defence of pathological criminal incapacity, or more commonly referred to as the insanity defence, is well established. Whenever the insanity defence is invoked, the Criminal Procedure Act 1977 (‘CPA’) provides that an accused shall be referred for observation at a mental institution. Such observation will essentially be conducted by three forensic psychiatrists and one clinical psychologist. Within this context various ethical issues come into play. One of the primary issues relates to the confidentiality of statements made by an accused during such observation. In terms of section 79(7) of the CPA, statements made by an accused during the enquiry into his or her criminal incapacity may be admissible during the subsequent trial, provided that they are relevant to the assessment and determination of the accused's mental state. The latter section necessarily raises various ethical and constitutional concerns. The focus of this article is on the ethical dilemma of confidentiality within the context of mental capacity proceedings. Dual relationships, bias and ‘hired gun’ experts are also discussed canvassed against the backdrop of the defence of pathological criminal incapacity. Recommendations for possible reform are provided in conjunction with a proposed ethical code of conduct for mental health professionals conducting forensic assessments during the course of mental capacity proceedings.