Switzerland: the role of forensic psychiatric expertise

Prof. Philippe Delacrausaz. In Switzerland, forensic psychiatric expertise plays a central role as it permits an individual to be assessed for criminal irresponsibility or limited responsibility. Furthermore, a judge can at once impose sentencing, treatment, and placement measures. This decision is based on psychiatric expertise. When defendants are deemed not criminally responsible, they can receive treatment that, in theory, can be provided in a designated facility. However, these facilities do not have enough room and treatment is very frequently provided in regular detention centres. As opposed to sentences that have a beginning and an end, these measures may be re-imposed indefinitely if it is believed that the conditions which prevailed upon incarceration continue to exist. New expertise will now determine if the measure can be lifted and under which conditions: the role of the psychiatry expert is central. The judge decides in fine, but the decision cannot be made without an expert.

Expectations have shifted over the years. The emphasis on responsibility has decreased at the expense of “dangerousness” and the prevention of recidivism risk.

The 2007 Penal Code revision emphasized the importance of post-sentencing expertise. This has greatly increased in the last 15 years. It especially aims to answer the following questions: Is there greater risk of recidivism? Can the measure or its implementation rules be modified in the future?

Prof. P.D. According to Swiss law, the forensic expert must be a qualified physician. At the CHUV Expertise Centre, each expertise is systematically assigned to an expert and a co-expert. The mandate is never carried out alone. The pair of experts consists of a physician-psychiatrist and a psychologist or two physician-psychiatrists. Once the expertise mandate has been received, the pair can access a person’s criminal record and request to meet. The meeting is conducted either in a prison facility or in an expertise centre’s office. The two or three meetings are conducted by one of the experts for one to two hours. With the person’s consent, medical records can also be accessed to do the important work of collecting information. When this is complete, the two experts attend the results review, which is led by the expert who had thus far not been in attendance. In “this clinical setting”, the relationship dynamics are evaluated and the clinical process is enriched. The proceedings then begin, with the objective of the two experts agreeing with the diagnosis, risk assessment, and the person’s responsibility.

A number of instruments are used: risk assessment tools, specifically “actuarials“ or “structured professional judgments”. The instruments are chosen according to the type of violence identified. There are specific instruments for sexual violence, for example. On the other hand, there are very few instruments available for non-violent acts, such as cases of fraud or property damage. The instruments may vary, but the method of expertise remains consistent.

The report must then be defended at the hearing. Unfortunately, this is not routinely carried out in the Vaud region, and I regret that. This can be somewhat uncomfortable for expert-psychiatrists who often dread confrontation. Nevertheless, it is an opportunity to explain a person’s actions, a pathology, or to clear up misunderstandings. In my opinion, this is valuable discussion time between lawyers and psychiatrists, which is usually useful.

Prof. P. D. It is impossible to assess if a person poses a threat. It cannot be measured like one’s height, weight, or heart rate. Anyone can pose a threat and it is often a matter of context. For example, it is extremely difficult to predict the probability of an initial act of violence. For domestic violence, it is still almost impossible to predict whether a man who threatens his wife will go as far as killing her. However, we can assess the risk of recidivism and the probability that someone who has already committed a crime will do so again. This is obviously a predictive assessment comparable to weather forecasting. Weather forecasting has improved in the past 20 years, and the forecasting confidence index has increased considerably over time, too. The confidence index is high the first 48 or 72 hours but decreases with time. Forecasting is no longer possible after 10 days.

It is therefore essential that experts be very clear on what they can report. We can hypothesize about certain things and not offer a response about others.

A judge needs to precisely understand this certainty or uncertainty in order to be able to decide. Back to the weather forecasting analogy, reporting that “in five days it will rain“ with a confidence index of two out of ten is not the same as saying “in five days it will rain” with an index of eight out of ten. In one case, you might not take an umbrella, and in the other, you definitely will. Experts must be able to definitively say when they cannot give an opinion.

Nonetheless, we had an extensive debate on this question at a citizen’s initiative on life imprisonment, which was voted for by the Swiss people in 2004. This incarceration measure is intended to have individuals who are identified as incurable and who present a high risk of recidivism imprisoned for life without parole. Two independent experts must reach this conclusion before such a measure passes. However, our current risk assessment instruments do not allow us to perfectly predict the next 10, 20, or 30 years. Even though there are provisions in the criminal code for life imprisonment, in practice, the lack of scientific tools renders this impossible.