A regulatory framework for psycho-legal assessments in South Africa

Abstract

The study demonstrates that mental health professionals, more specifically psychiatrists and psychologists, conducting psycho-legal assessments in South Africa, play a pivotal role in assisting the courts in ensuring that justice is done. Mental health professionals are involved in numerous matters, ranging from criminal cases, such as conducting psycho-legal assessments regarding criminal capacity, civil proceedings concerning care and contact evaluations, personal injury claims, and many more. In reviewing case law and the complaints lodged with, and rulings made by, the Health Professions Council of South Africa, it is evident that psycho-legal assessments are often problematic. The problems relate to an inadequate level of performance in evaluations and testimony and unethical behaviour. It is argued that the lack of regulation of psycho-legal assessments is one of the main contributing factors in the increasing challenges experienced.

The study examines the current regulatory framework regarding psycho-legal assessments in South Africa by first examining the procedural and evidentiary rules that control the admissibility and evaluation of expert testimony, and secondly, the self-regulation by the mental health professions. To address the shortcomings, the regulatory mechanisms in the international context is analysed by turning to the United Kingdom as well as the United States of America. Both jurisdictions have strong ties to South Africa and a rich history concerning regulating psycho-legal assessments and psychological and psychiatric evidence in general. Drawing from the regulatory frameworks in the comparator countries recommendations for the South African context is made. The recommendations take a multi-level approach, focusing on the rules of evidence and other procedural rules within the legal system and self-regulation of mental health professions.