A historical overview of the mental health expert in England until the nineteenth century

Abstract

Throughout history, the use of mental health professionals as expert witnesses has elicited criticism. The criticism stemmed from the alleged lack of scientific rigour in mental health sciences and the accompanying bias of expert witnesses. As the use of mental health professionals in court increased, so did the associated problems, with bias remaining at the forefront. The same challenges plague the South African courts today and despite various evidentiary and procedural rules2 aimed at addressing the problems, these have not achieved much success. The contribution traces the origins of the expert witness, in particular the mental health expert, in the English legal system until the nineteenth century. By examining the shift in the position of the expert witness from a neutral informant in the eighteenth century to a partisan witness in the nineteenth century, a parallel is drawn between the historical position in England and the current position in South Africa. Drawing on the past failures and successes of the English legal system in this regard, and briefly considering the current position in England, recommendations are made to address the problem of partisan mental health experts within the South African context.