This study aims to make policy suggestions to improve the utility and quality of forensic psychiatric examination by exploring how mental examinations are performed in the current criminal justice system regarding legal responsibility and medical treatment and custody. For this purpose, we reviewed court records of 340 criminal cases involving mental disorder issues and conducted in-depth interviews with 15 experts in the fields of criminal justice and mental health. Also, we examined the legislations and institutions of other countries for the purpose of a comparative study. After providing the purposes and methods of this study in Chapter 1, the next chapter offers the concepts and classifications of mental disorders from both a medical and a legal perspective. Chapter 3 examines the criminal justice standards and procedures concerning the judgment of criminal responsibility and mental examination. Chapter 4 provides a comparative legal study of Japan, Germany, and the United States. Chapter 5 analyzes the court records and the interviews in order to provide an empirical account of mental examinations in the criminal justice system. In the last chapter, we conclude with a set of policy proposals regarding forensic psychiatric examination.

The first set of suggestions are concerned with how to expand the use of mental examination in the criminal justice system. First, the results of this study suggest that the criminal justice system needs to make better use of mental examination at different stages from investigation, court decision-making regarding a medical treatment and custody case as well as criminal responsibility, to performance of medical treatment and custody. To this end, the right to counsel should be expanded into the investigation stage before a case is prosecuted. Second, we suggest that the term “mental disorder” as defined in Article 10 of Criminal Act be modified in a way that clarifies its meaning in relation to the judgment of criminal responsibility. In so doing, the medical concept of mental disorder needs to be established as a conceptual foundation upon which the judgment of criminal responsibility can be made. In a similar vein, it should be emphasized that a judge has an obligation to elaborate her reasoning behind a decision pertaining to criminal responsibility, especially when her decision departs from psychiatric expert opinions. Also, it should be specified under what circumstances and conditions that forensic psychiatric examination is mandatory. Third, due consideration should be given to the issue of competency to stand trial and how to utilize mental examination in this term. Fourth, if an expert opinion is to offer substantive assistance in a legal decision making regarding a medical treatment and custody case, psychiatric examinations for that purpose should be performed as a separate procedure from psychiatric examinations for determining criminal responsibility. Also, it should be made mandatory to perform a forensic psychiatric examination for any eligible offender before a decision is made and during the custody for the purpose of periodical review. In so doing, we suggest that treatment responsiveness be taken into consideration as a requirement for the initiation and continuation of medical treatment and custody. In addition, the need for medical treatment, which is one of the requirements for the measure, needs to be given full consideration in a medical treatment and custody case.

The second set of suggestions tackles the issues of appointing an examiner and an institution. First, it has been suggested that second opinions be sought to improve the quality and reliability of mental examination. However, the results of this study show that getting a second opinion has limitations in improving the credibility and integrity of mental examinations. Rather, it was pointed out that it would be more fruitful to make a clear provision regarding the professional qualifications of an examiner and the criteria for choosing an institution where an examination is performed. Also, a provision concerning the exclusion of an examiner under specified circumstances needs to be stipulated. Other policy measures for improving the integrity of forensic psychiatric examination include the diversification of institutions charged with the task of mental examination. In so doing, due attention should be given to ensure the reliability of examinations by providing standardized guidelines for the procedures of examination and the format of an examination report. Lastly, measures to protect the right of an examinee and to ensure the quality of an examination needs to be taken by stipulating the duration of custody for examination and the methods of obtaining records needed for examination.

The third set of suggestions address the issues of cooperation and communication between experts from the fields of mental health and criminal justice. It should be noted that the judgment of criminal responsibility in relation to mental disorders requires as a prerequisite cooperation between medical and legal experts and that the judgment cannot be made in absence of psychiatric opinions. Furthermore, as a medical treatment and custody case should take medical opinions into account as a critical factor in determining the need for treatment, it would be possible to make use of a joint conference of legal and medical experts in deciding the case or to entrust cases involving mental health issues with a specialized court. Also, it would be helpful to expand the use of professional examiners pursuant to article 279-2 of Criminal Procedure Act by recruiting experts from diverse fields including criminology, psychology, and sociology as well we psychiatry.