DOI: https://doi.org/https://doi.org/10.57187/smw.2023.40073
Courts and authorities are laypeople in terms of psychiatric forensic knowledge for adequately assessing a person in criminal proceedings, as they are trained in jurisprudence and not psychology or medicine. Therefore, according to the Swiss Criminal Procedure Code, they must seek out expert opinion if they lack the necessary expertise to assess facts [1]. This means that they can formally check the quality of a report (e.g. completeness, plausibility, comprehensibility) but not necessarily its content. Therefore, courts and authorities depend on good-quality expert opinions. Owing to their lack of expertise, courts and authorities may deviate from reports in their judgments and assessments “for good reasons” only, further raising the status of reports in the evidence assessment procedure. Furthermore, the Federal Supreme Court supports the practice that – in contrast to all other procedural steps – the defence lawyer does not have the right to participate in the expert examination [2], which means that the offender faces the expert alone. Thus, the emphasis placed on the professional qualifications and moral integrity of experts becomes even higher. Notably, only the cantons of Lucerne and Zürich authorize quality requirements for expert witnesses that exceed the general criteria of the Criminal Procedure Code.
The Swiss Society of Forensic Psychiatry (SSFP) promotes the education and training of experts [3] through the certificate of advanced studies (CAS) Forensic Psychiatry and Psychology programme at the Faculty of Law of the University of Lucerne [4] and University of Lausanne [5]. After this 1-year additional university training, the Swiss Medical Association together with the SSFP awards the “CAS Forensic Psychiatry and Psychology” and the associated specialist title “Forensic Psychiatry and Psychotherapy FMH”.
The responsible professional societies [6, 7] are committed to quality assurance of expert opinions, and working groups including experts from Germany, Switzerland, and Austria publish minimum requirements [8–10]. These expert groups are made up of lawyers, criminologists, psychologists, and psychiatrists to clarify linguistic differences and imprecisions at the interfaces of various disciplines and to agree on formal and content-related standards. Published standards from these working groups have repeatedly been referred to as applicable to Switzerland in Swiss federal court rulings [11]. Furthermore, the need to sharpen the role of experts in criminal proceedings has repeatedly been demonstrated. Overall, this can be envisioned as an ongoing process by which different disciplines converge and evolve simultaneously.
In forensic psychiatric/psychological risk assessments, bias effects can lead to unreliable and invalid reports [12]. One approach to improving forensic reports is to increase the evidence base and clarity of reports. Doing so would make it easier to assess the quality of reports in evidence evaluation [13].
In Switzerland, there have been frequent appeals for quality control in forensic psychiatric/psychological risk assessments from both psychiatric [14, 15] and legal sides [16]. Nonetheless, a structured literature search for a systematic review on the quality of forensic psychiatric reports in criminal law yielded no results for Switzerland, in contrast to results for Germany [17–23]. Furthermore, relevant to federal court rulings [24], a need to clarify the professional qualifications of experts, particularly their expertise in conducting physical examinations, has arisen.
In criminal proceedings, forensic psychiatric/psychological reports are often the pivotal point for judicial and administrative decisions [25], hence demonstrating the relevance of sound forensic psychiatric/psychological reports.
From the perspective of offenders, such reports are important because the diagnosis of a mental disorder can lead to reduced or suspended culpability under criminal law and can thus favour mentally ill over mentally healthy offenders. However, the disadvantage is that therapeutic or security measures often last significantly longer than do prison sentences in cases not involving mental illness. Despite measures to reduce psychological suffering, periods of placement longer than corresponding prison sentences can be stressful to offenders [26]. Furthermore, incorrect assessments of the risk of recidivism can lead to new offences or unjustified lengthy imprisonments [12]. In either case, these scenarios are ethically problematic and expensive for the society.
Four key questions are typically answered during clinical evaluations. First, experts are asked to submit a detailed psychiatric diagnosis. This includes psychopathological findings, nosological classification according to the International Classification of Diseases (ICD) criteria, differential diagnosis, and somatic examination. If the expert opinion is written by a psychologist, somatic examination is commonly conducted by a somatic specialist. However, the established practice is that somatic examination is also performed by a certified somatic specialist when the expert opinion is written by a psychiatrist. Second, evaluators should assess the risk of recidivism. In doing so, they are required to take standardized instruments into account. Third, in the framework of psychiatric evaluation, the question of treatability must be answered. The response to this question is necessary for the court to be able to impose a corresponding therapeutic measure. According to Swiss criminal law, court-ordered therapies can be mandated only if the offenders being evaluated meet the diagnostic criteria for a mental disorder and there is a prospect of treatability. Finally, experts are asked to comment on the question of the abilities of offenders to control and understand. The answers to these questions are then incorporated into the assessment of culpability of the court.
These four questions must be answered appropriately within extensive forensic psychiatric/psychological reports [9, 27–30]. However, not all experts are required to answer questions about culpability and treatability. For this reason, a detailed diagnosis (including differential and somatic diagnoses) as well as a risk assessment using appropriate methods can be considered the minimum requirements for legally admissible expert opinions.
Consequently, the aim of this pilot study was to determine whether forensic psychiatric/psychological reports in one of the three criminal justice districts of Switzerland meet the minimum requirements for legally admissible expert opinions.
The hypothesis was that forensic psychiatric/psychological reports meet the minimum requirements for legally admissible expert opinions.
Fifty-eight reports from 2011 to 2019 were selected from the archives of the Northwestern criminal justice district. The reports were extracted by a clerk who was blinded to the research hypothesis. Through this approach, an acceptable level of randomization for a pilot study was achieved.
Data were stored on a drive accessible only to authorized staff at the University Psychiatric Clinics Basel. Data were pseudonymously recorded in a Microsoft Excel spreadsheet using assigned case numbers by two students of the Medical Faculty of the University of Basel who were trained for this purpose by the study director as part of their master’s theses. The students signed a confidentiality agreement, as is customary for access to patient data in the clinic. The steering committee of the KoFako NWC-CH approved this procedure.
For data collection, the following five items were used from the operationalized code book of the Department for Research and Development of the Zürich Office of Corrections and Reintegration for the Quality Analysis of Criminal Law Reports (see appendix):
These data were also acquired to examine the assessment population at a later date, when necessary. Sixty-eight variables related to the client (e.g. prosecutor), expert, offender, structure and content of the expert reports, characteristics of the expert findings, and use of risk assessment instruments were recorded. After training by the study director, both raters initially assessed the same five reports. No deviations were noted between the assessments of the two raters, indicating good interrater reliability.
In cases of previous convictions, the crime on which the final judgment was based was considered the index crime. The type of offence noted in the report was used to distinguish between sexual and non-sexual offenders. Assignment to the “sexual offender” group was made according to offences stipulated in Articles 189–197 of the Swiss Penal Code [32, 33].
Data were analyzed using the statistical programme SPSS version 27 [34].
According to the Ethics Committee of Northwestern and Central Switzerland, the study (project ID 2021-02070) complied with the general ethical principles for research on humans [26] provided that the data were anonymized. Owing to the confidential nature of the data despite pseudonymization, the authors did not pursue open access publication of this article.
A total of 58 expert reports were written by 25 different experts, of whom 23 (92%) were forensic psychiatrists and one (4%) was a general psychiatrist. The specialization of one expert (4%) was not apparent in the report.
Of the 58 reports, there were 54 involved male offenders (93%) and four involved female offenders (7%). Twenty-six offenders (45%; all men) had been convicted of sexual offences, while 32 offenders (55%) had been convicted of non-sexual offences. At the time of the assessment, the median age of the offenders was 42 (mean, 42; 21–73) years.
In 13 cases (22%), the expert was commissioned to answer a question in a judicial proceeding (i.e. classic “court report”). In 45 cases (78%), the expert was commissioned to answer a question during the execution of a sentence or measure regarding placement or intervention (i.e. “progress report”).
The experts conducted a median of two exploratory interviews with the offenders (mean, 2.5; 1–6), for which the median total duration was 5 (mean, 6.32; 1–18) hours (table 1). The expert reports were a median of 88 (mean, 90.01; 34–200) pages long, for which the portion describing existing case files was a median of 22.5 (mean, 28.79; 4.5–85) pages long, corresponding to 26% of the median total report length. The portion describing the investigations performed by the experts (e.g. biography, medical history, information from others) was a median of 16 (mean, 23.99; 2–98) pages long, corresponding to 18% of the median total report length (the sample size was 57 instead of 58 for “existing case files” and “investigations performed by the expert” because one person did not separate these sections in their report).
Obtainment of informed consent was not explicitly documented in four reports (7%).
Fifty-seven reports (98%) described psychopathological findings, with eight reports (14%) explicitly referring to the Arbeitsgemeinschaft für Methodik und Dokumentation in der Psychiatrie (AMDP) system [35]. The median length of the psychopathological findings was 2570 (mean, 3250; 839–10,756) characters, with 3000 characters corresponding to approximately one page.
Table 1Content and formal structure of the reports.
| Median | Mean | Minimum | Maximum | |
| Number of explorations per offender | 2 | 2.52 | 1 | 6 |
| Duration of exploration [hour] | 5 | 6.32 | 1 | 18 |
| Report length [page] | 88 | 90.01 | 34 | 200 |
| Description of existing case files [page] | 22.5 | 28.79 | 4.5 | 85 |
| Investigations by an expert [page] | 16 | 23.99 | 2 | 98 |
| Psychopathological findings [character] | 2570 | 3250 | 839 | 10,756 |
Four reports (7%) included documentation of physical examination, including one report (2%) describing genital examination. In two cases, the examination was conducted by the experts themselves: in one case by a prison doctor and in the other case by an assistant doctor from a clinic. In the remaining 54 reports in which physical examination was not documented, 26 (45%) did not state an explicit reason for not performing physical examination. In the remaining 28 reports (48%), the following reasons for not performing physical examination were noted: “insufficient relevance for the current research question” (n = 14, 24%), “no indications of illnesses without further justification” (n = 10, 17%), “refusal by the offender” (n = 3, 5%), “regular examinations in the past” (n = 3, 5%), “currently regular examinations” (n = 2, 3%), “unremarkable physical examination less than 1 year ago” (n = 2, 3%), “unremarkable physical examination more than 1 year ago” (n = 2, 3%), and “no indications of diseases from medical history and/or files” (n = 1, 2%).
The persons who underwent physical examination were non-sexual offenders in three cases and a sexual offender in one case. The only genital examination documented was performed on a non-sexual offender.
Of particular interest to this study were psychiatric diagnoses, which were based on somatic–organic findings and listed according to the ICD-10 under codes F00–F09 (“organic, including symptomatic mental disorders”) and F50–F59 (“behavioural disorders with physical disorders and factors”). Such a diagnosis was made in five reports. Two offenders were diagnosed with a disorder coded as F00–09 and three offenders with a disorder coded as F50–59. Physical examination was not performed in any of these cases.
In two of the five reports noting a psychiatric diagnosis, the waiver of the physical examination was not justified. In the third report, the offender refused the examination. In the fourth report, the expert denied indications of a disorder without further justification. In the fifth report, the waiver was justified by the fact that the offender had been regularly examined in the past; the last documented physical examination was 4 years prior.
In 11 reports (19%), an additional report on the results of psychological testing that was not conducted by the expert was written. Two (3%) of these additional assessments were available as a separate document; eight (14%) were integrated into the main assessment; and one (2%) was written jointly with the expert. The authors of the additional reports were psychologists in 10 cases (91%) and a legal psychologist in one case (9%).
Within the scope of the assessments, one electroencephalogram (EEG) was ordered. Imaging procedures such as radiography, computed tomography (CT), and magnetic resonance imaging (MRI), all of which could provide information on an organic or physical cause of a mental disorder in the brain, were not performed.
Urine tests were ordered to determine drug consumption in two cases as well as a complete blood count and measurement of liver enzymes, inflammatory parameters, thyroid values, and sex hormones. Psychotropic substances in the serum were measured in one case and ethyl glucuronide (a degradation product of ethanol [36]) in the hair in another case.
In 32 reports (55%), references were made to earlier medical diagnostic clarifications, mainly blood samples, urine samples, and hair analyses at the time of arrest or during the execution of a sentence. These served to determine alcohol levels, screen for drugs, or measure drug levels in the blood. As for previous imaging procedures, eight EEGs, eight MRI scans, and two CT scans were mentioned.
For all 58 offenders, diagnoses according to the ICD-10 or the Diagnostic and Statistical Manual of Mental Disorders (DSM), Fifth Edition were made currently or close to the time of the crime (Swiss courts accept the use of both the ICD and DSM if their use is justified by published guidelines) [37]. For three offenders, no diagnosis could be made at the time of examination.
Structured forensic risk assessment instruments were used in 56 reports (97%), including the Psychopathy Checklist–Revised [38]; Violence Risk Appraisal Guide [39]; Static-99 [40]; Historical, Clinical, and Risk Management-20 [41]; Forensic Operationalized Therapy and Risk Evaluation System [42]; and Basel Criteria Catalogue [43]. The instruments used were described in a comprehensible manner in 51 reports (88%).
The reports described the likelihood of recidivism (or alternative terms) semantically (“low”, “moderate”, or “high”) in 52 cases (90%), explanatorily based on individual risk factors and control options in 43 cases (74%), quantitatively based on the likelihood of recidivism in percentages in 32 cases (55%), and descriptively, in an unstructured manner, and ambiguously in two cases (3%).
Twenty-two reports (38%) explicitly referred to a published baseline recidivism rate. These references came from textbooks in 10 reports (17%) and from scientific publications in 12 reports (21%).
Published minimum requirements and recommendations [8–10] provide a clear idea of how a forensic psychiatric expert report should be structured. One requirement is that experts should clearly indicate by what means they obtained their information about offenders (e.g. existing case files, observation, own or additional investigation) and should separate these sections in the report. This separation of existing case files and own investigations was not conducted in one report in the present study.
The recommendations do not specify how detailed each section should be, thus leaving experts much leeway in the configuration of their reports. In this study, the description of existing case files and investigations performed by the expert was a median of 38.5 pages long or 44% of the total report volume. This means that in addition to the repetition of the mandate, informed consent, criminal record, case record, and medical history, the actual editorial part (i.e. derivation of diagnoses, offence hypotheses, culpability if asked, risk assessment, need for measures, and answering of questions) comprised a maximum of 56% of the report. For required transparency and clarity, the alleged connecting facts [44] must legally be presented. However, clients frequently complain about the extensive presentation of files (which are already known to the client) and associated high cost. The high cost of reports is a notable burden, especially for offenders who must bear the cost in case of a guilty verdict.
Herein, the reports were a median of 88 pages long and therefore relatively expensive. At two pages written per working hour – which is generous for the summary of existing case files but rather tight for the editorial portion – at an estimated hourly rate of 300 CHF (usually between 250 and 350 CHF), the reports analyzed cost an estimated average of 13,000 CHF. Although this is a large amount compared with the usual cost of 1 day of inpatient detention in a forensic hospital (around 1250 CHF), this corresponds to a maximum of 2 weeks of treatment. Thus, if expert reports contribute to correct official and judicial decisions, the costs appear justified.
The disclosure of offenders is required by the criminal procedure and the ethical standards of the World Psychiatric Association in the Declaration of Madrid [45], section 15 (“Dual Responsibilities of Psychiatrists”). The fact that such a disclosure was not explicitly documented in four reports (7%) in the present study – and thus whether the disclosure took place – seems questionable. Wangmo et al. [16] showed that a lack of information about the evaluation is perceived as negative by concerned offenders and can compromise the course of ordered therapy.
Severe mental disorders are strongly associated with somatic diseases and correspondingly higher morbidity and mortality rates [2]. An older study [46] including approximately 4500 patients showed that 33–80% of patients with a psychiatric illness have a relevant comorbid somatic disease; of these cases, 12–42% are directly related to psychopathology, and 46–80% are diagnoses that had not been made previously. Furthermore, there is evidence that the comorbidity rate may be even higher in mentally ill offenders than in non-offenders [47]. These findings become even more important given the persistently high excess mortality rate among people with a mental disorder [48].
Neither the recommendations for the minimum requirements for the criminal law reports in 2006 [9] nor their update in 2019 [10] explicitly contain a requirement for physical examination. However, in addition to “multidimensional examination”, an “indication-guided performance or arrangement of other additional examinations” is required. Finally, both the psychiatric field [49] and the Federal Supreme Court [50] argue that psychologists are not qualified to make criminal law reports, primarily owing to their lack of expertise in physical examinations. Our results indicate that this argument is possibly a pretext.
Physical examination was performed in only four out of the 58 cases in this study. Genital examination was performed in only one case and was not performed on any of the 26 sexual offenders. None of the five offenders with a psychiatric diagnosis and an explicit reference to a somatic cause (ICD-10 F0x and F5x) were physically examined. In almost half of the cases in which no physical examination took place, the waiver was not justified.
The standard recording of psychopathological findings in German-speaking countries is performed according to the AMDP [51] and includes 100 psychopathological characteristics. The psychopathological findings, one of the core competencies of forensic psychiatry, accounted for a median of only one page (out of a median total of 88 pages) in the expert reports examined herein. This appears potentially insufficient, as these findings are the basis of a psychiatric diagnosis and therefore have a substantial influence on both the risk of recidivism and treatability. Furthermore, a psychiatric finding in an expert report, in contrast to a medical file, should cover two additional aspects. First, negative findings must be collected and documented from the legally required principles of transparency and confirmability (e.g. to ensure that no formal thinking troubles are present at the time of examination). Second, psychopathological findings allow lawyers to obtain a better, more vivid picture of offenders. However, in light of the high relevance of disorders caused by using psychotropic substances, especially with regard to the likelihood of recidivism [52], only few laboratory examinations of urine and blood samples were performed in the examined cases herein.
Deriving risk assessment is complex and is subject to ongoing further development [27] owing to new and more reliable results from epidemiological studies on criminal recidivism, models of delinquency [53], and methodological findings on, for example, cognitive biases [54] or characteristics of good forecasters [55]. For this reason, the present study is limited to the criteria mentioned regarding the quality of risk assessment.
In contrast to the limited psychopathological findings and few physical or additional examinations performed, a consistent application of established risk instruments and their comprehensible presentation for individuals applying the law is noted. The derived likelihoods of recidivism were semantically formulated in risk categories in most cases, most likely owing to questioning on the part of clients as well as still-common practice. Non-numerical risk formulations (e.g. “low”, “considerable”) are subjective, and both forensic experts and judges interpret such categories differently [56]. The new catalogue of questions for criminal law reports developed by the Swiss Conference of Public Prosecutors together with the SSFP calls for quantitative formulation of the likelihood of recidivism where possible, which was conducted in approximately half of the reports in this study.
The investigation of the quality of the forensic psychiatric reports initially revealed a heterogeneous picture. On one hand, the formal structure of most reports seemed appropriate. Furthermore, most reports used appropriate instruments to assess the likelihood of recidivism. On the other hand, the psychopathological classification was rather brief; the somatic assessment was largely missing; and the communication of the likelihood of recidivism did not correspond with the current state of the scientific literature. However, the diagnostic classification and assessment of the risk of recidivism were – apart from the question of culpability, which was not examined herein – core questions of the forensic psychiatric reports. These two topics were inadequately addressed, leading to the conclusion that the study hypothesis – most criminal forensic psychiatric reports meet published formal and content-related quality criteria [9, 27–30] – must be rejected.
The method by which reports were selected for inclusion in the study, the number of reports selected, and the evaluation of reports by students are important limitations of the study. Specifically, random selection by a clerk blinded to the research question does not exclude the possibility of selection bias. Further, there is considerable imbalance regarding the gender of the offenders in the expert reports analyzed in this study. No statistical testing of subgroups was possible owing to the small sample size and lack of existing multidisciplinary expert reports. Forensic psychological experts could not be included after the Swiss Federal Supreme Court ruling [50]. Therefore, the findings can only be partially generalized and must be interpreted within the framework of a pilot study.
Considering the high costs of criminal recidivism and secondary costs owing to further victims, the economic efficiency of forensic therapies has been proven [57], and this efficiency may be assumed with a good conscience for the entire chain of law enforcement, in which qualitatively reliable expert reports play a crucial role. A recent study estimated the costs of early childhood risk factors for antisocial behaviour to be as much as 3,500,000 USD when undetected crimes were included [58].
Nevertheless, there are signs of cost pressure, and professional societies are advised to consider this in time. Until a few years ago, expert reports were the only way to achieve a comprehensive picture of offenders, including their biography, all previous convictions and sentences, and the course of execution of sentences or measures. However, this changed with the introduction of the standard of “risk-oriented penalty execution” (ger.: Risikoorientierter Sanktionsvollzug ROS) [59]. Existing case files, which are uniformly kept and completed, provide a good overview of cases on the first pages. In the future, the description of existing case files in reports could be shortened considerably to focus more on the editorial portion.
The tendency towards the qualified use of instruments in assessing the likelihood of recidivism is gratifying. However, the use of baseline rates for absolute risk assessment is still limited, and when they are used, the baseline rates are often outdated or do not apply to the corresponding Swiss offender population [60].
Forensic psychiatry does not use its genuine added value for criminal assessment compared with other professions such as psychology or criminology. Namely, the limited use of medical psychiatric somatic competence is inaccurate from a quality perspective and does not correspond to published standards. Physical examination is usually part of forensic psychiatric examination [29], as thorough physical and neurological examinations belong to every psychiatric assessment [27]. Despite the consensus that additional examinations such as EEG, CT, MRI, and laboratory tests should not be performed routinely but rather only when clinically indicated, indicators such as the “number needed to diagnose” or “number needed to screen” [61] are needed to make evidence-based decisions on the indication of additional examinations.
The finding of this study that almost half of the reports contained no justification for waiving physical or additional examinations supports the fact that forensic psychiatry does not use its means adequately. The authors are of the opinion that an indication-led and professionally performed physical examination is indispensable for the well-founded derivation of a diagnosis or differential diagnosis in some cases. Consequently, this is the basis for both the risk assessment and any therapy recommendations within the framework of risk management.
However, on a substantive level, the results of this study refute the conclusion that the case law of the Federal Supreme Court on the professional qualification of experts in criminal law [26] should be followed. Namely, the results refute that psychiatrists are the only professionals primarily responsible for developing forensic psychiatric expert reports because psychologists cannot perform physical examination [49].
Criminal law assessment takes place at the interface between different disciplines and requires the constructive, evidence-based combination of methods and knowledge from at least psychiatry, psychology, and criminology (and often toxicology and other disciplines). One of the core requirements by Tetlock in his groundbreaking research for improving forecasts is their derivation by interdisciplinary teams [55]. Multidisciplinary approaches have already been established in expert reports for disability insurance [62], and in 2021, several Swiss medical societies jointly published new guidelines for polydisciplinary assessment for social insurance [63]. Modern interprofessional approaches to improving the quality of criminal law reports have already been proposed [50] and are largely implemented. The SSFP created a curriculum for individuals to obtain a “Specialization in Forensic Psychology SSFP”, which is awarded by the professional society, and appropriately qualified forensic psychologists are accepted into their own “Section of Forensic Psychology” as full members of the professional society [3]. In a joint “CAS Forensic Psychiatry and Psychology” programme in the Faculty of Law at the University of Lucerne [4] and University of Lausanne [5], interprofessional future experts are trained in evidence-based assessment.
The findings of the present study will also be presented at SSFP training events and discussed along with other findings on prognostics [28, 55] and the general use of scientific evidence in making judgments [64] and ensuring transparency [65] to improve the quality of expert reports – a topic that is of increasing interest to the SSFP. This pilot study was performed to analyze the need for further investigations on the quality of forensic psychiatric expert reports in Switzerland. Based on the results, a more comprehensive prospective study should be designed.
Against the background of ongoing professional efforts, the authors therefore favour that in the future, both qualified forensic psychiatrists and forensic psychologists will be able to write criminal law reports and, depending on the indication, consult experts from other professional groups in a low-threshold manner. In a further step, interdisciplinary reports, possibly in cooperation with legal practitioners and/or criminologists, should become standard.
The present study has some limitations as described above. However, its results and their high social relevance motivate the authors to delve further into the topic. First, more differentiated investigations into the quality of criminal assessments could deliver more precise and better-supported results, and second, based on these, measures to improve quality should be introduced. For example, experiments can be performed with interprofessional teams in comparison with expert opinions written by one person alone.
The authors thank the “Kommission für die Beurteilung gemeingefährlicher Straftäter der Nordwest- und Innerschweiz” for providing the needed data.
No funding was required for the study.
All authors have completed and submitted the International Committee of Medical Journal Editors form for disclosure of potential conflicts of interest. No potential conflict of interest was disclosed.
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The Operationalized code book of the Department for Research and Development of the Zürich Office of Corrections and Reintegration for the Quality Analysis of Criminal Law Reports is available for download as separate file at https://doi.org/10.57187/smw.2023.40073.