A brief comparison of forensic psychology in South Africa,the United States,and Canada

Abstract

Considering forensic psychology’s varying stages of development across the world, this work briefly explores historical developments, the field of practice, training, licensing, legislation, and associated challenges in South Africa, the United States, and Canada. While there are numerous similarities, a few differences are evident. Among the common areas of practice, psychologists are involved in assessments to determine fitness (competency) to stand trial, criminal responsibility in adults, as well as assisting courts in making determinations on criminal responsibility in the case of children in conflict with the law. In South Africa, psychological assessments of sexual violence complainants with intellectual disability are also required by courts. Psychological intervention, research, and policy development work are also conducted in the three countries. Challenges appear in the intersection between psychology and the law, expectations of psychologists, and the inclusion of psychologists in evaluation panels in South Africa and Canada. It is clear that psychologists are playing an active role in the professional development of the field, research, and coordinating with legislative authorities in advancing forensic mental health and advocating for people with mental health problems. However, across the three countries, there is a need for continued focus on the broader issues of diversity, equity, and inclusion with respect to the forensic populations being served, and there has to be a concerted effort to address the psychosocial needs of marginalized communities.

Keywords

Criminal forensic justice law mental health psychology

Forensic psychology is generally defined as the application of psychological knowledge, research, and practice to the criminal and civil justice arenas. Although forensic psychology has been a field of practice for several decades, it has gained considerable ground in recent years. This may relate to increased statutory obligations to consider mental health issues as a factor in criminal behavior, developments in legal defense strategies, as well as advancements in the field, making psychological science increasingly valuable in courtrooms. Alongside these developments, the media portrayal of forensic psychology and psychiatry appears to have increased public interest, with numerous television series and movies covering the area and refining their depiction of forensic mental health, evidenced by the 2004 American Psychological Association award to the series Law & Order: Special Victims Unit.

However, the field appears to be at various developmental stages internationally, considering training, licensing within national regulatory contexts, recognition within local judicial frameworks, and employment opportunities within varying contexts of national economic and related development. Considering that laws are also different across countries, some variations are to be expected, even though global alignment may be needed in certain areas, such as matters pertaining to human rights, social justice, the minimum age of criminal responsibility, and criminal justice responses to sexual violence complainants with intellectual disabilities, among others.

Given the variability in the state of the science, cross-national analyses can help develop the field while also serving to enhance specific areas of work (e.g., identifying how national differences in criminal procedure can impact forensic assessment findings; van der Wolf et al., 2010). In this context, we briefly examine forensic psychology in South Africa, the United States, and Canada, where the field has been operational for several decades, with the authors having extensive experience in their national contexts. Due to space constraints, only salient issues have been included in the following discussion. Comparison with other countries with well-developed forensic psychology services, such as the United Kingdom and Australia, would also have been useful, but given the scope of the present work and the authors’ areas of work, it was decided to restrict this study to the three countries.

Forensic psychology in South Africa

Historical issues

While forensic mental health in South Africa may have had its birth earlier, mental health expert evidence in criminal law came to the fore in 1966 following the assassination of Hendrik Verwoerd, the South African Prime Minister widely regarded as the architect of apartheid. The accused, Dimitri Tsafendas, was declared not guilty by reason of insanity, and detained by the state for 33 years, initially in prison and later in a mental health facility where he died. At his trial, three psychiatrists and a clinical psychologist testified that Tsafendas was mentally ill and proffered a diagnosis of schizophrenia, despite the widely held belief that Tsafendas was sane and politically motivated. He had articulated to the police that he assassinated Verwoerd because he was “disgusted with his racial policy” (Loughran, 2016).

The Rumpff Commission (Rumpff, 1967) was established following Verwoerd’s assassination to provide the groundwork for (Republic of South Africa, 2008) the Criminal Procedure Act of 1977. Sections 77 and 78 of the Act deal with fitness to stand trial and criminal responsibility, respectively. In the years to follow, various criminal and apartheid era political trials involved forensic psychology testimony. South Africa’s first clinical psychologist of color, Noel Chabani Manganyi, wrote of his early experiences conducting forensic mental health examinations and testifying in political trials where the odds were stacked against defendants and their expert witnesses (Manganyi, 2016). The breadth of forensic psychology work grew substantially since those early years.

Types of forensic psychology work

Currently, psychologists perform various types of forensic work in both the public and private sectors, involving (a) psychological evaluations and court testimony as well as (b) psychological interventions and rehabilitative care. Evaluations include the assessments of defendants and complainants, with the state and/or defense engaging psychologists. Fitness to stand trial and criminal responsibility are the more frequent court requested evaluations for defendants, with criminal responsibility involving the questions of (a) appreciation of the wrongfulness of the act and (b) the ability to act in accordance with such appreciation. While mainly psychiatrists conduct these assessments, the law provides for evaluation by a clinical psychologist when specifically directed by the court (Pillay, 2014). Presentence assessments for mitigation or aggravation of sentencing are also requested. Psychologists are also employed in correctional services centers.

The evaluation of children’s criminal capacity has become a relatively frequent occurrence. South Africa recently amended its minimum age of criminal capacity from 10 to 12 years, with the rebuttable presumption of doli incapax changing to 12–14 years, but this is yet to be implemented (Republic of South Africa, 2020). Of course, this is an area of concern given the neurodevelopmental evidence regarding the extent to which juveniles can be held criminally responsible (Luna & Wright, 2016; Pillay, 2019). In addition, evaluations of competency to testify, the need for an intermediary, competency to consent to sex, and to inform minimum sentencing regulations relating to sexual violence complainants with intellectual disability are frequent referrals, which must be viewed in the context of South Africa’s high rate of rape crimes. The abilities of complainants with intellectual disability to take the oath and understand the concepts of truth and lies are tested in court. This may be viewed as discriminatory, since (a) other witnesses are not subjected to such tests, and (b) complainants can be prevented from testifying if they are not able to articulate the requisite understanding of truth and lies (Pillay, 2012). Courts also request “victim impact” assessments to inform sentencing decisions, especially to help the court understand the extent of emotional and psychological damage suffered by complainants. Apart from criminal justice work, psychologists involved in civil cases conduct assessments related to child custody disputes, accident and insurance claims, and other civil litigations.

An area of criminal responsibility assessment that has also been featured in South African courts, especially in murder or homicide trials, involves the defenses of non-pathological criminal incapacity or sane automatism (Hoctor, 2019; Kramers-Olen, 2019). Interestingly, this defense may be known by different names in countries where it is used (e.g., in Canada it has been referred to as a non-insane automatism defense; R. v. Parks, 1992). Essentially the defense straddles the middle ground between arguing mental illness at the time of the offense (which could result in long-term detention in a mental health facility) and the absence of a diagnosable mental disorder (which would mean imprisonment). This type of defense argues an extreme emotional response to provocation or perceived threat, that the defendant’s response is uncharacteristic and reflects a temporary loss of control, but not due to mental illness. Typically, this defense involves private psychologists or psychiatrists and, therefore, is accessible mainly by defendants in higher socioeconomic levels. Race and socioeconomics are also evident in standard mental health defense cases, considering that substantially more Black¹ defendants have to rely on the overburdened Legal Aid (state sponsored) system for representation.

Psychologists in forensic mental health facilities also undertake psychological intervention work with State Patients—the designation used in South African legislation for those defendants found not fit to stand trial or not criminally responsible due to mental disorder. Detained by court order for treatment and rehabilitation, State Patients could spend years (or decades) before release due to the judicial complexities that require almost a guarantee that the individual will not reoffend. Intellectual disability and psychotic disorders are frequent diagnoses in this group. Unlike other countries, restoration of competence to stand trial is not a feature of the South African criminal justice system. Although South African legislation allows for a State Patient to subsequently be tried when mentally competent, this rarely occurs. In this respect, the broader human rights issues need interrogating, given the possibility that an innocent person may be incarcerated for an extended period.

Advising and assisting in the amendment of criminal justice legislation, including those pertaining to child justice, criminal responsibility, and sexual violence crimes have been an important component of forensic psychology work. In addition, the training of court officials and police is an ongoing facet of the work, considering the psychological issues involved in various crimes and aspects of criminal justice. Psychologists’ involvement in these contexts enhances the profile of forensic psychology, contributes to legislation reform, advances human rights, and promotes mental health awareness and best practices within the criminal justice system. Regarding collaboration with psychiatry, this varies countrywide. Some facilities adopt a multidisciplinary approach in the case of adult fitness to stand trial and criminal responsibility assessments, but in the other types of work described earlier, psychologists generally assess and present their findings in court independently.

Training and licensure

To date, forensic psychology work has been undertaken mainly by clinical psychologists, and their training requires inclusion of this component. This may relate to the inclusion of this category of psychologist in the legislation regarding fitness to stand trial and criminal responsibility examinations of adult defendants (Republic of South Africa, 2020), as well as the location of those assessments primarily within the large mental health complexes where clinical psychologists and psychiatrists are trained. However, neuropsychologists, counseling, educational, industrial/organizational, and research psychologists are also involved as expert witnesses in criminal and civil cases.

Professional psychology training in South Africa culminates at the Master’s level, encompassing 5 years of academic study followed by a 12-month internship at a site accredited by the Health Professions Council of South Africa (HPCSA), which is the licensing authority. The clinical psychology internship is undertaken in a public hospital setting, at least 6 months of which must be in a “psychiatric hospital,” followed by a national Board examination, and a year of Community Service work in a public health facility. Forensic psychology teaching occurs during the fifth year of academic study and the internship, but this is not standardized, and greater formalization is needed. A few years ago, the HPCSA appointed a task-group to investigate the development of a specialist category of Forensic Psychologist, but this matter has been postponed.

Forensic psychology challenges

Forensic psychology gained much ground and acceptance in South Africa, even though it has yet to be established as a specialist professional category in terms of licensure and training. Among the remaining challenges is the limited involvement of psychologists in fitness to stand trial and criminal responsibility assessments of adults. The current legislation requires examination by a panel of psychiatrists, with a clinical psychologist appointed in specific instances at the court’s discretion (Republic of South Africa, 2008). This is despite the small number of psychiatrists, relative to psychologists, in the country, the considerable wait-list for examinations, which are conducted in mental health facilities, and a proposed amendment to the law to include psychologists on the examining panels (Pillay, 2014; Republic of South Africa, 2016). Although bed availability is one of the impediments, day-visit types of evaluation are possible, as was ordered and conducted at unusually short notice for the Paralympian sprinter Oscar Pistorius during his murder trial, showing that alternative approaches are acceptable to the courts. Contrary to this issue, there is a high demand for assessments of complainants by psychologists in sexual violence cases were intellectual disability is suspected. Here the challenge lies in advocating law and judicial practice reform to allow greater participation by complainants with intellectual disability. The practice of testing such complainants to determine their competency to take the oath and to testify is concerning and may be a violation of their right to testify (Pillay, 2012). Similarly, there is a need for courts and legislators to understand and incorporate the neurodevelopment research into the laws governing children’s criminal capacity.

The deficiency of locally and culturally relevant and standardized instruments for use in forensic psychology assessments is an issue of concern. Increased rigor in assessments will strengthen the profession’s position and enhance its recognition as a forensic discipline.

Forensic psychology in the United States

Historical issues

Despite only being recognized as an area of specialty in 2001 by The American Psychological Association, forensic psychology practice in the United States has been rooted in US case law, statute, and clinical practice for more than 100 years. However, unlike countries with a nationalized system of practice standards and laws, the scope of a forensic psychologist in the United States varies widely depending on the governing state or jurisdiction. Comprising one federal and 51 state systems (50 states and Washington, DC), each with different standards and laws, the US justice system is far from uniform. While similar standards and qualifications exist, no two jurisdictions are identical.

Although forensic psychology is a broad field in the United States, two areas remain primary. The first is competency to stand trial (CST). Rooted in English common law, CST maintains that defendants accused of a criminal offense must be able to meaningfully and rationally participate in their court proceedings. The US legal foundation for CST stems from Dusky v. United States (1960). Charged with kidnapping, Milton Dusky was also seriously mentally ill and had little understanding of the proceedings against him. Eventually the US Supreme Court determined that his trial was therefore unjust and unconstitutional, and they outlined the basic parameters for CST for all defendants nationwide. Hundreds of cases across various states have continued to refine CST definitions and practice standards across the United States.

A second major area in US forensic psychology concerns the insanity defense. Also rooted in English common law (primarily the M’Naughten standard), the insanity defense maintains a lack of criminal responsibility for some defendants who evidenced symptoms of such serious mental illness at the time of the offense that their ability to understand right from wrong was substantially compromised (Packer, 2009). Some states also allow for a second standard for insanity if mental illness compels a person to commit a crime even if the wrongfulness of the act is understood (the “irresistible impulse” standard). Although the US standard was historically somewhat uniform across states, the acquittal of John Hinckley after his attempted assassination of President Reagan in 1982 prompted many states to restrict (or even eliminate) their criminal responsibility statutes. Consequently, criminal responsibility statutes and practices vary widely among states in the United States (Packer, 2009).

Finally, life in the United States is often very difficult for persons with serious mental illness. They face tremendous barriers to insurance coverage, employment and housing options, access to care and other resources—and they often face serious stigma and discrimination. Consequently, many people with serious mental illness have difficulty navigating modern life in the United States, causing some to commit minor transgressions and then enter the criminal justice system (Roth, 2018). As a result, US forensic psychologists now most often work with individuals facing minor charges and in need of robust mental health care resources.

Types of forensic psychology work

Forensic psychologists in the US work in a variety of arenas in private, public, and corporate sectors (Bartol & Bartol, 2018). Forensic psychologists in private practice represent a small but substantial (and sometimes lucrative) amount of forensic work undertaken in the United States, most often in conducting many types of forensic assessments. Civil evaluations typically include referrals for worker’s compensation after injury, personal injury after accidents, or child custody/family capacity issues. Criminal court evaluations most often include CST, legal sanity, juvenile transfer or waivers to adult court, institutional release requests, violence and/or recidivism risk, or general preliminary explorations into potential mental health issues. While many evaluations are court-ordered, often defense attorneys will request evaluations privately to “test the waters” before requesting the court to order their own. Some private forensic psychologists also offer treatment for various court-ordered referral questions, such as anger management or treatment for specific offense types (e.g., sex offenses, domestic violence, and substance use).

Public forensic psychologists work in a broader array of settings, most often including correctional facilities, courts, state hospitals, community mental health centers, police departments, and government-operated forensic services. Duties and scopes of practice vary accordingly. Police psychologists help respond to calls involving a mental health component or offer treatment to officers after traumatic events occur on the job. Courts utilize psychologists to conduct screens or advise the court of community treatment options, while jails and prisons employ psychologists to assess risk and provide specific treatments to offenders. While the majority of forensic psychologists in public service work for cities or states, the US federal system also employs many forensic psychologists (most often in correctional or treatment services). Although films like Silence of the Lambs and television programs like Mindhunter capture the imagination of viewers and increase interest in forensic psychology, most often the work of forensic psychologists in the public sector is far less dramatic; it typically focuses on coordinating systems of care and supervision for persons that have failed to successfully navigate lives with serious mental illness.

Forensic psychologists in the corporate sector are employed by non-profit or for-profit agencies designed to provide specific services to forensic clients. Most often, these agencies specialize in providing specialized treatments to specific types of populations—sex offenders, domestic violence offenders, substance use offenders, and others. In addition, mental health services in many US jails and prisons are operated by for-profit corporations.

It should be mentioned that due to different laws, professional qualifications, and standards of practice among the 51 states and jurisdictions (as well as the federal system), the work of forensic psychologists in the United States looks very different from one professional to another. For example, most states have an insanity defense, but four do not. Competency to stand trial timeframes and qualifications vary as well; while most states have a massive number of people awaiting and engaged in competency restoration (treatment to stabilize pretrial defendants so they can return to their court hearings and participate meaningfully in them), some states narrowly limit who can be restored. Also, because the minimum age for children to participate in adult court hearings ranges from 6 to 16, forensic psychologists’ recommendations will vary widely from state to state. Therefore, it may be more important to determine within which locality and state the forensic psychologist works before trying to understand the scope of their duties.

Training and licensure

Each state in the United States has its own system, laws, and regulations for training and licensure. According to the American Psychological Association (2014), the most common path to becoming a forensic psychologist is through counseling or clinical psychology doctoral programs. While requirements to graduate and practice independently differ across states, psychologists typically obtain a specific number of supervision hours from a licensed mental health professional via internship, complete all approved training courses and field experiences, pass standardized examinations for licensure, and complete post-doctoral clinical work for at least 1 year (Bartol & Bartol, 2018). Increasingly, doctoral programs offer specialized courses and field experiences in forensics, though most states do not require formalized academic degrees in forensics to offer forensic services. However, states typically mandate some verification of specialized training, workshops, or other experiences to be qualified to conduct most forensic evaluations.

Within the past 15 years, master’s level clinicians have become eligible to conduct competency evaluations in an increasing number of states. Historically, the term psychologist in the United States has referred to professionals with doctoral degrees, not master’s degrees. However, overwhelming demand for competency evaluations likely explains the recent push to allow qualified master’s level clinicians to conduct them. However, most master’s level graduate programs in forensic psychology still train students to practice in therapeutic contexts, offering therapy and other services to court-ordered individuals. Master’s programs generally take about 2–3 years to complete after an undergraduate 4-year university degree has been obtained, while most doctoral degrees take about 5–7 years.

Forensic psychology challenges

Three main challenges are most prominent for forensic psychologists in the United States. First, the competency services systems in most states are overwhelmed with volume. Cases ordered for evaluation and for restoration (if adjudicated as incompetent) have skyrocketed in the past 20 years, such that many states have long waits for services and/or are involved in high-level litigation as a result. In some states, for example, incompetent defendants can wait in county jails for more than a year before transferring to a state hospital, even though courts require that the transfer should occur in as few as 3 days. Managing this very sick population in county jails is problematic and, at times, tragic (Gowensmith, 2019). Although in most settings, more than 80% of defendants are restored to competency within 6 months of treatment, the long waits and inadequate conditions within which defendants often languish call into question the viability of the current competency system; earlier access to community mental health care would likely mitigate against the increasingly ethically-suspect practice of placing people in jail and then mandating mental health care (Gowensmith & Murrie, 2022).

Second, the variability in juvenile justice systems across the United States is often problematic. While the US juvenile justice system is ostensibly predicated on rehabilitation, community placement, family reunification, and treatment, many states still rely on draconian and harsh approaches to juvenile crime. Children as young as 6 years old can be tried in court in North Carolina, while the conservative-majority US Supreme Court recently reversed some key components of juvenile justice protections in a 2021 hearing (Jones v. Mississippi, 2021). Advancements in our knowledge of brain development and adolescent psychology inform cases and policy to a limited degree, but much work remains to be done.

Finally, events related to Black Lives Matter and the police killing of George Floyd highlight the challenges the United States faces with institutional racism and bias. Forensic psychology in the United States is not immune to these issues. Current assessments and treatments still embody racist and biased foundations; tests normed on Whites are used as standard-bearers for all populations. Cultural norms and realities of persons of color are often regarded as dangerous or threatening. As a result, correctional and forensic populations in the United States are disproportionately composed of detainees identified as Black, Indigenous, or persons of color (Klukoff et al., 2021).

Forensic psychology in Canada

Historical issues

Forensic psychology is a relatively new area of practice for psychologists in Canada. The development of forensic psychology in Canada parallels the history of the field in the United States, albeit with perhaps a 20-year or more lag. There is no professional standard or definition for forensic psychology in Canada (Dalby, 2014). Despite this, Canadian forensic psychologists have a strong role in research, assessment, and treatment.

Types of forensic psychology work

Like most Western countries, forensic psychologists work in a variety of public and private sectors in both the criminal and civil justice systems. Due to space limits, just a few major areas are mentioned. In the criminal domain, psychologists are involved in assessments of competency to stand trial (referred to as fitness to stand trial in Canada) and the insanity defense (referred to as Not Criminally Responsible on Account of Mental Disorder in Canada; NCRMD). Canada has a uniform Canadian Criminal Code (CCC) that applies to all provinces and territories. Although there are some differences, the issues of fitness and NCRMD are similar to the United States as both have their foundation in English common law. A major difference is that the CCC specifies that these pretrial evaluations should be completed by a medical practitioner (typically a psychiatrist) and thus the role of psychologists is limited, typically to psychological test administration, rather than interviewing or writing reports for the court. There are efforts to change this situation, which we will discuss later.

Individuals with mental health issues are increasingly involved in the criminal justice system, and psychologists are engaged in training programs with police to optimize interactions of police and individuals with mental health issues (Roesch & Goossens, 2021) and in jails conducting mental health screening and treatment (Nicholls et al., 2005).

Forensic psychologists have a large presence in the juvenile justice system, conducting assessments and providing treatment. In the civil forensic area, psychologists are involved in child custody assessments and other family law matters, civil commitment assessment and treatment, civil jury trials, and professional malpractice.

Another major area of both research and practice is risk assessment. Canadian psychologists have developed both actuarial (e.g., Violence Risk Assessment Guide; Quinsey et al., 2006) and structured professional judgment (e.g., HCR-20; Douglas et al., 2013) tools to assess risk in jail and prison populations.

Training and licensure

Training and licensure requirements are determined by different governing legislation guidelines that are unique to each province and territory. While obtaining a PhD/PsyD allows for licensure across Canada, certain provinces and territories do permit full licensure at the MA level (Canadian Psychological Association, 2022). A commonality between each jurisdiction is that one must practice under an already-licensed psychologist following graduation as a means to collect a specific number of supervision hours, complete oral and written tests, and pass the Examination for Professional Practice in Psychology exam (O’Hare et al., 2021).

Specialty licenses are not available in Canada. When discussing this in terms of forensic psychology, a fully licensed clinician would receive and be recognized by the title “Psychologist” first, with their area of specialty—being forensic psychology—following (O’Hare et al., 2021). The path to becoming a psychologist with a specialty in forensic psychology depends on the jurisdictions in which one seeks licensure; however, all governing bodies require training is this area of study. At the MA level, attending an accredited school that has a concentration and/or operates entirely as a forensic psychology program is considered sufficient. At the PhD/PsyD level, one must enroll in an accredited clinical psychology doctoral program that has an area of specialized study in forensic psychology. This is not a requirement at the doctoral level if one is coming from a master’s program that had a forensic psychology concentration.

Forensic psychology challenges

The limited role of psychologists in pretrial assessments of fitness to stand trial and criminal responsibility has long been a concern of Canadian forensic psychologists. Historically, forensic assessments were conducted by “medical practitioners” or whomever was appointed by the Provincial Attorney General, which were often psychiatrists with minimal forensics training (Roesch et al., 2019). The Canadian Psychological Association appointed a task force charged with preparing a position paper to suggest remedies for increasing the role of psychologists. The report was completed in 2017 and is being used to lobby the federal government to change the CCC to reflect an equal role for psychologists and psychiatrists in conducting these assessments (Roesch et al., 2019).

A major challenge in Canada is the long-standing and increasing over-representation of people of color, particularly Indigenous Peoples, in both the adult and juvenile criminal justice systems (Roberts & Reid, 2017). Despite only making up 5% of the Canadian adult population, Indigenous over-representation was about 30% in 2019 (Office of the Correctional Investigator Annual Report, 2019-2020). Similar disproportionate rates are found in the juvenile justice system, as Indigenous youth accounted for 43% of admissions to correctional services while only representing about 8% of the Canadian youth population. This increase in Indigenous admissions is all the more startling because since 2000, the Indigenous population in prisons has grown from 18% to 30%, whereas the non-Indigenous incarcerated population has declined over the same period by nearly 14%. There are multiple reasons for these findings but certainly they include poverty, racism, discrimination, lack of access to educational and employment opportunities, and importantly, the ongoing intergenerational trauma due to colonization and residential schools (Truth and Reconciliation Commission of Canada, 2015).

Addressing this over-representation requires changes at multiple institutional levels, including education, social services, housing, mental health, and employment. One direct way that psychologists might have an impact is through the use of Gladue reports. Gladue is a Canadian case in which the Supreme Court of Canada directed a sentencing judge to rely on these reports to consider the history of Indigenous offenders and whether their background may have impacted their criminal behavior. If so, the judge is given considerably more leeway in determining a sentence, including alternatives to incarceration (R. v. Gladue, 1999).

A related challenge is the use of psychological tests and risk assessment instruments with Indigenous offenders. The case of Canada v. Ewert (2015) highlights the need to ensure that they are used in a culturally competent manner. Jeffrey Ewert is an Indigenous offender serving a life sentence who was determined to be a high-risk offender based on actuarial risk assessment tools. He brought a suit against the Correctional Service of Canada (CSC), arguing that the tools were culturally biased with respect to Indigenous offenders. The suit was successful, as a Federal Court ruled that the tools were unreliable and subject to cultural bias, ordering CSC to cease using the tools until research confirmed their reliability with respect to Indigenous offenders. However, CSC successfully appealed this decision, so the bar on the use of these tools was never implemented. The concerns about applying psychological tools to people of color remain. As Hart (2016) commented, “The case is dead, at least for now, but the issues it raised—the role of culture in violence risk assessment and the susceptibility of risk assessment tools to culture bias—are very much alive” (p. 128).

Concluding comments

Despite differences in forensic psychology regulatory frameworks and systemic variations across South Africa, the United States, and Canada, there are areas of similarity in policies, approaches to practice, and challenges. Among the common challenges are the need for culturally relevant forensic assessment instruments and for the profession to distance itself from the historical position of uncritically applying psychological tests normed on specific Western populations to people of other sociocultural backgrounds. Concerted efforts are required to promote psychometric research, improve norms, exercise care in test interpretation, and work toward using more culturally valid information in clinical decision making. Another struggle, mainly for South Africa and Canada, lies in attempts to amend legislation to routinely include psychologists on the examination panels for adult fitness to stand trial and criminal responsibility examinations, considering that their value on such panels has already been demonstrated (Gowensmith et al., 2012; Pillay, 2014; Roesch et al., 2019).

On a related note, the extensive waitlists for such examinations and delayed justice have provoked litigation in the United States, and similar consequences are possible elsewhere. Defendants sometime spend months in prisons/jails awaiting mental health evaluations, while others found not guilty by reason of mental illness/insanity may wait significant periods in prison before transfer to a mental health facility. These are human rights violations, especially for individuals already diagnosed with a mental illness. Moreover, long waits in jail before accessing competency restoration has caused some US states to eliminate competency restoration for persons facing minor offenses; these waits have also caused many to rethink the appropriate scope of competency services (Gowensmith & Murrie, 2022).² In Canada, the majority of individuals found fit to stand trial have their competency restored within about 6 months and return to court for the case to resume, while others must have their fitness reviewed every year. Despite the details of the competency restoration system, mental health advocates are increasingly vocal about prioritizing early access to adequate community mental health care so that criminal justice involvement (and mandated mental health care, including competency restoration) might be avoided altogether.

There is concern that laws governing children’s criminal responsibility may be infringing child rights and not keeping abreast of adolescent brain development research. Cases such as Roper v. Simmons (2005) in the United States highlighted (a) the need for courts to recognize the state of cognitive neuroscience in dealing with children and adolescents in conflict with the law, and (b) the responsibility on professional associations to use scientific research to influence law reform and advance human rights. There is also a need to standardize the minimum age of criminal responsibility internationally, considering that a child as young as 6 or 7 years may face trial in some countries, whereas in others only children over 16 years can be prosecuted (Pillay, 2019). A challenge, however, is the loud call from the public to hold young people accountable for their actions, which is understandable given the violent crimes, including sexual offenses, and this carries through into the legal proceedings as well. Therefore, the introduction of neurodevelopmental evidence in these cases can help the legal fraternity better understand youth brain development and the implications for criminal responsibility.

The treatment of people with mental illness, the manner in which they are dealt with by the law, and their ability to access equitable levels of justice must be of concern to forensic psychology. Linked to this injustice is the inadequate investment in mental health services generally. Therefore, the idea of a specialist forensic psychologist registration category may represent a two-edged sword. On one hand, there are distinct advantages to having such a highly specialized professional working between the mental health care and criminal justice systems, and global training programs evidence the breadth, depth and value of such training (Pillay et al., 2019). On the other hand, however, such a level of specialized service could see these professionals being out of reach of a large sector of the population due to costs. This could worsen the existing situations in many countries, where better legal and expert witness services are available to the wealthy while the poor have to settle for those provided by the State.

Marginalized groups, indigenous communities, and people disadvantaged by race, class, gender, socioeconomics, or other ideological differences suffer even greater disadvantage in the face of mental health and legal problems. These critical social justice issues warrant a discussion paper on its own, beyond the scope of the present work, but must remain high on the agenda in forensic psychology. For example, the Gladue development in Canada, which has no similar precedence in the United States or South Africa (although such factors can be raised on a case-by-case basis), represents an important legal process that can have an affirmative effect for marginalized individuals involved in court proceedings. Finally, we believe that psychologists must be involved in higher level government advisory groups and task-teams to contribute to law reform and advocate for people with mental health problems.

Footnotes

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

ORCID iDs

Anthony L Pillay

Alexandra Hopkins

Notes

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