Forensic psychological expertise in cases of compensation of moral harm in the Russian Federation

The article presents a comparative analysis of the characteristics of the production of psychological and psychiatric examination for compensation of damage caused to other persons in the UK (described in the article by Hugh Koch, published in the current issue of the journal) and Russia. It is shown that the principles of judicial psychological-psychiatric expert study and the requirements for expert opinion in both countries include psychopathological and psychological research using the international diagnostic classifications, comparative analysis of subjective complaints of the plaintiff with medical documentation, use of valid and reliable methods of research, completeness and validity of the expert opinion. The main requirements for the expert are its independence and professional competence. And in Russia and the UK discussed the subject of forensic examinations are negative changes of the mental state of plaintiff, the victim from harm, which is revealed through the definition of their severity, duration, reversibility-irreversibility, as well as establishing a causal link between the traumatic event and these changes.

The institution of compensation of moral harm caused by the offense or otherwise violation of encroaching on the citizen rights or other intangible benefits is becoming increasingly important, amid, on the one hand, Russian legal reform aimed at increasing the guarantees of fundamental human rights and freedoms, and, on the other hand, increasing criminality on the background of social and economic transformation.

Compensation for moral damage is governed by Art. 151 of the Civil Code of the Russian Federation, where the category of "moral damage" is defined as "a physical or mental suffering", and it states that determining the compensation for moral damage sizes court must take into account the degree of physical and moral suffering related to the individual characteristics of the person suffering the harm.

However undeveloped clear legal representations of the concept of "moral damage", its forms, and rules for compensation calculating leads not only to the complexities of court proceedings and the ambiguity of court decisions, but also to the difficulty in conducting a forensic psychological and comprehensive forensic psychological and psychiatric examination for this kind of cases. Russian courts experience in this sphere is very conflicting, it does not exceed 20 years. In this context, the analysis of international experience, especially in the Anglo-Saxon legal system with more than a century experience of proceedings for damages compensation cases has becomes significant.

An article by Hugh Koch published in this issue is devoted to the problems of increasing the validity and reliability of expert reports relating to compensation for psychological damage due to the actions of others. Under adversary character of the judicial process UK both claimant and the respondent invite their experts, while expertise always сommissioned by a judge or court in Russia. Without describing the procedural aspects of the expert evidence and expert opinion preparation we will compare the technological and content factors of moral damage compensation cases.

Principles of forensic psychological and psychiatric expert examination and expert report requirements

 Article by Koch indicates expert report requirements as follow: extent, quality; safeness of data used in the expert examination; accuracy and reliability of applicable research methods; recording the examination results according to expert’s ambit. The author recommends to consider a range of expert opinion during the expert study and justify the conclusions thoroughly; to use DSM-V type of diagnostic classifications while diagnosting the mental state of the claimant; to analyze personal history and complaints and сompare claimant history and symptoms with GP records, and primarily to conduct a comparative analysis of the clinical and psychological symptoms before and after the harm, taking the treatment into account.

Similarity of forensic expert examinations algorithms in the UK and Russia is obvious.

According to the Russian Ministry of Health-approved Treatment Protocol (forensic psychiatric examination) [3], an outpatient comprehensive forensic psychological and psychiatric expert examination provides the following minimum set of materials required for the examination: a criminal or a civil case; characteristics; medical records, general in particular. It includes a mandatory stage of collecting complaints and anamnesis; psychopathological examination; psychological examination. Consultation by neurologist or therapist as well as instrumental examinations such as electrophysiological, rheoencephalographical, computer brain tomography, magnetic resonance imaging of the brain and other methods aimed at clarifying the diagnosis are possible, if necessary. Diagnostic methods used in psychological research should be valid and reliable.

The most important examination principle is proposing and analysis the maximum of diagnostic and expert versions. The essential tasks of the expert study are: to achieve a holistic and consistent description of the subject’s mental state in a legally significant situation, based on the comparative analysis of all available information sources; to compare the subject’s mental state to ICD-10 diagnostic standards (section F0-F99); to compare reports of all the experts involved in the examination, including different specialties experts (e.g. psychiatrists and psychologists) [8,9].

Requirements to an expert

 According to the article by Koch, the main expert characteristics is independence of instructing party, that leads to a problem because of an experts competition (experts are paid by trial participants) [6]. Besides, an expert is required to maintain as high level of logicality as possible when appraising evidence that is necessary for high competence level. When the expert can not use sufficient materials to substantiate findings, he/she should inform the court of reducing reliability of evidence. Finally, the author made an important note that the experts should maintain a high level of accessibility to lawyers^[1].

There are legal and ethical requirements for forensic experts working with real persons in Russia. According to Article 4 of the Federal Law "On State Forensic Activities in the Russian Federation" forensic expert activities based on the principles of legality, respect for human rights and freedoms and civil rights of legal entity, as well as the expert's independence, objectivity, comprehensiveness and completeness of the study [ 1]. According to the principle of independence, expert can not be in any dependence on the authority or person appointed judicial examination, the parties^[2] and other persons interested in the case. Art. 13 of the Law makes professional and qualification requirements for the expert, particularly, higher professional education and further training in a particular expert specialty, as well as regular certification for the right of expert. Art. 16 states that the expert must make a reasoned written report about the impossibility to give an opinion, if the materials of the case are not sufficient for examination and giving an opinion. Ethical expert psychologist principles [4.5] include professional competence; personal approach (respect for the rights, honor and dignity of the subject), and independence on the court, other participants in criminal or civil proceedings, other experts, expert’s own prejudices, a sentiment of pity, sympathy and antipathy to the subject^[3].

Criteria for forensic expert evaluation of clinical and psychological aspects of moral harm

 Comparison of psychological and psychiatric criteria for evaluating the effects of the injury (psychic trauma) in the United Kingdom and Russia is of particular interest.

Expert analysis of Art. 151 of the Civil Code indicates that clinical and psychological aspects of the plaintiff's moral suffering with account of individual psychological characteristics can be the subject of complex psychological and psychiatric expert examination. The mental suffering can be based on personal experiences either within the structure of mental activity changes or effected by these disturbances.

Mental changes can be attributed to different levels, including prenosological. Non-pathological status traditionally include personal conflict, stress, frustration, psychological crisis. A diagnosis of the personal importance of the affected values and senses for affected person is a prerequisite for determining the adverse changes in mental activity. Another important aspect is to determine the plaintiff's personal characteristics, including increased sensitivity to stress factors (low resistance to stress), that is of particular importance for the mental change understanding.

According to the paper by H. Koch, in the United Kingdom the subject of forensic examination in cases of damage caused to other persons is also the mental status of the plaintiff. «The Key Medico-legal questions» are converge to the diagnosis of a subject’s mental status, the extent and duration of mental changes, a causal link to the traumatic event.

Domestic forensic psychological and psychiatric examination tradition for moral harm compensation cases [2, 5, 7, 10-12] has developed a similar view. A definition of moral harm caused by a crime or other violation and compensation, including the degree of plaintiff's moral suffering, is the court’s authority. Yet in order to examine these circumstances, the court may use expert opinion reflecting the clinical and psychological aspects of "mental suffering" category. The following expert concepts can be determined.

• The mental state of the subject (including mental illness).
• The degree of mental activity changes.
• The dynamic characteristics of mental activity changes: resistance/reversibility; duration.
• Cause-and-effect relationship between the harm (stress exposure) and the mental changes emergence and development.

Subsequently, the following model questions can be put to the experts:

If the subject has negative mental activity changes (including mental illness)? If so, what do they express?

Is there a cause-and-effect relationship between the negative changes of subject’s mental activity and the actions (or inactions) of party which caused the damage?

What is the degree of adverse changes in mental activity of the harmed person?

What are the dynamic characteristics of mental activity changes: resistance or reversibility; duration?

Whether the subject has individual psychological characteristics, which have had a significant impact on the change of his mental activity in the examined situation?

The following case can be an example. Four members of lost’s family (mother, father, brother and grandmother) claim for compensation to each of them for moral harm caused by the same offense that resulted in the death of a child. All the plaintiffs in a civil case were examined by a complex legal psychological and psychiatric examination.

According to the civil and criminal cases materials, in the evening the mother of the died child got into the elevator to the 5th floor of her house with her two children: 4-year-old son, and 11-month-old daughter located in the baby carriage. After coming out of the elevator with her son, she began to pull out the carriage with her daughter being in it. At this time, the elevator door and the shaft were closing, and cockpit doors pressed the rear wheels of carriage. Then, after the elevator call command received from the top floor, the elevator car began to move up with the carriage, which was fixed in the doorway. The carriage was deformed hitting the top of the doorway of the 5th floor lift shaft, and its part containing the young daughter turned over and moved below the elevator car. The girl fell out of the carriage and fell into the elevator shaft. She received fatal injuries and died next day in the hospital.

Staff members guilty of elevator malfunction had been convicted of manslaughter due to improper execution of duties and of negligence: improper execution of their official duties due to a dishonest and negligent attitude to service which negligently caused human death.

One year later the mother of the deceased girl filed a lawsuit in court with a claim to the housing and communal services for the recovery of property damage and moral harm caused by the crime. The plaintiff estimated moral harm in the 700 thousand rubles in her favor, and 300 thousand rubles in favor of his son. Father and grandmother of the deceased claimed to recover from the housing and communal services 500 thousand rubles each.

The results of a complex forensic psychological and psychiatric examination are represented in the Table.

Table

The expert parameters of plaintiffs’ mental state

This case illustrates the possibility of a different kind, depth and duration of mental activity changes in response to the same traumatic effects depending on individual premorbid personality characteristics, social role position in relation to the deceased family member, gender and age. It is clear that the court may use this report to justify the varying degree of moral suffering of the examined subjects and, accordingly, to determine the size of differentiated moral harm. This finding shows that it is nesessary not only presume the degree of moral harm and explanations of civil proceedings parties, but also find out what confirmed the fact of mental or physical suffering of injuree, including forensic expert analysis with the participation of psychologists and psychiatrists, as stated in the resolution of the Plenum of the Supreme Court of Russian Federation dated December 20, 1994, № 10.

Thus, in spite of the domestic characteristics of substantive and procedural civil law, in regulating the of judicial examination particularly, in both the United Kingdom and Russia, we see common principles of judicial examinations with the participation of psychologists and psychiatrists in cases involving compensation for damage caused to others, as well as criteria for expert evaluation of adverse mental state changes as a result of the injury.

[1] The same feature is noted in forensic psychological expertise theory in our country. "The court expert's language must be equally clear both for forensic experts, and for authority or the person appointing the examination" [5, c

p.128].

[2] Emphasis added.

[3] The last component of independence in common with n. ХV "Medical and legal postulates of Koch".

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