Criticism of the Supreme Court ruling within psychiatry and the judiciary

The Dutch Psychiatry Association (NVvP) fears that the Supreme Court’s judgment in the Thijs H. case last Tuesday will have negative consequences in other criminal cases, and even beyond. “Psychiatrists have reacted with indignation and incomprehension to the conclusions from this judgment,” the NVvP writes in a statement. response on her site. Psychiatrist Lilian Kuipers, on behalf of the forensic psychiatry department of NVvP: “Most psychiatrists have one or more patients in whom they recognize Thijs H.’s problems. They are now wondering: could my patient also receive punishment instead of care if he does something during a psychosis?”

In the judgment in the Thijs H. case, the Supreme Court provides a new ‘assessment framework’ that gives judges more room to ignore the judgment of forensic psychiatric research in a criminal case. This was already possible in practice, but the Supreme Court has now determined that there are no formal requirements or criteria that a judge must adhere to when ignoring both the diagnostic assessment of the psychiatrists and the accompanying advice on accountability.

Outrage

Psychiatrists also consider it self-evident that judges should ultimately have the final say, but the fact that this can now be done without motivation in forensic psychiatric reports leads to “indignation and misunderstanding.” Kuipers: “This is not about personal assessments or opinions of behavioral experts, but about thorough reports in which final conclusions and advice are reached. We only do that if we are really sure of our case. If we determine that someone had a psychosis, that is not an opinion, but a diagnosis – a scientific judgment. A judge cannot question the diagnosis of cancer, can he?

Thijs Hermans, who wishes to be mentioned by his full name, committed three murders of random walkers in 2019 while in a psychosis and was therefore completely incompetent, the experts unanimously determined in reports that reached a final conclusion. Yet the judges ruled differently. The court in Den Bosch ultimately saw a disorder, but no evidence of psychosis. The court therefore ruled that Hermans was only partially incompetent. Hermans received 22 years and TBS. A third investigation report, which, unlike the previous reports, did not reach a conclusion or a punishment recommendation, but did express doubts about the psychosis, played an important role. The court then determined that Hermans had acted “in a planned manner” and had made conscious choices. The forensic psychiatrists who arrived at a diagnosis had actually concluded that all these behaviors had to be explained within the psychosis. The Supreme Court has now confirmed the rejection of that forensic scientific assessment.

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According to the NVvP, this legitimizes a forensic psychiatric error. Kuipers: “The reasoning that someone in a psychosis would be partly responsible because he made apparently rational choices is scientifically incorrect from a psychiatric point of view. Under the influence of psychosis, someone is able to make considerations, but as soon as the action arises directly from psychotic thoughts, hallucinations or existential fears, these considerations are no longer rational. But this judgment of the Supreme Court confirms that incorrect reasoning as a starting point.”

‘Judges in white coats’

The judgment not only leads to criticism from psychiatrists. Rob Keurentjes, who as a judge wrote several manuals on psychiatric patients in criminal law, called the judgment on Wednesday in a response to X, formerly Twitter, “imitable from a legal perspective”, but at the same time

“a missed opportunity”. He writes: “The problem seems to be, among other things, that some judges tend to put on the white coat and that is not wise, to say the least.”

The NVvP now wants to enter into discussions with the judiciary to “assess whether it is feasible to work together on a more differentiated and clear assessment framework.”

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