12 June 2008

Law courts and sick notes

There has recently been a spate of high-profile people who have avoided going to court by claiming to be mentally or physically ill. Truth or convenience?

J Arthur Brown – the pugnacious-looking financier at the centre of the Fidentia case – claimed for weeks that he was too ill to attend the hearings into the fraud and theft charges he’s facing.

He joins a glittering crew of high-profile accused. These include Britney Spears, who was that same night seen partying until 2am; Paris Hilton; Najwa Petersen; Shabir Shaik; and, of course, Michael Jackson.

Are these people for real? When is someone too ill to appear in court and who gets to decide this?

The rules
Legal professionals say there appear to be no hard-and-fast rules. Professor M.A. Simpson, psychiatrist and Health24's CyberShrink, confirms this. And, he says, it seems medically suspect.

"There should only really be three reasons why someone cannot appear in court: if they are in the intensive care unit attached to machines; if they have a contagious disease; and/or if appearing in court would endanger their health seriously,” he says. In all three cases, evidence should be produced. Claiming to be depressed is not an excuse – “which person who has been charged with a crime is not vaguely depressed or anxious?"

The third of the above reasons, namely the endangering of someone's health by a court appearance, is most frequently abused, he says. Doctors, legal professionals and psychologists sometimes allege that someone's mental state renders them unfit to stand trial, or that the person would be unable to understand the proceedings, or to withstand the pressures of trial.

"This is always a gamble for the accused," says Simpson. "There is always the chance that, should someone be acquitted on the grounds of mental frailty, that same frailty could result in their being sent to a state psychiatric facility. Of course, some people really do need it."

When an accused pleads not guilty on the grounds of temporary insanity, the courts are understandably sceptical, because it is such an easy claim for guilty criminals to make, according to Simpson.

The more usual question is whether the person is able to understand the proceedings sufficiently to instruct their lawyers adequately: the courts may not try someone who cannot understand what is going on.

What is accepted as proof of illness?
Often, the advocate simply announces that the accused is ill, sometimes a doctor's certificate is produced, and sometimes a medical expert is called in. It seems to depend on the individual judge or magistrate.

Minor ailments, says Simpson, are simply no excuse.

He is, moreover, highly critical of the courts’ apparent laxness. “There seems to be a trend developing where people make ludicrous excuses and expect to be accommodated. Think of Najwa Petersen's doctor's appointment that prevented her from appearing in court – it turned out to be with a plastic surgeon," says Simpson.

In Michael Jackson's case, the defence team overplayed their hand, and were promptly ordered to produce the accused within half an hour, or run the risk of forfeiting bail of $3 million. Jackson complied and appeared in court, albeit in his pyjamas.

Paris Hilton also pushed it too far. When she was released after serving only three days of her 45-day prison sentence for violating her probation in a reckless driving case, the judge hauled her before the court again. No papers were forthcoming on her alleged medical condition, and despite her tantrums, she was sent off to complete the rest of her sentence.

Schabir Shaik also spent lengthy periods in hospital both before and after his conviction. A deteriorating blood pressure problem, and 'suspected organ failure' were variously given as explanations. It was interesting to note, however, that Discovery Health, the medical scheme to which he belonged, failed to cover the costs for his stay, saying that they would only cover what was 'clinically appropriate'.

Loopholes and lawyers
So what does all this mean on a practical level? Basically that a clever and shrewd lawyer can abuse loopholes in the system by claiming illness, both mental and physical, on the part of their client, thereby postponing court appearances, and ensuring a hospital stay rather than a stint in prison while awaiting trial.

(Susan Erasmus, Health24, June 2008)


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