A Historical Overview of the Mental Health Expert in England Until the Nineteenth Century

• Author: Grobler, G.
• DOI: https://doi.org/10.47348/FUND/v27/i1a1
• Citation: (2021) 27(1) Fundamina 1
• Pages: 1-32
• Published date: 01 January 2022
• Date: 01 January 2022

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https://doi.org/10.47348/FUND/v27/i1a1

ARTICLES

A HISTORICAL OVERVIEW OF

THE MENTAL HEALTH EXPERT IN

ENGLAND UNTIL THE NINETEENTH

CENTURY1

Chazanne Grobler*

ABSTRACT

Throughout history, the use of mental health professionals as expert

witnesses has elicited criticism. The criticism stemmed from the

alleged lack of scientic rigour in mental health sciences and the

accompanying bias of expert witnesses. As the use of mental health

professionals in court increased, so did the associated problems, with

bias remaining at the forefront. The same challenges plague the South

African courts today and despite various evidentiary and procedural

rules2 aimed at addressing the problems, these have not achieved

* Lecturer, Department of Procedural Law, University of Pretoria.

1 This research is based on one of the chapters of the author’s doctoral

thesis published in 2021, titled A Regularity Framework for Psycho-Legal

Assessments in South Africa (LLD thesis, University of Pretoria).

2 Cross-examination is seen as the most effective way to uncover inconsistencies

and inaccuracies in oral testimony, including the testimony of an expert

witness. Cross-examination is, however, not a particularly good vehicle

or safeguard to ensure the validity and reliability of expert evidence. For

example, a condent expert witness with previous courtroom experience

(2021) 27(1) Fundamina 1

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CHAZANNE GROBLER

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https://doi.org/10.47348/FUND/v27/i1a1

much success. The contribution traces the origins of the expert witness,

in particular the mental health expert, in the English legal system until

the nineteenth century. By examining the shift in the position of the

expert witness from a neutral informant in the eighteenth century to a

partisan witness in the nineteenth century, a parallel is drawn between

the historical position in England and the current position in South

Africa. Drawing on the past failures and successes of the English

legal system in this regard, and briey considering the current position

in England, recommendations are made to address the problem of

partisan mental health experts within the South African context.

Keywords: Expert evidence; mental health expert; medical witnesses;

partisan experts; ethics code

1 Introduction

Expert witnesses have long been criticised as they are considered by

many to be merely hired champions for bolstering crafted arguments.

Mental health professionals in particular are popular targets of

such criticism, with bias being the bête-noire of psycho-legal work.3

This is often referred to as the hired-gun phenomenon, illustrated

perfectly in the oft-cited United States case of Ladner v Higgens,4

where the mental health professional, Dr Herbert Unsworth, had

been called to act as an expert witness.5 Dr Unsworth testied

that the plaintiff was not suffering from any mental illness. When

asked to conrm the conclusion that the plaintiff was a malingerer,

Dr Unsworth replied: “I wouldn’t be testifying if I didn’t think

so, unless I was on the other side, then it would be a post -

traumatic condition.”6

The expert witness, previously an “infrequent visitor”7 to the

court, has now become somewhat of a daily occurrence, with an entire

industry created for them to be able to sell their skills, knowledge

and experience to the highest bidder.8 Unethical testimony by an

expert witness results in irrelevant, unreliable and misleading

may simply deny any validity or reliability issues put to them during cross-

examination. See Smith 1989: 164.

3 Gutheil, Simon & Hilliard 2005: 433.

4 Ladner v Higgens, Inc 71 So 2d 242 (1954, La App).

5 Ibid.

6 Smith 1989: 167.

7 Twine v Naidoo 2018 (1) All SA 297 (GJ) para 18.

8 Ibid. See, also, Ndlovu v Road Accident Fund 2014 (1) SA 415 (GSJ) para 113.

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A HISTORICAL OVERVIEW OF THE MENTAL HEALTH EXPERT IN ENGLAND

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https://doi.org/10.47348/FUND/v27/i1a1

expert evidence that damages the profession of that witness and

impedes the rendering of justice. Reviewing South African case law,

it appears that the criticism levelled by the courts against mental

health professionals’ testimony is often that the experts’ testimonies

are biased.9 For example, in the recent case of S v Rohde, the court

held that it was clear that the forensic psychiatrist was biased and

had simply set about to nd conrmatory evidence to support

her client’s version of the events.10 The court commented that the

collateral information gathered by the psychiatrist was taken out of

context to “t the mould” of what she had set out to establish.11 The

court, and correctly so, heavily criticised the psychiatrist and held

that the evaluation was not only an attempt to usurp the role and

function of the court, but also “amounted to a modern-day version

of an ‘oath-helper’. ... Such expert testimony is to be rejected

without exception”.12

Nevertheless, mental health experts can be of invaluable

assistance to the courts. For example, in Van den Berg v Le Roux,13

Kgomo JP said in respect of the two psychologists who had

testied that “[i]t is impossible to do justice to their helpful evidence

in court”.14

In order to ensure that mental health experts continue to

provide invaluable assistance, the so-called hired-gun phenomenon

(see above) needs to be addressed. Various proposals for reform

have been made, but almost all attempts have failed or were only

partly successful.15 This contribution endeavours to draw on the

past failures and successes of the English legal system to propose

future reform for the regulation of testimony by mental health

experts in South Africa. Since the South African law of evidence has

its roots in English law, this study focuses on developments in this

9 See, eg, Schneider NO v AA 2010 (5) SA 203 (WCC); B v M 2006 (9) BCLR

1034 (W); Stock v Stock 1981 (3) SA 1280 (A); S v Rohde 2019 (1) All SA 740

(WCC); M v G [2011] JOL 27822 (ECG); S v Dr Marole 2003 JDR 0139 (T);

Dlwathi v Minister of Safety and Security 2016 JDR 0391 (GJ); Cunningham

(born Ferreira) v Pretorius [2010] JOL 25638 (GNP); Van den Berg v Le Roux

2003 (3) All SA 599 (NC); Jackson v Jackson 2002 (2) SA 303 (SCA); DG v DG

[2010] JOL 25706 (E); Van Niekerk v Kruger 2016 JDR 0589 (SCA); Jonathan

v General Accident Insurance Co of South Africa Ltd 1992 (4) SA 618 (C).

10 S v Rohde 2019 (1) All SA 740 (WCC) at 823H–I.

11 Idem at 824H–I.

12 Idem at 826A.

13 Van den Berg v Le Roux 2003 (3) All SA 599 (NC).

14 Idem para 29.

15 Golan 2008: 937.

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