PSYCHIATRIC ASSESSMENT OF M E N T A L
T I B OR B E Z E R E D I , M.D. 1
Introduction
People in marital conflict seek psychiatric
help when the marital stresses produce
mental symptoms. Traditionally, psychiatrists
have assisted patients by acting as marriage
counsellors, trying to mediate reconciliation
between warring partners. I n short, efforts
were directed towards fostering the viability
of marriages. However, when the Canada
Divorce Act of 1968 (4) was enacted psy­
chiatrists also became involved in the legal
dissolution of marriages — in a testamentary
capacity.
The intention of this paper is to provide
practical guidelines for the assessment pro­
cess which forms the basis of the psychi­
atrist's evidence. The ground concerning
psychiatrists is section 3(d) which allows
divorce if the respondent, since the com­
mencement of the marriage, ". . . has treated
the petitioner with physical or mental cruelty
of such a kind as to render intolerable the
continued cohabitation of the spouses."
Mental cruelty is a matrimonial offence.
The term means that divorce is granted to
the petitioner upon verified proof of the
respondent's fault. Psychiatrists may be
called upon to attest that the petitioner has
been subjected to mental cruelty.
•Presented at the Joint Meeting of the Canadian
Psychiatric Association, The Royal College of Psychi­
atrists and the Quebec Psychiatric Association,
Montreal, June 1972.
department of Psychiatry, University of British
Columbia, Vancouver, B.C.
Can. Psychiatr. Assoc. J . Vol. 18 (1973)
273
CRUELTY*
Need for Psychiatrist's Testimony
The question arises as to why psychi­
atrists are thought to be best qualified to
discern mental cruelty from its effects on
the spouse. As opposed to the other matri­
monial offences, where the facts are obvious
and therefore easy to prove, the conduct
which amounts to what the law calls cruelty
is subtle. The effects of attitudes, feelings
and corresponding behaviour (short of phy­
sical aggressiveness) are difficult to assess;
it requires expertise in human behaviour,
such as psychiatrists have through their
training and professional experience.
Psychiatric evidence is also sought because
of the privilege psychiatrists have as experts
to express opinion and draw conclusion from
the facts when giving evidence. A n expert
medical witness is permitted certain excep­
tions to the hearsay rule: a lay witness is
not allowed to testify to what he heard;
whereas the psychiatrist may do so — he
can talk about his patient's complaints of
physical or mental symptoms when these
are relevant to the case in point (2). This
privilege has been established in the cases
of divorce when it was held that ". . . every
psychiatrist, (indeed, every doctor), in the
very nature of things is bound to base his
conclusions, at least in part, on information
imparted to him by his patient" (9).
Despite these advantages, the psychiatrist
is seldom used as a testamentary source.
From a sample of published divorce cases,
it has been estimated that psychiatric
evidence was given in only about 5 percent
 274 CANADIAN PSYCHIATRIC ASSOCIATION JOURNAL
of the cases of mental cruelty which were
tried in the courts in British Columbia (3).
On the whole the attitude of the profession
is negative and there are good and valid
reasons for the reluctance; these include
wariness about violation of confidentiality,
conflict of interest inherent in the adversary
system, the concept of the professional role
vis-a-vis the law, inconvenience and so on.
While it is generally accepted that testimony
by a psychiatrist in some divorce actions
can be constructive, in others the absence
of privilege probably discourages the use of
psychiatry by lawyers and their clients when
it might be of real help (5).
Legal Concept of Cruelty
It is useful for the psychiatrist to know
what the court will accept as 'cruel conduct.'
The lawmakers were of the opinion that
the ground of cruelty should be undefined
and its administration left to the judges,
who are guided by precedents in Canadian
and English jurisprudence (13). The intent
was to allow the judges to keep the law in
touch with the opinions of society so that it
may be open to liberalization or restriction
in the future, as the public view on marriage
and divorce may change.
During the last three years it has generally
been accepted that the petitioner is required
to show: that the spouse's conduct was
"grave and weighty", with such effect on
the mind of the other spouse that made
married life "intolerable", — a practical im­
possibility (10). Because of the vast indivi­
dual and interactional differences, ". . . the
determination of what constitutes cruelty in
a given case must, in the final analysis,
depend upon the circumstances of the parti­
cular case having due regard to the physical
and mental condition of the parties, their
character and their attitude towards the mar­
riage relationship" (8).
Divorce statistics show that around 5 per­
cent of petitions are filed on the grounds
of mental cruelty (2), but most often in
combination with other grounds. This means
that in practice lawyers do not use mental
cruelty unless they expect to be able to
prove it. This has not become an open
Vol. 18, No. 4
floodgate in Canada as it is in the United
States, where about 55 percent of divorces
flow through it (12).
Clinical Assessment
In practice, a psychiatrist may be called
upon to testify under one of the three fol­
lowing circumstances:
1) In the case of a patient whose condition
warranted psychiatric attention before divorce
was contemplated because of mental symptoms
aggravated or caused by marital conflict — in
such a case the psychiatrist usually talks with
the patient's spouse in an effort to correct the
situation. If such a patient finds the relation­
ship intolerable, and then separates and asks
for a divorce, the psychiatrist must convince
himself that the marriage has indeed failed and
that no reconciliation is possible. Then, pro­
vided the psychiatrist believes that the divorce
would provide relief, he should agree to give
evidence if he is required to do so. Because he
is usually familiar with the situation — the
personalities of both spouses, their interaction
in the marriage and the effect on the patient —
he has no problem in writing a report and
frequently has more than hearsay evidence to
offer, especially his findings at various stages
of treatment. But he must not betray medical
confidence and therefore he should ask for
waiver from the patient and testify only when
subpoenaed.
2) In the case of a couple in marital con­
flict who are in conjoint family consultation for
the express purpose of trying to avert marriage
breakdown, it is a definite conflict of interest
for the psychiatrist to testify against one of
them — by inevitably taking sides he would
seriously jeopardize his therapeutic role, and
this is usually needed by the more maladjusted
party in the aftermath of divorce. Therefore
he should decline to testify as a matter of
principle in each case where both spouses are
patients, and he must advise counsel to send
his client to a colleague for assessment when
requested.
3) In the case of patients who come to
psychiatric attention only because they are
seeking divorce, on referral from a lawyer
or family physician — the assessment of these
patients requires a high degree of professional
skill combined with common sense, experience,
intuition and integrity. The psychiatrist needs
to have feelings for the way in which inter­
action between the husband and wife generally
takes place; and the ability to draw reliable
deductions from one side of a discussed event
to another. Quite a few of these patients exag­
gerate or rationalize their own involvement —
they plead the spouse's 'guilt' and their own
 August, 1973 MENTAL CRUELTY
'innocence'. Being in the midst of divorce from
a spouse, from joint parenthood, property and
friends (1), they are embittered by the acri­
mony of the separation, the fight over alimony,
the custody of children and the fear of
tomorrow.
Before accepting the couple's own assessment
the psychiatrist must determine the exact nature
of his relationship to his patient and the
lawyer (6). He should define himself as a
consultant whose function it is to evaluate and
report on what he finds, as he sees it.
The assessment, since he is unfamiliar with
the patient and the absent spouse, should be as
thorough as possible, covering several sessions,
and at the onset the patient should be told the
purpose of the evaluation.
The psychiatrist should first ask the patient
about complaints — listen to them, record
them, leave them subjective and not challenge
them.
Look for
• physical or verbal aggressiveness by
spouse.
• antisocial behaviour by spouse.
• excessive jealousy by spouse.
• manifest mental illness of spouse.
Next — the patient should be asked what
effect the spouse's conduct had on his/her
emotional well being. These should be recorded
in the context of mental status examination
if symptoms are objectively verifiable, and a
decision made as to whether or not the situa­
tion is intolerable.
Look for
• mental symptoms.
• previous psychiatric contact.
Next — a thorough background history
should be obtained on both sponses — age
religion, social class (occupation, education,
income), ethnic background, previous marital
status, children, parents and kin.
Look for
• how much alike are the demographic char­
acteristics of the spouses.
• social pressures which could affect mar­
riage.
• development history (both), childhood,
school period, adolescence.
• adult adjustment patterns, work, social,
habits, alcohol, drug abuse, reported overt
anger, antisocial acts.
• similarity or divergence in background.
• adolescent maladjustment.
Next a history of the marriage should be
taken: Duration, mate selection, premarital
sexual, emotional, social and economical com­
275
patibility. Significant events (Life Event Scale
[11] could be used) how couple was affected
by them, changes in personal sexual attitudes
in marriage, leadership formation, attitude
towards children.
Look for evidence of incompatibility
Sexual
• sexual access denied.
• degree and expression in both.
Emotional
• personality clashes.
• authority problems.
Immaturity
• lack of discipline.
• dependency, egotism.
• acting-out proneness.
Lack of effort
• financial problems arising from inadequate
or wasted income.
• work and support — frequent job changes.
• deprivation of attention — withdrawal.
Disloyalty
• adultery.
• in-law problems.
Next a personality assessment should be made
and an attempt to understand absent spouse's
behavioural manifestations from description by
the patient.
Look for
• personality disorder.
• neurosis.
Intolerability should be assessed:
• is patient separated, how long.
• who else knows about marital problems,
family, friends, neighbours, physician,
minister or police.
• why divorce is sought instead of separa­
tion.
What efforts were made to reconcile:
• none.
• family, friends, when.
• professional, who, when, what results.
Patient should be asked about proof:
• who would corroborate statements.
From this data sheet the psychiatrist should
re-define:
• complaints regarding spouses' conduct and
interactional pathology.
• background history into dynamics of the
marriage relations, developmental and
phenomenological.
• effect in terms of intolerability as expres­
sed in mental symptoms, if any.
276 CANADIAN PSYCHIATRIC ASSOCIATION JOURNAL
Then write a report to the referring source
concerning:
• dates patient seen.
• what complaints were made.
• what inferences or diagnosis were made on
that basis.
• opinion or conclusion.
Communication between Psychiatrist and
Lawyer
Discussions between the psychiatrist and
the lawyer after the patient has waived con­
fidentiality in writing are entirely ethical,
since both are working together to aid the
patient.
The communication begins when the psy­
chiatrist is notified by the lawyer of his
client's intention to seek divorce and he is
asked whether he would be prepared to
testify. However in some cases the lawyer
subpoenas the psychiatrist without advance
notification. I f the psychiatrist takes issue
with this because he feels his testimony is
not helpful he should contact the lawyer
and clarify his position. I n most cases the
problem can be worked out satisfactorily,
inasmuch as lawyers also believe testimony
should be given voluntarily. If the testimony
is collected by forceful means it is of little
value to their client as it becomes apparent
from the psychiatrist's attitude that he dis­
agrees with the proposition.
In some extreme cases the lawyer, assum­
ing that a medical specialist will not commit
perjury, decides to call the psychiatrist des­
pite the latter's reasonable protestations. The
doctor has no choice but to go, declare to
the presiding judge that he is here under
compulsion and ask to be excused. If the
judge bids him to testify he should answer
the questions put to him to the best of his
recollection.
Ethical Considerations
When the psychiatrist is cast in the role
of witness in the legal process in mental
cruelty cases he is faced with difficult moral
and personal decisions. He is under pressure
by the patient or the lawyer who sometimes
want him to accommodate them, and he is
also under pressure from his conscience which
Vol. 18, No. 4
defines the conditions under which he can
render assistance. Confidentiality, on which
he is dependent in his everyday practice, is
jeopardized by his involvement. During the
trial process, by necessity, he is part of the
adversary system in which he has to main­
tain his honesty and objectivity.
Therefore the psychiatrist should not seek
involvement unless compelled or when in
his professional and ethical judgement this
is in the patient's best interest.
I n his position as a consultant to the
lawyer he is particularly vulnerable to in­
sinuations, and therefore if he does not think
he can corroborate the client's claims he
should state so in his report, otherwise not
only his personal reputation will suffer but
the dignity and credibility of the whole
profession.
Summary
Since the introduction of mental cruelty
as grounds for divorce in Canada, psychi­
atrists have become involved as expert wit­
nesses in divorce cases. While the psychi­
atrist should decline when it conflicts with
his ethics, personal and professional reputa­
tion, it is possible and desirable for him to
distinguish when there is just reason for
giving testimony. The practical assessment
list provided may be useful for this purpose.
References
1. Bohannan, Paul: "Divorce and After" in
The Six Stations of Divorce. Editor:
Paul Bohannan, Garden City, New York,
Doubleday & Co., 1970.
2. Department of Justice, Central Divorce
Registry, Ottawa.
3. A Digest of Cases under the Divorce Act
of Canada. Eds:. J . B. Kowarsky and
H. A. Stephens. Vancouver, K. S. Publish­
ing Co., 1969.
4. Divorce Act, Statistics Canada, C. 24,
1967-68.
5. G.A.P. Report #45 "Confidentiality and
Privileged Communication". In The Prac­
tice of Psychiatry, p. 97 New York. 2nd
Ed. 1966.
6. G.A.P. Report #45 "Confidentiality and
Privileged Communication". In The Prac­
tice of Psychiatry, p. 100, New York, 2nd
Ed. 1966.
August, 1973 MENTAL CRUELTY 277

7. Gravenor, Colin A. Jr.: The physician as Resume

a witness in court. Canadian Doctor, 37.
p. 53, 1971.
8. Knoll v. Knoll, 10 D.L.R. (3d) 199, 1970.
9. Lauder v. Lauder 12 D.L.R. (3d) 544,
1970.
10. MacDonald, James C : Canadian Divorce
Law and Practice, Toronto, Ont., Carswell
& Co. Ltd., 1969.
11. Paykel, E . S., Prusoff, B. A. and Uhlen-
huth, E . H . : Scaling of life events, Arch.
Gen. Psychiatry, 25: 340-347, 1971.
12. Public Health Service, National Center
for Health Statistics, Washington, D . C .
Divorce Statistics Analysis 1964.
13. Report of the Special Joint Committee of
the Senate and House of Commons on
Divorce, 1967.
Depuis l'introduction de la cruaute men-
tale comme motif de divorce au Canada,
les psychiatres ont maintenant a intervenir
comme temoins experts dans des cas de
divorce. Le psychiatre doit se recuser lorsque
l'affaire consideree entre en conflit avec
l'ethique et avec sa reputation personnelle
et professionnelle. Mais il est & la fois pos­
sible et desirable qu'il determine les cas
presentant des raisons serieuses d'apporter
son temoignage. Une liste devaluation prati­
que est fournie dans l'espoir qu'elle consti-
tuera une aide appreciable a cet effet.

Cruelty, like every other vice requires

no motive outside of itself; it only
requires opportunity.

George Eliot (Mary Ann Evans Cross)

1819-1880