THE possibility that Oscar Pistorius could undergo his court-ordered psychiatric evaluation as an outpatient is against the norm, according to a criminal law expert.
Pretoria High Court Judge Thokozile Masipa ruled yesterday that, following the testimony of defence witness Merryll Vorster, Pistorius had to be evaluated.
Vorster, a forensic psychiatrist, diagnosed Pistorius with a “continuously worsening” generalised anxiety disorder.
Masipa said a detailed ruling would be issued on Tuesday, when the court would reconvene, but indicated she might be amenable to a proposal for the Blade Runner to be treated as an outpatient.
Pistorius, 27, showed no emotion as he stood in the dock listening to the ruling.
After Masipa gave her judgment, Pistorius clenched his jaw and pressed his lips together, before going over to consult with his legal team.
Wits University law professor James Grant, speaking after proceedings, said he had never heard of an outpatient referral in terms of the Criminal Procedure Act.
“It is odd and certainly will be different from what most people experience. The court will have to be very careful to avoid allegations of special treatment.
“Part of the point of a referral is that you are put under constant observation, where there are psychiatric nurses and social workers to observe you. It can’t be as thorough on an outpatient basis,” Grant said.
After both the defence and prosecution indicated they would investigate the possibility of Pistorius being evaluated as an outpatient, Masipa said this was preferable as “the aim was not to punish the accused twice”.
Grant said accused referred for psychiatric observation often waited months for available space to be evaluated.
The athlete is on trial for the murder of his girlfriend, former Port Elizabeth model Reeva Steenkamp, 29, who he shot dead at his home, allegedly mistaking her for an intruder.
The state believes the killing followed a heated argument.
After proceedings yesterday, Steenkamp’s mother, June, said: “Please, understand I cannot comment.”
Pistorius’s uncle, Arnold, said the family was comforted by the thoroughness of the ruling.
“Judge Masipa used every avenue to ensure a fair trial. This reaffirms our confidence in the justice system,” he said.
During her testimony this week, Vorster conceded that if Pistorius suffered from diminished responsibility when he shot Steenkamp, according to the Criminal Procedure Act he would have to be sent for psychiatric observation.
Vorster said Pistorius was aware of the difference between right and wrong, but his disorder could have influenced his actions.
Masipa said although the defence had argued that Pistorius was criminally responsible at the time of the incident, she was convinced he needed to be referred for observation.
“The accused may not have raised the issue that he was not criminally responsible, but a witness testifying on his behalf did.
“Although Vorster said the disorder is not a mental illness, she said it was clear Pistorius had a psychiatric illness.”
The judge said Vorster’s evidence had not been contradicted, “nor will it be in the absence of other psychiatric evidence”.
“The effect of the evidence created doubt that the accused might have another defence and that may be a case of diminished responsibility.”
She said Vorster’s report, however inclusive, could not replace an inquiry. “She also only had two interviews with the accused. It appears she had limited time to compile her report. A proper inquiry would be more comprehensive.
“The referral will lead to delays, but it is not about anyone’s inconvenience. It’s about whether justice has been served.”
Port Elizabeth psychologist Dr Ian Meyer, who has testified in several court cases around the country, said Pistorius would not be undergoing any physical treatment while being evaluated, but would be subjected to a battery of psychological and personality tests.
“He will most likely be interviewed by a team consisting of clinical psychologists, psychiatrists and occupational therapists among others.
“They will probably interview him extensively on the events of the night Steenkamp was killed, about his childhood, and anything that could cause someone to suffer from generalised anxiety disorder.”
He believed it would be better for Pistorius to be treated as an inpatient as it would allow for better observation.
“When treated as an outpatient, a person does not spend nights at the facility, but only undergoes observation between certain hours of the day, for example 8am to 5pm. This makes constant observation impossible.”
Meyer said these test were not to establish whether or not Pistorius was fit to stand trial, but whether his disorder could have affected his “vulnerability” on the night of Steenkamp’s shooting.
“Someone with generalised anxiety disorder would act differently in a situation of perceived danger. It could help explain why he felt the need to defend himself against his imagined attacker.”
If the findings after Pistorius’s observation agreed with Vorster’s findings, it could count in the defence’s favour as it would have justified Pistorius’s reaction to a certain extent, Meyer said.
But if the report disproved Vorster’s findings, the state might try to show that his actions were excessive.
Gauteng Health Department spokesman Simon Zwane said there was no difference between outpatient or inpatient assessment.
He said the number and length of the consultations would be determined by the doctors, with the patient seeing them individually.
The evaluation is expected to take about 30 days and will prolong the trial which began on March 3.
The psychiatrists’ final report may drastically alter the direction of the trial.
“If he has a diminished [mental] capacity or no capacity, the trial cannot proceed or it will be taken into account for sentencing,” criminal lawyer Martin Hood, who is not linked to the case, said.
Should Pistorius be found to have no control, the state will declare him a state patient and send him to a hospital for an indefinite period.
“If he has full capacity, then it eliminates an argument for an appeal,” Hood said. – Graeme Hosken, Marzanne van den Berg and Riaan Marais. Additional reporting by AFP and Reuters