Principles and Practice of Forensic Psychiatry, Second Edition

Principles and practice of forensic psychiatry

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Principles and practice of forensic psychiatry Second Edition

Edited by

RICHARD ROSNER MD Clinical Professor, Department of Psychiatry, New York University School of Medicine Director, Forensic Psychiatry Residency, New York University Medical Center Medical Director, Forensic Psychiatry Clinic, Bellevue Hospital Center, New York, New York

Hodder Arnold A MEMBER OF THE HODDER HEADLINE GROUP

First published in Great Britain in 1994 Reprinted in 1998 by Hodder Education, a member of the Hachette Livre UK Group 338 Euston Road, London NW1 3BH This edition published in 2003 by Arnold www.hoddereducation.co.uk © 2003 Arnold All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronically or mechanically, including photocopying, recording or any information storage or retrieval system, without either prior permission in writing from the publisher or a licence permitting restricted copying. In the United Kingdom such licences are issued by the Copyright Licensing Agency: Saffron House, 6-10 Kirby Street, London EC1N 8TS. Whilst the advice and information in this book are believed to be true and accurate at the date of going to press, neither the authors nor the publisher can accept any legal responsibility or liability for any errors or omissions that may be made. In particular (but without limiting the generality of the preceding disclaimer) every effort has been made to check drug dosages; however, it is still possible that errors have been missed. Furthermore, dosage schedules are constantly being revised and new side-effects recognized. For these reasons the reader is strongly urged to consult the drug companies’ printed instructions before administering any of the drugs recommended in this book. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record for this book is available from the Library of Congress ISBN: 978 0 340 80664 7 4 5 6 7 8 9 10 Commissioning Editor: Serena Bureau Development Editor: Tim Wale Production Controller: Bryan Eccleshall Production Editor: Anke Ueberberg Cover Design: Terry Griffiths Cover Illustration: Leonardo Da Vinci. The Royal Collection (c) 2010 Her Majesty Queen Elizabeth II Typeset in 10/12 Minion by Charon Tec. Ltd (A Macmillan Company), Chennai, India Printed and bound in Great Britain.

What do you think about this book? Or any other Hodder Arnold title? Please visit our website at www.hoddereducation.co.uk

This book is dedicated to the memory of M. Bernice Horner Rosner

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Contents

Preface to the first edition Preface to the second edition List of contributors

PART 1

xiii xv xvii

HISTORY AND PRACTICE OF FORENSIC PSYCHIATRY: ROBERT WEINSTOCK

1

1

A conceptual framework for forensic psychiatry Richard Rosner

3

2

Defining forensic psychiatry: roles and responsibilities Robert Weinstock, Gregory B. Leong and J. Arturo Silva

7

3

History of forensic psychiatry Marvin Prosono

14

4

Forensic psychiatric report writing J. Arturo Silva, Robert Weinstock and Gregory B. Leong

31

5

Guidelines for courtroom testimony Phillip J. Resnick

37

6

Practical issues in forensic psychiatric practice Robert L. Sadoff

45

7

Education and training in forensic psychiatry Rusty Reeves and Richard Rosner

52

8

Ethical guidelines Robert Weinstock, Gregory B. Leong and J. Arturo Silva

56

9

Liability of the forensic psychiatrist Daniel Willick, Robert Weinstock and Thomas Garrick

73

10

The death penalty Gregory B. Leong, J. Arturo Silva and Robert Weinstock

79

11

Competence assessments Robert Weinstock, Gregory B. Leong and J. Arturo Silva

85

12

Psychological autopsy Tim E. Botello, Linda E. Weinberger and Bruce H. Gross

89

PART 2

LEGAL REGULATION OF PSYCHIATRIC PRACTICE: HAROLD I. SCHWARTZ

95

13

Informed consent and competency Harold I. Schwartz and David M. Mack

97

viii Contents 14

Hospitalization: voluntary and involuntary Harold I. Schwartz, David M. Mack and Peter M. Zeman

107

15

Involuntary civil commitment to outpatient treatment Robert D. Miller

116

16

The right to treatment Jeffrey L. Geller

121

17

Treatment refusal in psychiatric practice Debra A. Pinals and Steven K. Hoge

129

18

Confidentiality and testimonial privilege Ralph Slovenko

137

19

The duty to protect Alan R. Felthous and Claudia Kachigian

147

20

Treatment boundaries in psychiatric practice Robert I. Simon

156

21

Sexual misconduct in the therapist–patient relationship Robert I. Simon

165

22

The law and physician illness Stephen Dilts and Douglas A. Sargent

173

PART 3

FORENSIC EVALUATION AND TREATMENT IN THE CRIMINAL JUSTICE SYSTEM: ROBERT D. MILLER

181

23

Introduction Robert D. Miller

183

24

Criminal competence Robert D. Miller

186

25

Criminal responsibility Robert D. Miller

213

26

Novel mental disorders Robert D. Miller

233

27

Post-conviction dispositional evaluations Robert D. Miller

239

PART 4

CIVIL LAW: STEPHEN RACHLIN

247

28

Specific issues in psychiatric malpractice Robert M. Wettstein

249

29

Psychiatric disability determinations and personal injury litigation Jeffrey L. Metzner and James B. Buck

260

30

Americans with Disabilities Act evaluations A. Jocelyn Ritchie and Howard V. Zonana

273

31

Sexual harassment Liza H. Gold

282

32

Trauma-induced psychiatric disorders and civil law Stuart B. Kleinman and Susan B. Egan

290

33

Neuropsychiatric assessments in toxic exposure litigation Daniel A. Martell

301

Contents ix 34

Civil competencies J. Richard Ciccone

308

35

Death, dying, and the law Norman L. Cantor

316

PART 5

FAMILY LAW AND DOMESTIC RELATIONS: STEPHEN B. BILLICK

329

36

Role of the psychiatric evaluator in child custody disputes Stephen B. Billick and Steven J. Ciric

331

37

Termination of parental rights and adoption Shashi Elangovan and Stephen B. Billick

348

38

Childhood attachment, foster care and placement Lisa R. Fortuna and Stephen B. Billick

366

39

Forensic evaluation of physically and sexually abused children Rodrigo Pizarro and Stephen B. Billick

377

40

Juvenile delinquency Roy H. Lubit and Stephen B. Billick

389

41

Posttraumatic stress disorder in children and adolescents: clinical and legal issues James E. Rosenberg and Spencer Eth

396

42

Forensic aspects of suicide and homicide in children and adolescents Peter Ash, Richard J. Gersh and Stephen B. Billick

407

43

The child as a witness Robert Suddath

419

44

Violent adolescent offenders Roy J. O’Shaughnessy

441

45

Adolescent sexual offenders Meg S. Kaplan and Richard B. Krueger

455

46

Neuroimaging in child and adolescent psychiatry Stephen B. Billick and Stephen P. Sullivan

463

PART 6

CORRECTIONAL PSYCHIATRY: ABRAHAM L. HALPERN AND RONNIE B. HARMON

473

47

The history of correctional psychiatry Peter N. Barboriak

475

48

Standards for the delivery of mental health services in a correctional setting B. Jaye Anno

484

49

The structure of correctional mental health services Joel A. Dvoskin, Erin M. Spiers, Jeffrey L. Metzner and Steven E. Pitt

489

50

Administrative and staffing problems for psychiatric services in correctional and forensic settings Robert T.M. Phillips and Carol Caplan

505

51

Issues in the prevention and detection of suicide potential in correctional facilities Gerald Landsberg and Pamela Morschauer

513

52

The psychosocial basis of prison riots Phyllis Harrison-Ross and James E. Lawrence

519

53

The right to refuse treatment in a criminal law setting Michael L. Perlin

526

x Contents 54

Psychiatric ethics in the correctional setting Jay E. Kantor

533

PART 7

SPECIAL CLINICAL ISSUES IN FORENSIC PSYCHIATRY: ROBERT WEINSTOCK

541

55

Malingering Phillip J. Resnick

543

56

Antisocial personality, psychopathy and forensic psychiatry William H. Reid and Maria S. Ruiz-Sweeney

555

57

Dangerousness Gregory B. Leong, J. Arturo Silva and Robert Weinstock

564

58

Violence: causes and non-psychopharmacological treatment Kenneth Tardiff

572

59

Pharmacological treatment of violent behaviors Robert H. Gerner

579

60

Violence and epilepsy: an approach to expert testimony David M. Treiman

589

61

Brain disease: forensic neuropsychiatric issues Mace Beckson and George Bartzokis

603

62

Forensic neuropsychology Charles H. Hinkin, Delany Thrasher and Wilfred G. van Gorp

612

63

Psychological and psychiatric measures in forensic practice Richard Rogers and Diane Graves-Oliver

621

64

Culture and ethnicity J. Arturo Silva, Gregory B. Leong and Robert Weinstock

631

65

Hypnosis and dissociation David Spiegel

638

66

Amnesia, amytal interviews and polygraphy John Bradford and Victoria L. Harris

643

67

Geriatric psychiatry and the law Daniel J. Sprehe

651

68

Terrorism and forensic psychiatry William H. Reid and Chris E. Stout

661

69

Torture and brainwashing Rahn Kennedy Bailey

669

70

Substance abuse and addiction Mace Beckson, George Bartzokis and Robert Weinstock

672

71

Psychopharmacological treatment of sex offenders John Bradford and Victoria L. Harris

685

72

Prosecution of assaultive patients Gary J. Maier and Stephen Rachlin

699

73

Treatment of sex offenders Gene G. Abel and Candice A. Osborn

705

74

Sexually violent predator laws Douglas E. Tucker and Samuel Jan Brakel

717

Contents xi 75

Brain imaging Rusty Reeves and Stephen B. Billick

724

76

Stalking Mohan Nair

728

77

Head trauma: a practical approach to the evaluation of symptom exaggeration Shoba Sreenivasan, Spencer Eth, Patricia Kirkish and Thomas Garrick

736

78

Psychiatric abuse in North America Alfred M. Freedman and Abraham L. Halpern

741

79

Actuarial methods for violence and sex-offender risk assessments Shoba Sreenivasan, Patricia Kirkish, Thomas Garrick and Linda E. Weinberger

750

80

ERISA, healthcare and the courts J. Richard Ciccone

756

PART 8

BASIC ISSUES IN LAW: ROBERT LLOYD GOLDSTEIN

761

81

The philosophy of law and the foundations (sources) of law Laurence R. Tancredi and Robert Lloyd Goldstein

763

82

The court system and the legislative process Robert Lloyd Goldstein

769

83

A model of constitutional adjudication: the equal protection doctrine Robert Lloyd Goldstein

774

84

An introduction to tort law Daniel W. Shuman and Michael Heinlen

780

85

An introduction to civil procedure Robert Lloyd Goldstein

789

86

An introduction to criminal procedure Harvey M. Stone, Katherine Oberlies O’Leary and Robert Lloyd Goldstein

796

87

Punishment Russell Stetler and Robert Lloyd Goldstein

804

88

Legal research on the Web Peter Ash

811

PART 9

LANDMARK CASES IN FORENSIC PSYCHIATRY: HOWARD OWENS

817

89

Introduction Howard Owens

819

90

Civil law and family law cases in forensic psychiatry Meryl B. Rome and Andrew J. Rader

820

91

Criminal law and forensic psychiatry Howard Owens

831

92

Legal regulation of psychiatry James W. Hicks

850

Index

877

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Preface to the first edition

Principles and Practice of Forensic Psychiatry is the most ambitious publication to date of the volumes edited for the Tri-State Chapter of the American Academy of Psychiatry and the Law (AAPL). The Tri-State Chapter is the first and largest of the AAPL chapters. It draws upon the academy’s resources in Connecticut, New Jersey, and New York. The Chapter provides more than fifty hours of formal training in forensic psychiatry each year through its two-semester course on forensic psychiatry and its January weekend program devoted to a specific single theme in the field. Having produced seven prior books, all in the series Critical Issues in American Psychiatry and the Law, the current volume is a natural extension of the Tri-State Chapter’s educational work. The literature in forensic psychiatry in the United States has grown, especially since the creation of AAPL in 1969. There are books to serve as introductions to forensic psychiatry for general psychiatrists, as research reports and monographs on specialized single topics, as compendia of legal cases and materials, and as advanced surveys of one or several major themes in psychiatry and the law. However, until the present volume, none of the existing books has been specifically designed to review the entire field of forensic psychiatry at a level consistent with the needs of subspecialists. The American Psychiatric Association (APA) recently decided to recognize forensic psychiatry as a subspecialty and to petition the American Board of Psychiatry and Neurology (ABPN) to offer an examination for certification in ‘added qualifications in forensic psychiatry’. The ABPN requested, and was granted, authorization from the American Board of Medical Specialties (ABMS) to proceed with the development and implementation of such a subspecialty examination. The increased professional recognition of forensic psychiatry makes greater the need for the present volume. Principles and Practice of Forensic Psychiatry is designed as a foundation work in the field. Among the intended audience are (1) fellows in a fifth-postgraduate-year fellowship program in forensic psychiatry, (2) forensic psychiatrists preparing for the subspecialty examinations of the American Board of Forensic Psychiatry or the forthcoming ‘added qualifications in forensic psychiatry’ examination of the American Board of Psychiatry and

Neurology, and (3) forensic psychiatric practitioners who want a convenient, one-volume reference book to assist them in their work. Forensic psychologists, forensic clinical psychiatric social workers, mental health administrators, and attorneys will also find the current volume to be valuable. The editors and authors have sought to set forth areas of general agreement (wherever possible) and to describe as fairly as is feasible the major contending views on those topics that lack consensus. The current book attempts to be encyclopedic in scope. The American Academy of Psychiatry and the Law and the American Academy of Forensic Sciences (AAFS) have endorsed the Accreditation Council on Fellowships in Forensic Psychiatry (ACFFP) and its standards for education and training in psychiatry and the law. The ACFFP Standards (AAPL 1982) set forth the main areas in the didactic core curriculum of forensic psychiatry as: 1 Legal Regulation of Psychiatry 2 Criminal Forensic Psychiatry 3 Civil Forensic Psychiatry, including Family Law and Domestic Relations 4 Correctional Psychiatry 5 Special Issues in Forensic Psychiatry 6 Basic Issues in Law 7 Landmark Cases in Mental Health Law It is in the sense of addresssing all of these main topics identified by the ACFFP that this book is meant to be comprehensive. Each author was asked to employ the uniform conceptual framework for the analysis of problems in forensic psychiatry that was introduced in the Tri-State Chapter’s first book (Rosner 1982): 1 Identify the specific psychiatric-legal issue(s). 2 Identify the specific psychiatric-legal criteria that are used to decide the issue(s). 3 Identify the specific clinical data that are directly relevant to the psychiatric-legal criteria. 4 Set forth and explain the specific reasoning processes to be used to apply the data to the criteria to decide the issue(s). Individual authors have adhered to this framework in their chapters to a greater or lesser degree, depending on

xiv Preface to the first edition

their subject matter. It provides a uniform reference for approaching the otherwise almost dauntingly diverse contents of the field of forensic psychiatry. Section One, History and Practice of Forensic Psychiatry, introduces the reader to the conceptual framework of the field, the definition of forensic psychiatry, such practicalities as report writing and courtroom testimony, current educational and ethical standards, issues in administration, potential abuse of psychiatry, the death penalty, psychological autopsies, criminal profiling, competence assessments, and the history of forensic psychiatry. Section Two, Legal Regulation of Psychiatric Practice, addresses informed consent, psychiatric hospitalization, outpatient civil commitment, the right to treatment, the right to refuse treatment, confidentiality and testimonial privilege, the duty to protect third parties, treatment boundaries, sexual misconduct by therapists, and the impaired physician. Section Three, Forensic Evaluation and Treatment in the Criminal Justice System, considers criminal competencies, criminal responsibility, trauma-induced psychiatric disorders, and postconviction dispositional evaluations. Section Four, Civil Law, examines psychiatric malpractice, psychiatric disability determinations, personal injury litigation, trauma-induced psychiatric disorders, evaluation of neurotoxicity, testamentary capacity, guardianships, and issues at the end of life. Section Five, Family Law and Domestic Relations, reviews child custody, abused children, abused elders, juvenile delinquency, children in need of supervision, confidentiality, trauma-induced psychiatric disorders, fetal and infant issues, juvenile suicide, psychiatric hospitalization of minors, and adolescent violence. Section Six, Correctional Psychiatry, focuses on the history of correctional psychiatry, standards for correctional mental health services, the structure of correctional

mental health services, administrative issues, suicide prevention, inmate riots, and the ethics of correctional psychiatry. Section Seven, Special Clinical Issues in Forensic Psychiatry, explores malingering, antisocial personality disorder, dangerousness, causes and treatments of violent behaviors, epilepsy and brain disease, neuropsychiatric aspects of forensic psychiatry, psychological assessment, cultural and ethnic minorities, hypnosis, multiple personality disorder, amnesia, amytal, polygraphy, geriatric forensic psychiatry, torture, brainwashing, terrorism, AIDS (acquired immunodeficiency syndrome), and sexual offenders. The Tri-State Chapter of the American Academy of Psychiatry and the Law offers Principles and Practice of Forensic Psychiatry as its latest educational contribution for students and practitioners.

ACKNOWLEDGMENT The idea for this book originated with Robert Weinstock MD, who presumed on thirty years of friendship with the editor to urge that a comprehensive textbook of forensic psychiatry be planned and implemented as a project of the Tri-State Chapter of the American Academy of Psychiatry and the Law.

REFERENCES AAPL (American Academy of Psychiatry and the Law). 1982. The Bulletin of AAPL 10(4). Rosner, R. 1982: Critical Issues in American Psychiatry and the Law. Springfield, IL: Charles C Thomas Company, 5–11.

Principles and Practice of Forensic Psychiatry was edited for the American Academy of Psychiatry and the Law Tri-State Chapter. Harold I Schwartz MD President Howard Owens MD Vice President Stuart B Kleinman MD Secretary Robert L Goldstein MD JD Treasurer Stanley R Kern MD Immediate Past President Stephen Rachlin MD Past President Henry C Weinstein MD LLB LLM Past President Richard Rosner MD Founding President

Stephen B Billick MD Councillor Daniel Greenwald MD Councillor Robert TM Phillips MD PhD Councillor Michael Scimeca MD Councillor Sheldon Travin MD Councillor John Young MD Councillor

Preface to the second edition

Principles and Practice of Forensic Psychiatry, second edition, was authorized by, and edited for, the Tri-State Chapter of the American Academy of Psychiatry and the Law (Tri-State AAPL). With one exception, every chapter in the book is either an updated, revised and expanded version of what appeared in the original edition, or is completely new. The one exception is the first chapter, which has been described as a ‘classic’ statement of the Tri-State Chapter’s approach to forensic psychiatry. The Tri-State Chapter of the American Academy of Psychiatry and the Law was conceived at the 1975 Boston, Massachusetts meeting of the national organization. There was initial skepticism among senior practitioners about the prospects for a local chapter of AAPL because a prior New York forensic psychiatry educational group, the Isaac Ray Society, had failed to thrive. There was initial opposition from national AAPL because of concern that local chapters might become competitors for members and dues. It was decided to poll by mail all of the AAPL members in New York State to determine if there was interest in the formation of a local forensic psychiatry society; the results of the poll indicated strong support. An organizational meeting was held, to which all New York State members of AAPL were invited. At that meeting, it was determined to call the new society the New York State Membership Group of AAPL because national AAPL had indicated that the then-Bylaws of AAPL did not permit the creation of official chapters. The initial organizational meeting also generated a slate of candidates for elective office in the new society, and a mail ballot was sent to all New York State AAPL members; the election yielded the first officers of the new society. It was decided that there would be no membership dues, and that all AAPL members residing or working in New York State would automatically be members of the New York State Membership Group of AAPL. The interest of AAPL members in New Jersey and Connecticut in participating in the educational programs of the New York State Membership Group led to a motion to expand the society. A mail ballot was sent to all AAPL members in New Jersey and Connecticut, inquiring if they wished to join a Tri-State Membership Group of AAPL; the results of the poll indicated firm support and the society was expanded accordingly. In subsequent

elections, care was taken to insure that at least one representative from New Jersey and one representative from Connecticut were officers of the society. The success of the Tri-State Membership Group led to a request that national AAPL authorize the creation of local chapters. An AAPL Task Force on Chapters was appointed and recommended that an appropriate Bylaws modification be developed and submitted for ratification to the AAPL membership. On May 4, 1980, following approval of the new Bylaw authorizing local chapters, AAPL authorized the Tri-State Membership Group to be re-named and recognized as AAPL’s first official chapter: the Tri-State Chapter of AAPL. The educational core of Tri-State AAPL has been its annual one-day educational program each January and its annual two-semester course on forensic psychiatry. As an out-growth of those training programs, Tri-State authorized the publication of a number of books, all in the series Critical Issues in American Psychiatry and the Law. It is a source of great satisfaction to present the latest book authorized by Tri-State AAPL, the second edition of Principles and Practice of Forensic Psychiatry.

ACKNOWLEDGEMENTS Once again, Robert Weinstock MD has been the driving force behind this publication project. It was he who presumed on 40 years of friendship to oblige the editor to plan and implement this book. Abraham Halpern MD has earned special citation for generously volunteering to read and edit the entire text for spelling, grammar and legal citations.

FURTHER READING Rosner, R. (ed.). 1982: Critical Issues in American Psychiatry and the Law. Springfield, IL: Charles Thomas Co. Rosner, R. (ed.). 1985: Critical Issues in American Psychiatry and the Law. Volume Two. New York: Plenum. Rosner, R. and Schwartz, H. (eds). 1987: Geriatric Psychiatry and the Law. New York: Plenum.

xvi Preface to the second edition Rosner, R. and Schwartz, H. (eds). 1989: Juvenile Psychiatry and the Law. New York: Plenum. Rosner, R. and Harmon, R. 1989: Criminal Court Consultation. New York: Plenum. Rosner, R. and Harmon, R. 1989: Correctional Psychiatry. New York: Plenum.

Rosner, R. and Weinstock, R. (eds). 1990: Ethical Practice in Psychiatry and the Law. New York: Plenum. Rosner, R. (ed.). 1994: Principles and Practice of Forensic Psychiatry. London, England: Chapman and Hall; republished by Edward Arnold, London, 1998.

The second edition of Principles and Practice of Forensic Psychiatry was edited for the Tri-State Chapter of the American Academy of Psychiatry and the Law. President Vice President Secretary Treasurer

Ilene Zwirn MD Norma Saunders MD Bruce David DO JD Robert Goldstein MD JD

Councillors Donald Reeves MD Catherine Lewis MD Rodrigo Pizarro MD Kenneth Tardiff MD Richard Kassner MD Alan Tuckman MD

Past Presidents Brian Ladds MD (2000–2001) Stephen Billick MD (1998–2000) Stuart Kleinman MD (1996–1998) Howard Owens MD (1994–1996) Harold Schwartz MD (1992–1994) Stanley Kern MD (1990–1992) Stephen Rachlin MD (1988–1990) Henry Weinstein MD LLB LLM (1987–1988) Richard Rosner MD, Founding President (1976–1987)

List of contributors

Gene G. Abel MD Clinical Director Behavioral Medicine Institute of Atlanta Atlanta, GA B. Jaye Anno PhD Senior Partner Consultants in Correctional Care Santa Fe, NM Peter Ash MD Associate Professor Department of Psychiatry and Behavioral Sciences Emory University Atlanta, GA Rahn Kennedy Bailey Department of Psychiatry University of Texas Health Science Center Houston, TX Peter N. Barboriak MD PhD Adjunct Assistant Professor of Psychiatry University of North Carolina at Chapel Hill School of Medicine Clinical Associate in Psychiatry Duke University School of Medicine Assistant Chief Forensic Psychiatry Service Dorothea Dix Hospital Raleigh, NC George Bartzokis MD Visiting Professor of Neurology University of California, Los Angeles Psychiatry Service Department of Veterans Affairs, Greater Los Angeles Healthcare System Los Angeles, CA Mace Beckson MD Associate Clinical Professor Department of Psychiatry and Biobehavioral Sciences University of California, Los Angeles Medical Director Psychiatric Intensive Care Unit

Department of Veterans Affairs, Greater Los Angeles Healthcare System Los Angeles, CA Stephen B. Billick MD Clinical Professor of Psychiatry New York Medical College Valhalla, NY Tim E. Botello MD MPH Professor of Clinical Psychiatry and the Behavioral Sciences Institute of Psychiatry, Law and Behavioral Science Keck School of Medicine University of Southern California Los Angeles, CA John Bradford MB MbChB DPM FFPsych MRCPsych FRCPC Professor and Head of the Division of Forensic Psychiatry The University of Ottawa Deputy Head (Forensic Psychiatry) The Royal Ottawa Healthcare Group Ottawa, ONT, Canada Samuel Jan Brakel JD Partner/Manager Isaac Ray Forensic Group Chicago, IL James B. Buck JD Partner McCrea & Buck LLC Denver, CO Norman L. Cantor JD Professor of Law Rutgers University School of Law Newark, NJ Carol Caplan MS RN CS Whiting Forensic Institute Middletown, CT J. Richard Ciccone MD Professor of Psychiatry Director, Psychiatry and Law Program University of Rochester School of Medicine and Dentistry Rochester, NY

xviii List of contributors Steven J. Ciric MD Clinical Instructor Department of Psychiatry New York University School of Medicine New York, NY Stephen Dilts MD PhD Medical Director Emeritus Colorado Physician Health Program Clinical Professor of Psychiatry University of Colorado Medical School Morrison, CO Joel A. Dvoskin PhD Clinical Assistant Professor Department of Psychiatry The University of Arizona Health Sciences Center Tucson, AZ Susan B. Egan JD Egan Law Firm New York, NY Shashi Elangovan MD Clinical Assistant Professor of Psychiatry New York Medical College Valhalla, NY Medical Director, Children Services South Beach Psychiatric Center Staten Island, NY Spencer Eth MD Professor of Psychiatry Saint Vincent Catholic Medical Center New York Medical College Valhalla, NY Alan R. Felthous MD Professor of Clinical Psychiatry Southern Illinois University School of Medicine Professor of Law Southern Illinois University School of Law Medical Director Chester Mental Health Center Chester, IL Lisa R. Fortuna MD MPH Research and Clinical Fellow Harvard Medical School Department of Pediatrics and Psychiatry Massachusetts General Hospital for Children Center for Child and Adolescent Health Policy Boston, MA Alfred M. Freedman MD Professor and Chairman Emeritus Department of Psychiatry New York Medical College Valhalla, NY

Thomas Garrick MD Chief of General Hospital Psychiatry VA Greater Los Angeles Healthcare System Professor of Psychiatry University of California, Los Angeles Los Angeles, CA Jeffrey L. Geller MD MPH Professor of Psychiatry and Director of Public Sector Psychiatry University of Massachusetts Medical School Worcester, MA Robert H. Gerner MD Department of Psychiatry Greater Los Angeles VA Associate Research Psychiatrist University of California, Los Angeles Los Angeles, CA Richard J. Gersh MD Saint Vincent Catholic Medical Center Harrison, NY Liza H. Gold MD Clinical Assistant Professor Department of Psychiatry Georgetown University School of Medicine Washington, DC Robert Lloyd Goldstein MD JD Clinical Professor of Psychiatry Department of Psychiatry College of Physicians and Surgeons of Columbia University New York, NY Diane Graves-Oliver PhD Assistant Professor of Psychology University of North Texas Denton, TX Bruce H. Gross JD PhD Associate Professor of Psychiatry, Medicine, and Pathology Institute of Psychiatry, Law and Behavioral Science Keck School of Medicine University of Southern California Los Angeles, CA Abraham L. Halpern MD Professor Emeritus of Psychiatry New York Medical College Valhalla, NY Ronnie B. Harmon MA MPhil Associate Director Forensic Psychiatry Clinic Bellevue Hospital Center New York, NY Victoria L. Harris MD MPH Assistant Professor Department of Psychiatry

List of contributors xix University of Washington Seattle, WA Phyllis Harrison-Ross MD Emerita Professor of Psychiatry and Behavioral Health Sciences New York Medical College Valhalla, NY Member, Medical Review Board New York State Commission of Correction Albany, NY Michael Heinlen JD Thompson & Knight Dallas, TX James W. Hicks MD Clinical Assistant Professor Department of Psychiatry New York University School of Medicine Director of Psychiatry Kirby Forensic Psychiatric Center New York, NY Charles H. Hinkin PhD ABPP Associate Professor Department of Psychiatry and Biobehavioral Sciences University of California, Los Angeles School of Medicine

Patricia Kirkish PhD Clinical Assistant Professor Keck School of Medicine University of Southern California Los Angeles, CA Stuart B. Kleinman MD Assistant Clinical Professor Department of Psychiatry Columbia University College of Physicians and Surgeons New York, NY Richard B. Krueger MD Medical Director Sexual Behavior Clinic New York State Psychiatric Institute Associate Clinical Professor of Psychology in Psychiatry Department of Psychiatry Columbia University College of Physicians and Surgeons New York, NY Gerald Landsberg DSW MPA New York University Shirley M. Ehrenkranz School of Social Work Director of the Institute Against Violence New York, NY

Director Neuropsychology Assessment Laboratory VA Greater Los Angeles Healthcare System Los Angeles, CA

James E. Lawrence MA Director of Operations New York State Commission of Correction Albany, NY

Steven K. Hoge MD Manakin, VA

Gregory B. Leong MD Clinical Professor Department of Psychiatry and Behavioral Sciences University of Washington School of Medicine Seattle, WA

Claudia Kachigian MD JD Assistant Professor of Clinical Psychiatry Southern Illinois University School of Medicine Medical Director Alton Mental Health Center Alton, IL Jay E. Kantor PhD Adjunct Associate Professor Department of Psychiatry New York University School of Medicine Adjunct Associate Professor Philosophy Long Island University New York, NY Meg S. Kaplan PhD Director Sexual Behavior Clinic New York State Psychiatric Institute Associate Clinical Professor of Psychology in Psychiatry Department of Psychiatry Columbia University College of Physicians and Surgeons New York, NY

Staff Psychiatrist Center for Forensic Services Western State Hospital Tacoma, WA Roy H. Lubit MD PhD Assistant Attending Psychiatrist Saint Vincent Catholic Medical Center New York Medical College Valhalla, NY David M. Mack JD MPH Attorney at Law Cummings & Lockwood LLC Health Law Group Hartford, CT Gary J. Maier MD FRCP(C) Staff Psychiatrist Mendota Mental Health Institute Clinical Assistant Professor Department of Psychiatry

xx List of contributors University of Wisconsin Madison, WI Associate Clinical Professor Medical College of Wisconsin Milwaukee, WI Daniel A. Martell PhD Clinical Assistant Professor Department of Psychiatry and Biobehavioral Sciences Neuropsychiatric Institute University of California, Los Angeles School of Medicine Los Angeles, CA Park Dietz & Associates, Inc. Newport Beach, CA Jeffrey L. Metzner MD Clinical Professor Department of Psychiatry University of Colorado Health Sciences Center Denver, CO Robert D. Miller MD PhD Professor of Psychiatry Director, Program for Forensic Psychiatry Colorado Health Sciences Center Denver, CO Director of Research and Education Institute for Forensic Psychiatry Colorado Mental Health Institute at Pueblo Pueblo, CO

Howard Owens MD Assistant Medical Director The Forensic Psychiatry Clinic Bellevue Hospital Center Clinical Associate Professor Department of Psychiatry New York University School of Medicine New York, NY Michael L. Perlin JD Professor of Law New York Law School New York, NY Robert T.M. Phillips MD PhD Adjunct Associate Professor of Psychiatry University of Maryland Schools of Medicine and Law Baltimore, MD Psychiatric Consultant Protective Intelligence Division United States Secret Service Washington, DC Debra A. Pinals MD Director, Forensic Psychiatry Fellowship and Forensic Evaluation Services Assistant Professor of Psychiatry Department of Psychiatry University of Massachusetts Medical School Worcester, MA

Adjunct Professor of Law University of Denver College of Law Denver, CO

Steven E. Pitt DO Clinical Associate Professor of Psychiatry University of Arizona Health Sciences Center Tucson, AZ

Pamela Morschauser MSW CSW Local Forensic Projects Coordinator for the NYSOMH Ulster County Mental Health Services Kingston, NY

Rodrigo Pizarro MD Assistant Clinical Professor of Psychiatry Columbia University New York, NY

Mohan Nair MD Assistant Clinical Professor Department of Psychiatry University of California, Los Angeles Los Alamitos, CA

Marvin Prosono PhD Professor Department of Sociology and Anthropology Southwest Missouri State University Springfield, MO

Katherine Oberlies O’Leary JD Attorney at Law Fairfield, CT

Stephen Rachlin MD Attending Psychiatrist The Stamford Hospital Stamford, CT

Candice A. Osborn MA LPC Director Sex Offender Service Behavioral Medicine Institute of Atlanta Atlanta, GA Roy J. O’Shaughnessy MD FRCP Clinical Director Youth Forensic Psychiatric Services Province of British Columbia Vancouver, BC, Canada

Andrew J. Rader Esq Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, PA Boca Raton, FL Rusty Reeves MD Assistant Professor of Psychiatry New Jersey Medical School University of Medicine and Dentistry of New Jersey Newark, NJ

List of contributors xxi William H. Reid MD MPH Clinical Professor of Psychiatry University of Texas Health Science Center San Antonio, TX

Robert L. Sadoff MD Clinical Professor of Psychiatry University of Pennsylvania Philadelphia, PA

Adjunct Professor of Psychiatry Texas A&M College of Medicine Temple, TX

Douglas A. Sargent MD JD Birmingham, AL

Adjunct Professor of Psychiatry Texas Tech Medical School Lubbock, TX Phillip J. Resnick MD Professor of Psychiatry Case Western Reserve University Cleveland, OH A. Jocelyn Ritchie JD PhD Research Assistant Professor Department of Psychology University of Nebraska, Lincoln Lincoln, NE Clinical Instructor Department of Psychiatry Yale University School of Medicine New Haven, CT Richard Rogers PhD ABPP Professor of Psychology University of North Texas Denton, TX Meryl B. Rome MD Private Practice Boca Raton, FL James E. Rosenberg MD Assistant Clinical Professor of Psychiatry University of California, Los Angeles School of Medicine Los Angeles, CA President Forensic Neuropsychiatry Medical Group, Inc. Encino, CA Richard Rosner MD Director, Residency in Forensic Psychiatry New York University Medical Center Clinical Professor Department of Psychiatry New York University School of Medicine Medical Director Forensic Psychiatry Clinic Bellevue Hospital Center New York, NY Maria S. Ruiz-Sweeney MD Forensic Psychiatric Fellow Isaac Ray Center Rush Medical College Chicago, IL

Harold I. Schwartz MD Psychiatrist-in-Chief and Vice President Institute of Living/Hartford Hospital Hartford, CT Associate Professor of Psychiatry University of Connecticut School of Medicine Farmington, CT Daniel W. Shuman JD Professor of Law Dedman School of Law Southern Methodist University Dallas, TX J. Arturo Silva MD Staff Psychiatrist National Center for Posttraumatic Stress Disorder Palo Alto Veterans Health Care System Palo Alto, CA Robert I. Simon MD Clinical Professor of Psychiatry Director, Program in Psychiatry and Law Georgetown University School of Medicine Bethesda, MD Ralph Slovenko JD PhD Professor of Law and Psychiatry Wayne State University Law School Detroit, MI David Spiegel MD Jack, Lulu and Sam Willson Professor Associate Chair of Psychiatry and Behavioral Sciences Stanford University School of Medicine Stanford, CA Erin M. Spiers MA Argosy University Phoenix, AZ Daniel J. Sprehe MD Tampa, FL Shoba Sreenivasan PhD Clinical Professor Keck School of Medicine University of Southern California Director of Forensic Outreach Services VA Greater Los Angeles Healthcare System Los Angeles, CA

xxii List of contributors Russell Stetler Director of Investigation and Mitigation Capital Defender Office New York, NY Harvey M. Stone LLB Partner Schlam Stone & Dolan New York, NY Chris E. Stout PsyD MBA Chief of Psychological Services Office of Mental Health Illinois Department of Human Services Adjunct Associate Professor Department of Psychiatry and Behavioral Sciences Northwestern University Medical School Chicago, IL Robert Suddath MD Assistant Professor Department of Psychiatry University of California, Davis Sacramento, CA Stephen P. Sullivan MD Clinical Assistant Professor Department of Psychiatry New York Medical College New York, NY Laurence R. Tancredi MD JD Clinical Professor of Psychiatry New York University School of Medicine New York, NY Kenneth Tardiff MD MPH Professor of Psychiatry and Professor of Public Health Weill Medical College of Cornell University New York, NY Delany Thrasher PhD Postdoctoral Fellow, Neuropsychology Department of Psychiatry and Biobehavioral Sciences University of California, Los Angeles School of Medicine Los Angeles, CA David M. Treiman MD Newsome Chair in Epileptology Director, Epilepsy Center Barrow Neurological Institute Phoenix, AZ

Douglas E. Tucker MD Associate Clinical Professor Department of Psychiatry University of California, San Francisco School of Medicine San Francisco, CA Wilfred G. van Gorp PhD ABPP Professor of Clinical Psychology Department of Psychiatry College of Physicians and Surgeons Columbia University New York, NY Linda E. Weinberger PhD Professor of Clinical Psychiatry and the Behavioral Sciences Institute of Psychiatry, Law and Behavioral Science Keck School of Medicine University of Southern California Los Angeles, CA Robert Weinstock MD Clinical Professor of Psychiatry Director, Forensic Psychiatry Fellowship Program University of California, Los Angeles Los Angeles, CA Robert M. Wettstein MD Clinical Professor Department of Psychiatry University of Pittsburgh School of Medicine Pittsburgh, PA Daniel Willick JD PhD Partner Nossaman, Guthner, Knox & Elliot LLP Los Angeles, CA Peter M. Zeman MD President Institute of Living Medical Group PC Hartford, CT Howard V. Zonana MD Professor Department of Psychiatry Yale University School of Medicine Adjunct Clinical Professor Yale Law School New Haven, CT

PART

1

History and practice of forensic psychiatry

1 A conceptual framework for forensic psychiatry Richard Rosner

3

2 Defining forensic psychiatry: roles and responsibilities Robert Weinstock, Gregory B. Leong and J. Arturo Silva

7

3 History of forensic psychiatry Marvin Prosono

14

4 Forensic psychiatric report writing J. Arturo Silva, Robert Weinstock and Gregory B. Leong

31

5 Guidelines for courtroom testimony Phillip J. Resnick

37

6 Practical issues in forensic psychiatric practice Robert L. Sadoff

45

7 Education and training in forensic psychiatry Rusty Reeves and Richard Rosner

52

8 Ethical guidelines Robert Weinstock, Gregory B. Leong and J. Arturo Silva

56

9 Liability of the forensic psychiatrist Daniel Willick, Robert Weinstock and Thomas Garrick

73

10 The death penalty Gregory B. Leong, J. Arturo Silva and Robert Weinstock

79

11 Competence assessments Robert Weinstock, Gregory B. Leong and J. Arturo Silva

85

12 Psychological autopsy Tim E. Botello, Linda E. Weinberger and Bruce H. Gross

89

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1 A conceptual framework for forensic psychiatry RICHARD ROSNER

The second edition of this volume begins with a particular conceptual framework applicable to all problems in the field. This framework is designed to organize the extraordinarily wide range of factors that must be considered in the approach to forensic psychiatry, so as to make rational analysis systematic, uniform, and more likely to be effective. The number of specific psychiatric-legal issues to consider is itself large. As set forth in the Standards for Fellowship Programs in Forensic Psychiatry (Joint Committee on Accreditation of Fellowships in Forensic Psychiatry 1982), they include:

•

•

•

Civil forensic psychiatry including, at minimum, conservators and guardianships, child custody determinations, parental competence, termination of parental rights, child abuse, child neglect, psychiatric disability determinations (e.g., for social security, workers’ compensation, private insurance coverage), testamentary capacity, psychiatric negligence and malpractice, personal injury litigation issues. Criminal forensic psychiatry including, at minimum, competence to stand trial, competence to enter a plea, testimonial capacity, voluntariness of confessions, insanity defense(s), diminished capacity, sentencing considerations, release of persons who have been acquitted by reason of insanity. Legal regulation of psychiatry including, at minimum, civil involuntary commitment, voluntary hospitalization, confidentiality, right to treatment, right to refuse treatment, informed consent, professional liability, ethical guidelines.

Similar areas are included in the more recent requirements of the Accreditation Council for Graduate Medical Education (see Chapter 7). There are many psychiatriclegal issues that forensic psychiatrists are asked to address, and my proposed model is a way to conceptualize these issues so that an opinion can be rendered. For every single psychiatric-legal issue, there is a variety of legal contexts in which the issue may occur. In the

United States, there are fifty state jurisdictions, plus the District of Columbia, federal and military jurisdictions. For each of those fifty-three jurisdictions, there is a separate set of legislated statutes, a separate sheet of judgemade case law, and a separate set of administrative codes. As a result, the legal criteria that define a psychiatric-legal issue and establish the basis for its resolution are disparate and diverse. A result of the multiplicity of issues, jurisdictions, and legal criteria is that there is no such entity as a general forensic psychiatric assessment. Rather, there is only a series of specific psychiatric-legal assessments, each focusing on one psychiatric-legal issue occurring in one legal context and determined by one set of legal criteria. These legal considerations are in addition to the array of complex clinical phenomena that are the subject matter of psychiatry. The clinical materials are themselves more diverse than is usually encountered in therapeutic practice because they address more than current, immediately accessible data. In some instances, the past is the issue; for example, what was the mental state of a defendant at the time that he or she confessed to the police? In other instances, the future is the issue; for example, which of two competing custodial parents is likely to be the better caregiver of an infant child as it grows and develops to adulthood? In some instances, there is no one immediately available to examine; for example, in determining the mental state of the deceased person at the time that he or she signed his or her alleged last will and testament. Compounding all of these matters is the need to present the practitioner’s psychiatric-legal opinion as the result of a process of reasoned deliberation that is comprehensible and convincing to the majority of rational legal decision makers. It is not sufficient to offer a sincere belief; what is required is logically compelling knowledge. In clinical practice, when a patient’s relative asks, ‘Will he recover, doctor?’ it may be appropriate to respond, ‘I certainly hope so and I will do everything that I reasonably can do toward that goal.’ However, that would most likely be an inadequate answer in a legal setting, where a reply

4 History and practice of forensic psychiatry

supported by scientific facts and statistical projections might be what is expected. These more sophisticated facts must themselves be presented in a systematic well-reasoned manner. It is not enough to know the materials; they must be organized in a logical, relevant, coherent fashion. There are simply too many factors to be considered without a method for their more manageable organization. In much the same manner that all physicians are trained to organize the diversity of clinical phenomena so as to make them more amenable to rational assessment, forensic psychiatrists are trained to organize the diversity of psychiatric legal phenomena to facilitate their consideration. For the clinical practitioner, the conceptual framework is some variation of identification, chief complaint, history of the present illness, pertinent past history, laboratory test data, differential diagnoses, and medical diagnostic impression. For the forensic psychiatric practitioner, the four-step conceptual framework is issue, legal criteria, relevant data, and reasoning process: 1 Issue: What is the specific psychiatric-legal issue to be considered? 2 Legal criteria: In the jurisdiction in which this specific psychiatric-legal issue must be resolved, what are the legally defined terms and criteria that will be used for its resolution? 3 Relevant data: Exactly what information (such as part of what might be collected by a clinician following the traditional clinical framework for data organization) is there that is specifically pertinent to the legal criteria that will be used to resolve the specific psychiatric-legal issue? 4 Reasoning process: How can the available relevant data be applied to the legal criteria so as to yield a rationally convincing psychiatric-legal opinion? Among the virtues of a conceptual framework are that it facilitates: (i) the approach to the forensic psychiatric task to be accomplished; (ii) communication among colleagues insofar as all colleagues are familiar with and use the same framework for the consideration of the forensic psychiatric work to be done; (iii) the identification of areas that are unclear (e.g., the precise legal criteria for the specific issue); (iv) the drawing of attention to areas that are incompletely addressed (e.g., the full range of clinical and factual data that are pertinent to the specific legal criteria); and (v) the determination of what are the bases of disagreements between different forensic psychiatrists (e.g., disagreements about the legal issue, about the legal criteria, about the relevant data, and about the reasoning processes). It may be useful to give examples of how this approach is of practical value (Rosner 1982a, 1982b, 1982c, 1985, 1987, 1990). Suppose that a forensic psychiatrist is contacted by an attorney and is asked to provide an evaluation and report regarding a defendant. The forensic psychiatrist should ask the attorney exactly which psychiatriclegal issue or issues are to be addressed. Although the

defendant is only one person, many distinguishable issues may be involved. The attorney may want an evaluation and opinion about a possible insanity defense, or about the defendant’s mental competence to waive his or her Miranda rights at the time of a supposedly voluntary and knowing confession, or about the defendant’s current competence to stand trial, or about the defendant’s future competence to abide by the terms of probation. If the forensic psychiatrist does not know exactly which issue to consider, there is no way to proceed with the evaluation. Pursuing the wrong issue would waste time and money and would jeopardize the outcome of the defendant’s case. It is incumbent upon the forensic psychiatrist to clarify for the lawyer that there is no such thing as a general forensic psychiatric examination, and that the lawyer must specify which issue is to be the focus of the psychiatric-legal evaluation. If need be, several issues can be separately addressed, but each must be understood to be a distinguishable concern. The forensic psychiatrist must also obtain from the lawyer the exact legal criteria, as established by statute, case law, and administrative code, that determine the specific issue in the jurisdiction that will hear the case. It may be easier to explain this point by analogy to the variable criteria that have been used at different times to make psychiatric diagnoses. Clinicians know that the American Psychiatric Association has employed several different manuals of diagnostic criteria over the course of time. To say that someone suffers from some type of schizophrenia according to the first (American Psychiatric Association 1952), second (American Psychiatric Association 1968), third (American Psychiatric Association 1980), third revised (American Psychiatric Association 1987), fourth (American Psychiatric Association 1994), fourth text revision (American Psychiatric Association 2000) and forthcoming editions of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association is to say different things about that person depending on which set of diagnostic criteria is used. It is possible that a person might be regarded as suffering from some form of schizophrenia according to one set of diagnostic criteria used at one time, but not according to a different set of diagnostic criteria used at a different time. In addition, the criteria used for clinical diagnoses may differ from nation to nation, although some standardization is achieved in those nations that agree to use the World Health Organization’s periodically revised International Classification of Diseases (ICD). The clinical diagnosis is determined by the criteria used to make the diagnosis. In an analogous manner, the legal criteria used to determine an issue have varied over time within any single place of jurisdiction, just as the clinical diagnostic criteria have varied over time within the United States. In addition, the legal criteria vary from place of jurisdiction (e.g., New York) to place of jurisdiction (e.g., Washington, DC) at the same time, depending on which legal place of jurisdiction is

A conceptual framework for forensic psychiatry 5

hearing the case. While it is uncommon for a forensic psychiatrist to have to be concerned with which legal criteria were used in the past, it is both routine and of great importance to be concerned with which legal criteria are used in the specific place of jurisdiction that will hear the case. A forensic psychiatrist must ask the attorney who wishes to retain them exactly which legal criteria are to be used to determine the specific psychiatric-legal issue in the jurisdiction that will hear the case. For example, the legal criteria to determine whether or not a defendant is not guilty by reason of insanity (NGRI) may vary from one jurisdiction to another. In one jurisdiction, the criteria for NGRI may only address whether or not the defendant was able to appreciate the nature and quality of his/her act, whereas in another jurisdiction that criteria may be supplemented by whether or not the defendant was able to conform his/her conduct to the requirements of the law. A defendant who might be found guilty in the first jurisdiction might be found NGRI in the second jurisdiction. A forensic psychiatrist practicing in two adjacent states might reach a different decision about the same case, depending on the location of the trial. At minimum, the specific psychiatric-legal issue and the specific legal criteria will establish the time frame containing the relevant psychiatric data. The forensic psychiatrist may have to obtain data about the past, present, or future. Is the time frame an assessment of the defendant’s mental state at the (past) time of the alleged offense for a potential NGRI defense? Is it an assessment of the defendant’s mental state at the (not quite so past) time of his/her confession to the police so as to challenge the validity of the confession? Is the time frame the defendant’s current mental state for a determination of his/her competence to stand trial? Is it the defendant’s future mental state so as to determine if he/she will be able to comply with the conditions of possible probation? Importantly, the legal criteria will often set forth exactly what kinds of information a person must have had (past), has (present), or will need to have (future) in order to resolve the specific psychiatric-legal issue. For NGRI, in some jurisdictions, the person must have had (past) knowledge of what he or she was doing and must have had (past) knowledge that what he/she was doing was legally wrong. For competence to stand trial, in some jurisdictions, the defendant must have (present) knowledge of the charges against him/her, and must have (present) knowledge of the nature of the legal proceedings against them. These criteria direct the forensic psychiatrist to make specific inquiries regarding the defendant’s knowledge, and appreciation of that knowledge, at the relevant time period. Often the legal criteria will also set forth the exact mental capacities a person must have had (past), has (present), or will need to have (future) to resolve the specific psychiatric legal issue. For NGRI, in some jurisdictions, the person must have had the (past) capacity to conform his/her conduct to the requirements of the law. For competence to

stand trial, in some jurisdictions, the person must have the (present) capacity to cooperate with an attorney in his/her own defense. These criteria direct the forensic psychiatrist to make specific inquiries regarding the defendant’s noninformational mental abilities at the relevant time period. The use of the forensic psychiatric conceptual framework can assist the practitioner in locating potential weaknesses in the case they are developing. It may be that the attorney has been insufficiently specific regarding the exact psychiatric legal issue to be explored. It may be that the legal criteria are not set forth with clarity and exactitude. It may be that relevant data are lacking. It may be that the practitioner’s reasoning processes have been less than logical. A lack of training in logic may underlie the difficulty that some forensic psychiatrists may have in explaining the reasoning processes that are the bases of their psychiatric-legal opinions. In general, the structure of psychiatric-legal reasoning is familiar: The first step is the assertion of a law or law-like proposition. The second step is the assertion of a factual proposition. The third step is a deductive inference from those two propositions. For example: (i) Humans are the only rational bipedal animals; (ii) Socrates is a rational bipedal animal; (iii) therefore, Socrates is human. If we apply this method to a psychiatric-legal example, we can see how the reasoning process works: 1 Persons who are competent to stand trial have the capacity to understand the charges against them, the capacity to understand the nature of the court proceedings against them, and the capacity to cooperate with an attorney in their own defense. 2 John Doe has the capacity to understand the charges against him, the capacity to understand the nature of the court proceedings against him, and the capacity to cooperate with his attorney in his own defense. 3 Therefore, John Doe is competent to stand trial. Once the structure of the reasoning process is set forth, it is relatively easy to apply in the formulation of any psychiatric-legal opinion. This structured reasoning process also reveals potential sources of legal challenge during cross-examination. An opposing attorney may challenge the truth of either of the two major premises, or may challenge the validity of the deductive inference. All premises may be challenged and all deductive inferences may be challenged; the question is whether or not such challenges will be successful. A soundly reasoned opinion is more likely to be successfully sustained than an opinion that is not based on sound reasoning. This review of the reasoning process that must sustain a psychiatric-legal opinion demonstrates why it is so important to be certain of the specific legal criteria that determine the issue. The first premise is the statement of the specific legal criteria (i.e., the law or law-like proposition); the second premise is the summation of the available information

6 History and practice of forensic psychiatry

that pertinently bears on the legal criteria (i.e., the factual proposition). If the first premise is wrong – that is, if the legal criteria used are incorrect – then the opinion is unsupported logically. If the second premise is wrong – that is, if the available data are not relevant to the legal criteria – then the opinion is unsupported logically. It is also possible that the two premises are correct and the deductive inference is wrong. For example: (i) All humans are rational bipedal animals; (ii) Socrates is a rational bipedal animal; (iii) therefore, Socrates likes chocolate. A horrible example of such faulty deductive inference making in forensic psychiatry might be: 1 Persons who are capable of understanding the charges against them, capable of understanding the nature of the court proceedings against them, and capable of cooperating in their own defense are competent to stand trial. 2 Richard Roe understands the charges against him, understands the court proceedings against him, and is able to cooperate in his own defense. 3 Therefore, Richard Roe was legally sane (and legally responsible) at the time when he committed the offense. The conceptual framework for forensic psychiatry will assist a competent practitioner of forensic psychiatry in the cogent organization and presentation of the rational processes that are the foundation of his or her psychiatriclegal opinion. Just as the conceptual framework used by medical practitioners is not a guarantee that they will reach the correct diagnoses, the conceptual framework used by forensic psychiatrists is not a foolproof technique for reaching psychiatric-legal opinions. Rather, each is a tool for the organization of large quantities of complex data. In skilled hands, a tool will produce quality goods; in unskilled hands, a tool will produce shoddy results.

REFERENCES American Psychiatric Association. 1952: Diagnostic and Statistical Manual of Mental Disorders. 1st edition.

American Psychiatric Association. 1968: Diagnostic and Statistical Manual of Mental Disorders. 2nd edition. American Psychiatric Association. 1980: Diagnostic and Statistical Manual of Mental Disorders. 3rd edition. American Psychiatric Association. 1987: Diagnostic and Statistical Manual of Mental Disorders. 3rd revised edition. American Psychiatric Association. 1994: Diagnostic and Statistical Manual of Mental Disorders. 4th edition. American Psychiatric Association. 2000: Diagnostic and Statistical Manual of Mental Disorders. 4th edition, text revision. Joint Committee on Accreditation of Fellowships in Forensic Psychiatry. 1982. Standards for fellowship programs in forensic psychiatry. Bulletin of the American Academy of Psychiatry and the Law 10(4). Rosner, R. 1982a: A conceptual model for forensic psychiatry. In Rosner, R. (ed.), Critical Issues in American Psychiatry and the Law. Springfield, IL: Charles Thomas Company, 5–11. Rosner, R. 1982b: Medical disability compensation: a practicum. In Rosner, R. (ed.), Critical Issues in American Psychiatry and the Law. Springfield, IL: Charles Thomas Company, 71–81. Rosner, R. 1982c: Misguided loyalty, therapeutic grandiosity and scientific ignorance: limitations on psychiatric contributions to family law and juvenile justice. In Rosner, R. (ed.), Critical Issues in American Psychiatry and the Law. Springfield, IL: Charles Thomas Company, 161–70. Rosner, R. 1985: Legal regulation of psychiatry and forensic psychiatry: clarifying categories for clinicians. In Rosner, R. (ed.), Critical Issues in American Psychiatry and the Law, vol. 2. New York: Plenum, 3–17. Rosner, R. 1987: Psychiatric assessment of competence to choose to die: proposed criteria. In Rosner, R. and Schwartz, H. (eds), Geriatric Psychiatry and the Law. New York: Plenum, 81–9. Rosner, R. 1990: Forensic psychiatry: a subspecialty. In Rosner, R. and Weinstock, R. (eds), Ethical Practice in Psychiatry and the Law. New York: Plenum, 19–29.

2 Defining forensic psychiatry: roles and responsibilities ROBERT WEINSTOCK, GREGORY B. LEONG AND J. ARTURO SILVA

Forensic psychiatry operates at the interface of two disparate disciplines: law and psychiatry. Although most cases in forensic psychiatry practice engender no conflicts, functioning at the interface of these two disciplines can lead to confusion and ethical dilemmas (see Chapter 8). Forensic psychiatry is officially recognized by the American Board of Medical Specialties as a subspecialty of psychiatry. Definitions of forensic psychiatry serve to clarify and delineate roles and boundaries. Appelbaum (1997) bases the ethics of forensic psychiatry on the principles of truth telling, respect for persons, and justice. Griffith (1998) proposes a narrative approach that takes the power differential into account and examines the narrative of individuals of the non-dominant culture. Candilis et al. (2001) integrates these approaches with a robust conception of professional integrity. He favors principles infused with the historical narrative of medicine as a healing profession that includes traditional medical values and an individual’s personal narrative. Appelbaum (1997), Candilis and co-workers (2001), and Weinstock (2001) each consider the need to balance conflicting responsibilities. In the forensic context, Weinstock agrees the duty to the legal system is primary, but that it needs to be balanced by a secondary duty to the evaluee that in some situations can become the dominant consideration. Such a circumstance could require a forensic psychiatrist to withdraw from a case if ethical concerns preclude a search for truth. These issues are discussed further in Chapter 8. The following is the definition of forensic psychiatry adopted by the American Academy of Psychiatry and the Law (AAPL) as expressed in its ethical guidelines (originally developed by the former American Board of Forensic Psychiatry (ABFP). The definition states that: Forensic psychiatry is a subspecialty of psychiatry in which scientific and clinical expertise is applied to legal issues in legal contexts embracing civil, criminal, correctional or legislative matters; forensic psychiatry

should be practiced in accordance with guidelines and ethical principles enunciated by the profession of psychiatry.

The definition expands on and replaces the definition promulgated by Pollack (1974) that ‘Forensic psychiatry is limited to the application of psychiatry to evaluations for legal purposes. Psychiatric evaluation of the patient is directed primarily to legal issues in which he is involved, and consultation is concerned primarily with the ends of the legal system, justice, rather than the therapeutic objectives of the medical system.’ Pollack distinguished forensic psychiatry from the broader category of psychiatry and law that he ‘considered the broad, general field in which psychiatric theories, concepts, principles, and practice are applied to any and all legal matters’ (Pollack 1974). According to him, this category includes both forensic psychiatry and community psychiatry. Although concerned with legal issues or legal patients, community psychiatric involvements in his opinion ‘lean toward the traditional ends of psychiatry, that is, toward healing or otherwise helping the patient.’ Similar distinctions have been made between forensic psychiatry and the legal regulation of psychiatry (Rosner 1985). Rosner believes that forensic psychiatrists function outside of their role as physicians, and that it is ethical so long as they make it clear to others that they are not the evaluee’s personal physician. He makes an analogy between the forensic psychiatric role and the psychiatrist bargaining with a car dealer, without considering the salesperson’s interests. However it can be argued that, in contrast to buying a car, the forensic psychiatrist in his or her professional role is hired specifically because of being a psychiatrist, and therefore can be seen as retaining his or her professional responsibilities (Foot 1990). He is also clearly using psychiatric and medical skills in his conduct of a forensic psychiatric evaluation. Candilis and co-workers (2001) believe that society expects some retention of medical

8 History and practice of forensic psychiatry

values when physicians participate in the legal system. Diamond (1992) also thought that forensic psychiatrists should not blindly accept all legal ends in their professional role. He believed that the forensic psychiatrist has a fiducial responsibility to the legal system. In his opinion – much like a psychiatrist owes a fiduciary responsibility to a patient to do only that which he or she believes in their professional judgment is best, rather than merely doing what the patient demands – the relationship between psychiatry and the law should also be fiduciary. According to Diamond (1992),‘the psychiatrist is no mere technician to be used by the law as the law sees fit, nor is the science, art, and definitions of psychiatry and psychology to be redefined and manipulated by the law as it wishes.’ In his opinion, the psychiatric expert should not merely deliver information regardless of any negative consequences. Surveys of forensic psychiatrists suggest that most find traditional medical ethics relevant to their functioning as forensic psychiatrists (Weinstock et al. 1990; Weinstock et al. 1991). Additionally, the recognition of forensic psychiatry as a subspecialty and the decision by organized forensic psychiatry to have the American Psychiatric Association (APA) enforce ethical conduct in forensic psychiatry under their framework are most consistent with seeing medical ethics and goals as relevant. The AAPL is in the process of revising its ethical guidelines to make them consistent with the American Medical Association’s recently revised medical ethics principles. However, the ethical debates about the proper roles and responsibilities of forensic psychiatrists continue. The current AAPL definition of forensic psychiatry, as explicated in its ethical guidelines, does not take a position on the proper goals and values of forensic psychiatry. Diamond and Pollack will be contrasted in this chapter, since both were highly respected contemporaries who wrote extensively on this continuing debate. These issues have been a matter of contention for a long time, and are reflected in the contrasting views of these two men. Both Diamond and Pollack agreed that forensic psychiatry applies psychiatric theories and practices to people and their legal issues for legal purposes. However, they differed insofar as Pollack believed the ends are legal ends. Diamond believed forensic psychiatrists should retain their medical and psychiatric ends in the forensic role and work towards making the legal system more therapeutic and less vengeful. This concept has a legal parallel in the concept of therapeutic jurisprudence (Stolle et al. 2000). The definition lists the differing contexts and functions of a forensic psychiatrist. The emphasis is on the legal context of forensic psychiatric practice. However, forensic psychiatry has generally come to include and encompass all the issues and functions at the interface of psychiatry and law, including the legal contexts surrounding psychiatric practice, as demonstrated by this textbook. There still are some forensic psychiatrists, however, who believe the two functions should be separated.

Lastly, the definition does clarify that the ethics of forensic psychiatry are to be determined by guidelines and ethical principles enunciated by the profession of psychiatry. It thus is clear that it is not the province of lawyers or courts to determine the guidelines and ethical principles of how forensic psychiatry is to be practiced. The courts can decide what is legal, but not what is professionally responsible or ethical for forensic psychiatry. Ethical guidelines and requirements can and do sometimes exceed what the law requires. The psychiatric profession can consider unethical, and provide sanctions for, behavior the courts consider permissible (see Chapter 8). Definitions, of course, do not themselves settle conflicts or differences of opinion, but can represent arbitrary distinctions or merely wishes or preferences for how a specific forensic psychiatrist wishes to function. Despite Pollack’s philosophy, he himself refused to participate in capital cases after the Sirhan case (Curran and Pollack 1985). He apparently agreed with Diamond that forensic psychiatrists should refuse to participate in cases in which they do not agree with the legal system’s goals. However, unlike Diamond, he believed he needed to be prepared to support either side if he became involved in a case. Diamond believed he needed to be prepared to support only one side, though only if he could do so with total honesty because total disclosure of the facts supported his position. Unfortunately though, some forensic psychiatrists are not as open and honest as Pollack and Diamond. They may intentionally be willing to create false impressions and a few may even be willing to be ‘hired guns’ (Diamond 1990). They may give any opinion desired by the hiring attorney and make the best case possible for that opinion regardless of their true beliefs, or be so committed to a cause that they will misrepresent the data to support their cause. This role may be appropriate for an attorney, but not for an expert witness who – unlike an attorney – takes an oath to tell the whole truth.

FORENSIC EVALUATIONS It is essential for ethical reasons in any forensic psychiatric interview to inform an evaluee of confidentiality limitations, and for whom and what purpose the interview is being conducted. This requirement differs from a clinical evaluation performed for the patient’s benefit in which confidentiality is expected and generally is maintained. However, even in the clinical setting, confidentiality exceptions should be explained when they appear potentially relevant (see Chapter 8). It is important to obtain corroborating evidence. It is necessary to see the data obtained by both the prosecutor and the defense in a criminal case, examine police records, interview other persons who might have relevant information, and review past medical, social, and psychiatric records. In a civil case it

Defining forensic psychiatry: roles and responsibilities 9

also is necessary to explore both sides and review relevant documents. Because of the legal purpose of the forensic interview, an evaluee has rational reasons to malinger, and this possibility must be checked by corroborating data (see Chapter 55). Such data also should be obtained not only in an effort to be objective but also in order to be prepared for cross-examination. A careful evaluation is necessary, and an adequate evaluation requires time. Superficial evaluations can miss pathology or contradictory data. Although AAPL’s ethical guidelines (1995) eliminated the requirement of impartiality as impossible to achieve, they emphasize the need to strive for objectivity. Striving for objectivity includes the need to search for data that might contradict the forensic psychiatrist’s initial opinion and/or biases. ‘Honesty’ has been substituted for ‘impartiality’ in AAPL’s ethical guidelines (see Chapter 8). Diamond (1956) called attention to the fact that seriously mentally disordered persons commonly deny their illness. Simulation of sanity can be just as great a problem as the simulation of mental illness usually considered in assessing malingering. Both may be missed in a superficial evaluation. An evaluee may have such a need to deny mental illness or psychiatric symptomatology that denial may occur even if it would be in a defendant’s legal selfinterest to do otherwise. There is a clear risk in forensic psychiatry of confusing professional expertise with biases about moral issues. To quote Pollack (1974), ‘in forensic psychiatry, the expert applies his material to social ends, all of which are intimately related to moral values.’ Because psychiatric material can be largely subjective, interwoven with social variables, and influenced by a variety of cultural factors, what is presented as psychiatric data and opinion may easily disguise and conceal underlying value judgments.

ROLE OF THE FORENSIC PSYCHIATRIST Pollack was a proponent of what possibly is the current dominant approach to forensic psychiatry, at least in most theoretical discussions. Diamond, however, was a proponent of an alternative but equally legitimate approach that may in reality informally be the dominant position of forensic psychiatrists, at least as reflected in surveys (Weinstock et al. 1991). Most forensic psychiatrists do not see themselves as functioning totally outside of their medical and psychiatric roles. They use their medical and psychiatric skills and techniques in the forensic role. Unlike their role in areas unrelated to their professional expertise such as negotiating with a car dealer, forensic psychiatrists are hired because of their professional skills and credentials. They can be perceived as functioning in a medical role despite any disclaimers and because they conduct a psychiatric assessment. That is why sensitivity to slippage is so important and why AAPL’s ethical guidelines require

sensitivity to an evaluee perceiving the forensic psychiatrist in a therapeutic role. In his professional role, Pollack believed that the forensic psychiatrist also should become aware of social policy considerations. Diamond agreed insofar as such responsibility includes making an effort to become aware of relevant legal statutes and relevant court decisions before offering an expert opinion as a forensic psychiatrist. Pollack wanted the forensic psychiatrist to ascertain social policy considerations and try to determine the intent of the courts and legislators. He made this attempt in the common situations in which the legal criteria are unspecified, unclear, or ambiguous. In his opinion, the forensic psychiatrist has an obligation to present and expose his or her reasoning so that a trier of fact could understand the basis for his/her opinion, detect any biases, and disagree if necessary. Pollack would not try to expand or modify a legal concept in his forensic psychiatric capacity. He would try to overcome biases, including what he considered the psychiatrist’s usual ‘therapeutic bias.’ He would attempt to give an impartial objective opinion in his role as consultant to the legal system (Pollack 1974) and not participate in cases in which his bias was strong. Although Diamond agreed that his reasoning should be exposed, in contrast, he would interpret ambiguities in the legal criteria to be consistent with the values of the medical profession but would be totally honest about doing so. Diamond, himself, was solely a defense psychiatrist in criminal cases. He would participate only in cases in which an effort would be made by the defense attorney to present the whole psychiatric truth. In most cases, he would refuse to participate after being consulted, because he did not think an honest opinion would help the side that wanted to hire him, or he did not want to be part of a legal strategy that would hide relevant information. Although he wanted to help a defendant, truth and honesty were even higher values. Diamond interpreted legal ambiguities in a manner consistent with his view of his fiduciary responsibility. Although he had a bias in favor of a defendant’s welfare, he accepted the biases of others who favor law and order and the protection of society. However, in his opinion, honesty was crucial. Although few forensic psychiatrists would go so far as to never participate for the prosecution in any criminal case, many forensic psychiatrists agree with other aspects of Diamond’s approach or share his concerns about facilitating a death penalty sentence (Weinstock et al. 1992). Many care how their testimony will be used and the position they would be willing to support in a death penalty or other cases. Some have qualms about helping a killer avoid punishment. Diamond considered impartiality and objectivity impossible (Diamond 1959), and thought that the honest forensic psychiatrist should acknowledge the absence of both. Even if a forensic psychiatrist started out truly impartial, the need to defend his or her opinion and a wish to have his/her team ‘win’ in the adversary battle turns him

10 History and practice of forensic psychiatry

or her into a biased adversary as the case proceeds. Even though some commentators state the witness on the stand must do his or her best to impartially preserve the truth (Halleck et al. 1984), Diamond considered impartiality impossible, even if the witness is totally truthful from a subjective standpoint. The truth can have many alternative perspectives. Katz (1992) recommends ‘disciplined subjectivity’ as a more realistic goal instead of impartiality or objectivity. Even if the more scientific aspects of psychiatry might be relatively objective, much of psychiatry is subjective. The interpretation of the legal issue and the application of psychiatric data to it are especially subjective. Honesty in Diamond’s (1990) opinion is what separates the honest advocate from a ‘hired gun.’ AAPL in its ethical guidelines (1995) accepts the impossibility of impartiality, but requires honesty and an effort to strive for objectivity. Diamond was unashamedly biased, but honest. Despite these considerations, forensic psychiatrists frequently are asked to indicate how often they have testified for the different sides in a legal case. Federal courts are now even requiring such disclosure. This record of cases is requested to examine for bias in the forensic expert. Developing a record of testifying for both sides is often seen as demonstrating a lack of bias, but can be irrelevant to honesty. Principled, though biased, professionals can be honest. The absence of bias based on principle or values does not negate the ‘hired gun’ who makes a record of testifying on both sides because he or she is willing to testify for whichever side pays their fee regardless of their true opinion or the merits of the case. In reality, honesty needs to be otherwise demonstrated. Claims of impartiality can reflect dishonesty or lack of selfinsight. Diamond distinguished between the honest advocate and ‘hired gun’ insofar as the ‘hired gun’ is dishonest (Diamond 1990). The U.S. Supreme Court in Ake v. Oklahoma (1985) recognized bias and even advocacy implicitly by stating that defendants in capital cases needed an expert to help their side. Many forensic psychiatrists in civil cases testify almost always for the plaintiff or defense. Although most insurance companies wish to have a truly independent medical examiner to prevent their wasting money on indefensible cases, that sometimes is not the case. Some forensic psychiatrists contend that a number of insurance companies do not want forensic psychiatrists who ever testify for the plaintiff ’s side. Some such forensic psychiatrists may be ‘hired guns.’ However, most who testify for only one side in such cases probably choose a side most consonant with their personality or biases, and are probably basically honest. Testifying out of interest in the issues and not bias should usually lead to some record of testifying for both sides, even if not equally distributed. If doing work solely for one side, the honest expert should find in many cases that the facts do not support the side that retains them. According to AAPL’s ethical guidelines (1995), bias is accepted as inevitable, but it is only unethical if it leads to dishonesty or to no effort to be objective.

Hopefully, forensic psychiatrists do not agree to make the best case possible for the weaker side since honesty would require stating in such cases that the facts support the opposing side, and few attorneys would want an expert to come up with such an opinion in a public forum. Making the best case for a side regardless of stronger contradictory facts is an approach that is appropriate and ethical for attorneys. However, this is an essential difference that highlights the difference between the role of the attorney and expert witnesses, and legal and forensic psychiatric ethics. Unlike attorneys, an expert witness takes an oath to ‘tell the whole truth.’ Legal ethics and what is permissible legally cannot be sufficient. It is necessary for experts to appreciate that their roles are different from attorneys. It is ethical to highlight and emphasize the strong parts of a case, though such emphasis should not lead to distortion of the level of confidence in an opinion or a denial of uncertainty despite pressures from attorneys to appear certain. The acceptable dividing line, however, sometimes can become unclear. The integrity of the expert should prevent him or her from distorting a case in order to please an attorney. An example of differing approaches and biases is shown in their contrasting interpretation by Pollack and Diamond of the M’Naghten insanity defense in California which, except for a brief period between 1978 to 1982, was the insanity standard and is the current standard in most states (see Part 3, ‘Forensic Evaluation and Treatment in the Criminal Justice System’). Pollack’s interpretation tended to favor the prosecution, while Diamond’s clearly favored the defense. Pollack described social policy considerations as requiring that ‘knowing’ the nature and quality of the act in an insanity defense is broader than a simplistic, atomistic, childish level of comprehension, but does not encompass the maximum breadth, scope, and maturity of fullest comprehension (Pollack 1974). Diamond, in contrast, interpreted ‘know’ to mean appreciate, comprehend, or realize the act’s full meaning. Some jurisdictions have adopted the word ‘appreciate’ instead of ‘know’ to indicate a broader view of the word ‘know.’ The APA implicitly followed Diamond’s interpretation when subsequent to the Hinckley decision the APA favored a move away from the American Law Institute (ALI) insanity defense to what on the surface was a more stringent test. The APA claimed that anyone found insane under the ALI defense could be found insane under more stringent defenses like M’Naghten. Some states have used the term ‘appreciate’ to indicate a broader interpretation of ‘know.’ However, the term ‘know’ itself lends itself to varying interpretations. Diamond opined that a literal interpretation of M’Naghten would either encourage perjury or force the psychiatrist to ‘become a puppet doctor, used by the law to further the primitive and vengeful goals demanded of our society.’ He thought that if a literal sense of ‘know’ is employed, ‘just about almost every defendant, no matter how mentally ill, no matter how far advanced his

Defining forensic psychiatry: roles and responsibilities 11

psychosis, knows the difference between right and wrong in the literal sense’ and the psychiatrist becomes an expeditor of the death penalty (Diamond 1961). Diamond preferred not to resort to semantics and to an arbitrary all-or-none insanity defense, but preferred to focus on ‘diminished capacity.’ Although this defense was officially eliminated in California, it has surfaced in some other states. A mens rea defense known as diminished actuality still exists in California for certain crimes in which psychiatric testimony is permitted as to whether the defendant actually had formed the requisite intent, although the psychiatric expert is proscribed from expressing an opinion on the ultimate issue itself. The most significant change was the abolition of the expanded definitions of malice and premeditation that Diamond helped the California courts develop by presenting facts that made the older definitions seem inappropriate. It is important in forensic psychiatry to give explanations for an opinion and not just conclusory statements. Opinions and expertise in psychiatric diagnosis should not be confused with expertise regarding the application of psychiatry to legal issues. Expertise in the former does not ensure expertise in the latter, especially if a psychiatrist has not had specialized training in forensic psychiatry or has not demonstrated expertise by passing a certifying examination. The interpretation of the legal issue itself, moreover, can be subject to varying interpretations as shown by the varying yet honest approaches of both Pollack and Diamond. It is misleading in many cases to claim that there is only one right way to interpret legal criteria. Not distinguishing the difference between psychiatric and legal facets can disguise a moral judgment as professional medical and psychiatric expertise. Pollack tried to interpret the relevant legal issue consistent with precedent setting interpretations. Diamond tried to expand the law by presenting facts that might show existing interpretations of the legal criteria inappropriate. Most attorneys and forensic psychiatrists consider it the responsibility of the forensic psychiatrist to put a ‘spin’ on the data and highlight and emphasize facts favorable to their side and de-emphasize or even ignore data that are not. Although some such advocacy is probably inevitable, it is important not to so distort the data that the testimony approaches the level of a ‘hired gun.’ Many forensic psychiatrists leave all contradictory information for crossexamination. However, in the absence of a good crossexamination, the ‘whole truth’ may never be revealed. Some have questioned the propriety of psychiatrists expressing opinions on ultimate legal issues. Although both Pollack and Diamond believed that forensic psychiatric expertise should include the ability to express an opinion on ultimate legal issues, some commentators (Katz 1992) advocate that psychiatrists should avoid expressing an opinion on the ultimate legal issue. This is a minority position in forensic psychiatry at the present time, but has been adopted by the law for certain legal issues in some jurisdictions.

RESPONSIBILITIES OF THE FORENSIC PSYCHIATRIST Controversy exists regarding to whom the forensic psychiatrist owes a duty. This problem in part is due to the fact that a traditional doctor–patient relationship does not apply. Stone (1992) believes that psychiatry enters an ethical morass when it leaves the clinical situation, such as in managed care or in forensic psychiatry. According to Appelbaum (1990, 1997), forensic psychiatrists lose the primacy of the duties of beneficence and nonmaleficence owed by treating physicians to their patients. Instead, the duties of truth and respect for persons, and the goal of justice achieve primacy in the legal system. Stone (1984) does not believe that ‘truth’ solves forensic psychiatry’s problems such as the good clinician seducing a patient into false trust. Surveys of forensic psychiatrists indicate that an overwhelming majority still believe that traditional medical values play a role in the functioning of forensic psychiatrists (Weinstock et al. 1991). Despite the survey findings, controversy exists in the profession regarding this issue (Weinstock et al. 1990). In modern times, even treating psychiatrists owe a responsibility to society as well as to the patient, for example with child abuse reporting. It probably is most consistent with survey results and is reasonable to view the forensic psychiatrist like the treating psychiatrist as having multiple agency responsibilities such as to the courts, society, the attorney who retained him or her, and the evaluee, regardless of who requests the psychiatric consultation. The difference is probably best characterized as a difference in priority or primacy, with the forensic psychiatrist, unlike the treating psychiatrist, giving primacy to legal questions and specific forensic duties like truth, respect for persons and primacy (Appelbaum 1997). However, secondary medical responsibilities remain. These in some instances can be so important that they can become determinative of ethical action (Candilis et al. 2001; Weinstock 2001). In some death penalty roles, the conflict most appropriately may require nonparticipation. Although controversy still exists, survey results best support a position of multiple agency and multiple responsibility for a forensic psychiatrist. Even though many forensic psychiatrists believe they owe a duty and responsibility only to the person who pays their fee so long as they make their role and allegiances clear at least once to an evaluee, survey results imply that this position may actually be a minority one among forensic psychiatrists. Moreover, slippage of a warning may occur if the forensic psychiatrist is a good clinician who inspires trust. Although frequently claimed, it is unclear why a forensic psychiatrist should owe a duty solely to the person paying the fee when even treating psychiatrists are unable to have the luxury of such simple single allegiances. Multiple responsibilities have become a part of all psychiatric practice.

12 History and practice of forensic psychiatry

Other issues regarding the responsibilities of the forensic psychiatrist are discussed in Chapter 8. However, it is important in fairness not to hold the profession of forensic psychiatry responsible for unpopular legal decisions that may result from many factors. Sometimes the decisions may be unpopular but valid, or the judicial system may limit the evidence an expert is permitted to introduce. Unpopular insanity acquittals have led to changes in the law and illegitimate bad press for forensic psychiatry. Sometimes forensic psychiatrists unfairly are blamed for problems presented by the adversary legal system and for the ‘battle of experts.’ Psychiatrists have legitimate differences of opinion. The ‘battle of experts’ exists for all expert witnesses in all disciplines, and is by no means unique to forensic psychiatry. Sometimes there is a risk of blaming the entire profession of forensic psychiatry when the public dislikes a decision or the testimony of a particular expert, and newspapers and politicians use such dissension for personal advantage. However, forensic psychiatry does have a responsibility to police itself and not rely on others to do it (Appelbaum 1990). Stone (1984) expressed concern about the jury’s confusion caused by a psychiatrist taking an oath to tell the whole truth, yet in reality being expected to make the best case possible for his or her side. He proposes that psychiatrists be introduced in court as partisans, similar to attorneys who take no oath. Stone argues that the rationalization that cross-examination will bring out the whole truth is self-deceptive, since such cross-examinations may never occur (e.g., pre-trial settlement of the case). He is skeptical that forensic psychiatrists really tell the whole truth. Stone advocates honesty about what really is occurring. However, his criticisms apply to all expert witnesses and even the adversary system itself, and his recommendations show no sign of being adopted by the professions. Also controversial is the degree of the psychiatrist’s obligation to clarify limits of his or her opinion (aside from any possible tactical advantage in doing so) or whether such clarification can be rationalized as left for crossexamination that may not occur or be done well. Katz (1992) considers acknowledgment of uncertainty as a crucial responsibility of the forensic psychiatrist.

PRESENT STATUS OF FORENSIC PSYCHIATRY Although controversy exists regarding some aspects of the proper role and responsibilities for forensic psychiatrists, many issues have found a general consensus in definitions and ethical guidelines. Forensic psychiatry has been accepted as an official medical subspecialty by the American Board of Medical Specialties. Forensic psychiatry fellowships have been developed to teach the special knowledge necessary to apply psychiatry to legal issues. General residency training in psychiatry even supplemented with formal legal education is insufficient, since

law schools do not emphasize psychiatric issues or their application to the law. Specialized training is needed in forensic psychiatry covering a rapidly growing special body of knowledge. Forensic psychiatry is a large subspecialty, as evidenced by this textbook. The vastness of the knowledge base – both clinical and legal – creates challenges for the forensic psychiatrist to act responsibly. Careful evaluation of the relevant data is important considering the serious implications to the individuals involved. A healthy skepticism regarding all the data supplied by both sides is necessary. Claims of expertise in areas where the psychiatrist does not have special knowledge or training and offering psychiatric-legal opinions on legal issues without trying to ascertain the jurisdictional legal criteria are two prime examples of irresponsible professional behavior. It is therefore incumbent on forensic psychiatrists to be informed about psychiatry, law, and ethics, in order to appropriately fulfil their professional roles and responsibilities.

REFERENCES Ake v. Oklahoma, 470 U.S. 68 (1985). American Academy of Psychiatry and the Law 1995. Ethics Guidelines for the Practice of Forensic Psychiatry (Revised). Appelbaum, P.S. 1990. The parable of the forensic psychiatrist: ethics and the problem of doing harm. International Journal of Law and Psychiatry 13, 249–59. Appelbaum, P.S. 1997. A theory of ethics for forensic psychiatry. Journal of the American Academy of Psychiatry and the Law 25, 233–47. Candilis, P.L., Martinez. R., Dorning, C. 2001. Principles and narrative in forensic psychiatry: toward a robust view of professional role. Journal of the American Academy of Psychiatry and the Law 29, 167–73. Curran, W.L., Pollack, S. 1985: Mental health justice: ethical issues of interdisciplinary cooperation. In Curran, W.J., McGarry A.L., Shah, S.A. (eds), Forensic Psychiatry and Psychology: Perspectives and Standards for Interdisciplinary Practice. Philadelphia: F. A. Davis Company, 61–73. Diamond, B.L. 1956. The simulation of sanity. Journal of Social Therapy 2, 158–65. Diamond, B.L. 1959. The fallacy of the impartial expert. Archives of Criminal Psychodynamics 3, 221–36. Diamond, B.L. 1961. Criminal responsibility of the mentally ill. Stanford Law Review 14, 59–86. Diamond, B.L. 1990: The psychiatrist expert witness: honest advocate or ‘hired gun’? In Rosner, R., Weinstock, R. (eds), Ethical Practice in Psychiatry and the Law. New York: Plenum Press, 75–84. Diamond, B.L. 1992. The forensic psychiatrist: consultant v. activist in legal doctrine. Bulletin of the

Defining forensic psychiatry: roles and responsibilities 13 American Academy of Psychiatry and the Law 20, 119–31. Foot, P. 1990: Ethics and the death penalty: participation by forensic psychiatrists in capital trials. In Rosner, R., Weinstock, R. (eds), Ethical Practice in Psychiatry and the Law. New York: Plenum Press, 207–17. Griffith, E.E.H. 1998. Ethics in forensic psychiatry: a cultural response to Stone and Appelbaum. Journal of the American Academy of Psychiatry and the Law 26, 171–84. Halleck, S.L., Appelbaum, P., Rappeport, J.R., Dix, G. 1984. Psychiatry in the Sentencing Process. Washington, DC: American Psychiatric Press. Katz, J. 1992. ‘The fallacy of the impartial expert’ revisited. Bulletin of the American Academy of Psychiatry and the Law 20, 141–52. Pollack, S. 1974: Forensic Psychiatry in Criminal Law. Los Angeles: University of Southern California. Rosner, R. 1985: Legal regulation of psychiatry and forensic psychiatry: clarifying categories for physicians. In Rosner, R. (ed.), Critical Issues in American Psychiatry and the Law. Volume 2. New York: Plenum Press, 19–29. Stolle, D.P., Winnick, B., Wexler, D.B. 2000: Practicing Therapeutic Jurisprudence. Durham, North Carolina: Carolina Academic Press.

Stone, A.A. 1984: The ethics of forensic psychiatry: a view from the ivory tower. In Stone, A.A. (ed.), Law, Psychiatry and Morality. Washington, DC: American Psychiatric Press. Stone, A.A. 1992. Paper presented as part of a panel on controversial ethical issues in forensic psychiatry, 23rd Annual Meeting of the American Academy of Psychiatry and the Law, Boston, October 16, 1992. Weinstock, R. 2001. Commentary: a broadened conception of forensic psychiatric ethics. Journal of the American Academy of Psychiatry and the Law 29, 180–5. Weinstock, R., Leong, G.B., Silva, J.A. 1990: The role of traditional medical ethics in forensic psychiatry. In Rosner, R., Weinstock, R. (eds), Ethical Practice in Psychiatry and the Law. New York: Plenum Press, 31–51. Weinstock, R., Leong, G.B., Silva, J.A. 1991. Opinions by AAPL forensic psychiatrists on controversial ethical guidelines: a survey. Bulletin of the American Academy of Psychiatry and the Law 19, 237–48; erratum 19, 393. Weinstock, R., Leong, G.B., Silva, J.A. 1992. The death penalty and Bernard Diamond’s approach to forensic psychiatry. Bulletin of the American Academy of Psychiatry and the Law 20, 197–210.

3 History of forensic psychiatry MARVIN PROSONO

The formal recognition of forensic psychiatry as a medical subspecialty places heavy demands on historical construction. It is not sufficient to engage the history of forensic psychiatry simply as a subtext of the greater history of psychiatry. This approach has been taken by most of the standard histories of psychiatry (Alexander and Selesnick 1966; Zilboorg 1967; Ackerknecht 1968), which either portray psychiatry as foreordained by the inevitable march of science or as crusading against the inertia of entrenched superstition and ignorance (see also Mora 1970 and Mora and Brand 1970). Medical specialties have generally evolved along with the development of the natural sciences, although psychiatry has not precisely followed this path; thus, ‘… the development of psychiatry has been more difficult to delineate’ (Marx 1970, p. 595). The history of forensic psychiatry must be given separate attention and traced directly through the emergence of psychiatric discourse and practice, as those have intersected with legal necessities within the greater context of the rise of civilization. This chapter follows the history of that intersection through the ancient, medieval, and modern periods after first considering the nature of the complex intellectual problems involved in constructing such a history. Drawing a boundary around the activity of forensic psychiatrists is problematic, since all psychiatric activity may contain an element of ‘forensicity.’1 It is an even greater challenge to trace back the activities preceding those now systematically performed by forensic psychiatrists. Psychiatry as a medical specialty did not exist much before the late eighteenth or early nineteenth century, and the widespread employment of physician/experts in courts of law in the West does not have a pedigree that is much older. Foucault (1972, p. 179) has commented that what preceded psychiatry could not be characterized as

a discipline but rather was a ‘discursive practice’ which consisted of a commentary on various physical and mental afflictions as understood at the time. In sociological terms, the forensic psychiatrist is a medical professional called upon to participate in the establishment of legal decisions (particularly those decisions affecting the status of persons), further validating the decision-making process with their scientific and professional credentials. The task of the social historian is to construct an account of this form of social action and the concerns that gave rise to it; however, there are a number of technical obstacles that preclude any perfect reconstruction of the past (Mead 1980). Continuities, discontinuities, appearances, disappearances and reappearances, things maintained, modified, or abandoned (Foucault 1972) characterize a ‘discursive practice’ such as that of forensic psychiatry and its predecessors in social action. Two concerns are implicitly embedded in this history. First, there are the ancient and enduring problems of human motivation and intention. All legal systems have had to grapple with the problem of deciding competency and accountability. Second, in order to decide such questions there must be decision-makers. In courts of law, judges and juries are the ultimate decision-makers: judges deciding questions of law; juries, in the AngloAmerican system of jurisprudence, deciding questions of fact. Matters of insanity or incompetence have routinely been described as questions of fact with decision-makers assisted, especially in modern contexts, by a highly professionalized group of experts. The history of forensic psychiatry is, in effect, the history of the intersection of the enduring legal and social problems of establishing competency and imputing responsibility and both the professionalization of medicine and the specialization of psychiatry.2

1

‘In an era in which virtually every psychiatrist must take cognizance of certain medico-legal principles, an argument could be made that “ forensicity” is a continuous variable distributed unevenly over the entire population of psychiatrists’ (Dietz 1978, p. 13).

2

The important dates and events in the evolution of forensic psychiatry are summarized in Appendix 3.1.

History of forensic psychiatry 15

ANCIENT PERIOD Imhotep (ca. 3000 BC), who was grand vizier and chief architect to the Egyptian Pharaoh Zoser, was ‘the first great man combining the sciences of law and medicine; he might, if you wish, be described as the first medicolegal expert’ (Smith 1951, p. 600). In Imhotep, we find the undifferentiated roles of priest/physician/statesman/ architect, although we should be wary about placing too much credence in the accomplishments of a figure who may be entirely a myth. According to some authorities, ancient Babylonia provides us with evidence of the first murder trial and the first expert witness, in that case a midwife (Smith 1951, p. 600; Ackerknecht 1976, p. 1225). One of the first instances of the consideration of intent in the weighing of personal responsibility is found in the scriptures of the ancient Hebrews.3 Deuteronomy 19:1–13 describes the logic for establishing ‘refuge cities’ in which someone who had killed through sheer accident would be safe from capture by avenging relatives. The ancient Hebrew law understood the status of an act as determined by the intent of the actor. Thus, the notion of an evil mind entered into Western law (Platt and Diamond 1966). The importance of intention for judging human action was already evident in the Babylonian legal system as set forth in the Code of Hammurabi, although this system of law was terribly harsh, almost always meting out death for infractions of law. Such an approach can be found in much primitive law wherein no qualification is made for the intention of actors. Kelsen (1946, p. 65) has termed this ‘absolute responsibility (liability).’ The ancient Greeks left the resolution of many conflicts to so-called ‘private law,’ meaning that the parties to a dispute would be left to decide it among themselves. There was little need or opportunity for the rendering of expert or forensic opinion other than isolated instances such as a physician substantiating the pre-existence of a defect in a slave who had been sold. When questions of mental competence arose, there is no evidence that physicians were used as experts among the Greeks in any modern sense (Rosen 1968, p. 136; see also Amundsen and Ferngren 1977). The Greek philosopher Plato saw the human soul as divided between the rational and irrational, the rational soul distinguishing human beings from lower or animal nature (Zilboorg 1967, p. 52). Because human beings are free to choose, more severe punishments should be imposed for those ‘harms committed with some degree

of calculation’ (Platt and Diamond 1966, p. 1229). Plato’s great disciple, Aristotle, recognized the importance of knowledge in the imputation of responsibility: ‘A person is morally responsible if, with knowledge of the circumstances and in the absence of external compulsion, he deliberately chooses to commit a specific act’ (cited in Platt and Diamond 1966, p. 1229). These early approaches have had a significant impact on all subsequent discussions of the problem of responsibility. They presage the tension among: those who would excuse the insane from responsibility for criminal acts only when there is evidence of a total loss of reason (possibly analogous to the behavior of a ‘wild beast’); those who would allow such excuse when the only apparent mental impairment is a cognitive one; and others who ask whether there existed ‘an irresistible impulse’ or whether the act was a ‘product’ of the disease or impairment. It is from Greece that the heritage of Western medicine derives, and the great Greek observer and clinician Hippocrates is considered the father of that medical tradition. One of his greatest contributions was his certainty that epilepsy was not supernaturally caused. Diseases were of natural origin and could be both understood and treated as manifestations of the natural order (Ackerknecht 1968, p. 10). Possessing a ‘clinical intuition,’ Hippocrates suggested that various physical diseases alleviated ‘madness’ or ‘mania,’ anticipating by some 2300 years the malarial treatment of mental disease resulting from syphilis (Zilboorg 1967, p. 48). Ptolemaic and Roman Egypt are of interest because of the existence of a demosios iatros, or public physician (Amundsen and Ferngren 1978, p. 338, et seq.). Although certain kinds of knowledge were exploited by Ptolemaic courts, such as the expert opinion of land surveyors, physicians were not summoned to court to give expert opinion (Amundsen and Ferngren 1978, p. 340). Among ancient legal systems, Roman law was certainly the most comprehensive and sophisticated. Like its Greek predecessor, the Roman legal process did not employ physicians as experts (Sesto 1956, p. 33), although midwives, land surveyors (agrimensores), and handwriting experts were used in a forensic capacity (Amundsen and Ferngren 1979, p. 48). An iudex, or judge, had very wide discretion in gathering and considering evidence and took the counsel of adsessores, who were wise men learned in jurisprudence; however, there is no evidence that either on a regular or exceptional basis were adsessores members of professions whose knowledge could help decide questions of fact (Amundsen and Ferngren 1979, p. 46).4 Yet Roman law did recognize that those who committed acts without malicious intent should not be held

3

Platt and Diamond (1966, p. 1227, et seq.) trace the ‘modern law of criminal responsibility’ to the conflicting meanings given to the phrase ‘knowledge of good and evil,’ which figures in the Book of Genesis and the story of Adam and Eve and the forbidden fruit. The phrase ‘knowledge of good and evil’ has been interpreted to mean perfect wisdom as well as moral capacity, and the ensuing confusion has been preserved, according to these authors, in modern law.

4

‘In cases where a curator is to be appointed to discharge the affairs of one who is considered insane, the praetor [a public official] is urged to investigate the case most thoroughly “since many people feign madness or insanity” so that they may evade their civil obligations’ [citing Digesta 27,10,6 (Ulpian)] (Amundsen and Ferngren 1978, p. 43).

16 History and practice of forensic psychiatry

accountable for those acts. The Twelve Tables, one of the earliest Roman codifications, made provision for a system of guardianship of the insane, usually placing the person and his or her possessions under the care of paternal relatives. The Lex Aquila in the third century provided that: ‘(A) man who, without negligence or malice, but by some accident, causes damage, goes unpunished’ (quoted in Platt and Diamond 1966, p. 1230). Under the Lex Cornelia, children, because of the innocence of their intentions, and the insane, because of the nature of their misfortune, were excused from punishment (Platt and Diamond 1966, p. 1230). On the subject of the insane, Roman law deals primarily with questions of guardianship and is not plagued by the almost single-minded concern with criminality one finds in modern sources. The question of intention, while important in the ancient literature, is overshadowed by issues of custody, protection, and status. This difference in emphasis flows from the approach that the Romans took toward the behavior of those who were deemed deviant or insane. The sometime devastating result of their irrational behavior could be remitted by compensation to the victims paid by the guardian of the insane. Payment of money could act as a remedy even in a case of murder if the relatives of the victim (or the owner of the victim, in the case of a slave) would agree to such payment instead of some form of physical retribution. Roman law was not exceptional in this respect, somewhat the same kind of system obtaining in Anglo-Saxon and Danish England (Walker 1968). Roman medicine reached its apogee in the person of Galen (AD 130–200) who, like Hippocrates, was a scientific positivist, rejecting soothsayers in favor of anatomists (Zilboorg 1967 [1941], p. 87). Galen saw the brain as the seat of thought, but posited two irrational souls, one in the heart and the other in the liver. Unfortunately, Galen became enshrined as a medical authority even though most of the dissections he performed were limited to pigs and dogs. Many medical riddles (such as the circulation of the blood) remained unsolved for over 1300 years until the authority of Galen was overthrown.

MEDIEVAL PERIOD The Middle Ages (approximately the sixth through the sixteenth centuries) was a period of scientific retrenchment during which the traditions of Rome and theology of Christianity held sway throughout most of Europe. In AD 528 the Emperor Justinian ordered a review and codification of the enormous corpus of Roman legislation. The Code of Justinian, or the Corpus Iuris Civilis5 (distinguishing it from canon or church law), made provision 5 The Institutes of Justinian, with English introduction, translation, and notes by the late Thomas Collett Sandars, M.A. 1970 (originally published 1922).

for the insane. Likened to one ‘absent, asleep or even dead’ a person who became insane was protected from loss of property or position but was not considered capable of making a will, transacting any business or held responsible for wrongdoing. Roman law followed the principle that ‘an insane person, like an infant not yet capable of understanding, usually before the age of 7 or 8, was incapable of malicious intent and the will to insult’ (Van Ommeren 1961, p. 6). The Roman Catholic Church, once established in Europe, relied on Roman law to answer many practical questions relating to insanity. How was matrimonial consent affected by insanity? Could the insane receive the sacraments of the church? Could a priest who became insane continue in his role? Should divorce be permitted if one of the partners became insane? How could it be determined that insanity was not being feigned in order to obtain a divorce? Secular authorities also had to contend with similarly difficult questions. How was it possible to detect a lawbreaker who feigned madness to avoid punishment? What were the rights of the madman who was in remission? Who would act as guardian to such a person? Two questions arise in any historical consideration of forensic psychiatry: How was it decided that any particular individual was mad or insane, that is, how was insanity recognized, and who was given the responsibility of determining the presence of insanity when it became an issue? No evidence seems to exist demonstrating that physicians were used as experts in the resolution of any of these questions during the medieval period. The Italian city of Bologna may have been the first to establish a system of medical expertise that was used in what we would call criminal investigation (Simili 1973). Although Bologna may have had the first legal code conferring expert status on physicians,6 there may have existed a pragmatic system of expertise utilized in diverse locations throughout Europe that was pressed into service when needed even if not recognized officially by statute. In Germany, the medieval city of Freiburg i. Br. gave barber/surgeons the responsibility of playing a forensic role at a time when academic medicine remained aloof from the problems of the mundane world (Volk and Warlo 1973, p. 101). In their researches, these authors found that ‘scientific forensic medicine was preceded for centuries by an empirical prescientific form that was motivated by the practical demands of the courts,’ but that before the 6

Bologna is by no means the only one of the medieval Italian cities that incorporated into their laws detailed rules for medical experts. Such rules are also found, e.g., in the city statutes of Padua (1316), Genoa (fourteenth century), Mirandola (1386), Bassano (1389), Florence (1415), Verona (1450), Brescia (1470), Milan (1480), Ferrara (1506), Genoa and Urbino (1556). These cities that played such a tremendous role in the genesis of modern economics, political thought and art, must therefore also be regarded as among the most influential factors in the establishment of legal medicine (Ackerknecht, in Burns 1977, p. 251).

History of forensic psychiatry 17

appearance of Paolo Zacchia7 medical experts had not been utilized by courts. The ruling councils of fourteenth-century Venice relied on the Corpus Iuris Civilis (or the traditions of the Roman law) when faced with the problem of excusing behavior because of insanity. Once again, we find that physicians did not assist the decision-makers. Although physicians were called upon to testify concerning physical elements in a crime, they were not asked to testify when insanity was the issue. ‘This is not surprising. Insanity was traditionally a community judgment, not a medical one’ (Ruggiero 1982, p. 111). In England, tests of legal insanity were developed and became part of the legal tradition of the common law. Henry de Bracton was an early and formative influence on the development of these tests. Occupying the position of chief justiciary of the highest English court, and author of one of the first substantial treatises on English law, On the Laws and Customs of England8 (ca. 1256), Bracton has been identified with the ‘wild beast test.’ It had been thought this legal test of insanity demanded that in order for the insane to avoid responsibility for committing a crime, a kind of fury or wildness must characterize the individual or the act; however, Platt and Diamond (1965) have demonstrated that Bracton’s use of the concept of wild beast (brutus) was not in any way intended to compare the insane with wild beasts but was making the point that the insane, like animals, were not capable of forming the requisite intent to commit crime, much as a child would be incapable of forming such intent. When a decision on the insanity of an accused was an issue in an English criminal proceeding, the matter was given over to the judgment of the king. A royal pardon could be sought to release the insane from responsibility, a procedure also used to excuse those who killed by accident or in self-defense (Walker 1968, vol. 1, p. 24). In England, the statute known as Praerogativa Regis9 drew an important distinction between those who were 7

‘The first complete edition of Paolo Zacchia’s monumental work (Questiones MedicoLegales) was printed in 1654 in Rome. At that time, the author was Proto medicus of the Papal State and medical advisor of the Rota, the High Court of the Roman Catholic Church’ (Karplus 1973, p. 125). This work of Zacchia’s was considered the finest exposition and synthesis of medico-legal questions for many years after its writing, and illustrates the sophistication that had developed in medico-legal thinking by the middle of the seventeenth century. ‘[Paolo Zacchia] … may be rightly considered the founder of the medical jurisprudence of insanity’ (Zilboorg 1944, p. 508).

8

Bracton, Henry de. 1977. De Legibus et Consuetudinibus Angliae. On the Laws and Customs of England, 4 vols. Translated with revisions and notes by Samuel E. Thorne. Cambridge, MA: Harvard University Press. [This thirteenth century work is attributed to Henry de Bracton (1210–1268).] 9

‘The king’s right is distinctly stated in the document known as Praerogativa Regis, which we believe to come from the early years of Edward I (1272–1307). The same document seems to be the oldest that gives us any clear information about a wardship of lunatics. The king is to provide that the lunatic and his family are

termed ‘natural fools,’ congenitally abnormal, and those who were ‘non compos mentis,’ or whose symptoms of illness appeared after birth. The condition ‘non compos mentis’ included a wide range of psychiatric disorders and, unlike that of ‘natural fool,’ was amenable to temporary or even permanent recovery (Neugebauer 1978, p. 159).10 How was it decided and by whom that an individual fell into one or another of these categories? Juries known as inquisitions were established to examine persons who might fall within the terms of the statute. The Court of Chancery empowered the sheriff and other public officials to make an investigation not only into the mental status of questionable persons but also the possessions and property they held. Like the pattern in the rest of medieval Europe, physicians were not involved in these determinations; a finding of incompetence or congenital insanity was in medieval England (as it was in medieval Venice) a ‘community judgment’ (Neugebauer 1978). One of the darker aspects of this ‘community judgment’ occurring during the medieval period was the practice of witch-hunting. From the fifteenth through the seventeenth centuries, thousands upon thousands of persons were tried on the charge of practicing witchcraft. The Malleus Maleficarum (or Witches’ Hammer) written by two Dominican friars, Sprenger and Kraemer, set out the argument for the existence of witches, the manner in which they could be identified, and the procedures for properly trying them. A noteworthy appearance of a physician as an expert in an English court was that made by Sir Thomas Browne (Finch 1950). Browne, author of the Religio Medici, a book of religious contemplation, participated in the witchcraft trial of two women in 1664 at Bury St. Edmunds, testifying that the devil might work through the madness of the women; thus, Browne appeared to support the independent existence of witchcraft and madness simultaneously.11 The physician Johann Weyer (1515–1588), possibly the first physician to devote the major part of his professional attention to psychiatric illnesses, is viewed by many as the voice of reason standing against the spirit of the time (Alexander and Selesnick 1966; Diamond 1961;

properly maintained out of the income of his estate, and the residue is to be handed over to him upon his restoration to sanity, or, should he die without having recovered his wits, is to be administered by the ordinary for the good of his soul; but the king is to make nothing to his own use (Pollack and Maitland 1968, p. 481). 10

‘Whether a man was an idiot or a madman was a matter of local knowledge, and they [the petty jury] were therefore the obvious people to ask [concerning the mental state of an accused]’ (Walker 1968, p. 24). In the seventeenth century, Lord Coke in Beverley’s Case, 4 Co. 123b, 76 Eng. Rep. 1118 (K.B. 1603), made further clarifications to the distinctions between ‘idiots’ or natural fools and ‘lunatics’ and generally summarized the laws of England regarding insanity to his time (Brakel and Ruck 1971, p. 2–3).

11

‘Some biographers of Browne, asserting that his testimony led to the convictions, have deplored his part in the proceedings’ (Finch 1950, p. 215).

18 History and practice of forensic psychiatry

Zilboorg 1967; Mora 1991). Alternatively, the witchcraft trials are portrayed by some as the true forerunner of the law/psychiatry interface. The psychiatrist Thomas Szasz has made a widely publicized career characterizing psychiatry as a modern version of witch-hunting. Although Szasz credits Weyer with recognizing that witchcraft was too often used as a diagnosis for what otherwise must have been madness, Szasz criticizes Weyer for his belief in the existence of witches (Szasz 1970). For Szasz, however humane their motives may be, physicians who participate in the legal process assist in bringing medicine into the service of the law and of the forces of social control (see also Szasz 1974).

MODERN PERIOD One commentator has traced the origins of modern forensic medicine to 1507 and the penal code drawn by the Bishop of Bamberg, leading to the requirement placed in the Constituto Carolina of the Emperor Charles V that ‘… required evidence of medical men in all cases where their testimony could enlighten the judge or assist investigation in such cases as personal injury, murder and pretended pregnancy’ (Gerber 1961, p. 197). Erwin Ackerknecht finds the first reference to the medical expert in the courts of Paris of 1511 (Eigen 1985, vol. 2, p. 38). Whichever may be the case, the beginning of the sixteenth century apparently marks the recognition by legal authorities that forensic expertise not only is useful, but indispensable. What characterizes the transition to the modern period is the evolution of medical and legal theories concerning the behavior of the insane, the tests through which insanity has come to be recognized, and methods for the treatment of psychiatric illnesses. Older humoral or demonological theories were abandoned (sometimes without clear replacement), the common sense tests for idiocy or lunacy were set aside, and the treatment accorded those defined as mad or lunatic changed from family guardianship to care in an asylum and then to maintenance on psychoactive medication. Medical men slowly expanded on the distinctions made by the Praerogativa Regis between those born natural fools and those who became mentally impaired after birth. Thomas Willis (1621–1675) produced his own taxonomy of mental disorders. One of the most significant disorders for the law was melancholia, because the delusions under which a melancholic labored might be transitory. Willis distinguished between a ‘universal type’ of melancholia in which the affliction affected all aspects of mental process and a ‘particular type’ which would leave the judgment of an individual unaffected except in one or two areas (Jackson 1983, p. 176). Matthew Hale, an English jurist who ultimately became lord chief justice and authored the History of the Pleas of the Crown (first published posthumously in 1736), may

have been the first to use the term ‘partial insanity,’ a concept close to Willis’ ‘particular type.’ In contrast to what he saw as ‘partial insanity,’ under which category he placed melancholia, Hale posited a ‘perfect madness’ or ‘total alienation of the mind.’ Such a distinction was particularly significant since melancholia was a frequent basis for allegation of insanity (Jackson 1983, p. 173). Hale believed that it was an individual’s state of mind and not the nature of his or her acts that was of importance in determining whether legal insanity could be used as a criminal defense (Mora 1976, p. 1419). In so positing, Hale was merely reiterating the logic of the English law commentators Bracton (died 1268) and Coke (1552– 1634), both of whom recognized that in order for a crime to exist there needed to be a mens rea, or an evil mind or guilty intent, along with an actus reus, or evil deed (Hermann 1983). Coke was of the opinion that the ends of punishment were not served by inflicting it upon those who were incapable of reason or understanding because such punishment could not serve as an example to others (Platt and Diamond 1965, p. 359).12 Throughout the history of Anglo-American law can be found various tests of insanity to determine the presence or absence of an evil mind or criminal intent. The evolution of these tests can be followed through a series of important criminal cases beginning in the eighteenth century.13 One of the first of those cases was Rex v. Arnold, 16 How. St. Tr. 695 (1724), Judge Robert Tracy presiding. Edward Arnold was tried for the attempted murder of Lord Onslow. The case has been interpreted as a precedent for the ‘wild beast test’ in that ‘in order to be excused from criminal responsibility as insane, the accused must not know what he is doing, “no more than an infant, a brute, or a wild beast” ’ (Judge Tracy, quoted in Hermann 1983); however, it is clear that there are many different tests embedded in the instructions that Judge Tracy gave to the jury, such as a test of abstract moral judgment (‘distinguish between good and evil’). ‘The trial of Earl Ferrers in 1760 marks the first recorded instance of “psychiatric” testimony offered in the criminal trial’ (Eigen 1985, vol. 2, p. 37). In a fit of rage, the Earl had shot and killed his steward, Rex v. Ferrers, How. St. Tr. 886 (1760). Dr. John Monro, physician superintendent of

12

‘For, as is observed by Sir Edward Coke, the execution of an offender is for example, ut poena ad paucos, metus ad omnes perveniat: but so it is not when a madman is executed; but should be a miserable spectacle, both against law, and of extreme inhumanity and cruelty, and can be no example to others’ (Blackstone 1979, Vol. 4, p. 25).

13

It should be noted that the importance of case, or judge-made, law is the hallmark of the English common law tradition. Other European traditions that follow Roman or civil law (or variants of the Napoleonic code) do not assign the same importance to the precedents set by judicial decision-making in any particular case. Rather, statutes set out the law and judges (and less often juries) are bound only by the statute or code law and not by what other judges have determined to be the law in similar cases already decided.

History of forensic psychiatry 19

Bethlem (commonly known as Bedlam), testified as an expert witness. Dr. Monro was examined by the accused Earl Ferrers himself, who conducted his own defense in accordance with the English law of the time. The Earl was left in the difficult position of having to prove his own insanity; however, he conducted so sagacious a defense that his plea was not believed and he was found guilty and executed. The standard of a total deprivation of reason was successfully challenged in 1800 in the case of Rex v. Hadfield (1800) 27 St. Tr. 1281. Hadfield had been a soldier attached to the Duke of York in the last years of the eighteenth century. While fighting, he had sustained severe head wounds, which led to his discharge from the army and resulted in permanent insanity punctuated by delusions of the world’s imminent end and his role as its savior. To accomplish the world’s salvation, Hadfield attempted to assassinate King George III in order that he, himself, would be executed and thus save the world through his martyrdom. ‘Hadfield used a firearm, and came within a few inches of wounding, if not killing, George III’ (Walker 1968, p. 74). Hadfield was disarmed, seized, and ultimately brought to trial. Unlike the unfortunate Earl Ferrers, Hadfield had counsel and was represented by the superlative jurist, Thomas Erskine who managed to win an acquittal. Erskine recast the insanity defense in terms of disease process, a shift from the older insistence on tests of cognitive understanding or moral knowledge. It was no longer only the presence or absence of reason, but the presence of delusion or a deranged state of mind, which the jury was to take into account (Quen 1968, p. 45): Delusion, therefore, where there is no frenzy or raving madness, is the true character of insanity; and where it cannot be predicated of a man standing for life or death for a crime, he ought not, in my opinion, to be acquitted … . I must convince you, not only that the unhappy prisoner was a lunatic, within my own definition of lunacy, but that the act in question was the immediate, unqualified offspring of the disease … to deliver a lunatic from responsibility to criminal justice, above all, in a case of such atrocity as the present, the relation between the disease and the act should be apparent (Erskine, quoted in Hunter and Macalpine 1963, p. 571).

In 1812, John Bellingham was executed for the murder of Spencer Percevale, first lord of the Treasury and chancellor of the Exchequer. Although an insanity defense was raised, the decision in Hadfield’s case was ignored and a knowledge of right and wrong test was employed. In 1840, Edward Oxford (R. v. Oxford [1840] 9 C. & P. 525) attempted to assassinate Queen Victoria. His subsequent insanity plea was successful. The Bellingham decision (R. v. Bellingham [1812] O.B.S.P. case 433) was explicitly disclaimed. ‘Lord Chief Justice Denman reaffirmed [in the Oxford decision] the primacy of the question of the determining or responsible factor for the act: the disease

or the individual?’ (Quen 1968, p. 46). A pattern seems to emerge from the eighteenth- and nineteenth-century cases: those who succeed in the commission of crime fail in their insanity plea; those who attempt a crime and fail, succeed in their insanity plea. The case that definitely breaks this pattern, if there is a pattern, and establishes a rule that has been maintained by most American jurisdictions until the present day, is M’Naghten’s case, 10 Cl & Fin. 200, 8 Engl. Rep. 718 (1843). Daniel M’Naghten, believing the man he shot in the back was Sir Robert Peel, the British prime minister, mistakenly assassinated Edward Drummond, private secretary to Peel. M’Naghten suffered from an elaborate set of delusions involving his persecution by the British government and the Vatican, among others. The ensuing trial is noteworthy for the number of physicians who were called as expert witnesses (nine in all), although two did not examine M’Naghten. They opined that no doubt existed as to the insanity of the prisoner, even though M’Naghten might have been able to conduct his life along rational lines and understand the difference between right and wrong. M’Naghten was found not guilty by reason of insanity after the case had been stopped by the judges. The two physicians called by the prosecution, although they had interviewed M’Naghten, never appeared or testified at the trial. Two of the defense experts (Winslow and Philips), although they never met M’Naghten and knew him solely by observing him in court, testified that he was insane, agreeing with the opinion of their colleagues appearing for the defense. On the strength of the medical testimony, Judge Tindal stopped the trial and charged the jury which returned with a verdict of not guilty by reason of insanity. This decision left Queen Victoria, her government, and the public in a state of uneasiness over the relatively undefined nature of that mental condition that would permit an insanity plea to succeed. After the trial, the chancellor of the House of Lords addressed the House on the law of England regarding the responsibility of the insane and offered to call a convention of English judges. Three months later, fifteen judges of the Queen’s Bench assembled for the purpose of clarifying the law (Quen 1968, p. 48). To these judges, the House of Lords addressed five questions. In part, the answers they gave to these questions have come to be called the M’Naghten Rules. These rules are still utilized in many jurisdictions in the United States. (For a discussion of current insanity tests, see Part Three,‘Forensic Evaluation and Treatment in the Criminal Justice System.’) Probably the most significant part of these rules for the further development of forensic psychiatry is that found in the answers to the second and third questions. These questions sought guidance on the instructions to be given to a jury and the terms into which these instructions should be cast: That the jury ought to be told in all cases that every man is presumed to be sane, and to possess a

20 History and practice of forensic psychiatry sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of committing of the act, the party accused was labouring [sic] under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know what he was doing was wrong. [Emphasis added] (Trial of Daniel M’Naughton, 1843. In: Modern State Trials. Revised by William C. Townsend, 1850, quoted in Hunter and Macalpine 1963, p. 921).

Besides establishing and limiting the legal conditions under which psychiatric expert witnesses would have to testify (and under which they testify to this day in many English-speaking jurisdictions), the decision in this case and the answers to the subsequent questions reveal an interesting and unexpected influence. If the M’Naghten case can be seen as an essential ratification of the presence of physicians in courts as experts on insanity, that ratification was achieved in no small part by the work of an American physician, Isaac Ray.

FORENSIC PSYCHIATRY IN THE UNITED STATES The legal treatment of the insane in colonial America is consistent with the treatment they received during most of European history. Determinations of insanity continued to be made by civil authorities, not by physicians (Deutsch 1949, p. 40; see also Grob 1973). Compared with the growth of mental asylums in Europe, American institutions devoted to the care and treatment of the mentally ill arose slowly and needed theoretical justifications from abroad. Based somewhat on its English predecessor, Bethlem (or Bedlam), the Pennsylvania hospital, was opened in 1752.14 Benjamin Franklin was among the men who founded it, and they had as one of their objectives the admittance of mental patients (Dain 1976, p. 1182). In a petition drawn up by Franklin for the provincial Assembly in 1751, he states:

That few or none of them are so sensible of their Condition, as to submit voluntarily to treatment that their respective Cases requires, and therefore continue in the same deplorable state during their Lives; whereas it has been found, by the existence of many Years, that above two Thirds of the Mad People received into Bethlehem Hospital, and there treated properly, have been cured. (Franklin, quoted in Deutsch 1949, p. 59)

By 1844, a large network of public and private asylums existed in the United States.15 In that year, thirteen superintendents of mental asylums founded the Association of Medical Superintendents of American Institutions for the Insane (AMSAII). One of the founding members of that association was Isaac Ray, who became the superintendent of Maine Insane Hospital in 1841 and later superintendent of the Butler Hospital in Providence, Rhode Island. After having tried for two years to establish a medical practice in Portland, Maine, Ray moved to Eastport, Maine, where he succeeded as a general practitioner. At age thirty-one, Ray wrote A Treatise on the Medical Jurisprudence of Insanity (1838),16 which was one of the first systematic studies in English of the law/psychiatry interface. The element in Ray’s thinking that seems to have had the profoundest effect on developments both within law and psychiatry is the notion of ‘moral insanity,’ a concept introduced by James Cowles Prichard, a nineteenthcentury English physician and scholar.17 Ray was critical of the English tests of insanity as they have been described herein because they were too concerned with cognitive function, ignoring the role of emotion and the impact of mental disease on ‘moral’ functioning: In legal contexts the term ‘moral insanity’ implied an inability to conform to the moral dictates of society – as a consequence of disease, not depravity, and despite the absence of traditionally accepted signs of mental disturbance. The morally insane offender might seem to be quite rational in conversation, even intelligent, be able to solve problems and be subject to no

15

That with the Numbers of People, the number of Persons distempered in Mind and deprived of their rational Faculties, hath greatly increased in this Province. That some of them going at large are a Terror to their neighbors, who are daily apprehensive of the Violences they may commit …

14

‘The idea of the Pennsylvania Hospital originated with Dr. Thomas Bond, a man who had been disowned by the Friends in 1742 for taking an oath. Having visited England later, he was impressed with the care provided the mentally ill at Bethlehem Hospital’ (Deutsch 1949, p. 17).

The following is a list of the location of some of the early American mental hospitals and their dates of establishment: Philadelphia, Pennsylvania, 1752; Williamsburg, Virginia (first statesupported mental asylum), 1774; New York Hospital, New York, 1791; Frankford, Pennsylvania, 1817; Boston, Massachusetts, 1818; Hartford, Connecticut, 1824; Lexington, Kentucky, 1824.

16

‘Five years before M’Naghten’s trial, an American doctor, Isaac Ray, had published what was to become one of the most influential books of the nineteenth century on the subject [insanity and the law]: A Treatise on the Medical Jurisprudence of Insanity (1838), and in the year before the trial the learned, though not very original, Prichard (who was to become a Commissioner for Lunacy in 1845), had published a similar work’ (Walker 1968, p. 89).

17

Tighe characterizes the notion of ‘moral insanity’ as ‘the single most controversial concept in the emerging discipline of American forensic psychiatry’ (Tighe 1983a, p. 12).

History of forensic psychiatry 21 delusions or sensory misconceptions – yet still be mentally ill. (Rosenberg 1968, p. 68)

Ray’s treatise followed the work of the reformers Vincenzo Chiarugi, Philippe Pinel, and William Tuke, who through religious or ideological optimism attempted to cure the insane by either softening the atmosphere of the mental institution (Pinel supposedly struck off their chains) or taking them out of destructive environments into the countryside. ‘Moral treatment’ consisted of kindness, understanding, and what resembled a type of behavior modification therapy. By the middle of the nineteenth century, the notion of moral insanity had gained additional support among those who followed the phrenologists Gall and Spurzheim. These men had attempted to connect particular mental faculties to particular sites within the brain. Thus, following on this logic, it would be possible for a person to be totally lucid and in apprehension of the difference between right and wrong and yet commit felonious acts because the part of the brain in charge of moral control might be diseased. During the trial of Charles Guiteau, the assassin of President Garfield, discussed later in this chapter, the various psychiatric and neurological experts who appeared debated whether ‘moral insanity’ was a viable medical notion. For alienists (as early psychiatrists were known), the debate over the issue of moral insanity had a very significant impact. The work Ray had done affected the outcome of the M’Naghten trial and became an influence on English and American legal usage: Alexander Cockburn, counsel for the defense [M’Naghten’s defense], followed the lead of Lord Erskine [defense counsel in Hadfield’s case] and attempted to establish a more flexible test of exculpable insanity. He made extensive and almost exclusive reference to the work of the American physician, Isaac Ray, in his attempt to demonstrate that legally exculpable insanity should include more than disease of the intellect. (Quen 1968, p. 47)

In spite of Ray’s influence on the M’Naghten decision, that influence was undone in great part by the House of Lords and its panel of judges, which ‘clarified’ the M’Naghten decision so as to enshrine a knowledge test of mental competence in criminal procedure. Ray was attempting to have the law recognize the ‘… wide range of mental disorders which primarily affected an individual’s emotional and volitional capacities …’ which would affect imputations of responsibility (Tighe 1983a, p. 30). However, the law was reluctant to make such an acknowledgment. Ray credited such resistance to jurists’ ignorance, poor education, and lack of experience with the insane. To remedy this state of affairs, Ray worked to educate both the legal and medical community to what he saw as the correct approach to psychiatric forensic problems. In 1866, Ray was put into contact with Judge Doe of

the New Hampshire Supreme Court upon the latter’s seeking medical opinion in a case before his court. Thus began a six-year correspondence between the two men that had a very profound effect on the direction that medical jurisprudence was to take in the United States. This correspondence gives an intimate and detailed picture of the collaboration between Ray and Doe as they sought to have the question of insanity recognized as a question of science and not of law. ‘The resulting rule of law, established in State v. Pike and subsequently known as the “New Hampshire Rule”, has been proposed from time to time for wider adoption both in this country and in England’ (Reik 1953, p. 183). The New Hampshire Rule, or ‘product rule,’ states that a test of insanity ought to determine if the act in question was the ‘product’ of a mental disease or defect, more closely reflecting Isaac Ray’s desire to avoid cognitive tests of insanity such as the M’Naghten Rule. This ‘product rule’ was adopted in the District of Columbia in 1954 and called the Durham Rule (Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954)), but was later overturned in the case U.S. v. Brawner, 471 F.2d 969 (D.C. Cir. 1972), which replaced it with the rule enunciated in the American Law Institute’s (ALI) Model Penal Code. Quoting from that model code, the following appears in the Brawner decision: A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of the law.

An ‘irresistible impulse’ test first using the word impulse was employed in Commonwealth v. Rogers, 48 Mass. 500 (Massachusetts 1844). The most influential early case to add this concept to M’Naghten was Parsons v. State, 2 So. 854 (Ala. 1887), which referred to mental disease as causing a loss of power to choose between right and wrong, destroying free agency at the time of the alleged criminal act. A similar test was utilized in a federal court in Davis v. United States, 165 U.S. 373 (1897), which referred to the will or governing power of the mind being so destroyed that a defendant’s actions are no longer subject to his will but are beyond his control. Although the New Hampshire Rule or ‘irresistible impulse test’ currently is not relied on anywhere as the sole test, similar tests are often used in conjunction with the M’Naghten Rule or are incorporated in the volitional prong of the ALI insanity test. A form of the ‘irresistible impulse’ test is the ‘policeman at the elbow’ test. Much controversy arose soon after physicians began testifying as psychiatric experts because their testimony often betrayed fundamental disagreements within the profession over the nature of mental disease. These disagreements seemed to suggest that either the expert was failing to make an objective evaluation (and many

22 History and practice of forensic psychiatry

motives could be adduced for such failure, such as the personal or religious values of the expert, or the payment received from a party in the case) or the expertise itself was faulty. During the meetings of AMSAII, references were made with greater regularity to the discomfort of its members over the contradictory testimony given by physicians and the attacks made during crossexamination on the credibility of expert witnesses as the nineteenth century advanced (Tighe 1983a, p. 112). Probably the most important battles fought in a courtroom in the late nineteenth century over these issues occurred during the trial of Charles Guiteau, the assassin of President Garfield. On July 2, 1881, Guiteau approached Garfield at Union Station in Washington, DC, and shot him as horrified Secretary of State James G. Blaine looked on. (Garfield did not die until September 19, 1881.) The motive for this slaying is not clear, but supposedly Guiteau had been disappointed in not having been appointed to a diplomatic post in France. Some of the most eminent men from the worlds of psychiatry and neurology appeared to testify at the trial (Rosenberg 1968).18 The conflicts that occurred during the trial, centering as they did on the concept of moral insanity, brought the tensions within psychiatry and between psychiatry and the emerging specialty of neurology into the open. John Gray, superintendent of Utica Asylum, vigorously opposed the idea of moral insanity. The neurologist Edward Spitzka defended it on the basis that brain disease could be selective in its manifestations. Gray, who had many years of experience treating the insane, did not believe it was possible for an individual to be insane in only part of his mind. Spitzka was rallying for reform of the insanity defense and wished to see the law recognize the recent advances that had been made in medical science. Much was made at the trial of the hereditary nature of insanity, a notion that had gained favor toward the end of the nineteenth century. All arguments proved futile. Garfield had been a popular president and his assassin could not have gone unpunished. This case seems to fall within the pattern described earlier for eighteenth- and early nineteenthcentury English cases. Those who succeed in their deadly aims are found guilty regardless of any pleas that might be made. In fact, Guiteau was found guilty and was executed in 1882.

For forensic psychiatric practice, the Guiteau trial had two important results. The first is that by focusing the light of public attention on the insanity defense, much dissatisfaction was raised in the minds of the involved professionals and the public at large over the role that medical experts were playing in courtroom proceedings. (Almost exactly one hundred years later, in 1982, the trial of John Hinckley Jr., who had made an unsuccessful attempt on the life of President Reagan, caused a very similar reaction.) Second, the mandatory use of the hypothetical question19 during the trial caused further frustration among the experts. These two results, coupled with the professional rivalries that were exacerbated by conflict-ing testimony, helped to precipitate various attempts at reform, which have occupied many in the legal and psychiatric professions in one form or another to this day. As a response to the ongoing professional debate and attempts at reform there emerged various medico-legal societies in the larger cities of the United States: The founding of the New York Medico-Legal Society in 1867 signalled the beginning of a new era in medicolegal relations. In this new era the still struggling sub-specialty of medical jurisprudence of insanity was transformed into a ‘science’ as the physicians and attorneys interested in it became caught up in the general process of professionalization that was changing medical and legal practice at the end of the nineteenth century. (Tighe 1983a, p. 180)

The New York Medico-Legal Society continues in an attenuated form. The Society of Medical Jurisprudence in New York, which was incorporated on March 7, 1883, claims to be the oldest society of its type in the United States. The society continues to be composed of attorneys and physicians and provides a forum for outstanding individuals from various professions whose concern is the advancement of medical jurisprudence. Not only do organizations seem to appear and disappear from the professional landscape, but energetic and forceful individuals who formed the backbone of the early forensic organizations came from a variety of professional backgrounds. For instance, Clark Bell, an attorney and founder and editor of the Medico-legal Journal, described as ‘the first American journal devoted exclusively to medical jurisprudence’ (Tighe 1983a, p. 185), was either president or secretary of the New York 19

18

Among these experts were Charles H. Nichols, superintendent of the Bloomingdale Asylum in New York; Charles Folsom of Harvard and the McLean Asylum in Boston; Edward C. Spitzka, neurologist; Fordyce Barker, professor of medicine and president of the New York Academy of Medicine; Allen McLane Hamilton, alienist; John Gray, superintendent of Utica Asylum in New York and editor of the American Journal of Insanity; William W. Godding, superintendent of the Government Hospital for the Insane in Washington, DC; James H. McBride, superintendent of the Asylum for Insane in Milwaukee, Wisconsin. This list is not exhaustive.

It had been the practice in American courts of law for attorneys to be required to pose questions to expert witnesses only as hypothetical questions. Legal tradition construed an expert opinion on the actual facts of any particular case as an invasion of the province of the jury whose most important function was to decide such questions of fact. This practice led to the creative phrasing of questions beginning with the word ‘suppose’ and recreating in almost every detail the case being tried except for the actual names, dates, and other identifying information. (See Kidd 1915, for an attempt in one American jurisdiction to correct this practice as part of larger evidence reforms.)

History of forensic psychiatry 23

Medico-Legal Society from approximately 1872 to 1918. Bell saw the major role of the society as an educational one, bringing together legal and medical people who could engage in ‘mutual education’ as well as in educating the general public (Tighe 1983a, p. 187). The society also engaged in vigorous attempts at reform of the system of expert testimony and the revision of notions of criminal responsibility. In 1909,20 after a National Conference on Criminal Law and Criminology was held at Northwestern University Law School, a committee was formed under the chairmanship of the law professor Edwin Keedy to reform the law of insanity. Keedy enlisted eminent attorneys, judges, and psychiatrists to serve on this committee, which was to focus on tests of responsibility, the forms in which verdicts were cast, and expert testimony. Lack of agreement among the disparate professional elements involved meant that little was accomplished in the way of reform (Tighe 1983a, p. 314). As the chairman of the committee, Keedy exemplified the position of the legal profession. ‘According to Keedy the medical expert’s only task was to give the jury technical assistance in evaluating a defendant’s mental state’ (Tighe 1983a, p. 361; see also Tighe 1983b). This model of psychiatric expert testimony contrasted sharply with the one that was supported by the psychiatrists, especially Adolph Meyer and William A. White. These psychiatrists wished to have the concepts of medical and legal insanity integrated and the jury determination of insanity replaced by psychiatric determinations. Such a model of the expert’s role in the courtroom contradicted basic rules of evidence and legal procedure. Trial by jury is a right protected by the Constitution of the United States. All witnesses may be cross-examined and all facts in question must be put to the jury for determination. Further, psychiatrists such as William A. White (and later Karl Menninger) attacked the very principles upon which criminal law and criminal procedure were predicated. They argued that punishment for crime often prevented the rehabilitation it sought to achieve, that such punishment merely expressed the need for revenge, and that legal decision making in such matters ought to be surrendered entirely to scientists. The arguments of psychoanalysts such as White and Menninger gained influence as psychoanalysis itself gained prestige. Bernard L. Diamond, M.D., a psychoanalyst, was instrumental in the development of the diminished

20

In this same year (1909), William Healy, a British-born psychiatrist who had graduated from the University of Chicago Medical School, became the director of the Psychopathic Institute of the Cook County (Chicago) Juvenile Court, which had been opened in 1899 as the first court of its kind. The Psychopathic Institute was also the earliest such court clinic in the United States. Some of the most prominent forensic psychiatrists, such as Jonas Rappeport in Baltimore and Richard Rosner in New York, worked or continue to work in such court-related psychiatric institutions.

capacity defense in California. Diminished capacity permitted gradations of punishment by finding gradations of guilt. It allowed the psychiatrist to explain why a defendant committed a crime. Prior to the development of this type of defense in California, two separate trials were held: one to establish guilt or innocence; and another afterward to determine sanity or insanity (Diamond 1961, p. 74). Until People v. Wells, 33 Cal.2d 330 (1949), psychiatrists were excluded from testifying until the second stage of the bifurcated trial. People v. Wells established that mental illness could negate the mens rea (criminal intent) required to convict for a crime and evidence supporting such negation could be introduced at the primary trial. Diamond testified in another, later case, People v. Gorshen, 51 Cal.2d 716 (1959), which permitted testimony and opinions regarding specific intent in the absence of legal insanity: The essence of my [Diamond’s] testimony was that Gorshen killed, not because he was insane, but rather as a defense against insanity. Although he knew right from wrong in the sense of M’Naghten, although he appeared to have premeditated, deliberated, and to have had the requisite criminal intent of malice, that he was, nevertheless, not a free agent. That he was suffering from an uncontrollable compulsion, the consequence of mental disease. (Diamond 1961, p. 79)

The California Supreme Court on appeal accepted the argument made by Diamond and other psychiatrists filing amici curiae briefs in the Gorshen case. It allowed that a showing of ‘mental abnormality not amounting to legal insanity’ could provide evidence that the defendant did not possess the specific mental state required for conviction of a crime but still could be found guilty of a lesser-included crime. However, in response to the furor over the trial of Dan White, the assassin of San Francisco Mayor George Moscone and Supervisor Harvey Milk, the California legislature has undermined most of Diamond’s efforts by eliminating diminished capacity as a defense. Nevertheless, the diminished capacity defense has been utilized in some other states. A mens rea defense of diminished actuality was retained in California. During his long and distinguished career, Diamond also supported an approach to forensic psychiatry in which the psychiatrist in criminal trials would become an advocate, testifying with total honesty solely for the defense. (See Diamond [1985] for a characterization of this approach, which Diamond contrasts with the approach of the late Seymour Pollack, a forensic psychiatrist who established a celebrated forensic training program at the University of Southern California.) In terms of forensic psychiatry, the status of psychiatrist as expert had already been achieved prior to the Freudian ‘revolution.’ Nevertheless, the movement away from interpreting insanity solely as a chemico-physiological imbalance or a hereditary degeneration, to the view that

24 History and practice of forensic psychiatry

dysfunctional mental states and attendant behavioral manifestations arose from environmental and familial influences, opened every aspect of social and psychological life to the scrutiny of the psychiatrist. Psychiatric expertise began to be sought in an ever-widening range of situations. Such an increase in the perimeter of the psychiatrist’s jurisdiction and responsibility is a continuing theme within medical jurisprudence; however, recent developments have moved psychiatry back toward the biological/biochemical. Forensic psychiatry failed to professionalize during its early history not merely because the pioneers and reformers were overzealous or scattered in their energies, which, in fact, they were. On the one hand, figures such as Isaac Ray (a physician), Clark Bell (attorney), and Edwin Keedy (attorney) were striving to organize across professional lines, that is, by including physicians from a variety of specialties and attorneys in their struggles. On the other hand, the task of such reformers was made doubly difficult since they were attempting to achieve meaningful substantive reform in the area of their specialization without having first formally specialized and/or professionalized. Thus, the boundaries of the specialty were unclear and the centers of power were diffuse. Although the formation of the medico-legal societies of the nineteenth and early twentieth century provides evidence that movement toward formal organization had begun, the major player in this respect continued to be AMSAII. Through its journal, the American Journal of Insanity founded in 1844, AMSAII played an important role in educating the growing psychiatric community to the importance of understanding legal issues. At its annual meeting in Washington, DC, in 1892, AMSAII changed its name to the American MedicoPsychological Association (AMPA) and adopted a new constitution. This change recognized the changed shape of the psychiatric profession inasmuch as the medical superintendent no longer dominated professional affairs. Standing committees did the major work of AMSAII and AMPA. In 1882 a committee on the ‘criminal responsibility of the insane’ was added (Barton 1987, p. 88–89). Neither AMSAII, nor its successor, AMPA, was distinguished by vigorous activity on the national scene. It did not provide dynamic leadership for the growth of a subspecialty in forensic psychiatry, let alone the psychiatric profession generally, until after World War I. In 1921, the AMPA again changed its name to the American Psychiatric Association (APA) and by that time had 1000 members (Barton 1987, p. 168). Adolf Meyer, a leader in the specialty before and after World War I, assisted in promoting research in psychiatry and spurred changes in medical education to include greater attention to psychiatry. The emergence of forensic psychiatry could not have occurred without the widening exposure of physicians to education in psychiatry both in their undergraduate and graduate medical education. The addition of psychiatry to the medical school curriculum was slow

in coming. Even by the late 1930s, psychiatry had not been added as a mandatory part of the curriculum at institutions such as the medical school of the University of California, San Francisco, which had only one psychiatrist on its faculty at the time. Forensic psychiatry was also absent from medical school curricula. Except for the medico-legal societies described above, forensic psychiatry was not represented by any formal organization; however, there was movement in the APA with respect to the recognition of the growing importance of forensic issues: In 1925 the first report of the new Committee on Legal Aspects of Psychiatry of the American Psychiatry Association was published. Dr. Karl Menninger submitted the reports as chairman. It marked a true turning point in the history of the problem [the interface of law and psychiatry], and Karl Menninger’s name must rightly occupy an honorable place among the pioneers of an important and difficult task. (Zilboorg 1944, p. 579)

This committee had contacts with the Section on Criminal Law and Criminology of the American Bar Association. In 1934, a section of forensic psychiatry was initiated by the APA under the chairmanship of William Alanson White, who had been president of the APA (1924–1925) and was one of the most vocal critics from the psychiatric community of the criminal justice system. By the end of World War II, the general unresponsiveness of the APA to the growing problems surrounding the practice of psychiatry became patent and had been observed by William Menninger. He and a group called the ‘young turks’ went on to form the Group for the Advancement of Psychiatry (GAP) in 1946 to restructure the APA because of their perception that the APA had been less than responsive in supporting the military during World War II. In fact, major changes in the APA structure were effected through the urging of GAP members, including the establishment of an office of medical director (Barton 1987, p. 118). The Council on Psychiatry and the Law (CPL) of the APA emerged during 1979–1980 out of the Council on Governmental Policy and Law when Alan Stone was APA president. The CPL has been very active in formulating policy proposals for its parent body. Participating with other groups, the CPL breaks up into smaller groups as needs warrant; for instance, the Insanity Defense Work Group developed an APA statement on the insanity defense in December 1982. The APA recommended elimination of the volitional prong of the insanity defense, but use of the word ‘appreciate’ instead of the more cognitive word ‘know’ appeared to minimize the effect of the change. It was prompted by the public furor that arose over the verdict in the case of John Hinckley Jr., who attempted to assassinate President Reagan and who was found not guilty by reason of insanity. The AMA had recommended abolition of the insanity defense and its replacement by a mens rea defense, and the APA statement was seen by

History of forensic psychiatry 25

many as a political move to stem anti-psychiatric public sentiment. H. Keith Brodie, M.D., president of the APA, who signed the foreword to the APA statement, characterized it as follows: ‘This is the first comprehensive position statement on the insanity defense to be developed and adopted by APA’ (American Psychiatric Association 1984, p. 4). Considering the age of the APA and its antecedent organizations, this characterization reveals much about activity within the APA and the caution it has shown in taking formal positions on forensic issues.21 However, it is not from any reforms within the APA itself or action on the part of any of its committees that the formal organization of forensic psychiatry has arisen. Rather, this subspecialty came into existence through the efforts of psychiatrists particularly interested in forensics who maintained professional relationships with law schools and forensic organizations. Through the 1950s, 1960s, and 1970s, law schools became interested in having psychiatrists on their faculties. Psychiatrists such as Bernard Diamond at the University of California, Berkeley; Jay Katz at Yale Law School; Alan Stone at Harvard Law School; and Andrew Watson at the University of Michigan Law School are all examples of this trend. Ultimately, training programs in forensic psychiatry arose. One of the earliest and most notable was the program developed by Seymour Pollack at the University of Southern California. The Western Psychiatric Institute in Pittsburgh is another important center of forensic psychiatric training and activity.22 Probably the most important organization to give attention to the relations of psychiatry and law has been the American Academy of Psychiatry and the Law (AAPL). Jonas Robitscher, lawyer and psychiatrist, characterizes the formal inception of AAPL in 1969 in the following fashion: This formal group [AAPL] was the outgrowth of an informal group of about fifteen, mainly directors of forensic psychiatry fellowship training programs, who had met in connection with the American Psychiatric Association meeting in Boston in 1968. This new group now [1972] has about 250 members, all interested in some phase of legal psychiatry … . The by-laws of AAPL list six aims: to exchange ideas and experience among forensic psychiatrists in North America; to elevate the standards of study and practice in this field; to develop training programs for psychiatrists desirous of acquiring skills in forensic psychiatry; to take leadership in initiating and monitoring research in the field; to improve relationships between psychiatrists 21

Since 1952, the APA has given the Isaac Ray Award to an individual who has made an outstanding contribution to ‘forensic psychiatry or to the psychiatric aspects of jurisprudence.’ Since 1967, the APA (joined by the American Academy of Psychiatry and Law in 1982 as cosponsor) has given the Manfred Guttmacher Award for outstanding contributions to the literature of forensic psychiatry.

22

For an excellent (although somewhat dated) discussion of the changes taking place within forensic psychiatry see Robitscher (1972).

on the one hand and attorneys, legislators, jurists, and penologists on the other; and to take leadership in informing the public of the needs of those involved with the law and the contributions available from psychiatry (Robitscher 1972, p. 316).

AAPL is a thriving and vibrant professional organization that publishes a newsletter (in April, September, and December) and quarterly journal (Journal of the American Academy of Psychiatry and the Law), and sponsors an annual convention. Under the direction of Jonas R. Rappeport as medical director, AAPL became the largest forensic psychiatric organization in the United States. There are chapters of AAPL throughout the United States with the first district branch organized by Richard Rosner in the New York area, known as the tristate chapter. AAPL maintains an active liaison with the American Academy of Forensic Sciences (AAFS). AAPL adopted ethical guidelines in 1987. The American Academy of Forensic Sciences founded in 1948 (as the American Medico-Legal Congress) is composed of experts from diverse disciplines including, but not limited to, psychiatry, pathology, toxicology, anthropology, engineering, and ballistics. Individuals active within the AAFS have made major contributions to the furtherance of the professionalization and specialization of forensic psychiatry. Chief among such contributors was Maier Tuchler, a psychiatrist with extensive experience in forensics, who worked assiduously to form a certifying body for forensic psychiatry.23 Apparently, an idea for such a certifying body had first been proposed by Lowell Sterling in the early 1950s when he was chairman of the psychiatry section of AAFS. Such a proposal was also made in the mid-1950s by Ralph Banay, a psychiatrist active in the world of criminalistics, and editor of the Journal of Correctional Medicine and Social Therapy. However, an earlier movement forming specialty boards had occurred in the 1930s24 and resistance had arisen later within the medical community to what was seen as overspecialization. When AAPL was approached to cosponsor a forensic board with AAFS, there were problems that had to be

23 I am indebted to and would like to thank Stanley Prentice, M.D., F.A.P.A., for allowing me access to materials he prepared in advance of writing a history of the American Board of Forensic Psychiatry. Those materials were invaluable aids in understanding the development of the American Board of Forensic Psychiatry (Prosono 1990). Much of the following history of the American Board of Forensic Psychiatry relies on the work of Dr. Prentice. 24

‘The ABA [American Board of Anesthesiology] was one of nine boards established between the years 1933 and 1938 – a period which saw the flowering of the specialty board movement in the United States, the others being the American Board of Pediatrics (1933), of Orthopedic Surgery (1935), of Psychiatry and Neurology (1935), of Radiology (1935), of Urology (1935), of Internal Medicine (1936), of Pathology (1936), and of Surgery (1937).’ (Little 1981, p. 317)

26 History and practice of forensic psychiatry

overcome. Some of the original founders of AAPL such as Jonas Rappeport looked upon attempts at certification with skepticism. These attempts created dissension in what otherwise was a ‘healthy organization’ and generated the fear that certification might ultimately lead away from the educational mission of AAPL, and create elites within the organization. These objections ultimately subsided when it was realized that AAPL would not be the certifying body itself but rather only a sponsoring agency. The way ultimately opened for the formal organization of a board in June 1976, with the participation of AAFS, AAPL, liaison with the APA and the American Medical Association (AMA), and financing from the Legal Enforcement Assistance Administration (LEAA). The first members of the American Board of Forensic Psychiatry25 (ABFP) were all highly experienced in forensic psychiatry, were involved in teaching, and had been certified by their specialty board, the American Board of Psychiatry and Neurology (ABPN). It had been decided by the founders of ABFP that no members would be ‘grandfathered’ into certification; that is, even those psychiatrists who organized the ABFP would have to sit for the certifying examination. The board required that psychiatrists (limited to those practicing in the United States and Canada) wishing to be certified in forensic psychiatry also be certified by ABPN. In addition, five years of post-residency experience was required with substantial involvement in forensic work. (Consideration was given for time spent in forensic fellowship training programs. One year of credit was given for a law degree.) Two examinations had to be successfully passed: one written given during the annual meeting of the APA, and one oral given during the annual meeting of AAPL. Candidates needed to pass the written examination before taking the oral. Mechanisms were in place for retaking examinations that were not passed and for appealing board decisions. Richard Rosner was instrumental in the creation of standards for accrediting fellowship programs in forensic psychiatry as well as the development of the Accreditation Council on Fellowships in Forensic Psychiatry (ACFFP). Its processes were implemented in 1988 and the first programs were accredited in 1989. The Accreditation Council was supported financially by AAFS and was given administrative support by AAPL. Both organizations became cosponsors . Neither the mechanisms established by the American Board of Forensic Psychiatry for certifying forensic psychiatrists nor the accreditation procedures of the Accreditation Council on Fellowships in Forensic Psychiatry

25

The first board of directors of the American Board of Forensic Psychiatry were: Walter Bromberg, M.D.; Bernard L. Diamond, M.D.; Zigmond M. Lebensohn, M.D.; Herbert C. Modlin, M.D.; Joseph L. Paterson, D.Crim.; Irwin N. Perr, M.D.; Seymour Pollack, M.D.; Stanley L. Portnow, M.D.; Jonas R. Rappeport, M.D.; Robert L. Sadoff, M.D.; John K. Torrens, M.D.; and Maier I. Tuchler, M.D.

are now used. After some years of struggle and negotiation, a decision was made by the American Psychiatric Association to recognize forensic psychiatry as a fullfledged psychiatric subspecialty. Qualifying examinations are no longer conducted under the auspices of ABFP but are administered by the American Board of Psychiatry and Neurology with the concurrence and cooperation of the American Board of Medical Specialties. Such formal recognition will have an impact not only on the credential that forensic psychiatrists come to obtain but also on the nature of their postgraduate education. Since the Accreditation Council for Graduate Medical Education (ACGME) began accrediting fellowship programs in forensic psychiatry in 1997, there are now thirtysix such programs scattered throughout the United States. In addition, there are numerous professional bodies that offer programs in continuing education given credit by ACGME. When the ABPN began certifying forensic psychiatrists by examination, there were no approved ACGME fellowship programs. Thus, the requirements for taking the first examination could have been fulfilled by attending any one of a number of ‘non-approved’ postresidency programs or through a number of years practicing extensively in the field. In 2001, the ‘practice track’ was eliminated and in 2003 only attendance at an ACGME-approved program will be accepted as fulfilling the requirements for examination. Of course, board certification in psychiatry is required before attempting qualification in the sub-specialty of forensic psychiatry. From 1994 through 1999, 1310 board certified psychiatrists were qualified in forensic psychiatry by the American Board of Psychiatry and Neurology. After traveling a circuitous and difficult path, forensic psychiatry has emerged from a history extending back to the beginning of civilization in the West. This emergence has not been smooth; there have been many breaks and bumps in the trail. It is only within the past 250 years that physicians or psychiatrists have been asked into courts to act as expert witnesses. Although many attempts have been made to reorganize or reform the nature of the social action performed by forensic psychiatrists, those attempts have only had limited success. For instance, there is much dissatisfaction with the M’Naghten Rule, but most states retain it despite much psychiatric opposition. Some jurisdictions in recent years have even returned to M’Naghten from the ALI test in response to unpopular trial verdicts and public clamor. There are bound to be additional strains within this sub-specialty as the already large prison population of the United States increases and some States continue to employ the death penalty. Ethical issues abound and will only become more complex. Now that there is a mechanism for complete board certification of forensic psychiatrists, professionalization is formally complete. The next chapter of this history will most likely concern the nature of this subspecialty moving into its maturity, betokening a series of new tensions and challenges.

History of forensic psychiatry 27

REFERENCES Ackerknecht, E.H. 1968: A Short History of Psychiatry. New York and London: Hafner Publishing Company. (First published in 1959.) Ackerknecht, E.H. 1976. Midwives as experts in court. Bulletin of the New York Academy of Medicine 52, 1224–8. Alexander, F.G., Selesnick, S.T. 1966: The History of Psychiatry: An Evaluation of Psychiatric Thought and Practice from Prehistoric Times to the Present. New York: Harper & Row. American Psychiatric Association. 1984: Issues in Forensic Psychiatry. Washington, DC: American Psychiatric Press, Inc. Amundsen, D.W., Ferngren, G.B. 1977. The physician as an expert witness in Athenian law. Bulletin of the History of Medicine 51, 202–13. Amundsen, D.W., Ferngren, G.B. 1978. The forensic role of physicians in Ptolemaic and Roman Egypt. Bulletin of the History of Medicine 52, 336–53. Amundsen, D.W., Ferngren, G.B. 1979. The forensic role of physicians in Roman law. Bulletin of the History of Medicine 53, 39–56. Barton, W.E. 1987: The History and Influence of the American Psychiatric Association. Washington, DC: American Psychiatric Press, Inc. Blackstone, W. 1979: Commentaries on the Laws of England, 4 volumes. Chicago: University of Chicago Press. (First published in 1769.) Bracton, H. de. 1977: De Legibus et Consuetudinibus Angliae. On the Laws and Customs of England, 4 vols. Samuel E. Thorne, trans. Cambridge, MA: Harvard University Press. [This thirteenth-century work is attributed to Henry de Bracton (1210–1268).] Brakel, S.L., Ruck, R.S. (eds). 1971: The Mentally Disabled and the Law. Revised edition. Chicago: University of Chicago Press. Burns, C.R. (ed.). 1977: Legacies in Law and Medicine. New York: Science History Publications. Dain, N. 1976. From colonial America to bicentennial America: two centuries of vicissitudes in the institutional care of mental patients. Bulletin of the New York Academy of Medicine 52, 1179–96. Deutsch, A. 1949: The Mentally Ill in America. A History of Their Care and Treatment from Colonial Times. New York: Columbia University Press. (First published in 1937.) Diamond, B. 1961. Criminal responsibility of the mentally ill. Stanford Law Review 14, 59–86. Diamond, B. 1985. Reasonable medical certainty, diagnostic thresholds, and definitions of mental illness in the legal context. Bulletin of the American Academy of Psychiatry and the Law 13, 121–8. Dietz, P. 1978. Forensic and non-forensic psychiatrists: an empirical comparison. Bulletin of the American Academy of Psychiatry and the Law VI, 13–22.

Eigen, J.P. 1985: Intentionality and insanity: what the eighteenth century juror heard. In Bynum, W.F., Porter, R., Shepherd, M. (eds), The Anatomy of Madness. Essays in the History of Psychiatry. 2 vols., London and New York: Tavistock Publications. Finch, J.S. 1950: Sir Thomas Browne. A Doctor’s Life of Science & Faith. New York: Henry Schuman. Foucault, M. 1972: The Archeology of Knowledge. New York: Harper Torchbooks. (First published in 1969.) Gerber, S.R. 1961: Expert medical testimony and the medical expert. In Schroeder, O., Jr. (ed.), Medical Facts for Legal Truth. Cincinnati: W.H. Anderson, Co. Grob, G.N. 1973: Mental Institutions in America. Social Policy to 1875. New York: The Free Press. Hermann, D.H.J. 1983: The Insanity Defense. Philosophical, Historical and Legal Perspectives. Springfield, IL: Charles C. Thomas. Hunter, R., Macalpine, I. 1963: Three Hundred Years of Psychiatry. 1535–1860. A History Presented in Selected English Texts. London: Oxford University Press. The Institutes of Justinian with English introduction, translation, and notes by the late Thomas Collett Sandars, M.A. 1970. Westport, CT: Greenwood Press. (First published in 1922.) Jackson, S.W. 1983. Melancholia and partial insanity. Journal of the History of the Behavioral Sciences 19, 173–84. Karplus, H. 1973: Medical ethics in Paolo Zacchia’s Questiones Medico-Legales. In Karplus, H. (ed.), International Symposium on Society, Medicine and Law. Jerusalem and Amsterdam: Elsevier Scientific Publishing Company, 125–33. Kelsen, H. 1946: General Theory of Law and State. Anders Weberg, trans. Cambridge, MA: Harvard University Press. (First published in 1945.) Kidd, A.M. 1915. The proposed expert evidence bill. California Law Review 111, 216–26. Little, D.M., Jr. 1981. The founding of the specialty boards. Anesthesiology 55, 317–21. Marx, O. 1970. What is the history of psychiatry. American Journal of Orthopsychiatry 40, 593–605. Mead, G.H. 1980: The Philosophy of the Present. Chicago: University of Chicago Press. (First published in 1932.) Mora, G. 1970: The psychiatrist’s approach to the history of psychiatry. In Mora, G., Brand, J.L. (eds), Psychiatry and Its History: Methodological Problems in Research. Springfield, IL: Charles C. Thomas, 3–25. Mora, G. 1976. 1976 anniversaries. American Journal of Psychiatry 133, 1419–25. Mora, G. (gen. ed.) 1991: Witches, Devils and Doctors in the Renaissance. Johann Weyer, De praestigiis daemonum. Binghamton, NY: Medieval & Renaissance Texts & Studies. Mora, G., Brand, J.L. (eds). 1970: Psychiatry and Its History: Methodological Problems in Research. Springfield, IL: Charles C. Thomas. Neugebauer, R. 1978. Treatment of the mentally ill in medieval and early modern England: A reappraisal.

28 History and practice of forensic psychiatry Journal of the History of the Behavioral Sciences 14, 158–69. Platt, A., Diamond, B.L. 1965. The origins and development of the ‘wild beast’ concept of mental illness and its relation to theories of criminal responsibility. Journal of the History of the Behavioral Sciences 1, 355–67. Platt, A., Diamond, B.L. 1966. The origins of the ‘right and wrong’ test of criminal responsibility and its subsequent development in the United States: an historical survey. California Law Review 54, 1227–60. Pollock, F., Maitland, F.W. 1968: The History of English Law Before the Time of Edward I. Cambridge, UK: Cambridge University Press. (First published in 1895.) Prosono, M. 1990: The Professionalization of Expertise in the Case of Forensic Psychiatry: A Study of Emergence and Quest for Legitimacy. Unpublished dissertation in sociology presented to the graduate division of the University of California, San Francisco. Quen, J. 1968. An historical view of the M’Naghten trial. Bulletin of the History of Medicine XLII, 43–51. Ray, I. 1962: A Treatise on the Medical Jurisprudence of Insanity. Cambridge, MA: Harvard University Press. (First published in 1838.) Reik, L.E. 1953. The Doe-Ray correspondence: a pioneer collaboration in the jurisprudence of mental disease. Yale Law Review 63, 183–96. Robitscher, J. 1972. The new face of legal psychiatry. American Journal of Psychiatry 129, 315–21. Rosen, G. 1968: Madness in Society: Chapters in the Historical Sociology of Mental Illness. Chicago and London: The University of Chicago Press. Rosenberg, C.E. 1968: The Trial of the Assassin Guiteau: Psychiatry and the Law in the Gilded Age. Chicago and London: The University of Chicago Press. Ruggiero, G. 1982. Excusable murder: insanity and reason and early Renaissance Venice. Journal of Social History 16, 109–19. Sesto, G.J. 1956: Guardians of the Mentally Ill in Ecclesiastical Trials: A Dissertation. Washington, DC: The Catholic University of America. Simili, A. 1973: The beginnings of forensic medicine in Bologna (with two unpublished documents). In Karplus, H. (ed.), International Symposium on Society, Medicine and Law. Jerusalem, March 1972, Amsterdam: Elsevier Scientific Publishing Company. Smith, S. 1951. The history and development of forensic medicine. British Medical Journal 4707, 599–607. Szasz, T. 1974: The Myth of Mental Illness. New York: Harper & Row. (First published in 1961.) Szasz, T. 1970: The Manufacture of Madness. New York: Dell Publishing Co. Tighe, J.A. 1983a: A Question of Responsibility: The Development of American Forensic Psychiatry, 1838–1930. Unpublished dissertation in American

civilization presented to the graduate faculties of the University of Pennsylvania. Tighe, J.A. 1983b. ‘Be it ever so little’: reforming the insanity defense in the progressive era. Bulletin of the History of Medicine 57, 397–411. Van Ommeren, W.M. 1961: Mental Illness Affecting Matrimonial Consent. A Dissertation. Washington, DC: The Catholic University of America. Volk, P., Warlo, H.J. 1973: The role of medical experts in court proceedings in the medieval town. In Karplus, H. (ed.), International Symposium on Society, Medicine and Law, Jerusalem, Amsterdam: Elsevier Scientific Publishing Company. Walker, N. 1968: Crime and Insanity in England. 2 volumes. Edinburgh: The University Press. Zilboorg, G. 1944: One Hundred Years of American Psychiatry, Hall, J.K. (ed.), New York: Columbia University Press. Zilboorg, G. 1967: A History of Medical Psychology. New York: W.W. Norton & Co., Inc. (First published in 1941.)

Suggested reading Eigen, J.P. 1995: Witnessing Insanity. Madness and MadDoctors in the English Court. New Haven: Yale University Press. Foucault, M. 1973: Madness and Civilization. A History of Insanity in the Age of Reason. New York: Vintage Books. (First published in 1961.) Foucault, M. 1979: Discipline and Punish. The Birth of the Prison. New York: Vintage Books. (First published in 1975.) Kriegman, G., Gardner, R., Abse, D.W. (eds). 1975: American Psychiatry: Past, Present, and Future. Charlottesville: University Press of Virginia. Mora, G. 1965: The history of psychiatry: a cultural and bibliographical survey. Psychoanalytic Review 52, 154–84. Nemec, J. 1969: International Bibliography of Medicolegal Serials, 1736–1967. Washington, DC: U.S. Department of Health, Education, and Welfare, Public Health Service, N1H, National Library of Medicine. Rieber, R.W. (ed.). 1981: Milestones in the History of Forensic Psychology and Psychiatry: A Book of Readings. New York: DeCapo Press, Inc. Riese, H. (ed.). 1978: Historical Explorations in Medicine and Psychiatry. New York: Springer Publishing Company. Rosner, R. (ed.). 1982: Critical Issues in American Psychiatry and the Law. Springfield, IL: Charles C. Thomas. Rosner, R. (ed.). 1985: Critical Issues in American Psychiatry and the Law, vol. 2. New York: Plenum.

History of forensic psychiatry 29 Appendix 3.1 Important dates in the history of forensic psychiatry (dates BC are approximate). Date

Event

3000 BC 1850 BC 1800 BC

Imhotep combines the role of priest/physician/statesman and scientist. First murder trial in Babylonia in which an expert witness (midwife) appears. Code of Hammurabi makes early recognition of importance of intent in criminal law but punishes most crimes with death. Hebrew law establishes the intent of actor when establishing guilt for murder. Birth of Hippocrates (died 377 BC). Twelve Tables of Roman Law refers to the legal incapacities of children and the insane; provided for guardianship of fools by family or paternal relatives. Lex Aquila in Roman law does not hold a man accountable for damage to property when caused without negligence or malice. Lex Cornelia punishes those who injured the personality of victim or lowered esteem in which victim was held, but exempted children and the insane when they committed such injury. Birth of Galen (died AD 201). Code of Justinian likens the insane person to someone who was absent, asleep, or dead, although the insane did keep their property and their offices. When considering crime, the insane were excused as were children who could not form the requisite intent. Henry de Bracton writes On the Laws and Customs of England, a discussion of the ‘wild beast test.’ Enactment of Praerogativa Regis or King’s Right in the reign of Edward I. Established system whereby the king conserved the property of an individual who became insane after birth; however, the property of congenital fools reverted entirely upon the king. Special commissions were held to determine mental status and property rights. City of Bologna establishes the first expert medical investigatory service in Europe. One of the first recorded medico-legal autopsies performed in Bologna. First possible publication date of the Malleus Maleficarum, or Witches’ Hammer, written by two Dominican friars, Jakob Sprenger and Heinrich Kraemer, as a handbook for witchhunters. Wardships such as those established by the Praerogativa Regis are transferred to the English Court of Chancery (where they are still heard today). Sir Thomas Browne testifies in the trial of two women for witchcraft. Thomas Willis publishes his Opera Omnia, which describes various cerebral diseases and a host of psychiatric disorders. Arnold case. Publication of Matthew Hale’s History of the Pleas of the Crown. Pennsylvania Hospital opens in Philadelphia with one of its expressed intents ministering to those with mental diseases; first hospital of its kind in colonial America. Trial of Earl Ferrers; first criminal trial in which physician appears as expert witness in English law on issue of mental state. Hadfield case. Benjamin Rush delivers a lecture entitled ‘Lecture on the Medical Jurisprudence of the Mind.’ Bellingham case. Benjamin Rush writes Medical Inquiries and Observations on the Diseases of the Mind. Isaac Ray writes A Treatise on the Medical Jurisprudence of Insanity. Oxford case. M’Naghten case. First issue of the American Journal of Insanity. Founding of the Association of Medical Superintendents of American Institutions for the Insane. Commonwealth v. Rogers, 48 Mass. 500 (1844). Founding of the American Medical Association. First American treatise on neurology, An Inquiry Concerning the Diseases and Functions of the Brain and Spinal Cord, written by Amariah Brigham. Founding of the New York Medico-Legal Society. John Ordronaux is appointed first commissioner of lunacy in New York State. Founding of Massachusetts Medico-Legal Society. Trial of Charles Guiteau for assassination of President Garfield. Founding of the Society of Medical Jurisprudence of New York City. Founding of the Philadelphia Society of Medical Jurisprudence. Founding of the Rhode Island Medico-Legal Society. Founding of the Chicago Medico-Legal Society. Parsons v. State, 2 So. 854 (Ala. 1887). Founding of the Denver Medico-Legal Society.

1200 BC 460 BC 450 BC

AD AD

AD AD

130 528

1256 1272

1292 1302 AD 1487 AD AD

AD

1648

AD

1664 1681

AD

1724 1736 AD 1752 AD AD

AD

1760

1800 1810 AD 1812 AD AD

1838 1840 AD 1843 AD 1844 AD AD

AD AD

1847 1849

1867 1872 AD 1877 AD 1881 AD 1883 AD 1884 AD 1885 AD 1886 AD 1887 AD 1890 AD AD

30 History and practice of forensic psychiatry 1892 1897 AD 1900 AD 1909 AD AD

AD

1921

AD

1925

1933 1934 AD 1935 AD 1946 AD 1948 AD 1949 AD 1952 AD AD

1954 1959 AD 1967 AD AD

1969 1972 AD 1976 AD 1982 AD AD

1987 1988 AD 1989 AD 1993 AD AD

AD

1994 1999

AD

2001

AD

2003

AD

AMSAII changes its name to American Medico-Psychological Association. Davis v. United States, 165 U.S. 373 (1897). Publication of Sigmund Freud’s Interpretation of Dreams. National Conference on Criminal Law and Criminology held at Northwestern University Law School; attorney Edward Keedy forms committee to reform insanity law. First psychiatric court clinic established in Chicago at Juvenile Court by William Healy. American Medico-Psychological Association changes its name to American Psychiatric Association; the American Journal of Insanity changes its name to the American Journal of Psychiatry. Karl Menninger as its chairperson submits the first report of the Committee on Legal Aspects of Psychiatry of the American Psychiatric Association. Founding of American Board of Medical Specialties (at first named Advisory Board for Medical Specialties). William Alanson White chairs the first section on forensic psychiatry initiated by APA. Founding of American Board of Psychiatry and Neurology. William Menninger founds Group for the Advancement of Psychiatry. Founding of American Academy of Forensic Sciences (as American Medico-Legal Congress). People v. Wells, 33 Cal. 2d 330 (1949). First Isaac Ray Award presented by the American Psychiatric Association to Winfred Overholser, superintendent of St. Elizabeth’s Hospital; award is made to an individual who has made outstanding contributions to the field of forensic psychiatry. Durham case – crime a ‘product’ of mental disease or defect (Durham acquitted). People v. Gorshen, 51 Cal. 2d 716 (1959). Manfred S. Guttmacher Award established by American Psychiatric Association to honor outstanding contributions to forensic psychiatry; first presented in 1972. Founding of American Academy of Psychiatry and the Law. Brawner case – Durham Rule abandoned; ALI rule adopted. Founding of American Board of Forensic Psychiatry. Barefoot v. Estelle, 463 U.S. 880 (1982) – Supreme Court of the United States found that psychiatrists are competent to testify to the question of future dangerousness of an individual convicted of capital crime and sentenced to die; American Psychiatric Association joined defense as amicus curiae in opposing this outcome. AAPL adopts ethical guidelines. Accreditation Council on Fellowships in Forensic Psychiatry implements its processes. First programs accredited by Accreditation Council on Fellowships in Forensic Psychiatry. American Board of Psychiatry and Neurology and American Board of Medical Specialties are preparing to formally establish forensic psychiatry as a subspecialty and administer appropriate examinations. American Board of Psychiatry and Neurology takes over certification process in forensic psychiatry. There were approximately 1310 psychiatrists who qualified in forensic psychiatry since the American Board of Psychiatry and Neurology began the certification process. Last certification of forensic psychiatrists who graduated from a non-ACGME approved program in forensic psychiatry. First examination planned by the American Board of Psychiatry and Neurology for all candidates who graduated from approved ACGME programs in forensic psychiatry.

4 Forensic psychiatric report writing J. ARTURO SILVA, ROBERT WEINSTOCK AND GREGORY B. LEONG

Forensic psychiatric report writing can be the essential – or even the only – work product of a forensic psychiatric examination. Attorneys may request confidential evaluations which are protected in many states under an attorney–client privilege. Reports may be requested by judges to advise them regarding how to proceed in the sentencing phase and to help them determine the most appropriate action. Most importantly, the overwhelming majority of cases referred for psychiatric evaluation result in written forensic psychiatric reports. An exception would be when an attorney requires a confidential consultation, without the risk of an unfavorable report reaching the other side. However, in most cases the report is the most important piece of psychiatric input, since most cases involving psychiatric issues are settled without courtroom testimony and cross-examination. Therefore, the findings in the forensic psychiatric report become the basis upon which the case is settled. Attorneys utilize the report in trying to assess the strengths and weaknesses of their cases. The forensic psychiatric report is the primary format in which forensic psychiatrists can demonstrate their diligence and expertise. Relevant information and explanations of reasoning cannot be omitted with the rationale that they will be given during courtroom testimony or thorough cross-examination, since neither of these usually occur. However, in the forensic psychiatric report, the psychiatrist’s opinion can be presented in the most persuasive format. The report itself is likely to stand or fall on its own. According to Rosner (1990), the essential elements of a forensic psychiatric examination involve addressing the following four points: 1 2 3 4

What is the specific psychiatric-legal issue? What are the legal criteria that determine the issue? What are the relevant psychiatric-legal data? What is the reasoning process used to reach a conclusion?

Whilst all these elements must be addressed in the report, it is essential to distinguish between them and not

to obscure them with an unexplained conclusory opinion regarding the legal issue. Forensic psychiatric reports can be a substantial problem for the psychiatrist without forensic training who may conduct a standard psychiatric evaluation without adapting it to the legal arena. In fact, many of the objections that judges, attorneys, and other people in the legal system express regarding psychiatric reports is that they frequently fail to collect and link the psychiatric information necessary to address the relevant psychiatric-legal issues. Essential differences exist between the ordinary psychiatric report and the psychiatric report intended for legal purposes. The forensic psychiatrist is generally not writing the report for other clinicians (the usual purpose of a psychiatric report). Rather, legal personnel and laypersons, who are not familiar with psychiatric terminology, read it. Therefore, it is important to minimize technical jargon as much as possible, provided that the quality and accuracy of the report is not compromised. Abbreviations should be kept to a minimum, and when technical terms are used they should be explained clearly and concisely. The forensic report may readily become public knowledge through incorporation into the official court record and thus be accessed by the public, including the media. The report may also be subject to careful scrutiny in order to find any inaccuracy or misstatement. It can be used by a skillful attorney (especially with the assistance of a knowledgeable forensic psychiatric expert) to discredit and embarrass the mental health professional who wrote it if the case reaches the trial stage (Melton et al. 1997). Any minor inaccuracy, even if not essential to the opinion, could be used to totally discredit an expert.

ELEMENTS OF A GOOD FORENSIC REPORT The non-forensic psychiatric report starts with the history and clinical data and includes a mental status examination.

32 History and practice of forensic psychiatry

It concludes with a list of diagnoses, some of which may be only tentative and may be ruled out as new information is obtained. The report evinces a scientific search for truth reflecting the progress of an ongoing evaluation or treatment. The forensic psychiatric report includes some data similar to the clinical psychiatric report. However, in Pollack’s (1974) opinion, the principles of forensic psychiatry require a higher level of certainty for legal purposes than may be appropriate for other purposes. Pollack also developed the concept of ‘reasonable medical certainty,’ which requires that ‘the forensic psychiatrist be more certain rather than less in his or her psychiatric judgments about observational data and that he/she should be called upon to demonstrate that his/her clinical inferences also hold a professionally acceptable level of conviction.’ Others such as Diamond (1985) would permit psychiatric opinions, including opinions held by only a minority of psychiatrists with their usual clinical level of confidence, but would make the level of confidence including any uncertainty clear (Katz 1992). Diamond (1985) preferred the term ‘reasonable medical probability.’ Forensic psychiatric reports can lead to action with irreversible consequences more often than clinical reports, so more care should be exercised. There also are more areas for disagreement. Although the psychiatric-legal issue usually can be ascertained from the report, there may be disagreement regarding the specific criteria for the psychiatric-legal issue. Therefore, the criteria for the psychiatric-legal issue utilized by the forensic psychiatrist need to be stated clearly to prevent confusion or obfuscation of crucial facets. There certainly can also be differences in the application of the psychiatric data to the legal issue, and there can be differences in the reasoning process. Pollack recommended mentioning alternative possibilities to the main opinion, and why these interpretations were rejected. The reasoning process and alternative possibilities can be obscured in an unexplained conclusory report. Such reports risk disguising misinterpretations of legal criteria or moral judgments as psychiatric expertise. Some forensic psychiatrists have advocated not expressing an opinion on the ultimate issue (Katz 1992), in order to express an opinion only on that psychiatric issue for which they have expertise. They also believe that it encourages the psychiatrist to explain what has happened, and clarifies that the moral issue should be decided by the trier of fact. Most forensic psychiatrists, however, consider opinions on the ultimate legal issue proper unless legally proscribed from doing so. Not expressing an opinion on the legal issue can be an artificial limitation, and expertise in forensic psychiatry should involve familiarity with relevant legal criteria. Report formats need not follow a specific style, and may differ. Lawyers and judges are most familiar with the legal report format that begins with the conclusion(s), followed by explanations of the facts and reasoning that support it. Forensic psychiatrists may wish to adopt this legal

format in order to make it more readable to attorneys and judges who may not wish to wade through enormous amounts of information prior to reaching the conclusion. This format will be utilized in this chapter, but it is not necessary and a standard psychiatric format is often acceptable. Nonetheless, we emphasize that a potential problem with the general psychiatric format is that the relevant legal opinions may be missed and obscured by the mass of clinical material that may be of little relevance to the judge or the attorney. If the general psychiatric format is used, the relevant reasoning and legal conclusions nonetheless must be added. Purely conclusory reports are unacceptable, even if requested by an uninformed judge or attorney. In forensic psychiatric cases, the opinion is often best placed at the beginning of the report in legal style so that the judge or other officers of the court may, if they wish, read the opinion before they undertake a more comprehensive reading of the report. However, the other aspects of a report still are essential. In most cases it is also crucial that a careful examination be performed and all the relevant data obtained (see Chapter 2). The attorney should be asked to provide all relevant data and clarify the legal question and criteria. The interviewing of collateral sources may be necessary, and psychological, neurological and other medical tests may need to be performed before a conclusion is reached. If necessary, home visits should be carried out. If a report is required before full evaluation is completed, the tentative nature of any conclusions should be stated, or the attorney should be informed that no opinion is yet possible. If relevant information is being intentionally withheld because of legal technicalities, then questions should be raised that the forthcoming evidence might contradict an opinion desired by the attorney. Ordinarily, the forensic psychiatrist should insist on seeing such evidence before offering an opinion. Despite attorneys wanting clear conclusions, uncertainty should be acknowledged if clearly present (Katz 1984). It is dishonest to imply unwarranted certainty. Presenting the reasoning and indicating the degree of certainty of an opinion is essential. If the psychiatrist has a very unusual philosophy or point of view, he or she has an affirmative obligation not to disguise it as well-accepted scientific knowledge. Pollack would have gone further and said that such opinions did not reach the required level of reasonable medical certainty necessary for psychiatric-legal opinion making. Because evaluees in forensic settings often have motives to try to convince an evaluator to form a self-serving opinion, whenever possible all data from them must be checked out and compared with independent sources of information such as police reports, psychiatric records, and interviews with other persons including other health professionals. It also is important to clarify areas of agreement with other psychiatrists so that all the opinions will not be dismissed by the trier of fact because of a minor technical disagreement. For example, all the examining forensic psychiatrists may agree that a person is psychotic – and

Forensic psychiatric report writing 33

that may be all that is important in reference to the legal issue. Psychiatrists may disagree whether a person suffers from schizophrenia, bipolar disorder, or schizoaffective disorder, but the technical disagreement may be irrelevant for the legal purpose.

ELEMENTS OF A GOOD FORENSIC EVALUATION In this chapter, special reference is made to two oftenused report formats in the forensic psychiatric area. Pollack (1974) recommended the following format for a forensic psychiatric report: I Identifying data. II Agency or person requesting examination and reasons for request. III Identification of place, dates and duration of examination(s). IV Itemization and identification of all data basic to opinions: All persons examined and interviewed, all records and all collateral material reviewed before or after examination of the patient, and all materials used as the basis of the psychiatrist’s opinions should be itemized and identified. The relevant materials from such reports should not be copied into the report but referred to in section VII (see below) when used to justify the psychiatric opinion. V Outline of psychiatric-legal issues: If not provided by the attorney or judge, the psychiatrist should outline the specific legal issues to be addressed. VI Psychiatrist’s opinions: A separate paragraph should be provided for each psychiatric conclusion which relates to the specific legal inquiry. VII Data and reasoning basic to opinions: The psychiatrist should provide an itemization of those materials considered basic for his/her opinions, and indicate why these opinions were given highest priority as opposed to other opinions considered by him/herself but considered less likely. Pollack advocated including all significant materials here – both data supporting the psychiatrist’s opinions and those which appear contrary. In another separate paragraph, if indicated, there should be an outline of other possible conclusions or interpretations of behavior, and an opinion as to their ranking order on the scale of probability. This approach indicates that all data were considered, and gives an accounting of data and opinions considered but discarded. It is similar to a medical differential diagnosis. Any inconsistencies or contradictions in data should be noted, with explanations provided whenever possible. Different types of psychiatric data should be clearly specified and demarcated. The history, clinical observation, the patient’s subjective responses, the psychiatrist’s subjective

responses to the patient, descriptions from collateral sources, and psychological test reports all should be distinguished. In Pollack’s format, aspects of the clinical psychiatric examination should be included, but usually only when coupled with their specific relationship to the legal issue. This includes significant experiences of life history and personality development and clinical data obtained during the psychiatric examination (mental status). There should be a description of how and why these aspects relate to the legal issue. Psychiatric inferences and interpretations of behavior and mental and emotional states should be distinguished from more basic clinical or other descriptive data. Pollack advocated making a clinical psychiatric diagnosis if possible, but relating it to the psychiatric inquiry and opinion. Psychodynamic inferences should be clearly identified including historical, developmental, and behavioral data, and the reasoning by which such inferences were derived should be elaborated in a separate paragraph (Pollack 1974). In presenting the reasoning, Pollack recommended presenting first the data and reasoning which most persuasively supports the final opinion rather than opening with negative data. Pollack recommended that only the most meaningful and relevant materials should be included and linked to the legal issue by expressed reasoning. Rejected possible opinions should then be presented with reasoning related to why it was not sufficiently persuasive to overturn the major opinion. He recommended offering levels of confidence about alternative minor rejected opinions that are relevant to the legal issue and describing how much probative weight is given, and why. The most persuasive format in Pollack’s opinion is to couple the data with reasoning following the psychiatric opinion. He believed that the report should be as short as possible, with inclusion of only the most significant probative material. The level of confidence of the expert’s opinion should also be given, and it should be specifically indicated if it falls below reasonable medical certainty. Positive findings from the physical and neurological examinations, laboratory studies, and other medical reports should be summarized in a separate paragraph. If further examinations are indicated to substantiate the psychiatrist’s opinions, they should be recommended in this section in Pollack’s format. Psychiatric qualifications should be noted under the psychiatrist’s signature emphasizing those such as being a diplomate of certifying boards, which characterize his or her expert status. Pollack’s format can include information regarding psychiatric history, mental status, reasoning behind the psychiatric diagnosis, and a description of the data surrounding the events in question, but only to the extent that information from these categories is relevant for the legal conclusion and only in the section describing the reasoning process. Many reports in Pollack’s style therefore do not include a psychiatric diagnosis or mental status examination. Although

34 History and practice of forensic psychiatry

the reasoning section is undoubtedly essential, Pollack’s view is controversial because it does not routinely include the psychiatric data, which usually is part of a clinical evaluation. Most forensic psychiatrists do include this data, as illustrated below. Pollack’s style emphasizes the reasoning process as the most important part of the report including analysis of alternative possibilities, and why they were rejected. In comparison to Pollack’s approach, the format for psychiatric report writing originally recommended by the American Board of Forensic Psychiatry lends itself to more comprehensive reports. This format also follows the legal style, but includes more of the usual psychiatric data which are part of a clinical report. It is given as a model style, which need not be rigidly applied. However, the Board states that unacceptable reports generally lack significant information in one or more of these categories. For instance, they do not separate data from conclusions, or do not identify the relevant legal question to be answered. In the following discussion we will also make some recommendations that we think are likely to increase the efficacy of the forensic psychiatric report, thereby modifying somewhat, the latter format. The Board format is as follows: I Introduction: The examinee should be identified, as well as the person or agency requesting the psychiatric evaluation. The purpose of the evaluation should be stated, i.e., the legal question that the examiner is being asked to address. The legal standard under which the evaluation will be considered should be made explicit. II Opinion: This section should contain a summary of the final opinion in language meeting the legal standard. III Sources of information: These should be identified. Data, duration and location of interviews should be noted. All documents that were reviewed should be identified and listed. IV Confidentiality: This section should include the nature of confidentiality as explained to the examinee, and an estimation of the examinee’s comprehension of that communication. V Data surrounding the events in question: This section should include the events and relevant aftermath as described by the examinee, as well as data from other versions according to records or others. Generally, detailed descriptions with quotations are important when possible. VI Relevant past history: The examinee’s family and developmental history, prior medical, criminal and psychiatric history, quotations from other documents and interviews may be included here. This section generally follows the outline of a psychiatric history. VII Mental status examination: It is generally important to have a complete mental status evaluation,

including a description of the circumstances of the evaluation, whether or not the examinee was taking medication at the time, and who were present during the interviews. Descriptions of appearance, speech, affect, perception, apperception, intelligence, thought process and content, attention, orientation, memory, judgment, insight and cognition are appropriate. VIII Summary of special studies: In this section, summaries of psychological testing, neurological examinations, electroencephalograms (EEGs), computed axial tomography (CAT) scans, etc., should be reported. IX Diagnostic and forensic formulation: In this section the preceding data should be organized and marshaled so as to make clear the basis for the psychiatric diagnosis, if any. In a similar fashion, the basis for the conclusions relating to the legal questions should be written in language relatively free of jargon, outlining the specific legal standards, whether or not the ultimate issue is directly addressed. We also recommend that Section IX be explicitly divided into a diagnostic section as well as a section encompassing the forensic formulation. The diagnostic section should begin by acknowledging the type of nosological criteria that will be used, which in the United States usually corresponds to the most recent version of the Diagnostic and Statistical Manual (DSM) of Mental Disorders (American Psychiatric Association [APA] 2000). If other diagnostic systems are used, these should be clearly acknowledged. Moreover, because the DSM approach is the standard for psychiatric diagnosis in the United States, experts who opt to use a different diagnostic system are obliged to explain their decision to do so, including providing adequate data to indicate the scientific or other (e.g., psychodynamic) basis for using a different nosological system. If psychological testing is to be used as an adjunct of the diagnostic process, this should also be explicitly acknowledged in the diagnostic section. Malingering of mental illness is especially relevant to forensic psychiatric examinations because individuals involved in legal proceedings may exaggerate their psychiatric symptoms in order to obtain a favorable outcome. In the criminal law area, for example, the defendant may fabricate or exaggerate mental difficulties in order to minimize his or her criminal responsibility, whilst in civil cases the plaintiff may malinger in an effort to prove occupational or social disability in order to collect monetary awards. We strongly recommend that malingering be considered on a routine basis in forensic psychiatric evaluations. If a systematic examination of malingering is deemed necessary, DSM-IV-TR recommends that four factors should be considered: (i) medico-legal context of the presentation, which by definition in a forensic report is always present; (ii) substantial discrepancy between the evaluee’s stress or disability and objective data; (iii) lack of

Forensic psychiatric report writing 35

cooperation during the psychiatric evaluation and noncompliance to recommended treatment; and (iv) the presence of antisocial personality disorder (APA 2000). According to this approach, an evaluee should be strongly suspected of malingering if any combination of the above four factors are present. This approach has the disadvantage that the diagnosis of antisocial personality disorder and its requisite precursor, conduct disorder, can be a laborious and time-consuming process. Moreover, some would stress that there is little support for antisocial personality disorder as a sensitive marker of malingering (Resnick 1998). For certain specific problems such as posttraumatic stress disorder or psychosis, certain algorithmic approaches have been proposed that can be generally helpful (Resnick 1998; Hall and Poirier 2001). Many psychometric instruments have been used in evaluations for malingering (Hall and Poirier 2001), some of which can be administered in a short time (Miller 2001). However, some of these instruments may require specialized training and are themselves time consuming in their administration (Hall and Poirier 2001). Dissimulation of sanity should also be considered as a possibility (Diamond 1956). Psychiatric symptomatology can be withheld even when it could be to the person’s legal advantage to be mentally ill. It is not uncommon for individuals with psychotic illness to refuse to accept that they are mentally ill, and it may entail a careful appropriately focused evaluation to get through their denial and detect legitimate mental illness. It can be more acceptable to some individuals to be thought antisocial than psychotic or mentally ill. Additionally, in criminal cases, the defendant may attempt to make fictitious attempts to appear healthy in order to avoid being declared incompetent to stand trial and sent to a psychiatric hospital. In civil cases involving child custody, a mentally ill parent may attempt to deny psychopathology in order to secure the right to interact with his or her child. Dissimulation of sanity probably is under-appreciated, and is very easy to overlook. Inadequate superficial examinations can miss both malingering and dissimulation of mental health (see Chapter 55). The DSM system requires a multi-axial diagnostic impression for clinical purposes. In the forensic psychiatric area, judges and attorneys frequently want to see the total diagnostic impression upon which the psychiatriclegal opinions were based. We therefore recommend a complete multi-axial impression be provided using all five axes toward the end of the diagnostic section. In most cases, at the very least, Axis I and II categories should be included. Some cases may demand close scrutiny regarding specific steps required to make a diagnosis. This may include utilization of instrumentation known to increase reliability of diagnostic assessments such as semistructured interviews like the Structured Clinical Interview for DSM-IV Axis I Disorders (SCID-I) (First et al. 2000). Some semi-structured interviews may require special training for optimal use. The same may be true for characterization of symptom clusters that require

re-evaluation and comparison from two or more time periods. In forensic psychiatric evaluations, reliable scales designed to provide some quantitative characterization of general psychopathology or specific symptom clusters may be of substantial help (Perkins et al. 2000; Yonkers and Samson 2000). Regarding the formulation of the forensic psychiatric opinion, it should be clear from the outset that a diagnostic impression is usually only a starting point for considering relevant psychiatric-legal opinions. Usually, the mere statement that an individual suffers from a specific set of mental disorders does not provide sufficient resolution. Specific symptoms, symptom combinations or disabilities of legal relevance must be clearly identified and characterized in detail. These in turn must then be linked to the specific legal questions. The specific linkage between relevant psychiatric categories and legal questions should be illustrated through the use of real-life examples from the relevant case or with the aid of hypothetical scenarios, if appropriate, whenever consideration of probability of further occurrence is an important component of the forensic psychiatric opinions. The Board format has a section indicating the explanation given an evaluee regarding confidentiality limitations. This aspect is important, since explanations are required in ethical guidelines (see Chapter 8). This inclusion is also important because in some jurisdictions failure to explain the nature and purpose and confidentiality limitations could preclude the testimony and report from being admissible. Even if not specifically mentioned in the report, it is crucial for ethical reasons to describe confidentiality limitations to any evaluee. Most forensic psychiatrists recommend indicating in the report that an explanation was given. Many similarities exist between different forensic psychiatric report styles. All acceptable styles identify the legal issue, frequently use a legal format, identify all the data obtained and utilized, and have a section applying the psychiatric data to the legal data as well as an explanation of the basis for the legal conclusion which includes the reasoning process. Most acceptable formats include a psychiatric history, mental status, reasoning behind the psychiatric diagnosis, and a description of data surrounding the events in question.

REFERENCES American Psychiatric Association. 2000: Diagnostic and Statistical Manual of Mental Disorders. Fourth edition, text revision. Washington, DC: American Psychiatric Association. Diamond, B.L. 1956. The simulation of sanity. Journal of Social Therapy 2, 158–65. Diamond, B.L. 1985. Reasonable medical certainty, diagnostic thresholds, and definitions of mental illness

36 History and practice of forensic psychiatry in the legal context. Bulletin of the American Academy of Psychiatry and the Law 13, 121–8. First, M.B., Spitzer, R.L., Williams, J.B.W., Gibbon, M. 2000: Structured clinical interview for DSM-IV Axis I disorders (SCID-I). In: Task Force for the Handbook of Psychiatric Measures (eds.), Handbook of psychiatric measures. Washington, DC: American Psychiatric Press, 49–53. Hall, H.V., Poirier, J.G. 2001: Detecting Malingering and Deception: Forensic Distortion and Analysis. Boca Raton, Florida: CRC Press. Katz, J. 1984: The Silent World of Doctor and Patient. New York: The Free Press. Katz, J. 1992. ‘The fallacy of the impartial expert’ revisited. Bulletin of the American Academy of Psychiatry and the Law 20, 141–52. Melton, G.B., Petrila, J., Poythress, N.G., Slobogin, C. 1997: Psychological Evaluations for the Courts. Second edition. New York: Guilford Press. Miller, H.A. 2001: M-Fast: Miller Forensic Assessment of Symptoms Test, professional manual. Odessa, Florida: Psychological Assessment Resources, Inc.

Perkins, D.O., Stroup, T.S., Lieberman, J.A. 2000: Psychotic disorder measures. In: Task Force for the Handbook of Psychiatric Measures (eds.), Handbook of psychiatric measures. Washington, DC: American Psychiatric Press, 485–513. Pollack, S. 1974: Forensic Psychiatry in Criminal Law. Los Angeles: University of Southern California. Resnick, P.J. 1998. Malingering of posttraumatic psychiatric disorders. Journal of Practical Psychiatry and Behavioral Health 4, 329–39. Rosner, R. 1990: Forensic psychiatry: a subspecialty. In: Rosner, R., Weinstock, R. (eds), Ethical Practice in Psychiatry and the Law. New York: Plenum Press, 19–29. Yonkers, K.A., Samson, J. 2000: Mood disorder measures. In: Task Force for the Handbook of Psychiatric Measures (eds.), Handbook of psychiatric measures. Washington, DC: American Psychiatric Press, 515–48.

5 Guidelines for courtroom testimony PHILLIP J. RESNICK

The role of the expert witness is to educate the court about matters that are beyond the layperson’s understanding. Medical reports or testimony are required in 50–85 per cent of all trials (Hirsch, Morris, and Moritz 1979). The U.S. Supreme Court has discussed the ‘pivotal role that psychiatry has come to play in criminal proceedings’ (Ake v. Oklahoma 1985). The court expects psychiatrists to ‘conduct a professional examination on issues relevant to the defense, help to determine whether the insanity defense is viable, to present testimony, and to assist in preparing the cross-examination of the state’s psychiatric witness.’

TYPES OF WITNESS It is a general principle of law that courts have a right to every person’s evidence. A psychiatrist may be subpoenaed to testify either as a fact (percipient) witness or as an expert witness. A fact witness simply states his or her direct observations. For example, a psychiatrist who saw a patient for psychological symptoms after an automobile accident might be asked to testify about the presenting complaints, number of visits, and any medications prescribed. A psychiatrist is not ordinarily asked to give opinions when serving as a fact witness. In a small minority of jurisdictions, however, the court may ask treating psychiatrists to state an opinion. The psychiatrist should then be qualified as an expert witness and may seek an expert witness fee from the party who sought the opinion (Hirsch 1975). The opinions of treating psychiatrists may be given high credibility by the court because they are not the views of hired witnesses. The expert witness is a witness who has a ‘special knowledge’ of the subject on which testimony is to be given. The knowledge must be viewed as not normally possessed by the average person. The psychiatric expert witness may testify in the form of an opinion about facts directly related to the profession of psychiatry. In practice, the psychiatric expert witness may function to make the judge

aware of the facts, as well as his or her conclusions about symptoms, causation, and prognosis (Gutheil 1998).

TRUTH, ADVOCACY, AND ETHICS The objective of trials is the peaceable settlement of disputes with the appearance of fairness. Trials make no pretense of being scientific. In the United States and England, trials are conducted within the adversary model – that is, the attorneys are advocates of the causes they represent. Cast into the midst of this battle, the ethical psychiatric witness must resist the temptation to accept an advocate’s role (Curran et al. 1980). It is a fallacy to assume that a psychiatric witness can be completely impartial. Regardless of whether one is employed by the court or by an attorney, the psychiatrist usually starts out with an impartial attitude. Once he or she has formed an opinion, however, it is only human for them to identify themselves with that opinion and to hope for the success of the side that supports their conclusions (Diamond 1959). However, once the psychiatrist takes the witness stand, he or she must do their best to impartially preserve the truth and their professional integrity. Relevant information may not be kept secret (Halleck et al. 1984). The psychiatrist must guard against any sense of loyalty to the retaining attorney that would cause him or her to shift his thinking from that of an objective expert witness to that of an advocate. Blatant advocacy is easily recognized and reduces the credibility of the expert witness; subtle advocacy is the more difficult problem. Zusman and Simon (1983) reviewed examinations of plaintiffs about psychological damage resulting from the 1972 collapse of the Buffalo Creek dam. They attributed differences in psychiatric opinions to the interview settings, the examiners’ training and orientation, and forensic identification with the attorneys who employed them. Psychiatrists who are inexperienced in courtroom work may be unaware that their diagnoses and conclusions

38 History and practice of forensic psychiatry

regarding legal issues are considered only as opinions. Juries are instructed to decide for themselves how much weight to give the testimony of each witness. Even when it is uncontradicted, the jury has the right to disregard psychiatric opinion evidence. The jury alone makes the ultimate decisions about disputed issues, such as criminal responsibility or liability for malpractice. The expert should not go beyond the available data or the scholarly foundations of his or her testimony (Brodsky and Poythress 1985). An ethical psychiatric expert can enhance their credibility by appropriately acknowledging facts of the case which are unfavorable to their opinion, the limitations of their opinion, and hypothetical situations under which their opinion would be different (Gutheil 1998).

Preparation for testimony When approached by an attorney to perform an evaluation in order to help resolve a legal dispute, the psychiatrist should initially clarify several points. The specific legal issue and legal standard should be put in writing by the attorney. In a criminal case the attorney, for example, may wish an opinion about competency to stand trial, sanity at the time of the act, or psychiatric factors for mitigation of the penalty. Legal standards vary from one jurisdiction to another. Before accepting any legal referral, psychiatrists should be certain that there is no actual conflict of interest or even an appearance of conflict of interest. Fees should also be clearly understood. Before beginning an evaluation for legal purposes, the psychiatrist has an absolute obligation to inform the subject about the absence of confidentiality and to specify those persons who will receive copies of any report. Psychiatrist–patient confidentiality by treating psychiatrists may or may not be respected in court. When asked to reveal personal information in open court, a treating psychiatrist may request an opportunity to explain to the judge in chambers why such information may be irrelevant to the issue at hand, and should remain confidential. The judge, however, is the final decision maker. The psychiatrist who complies with a judge’s direction to reveal information is immune from criminal and civil liability. Should he or she fail to comply, the psychiatrist may be held in contempt of court.

DEPOSITIONS A deposition is a ‘statement of a witness under oath, taken in question and answer form as it would be in court, with opportunity given to the adversary to be present and crossexamine …’ (Gifis 1996). Depositions are of two types: (i) evidence depositions; and (ii) discovery depositions. Depositions taken to preserve testimony in the event that a witness will not be available at the trial are called

evidence depositions. This type of deposition adheres to the usual trial procedures of direct and cross-examination, and is often videotaped for viewing at the trial. In a videotaped deposition, the psychiatrist should think of the camera as a friend. Each question and answer should be treated as a separate item because the deposition may be edited before it is shown at trial. Turning away from the camera is glaringly obvious on videotape. The discovery deposition is designed to gather information prior to trials. Almost all questions are asked by opposing counsel. This type of deposition plays an important role in civil litigation. The psychiatric expert should thoroughly prepare for a discovery deposition because it is likely to have a significant impact on settlement negotiations. Over 90 per cent of cases settle before trial. During a discovery deposition, the attorney’s goals are to learn the facts and opinions of the opposing witness, assess strengths and weaknesses, and gather ammunition for cross-examination at trial. The attorney may ask broad questions to encourage rambling answers that might reveal new facts. The expert witness being deposed should not volunteer any information not called for in the questions. The psychiatric expert should listen carefully to each question asked during the deposition. It is helpful to pause for a moment after the question is asked to give it careful consideration, and to allow time for other attorneys to object (Gutheil 1998). The expert witness should request the written record of the deposition for future review and planning of trial testimony. One’s deposition should be re-read just prior to trial to refresh the expert’s memory. Attorneys often seek to impeach the expert’s credibility by showing differences between deposition and trial testimony.

COURT TESTIMONY The psychiatric expert witness first undergoes direct examination by the attorney who called him or her. This consists of non-leading questions that allow the witness to express his/her opinions and reasoning without interference. Cross-examination is conducted by the adversary attorney to test the credibility of the testimony. Redirect examination – sometimes called rehabilitation – allows the retaining attorney to repair damage and clarify points from cross-examination. Re-cross-examination is limited to issues raised in the redirect examination.

DIRECT EXAMINATION Qualifications At the beginning of the direct examination, the qualifications of the expert are elicited. Ordinarily, any licensed

Guidelines for courtroom testimony 39

physician will be recognized as an expert witness with the right to give opinions. Qualifications should include schools attended, internship, residency training, academic titles, hospital affiliations, board certifications, and honors. Those journal and book publications that are especially relevant to the case at hand should be mentioned. It is preferable to have the attorney elicit these qualifications through several questions to avoid the appearance of immodesty (Usdin 1977).

Credibility It is critical for the expert witness to establish credibility with the jury. Credibility may be divided into three components: (i) expertise, including the witness’s credentials, training, and experience; (ii) trustworthiness, including sincerity, the appearance of objectivity, and lack of partisanship; and (iii) dynamism, that is, the style of delivery during testimony (Bank and Poythress 1982). Trustworthiness may be more important than credentials in achieving credibility (Appelbaum and Anatol 1974). Studies reveal that wearing conservative clothing substantially increases the psychiatrist’s credibility in court (Tanton 1979). Male psychiatrists should wear dark suits. Solid colors enhance credibility, whereas pinstripes confer greater authority (Malloy 1988). Female psychiatrists appear most credible if they wear solid-colored suits with skirts that fall below the knee. Conservative dresses with contrasting blazers are also effective (Malloy 1996). Both male and female witnesses should avoid wearing jewelry or anything ostentatious. Local customs should be considered in making decisions about what to wear to court. The expert witness’s style of speech has considerable impact on his or her credibility (Lubet 1998). In controlled studies of mock testimony, powerful speech was found to be more convincing and credible than powerless speech (Conley, Obar, and Lind 1978). Powerful speakers are straightforward and give more one-word answers than powerless speakers. Used by persons with low power and status vis-à-vis the court, powerless speech tends to make more frequent use of the following (Erickson et al. 1978): 1 2 3 4 5

Intensifiers (so, very, surely): I surely did. Hedges (kind of, I think, I guess). Especially formal grammar. Hesitation forms (uh, well, you know). Gestures (using the hands to point while saying ‘over there’). 6 Questioning forms (rising, question intonation in declarative contexts). 7 Excessive politeness (please, thank you, sir).

Opinion with reasonable medical certainty After listing his or her qualifications, the expert is next asked to describe their clinical examination and the

background materials that were reviewed. It is most efficient if the witness can refer to the first page of their report for the exact dates and length of examinations and a complete list of documents reviewed. The witness is then asked whether he or she has formed an opinion with reasonable medical certainty regarding the contested issue. The exact definition of ‘reasonable medical certainty’ varies from one jurisdiction to another (Rappeport 1984). In most states, it simply means more probable than not. The psychiatrist should ask the retaining attorney to explain the exact meaning of the phrase in a particular case if he or she is not certain. In law, there is a distinction between the words possibility and probability. The law considers anything possible. However, something is not probable unless it is more likely than not. In other words, when mathematically expressed, its chances are 51 percent or greater (Hirsch, Morris, and Moritz 1979). The expert should be aware that ‘reasonable certainty’ is simply the minimum level of confidence required to express an opinion in court. It is possible for the expert who is more confident to say so (Lubet 1998). When asked whether he or she has formed an opinion with reasonable medical certainty, the witness should reply with only a ‘yes’ or a ‘no.’ According to courtroom ritual, the witness may not offer an actual opinion until asked. The witness is then asked to explain the basis for the opinion – that is, the underlying data and step-bystep logic used to reach the conclusion. Narrative direct testimony has been found to be more effective than fragmented short answers (Conley, Obar, and Lind 1978). The presentation should be punctuated by some questions, however, since prolonged, uninterrupted narrative may become tiresome.

Hypothetical questions Hypothetical questions may be put to the expert witness on direct or cross-examination. All the facts assumed in the question must be placed in evidence during the trial. The purpose of hypothetical questions is to protect against undue dominance by the expert. They permit the jury to know the premises that underlie the expert’s opinion, enabling proper evaluation of its weight. It is not improper for an expert witness to give an opinion in response to a hypothetical question without having performed a personal examination. However, the psychiatrist must have made an effort to perform a personal examination. Both in the psychiatric report and on the witness stand, the expert should state that his or her conclusions are limited because of the inability to perform a clinical psychiatric evaluation. During cross-examination, hypothetical questions may introduce evidence that was previously unavailable to the expert witness. The appearance of a closed mind about new data suggests

40 History and practice of forensic psychiatry

partisanship. One fair answer is, ‘I would need to re-evaluate the subject based on the new information.’ The more modern rules of evidence, including the Federal Rules of Evidence (703, 704), abolish the need for hypothetical questions. The only limitation on the supporting data used by experts is that it be the type reasonably relied on by experts in forming opinions. Although theoretically sound, in practice hypothetical questions often prove cumbersome and confusing to juries. The record for length was set in a 1907 Massachusetts ‘will’ contest with a 20 000-word hypothetical question that took several hours to read. The answer was, ‘I don’t know’ (MacDonald 1976).

Suggestions regarding direct examination During the pretrial conference, the attorney and the expert witness should plan to explicate those issues on direct examination that are most likely to be attacked during cross-examination. This provides an opportunity to fully explain problematic areas to the jury, without the constraints of cross-examination. In any event, redirect examination should allow the expert witness to explain issues that were cut short during cross-examination. Answers to specific questions should be relatively short, clear, and stated in simple language. If answers are overqualified, boredom can cause the jury to lose interest. Generally speaking, the ‘homier’ the analogy the better. While attempting to stay within these guidelines, the expert witness must still behave naturally for his or her own personality. A stilted performance will detract from the witness’s appearance of sincerity. Psychiatrists should use demonstrative evidence if possible. Points may be listed on a blackboard. If charts are made in advance, they can be admitted into evidence and then taken into the jury deliberation room. For example, a graph showing a decrement in IQ may facilitate the jury’s understanding of the seriousness of a head injury. The witness should ordinarily look at the jury and direct his or her remarks to them. Eye contact will help the psychiatrist assess the jury’s understanding of what he/she is saying and enhance their credibility. The expert witness should never talk down to jurors – if they feel patronized, they will not accept what the witness is saying. The expert witness must not become, or even appear to become, an adversary. Once the psychiatrist is on the stand, it is his or her absolute obligation to tell the truth, regardless of the effect it will have on the trial outcome. The appearance of impartiality is best achieved when the witness treats both lawyers (on direct and crossexamination) with the same professional courtesy and distance (Curran, McGarry, and Petty 1980). Psychiatrists should not use professional jargon in court because it is likely to be misunderstood, not understood, or made to look ridiculous. It is preferable to use

equivalent words, such as mood for affect, even if they are not perfect synonyms. Emerson observed that ‘eloquence is the power to translate a truth into language perfectly intelligible to the person to whom you speak.’ The following example of psychiatric testimony contains jargon: ‘The patient showed marked psychomotor retardation and considerable inhibition of speech. Some ideas of reference were implied, although no frank delusion formation was evident.’ This could be expressed in lay language as follows: ‘His movements were slow and his voice was low and monotonous. He spoke little and volunteered nothing. He felt that certain people were referring to him when they spoke with each other privately, but he did not show any clear-cut delusions about this – just vague ideas that he was the subject of other people’s conversations’ (Davidson 1965). Nothing alienates a jury more quickly than a psychiatric expert witness who appears arrogant. If a witness is asked whether he or she has ever been wrong, they should reply ‘yes,’ assuming it is true. While testifying, witnesses should attempt to display dignity, confidence, and humility. Ordinarily, the expert witness should not attempt to be humorous; a trial is a serious matter. Self-deprecating humor is the safest type. An extremely experienced witness may attempt to use humor as a way of coping with an overzealous cross-examiner, but this is certainly not recommended for the novice. The expert witness’s answers should not go beyond the questions in direct or cross-examination. Volunteering additional information may open up new areas for crossexamination, which could be highly damaging. It is usually best for the psychiatric expert witness not to volunteer his or her theoretical orientation. A theoretical school can easily be attacked on crossexamination. The expert witness should not say that he or she has an impression, feeling, or speculation. If the psychiatrist believes that something is more probable than not, the same information can be communicated by calling it a professional opinion. The expert witness should never mention the presence of a defendant’s insurance company in a civil trial. In most jurisdictions, this is viewed as prejudicial because it may encourage the jury to increase the amount of money awarded to the plaintiff. Consequently, mention of an insurance company could lead to a mistrial. Whether an expert witness should mention counterarguments to his or her own position during direct examination is open to controversy. Research demonstrates that it is more effective to discuss counterarguments during direct testimony if an opposing expert will testify later (Goldstein, Heller, and Sechrest 1966). If no rebuttal is expected, persuasive impact is reduced by bringing up counterarguments. This may, however, raise ethical issues about whether the witness is then ‘telling the whole truth.’

Guidelines for courtroom testimony 41

CROSS-EXAMINATION Areas of attack Cross-examination is the questioning of a witness by a party other than the one who called the witness. The questions will be about testimony given on direct examination. The purpose of cross-examination is either to discredit or clarify testimony already given in order to neutralize damaging testimony. The cross-examiner may seek to discredit adversary testimony by showing the witness to be a fool, a liar, and a nitwit. The goal of cross-examination is not to convince the witness of his or her error, but to expose weaknesses in the testimony (Shubow and Bergstresser 1977). The cross-examiner may seek to attack the expert witness in the following areas: credentials; bias; adequacy; and validity. The credentials of an expert witness may be attacked by showing a lack of experience or education. A cross-examining attorney may bring out the fact that an opposing expert witness has not achieved board certification, or has required more than one attempt to do so. The amount of testimonial experience may also be used to discredit an expert. The cross-examiner may imply that the witness is inexperienced and unknowledgeable because of limited testimonial experience. Conversely, if a witness does have substantial testimonial experience, the cross-examiner may try to show the witness to be a professional ‘hired gun.’ If the witness is asked whether or not they are a professional witness, one good answer is, ‘my profession is the practice of psychiatry. It just so happens that I am frequently asked to testify on psychiatric issues.’ Bias in the expert witness may be demonstrated by showing a history of having always been employed by one side. For example, an expert may be consistently hired by only the prosecution in criminal cases. The appearance of bias or personal interest is decreased if the witness is able to say that he or she has testified on behalf of both prosecution and defense, or has testified on behalf of both plaintiffs and defendants in civil cases. Another way that a cross-examining attorney may attempt to show bias is by questions about fees or pretrial conferences. The expert should not try to avoid answering these questions. If asked how much one has been paid for one’s testimony, the expert may reply, ‘I’m not being paid for my testimony. I’m been paid for my time, like the other professional people in the courtroom.’ Similarly, the expert should not feel embarrassed about admitting to having a pretrial conference with an attorney, since this is necessary to prepare for testimony. The psychiatrist’s examination may be attacked as being inadequate. Issues such as examination length, privacy, or obtaining corroborating information may be questioned. A brief examination may be portrayed as being inadequate to ‘fully understand’ a complex matter.

A cross-examiner may attempt to demonstrate inconsistencies between police accounts and the defendant’s account given to the psychiatrist. Marked inconsistencies may make the psychiatrist look gullible, and make the defendant look guilty. A cross-examiner may seek to demean the psychiatric examination by asking, ‘Do you mean to say that all you did was talk to the plaintiff?’ A good response is to say that the psychiatrist has special training in evaluation of the mood, thought organization, and speech patterns of mentally ill persons. The routine mental status examination may be described as a series of tests to assess such items as memory, concentration, abstract thinking, and judgment. The validity and reliability of all clinical examinations may be attacked. Evidence of limited reliability of psychiatric examinations has been collected in Coping with Psychiatric and Psychological Testimony (Ziskin and Faust 1995). It has been demonstrated that different theoretical backgrounds predispose psychiatrists to reach different conclusions based on the same data. There is no scientific evidence indicating the validity of a retrospective diagnosis. Attempts should not be made to defend the science of psychiatry; rather, the expert should state that he or she is confident of their opinion in this particular case. The cross-examiner may point out inconsistencies within an expert’s report, between his/her testimony and previous testimony, and between testimony and published articles. In this technological age, experts should be aware that attorneys sometimes search the Internet or Web sites for an expert’s professional biography, publications and even prior testimony (Malone and Zwier 1999). Psychiatric expert witnesses should be aware that transference feelings toward cross-examiners, opposing experts, or judges may diminish the effectiveness of their testimony. The primary danger is overadvocacy. If a witness becomes partisan, he or she is likely to become overextended, emotional, and defensive, thereby losing credibility.

Types of cross-examiners The expert witness should be prepared to encounter three particular types of cross-examiners (Bromberg 1969). The first is the ‘country’ lawyer who claims to know nothing. He or she stumbles over technical words, and seeks to oversimplify human actions and reduce the psychiatrist’s explanations to meaningless gobbledygook for the jury. A good response for the psychiatrist is to ‘one down’ the attorney. For example, the psychiatrist might say, ‘I understand what you mean about big words; I often have difficulty understanding legal terms.’ This gambit places the expert witness back on the same level as the jury. The second type of cross-examiner is the ‘unctuous’ lawyer who is excessively polite. He or she apologizes for taking up the doctor’s valuable time and refers to the witness as a ‘man of science.’ By concealing certain

42 History and practice of forensic psychiatry

information, such a cross-examiner may proceed to set the psychiatrist up for a devastating blow toward the end of his or her testimony. Thus, it is particularly important for the psychiatric witness not to let his/her guard down when the cross-examiner is especially friendly or flattering. Finally, the ‘blustery’ cross-examiner works toward immediate destruction of credibility and attempts to bully the witness by making reference to the psychiatrist’s fee and loyalty to the retaining attorney. Instead of counterattacking, the expert witness should use the principles of judo, in which assailants are defeated largely through the force of their own assault (Shapiro 1984).

textbook. Before responding to any question about a quote, the expert witness should insist on seeing it in context. The cross-examiner may ask the expert witness’s opinion of opposing expert witnesses. It is unbecoming to engage in personal attacks, even if one has a low opinion of an opposing witness. It is better for the psychiatrist to simply state that he or she disagrees with the opposing expert on this occasion.

Suggestions regarding cross-examination

A good cross-examiner will seek to control the witness, much like a rider uses the reins to control a horse. However, there are several ways in which the witness can exert some control during cross-examination. The witness may pause before answering a question, which serves to break the rhythm of the cross-examiner’s questioning. It also allows the retaining attorney time to make an objection. The witness may further disrupt the flow of a cross-examiner’s attack by refraining from answering any question that includes a minor error. The expert witness should take opportunities to break eye contact with the cross-examining attorney in order to direct answers toward the jury. This serves to further establish the expert’s role as an educator, as opposed to someone who is merely being questioned. The experienced expert may use cross-examination as an opportunity to reiterate opinions given during direct examination. The expert should try to give full opinions during cross-examination. If interrupted, the expert should attempt to complete his or her answer. When the crossexaminer attempts to limit answers, the jury is given the impression that he or she is trying to conceal something. When the expert is cut off before completing an answer, it should serve as a signal to the retaining attorney to explicate that area on redirect examination. In an effort to more tightly control the expert, the cross-examiner may demand only ‘yes’ or ‘no’ answers. The expert should listen closely to each question, and determine whether or not the whole truth will be conveyed by a ‘yes’ or ‘no’ answer. If it cannot, an appropriate answer might be ‘that question cannot truthfully be answered “yes” or “no”.’ (Gutheil 1998). The expert should be alert to a pattern of questioning designed to elicit only ‘yes’ answers. This technique, which is commonly used by salespersons, makes it more difficult for the expert to say ‘no’ when the occasion arises. A cross-examiner may misquote an expert’s report or earlier testimony. These errors should be pointed out. They may be an innocent mistake, or a deliberate attempt to distort testimony. If an expert is badgered, he or she may turn to the judge and say that they have answered the question as well as they can. However, this option is best reserved for only extreme situations.

An expert witness should never be a smart aleck or argue with a cross-examiner. The jury will ordinarily identify with the witness; but if the witness acts smart, the jury will take the part of the cross-examiner in the belief that he or she is just doing their job. Psychiatrists should not be defensive during crossexamination. Witnesses need not be apologetic if crossexaminers do not agree with their opinions. It gives the cross-examiner a distinct advantage if the psychiatrist loses his or her temper, because it makes the witness look over-involved to the jury. The expert witness should never guess at an answer; it is better to say that one either does not know or does not remember. An expert witness is not expected to have a quick, knowledgeable reply to every question. During cross-examination, the expert should graciously concede points and admit the obvious. For example, when asked ‘Dr., isn’t it possible …’ the expert should reply, ‘Of course it is possible.’ However, the expert may then go on to point out why it is unlikely. Refusing to concede an obvious point causes the expert to look either foolish or hostile. After the expert’s testimony has concluded, and neither attorney has any further questions, the judge will dismiss the expert. The psychiatric expert should then leave the courtroom. The expert should not stop to consult with the retaining attorney, or linger to see the remainder of the trial. These activities suggest too much interest in the final outcome of the trial (Gutheil 1998). The psychiatric witness should be aware that any files that are taken to the stand may be scrutinized by the cross-examining attorney; he or she may even request a recess to review them in detail. Consequently, if the psychiatrist does not wish to be cross-examined on certain information, it should not be taken to the witness stand. The expert witness should be wary of acknowledging any book as an authority (Younger 1982). Once a book is acknowledged, the witness is liable to be cross-examined on all of its contents. Instead, the psychiatrist might indicate that their knowledge comes from many sources, including training and experience, rather than any single

CONTROL IN THE COURTROOM

Guidelines for courtroom testimony 43

Finally, the expert should not appear vanquished if a point must be conceded. The witness should avoid conveying any non-verbal communication of defeat to the jury (Brodsky 1977).

RIGHTS OF WITNESSES The expert witness has several rights in court (Danner 1983): 1 If the expert is unclear about how they should answer a question, or whether they must answer the question posed, they may ask the judge. 2 The expert may ask the judge whether the material asked for is privileged. 3 The expert may refuse to answer questions that they do not understand. They may also ask examining counsel to clarify or repeat the question. 4 The expert may state that they do not know the answer to a question. 5 The expert may ask the judge whether they can qualify their answer when a ‘yes’ or ‘no’ answer is requested. 6 The expert has a right to complete their answer, and should protest if they are interrupted. 7 The expert may refer to written records to refresh their recollection.

CONCLUSION The legal process should not intimidate the expert witness. The psychiatric expert possesses greater expertise in matters of mental health than the other courtroom participants. No professional undergoes more intense scrutiny than the psychiatrist who testifies in court. It takes courage of conscience for a psychiatrist to tell a retaining attorney that his or her opinion will not be helpful. The expert witness must be able to endure seeing their opinions deliberately distorted by a cross-examiner one day, and incorrectly reported by the press the next day. However, the expert who is knowledgeable, well prepared, and thinks well on their feet may find the courtroom experience an enjoyable challenge.

REFERENCES Ake v. Oklahoma, 105 S. Ct. 1087,84 L. Ed. 2d 53 (1985). Appelbaum, R.L., Anatol, K. 1974: Strategies for Persuasive Communication. Columbus, OH: Charles E. Merrill. Bank, S.C., Poythress, N.G. 1982. The elements of persuasion in expert testimony. The Journal of Psychiatry and Law 10, 173–204. Brodsky, S.L. 1977: The mental health professional on the witness stand: a survival guide. In Sales, P.D.

(ed.), Psychology in the Legal Process. New York: Spectrum. Brodsky, S.L., Poythress, N.G. 1985: Expertise on the witness stand: a practitioner’s guide. In Ewing, C.P. (ed.), Psychology, Psychiatry, and the Law. Sarasota, FL: Professional Resource Exchange, 389–411. Bromberg, W. 1969. Psychiatrists in court: the psychiatrist’s view. American Journal of Psychiatry 125, 49–50. Conley, J.M., Obar, W.M., Lind, E.A. 1978. The power of language: presentational style in the courtroom. Duke Law Journal 78, 1375–99. Curran, W.J., McGarry A.L., Petty, C.S. 1980: Modern Legal Medicine, Psychiatry and Forensic Science. Philadelphia, F.A. Davis, Co. Danner, D. 1983: Expert Witness Checklists. Rochester, NY: The Lawyers’ Cooperative Publishing Co. Davidson, H.A. 1965: Forensic Psychiatry. 2nd edition. New York: Ronald Press Company. Diamond, B. 1959. The fallacy of the impartial witness. Archives of Criminal Psychodynamics 3, 221–36. Erickson, B., Lind, E.A., Johnson, B.C., O’Barr, W.M. 1978. Speech style and impression formation in a court setting: The effects of ‘powerful’ and ‘powerless’ speech. Journal of Experimental Social Psychology 14, 266–79. Gifis, S. 1996: Law Dictionary. 4th edition. New York: Barron’s Educational Series. Goldstein, A., Heller, K., Sechrest, L. 1966: Psychotherapy and the Psychology of Behavior Change. New York: John Wiley. Gutheil, T. 1998: The Psychiatrist as Expert Witness. Washington, DC: American Psychiatric Press, Inc. Halleck, S.L., Appelbaum, P., Rappeport, J.R., Dix, G. 1984: Psychiatry in the Sentencing Process. Washington, DC: American Psychiatric Association. Hirsch, C., Morris, R.C., Moritz, A.R. 1979: Handbook of Legal Medicine. 5th edition. St. Louis: The Mosby Company. Hirsch, H.L. 1975. Physician as witness – rights, duties, and obligations. Journal of Legal Medicine 3, 40–3. Lubet, S. 1998: Expert Testimony: A Guide for Expert Witnesses and the Lawyers who Examine Them. National Institute of Trial Advocacy. MacDonald, J.M. 1976: Psychiatry and the Criminal. Springfield, IL: Charles C. Thomas Co. Malloy, J.T. 1988: New Dress for Success. New York: Warner Books. Malloy, J.T. 1996: New Women’s Dress for Success. New York: Warner Books, Inc. Malone, D., Zwier, P. 1999: Expert Rules: 100 (and More) Points You Need to Know About Expert Witnesses. Revised 1st edition. National Institute for Trial Advocacy. Rappeport, J.R. 1984. Reasonable medical certainty. American Academy of Psychiatry and the Law Newsletter 9, 19–20. Shapiro, D. 1984: Psychological Evaluation and Expert Testimony. New York: Van Nostrand Reinhold.

44 History and practice of forensic psychiatry Shubow, L., Bergstresser, C. 1977. Handling the psychiatric witness. Trial 13, 32–5. Tanton, R.L. 1979. Jury preconceptions and their effect on expert scientific testimony. Journal of Forensic Sciences 24, 681–91. Usdin, G. 1977. Psychiatric participation in court. Psychiatric Annals 4, 42–51. Younger, I. 1982. A practical approach to the use of expert testimony. Cleveland State Law Review 31, 1–42. Ziskin, J., Faust, D. 1995. Coping with Psychiatric and Psychological Testimony. 5th edition. Volumes 1, 2, and 3. Marina Del Ray, CA: Law and Psychology Press. Zusman, L., Simon, J. 1983. Differences in repeated psychiatric examinations of litigants to a lawsuit. American Journal of Psychiatry 140, 1300–4.

Suggested reading Brodsky, S.L. 1991: Testifying in Court: Guidelines and Maxims for the Expert Witness. Washington, DC: American Psychological Association. Group for the Advancement of Psychiatry, formulated by the Committee on Psychiatry and the Law. 1991: The Mental Health Professional and the Legal System. New York: Brunner/Mazel Publishers. Gutheil, T.G. 1998: The Psychiatrist in Court: A Survival Guide, Washington, DC: American Psychiatric Press, Inc. Resnick, P.J. 1986. Perceptions of psychiatric testimony: a historical perspective on the hysterical invective. Bulletin of the American Academy of Psychiatry and the Law 14, 203–19.

6 Practical issues in forensic psychiatric practice ROBERT L. SADOFF

The practice of forensic psychiatry can provide a very satisfying and rewarding experience. However, it can also be very frustrating unless one pays attention to details that may significantly affect the work of the forensic psychiatrist. Aside from all of the substantive materials that need to be known in order to practice good legal psychiatry, the forensic psychiatrist must also be a good practicing clinician. An important difference between forensic psychiatry and general psychiatry is that the forensic psychiatrist is an investigator whose assessment must include information beyond the clinical examination – that is, all data relevant to the legal issue at hand. For example, in criminal cases the forensic psychiatrist must obtain, in addition to other materials, the police investigation reports, the crime scene forensic data, witness statements, and the defendant’s confession when available. In civil cases, the forensic psychiatrist must review medical records of prior injuries, operations or other traumatic experiences, as well as observations of others who have been involved in the care and treatment of the plaintiff. In sum, for the forensic psychiatrist the clinical examination is necessary (when possible) but not sufficient for a complete and comprehensive assessment. In discussing practical issues for the forensic psychiatrist it may be instructive to develop two different cases, one criminal and one civil, pointing out various areas that require observation and clarification.

CRIMINAL CASE The first step in any case is the initial contact by the attorney to the psychiatrist. When a public defender or a private criminal defense lawyer requests consultation on a criminal case, several questions must be raised and issues clarified at that initial communication in order to avoid subsequent problems. First, the psychiatrist should ascertain the nature of the charges and the location of the defendant. Is the defendant at large, that is, on bail, or

confined in a particular institution? The attorney should then be asked to give a brief synopsis of the case and the reason for seeking psychiatric consultation. If the psychiatrist is satisfied that it is the type of case on which he or she wishes to consult, then they proceed to obtain more information from the attorney. All available records should be provided at the initial mailing. The psychiatrist should be aware that various discovery rules in different jurisdictions may limit the immediate availability of some discovery material. What is important for a valid assessment are the police investigation reports, the statement of the defendant if one has been made, and statements of other witnesses. With respect to the examination of the defendant, depending on the nature of the case, the timing of that examination may be an issue. If there is a delay between the crime and the request for psychiatric consultation, then there may be no urgency. However, some cases depend on a very early examination of the defendant, as close to the time of the commission of the alleged offense as possible. This may involve the psychiatrist traveling to the prison in the evening or on a weekend. Psychiatrists may also wish to conduct early interviews with other people such as the spouse, family members, and neighbors in order to obtain a clear picture of the event in question. With respect to fees, the psychiatrist clarifies with the attorney at the initial telephone call the fee that is requested. In private cases, working for the defense, a retainer fee is usually sent with the materials prior to the examination. For public defenders or prosecutors, billing procedures usually preclude retainer fees. However, the hourly fee should be agreed upon at the outset to avoid any later confusion. Some prosecutors and public defenders require contracts with their expert witnesses, as do some forensic psychiatrists, for their records. Depending on the wish of the psychiatrist, the defense attorney may be present at the initial examination. If the psychiatrist is examining for the defense, the presence of the attorney can help to introduce the psychiatrist to the defendant and to avoid problems where the defendant may not be certain that it is permissible for him or her to

46 History and practice of forensic psychiatry

speak to the psychiatrist. It may ease entry to the institution by having the attorney present, or by calling ahead to ensure admission. Occasionally, a court order is required for admission to various prisons or mental health correctional facilities. Sometimes a letter of introduction is required and should be taken by the psychiatrist to the prison. It is essential that the psychiatrist knows not to bring contraband into prisons. All knives, matches, and gum should be left in the car or in the office. Recording devices, cellphones and beepers are usually not allowed. The patient’s records, a notebook, and pen or pencil for taking notes are allowed. Some prisons require the psychiatrist to lock away wallets, purses, keys, or other items in a safety locker before being admitted into the prison. All prisons have security measures to ensure safety and may require a search of the psychiatrist before entering the prison.

Examining the defendant When meeting the defendant, it is important to reveal the identity of the psychiatrist, whom the psychiatrist represents, and what will be done with the information obtained from the defendant. This is essential, especially when working for the prosecution, so the defendant understands that the psychiatrist is not working for his or her attorney and that what they tell the psychiatrist may be used against them in a court of law. It is also important to indicate to the defendant for what purpose the psychiatrist is seeing the defendant – that is, competency to stand trial, criminal responsibility, or evaluation for sentencing, including the possibility of the death penalty. Without telling the defendant the purpose of the examination, the psychiatrist’s testimony may later be restricted or may serve as a basis for appeal if there is a guilty verdict.1 In some cases, defense attorneys may wish to be present when the psychiatrist is examining for the prosecution. That appears to be the right of the defendant in most jurisdictions, unless the court orders that no one else is to be present during the examination. In some cases, when the defense attorney is not present, the court may order the examination to be audiotaped or videotaped. In some jurisdictions, the defendant need not cooperate with the prosecution psychiatrist.2 He or she may be ordered to be present during the examination, but may not be ordered to speak to the prosecution psychiatrist. Thus, the examination may be limited or restricted, and that fact should be carefully noted in any written report. However, in some jurisdictions the defense may not put forward an

1

insanity defense if the defendant does not cooperate with the prosecution psychiatrist as he or she did with the defense psychiatrist.3 It should be noted here that it is unethical for a forensic psychiatrist to examine a defendant for the prosecution before an attorney has been appointed or retained (American Academy of Psychiatry and the Law 1987). It is important to take a thorough and comprehensive history during the examination of the defendant. Sometimes, several different examinations will be required before an opinion can be given. Occasionally, special testing such as psychological and/or neuropsychological testing, and neurological examination with electroencephalography (EEG), magnetic resonance imaging (MRI), or computed axial tomography (CAT) is needed. Where memory is impaired, a sodium amytal or hypnotic interview may be helpful. In such cases where hypnosis or amytal is utilized, the procedure should be recorded on videotape. During such examinations, one should not lead the defendant or make undue suggestions to the individual whose memory is impaired. Such leading questions or suggestible influence will detract from the effectiveness of the examination and may result in an invalid conclusion.

Preparation of the report The forensic psychiatrist should receive and review all discovery materials and all information that is necessary for forming an opinion regarding the defendant’s competency, criminal responsibility, and/or disposition before rendering a report. Sometimes the court orders a report before all discovery has been obtained. In that case, the psychiatrist is well advised to prepare a report indicating it is a preliminary report based on the order of the court, without the availability of all records that are known to exist. At the bottom of the report, the psychiatrist may write, ‘When other information is obtained or made available to me, I will review it, and if it affects my opinion, I will prepare an addendum or modification to this preliminary report.’ In that way, the psychiatrist duly satisfies the demand of the court while recognizing that limitations on his or her opinion may occur as a result of the rules of law within that jurisdiction. The psychiatrist also keeps the door open for additional materials that may or may not change her/his opinion and result in an addendum to the report. Some jurisdictions have an open discovery rule, whereby all information is freely given by both the prosecution and defense. In other jurisdictions, attorneys withhold information until the judge orders the release of the data. In one case, for example, the prosecution expert’s report was not given until the morning he

Estelle v. Smith, 451 U.S. 454 (1981).

2

See Purdons 50P.S. Sect. 7402(f). Also see Commonwealth v. Campo, 480Pa.516,391 A.2d1005 (1978) and Commonwealth v. Glenn, 459Pa. 545,330 A.2d 535 (1974).

3

See, for example, New Jersey Statutes 2CA-5C.

Practical issues in forensic psychiatric practice 47

testified. It was very difficult to try to read through the sixty-seven pages of his report in the few moments before the court opened and the expert took the stand. That appears to be an unnecessary burden and a deprivation of courtesy between and among the principals in the courtroom. How much better it would be if everyone had time to review, digest, appraise, and analyze the reports of other experts so the examination and cross-examination can be as effective as possible. This ‘game playing’ is a reflection of the adversarial nature of the proceeding. Some jurisdictions have eliminated that problem by having a much more cooperative approach, even within the adversarial system. Nevertheless, the forensic psychiatrist must be aware of the particular rules within each jurisdiction, as they all may vary. One must not be caught off guard by assuming that the rules are similar everywhere.

Preparation of the expert witness The preparation of the psychiatrist as an expert witness is essential. The psychiatrist should never go into the courtroom without first preparing with the attorney. One must not only prepare for the questions that will be asked on direct examination, but must also anticipate the crossexamination. Preparation also includes telling the attorney what the responses will be to various cross-examination questions. This is done so the attorney is prepared to rehabilitate on redirect. Sometimes, the response to a good cross-examination question will weaken the effectiveness of direct testimony. Some attorneys prefer their experts to argue with the cross-examining attorney to defend their weakened position. However, it is better for the attorney calling the expert into court to rehabilitate on redirect, rather than to expect the expert to be the one to deny information or to argue points on crossexamination. One should be an advocate for the attorney’s position but not an adversary in the traditional sense. The most important characteristic of the expert witness is credibility. Without credibility, there is no effective testimony. Cross-examination questions are often asked that go to the credibility of the expert witness. If the expert does not respond in a believable manner, the jury will have no faith in the expert and will discount other substantive opinions given. It is important in criminal cases, when working for the defense, to receive in advance one’s fee for time in court. ‘The check is the key to the courtroom door.’ The credibility of the expert is also enhanced by having received his or her fee in advance, as he/she is not dependent on the outcome of the case in order to receive the fee. On cross-examination, the expert is often asked if he or she has been paid for his testimony. The response is that the expert is paid for his/her time, and not for the testimony.

One should not apologize for receiving an adequate fee for the time in court. The fee is always paid on an hourly basis, but in courtroom work there may be a minimum of four hours for a half-day or eight hours for a full day if the testimony goes into the afternoon session. The psychiatrist is not able to determine how many hours will be spent in court, and thus cannot schedule patients accurately. Therefore, it is advisable to clear at least a halfday or perhaps a whole day, depending on the nature of the case, and then to charge the attorney accordingly. The fee should come from the attorney and not the client. The expert is the agent of the attorney, aiding the attorney who helps the client. Whatever arrangement is made between attorney and client is of no concern to the psychiatrist. The contract is with the attorney, not the client or defendant. It is important for the expert witness to know that he or she is not responsible for the ultimate verdict. The psychiatrist neither wins nor loses the case: he or she is but one cog in the great wheel of justice, and should not boast upon winning a case, nor should he or she fear being blamed for losing one. Testifying in court is a skill and an art. One must be well prepared with the facts and details of the case. It is helpful to have the materials that were reviewed listed in one’s report so that one can turn to the report and read off the materials that helped support the opinion given. One should have those materials available in a logical sequence in order to turn directly to the materials and not appear to be fumbling with papers on the witness stand. A disorderly stance only decreases the image of the psychiatrist as a true professional in the eyes of the jury. With respect to cross-examination, it is important to respond to cross-examination questions in a professional manner and usually with direct, short answers. Good attorneys usually do not ask ‘why’ questions on crossexamination, since that would open the door for a psychiatrist to explain the rationale for her/his conclusions. Usually, the cross-examination questions require short responses such as ‘yes’ or ‘no.’ However, the psychiatrist should not be bound to a ‘yes’ or ‘no’ answer if doing so would confuse the jury or make the testimony unclear. The expert can usually appeal to the judge to be allowed to answer the question and then offer a clarification. Nevertheless, if restricted to a ‘yes’ or ‘no’ answer, one must rely on the skill of the attorney calling the expert to rehabilitate on redirect by asking the expert to clarify the answer given on cross-examination. One must recall that this is a battle between lawyers and not between and among the experts. One may disagree with one’s colleague without being disagreeable. The expert psychiatrist should never indicate that a colleague is lying or incompetent, but rather that one disagrees with the findings of one’s colleague, who may have conducted a more thorough investigation or have a different database, thus reaching a different conclusion.

48 History and practice of forensic psychiatry

CIVIL CASE When called by the plaintiff ’s attorney in a civil case, the forensic psychiatrist should ascertain initially the nature of the case (e.g., competency, personal injury, toxic tort, malpractice, domestic relations matter) and determine whether the case is within the psychiatrist’s expertise. It may be that the psychiatrist consulted is not a child psychiatrist, does not have sufficient experience with psychopharmacology or use of electroshock therapy, and the case may hinge on specific expertise in any of these areas. It is incumbent upon the professional to refer the attorney to the proper experts who could give the most effective assessment and testimony, if needed, in such a case. Functioning in a triage capacity is a very important task of the forensic psychiatrist by referring to the proper source needed for the best resolution of the case. In malpractice cases, it is important to determine initially who the defendants are and whether there would be any conflict of interest if the psychiatrist became involved either in a medical malpractice case for damages, or in a psychiatric malpractice case for liability and damages. It may be best to refer the plaintiff ’s attorney in some psychiatric malpractice cases to colleagues a fair distance away or in another jurisdiction in order to avoid any conflict of interest. If the psychiatrist agrees to accept a case for a civil defense attorney in a psychiatric malpractice case in which the defendant is known to the expert, all such prior contact must be revealed at the outset. Defense attorneys may need to decide whether to allow the psychiatrist to become involved, as any prior contact may affect the case on cross-examination. Would the expert have a particular bias in helping a ‘friend’ in court?

Fees In civil cases, fees are established at the initial contact, and a retainer fee is requested and obtained with the materials sent by the plaintiff ’s attorney prior to the examination. Defense attorneys representing insurance companies may or may not be in a position to offer retainer fees. Psychiatrists should ascertain that fact at the outset. Some psychiatrists prefer examining plaintiffs without first looking at records in order to preserve ‘neutrality.’ They do not wish to be influenced by the findings of others or by previous records before examination. That appears to be a difficulty in forensic cases, since one really needs to know the issues before exploring in a blind manner. The examination questions need to be focused on issues relevant to the particular case. Therefore, all available data should be requested at the outset. During the examination, one may be alerted to records that had not been previously obtained, and should insist on receiving them before proceeding further. It is usually important for the psychiatrist to discuss the findings of the examination with the attorney before

preparing a report. The attorney should be given the expert’s preliminary opinions and should be told what additional information is required before a report can be written. If the opinions of the psychiatrist are not helpful to the attorney, he or she may advise the psychiatrist not to prepare a report. In most jurisdictions, if the plaintiff ’s attorney is not going to utilize the psychiatrist at trial, the psychiatrist may not be identified as an expert and no report need be required or turned over to the defense attorney. However, all defense examinations are known to the plaintiff ’s attorney and reports, helpful or not, are usually required.

Preparation of the report It is important to include all relevant information in the expert psychiatric report. An attorney occasionally may ask, in a civil case, whether certain information about prior accidents or injuries may be left out of a report in order not to ‘prejudice’ the case. This is not a good idea because a total evaluation includes all relevant information, especially prior injuries. If the attorney insists on having a report without this information, it is best not to prepare a report and to refer the attorney to another psychiatrist. However, in criminal cases there are rules of evidence that may preclude placing certain information in the final report. For example, history of previous criminal behavior may be left out if the report is going to be shown to the jury. Juries are not to be told of prior criminal activity, as that could prejudice the jury in the particular case. Thus, there are rules that one must follow and one should not be constrained about removing information that may be harmful to the individual examined, if the court agrees and orders that the information be deleted. May a report, once prepared, ever be modified or changed at the request of the attorney? This is a very sensitive issue that affects all forensic psychiatrists. If, upon request, the forensic psychiatrist deems the changes to be necessary, and if the changes would not adversely affect his or her opinion, he or she may make the changes and send a revised report to the attorney. The psychiatrist should clearly indicate that this is a revised version of a previous report. Occasionally, the attorney would not wish to have the report so marked as revised, but would rather present only one report that includes the revisions and discard the original report. In those cases, it is appropriate to label the original report a preliminary report. It is usual for good attorneys, on cross-examination, to ask if the expert has ever prepared an earlier version of the report submitted. In answering such a question, the psychiatrist must be truthful and explain why the changes were made. If the psychiatrist does not have a copy of the original preliminary report, there may be some implication made on cross-examination that the psychiatrist had something to hide by discarding the earlier version.

Practical issues in forensic psychiatric practice 49

Thus, it is important to retain early reports to indicate what changes were made and for what reasons. It is essential that the expert does not lie at the request of the attorney and indicate that there was no preliminary report when, in fact, there was. There may have been several preliminary reports that had been revised several times. That fact, if questioned, should be made known to the jury as a matter reflecting credibility, truthfulness, and integrity. In addition, to lie in court about an earlier version of the report would be perjury – a felony punishable by fine or prison. The best way to avoid such a problem in court is to prepare only one report after full consultation with the attorney about the material to be included and the structure of the report.

Examination of the plaintiff The psychiatrist working for the plaintiff ’s attorney may see the plaintiff several times before rendering an opinion or writing a report. When working for the defense attorney, the psychiatrist may have only one shot at the examination and should make the most of it. Thus, it is suggested that ample time be allowed for such an examination. Occasionally, the plaintiff ’s attorney will wish to be present during the examination by a defense-appointed psychiatrist. This has become a matter of controversy and debate among psychiatrists and forensic psychiatrists. Many psychiatrists without forensic experience do not enjoy the prospect of conducting such an examination in the presence of third parties. They argue that others present in the examining room dilute the traditional one-on-one relationship and the examination is conducted in less than ideal circumstances. Some psychiatrists refuse to examine an individual in the presence of others. However, many forensic psychiatrists understand the needs of plaintiffs to have representation during every stage of their proceedings. The examination by a defense psychiatrist may be a traumatic experience for the plaintiff, who may be comforted by having an ally in the room. That person may be the attorney, a paralegal, or a representative of the plaintiff ’s law firm. The examining psychiatrist may require that person to sit behind the examinee and not give cues or signals during the examination. Interruptions of the examination should not be tolerated unless the attorney representing the plaintiff feels that the question asked is intrusive, inappropriate, or irrelevant. There usually are no serious problems having the plaintiff ’s attorney present, taking notes, listening, and observing. However, there are times when plaintiffs’ attorneys wish to tape record the examination session. The forensic psychiatrist may agree or refuse to have the session either tape-recorded or videotaped unless the examiner is able to obtain a copy of the videotape and/or a copy of the transcript of the tape recording. Some

forensic psychiatrists videotape every examination they conduct.

Preparation for trial As noted previously for criminal cases, pretrial preparation is absolutely necessary in civil cases and should occur prior to the psychiatrist entering the courtroom. The psychiatrist should know precisely what questions are to be asked on direct, and should be able to anticipate crossexamination questions. The psychiatrist should then discuss his or her responses to such anticipated questions with the attorney, so that the attorney is also prepared. On occasion, there will be information that has not been provided to the expert. This may be a letter, a report, or even a deposition. In some cases, the expert has not had the time or availability to interview various people involved in the case. Very often, when working for the defense in a criminal case, the expert does not interview the arresting officers or members of the victim’s family. That fact may be brought to light under good cross-examination to show the jury how ‘incomplete’ the psychiatrist’s investigation has been. When asked if individuals had been interviewed, the best response is a factual ‘no.’ If given the opportunity, one may explain why such examinations were not conducted, as due to limitations of time, resources, or availability, or even the unwillingness on the part of the other witnesses to be interviewed. When the cross-examination involves showing the psychiatrist a document that he or she has never reviewed, it is prudent for the expert, when surprised in such a manner on the witness stand, not to offer the opinion, ‘Yes, it automatically changes my opinion,’ but to indicate that the document reveals new information that has not previously been reviewed. The psychiatrist may wish to take some time to review that document and its impact on his/her opinion before reaching a conclusion to be offered to the jury.

ESTABLISHING A PRACTICE OF FORENSIC PSYCHIATRY It is impossible to address all the practical points needed to avoid problems in the practice of forensic psychiatry. Salient practical advice that confronts forensic psychiatrists on a daily basis is offered herein in condensed form. However, the prudent forensic psychiatrist will have supplemented his or her education with a fellowship in forensic psychiatry before embarking on a career in this increasingly complex subspecialty of psychiatry. It is now essential for a psychiatrist to take an accredited fellowship in forensic psychiatry4 before he or she is allowed to 4

List of accredited Fellowship Programs in Forensic Psychiatry, American Academy of Psychiatry and the Law, Bloomfield, CT, 06002.

50 History and practice of forensic psychiatry

take the examination for board certification in forensic psychiatry. One does not need board certification in forensic psychiatry to practice as a forensic psychiatrist, but it does add to the credibility of the individual as an expert witness. If the psychiatrist does not wish to take a fellowship in forensic psychiatry, he or she should enlist a practicing forensic psychiatrist as a mentor or consult with a leader in the field. Certainly, the aspiring forensic psychiatrist should read the literature and be familiar with the leading cases that affect the functions of the forensic psychiatrist. It is not always easy to get started in the field in an area saturated with competent forensic psychiatrists. However, the aspiring forensic expert can give lectures to lawyers’ groups and can work in clinics and other forensically oriented facilities where his/her skills will become known to attorneys who may wish to avail themselves of such services. Writing articles for attorneys is also a means by which one can become identified as a prospective expert. It is not recommended to advertise one’s wares or skills in legal journals or daily newspapers. Commercial expert witness groups that charge fees and provide experts to attorneys around the country should also be avoided. On cross-examination, one can easily be exposed as belonging to such a ‘factory’ or ‘mill,’ as they are called. However, there are legitimate professional advisory groups that do provide forensic services to attorneys. One may affiliate with such a group and be available for consultation when needed. It would be unwise, however, to become involved in a group where membership fees are paid in order to have one’s name on a list of potential experts. It is also wise not to offer one’s skills by soliciting to consult on a particular case. It is better to wait for the attorney to call the expert. However, it is proper for a psychiatrist to let her/his colleagues know that she/he is interested in taking cases with legal ramifications. Working on the medical-legal committee of one’s local medical society is another means of exposure for subsequent consultations. By and large, the best means of identifying oneself as a forensic expert is to express an interest, take a fellowship in an accredited program, and work under the tutelage of competent and experienced forensic experts. There have been a number of changes in the field of forensic psychiatry in the past decade. The rise of managed care has stimulated further interest in forensic psychiatry because it tends to be ‘managed care free.’ The membership of the American Academy of Psychiatry and the Law that began in 1969 with eight original members has now grown to well over 3000 members nationwide. Most psychiatrists practicing forensic psychiatry are not full time in the field, but also maintain a private treatment practice. It is important for the practicing psychiatrist to be aware of potential conflicts of interest when his/her patient becomes involved in a legal matter. In most cases, it is unwise and a potential conflict for the treating psychiatrist to act also as the expert witness for his/her patient. Claims of bias to help one’s patient will

be brought, as well as the lack of ‘neutrality’ that is essential in the ethics of forensic psychiatry. Furthermore, testifying for a patient who does not do well in court may reflect on the subsequent treatment of the patient and the therapeutic alliance necessary for successful therapy (Strasburger, Gutheil, and Brodsky 1997). Another potential problem for the practicing psychiatrist is scheduling. The demands of forensic psychiatry may preclude a psychiatrist from regular sessions with particular patients. The judge may require the psychiatrist to be in court at a time when he or she regularly sees a particular patient. That can be quite disruptive to patients who depend upon regularity of sessions because of their own schedule. There are some cases that should be avoided by the private practicing forensic psychiatrist. These include evaluating police officers or security guards for clearance to carry a gun. This is a no-win situation. If the psychiatrist clears a guard or a police officer to carry a gun and that person later misuses the weapon, the psychiatrist will be blamed for incomplete assessment and making a recommendation that was improper. If, however, the psychiatrist determines the guard or the officer to be at a special risk for carrying a weapon, such persons may sue the psychiatrist for depriving them of making a livelihood (Sadoff 1998). Similarly, examining sex offenders to determine whether they are ‘dangerous’ may also have peril for the forensic psychiatrist (Sadoff 1998). Ethical questions may arise when a forensic psychiatrist is asked to evaluate a prisoner on death row who has become acutely mentally ill. What is the role of the psychiatrist in recommending treatment or providing treatment for the inmate in order to alleviate his/her mental condition so that he/she can then be put to death? Finally, due to the recent proliferation of psychiatrists carrying out forensic work, the American Psychiatric Association and the American Academy of Psychiatry and the Law have developed peer review committees to assess and evaluate the appropriateness of forensic assessments and testimony.

CONCLUSION The practice of forensic psychiatry is rewarding and exciting, but may also be frustrating and very difficult for the uninitiated. It is strongly recommended that anyone who is seriously interested in practicing forensic psychiatry take a fellowship training year or work with a competent, respected forensic psychiatrist as a mentor. Read the literature and follow the rules to avoid obvious pitfalls. Never work on a forensic case unless an attorney is involved. Occasionally, a plaintiff or a client will call, indicating that he or she is going pro se without an attorney. It is much more difficult to work with individuals who do not have

Practical issues in forensic psychiatric practice 51

the guidance of an attorney in this very complicated area. The more one knows, the better protected one is. There is much to know in a substantive manner, but one also needs to know the practical issues that affect all forensic psychiatrists.

ACKNOWLEDGMENTS I am indebted to Julie B. Sadoff, Esquire, for her careful reading of the manuscript and her helpful suggestions with respect to legal issues.

REFERENCES American Academy of Psychiatry and the Law. February 1987: Ethical Guidelines for the Practice of Forensic Psychiatry. Baltimore, MD. (Revised 1989, 1991, 1995.) Sadoff, R.L. 1998. The practice of forensic psychiatry: perils, problems and pitfalls. Journal of the American Academy of Psychiatry and the Law 26, 305–14. Strasburger, L.H., Gutheil, T.G., Brodsky, A. 1997. On wearing two hats: role conflict in serving as both psychotherapist and expert witness. American Journal of Psychiatry 154, 448–56.

Suggested reading Beck, J.C. 1990: Confidentiality Versus the Duty to Protect: Foreseeable Harm in the Practice of

Psychiatry. Washington, DC: American Psychiatric Press. Brodsky, S.L. 1991: Testifying in Court: Guidelines and Maxims for the Expert Witness. Washington, DC: American Psychological Association. Bromberg, W. 1979: The Uses of Psychiatry in the Law: A Clinical View of Forensic Psychiatry. Westport, CT: Quorum Books. Bursten, B. 1984: Beyond Psychiatric Expertise. Springfield, IL: Charles C. Thomas. Group for the Advancement of Psychiatry. 1991: The Mental Health Professional and the Legal System, report no. 131. New York: Brunner/Mazel. Gutheil, T.G., Appelbaum, P.S. 2000: Clinical Handbook of Psychiatry and the Law. 3rd edition. Baltimore: Lippincott, Williams and Wilkins. Halleck, S.L. 1980: Law in the Practice of Psychiatry: A Handbook for Clinicians. New York: Plenum. Sadoff, R.L. 1988: Forensic Psychiatry: A Practical Guide for Lawyers and Psychiatrists, 2nd edition. Springfield, IL: Charles C. Thomas. Schetky, D.K., Benedek, E.P. 1980: Child Psychiatry and the Law. New York: Brunner/Mazel. Schetky, D.K., Benedek, E.P. 2002: Principles and Practice of Child and Adolescent Forensic Psychiatry. Washington, DC: American Psychiatric Publishing, Inc. Simon, R.I. 1987: Clinical Psychiatry and the Law. Washington, DC: American Psychiatric Press. Stone, A.A. 1984: Law, Psychiatry, and Morality: Essays and Analysis. Washington, DC: American Psychiatric Press.

7 Education and training in forensic psychiatry RUSTY REEVES AND RICHARD ROSNER

INTRODUCTION Over the past twenty-five years, education and certification in forensic psychiatry have grown more uniform and systematic. In 1982, the American Academy of Forensic Sciences (AAFS) and the American Academy of Psychiatry and the Law (AAPL) cosponsored a report, entitled Standards for Fellowship Programs in Forensic Psychiatry (AAFS-AAPL Joint Committee 1982). That report fostered a common didactic and experiential core in training programs in the United States and Canada. The creation, in 1988, of the Accreditation Council on Fellowships in Forensic Psychiatry (ACFFP), a semi-autonomous component of AAPL, furthered that end by creating a process to distinguish training programs that met the Standards for Fellowship Programs in Forensic Psychiatry from training programs that did not meet the Standards. The ACFFP accredited fellowships from 1989 until 1997. Midway through 1997, the ACFFP was supplanted by the Accreditation Council for Graduate Medical Education (ACGME). There has been a corresponding change in nomenclature, i.e., the ACFFP referred to forensic training programs as fellowships, whereas the ACGME refers to forensic training programs as residencies. As of July, 2002, the ACGME had approved thirty-eight forensic residency programs (with a total of ninety-two trainee positions) as meeting its criteria for accreditation (ACGME 2002). The American Board of Forensic Psychiatry (ABFP) was an early organization that required candidates for certification to take both a written and an oral examination to demonstrate competence. The ABFP was established in 1976 with the sponsorship of the AAFS and the Forensic Sciences Foundation (FSF) and financing by the Legal Enforcement Assistance Administration (LEAA). Subsequently AAPL also sponsored the ABFP. Successful completion of the ABFP examination conferred a lifetime certification in forensic psychiatry. In 1990, AAPL succeeded in obtaining from the American Psychiatric Association (APA) formal recognition of forensic psychiatry as a psychiatric specialty. In

the early 1990s, the APA asked the American Board of Psychiatry and Neurology (ABPN) to establish an examination procedure for persons to be certified in the subspecialty of forensic psychiatry. The ABPN then successfully petitioned the American Board of Medical Specialties (ABMS) for authorization to offer a new forensic psychiatry examination. Thus, as of October, 1994, the ABFP was supplanted by the examination for Added Qualifications in Forensic Psychiatry of the ABPN, under the auspices of the ABMS. Unlike the life-long certification of the ABFP, the ABPN certificates for forensic psychiatrists are valid for only ten years; periodic re-certification examinations are required to sustain the validity of the ABPN forensic certification. As of June, 1998, the ABPN had issued 824 certificates in forensic psychiatry (ABPN 2000a). In 1999 – the last year in which one could be certified by the ABPN without having completed a fellowship in forensic psychiatry – the ABPN issued 486 more certificates (Pasternak at ABPN 2000). It is anticipated that graduation from an ACGME-accredited forensic psychiatry residency and certification by the ABPN eventually will become the preferred route into forensic psychiatry. Despite these gradual moves toward standardization and rigor in education and certification, the strong demand for practitioners in forensic psychiatry currently makes it possible for one to do work in forensic psychiatry without having completed a fellowship, and without having been certified by the ABPN. As of July, 2000, there were 2500 members of AAPL, 3500 members of the APA with a ‘special interest’ in forensic psychiatry (many of whom are the aforementioned AAPL members), and only 1310 psychiatrists certified in forensic psychiatry by the ABPN. Thus, at the present time, most practicing forensic psychiatrists are not graduates of ACGME-accredited forensic psychiatry residency programs, and are not certified by the ABPN in forensic psychiatry. They are largely self-educated, having combined independent readings, attendance at continuing medical education programs, and vocational experiences to develop their professional talents. If one’s goal remains learning outside of a formal

Education and training in forensic psychiatry 53

forensic psychiatry residency program, and one is willing to forego specialty certification in forensic psychiatry by the ABPN, then a program of systematic independent study may allow one to develop the skills and knowledge necessary to function competently as a forensic psychiatrist. For the immediate future, a mix of self-trained and ACFFP fellowship and ACGME forensic residency-trained, ABFP- and ABPN-certified and uncertified, forensic psychiatrists will practice the subspecialty. Until such time as the practice of forensic psychiatry is made legally contingent on graduation from an accredited forensic residency, or certification by the ABPN, some practitioners will continue to come into the field by independent study and on-the-job training.

SYSTEMATIC INDEPENDENT STUDY Systematic independent study is meant to refer to a selfdirected program of education and experience, such as might be pursued by a practitioner who wishes to work in forensic psychiatry without participating in an ACGME forensic residency program. It differs from the earlier onthe-job training of many old-time practitioners in that it is more organized and aims to be more comprehensive. It can be accomplished on a part-time basis and it can continue over many years, rather than being full-time and concentrated like a forensic residency. Persons interested in pursuing systematic independent study can turn to the ACGME’s Program Requirements for Residency Education in Forensic Psychiatry to learn not only the likely structure and content of such a program, but also the knowledge and skills a practitioner in the subspecialty is expected to possess. (The full program requirements are available on ACGME’s website [ACGME 2000].) In general, any such systematic independent study will have: a planned series of educational employment experiences in criminal law, civil law, legal regulation of psychiatry, and domestic-relations law; a planned sequence of readings and continuing medical education courses in forensic psychiatry; and a regularly scheduled supervisory process in which the would-be forensic psychiatrist obtains educational input from an experienced and board-certified forensic psychiatrist. The series of employments should include part-time work, with practical clinical education (e.g., on-the-job training), in such roles and settings as: a correctional mental health service; a criminal court or domestic relations court forensic psychiatry consultation service; an independent medical examiner for the Social Security administration or for a private insurance company; a liaison–consultation psychiatric service in a general hospital; and a psychiatric emergency room. The emphasis is on the series, rather than on any one employment site, so that the would-be forensic psychiatrist will have a wide

range of practical experiences encompassing many aspects of the field, including criminal law, domestic relations law, and corrections. 1 The criminal law experiences should include such cases as: competence to stand trial; competence to have confessed; competence to waive representation by counsel; post-conviction evaluations to assist the probation service; evaluations for insanity defense cases; and assessments of when persons acquitted by reason of insanity may safely be released from secure settings. 2 The correctional experiences should include such matters as: voluntary and involuntary treatment of incarcerated persons; inter-institutional transfers from correctional facilities to mental health facilities and from mental health facilities to correctional facilities; and evaluations to assist the parole service. 3 The domestic-relations law experiences should include such issues as: child custody cases; children-in-needof-supervision cases; juvenile delinquency cases; termination of parental rights cases; child neglect and abuse cases; spouse and elder abuse cases; and competence to be married/to be divorced assessments. 4 The civil law experiences should address such matters as: assessment of alleged psychiatric disability compensation cases; competence to make a will; competence to make a contract; competence to manage one’s finances; and need for total guardianship. 5 The experiences in legal psychiatry should include such concerns as: competence to consent to treatment; competence to refuse treatment; competence to make a living will; competence to designate a health-care proxy decision-maker; competence to decline to be resuscitated; admission to a psychiatric hospital as an informal or voluntary or involuntary or emergency patient; confidentiality of communications and records; psychiatric malpractice; and psychiatric ethics. These examples are illustrative, rather than exhaustive. No one employment site can be expected to provide such a broad range of experiences as is desirable, so that a series of employments is needed. Part-time work for one or two years in several settings is needed to obtain access to the appropriate range of experiences. The readings and continuing medical education courses must address a similarly broad range of topics. The would-be forensic psychiatrist needs to know introductory basic law and the legal system’s procedures; special issues in forensic psychiatry; history of (and current practice in) forensic psychiatry; civil law and psychiatry; criminal law and psychiatry; domestic-relations and psychiatry; correctional psychiatry; legal regulation of psychiatry; and the landmark legal cases in the field. Continuing medical education in forensic psychiatry is available through the programs presented at the annual scientific conventions of the American Academy of Psychiatry and the Law each October, and the American Academy of Forensic Sciences each February. Selected

54 History and practice of forensic psychiatry

special panels and courses may be provided at the convention of the American Psychiatric Association each May. The Learning Resources Center of AAPL offers mailservice educational audiotapes, videotapes, and reading materials. The regional chapters of AAPL provide local educational opportunities. Tutoring and private supervision in forensic psychiatry is usually available on a fee-for-service basis, much as psychiatrists have obtained private tutoring and supervision in psychotherapy. Among other matters, such tutoring should address how to organize the data of forensic psychiatric evaluations and reports, how to think about issues in forensic psychiatry, how to write reports for legal purposes, and how to testify effectively in court. Tutors should be board-certified in forensic psychiatry and, preferably, on the faculty of an accredited forensic residency training program. A list of psychiatrists certified by the ABFP may be obtained from AAPL’s membership directory. A list of psychiatrists with ABPN certification in the subspecialty of forensic psychiatry can be obtained from The Official ABMS Directory of Board Certified Medical Specialists, published annually by the ABMS, and available in many public and medical school libraries.

FORENSIC RESIDENCY TRAINING Forensic residency training provides a more concentrated and integrated experience than systematic independent study, designed to ensure exposure to the field’s diversity, with intensive education and close supervision from experienced and knowledgeable practitioners. The ACGME requires of its approved programs that the training period in forensic psychiatry be twelve months, and that training occur after completion of a psychiatry residency accredited by the ACGME. Training in forensic psychiatry that occurs during the general residency training will not be credited toward this one-year requirement. The clinical assignments must include experiences in the following three areas: (i) forensic evaluation of subjects of both genders, including adolescent, adult and geriatric groups, in both civil and criminal contexts; (ii) consultation to general psychiatric services on issues related to the legal regulation of psychiatric practice; and (iii) treatment of persons involved in the criminal justice system. Residents must have experience in review of written records, and in testifying in court or in mock trials. The overall didactic curriculum must include the following components: (i) a psychiatric curriculum; (ii) a law curriculum related to forensic psychiatry (e.g., fundamentals of law); (iii) a civil law curriculum; (iv) a criminal law curriculum; and (v) conferences in forensic psychiatry. The program should also offer a meaningful, individually supervised scholarly experience for each resident.

The program must be administratively attached to and sponsored by a residency program in psychiatry that is accredited by the ACGME. The program should take place in facilities accredited by the appropriate state and/or federal licensing agencies, the courts, and, where appropriate, the Joint Commission on Accreditation of Healthcare Organizations. There must be a clear educational rationale for the inclusion of each participating institution, and written affiliation agreements specific to the provision of training in forensic psychiatry between the institution sponsoring the program and each of the participating institutions. The program director must be certified by the ABPN in the subspecialty of forensic psychiatry, or have equivalent qualifications in forensic psychiatry satisfactory to the ACGME’s Psychiatric Residency Review Committee. A major responsibility of the program director is the preparation of a written statement outlining the educational goals of the program with respect to knowledge, skills, and other attributes of residents at each level of training and for each major rotation or assignment. The program director must also provide regular evaluation of residents’ knowledge, skills, and overall performance. In addition to the program director, there must be at least one other faculty member certified by the ABPN in the subspecialty of forensic psychiatry or its equivalent, and at least one certified child and adolescent psychiatrist. The faculty must also be qualified by experience in forensic psychiatry to provide the expertise needed to fulfill the didactic, clinical, and research goals of the program, and must devote sufficient time to the educational program. In addition to the faculty psychiatrists, the faculty must include a lawyer and a forensic psychologist. All elements of the program must be located in designated facilities based on written affiliation agreements. The program must include experiences in: (i) facilities in which forensic psychiatric evaluations are performed on subjects with a broad variety of psychiatric disorders (e.g., a court clinic); (ii) facilities that provide general psychiatric services to patients with a broad variety of psychiatric disorders (e.g., a general inpatient unit); and (iii) facilities that treat persons in the correctional system (e.g., a jail). Residents must have ready access to a major medical library with an adequate number of texts and journals in psychiatry and the law. These requirements represent a partial list of ACGME’s requirements. For the complete list, visit the ACGME’s website (ACGME 2000). The Association of Directors of Forensic Psychiatry Fellowships (ADFPF) plays an additional role in the effort to ensure quality education in forensic psychiatry. The ADFPF continues the old ACFFP nomenclature by referring to forensic training programs as fellowships, rather than following the new ACGME preference for calling such training programs forensic residencies. The ADFPF, a semiautonomous Council of AAPL, gives forensic residency directors a forum to exchange ideas and make

Education and training in forensic psychiatry 55

themselves aware of developments relevant to training in forensic psychiatry, such as certification and accreditation. The ADFPF meets twice a year, at the annual AAPL meeting, and immediately prior to the annual APA meeting.

training must not begin before the time that general residency training in psychiatry is completed, including time spent in combined training programs. The exposure to forensic psychiatry given to psychiatry residents as part of their basic psychiatry curriculum does not qualify for this credit.

CERTIFICATION OF EXPERTISE IN FORENSIC PSYCHIATRY REFERENCES The ABPN offers an examination whose successful completion certifies the psychiatrist for ten years as an expert in the specialty of forensic psychiatry. The ABPN does not offer a ‘grandfathering’ mechanism; everyone certified by the ABPN must pass its examination. The multiple-choice examination assesses candidates on their knowledge in: legal regulation of psychiatry; civil; criminal; corrections/ correctional healthcare; legal systems/basic law; children/ families; special diagnostic issues, procedures, and consultations and investigations in forensic psychiatry; risk assessment; and practice issues (ABPN 2000b). In order to sit for the ABPN forensic examination, an applicant must first be certified by the ABPN in psychiatry. The examination of April, 1999, was the last ABPN examination that a psychiatrist could take without having graduated a one-year fellowship in forensic psychiatry. The examination of April, 2001, was the last ABPN examination that a psychiatrist could take without having graduated an ACGME-approved fellowship. Thereafter, all applicants were required to submit documentation of successful completion of one year of ACGME-approved residency training in forensic psychiatry. The forensic

American Academy of Forensic Sciences-American Academy of Psychiatry and the Law Joint Committee on Accreditation of Fellowship Programs in Forensic Psychiatry. 1982. Standards for fellowship programs in forensic psychiatry. American Academy of Psychiatry and the Law Bulletin 10(4). American Board of Psychiatry and Neurology, Inc. 2000a. Available at www.abpn.com/certification/statistics.html American Board of Psychiatry and Neurology, Inc. 2000b: 2001 Information for Applicants for Certification in the Subspecialties of Geriatric Psychiatry, Clinical Neurophysiology, Addiction Psychiatry, Forensic Psychiatry and Neurodevelopmental Disabilities. American Council for Graduate Medical Education. 2000: Program Requirements for Residency Education in Forensic Psychiatry. Available at www.acgme.org/req/406pr296.asp American Council for Graduate Medical Education. 2002. Available at www.acgme.org/adspublic/ Pasternak, J. 2000. Personal communication. At the American Board of Psychiatry and Neurology.

8 Ethical guidelines ROBERT WEINSTOCK, GREGORY B. LEONG AND J. ARTURO SILVA

INTRODUCTION Ethical guidelines in medicine are in a state of flux at the time of this writing. The American Medical Association (AMA) revised its Principles of Medical Ethics in 2001 (hereafter Principles). The American Psychiatric Association (APA) bases its Annotations on the AMA Principles. The previous AMA Principles remain relevant in the most recent revision that has made relatively minor changes to the existing Principles. However, the latest version of the APA guidelines does not incorporate the two new principles that were added, or the revisions in language of the existing principles. The APA is in the process of revising its Annotations and Opinions to be consonant with the revised AMA Principles. The American Academy of Psychiatry and the Law (AAPL) developed its ethical guidelines to be consistent with the AMA Principles and APA Annotations. The AAPL Committee on Ethics currently also is revising its ethical guidelines to be consistent with the new AMA Principles. Reference should be made to the revised AAPL guidelines as well as to APA Annotations and Opinions as soon as they become available. Nevertheless, the overwhelming number of existing guidelines should still be relevant for the foreseeable future. Ethical guidelines in forensic psychiatry are, of necessity, complex. Forensic psychiatry operates at the interface of two disparate disciplines – law and psychiatry – with differing objectives, philosophies, values, approaches, and methods. Psychiatry, a branch of medicine, endeavors to improve mental health and to help patients. Although Hippocratic physicians saw their duties only to individual patients, the responsibilities of physicians both ethically and legally have been extended in modern times to include society. The law, on the other hand, resolves disputes, with justice, retribution, containment, and deterrence as its goals. Ethics as a philosophical discipline itself, incorporates both deontological (duty) and utilitarian or consequentialist values, and philosophy itself provides no clear resolutions to this conflict (Rosner 1990). Dilemmas

occur when no resolution is entirely satisfactory since some ethical value must be sacrificed. No set of ethical guidelines can foresee every such contingency, so forensic psychiatrists require training in how to analyze and resolve ethical dilemmas themselves.

ETHICAL DILEMMAS AND CONFLICTS Although most forensic psychiatric evaluations do not present ethical dilemmas, functioning at the interface of law and psychiatry can frequently lead to ethical conflicts. There can be no clear resolution methods or any single relevant rule that does not conflict with another competing consideration. Stone (1984) in a paper originally presented at AAPL, stimulated much concern and debate by positing that the ethical requirements and boundaries of a healing profession become unclear once psychiatrists leave the therapeutic realm. Four problem areas can be distilled from Stone: 1 The basic boundary problem of whether psychiatry has anything to offer the law. 2 The potential for psychiatrists to try to help a patient by twisting rules of justice and fairness. 3 The potential for the psychiatrist to deceive a patient in order to serve justice and fairness. 4 The power of the adversarial legal system to both seduce and abuse psychiatrists in ways that demean the profession. Other potential pitfalls and problems involve reconciling deterministic psychiatric theories with a legal system based on free will. For instance, Moore (1984) contends that mind–brain confusion in American forensic psychiatry goes back at least to Isaac Ray, who thought that if mental disease is physical, the power to choose is extinguished and the actor is ipso facto not responsible. According to Moore, the law – in contrast to science – uses the language of action and reason. Possible physical causes of mental illness are irrelevant to whether the law

Ethical guidelines 57

decides to excuse. Halleck (1992) considers the issue of voluntariness, relevant to assessments by clinicians in treatment approaches as well as forensic assessments. Stone cautions that physicians lose their ethical boundaries when they give other factors such as justice, advancement of science, or political causes greater weight than helping patients or doing no harm. He believes that a psychiatrist cannot simply adjust to the adversarial system and still remain true to his or her calling as a physician. However, problems exist even in a treatment capacity, no longer simple or ‘pure.’ Treatment psychiatrists progressively have had conflicting responsibilities thrust upon them. In circumstances such as child abuse reporting, other requirements may take precedence over patient welfare (Weinstock et al. 1991), especially under circumstances in which reporting leads to prosecution of a patient and to the psychiatrist being used for that purpose in some states. Therefore, the boundaries of even treating psychiatrists no longer are clearly demarcated. Stone also states that juries do not clearly understand the partisan role of the forensic psychiatrist, or that when a forensic psychiatrist testifies ‘he or she should be understood as having attempted to present the best case possible’ (Stone 1984) for the retaining party. Stone argues that until there is candor, it will not be possible to ‘sweep the ethical problems of psychiatry under the rug of intelligible adversarial ethics.’ However, these problems are not unique to forensic psychiatry – they can arise for all expert witnesses who testify under our adversary system (see Chapter 2). If changes were to be made, they would necessarily involve the entire adversary process and its use of expert witnesses, and not solely forensic psychiatry.

ETHICAL PRINCIPLES RELEVANT TO FORENSIC PSYCHIATRY Appelbaum (1990) wrote that, ‘Psychiatrists operate outside the medical framework when they enter the forensic realm, and the ethical principles by which their behavior is justified are simply not the same.’ He contends that the principles of beneficence and non-maleficence lose their primacy to the principles of truth in the forensic setting. Although ethical conflicts sometimes can arise, Appelbaum (1984) believes that forensic psychiatrists should present both the subjective and objective truth. Psychiatrists should gather the maximum amount of relevant data to most accurately present the subjective truth as they see it. Objective truth, according to Appelbaum, requires psychiatrists to make evident any limitations on their conclusions. Familiarity with the relevant recent literature is also essential. In addition to subjective truth telling or honesty, Appelbaum (1997) considers respect for persons as the second moral rule on which forensic psychiatric ethics should rest. For forensic psychiatrists, the major risk is that ‘subjects of forensic evaluations will assume that an

evaluating psychiatrist is playing a therapeutic role and, therefore, that the usual ethics of the clinical setting apply.’ Evaluees may think that, as physicians, forensic psychiatrists are there to help or at least do no harm, and so the subject may think that it is safe to speak freely. According to Appelbaum, while ‘allowing subjects to hold such beliefs might be an effective means of gathering information, it is inherently deceptive and exploitative, and fails to respect subjects as persons.’ The justice system shows respect for persons by tempering its pursuit of truth with the recognition that sometimes other values must take precedence. For example, defendants in western democracies are not tortured to get at the truth, and in our country constitutional rights generally are respected. Respect for persons is shown by a forensic psychiatrist not capitalizing on a misunderstanding of his or her role and by keeping information confidential, except to the degree required by the legal process to fulfill the forensic function. Additionally, according to Appelbaum (1997), not as professionals, but as citizens, forensic psychiatrists have duties to behave non-maleficently except when acting within the legitimate scope of their professional roles in the pursuit of justice. According to him, ‘they cannot avoid the obligation of determining whether the actions they are being asked to perform in fact promote justice.’ For example, assisting in abusive interrogation or torture of prisoners would fail that test. Weinstock et al. (1990) have posited that traditional medical ethics should be retained and have continued to serve all of medicine as an ideal. They hold that traditional medical ethics should play a role and should be a factor in the process of balancing conflicting values using the method recommended by Hundert (1990). Appelbaum (1997) agrees that violating moral rules is an inevitable consequence of the complexity of life and resolving such conflicts ‘requires balancing, among other morally relevant factors, the nature of each imperative, the benefits and harms likely to flow from its violation, and the alternative means of achieving the desired end.’ He states that moral rules are required of individuals, but moral ideals are desirable. Professional ethics can transform a moral ideal into a moral rule. An example is the requirement of physicians to relieve pain, which is only an ideal for the general public. Appelbaum believes that the moral ideals that should be converted into moral rules are those values that society wants the profession to promote. Differences between the ethics of differing professions should depend on society’s expectation of the profession. Society gives professions certain privileges in exchange for certain duties and the expectation for self-regulation. Although controversial, the retention of traditional Hippocratic medical values as a consideration in forensic ethics is most consistent with the findings in surveys of forensic psychiatrists. The highest-rated potential new ethical guideline in a recent survey was shown to be a guideline to consider medical and psychiatric ethics as a

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factor when performing a forensic evaluation (Weinstock et al. 1991). A way to conceptualize these conflicting issues would be to see forensic psychiatrists as having multiple agency responsibilities much like all other psychiatrists, especially those who consult to any other system. There is no simple single duty or loyalty for all psychiatrists (see Chapter 2). In the judicial process there may often be an assumption that traditional medical ethics remains a consideration, so eschewing medical ethics completely may in fact be misleading to juries and even judges who may misinterpret the role of an expert who eschews all medical values. Truth telling can harm a patient even in the treatment setting, such as by making an antisocial personality diagnosis, so harm is not unique to forensic psychiatry. Truth telling has more primacy than patient welfare in the forensic setting. The opposite priority may be true in the treatment setting, or at minimum they have equal value. Primacy though, in situations in which the secondary duty becomes more serious than the primary duty, does not necessarily preclude the secondary duty becoming determinative occasionally of the most ethical course of action. Examples are child abuse reporting, performing prearraignment assessments, and treating prisoners to make them competent to be executed, in which the serious harm to the secondary duty makes that duty predominant in those situations. Because of these conflicting values as well as misunderstandings about the adversary process, forensic psychiatry has endeavored to develop ethical guidelines to be used in the practice of forensic psychiatry. Relevant guidelines have also been developed by the APA and AMA. However, even ethical guidelines cannot resolve all ethical problems, as ethical guidelines and values can conflict. Although some guidance can be given about prioritization, at some point, the individual practitioner must balance competing ethics and values (Hundert 1990). Unfortunately, no rules can cover all contingencies, but practitioners should not be sanctioned for behavior about which there can be serious disagreement. Ethics committees can advise and help, although the conflicting and sometimes differing values of law and medicine can make this balancing a formidable but inevitable task. Anyone practicing forensic psychiatry needs to be ready to analyze options from an ethical perspective and not resort to a simplistic rule to the exclusion of all other considerations. Griffith (1998) emphasizes the importance of dominant/non-dominant group issues, using a cultural formulation in forensic ethics discussions. He considers a need to be sensitive to such issues as the frequent lack of respect for African-Americans seeking justice and to become aware of an individual defendant’s personal narrative in addition to dominance and political facets. Even if such sensitivity does not result in an assessment helpful to a defendant, non-dominant cultural issues should be understood fully and any unfairness understood. In Griffith’s opinion, these are reasons for psychiatrists from

non-dominant cultures, more likely to be sensitive to these issues, to remain in court. Candilis et al. (2001) propose a robust view of the forensic role that integrates both the principled and narrative approaches. Central to their concept is professional integrity tied to the community and its values, reflecting a community expectation of a broader more physicianbased approach from its forensic experts. In addition, each profession has its own historical narrative and an internal set of duties, values and ideals, essential for professional identity and integrity. The historical narrative of a profession anchors the profession in values that resist the vagaries of social and situational forces. Candilis et al. contend that the historical narrative of forensic psychiatry is still emerging. A narrow view sees a narrowly defined role as an agency of society and the court. The broader view of professional integrity that these authors advocate permits personal and traditional physician-based values to inform the forensic role. Narrative ethics are an answer to criticism of the principled approach developed by Beauchamp and Childress (2001). Principles, according to Candilis et al. (2001), work at the theoretical level to create a framework for appropriate action, but alone are limited in their ability to address the motives and intentions of individuals. Alone, principles are inadequate to give guidance in complex forensic situations. ‘Narrative can operationalize theory in a practical manner, describing the individual’s unique path to the forensic encounter.’ In the narrative approach, all medical and legal dramas are viewed as a play in which the participants create a moral tale. A forensic expert should take an individual’s narrative into account and endeavor, if permitted, to describe it to a court. Weinstock (2001) agrees with the need to balance conflicting values, and conceptualizes consultation in forensic psychiatry as not essentially different from consultation to other systems such as managed care. Even in research roles, a physician has duties to science, but has ethical responsibilities to remove a patient from a study if there is a serious risk of harm. Treating psychiatrists have duties to society (e.g., protecting society from a patient) that can conflict with duties to a patient, so they also confront ethical dilemmas. Ciccone and Clements (2001) fear ethics becoming arbitrary with the Candilis approach. They prefer an applied ethics approach entailing a probabilistic inductive theory of ethics and a systems epistemology-like context ethics and a scientific epistemology rather than a special moral reasoning. In situations requiring conflicting roles, they advocate having different forensic psychiatrists perform the conflicting roles. Appelbaum (1997) supports a principled approach and recognizes a need to balance conflicting duties when complex ethical problems arise. He expresses concern though that ‘if forensic psychiatrists persuade themselves that they maintain a residual duty – of a professional nature – to benefit and not to harm evaluees, they are likely to communicate that to their subjects.’ An evaluee could be misled into thinking the forensic evaluation is a

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quasi-therapeutic encounter. In the process of mutual deception, the subject will be betrayed and potentially harmed. In Appelbaum’s view, that is a clear advantage of deriving the ethics of forensic psychiatry from the pursuit of justice and not health, thereby sending a clear message regarding the distinction between the forensic and therapeutic roles. Although Appelbaum makes an important point that probably should be determinative in most situations, secondary medical responsibilities still might be relevant in some circumstances, and even determinative in a few. Sometimes professional ethics have been distinguished from personal morals. However, such a distinction can be confusing since the terms ethical and moral generally have been used interchangeably. In the professional realm, ‘ethics’ is the term usually used, whilst in religion, ‘moral’ is the predominant term, though both are generally interchangeable. Sometimes problems are labeled ‘moral’ when organizations choose not to address them, but know that some members have strong ethical views on the issue in question (e.g., some death penalty roles). Sometimes legitimate differences of opinion exist about whether specific ethical concerns should apply to the entire profession. Diamond (personal communication, April 25, 1988) distinguished between organizational ethics and personal ethics. Personal ethics can be more stringent than organizational ethics, and can be held by individuals or groups for personal reasons, not shared by other practitioners. They may be strongly held, but should not be forced on all professionals if there is a good ethical foundation for alternative approaches. They can nonetheless though be powerful guides to clinical practice. Diamond further differentiated personal ethics from organizational ethics that include minimal standards of conduct practitioners must follow. Violations of these minimal standards can lead to ethics actions up to expulsion from an organization, licensing board actions, and may even lead to legal liability (such as the requirement not to have sex with patients). Though according to Diamond, a subcategory of organizational ethics are ideal standards of practice followed by the most competent practitioners and leaders in the profession, which eventually should be but are not yet enforceable. They are guidelines for good practice for which there is not yet a consensual agreement that they are general standards of practice. They should be, but are not always, distinguished from enforceable standards in some guidelines. Similarly, Dyer (1988) has distinguished between ethical guidelines, which function in a punitive role, and guidelines for good practice by the concerned psychiatrist that are not enforceable but are aspirational and should be considered by psychiatrists trying to behave most ethically. Some of AAPL’s ethical guidelines might be best seen as aspirational since not all of them can be enforced. The American Academy of Forensic Sciences (AAFS) is in the process of developing aspirational guidelines for good forensic practice to supplement their Code of Conduct.

TRADITIONAL HIPPOCRATIC ETHICS A guiding principle for medicine has been primum non nocere, or ‘first, do no harm.’ This principle dates back to Hippocrates in ancient Greece, but efforts to find its exact origin have been unsuccessful. It is not part of the Hippocratic Oath, although the oath does enjoin the physician from using medicine to harm patients (or anyone) depending on the translation (Weinstock et al. 1990). It is possible that it is a Roman modification of Hippocratic ethics and is usually stated in Latin. This principle is not specifically stated in the current Principles of Medical Ethics as promulgated by the American Medical Association (AMA 2001). It does, however, still function ‘to establish physicians as a moral community (with) delineated obligations and responsibilities specific to the medical profession’ (American Medical News 2000). It also still is perceived by the general public as the fundamental ethical principle for medicine. Hippocratic ethics made a resurgence when medicine was introduced into medieval Europe, probably because of its similarities to the Catholic confessional, with its paternalism and secrecy. Current medical ethical codifications date back to Thomas Percival. In the late eighteenth century, Percival wrote his Medical Ethics that presented a scheme for professional conduct with many features in common with the Hippocratic Oath. It followed an epidemic in 1789 in Manchester, England, and became a model for ethical codes in the United States, even though not adopted as an approach in England. The United Kingdom has relied more on the honor of physicians since rules cannot cover all contingencies. Of course problems arise when there is no honor. Similarly, in the legal area, the United Kingdom relies more on respect for physicians and does not have privilege laws. In 1847 a dispute among several schools of physicians in the United States led orthodox practitioners to found the AMA, and they adopted a Code of Ethics patterned after Percival.

AMA PRINCIPLES OF MEDICAL ETHICS The last revision of the AMA Principles of Medical Ethics was in 2001 (AMA 2001). In its introductions to the Principles, the AMA stated: The medical profession has long subscribed to a body of ethical statements developed primarily for the benefit of the patient. As a member of this profession, a physician must recognize responsibility to patients first and foremost, as well as to society, to other health professionals, and to self. The following Principles adopted by the American Medical Association are not laws, but standards of conduct which define the essentials of honorable behavior for the physician.

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The AMA has enumerated nine ethical guidelines (called Sections) in its Principles of Medical Ethics: 1 A physician shall be dedicated to providing competent medical care, with compassion and respect for human dignity and rights. 2 A physician shall uphold the standards of professionalism, be honest in all professional interactions, and strive to report physicians deficient in character or competence, or engaging in fraud or deception, to appropriate entities. 3 A physician shall respect the law and also recognize a responsibility to seek changes in those requirements which are contrary to the best interests of the patient. 4 A physician shall respect the rights of patients, colleagues, and other health professionals, and shall safeguard patient confidences and privacy within the constraints of the law. 5 A physician shall continue to study, apply, and advance scientific knowledge, maintain a commitment to medical education, make relevant information available to patients, colleagues, and the public, obtain consultation, and use the talents of other health professionals when indicated. 6 A physician shall, in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide medical care. 7 A physician shall recognize a responsibility to participate in activities contributing to the improvement of the community and the betterment of public health. 8 A physician shall, while caring for a patient, regard responsibility to the patient as paramount. 9 A physician shall support access to medical care for all people. Important changes have occurred since the previous 1980 version of the Principles. The current version emphasizes the primacy of the duties to the patient despite co-occurring responsibilities to society. Responsibilities to a patient are paramount when caring for a patient. There is a new emphasis on care and not merely service. There is an emphasis on honesty in all professional interactions as well as on patient rights. There is a new duty to safeguard patient privacy and new responsibilities to medical education and the betterment of public health. Additionally, there is a new responsibility to support access to medical care for all people.

PRINCIPLES OF MEDICAL ETHICS WITH ANNOTATIONS ESPECIALLY APPLICABLE TO PSYCHIATRY RELEVANT TO FORENSIC PSYCHIATRY The APA has developed Annotations (APA 2001a) to the previous 1980 version of the AMA Principles of Medical

Ethics that elaborate on issues and situations especially applicable and relevant to psychiatric practice. The most recent 2001 version of the APA Annotations and Opinions still is based on the 1980 AMA version and is in the process of revision in order to conform to the new 2001 AMA Principles. In reference to the APA Annotations, Appelbaum (1992) has stated that the Annotations suffer insofar as ‘they are generated on an ad hoc basis, as an issue rises to the surface in the APA rather than in a systematic effort to elaborate an ethical code.’ Although many are relevant, they are not specifically directed to the forensic setting. Moreover, as mentioned by Appelbaum, some rules are ‘so general as to create no boundaries at all.’ Nonetheless, many of the Annotations are relevant to forensic psychiatry. The existing Annotations are capable of enforcement. They are especially important for all psychiatrists, and ignorance is not an excuse. An allegation of an ethics violation against an APA member is investigated by the local district branch of the APA, which holds hearings and recommends sanctions if an ethical violation is found. Sanctions include admonishment, reprimand, suspension, and expulsion from the APA. Expulsions and more than very brief suspensions also are reported to the National Practitioners Data Bank since September 1, 1990. The Data Bank contains records of medical professionals, psychotherapists, and dentists who have been successfully sued (even if settled), whose licenses have been revoked or suspended, or who have been sanctioned by a hospital, medical group, or health plan with a peer review system (with privileges suspended or removed). In addition, the Ethics Committee of the APA district branches can report offending member psychiatrists to state licensing boards. If a member resigns while the case is under investigation, this fact can be made public in an APA publication if the allegation is serious. Relevant annotations in forensic psychiatry in its 2001 version include several Annotations subsumed under each of the 1980 AMA Principles of Medical Ethics as stated below.

Principle (Section) 1 Relevant is Annotation 4, which prohibits physician participation in a legally authorized execution (see Chapter 10). This section had been interpreted solely as prohibiting giving lethal injections. The AMA has already passed resolutions affirming that it is unethical for physicians, regardless of their personal views of capital punishment, to participate in legally authorized executions, except to certify death. They have said that involvement short of the death penalty process itself is ethical. They even say the controversial testimony about aggravating and mitigating circumstances at the penalty phase of a capital trial is ethical.

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Relevant is Annotation 1, which states that sexual activity with a current or former patient is unethical because of the inherent inequality in the doctor–patient relationship that may lead to exploitation. Annotation 2 states that the psychiatrist should diligently guard against exploiting information furnished by the patient and should not use the power afforded to him/her by the therapy situation to influence the patient in ways not directly relevant to treatment goals. Annotation 3 states that psychiatrists who practice outside their areas of expertise should be considered to be practicing unethically. Annotation 4 states that in situations in which psychiatrists, because of mental illness, jeopardize the welfare of their patients and their own reputations and practices, it is ethical and even encouraged for another psychiatrist to intercede. Annotation 5 states that like all medical services, psychiatric services are dispensed in the context of a contractual arrangement with the patient binding on the physician as well as patient, and the provisions of such a contract should be established explicitly.

must be explained to the examinee at the beginning of the examination. Although Annotation 6 does not specifically cover all forensic examinations, AAPL ethical guidelines require such explanations whenever lack of confidentiality is involved. Annotation 9 applies if psychiatrists are ordered by the court to reveal patient confidences. They may comply or ethically hold the right to dissent within the framework of the law. If in doubt, they should respect the right of the patient to confidentiality and unimpaired treatment and should reserve the right to raise the question of adequate need for disclosure. If case disclosure is required by the court, the right to disclose only information relevant to the legal question at hand may be requested. Annotation 13 states that ‘psychiatric evaluations of any person charged with criminal acts prior to access to, or availability of, legal counsel should not be performed except for rendering of care for the sole purpose of medical treatment.’ This is also an AAPL requirement. Annotation 14 refers to abuse of power and inequalities in the working relationship, which can cause ethical problems in sexual involvements between a faculty member or supervisor and a trainee or student.

Principle (Section ) 3

Principle (Section) 7

Relevant is Annotation 1, which indicates that when illegal activities bear directly upon practice, it would be self-evident that such a psychiatrist would be ethically unsuited to practice. Protesting social injustice probably would not bear on either the psychiatrist’s image or his or her ability to treat patients ethically and competently. Although no prior assurance about any illegal activity could be given, it is conceivable that an individual could violate a law in such circumstances without being guilty of professionally unethical behavior. Annotation 2 says that the practice of acupuncture is not per se unethical.

Relevant is Annotation 3, which states it is unethical to offer opinions about public figures without an examination and proper authorization. Also germane is Annotation 4, which concludes that a personal examination of the patient is required prior to certifying a patient for involuntary treatment.

Principle (Section) 2

Principle (Section) 4 Several annotations are relevant under this section. Annotation 1 requires the protection of patient records, even the identification of the person as a patient. Annotations 2 and 5 involve confidentiality and its limitations and the exercise of caution when disclosing sensitive patient information. Annotation 5 states that the disclosure of sensitive material like fantasy material and sexual orientation is usually unnecessary. Annotation 3 requires adequate disguise to protect anonymity in teaching and writing. Annotation 4 includes a duty in consultations to alert any non-physician consultant to the duty of confidentiality. Annotation 6 directly is applicable to forensic psychiatry and states that if individuals are examined for security purposes, for determining suitability for various jobs, or for determining legal competence, the nature and purpose and lack of confidentiality of the examination

OPINIONS OF THE APA ETHICS COMMITTEE ON THE PRINCIPLES OF MEDICAL ETHICS RELEVANT TO FORENSIC PSYCHIATRY Some published Opinions of the APA Ethics Committee on the Principles of Medical Ethics (APA 2001b) also are relevant. The Opinions are identified by a number followed by a letter. The number refers to the corresponding principle of medical ethics. Below are some of the Opinions apropos to the practice of forensic psychiatry.

Section 1 Section 1-C makes it clear that giving a lethal dose of a sedative to a prisoner in a legal execution is unethical since a physician is a healer, not a killer. Section 1-D indicates it would not be ethical to knowingly permit oneself to be a patient’s beneficiary since it gives the appearance of impropriety and possibly of exploitation. Section 1-G states that if a psychiatrist’s role is only to certify someone’s homosexuality for United States Immigration and

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Naturalization Services (INS) purposes, it is unethical since the psychiatrist is a party to a policy excluding people for reasons of ethnic origin, race, sex, creed, age, socioeconomic status or sexual orientation. Section 1-N states that it is ethical to provide a competency examination prior to the execution of a felon if the prisoner is informed of the examination’s purpose and lack of confidentiality, and has legal representation, and if the opinion is in keeping with accepted standards. The psychiatrist’s position should not be to further his or her own opinion of capital punishment. Despite the APA position, significant differences of opinion on this issue by forensic psychiatrists have been shown in surveys (Weinstock 1988; Weinstock et al. 1991; Leong et al. 2000). This issue is discussed further later in this chapter. Section 1-BB states that it would be too difficult to provide competent medical service if a psychiatrist evaluated his/her own family member and testified on that person’s behalf. Section 1-HH clarifies that it is unethical to have a romantic relationship with a patient’s primary caretaker such as the parent of a patient or any other key third party.

Section 2 Section 2-D clarifies that it is up to APA district branch ethics committees to establish any exceptions to the prohibition of sex with former patients by careful consideration of all relevant facts, especially any evidence indicating exploitation of a former patient. It also clarifies that the APA Annotations and APA Principles are not laws but standards of conduct for behavior by physicians. Section 2-U clarifies that it is unethical to fee split with attorneys. Section 2-Z states that in situations in which a state requires forensic examiners to give an expected opinion at hearings for sexual offender violations, it is unethical to submit to pressure not to give an honest opinion but to alter it in a way to reach a conclusion demanded or expected by authorities. Section 2-BB explains that a defense forensic psychiatrist involved in a case charging sexual involvement with a patient by a psychiatrist should not report the case to the Ethics Committee unless there is imminent public danger or legal compulsion. Confidentiality is otherwise overriding. Section 2-HH states that although it is ethical to receive goods and services in lieu of fees so long as it is at fair market value and does not exploit the patient, the recommendation is not to do this with a current patient since it is likely it could impair the treatment relationship. Section 2-TT states it is unethical to turn a doctor–patient relationship into an employer–employee one since in most cases it exploits the doctor–patient relationship to do so with a former patient. Section 2-CCC advises caution in having a social non-sexual relationship with a former patient. Section 2-HHH says it is not unethical if a patient in his or her will establishes a scholarship in the psychiatrist’s name if the psychiatrist does not participate in the selection of candidates or use of the funds.

Section 4 Section 4A states it is a conflict of interest for an employed psychiatrist to perform an evaluation to determine the competency of a patient to aid his or her hospital employer in collecting charges from the patient. Section 4-E clarifies that developing a speculative psychological profile for someone who committed gruesome mass homicides is not unethical. If a psychiatrist believes the profile is that of one of his or her patients, he/she should strongly urge the patient to go to the police, perhaps with the assistance of an attorney. If the patient refuses, the psychiatrist can notify the police. If the attacks are past history, the guidelines advise only encouraging a patient to turn himself or herself over to the authorities, but it may be prudent to tell the patient to retain an attorney first so that his or her legal rights and welfare will not be ignored. Section 4-G states that it is ethical to provide information that is not highly personal to an insurance company relevant to a claim. However, if it involves a child of sufficient maturity, in order to judge the issue the child should also be asked to give permission in addition to the parent. Consent in these circumstances traditionally is a blind consent, and not truly informed. If the child wishes confidentiality and has sufficient maturity, his or her wish should be honored. A solution might be to address the report to the insurance company’s medical director, clearly marked as confidential information. Section 4-J raises the question of the ethics of not disclosing to state authorities that a patient sexually abused his or her child. The state may require such disclosure, despite the therapist working on the problem effectively, expecting an early resolution, and believing the child abuse had been exaggerated, and otherwise behaving ethically. The Opinions state that ‘where state law requires disclosure, you are ethically required to do so.’ Section 4-K states that confidences survive death and confidential information cannot be given about a deceased mother to a grieving daughter. Legally, however, jurisdictions differ. Section 4-L states that it is ethical to offer a diagnosis based solely on a review of records to determine whether a suicide was a result of illness. Section 4-L says it is ethical for insurance purposes to determine whether a suicide was a result of illness solely by examining the records. Section 4-M states that a psychiatrist cannot ethically examine a child at the request of a non-custodial parent against the wishes of the custodial parent absent an urgent situation when the custodial parent is unavailable, and then testify in court about the child. The psychiatrist should suggest that the non-custodial parent obtain a court order. Section 4-P clarifies that exceptions to confidentiality after death can be made to protect others from imminent harm or under proper legal compulsion. Patients trust psychiatrists to protect their confidences even after death – no less so if the deceased is a prominent person. Section 4-Q clarifies that if there is knowing consent by a patient without coercion or even

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coercion (like no consent, no security upgrade) for a security clearance evaluation, the privilege of maintaining confidences is the patient’s and not the therapist’s. The therapist, however, can claim lack of competence to make such an evaluation. Section 4-R relates to being asked or even subpoenaed to testify in a child custody dispute after having seen a divorcing couple in therapy, with one party wishing the testimony and the other not. A confidentiality objection should be raised, but there may be proper legal compulsion if the best interests of the child are paramount and the court or jurisdiction considers this need overriding. Section 4-U raises the issue of a psychiatrist who treated a member of a murdered prominent family, testified in court, and was later asked by a television company to be a consultant for a movie about the killing. The Opinions state it does not create a good image but can be ethical if nothing new and no new insights other than those made public at the trial are revealed. It is unclear whether this admonition applies though to a non-treating forensic psychiatrist, but it is likely to apply to information not released in open court. Section 4V refers to the ethics of giving a former patient’s name to the phone company to stop endless vituperative phone calls. The suggestion is that after consultation with a colleague and an attorney, as a last resort, it can be permissible with ample warning to the former patient. Section 4-X clarifies that patient identity must be hidden in presenting case materials in a publication, or informed consent is required. Section 4-Y clarifies that families have little right to information without patient permission, barring imminent danger to self or others, or patient incompetence requiring family protection. However, support and understanding should be given to the family within these limits. Section 4-AA clarifies that an abusing father has no ethical right to the records of a son who committed suicide if the patient would not have wanted the father to see them, even if the father is executor of the estate. The ethical obligation is to withhold the records, but a lawyer needs to determine the legal right. If the father has a legal right to the records, it is suggested that the court be petitioned to determine the need for disclosure and limit it to what is relevant or whatever legally proper question the father has (such as insurance), not simply to satisfy his curiosity. Section 4-BB explains that it is not ethical to use information provided by a present patient about a former patient who is suing the therapist. It is not ethical to have the psychiatrist’s lawyer depose the current patient because the legal problems are not germane to treatment responsibilities toward the current patient. Section 4-II says that it is not ethical because of confidentiality to report the mere suspicion of child abuse without considering issues like whether it is ongoing, and likely to continue despite treatment. However, in recognition that some states have statutes requiring such reporting, advice is given to consult specific state statutes. Section 4-LL says that a general informed consent obtained when a patient applies for insurance is not a sufficient

basis to provide charts to a managed care company for an audit. A specific informed consent should be obtained and the records only of patients whose treatment is paid for by a managed care company should be reviewed by an appropriate clinician in the physician’s office. The physician should make certain that only appropriate clinicians see the records and much like with court-ordered release of records, they should be redacted if they contain information about other persons.

Section 7 Section 7-A states that consulting to the Catholic Diocese about marriage annulments regarding the competence of church members to request such an annulment is ethical without a personal examination with only a review of reports and other information. Requiring consultants always to conduct a personal examination if asked by various medical, social and rehabilitative agencies for opinions would be impractical and would prevent their obtaining the benefits of psychiatric consultation. Section 7-B discusses testifying for the state in a criminal case about the competency of the defendant based on medical records without examining the defendant or having his or her approval to render an opinion. The Opinion states that section 7, Annotation 3, was developed to protect public figures from psychiatric speculation harmful to public figures and the psychiatric profession, and not to protect criminal defendants. This opinion, however, could be interpreted as not necessitating AAPL’s ethical guidelines more stringent requirement. AAPL requires a personal examination if at all possible and creates an affirmative obligation to indicate the limitations of any opinion if given without such a personal examination. The APA Opinion is ambiguous though in that it does not say it is ethical not to express the limitations of such an opinion. One problem with the APA Annotations and Opinions is that they do not cover any issues in any systematic way, and are not based on any underlying ethical principles other than the AMA Principles of Medical Ethics. They also are not specifically directed toward forensic psychiatry. They respond only to inquiries about actual cases (Appelbaum 1992). AAPL is attempting to correct these deficiencies in its current ongoing revisions of its ethical guidelines. The APA lacks jurisdiction over the ethical improprieties of non-members, but their guidelines still are relevant for court and licensing board actions.

RELEVANT ETHICAL GUIDELINES OF PROFESSIONAL ORGANIZATIONS The American Academy of Forensic Sciences (AAFS) also has an enforceable code of ethics, important even if limited in scope. The code precludes professional or personal conduct adverse to the best interests and purposes of

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AAFS that includes the following: misrepresentation of education, training, experience, area of expertise, or one or more criteria for membership; material misrepresentation of data upon which an expert opinion is based; and making public statements appearing to represent the position of AAFS without first obtaining the specific permission of the board of directors. Distortion of data addressed by AAFS is not specifically addressed by AAPL, but could be considered under the section on honesty (see AAPL guidelines below). AAPL’s section V on qualifications does specifically address the need for accurate presentation of qualifications and experience. It is more unclear whether these issues are covered by the APA Annotations, unless section 2, referring to dealing honestly with patients and colleagues, would also be interpreted to include courtroom testimony, or section 7 regarding a responsibility to participate in activities contributing to an improved community would apply. Section 1 on competent medical service is also relevant. AAFS also is working on the development of aspirational guidelines called Guidelines for Good Forensic Practice. Such guidelines already were adopted by the AAFS Committee on Good Forensic Practice. Other related organizations have developed ethical criteria for forensic participation. These include forensic psychologists (American Psychological Association 1992), who also are revising their ethical requirements. The National Organization for Forensic Social Work has also adopted ethical guidelines for their membership. An ethics survey of forensic psychiatrists showed almost all had encountered ethical problems in their forensic work. The ‘hired gun’ problem was considered to be the greatest ethical problem (Weinstock 1986). However, without knowing the forensic psychiatrist’s motives, it is difficult to distinguish honest bias, sometimes even unconscious, from a ‘hired gun.’ Moreover, it is too easy sometimes for a forensic psychiatrist who considers his or her position ‘right’ to confuse an honest difference of opinion with the problem of the expert on the other side being a ‘hired gun.’ AAPL has developed systematic ethical guidelines for the practice of forensic psychiatry. The principles were first developed by Jonas Rappeport, and refined, modified, and developed by Henry Weinstein, and some sections revised by Robert Weinstock. Of necessity, items were excluded that were too confusing or were not capable of receiving general support. Diamond (1992) thought the profession of forensic psychiatry should establish standards for acceptable forensic psychiatric opinions, such that opinions should not be contradicted by readily accessible data, and also should develop standards for acceptable criteria to be qualified as an expert. He believed AAPL has avoided guidelines in many controversial areas. AAPL has been criticized for not enforcing its own ethical guidelines (Halpern 1990; Appelbaum 1992). Instead, it relies on the APA for enforcement. Forensic psychiatry’s recognition as a subspecialty arguably makes medical ethics even more relevant. AAPL

has developed procedures for peer review of transcripts of psychiatric testimony, since there is controversy regarding whether such issues should or would be covered in ethical guidelines (Weinstock et al. 1991; Appelbaum 1992). AAPL’s ethical guidelines supplement the APA Annotations. Peer review would enable additional professional self-regulation. However, if voluntary, such peer review is likely to be avoided by those most in need of it. Despite some criticism, the ethical guidelines nevertheless are a very important development. They were passed in 1987, and last revised in 1995. The 1995 revised version is reprinted (with permission) below.

AAPL’S ETHICAL GUIDELINES (ADOPTED MAY, 1987; MOST RECENTLY REVISED 1995) I. Preamble The American Academy of Psychiatry and the Law is dedicated to the highest standards of practice in forensic psychiatry. Recognizing the unique aspects of this practice which is at the interface of the professions of psychiatry and the law, the Academy presents these guidelines for the ethical practice of forensic psychiatry.

COMMENTARY Forensic psychiatry is a subspecialty of psychiatry, a medical specialty. Membership in the American Psychiatric Association, or its equivalent, is a prerequisite for membership in the American Academy of Psychiatry and the Law. Hence, these guidelines supplement the Annotations Especially Applicable to Psychiatry of the American Psychiatric Association to the Principles of Medical Ethics of the American Medical Association. The American Academy of Psychiatry and the Law endorses the Definition of Forensic Psychiatry adopted by the American Board of Forensic Psychiatry, Inc: Forensic Psychiatry is a subspecialty of psychiatry in which scientific and clinical expertise is applied to legal issues in legal contexts embracing civil, criminal, and correctional or legislative matters; forensic psychiatry should be practiced in accordance with guidelines and ethical principles enunciated by the profession of psychiatry. (Adopted May 20, 1985)

The forensic psychiatrist practices this subspecialty at the interface of two professions, each of which is concerned with human behavior and each of which has developed its own particular institutions, procedures, values, and vocabulary. As a consequence, the practice of forensic psychiatry entails inherent potentials for complications, conflicts, misunderstandings and abuses. In view of these concerns, the American Academy of Psychiatry and the Law provides these guidelines for the ethical practice of forensic psychiatry.

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II. Confidentiality Respect for the individual’s right of privacy and the maintenance of confidentiality are major concerns of the psychiatrist performing forensic evaluations. The psychiatrist maintains confidentiality to the extent possible given the legal context. Special attention is paid to any limitations on the usual precepts of medical confidentiality. An evaluation for forensic purposes begins with notice to the evaluee of any limitations on confidentiality. Information or reports derived from the forensic evaluation are subject to the rules of confidentiality as apply to the evaluation, and any disclosure is restricted accordingly.

COMMENTARY The forensic situation often presents significant problems in regard to confidentiality. The psychiatrist must be aware of and alert to those issues of privacy and confidentiality presented by the particular forensic situation. Notice should be given as to any limitations. For example, before beginning a forensic evaluation, psychiatrists should inform the evaluee that although they are psychiatrists, they are not the evaluee’s ‘doctor.’ Psychiatrists should indicate for whom they are conducting the examination and what they will do with the information obtained as a result of the examination. There is a continuing obligation to be sensitive to the fact that although a warning has been given, there may be slippage and a treatment relationship may develop in the mind of the examinee. Psychiatrists should take precautions to assure that none of the confidential information they receive falls into the hands of unauthorized persons. Psychiatrists should clarify with a potentially retaining attorney whether an initial screening conversation prior to a formal agreement will interdict consultation with the opposing side if the psychiatrist decides not to accept the consultation. In a treatment situation, whether in regard to an inpatient or to an outpatient in a parole, probation, or conditional release situation, psychiatrists should be clear about any limitations on the usual principles of confidentiality in the treatment relationship and assure that these limitations are communicated to the patient. Psychiatrists should be familiar with the institutional policies in regard to confidentiality. Where no policy exists, psychiatrists should clarify these matters with the institutional authorities and develop working guidelines to define their role.

III. Consent The informed consent of the subject of a forensic evaluation is obtained when possible. Where consent is not required, notice is given to the evaluee of the nature of the evaluation. If the evaluee is not competent to give consent, substituted consent is obtained in accordance with the laws of the jurisdiction.

COMMENTARY Consent is one of the core values of the ethical practice of medicine and psychiatry. It reflects respect for the person, a fundamental principle in the practices of medicine, psychiatry and forensic psychiatry. Obtaining informed consent is an expression of this request. It is important to appreciate that in particular situations, such as court-ordered evaluations for competency to stand trial or involuntary commitment, consent is not required. In such a case, the psychiatrist should so inform the subject and explain that the evaluation is legally required and that if the subject refuses to participate in the evaluation, this fact will be included in any report or testimony. With regard to any person charged with criminal acts, ethical considerations preclude forensic evaluation prior to access to, or availability of legal counsel. The only exception is an examination for the purpose of rendering emergency medical care and treatment. Consent to treatment in a jail or prison or other criminal justice setting must be differentiated from consent to evaluation. The psychiatrists providing treatment in these settings should be familiar with the jurisdiction’s rules in regard to the patient’s right to refuse treatment.

IV. Honesty and striving for objectivity Forensic psychiatrists function as experts within the legal process. Although they may be retained by one party to a dispute in a civil matter or the prosecution or defense in a criminal matter, they adhere to the principle of honesty and strive for objectivity. Their clinical evaluation and the application of the data obtained to the legal criteria are performed in the spirit of such honesty and efforts to obtain objectivity. Their opinion reflects this honesty and efforts to attain objectivity.

COMMENTARY The adversarial nature of our Anglo-American legal process presents special hazards for the practicing forensic psychiatrist. Being retained by one side in a civil or criminal matter exposes the forensic psychiatrist to the potential for unintended bias and the danger of distortion of their opinion. It is the responsibility of forensic psychiatrists to minimize such hazards by carrying out their responsibilities in an honest manner, striving to reach an objective opinion. Practicing forensic psychiatrists enhance the honesty and striving for objectivity of their work by basing their forensic opinions, forensic reports, and forensic testimony on all the data available to them. They communicate the honesty and striving for objectivity of their work, efforts to obtain objectivity, and the soundness of their clinical opinion by distinguishing, to the extent possible,

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between verified and unverified information as well as among clinical ‘facts,’ ‘inferences’ and ‘impressions.’ While it is ethical to provide consultation to an adversary in a legal dispute as a testifying or reporting expert, honesty and striving for objectivity are required. The impression that psychiatrists in a forensic situation might distort their opinion in the service of the party which retained them is especially detrimental to the profession and must be assiduously avoided. Honesty, objectivity, and the adequacy of the clinical evaluation may be called into question when an expert opinion is offered without a personal evaluation. While there are authorities who would bar an expert opinion in regard to an individual who has not been personally examined, it is the position of the Academy that if, after earnest effort, it is not possible to conduct a personal examination, an opinion may be rendered on the basis of other information. However, under such circumstances, it is the responsibility of the forensic psychiatrist to assure that the statement of their opinion and any reports of testimony based on those opinions, clearly indicate that there was no personal examination and the opinions expressed are thereby limited. In custody cases, honesty and striving for objectivity require that all parties be interviewed, if possible, before an opinion is rendered. When this is not possible, or, if for any reason not done, this fact should be clearly indicated in the forensic psychiatrist’s report and testimony. Where one parent has not been interviewed, even after deliberate effort, it may be inappropriate to comment on that parent’s fitness as a parent. Any comment on that parent’s fitness as a parent should be qualified and the data for the opinion should be clearly indicated. Contingency fees, because of the problems that these create in regard to honesty and efforts to obtain objectivity, should not be accepted. On the other hand, retainer fees do not create problems in regard to honesty and efforts to obtain objectivity and, therefore, may be accepted. Treating psychiatrists should generally avoid agreeing to be an expert witness or to perform evaluations of their patients for legal purposes, because a forensic evaluation usually requires that other people be interviewed and testimony may adversely affect the therapeutic relationship.

V. Qualifications Expertise in the practice of forensic psychiatry is claimed only in areas of actual knowledge and skills, training and experience.

COMMENTARY As regards expert opinions, reports and testimony, the expert’s qualifications should be presented accurately and precisely. As a correlate of the principle that expertise may be appropriately claimed only in areas of actual knowledge, skill, training and experience, there are areas of special expertise, such as the evaluation of children or

persons of foreign cultures, or prisoners, that may require special training and expertise.

VI. Procedures for handling complaints of unethical conduct Complaints of unethical conduct against members of the Academy will be returned to the complainant with guidance as to where the complaint should be registered. Generally, they will be referred to the local district branch of the American Psychiatric Association (APA). If the member does not belong to the APA, the complainant will be referred to the state licensing board or to the psychiatric association in the appropriate country. If the APA, American Academy of Child and Adolescent Psychiatry, or the psychiatric association of another country should expel or suspend a member, AAPL will also expel or suspend the member upon notification of such action, regardless of continuing membership status in other organizations. AAPL will not necessarily follow the APA or other organizations in other actions.

COMMENTARY It is the present policy of the American Academy of Psychiatry and the Law not to adjudicate questions of unethical conduct against members or nonmembers. General questions in regard to ethical practice in forensic psychiatry are welcomed by the Academy and should be submitted for consideration to the Committee on Ethics. The Committee will issue opinions on general or hypothetical questions, but will not issue an opinion on the ethical conduct of a specific forensic psychiatrist or about an actual case. Should a specific complaint against a member be submitted to the Academy, it will be referred to the Chair of the Ethics Committee. The Chair will, in turn, generally direct the complainant to the ethics committee of the local district branch of the American Psychiatric Association, to the state licensing board, or to the psychiatric organization of other countries for foreign members. The Academy, through its Committee on Ethics or in any other way suitable, will assist the local or national committee on ethics of the American Psychiatric Association, state licensing boards or ethics committees of psychiatric organizations in other countries in the adjudication of complaints of unethical conduct or the development of guidelines of ethical conduct as they relate to forensic psychiatric issues.

DISCUSSION OF AAPL’S GUIDELINES AAPL’s guidelines were developed specifically for forensic psychiatry and address important relevant issues.

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However, they exclude or are vague regarding issues for which consensus could not be obtained. Moreover, they represent solely guidelines for good practice even though most AAPL guidelines have reached a level of general agreement. They are not subject to enforcement and complaints are referred to APA district branch which has the option to consider them, or to another analogous body for foreign members. AAPL members who belong only to the American Academy of Child and Adolescent Psychiatry have ethical complaints against them referred to that organization, which in turn refers complaints to state licensing boards. AAPL’s ethical guidelines are an important foundation. The APA district branch ethics committees, who actually conduct ethics investigation hearings involving APA members accused of an ethics violation, increasingly consider the AAPL guidelines to clarify APA Annotations. The high response rate in surveys and the fact that an overwhelming majority of forensic psychiatrists in surveys say they have encountered ethical problems belies any aspersions that forensic psychiatrists are unconcerned about, or insensitive to, ethical problems. A survey of AAPL members (Weinstock et al. 1991) showed support (in decreasing order) for the following additional guidelines that are not currently part of the official guidelines: 1 Medical and psychiatric ethics remain a consideration when performing a forensic evaluation. 2 The forensic psychiatrist should not distort data. 3 Sex between a forensic psychiatrist and an evaluee is unethical so long as the case remains in litigation. 4 Because of the seriousness of the matter, an opinion should not be given in a death penalty case without a personal examination regardless of whether court decisions hold such testimony permissible. 5 As a physician, a forensic psychiatrist owes some responsibility both to an evaluee and society, regardless of who pays the fee.

OPINIONS OF THE AAPL COMMITTEE ON ETHICS The AAPL Committee on Ethics also developed its own Opinions during the years that Robert Weinstock was acting as its chairman. However, in contrast to the APA, these opinions are developed without evaluating the details of an actual case to give an opinion on the real case itself. They are ethical analyses only and not legal opinions and the specifics of the case are not considered. These Opinions are the product of the Committee on Ethics but they have been reviewed and approved by the Executive Council. The first two Opinions are based on hypothetical questions raising ethical concerns.

Distortion of data Example: In a forensic examination for the defense in a criminal trial, a patient who was psychotic at the time of the offense admits to taking cocaine on the night of the crime. The defendant has a history of paranoid schizophrenia. The defense psychiatrist tells the defendant not to tell anyone else about the drug use, omits it from his report, and states that in his opinion the defendant is not guilty by reason of insanity. Issue: There is no direct statement in the APA or AAPL guidelines relevant to deliberate distortion of data. Opinion of AAPL Ethics Committee: Such actions are not ethical. Relevant are AAPL ethical guideline Section IV on honesty and striving for objectivity, as well as AMA/APA ethical principle Section I requiring competent medical service. The forensic psychiatrist could legitimately believe the defendant was paranoid schizophrenic and met the criteria for insanity. However, he should include relevant data as to drug usage, and a forensic psychiatrist should not tell a defendant to withhold data.

Confidentiality Example: A psychiatrist for the prosecution informs a defendant of the lack of confidentiality and that he is hired by the prosecution. The defendant continues to give information harmful to himself, including revealing his attorney’s defense strategy. He says he is doing this because he knows the psychiatrist is trying to help. Opinion of the AAPL Ethics Committee: AAPL ethical guideline Section II commentary is relevant. It indicates that although the forensic psychiatrist should inform the evaluee that he is not the evaluee’s doctor, there is also a continuing obligation to be sensitive to slippage despite the fact that a warning has been given. A treatment relationship may still develop in the evaluee’s mind. In the case example, the defendant states directly that he believes the psychiatrist is trying to help him, yet the psychiatrist makes no effort to clarify his role, or to be sensitive to slippage. Therefore, there are clear ethical problems with his behavior. The APA does not address this issued directly and refers only to determinations of legal competence in Section 4, Annotation 6, which states that a ‘psychiatrist must fully describe the nature and purpose and lack of confidentiality of the examination to the evaluee at the beginning of the examination.’ AAPL’s Committee on Ethics has subsequently issued a number of additional opinions that are based on actual questions raised to the ethics committee: 1 Question: Is sex with a forensic evaluee ethical? Answer: No. Section IV of the AAPL ethical guidelines requires honesty and striving for objectivity. Sex with an evaluee would seriously impede objectivity and

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would be exploitative and coercive. It would make the APA section I requirement for delivery of competent medical service almost impossible. 2 Question: Is it ethical for forensic psychiatrists performing an evaluation to use bullying tactics, to be rude, use name-calling, and press a plaintiff to drop the case? Answer: Most relevant is the APA and AMA principles of medical ethics section 1, ‘a physician shall be dedicated to providing competent medical service with compassion and respect for human dignity.’ Also relevant is AAPL section IV on honesty and striving for objectivity. The use of bullying tactics and deliberate rudeness are disrespectful of human dignity and therefore are unethical, as are pressuring a plaintiff to settle and failing to be objective. However, the special role of a forensic psychiatrist also needs to be considered. A psychiatrist retained by the defense in a civil suit is obtaining information for the side opposing the plaintiff. What may appear to a plaintiff to constitute bullying tactics may merely be appropriate skepticism to disbelieve the plaintiff or to press for inconsistencies in order to try to determine if there is malingering. Unlike a therapeutic interview that involves helping the evaluee as the primary purpose, a forensic evaluation may necessitate exploration of areas that a plaintiff prefers to avoid and finds upsetting. In addition, a negative evaluation by a forensic psychiatrist may motivate a desire to retaliate by filing an ethics complaint. Each case should be evaluated by exploring the forensic psychiatrist’s reasons for his/her behavior. Differences in interview style do not necessarily involve ethical infractions. However, deliberate rudeness, pressure to settle, and lack of respect for human dignity are not justified. 3 Question: I am treating an insurance company employee who for the past several years has been forging signatures on loan applications and running an illegal scheme at work. On two occasions he has been admitted to the hospital because of stress. I will be testifying at a Workers’ Compensation hearing regarding the employee’s ability to work. Am I obliged to reveal these illegal activities as one major source of stress? Answer: You are functioning in a treatment capacity, and any forensic role is an adjunct to your therapeutic role and not primary. However, testifying in court might still conflict with your therapeutic role since there is no duty for a treating psychiatrist to obtain information from sources other than the patient and you will need to answer any questions the court considers relevant and admissible. You may be unable to be objective under those circumstances because of counter-transference feelings toward your patient and your awareness that unfavorable statements will interfere with therapy. AAPL’s guidelines require obtaining the informed consent of the subject when possible. Your patient should be informed of the possibility that if you are asked to testify you may be asked questions

that would require your revealing his reported illegal activities. Since you would not wish to perjure yourself if asked direct questions in court, he should consult with his attorney and decide whether to call you to testify. In many states, the patient may automatically waive any therapist privilege if he tenders his mental state at issue. The patient should consult with an attorney about this issue in order to make an informed decision. If possible, it might be wise to separate the treatment and forensic roles since the two roles can conflict. AAPL guidelines section IV, honesty and striving for objectivity, recommend that a treating psychiatrist generally should avoid agreeing to be an expert witness or to perform an evaluation for legal purposes on a patient. 4 Question: A forensic psychiatrist in a small town in which he is the only psychiatrist had been treating the mother who was murdered by her son, the current defendant. This same psychiatrist had been hired to perform a forensic evaluation on the son in a death penalty trial. Is it ethical for the mother’s former psychiatrist to perform a forensic evaluation on the son? I am afraid the son is being railroaded. Answer: It is unlikely that the forensic psychiatrist under these circumstances could meet the AAPL requirements of striving to be objective. Also, regardless of privilege laws, APA’s Annotated Principles clearly state that confidentiality continues after death. Could the forensic psychiatrist avoid using confidential information from the mother in the evaluation? More information is needed on the specifics of the case, but the behavior you question may in fact be unethical. Even if these issues were not problems, there would be an appearance of impropriety and a lack of objectivity. Therefore the psychiatrist should refuse to take the case even if a non-local psychiatrist must be found. 5 Question: Our court clinic has been asked to provide psychiatric evaluations of defendants for dangerousness, in order to help determine bail amount prior to the defendants having access to an attorney. Is this ethical? Answer: Both the APA and AAPL (under section III consent) preclude forensic evaluation prior to access to or availability of legal counsel. The only exception is an evaluation for the purpose of rendering emergency medical care and treatment. 6 Question: An attorney has asked me to do a forensic examination on a lien, in which I would collect my fee only if the case is successful. Is this ethical? Answer: If your fee or its collection is dependent on the successful outcome of a trial, it is unethical as explained under the AAPL guideline section IV, honesty and striving for objectivity. It also is unethical according to the AMA opinions of the Council on Ethical and Judicial Affairs sections 6.01 and 9.07. It is ethical for attorneys to accept cases on a contingency basis since they have no ethical duty to strive for objectivity. The

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attorney is responsible for all expenses including your fee. A retainer presents no problems with striving for objectivity and may even facilitate it, so it presents no ethical problem. According to AMA Opinions of the Council on Ethical and Judicial Affairs, section 8.10, however, a lien may be filed as a means of assuring payment in states that have lien laws, providing the fee is fixed in amount and not contingent on the amount of the patient’s settlement against the third party. Since your lien would be dependent on the outcome of the case, it would be unethical. 7 Question: I provide psychiatric evaluations for the district attorney’s office after an attorney has been appointed, but before the attorney has been able to see the defendant. Under these circumstances I explain the nature and purpose of the evaluation, and that I am working for the district attorney so there is no confidentiality. If the defendant tells me incriminating evidence I see no problem since I have obtained his informed consent. Is this ethical? Answer: No. The APA and AAPL guidelines preclude such evaluations prior to access to or availability of an attorney. In this case, the attorney clearly has not yet been available. The attorney may not wish his or her client even to talk to the forensic psychiatrist. The psychiatrist cannot obtain adequate informed consent under these circumstances, as the defendant revealing incriminating evidence to you demonstrated. 8 Question: Is it ethical for two forensic psychiatrists who work closely together to testify on opposite sides of a case? Answer: Yes, as long as no information is shared between the forensic psychiatrists without the approval of both opposing attorneys, and both attorneys are informed about the close working relationship of the two forensic psychiatrists. The AAPL guidelines section on confidentiality and honesty are relevant. 9 Question: On the basis of news reports, a forensic psychiatrist offered to testify for the district attorney in a death penalty case without examining the defendant. Are his actions ethical? Answer: AAPL guidelines section IV, honesty and striving for objectivity, require an earnest effort to personally examine the defendant. If impossible, it is necessary to qualify the opinions and indicate in any reports and testimony that there was no personal examination and the opinion expressed is thereby limited. If such was not done, the testimony would be unethical. Moreover, the extreme interest displayed by the forensic psychiatrist casts doubt on his ability to be objective. 10 Question: Is it ethical for a forensic psychiatrist initially retained by the defendant in the criminal case to then agree to testify for the co-defendant without obtaining the approval of the attorney for the defendant? Answer: Commentary under the AAPL guidelines section III, confidentiality, states that the psychiatrist should clarify with a potentially retaining attorney

whether an initial screening conversation prior to a formal agreement will interdict consultation with the opposing side if the psychiatrist decides not to accept the consultation. Although it could be debated whether the attorney for the co-defendant is the opposing side, the frequent conflict of interest between such co-defendants indicate that the essence of this AAPL guideline still applies. The failure of the forensic psychiatrist to obtain clarification prior to the initial consultation places an affirmative obligation on the psychiatrist to obtain approval from the first attorney prior to consultation or retention by the co-defendant’s attorney. Alternatively, the forensic psychiatrist could inform the first attorney at the onset that he/she plans to consult with the second attorney or that a brief discussion with the first attorney will not neutralize his/her ability to work with the second attorney. The APA does not address this issue clearly unless Principle 2, requiring honesty with patients and colleagues, could be broadened to include attorneys and their clients. Under the conditions you mention it would be unethical to testify for the co-defendant without the defendant’s attorney’s approval. 11 Question: Is it ethical to testify that the psychiatrist for the opposing side is a prostitute because he is paid handsomely for his services, for the side the complainant believes is frequently the wrong side? Answer: It is crucial to distinguish between honest differences of opinion, biases – both conscious and unconscious – and ‘hired guns.’ Ethical guidelines for the AAPL and the AMA and APA ethical frameworks no longer require proper etiquette and respect for other physicians as an ethical issue. In fact, principle 2 of the AMA and APA principles indicates an ethical duty to strive to expose those physicians deficient in character or competence. However, to call names would violate the APA and AMA requirements to respect human dignity. Moreover, the honesty and objectivity of the psychiatrist calling names would validly be questioned. The exposure of deficiencies of character or competence in other psychiatrists can be accomplished without name-calling. 12 Question: A forensic psychiatrist in a death penalty case did not interview the defendant because he said such people always lie, so an interview would be worse than useless. He also stated that he would express his opinion against the defendant with reasonable medical certainty. Is this ethical? Answer: AAPL section IV, honesty and striving for objectivity, require an earnest effort personally to examine the defendant and, if impossible, to qualify the opinion and indicate in any reports and testimony that there was no personal examination and the opinion is thereby limited. As that was not done, and there was no evidence of any attempt to do so, the testimony is unethical. Moreover, the unsubstantiated statements that such defendants always lie, and that

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no pertinent information can come from such an interview, would seem to violate the AMA and APA section 1 requirements for competent medical service insofar as they are totally unsubstantiated opinions that are not compatible with competent service. Question: A forensic psychiatrist always testifies for the defense in death penalty trials, but cannot substantiate his conclusions on the witness stand when asked for justification. He appears willing to lie in order to prevent the execution of the defendant. Is this ethical? Answer: AAPL does not require a witness to be expert at responding to cross-examination. However, honesty and striving for objectivity are required. Although saving a life may be most consistent with traditional Hippocratic ethics, truth and honesty are the primary duties for a forensic psychiatrist. It might be argued that a secondary doctor–patient relationship exists, but it cannot override truth and honesty. If the true facts are not favorable, a forensic psychiatrist can refuse to become involved. To testify falsely is always contrary to the APA and AMA requirement for competent medical service, and is unethical. Question: A forensic psychiatrist has testified that a defendant is competent to be executed. Is this ethical? Answer: The APA and the AMA forbid participation in a legally authorized execution, but such participation has been narrowly defined. Although some would argue that competence to be executed evaluations are unethical because they are too close to the death penalty, both the Council of the Medical Society of the State of New York and the American College of Physicians, as well as the World Psychiatric Association, have taken such positions, yet neither the AMA nor APA currently have positions on this issue. Surveys of forensic psychiatrists show divided opinions on this issue, with a slight majority seeing no ethical problem with performing competence to be executed evaluations. It is also debatable whether evaluations showing incompetence to be executed must be unethical if evaluations showing competence to be executed are unethical. At present, there is nothing unethical about the testimony in your question. Question: A psychiatrist who is asked to evaluate a defendant found him sleeping, and testified that the defendant could not be schizophrenic as schizophrenics do not sleep so soundly. Is this ethical? Answer: As there is no evidence for such a statement, it would contradict AAPL’s requirements for honesty and striving for objectivity and the APA requirement for competent medical service, and it is therefore unethical. AAPL does not forbid testimony expressing minority points of view, but there needs to be some evidence for an opinion; moreover, unusual opinions need to be honestly labeled. Question: A plaintiff ’s attorney has asked me to change the diagnosis in my report from a dysthymic

disorder to major depression in order to strengthen the case. Is this ethical? Answer: Changing such a major issue would violate honesty and objectivity as well as competent medical service, and therefore would be unethical. Although it may not be unethical to accept changes in phraseology or improved ways of expressing an opinion, a major change in diagnosis is unethical without new data to justify it. 17 Question: A forensic psychiatrist clearly became very involved in a case, emotionally arguing his position in court and giving advice to the attorney about strategy. Is this ethical? Answer: Although many forensic psychiatrists believe advocacy is unethical, AAPL has followed the view that advocacy is permissible, and advocacy for an opinion may even be desirable. Identification with a cause and even bias are not unethical in and of themselves, and some emotionality and bias may be inevitable. However, bias must be openly acknowledged and not lead to distortion, dishonesty, or failure to strive to reach an objective opinion.

DEATH PENALTY ETHICAL ISSUES Some issues in forensic psychiatry remain controversial. The death penalty is such an example. It produces conflict in forensic psychiatry, as it does generally in American society, with the additional factor of the forensic psychiatrist being a physician. Other western democracies all have abolished the death penalty. In capital cases, the legal system often asks forensic psychiatrists to examine defendants and evaluate various legal issues, including various competencies, mental state at the time of the offense, dangerousness, and aggravating and mitigating circumstances (see Chapter 10). It can be argued that psychiatric assessment of these forensic issues are shared by both capital and non-capital cases and does not differ. In the alternative extreme, some psychiatrists question the ethical propriety of providing consultation to the prosecution at any stage of a capital case (Leong et al. 2000). There are many intermediate positions. Although there is some correlation between a psychiatrist’s personal views of the death penalty and their professional views about the proper role of the forensic psychiatrist in such cases, the two are not the same. It is possible to oppose capital punishment as a citizen but to participate in the process short of the actual killing because the psychiatrist believes it does not violate professional ethics, it is not the psychiatrist’s professional role to question current law, the opinion is sufficiently removed from the killing process, and such a view is supported by current professional ethical guidelines. Forensic psychiatrists who support the death penalty as a citizen can still believe it violates their view of appropriate professional medical

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ethics to participate in some or all forensic roles. Forensic psychiatrists who oppose the death penalty also can choose to participate honestly in cases in which they think their involvement could be helpful, even if the opposite result sometimes occurs (Diamond 1990; Foot 1990). The APA has taken a position against treating a defendant incompetent to be executed if the purpose is to make him or her competent.

patient–physician relationship, courtroom testimony cannot formally be considered the practice of medicine. There are new AAPL ethics sections on research in forensic settings and telemedicine in forensic psychiatry. Since these revisions are not final, there are likely to be changes before these revised ethical guidelines are adopted formally. Readers should check for the latest versions of these documents.

ETHICAL PRACTICE

REFERENCES

Ethical guidelines are important. As stated by the ethical theory of virtue, however, ethical guidelines and even knowing what is right does not necessarily lead to doing the right thing. It is necessary to wish to be ethical. Knowledge will not necessarily affect the behavior of the ‘hired gun.’ However, it is often difficult to know whether a forensic psychiatrist truly has an idiosyncratic belief, has been insensitive, or has been dishonest. Ethics committees need to try to determine intent, and judge the act itself. Forensic psychiatrists should not unfairly be blamed for the problems of the legal adversary system. Guidelines can help clarify what is ethical. However, the best insurer of ethical conduct must be the integrity of the professional persons themselves who, in forensic psychiatry, face the challenge of confronting and balancing many conflicting values. These challenges are not unique to forensic psychiatry but are more complex than in the relatively uncomplicated treatment context. These challenges can provide some of the enjoyment of being a forensic psychiatrist. However, organizations that do provide sanctions should be aware of the complex balancing of values involved in forensic psychiatric practice. Sanctions should not be imposed under circumstances in which there is no general consensus and in which legitimate differences of opinion could apply.

American Medical Association 2001: Principles of Medical Association. Chicago, Illinois. American Medical News, May 1, 2000. Employer health exams; relevance of Hippocratic Oath. Chicago, Illinois. American Psychiatric Association. 2001a: The Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry. Washington, DC: American Psychiatric Association. American Psychiatric Association. 2001b: Opinions of the Ethics Committee on the Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry. Washington, DC: American Psychiatric Association. American Psychological Association. 1992: Ethical Principles of Psychologists and Code of Conduct. Washington, DC: American Psychological Association. Appelbaum, P.S. 1984. Psychiatric ethics in the courtroom. Bulletin of the American Academy of Psychiatry and the Law 12, 225–31. Appelbaum, P.S. 1990. The parable of the forensic psychiatrist: ethics and the problem of doing harm. International Journal of Law and Psychiatry 13, 249–59. Appelbaum, P.S. 1992. Forensic psychiatry: the need for self-regulation. Bulletin of the American Academy of Psychiatry and the Law 20, 153–62. Appelbaum, P.S. 1997. A theory of ethics for forensic psychiatry. Journal of the American Academy of Psychiatry and the Law 25, 233–47. Beauchamp, T.L., Childress, J.F. 2001: Principles of Biomedical Ethics. New York: Oxford University Press. Candilis, P.L., Martinez, R., Dorning, C. 2001. Principles and narrative in forensic psychiatry: toward a robust view of professional role. Journal of the American Academy of Psychiatry and the Law 29, 167–73. Ciccone, J.R., Clements, C. 2001. Commentary: forensic psychiatry and ethics – the voyage continues. Journal of the American Academy of Psychiatry and the Law 29, 174–9. Diamond, B.L. 1990: The psychiatrist expert witness: honest advocate or ‘hired gun’? In Rosner, R., Weinstock, R. (eds), Ethical Practice in Psychiatry and the Law. New York: Plenum Press, 75–84. Diamond, B.L. 1992. The forensic psychiatrist: consultant v. activist in legal doctrine. Bulletin of the American Academy of Psychiatry and the Law 20, 119–32.

REVISIONS TO AAPL’S ETHICAL GUIDELINES AAPL is currently revising its ethical guidelines in response to the 2001 revisions of the AMA ethical principles and for the first time indicate the underlying basis for the AAPL ethical guidelines. As of this writing, AAPL recognizes the moral principles of respect for persons, fidelity, fairness, and social responsibility as underlying forensic ethics and the guidelines balance the duties between society and individual evaluees. Conflicts between principles are resolved by the greatest balance of right over wrong. Although there is the absence of a traditional doctor–patient relationship, forensic psychiatry is rooted in the ethical principles of medical practice. Private information not directly relevant to the legal purpose of the examination should also be protected. Forensic psychiatrists should be familiar with the relevant medical literature. Because of the absence of a traditional

72 History and practice of forensic psychiatry Dyer, A.R. 1988: Psychiatry and Ethics. Washington, DC: American Psychiatric Press. Foot, P. 1990: Ethics and the death penalty: participation by forensic psychiatrists in capital trials. In Rosner, R., Weinstock, R. (eds), Ethical Practice in Psychiatry and the Law. New York: Plenum Press, 207–17. Griffith, E.E.H. 1998. Ethics in forensic psychiatry: a response to Stone and Appelbaum. Journal of the American Academy of Psychiatry and the Law 26, 171–84. Halleck, S.L. 1992. Clinical assessment of the voluntariness of behavior. Bulletin of the American Academy of Psychiatry and the Law 20, 221–36. Halpern, A.L. 1990: Adjudication of AAPL ethical complaints: a proposal. In Rosner, R., Weinstock, R. (eds), Ethical Practice in Psychiatry and the Law. New York: Plenum Press, 171–4. Hundert, E.M. 1990: Competing medical and legal ethical values: balancing problems of the forensic psychiatrist. In Rosner, R., Weinstock, R. (eds), Ethical Practice in Psychiatry and the Law. New York: Plenum Press, 53–72. Leong, G.B., Silva, J.A., Weinstock, R., Ganzini, L. 2000. Survey of forensic psychiatrists on evaluation and treatment of prisoners on death row. Journal of the American Academy of Psychiatry and the Law 28, 427–32.

Moore, M.S. 1984: Law and Psychiatry: Rethinking the Relationship. New York: Cambridge University Press. Perry v. Louisiana, 498 U.S. 38 (1990). Rosner, R. 1990: Forensic psychiatry: a subspecialty. In Rosner, R., Weinstock, R. (eds), Ethical Practice in Psychiatry and the Law. New York: Plenum Press, 19–29. Stone, A.A. 1984: The ethics of forensic psychiatry: a view from the ivory tower. In Stone, A.A. (ed.), Law, Psychiatry and Morality. Washington, DC: American Psychiatric Press. Weinstock, R. 1986. Ethical concerns expressed by forensic psychiatrists. Journal of Forensic Sciences 31, 596–602. Weinstock, R. 1988. Controversial ethical issues in forensic psychiatry: a survey. Journal of Forensic Sciences 33, 176–86. Weinstock, R. 2001. Commentary: a broadened conception of forensic psychiatric ethics. Journal of the American Academy of Psychiatry and the Law 29, 180–5. Weinstock, R., Leong, G.B., Silva, J.A. 1990: The role of traditional medical ethics in forensic psychiatry. In Rosner, R., Weinstock, R. (eds), Ethical Practice in Psychiatry and the Law. New York: Plenum Press, 31–51. Weinstock, R., Leong, G.B., Silva, J.A. 1991. Opinions by AAPL forensic psychiatrists on controversial ethical guidelines: a survey. Bulletin of the American Academy of Psychiatry and the Law 19, 237–48; erratum 19, 393.

9 Liability of the forensic psychiatrist DANIEL WILLICK, ROBERT WEINSTOCK AND THOMAS GARRICK

INTRODUCTION Various immunities protect forensic work, and as a result forensic psychiatrists are less likely to be sued than are treating psychiatrists. Despite the rarity of lawsuits against forensic psychiatrists, they face multiple areas of exposure not normally faced by treating psychiatrists. This chapter discusses the areas of potential liability in forensic work, and identifies methods to respond to those risks. However, the differing state and federal laws relevant to these issues mean that the information in this chapter is illustrative only and is not a substitute for obtaining legal advice from a qualified attorney. Any lawsuit against a forensic psychiatrist involves a claim that the psychiatrist had a duty to a client or a third person, and breached that duty proximately causing harm to the person protected by the duty. It may often differ from a medical malpractice lawsuit insofar as there is no traditional doctor–patient relationship and there may be no patient, so the duty would be to a party other than a patient (see Chapter 28). Three variables are relevant to understanding and coping with potential liability for forensic work: 1 Who is the forensic client? 2 What task is being performed? 3 Is the task being performed with legal protections, such as pursuant to a court order?

THE FORENSIC CLIENT The first variable is the identity of the forensic client. The situation least likely to lead to any successful suit against the forensic psychiatrist is an appointment by the court, with a court order, for a psychiatrist to conduct an evaluation and to prepare a report. In such a situation, the forensic psychiatrist functions as an arm of the court and is typically protected by the same litigation privilege that protects judges and other witnesses. The most risky

situation, on the other hand, is for the forensic psychiatrist to agree to perform a forensic evaluation or to provide court testimony on a patient that the forensic psychiatrist has been treating. Here, the forensic task may destroy the treatment relationship and expose the psychiatrist to claims of both medical and forensic malpractice. Such dual treating and forensic roles are discouraged by the American Academy of Psychiatry and the Law Ethics Guidelines (see Chapter 8). In also to causing potential ethical problems, there are also liability concerns (discussed below), so forensic psychiatrists should make every effort not to provide forensic services for a patient whom they are treating. A list of typical forensic clients is as follows:

• • • • • • • • •

Attorneys and their clients. Insurance companies. Employers. Courts. Patients in treatment with the psychiatrist providing a forensic evaluation. Consultation with other physicians or psychiatrists regarding the legal regulation of psychiatry such as mental health laws in the state. State licensing agencies, such as a Medical Board. Professional societies or their ethics committees. Hospitals or their medical staffs for purposes of peer review.

THE FORENSIC TASK The second variable is the nature of the forensic task. The tasks performed by a forensic psychiatrist can be divided into two general categories: 1 The first category is legally informed psychiatric consultation to a client based on examination of a person and/or review of other sources of information regarding that person. Examples of such consultation include evaluations of the existence of psychiatric disability,

74 History and practice of forensic psychiatry

or advice to an attorney as to whether the client has suffered emotional distress as a result of the wrongful act of another person who is a potential defendant in a lawsuit. Another type of legally informed consultation is to a non-forensic colleague about mental health law or forensic issues. 2 The second category is expert testimony in a judicial proceeding on behalf of a client, based upon examination of a person and/or review of other sources of information. Examples of this type of forensic work include testimony at trial on issues such as whether a criminal defendant is insane, or whether a civil plaintiff has suffered emotional distress proximately caused by a defendant’s acts or omissions.

LEGAL PROTECTIONS The third variable is whether there are legal protections for the forensic work. Protections may include: a court order appointing the psychiatrist to perform the forensic work; a stipulation between the parties in a lawsuit, including the person being evaluated, for the forensic evaluation; appropriate disclosures to the person being evaluated regarding the scope and dissemination of the evaluation; and/or an appropriate contract between the forensic psychiatrist and the person(s) involved in the evaluation. There also is judicial immunity not only for testimony in court but generally for work in preparation for a court case, especially if the forensic psychiatrist is appointed by a neutral party such as a court. In addition, as stated above, the absence of a traditional doctor– patient relationship should generally be protective against claims of medical malpractice. These protections make liability risks for a forensic psychiatrist relatively rare in contrast to those for treating psychiatrists, but it is important to be aware that liability exposure does exist for a forensic psychiatrist, and it is important to take steps to minimize this exposure.

POSSIBLE EXPOSURE TO LIABILITY There has been a dramatic increase in reported lawsuits against forensic witnesses, so that despite the risk of suit being significantly less than for clinical practice, it no longer is unusual or extremely rare. The theories which are being successfully pursued in such lawsuits can change the ground rules for forensic psychiatrists. Risks include being sued for negligence that proximately causes damage to the forensic psychiatrist’s client or to a third party; lawsuits for alleged intentional wrongful conduct, such as defamation, fraud, or infliction of emotional distress; claims of violation of laws governing the practice of psychiatry; and claims of breaches of codes of ethics.

Claims for negligence The most likely claim faced by a forensic psychiatrist is a claim for negligence. A negligence claim alleges that the defendant (the forensic psychiatrist) had a duty to the plaintiff which was breached by the defendant’s negligence proximately causing damage to the plaintiff. There are a number of different types of negligence lawsuits that are not medical malpractice that may be brought against a forensic psychiatrist. 1 The person, such as an attorney or patient, or an insurance company that retained a psychiatrist to perform a forensic task, may sue for negligence if that person is damaged due to negligent performance of the forensic task, such as a negligently performed forensic evaluation (Murphy v. Mathews 1992). The risk of such lawsuits has increased because of the greater scrutiny given to the qualifications of expert witnesses by courts as a result of the U.S. Supreme Court’s landmark decisions regarding expert witness certification in Daubert v. Merrill Dow Pharmaceuticals, Inc. (1993), and in Kumho Tire Co. v. Carmichael (1999). As a result of these decisions, federal and state courts are increasingly scrutinizing the qualifications of expert witnesses and the content of their testimony. Subsequent to these decisions, some courts are excluding the testimony of unqualified experts and excluding testimony not supported by relevant peer-reviewed research. Hence, a forensic psychiatrist who oversells his or her qualifications or opinions only to have his/ her testimony subsequently excluded, could potentially be subject to a lawsuit for negligence in misrepresenting his/her qualifications. 2 A forensic psychiatrist may be sued for personal injury by a person who is not a client and is the subject of a forensic examination, where emotional or physical damage to the subject is caused by negligent performance of the examination such as, for example, traumatizing a subject by being unnecessarily rude (Appelbaum 2001). Examples include malpractice liability permitted against a forensic expert for injuries sustained by the person being evaluated during a workers’ compensation evaluation (Mero v. Sadoff 1995) and a negligently or intentionally improperly performed forensic evaluation of an insured for a health insurance company (Dalton v. Miller 1999). 3 A forensic psychiatrist may be sued by a person who is not a client for a negligently conducted forensic examination that results in damages that are not personal injuries. For example, in the case of Politi v. Tyler (2000), a psychologist who conducted a child custody evaluation in connection with a court proceeding was found to be appropriately subjected to a suit for negligence in the conduct of the evaluation. The psychologist’s claims for judicial immunity and witness immunity were rejected by the Supreme Court of

Liability of the forensic psychiatrist 75

Vermont, because her evaluation was not conducted pursuant to an order entered by the trial court. This decision was handed down despite the fact that the court ordered such an evaluation and she was chosen by both parties as the agreed medical examiner. As a result of the examination and subsequent testimony by the psychologist, the parties stipulated to a joint custody arrangement. The wife later sued the psychologist for slander, malpractice and intentional infliction of emotional distress and also alleged that the negligent evaluation injured her rights, other than by a personal injury, by forcing her into the noted stipulation. The decision in this case implies that if the evaluation had been conducted pursuant to a court order, the defendant would have been immune from suit. In contrast though, other reported court decisions protect providers of foren-sic services from lawsuits for inadequate forensic examination. For example, in Felton v. Schaeffer (1991), the damage award against a physician, who allegedly negligently performed a pre-employment fitness examination which resulted in the applicant not being hired, was reversed on the grounds that the physician had no physician–patient relationship with the applicant and, hence, had no duty to the applicant. In reversing the damage award, the appellate court also found that the physician was protected by a qualified privilege protecting nonmalicious communications to an interested person, in this case the potential employer. 4 A forensic psychiatrist could be sued by a third party who is not a client and is not the subject of a forensic evaluation, but who suffers personal injury as a result of acts or omissions in the forensic evaluation. An example of this would be a situation in which a psychiatrist conducts a forensic examination of a criminal defendant who, during the course of the examination, reveals that he intends to injure or kill a third party. A suit could follow if the psychiatrist fails to warn the intended victim and the victim is harmed. Although attorney–client privilege might preclude a warning since the psychiatrist is not in a treatment role, arguably the forensic psychiatrist has an obligation to warn the third party in jurisdictions that follow the reasoning and precedent in Tarasoff v. Regents of the University of California (1976), and there probably is an ethical duty to do something. The absence of a traditional doctor–patient relationship may be protective of the forensic psychiatrist in a medical malpractice suit. However, in People v. Clark (1990) the California Supreme Court did not reject the proposition that a forensic psychotherapist has an obligation to warn of the criminal defendant’s disclosure that he wished to harm third parties in an otherwise confidential examination. The Court indicated that the attorney–client privilege should have precluded the information being admitted into court in the pending criminal case since the evaluation was supposed to be confidential to the

defense attorney, but determined that the error of admitting the information in the criminal trial was harmless. 5 A non-forensic colleague or trainee could sue a forensic psychiatrist for giving negligent advice about mental health law. At least in a teaching situation the forensic psychiatrist is likely to be protected by the absence of a physician–patient relationship from medical malpractice. In a situation where a physician, while lecturing in medical school, stated to a patient’s doctor that the patient should undergo surgery, the lecturing physician could not be liable in a suit by the patient for medical malpractice in the surgery, because there was no direct physician–patient relationship between the lecturing physician and the patient (Ranier v. Grossman 1973). However, although unlikely, a suit could be filed alleging some other type of negligence to a student or colleague. To lessen the chance for such a claim it would be helpful to clarify at the outset that forensic psychiatrists do not give legal advice but only legally informed psychiatric consultation and teaching. 6 A forensic psychiatrist could possibly be sued by an employer for an allegedly negligent pre-employment examination, that leads to the hiring of an unqualified employee whose improper acts, in turn, lead to damage to the employer. For example, in the case of Wharton Transport Corp. v. Bridges (1980), the Court held that a successful lawsuit could be brought by an employer against a physician for indemnification where the physician had allegedly negligently conducted a preemployment physical examination of a person hired as a truck driver by the employer, because the truck driver was really not fit for the job and caused an accident, which imposed damages on the employer. It is not a large leap to envision a lawsuit by an employer against a psychiatrist who performs a pre-employment psychiatric evaluation that results in the hiring of an employee who for psychiatric reasons subsequently causes damage to the employer or to other persons (such as workplace violence). 7 A forensic psychiatrist who acts as a forensic expert for his or her patient always runs the risk of being sued for both psychiatric and forensic malpractice by the patient. It is easy to envision therapy being destroyed by the psychiatrist acting as a forensic witness. It also could be claimed that a treating psychiatrist performed a negligent evaluation by relying too much on a patient, violated recommendations of AAPL in performing a dual role, and thereby was demolished during cross-examination. In addition to creating ethical problems, another strong reason for a forensic psychiatrist not to become involved in a forensic capacity with a patient can be seen to be the increase in liability exposure that can arise from becoming involved in these dual, potentially conflicting roles. Of course, there are situations where a patient in treatment tenders his or her mental condition as an issue in a

76 History and practice of forensic psychiatry

lawsuit and thereby opens the door for the opposing party to compel the testimony of the treating psychiatrist. But even in these situations it is not advisable for the treating psychiatrist to be retained as the primary forensic witness for the patient.

Claims for intentional torts These include the following possibilities: 1 A forensic witness may be sued for defamation in situations where the forensic witness makes allegedly false statements, outside of court, about the person whom the forensic witness evaluated. For example, a forensic psychiatrist who is of the opinion that a party to a lawsuit is insane may testify to that effect in the lawsuit and be protected by judicial or witness immunity. If the forensic psychiatrist makes a similar statement outside of the lawsuit, such as in a press interview, the psychiatrist may be sued for defamation (Susan A v. County of Sonoma 1991). A California Appellate Court did find possible liability in the case of a forensic psychologist who spoke with the press about the defendant and his mother during a trial. He had been hired by a public defender to examine a defendant for defense purposes. The psychologist was misled into thinking the public defender wished him to speak to the press and had authorized the reporter’s inquiries. Moreover, he received approval to do so from the attorney’s supervisor. The court clarified that a statutory privilege for publication applies to any communication made in a judicial or quasi-judicial proceedings by litigants or other participants authorized by law in order to achieve the objects of the litigation, with some logical relation to the action. Privilege did not apply, even though the press statements were made to obtain a litigation advantage for the defendant, since publication was to persons in no way connected with the proceeding. Quasi-judicial immunity also did not apply since the psychologist had been retained by the defense and not as a non-advocate. Therefore, at least in California, forensic psychiatrists can be liable if they make allegedly defamatory statements in ways not directly related to the trial and if they are hired by one of the adversaries, since quasijudicial immunity is reserved for non-advocates. 2 A forensic psychiatrist might be sued for intentional infliction of emotional distress, if he or she conducts a psychiatric evaluation and the subject of the evaluation contends that it was conducted in a manner intentionally designed to be emotionally damaging such as being unnecessarily rude. 3 A forensic psychiatrist who intentionally misrepresents his or her qualifications for the purpose of obtaining employment, may be sued for fraud by the attorney or other person employing him or her, where the misrepresentation is uncovered and the testimony of

the forensic expert is disallowed by the court resulting in the loss of the lawsuit or the misrepresentation is uncovered in cross-examination of the expert.

Federal civil rights claims A forensic psychiatrist who certifies a patient for an involuntary hold may be sued for a federal civil rights violation notwithstanding a state statute providing that the psychiatrist has immunity for his evaluation (Jensen v. Lane County 2000).

Alleged violations of ethics codes and medical practice law These include the following possibilities: 1 A forensic psychiatrist may be subject to discipline for practicing without a license where he or she examines a client or testifies in a state where he or she is not licensed. This is a new area of risk, and there are a number of states that require a license to carry out forensic work in that state. Maryland and Illinois, for example, have specific statutes requiring licensure of psychologists in those states as a prerequisite for expert testimony (Simon and Shuman 1999). Florida and some other states have been creating problems for psychiatrists performing forensic work in a state in which they are not licensed. Before testifying out of state, the forensic psychiatrist should determine whether a license is required to give expert testimony in the other state, whether they need to work in conjunction with a forensic psychiatrist licensed in that state, or whether some sort of registration with licensing authorities is necessary to testify (Simon and Shuman 1999). 2 A forensic psychiatrist who gives false or negligent testimony in a judicial proceeding may be protected from civil suit by judicial immunity or witness immunity, but may still be subject to sanction by a professional society for ethics violations, or subject to an accusation by the state agency which issued his or her medical license (Budwin v. American Psychological Association 1994). 3 A forensic psychiatrist may be sued for breach of patient privacy or confidentiality if he or she conducts an evaluation for an employer and discloses confidential information to the employer without the consent of the employee being evaluated (Pettus v. Cole 1996). Pettus (1996) illustrates the risks of not informing the person being evaluated that such disclosures will be made and of not obtaining written consent to such disclosures. In Pettus, psychiatrists performing forensic evaluations for an employer were sued for breach of confidentiality in disclosing information to the employer of the person being evaluated allegedly without obtaining specific permission from the

Liability of the forensic psychiatrist 77

person being evaluated. Although the psychiatrists ultimately won the lawsuit, an appellate court initially held they could appropriately be sued for alleged breaches of confidentiality.

PROTECTIONS AGAINST LIABILITY CLAIMS There are certain prudent steps which a forensic psychiatrist may take to protect against liability claims: 1 A forensic psychiatrist should purchase liability insurance that provides coverage for forensic work. Sometimes, this can be added as a rider to a medical malpractice insurance policy, but protection is needed for acts by a forensic psychiatrist that are not medical malpractice since there is no traditional physician– patient duty. That coverage should obligate the insurer to defend and to indemnify the forensic psychiatrist against claims arising out of forensic work. Care should be taken to select an insurance company with a high financial rating and a policy with appropriate coverage. Issues to be considered are whether the insurance policy is a claims made policy or is a policy providing occurrence coverage. Claims-made coverage covers claims which arise during the period when the insurance is in force. An issue with a claims-made policy is whether it provides coverage for claims that arise out of events occurring before the insurance was in force (nose coverage). Occurrence-coverage insurance covers claims which arise out of alleged acts or omissions occurring when the insurance is in force. There should be an inquiry as to whether any occurrence coverage includes coverage for claims in which the alleged damage occurred after the alleged improper acts, and after the period when the insurance was in force. For both claims-made and occurrence-coverage insurance, the insurer should also be questioned as to the availability of tail coverage or an extended reporting period for claims first made after the insurance coverage period has expired. In purchasing insurance do not rely on shorthand phrases such as ‘occurrence’ or ‘claims made’ to understand the insurance coverage. Ask specific questions about what is insured. 2 A common mistake frequently made by attorneys who retain forensic witnesses is that they retain the forensic witness as an expert before they know what opinion the forensic witness will render. In some jurisdictions this results in the attorney having an obligation to disclose the identity of the retained expert before knowing whether the expert’s opinion will be favorable to the attorney and his or her client. Care should be taken in being engaged for forensic work to avoid this risk. It is advisable that the forensic expert enters into a written agreement with the attorney retaining the expert, and that the agreement provides that the attorney on behalf of the attorney’s

client, is retaining the forensic psychiatrist to provide a consultation, with the attorney having the option of converting the forensic psychiatrist into an expert witness. In some states this means the attorney will have the option of not using the forensic psychiatrist as an expert witness, if the psychiatrist’s opinions are not favorable to the attorney. In that event, the forensic psychiatrist’s communications with the attorney will be confidential by virtue of the attorney workproduct doctrine, and the forensic psychiatrist may not disclose those communications or the adverse opinion. There is thereby less likely to be legal friction between the forensic psychiatrist and the retaining attorney in such circumstances, and less likelihood of a suit by the attorney or the attorney’s client for negligence. 3 A written contract could be helpful. Terms which should be included in any contract between a forensic psychiatrist and an attorney are the fees to be charged by the forensic psychiatrist, such as the hourly fees for review of documents and examination of persons being evaluated, hourly fees or daily fees for testimony in court or in deposition, and any fees charged for travel time. Any contracts should be signed by the attorney. A contract might include terms obligating the attorney to pay the psychiatrist’s fees on a monthly basis, or within a certain period of time after billing is rendered. The contract in relevant jurisdictions might also provide that the forensic expert’s communications with the attorney are protected by the attorney workproduct doctrine, unless and until the forensic witness is designated as expert witness, and should also provide that any communications with the attorney’s client in connection with the forensic work is also protected by the attorney–client privilege, unless and until the forensic witness is designated as an expert. In other words, in many jurisdictions, attorney work-product confidentiality, and attorney–client privilege do not automatically apply to communications by an expert witness with the attorney who has retained the expert or with that attorney’s client unless the expert is properly retained. Without such protection, the expert could be subpoenaed by the opposing side. Finally, a contract might contain a disclaimer based on the Daubert v. Merrill Dow Pharmaceuticals, Inc (1993) and the Kumho Tire Co. v. Carmichael (1999) decisions to the effect that there is no guarantee that the expert will be allowed to testify in court. 4 Wherever possible, the work done by the forensic psychiatrist should be pursuant to court order since, as discussed above, work conducted pursuant to court order in a judicial proceeding is protected by judicial or witness immunity. 5 When conducting an evaluation, a forensic psychiatrist should consider providing written disclosure to the person being evaluated of the purpose of the evaluation, that the person being evaluated is not a patient

78 History and practice of forensic psychiatry

of the forensic psychiatrist, and that information collected in the evaluation, and the opinions of the forensic psychiatrist based on that information, will be disclosed to others. Where possible, identify exactly which other persons will receive such disclosures. 6 The forensic psychiatrist should always clarify his or her role in any consultation so that there are no false expectations such as a misinterpretation that legally informed psychiatric consultation is legal advice, or that a forensic evaluation includes treatment.

CONCLUSION In conclusion, although liability is significantly less for psychiatrists practicing forensic psychiatry than in clinical psychiatry, potential liabilities are broad-based and do exist. Most importantly, the malpractice liabilities are often distinct from those encountered in usual clinical psychiatric settings and increasingly require in-depth familiarity with the scope and practice of the field of forensic psychiatry. Various strategies for minimizing these liabilities are warranted, including written disclosures and contracts for forensic work. Although relatively unusual, liability exposure does exist in forensic psychiatry, and some precedent-setting appellate cases have been cited in this chapter. Appropriate measures should be taken to limit this potential exposure.

REFERENCES American Academy of Psychiatry and the Law. 1995. Ethical Guidelines of the American Academy of Psychiatry and the Law. Bloomfield, CT: American Academy of Psychiatry and the Law.

Appelbaum, P.S. 2001. Liability for forensic evaluations: a word of caution. Psychiatric Services 52, 885–6. Budwin v. American Psychological Association (1994). 24 Cal. App. 4th 875, 29 Cal. Rptr. 2d 453. Dalton v. Miller (Col. App. 1999). 984 P. 2d. 666. Daubert v. Merrill Dow Pharmaceuticals, Inc. (1993). 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786. Felton v. Schaeffer (1991). 229 Cal. App. 3d 229, 279 Cal. Rptr. 713. Jensen v. Lane County (9th Cir. 2000). 222 F. 3d 570. Kumho Tire Co. v. Carmichael (1999). 526 U.S. 137, 143 L. Ed. 2d 238, 119 S. Ct. 1167. Mero v. Sadoff (1995). 31 Cal. App. 4th. 1466, 37 Cal. Rptr. 2d 769. Murphy v. Mathews (Mo 1992). 841 S.W. 2d 671. People v. Clark (1990). 50 Cal. 3d 583, 268 Cal. Rptr. 399, 789 P. 2d 127. Pettus v. Cole (1996). 49 Cal. App. 4th 402, 57 Cal. Rptr. 2d 46. Politi v. Tyler (Vermont 2000). 751 A. 2d 788, 170 Vt. 428. Rainer v. Grossman (1973). 31 Cal. App. 3d 539, 107 Cal. Rptr. 469, 17 A.L.R. 4th 132. Simon, R.I., Shuman, D.W. 1999. Conducting forensic examinations on the road: are you practicing your profession without license? Journal of the American Academy of Psychiatry and the Law 27, 75–82. Susan A. v. County of Sonoma (1991). 2 Cal. App. 4th 88, 3 Cal. Rptr. 2d 27. Tarasoff v. Regents of the University of California (1976). 17 Cal. 3d 425, 131 Cal. Rptr. 14, 551 P. 2d 334, 83 A.L.R. 3d 1166. Wharton Transport Corp. v. Bridges (Tenn. 1980). 606 S.W. 2d 521, 24 A.L.R. 4th 1295.

10 The death penalty GREGORY B. LEONG, J. ARTURO SILVA AND ROBERT WEINSTOCK

Capital punishment in the United States has often been the subject of intense societal controversy (Baird and Rosenbaum 1995; Sarat 2001). The current epoch of capital punishment began in 1976 with the U.S. Supreme Court decision of Gregg v. Georgia. Only between the U.S. Supreme Court cases of Furman v. Georgia in 1972 and Gregg v. Georgia in 1976 did federal law for the only time in U.S. history effectively eliminate the death penalty in the United States. However, this prohibition was shortlived and since the Gregg decision, each jurisdiction can decide upon the legitimacy of capital punishment. At the end of 2000, the imposition of the death penalty was possible in 38 states and by the federal government (except for the District of Columbia) (U.S. Department of Justice [USDOJ] 2001). At that time, the 3593 prisoners housed on death row were 98.5 per cent male, 55 per cent white, and 43 per cent black. The death row census increased 1.5 per cent from year-end 1999, and the ages of the inmates ranged from 18 to 85 years (USDOJ 2001). In the most recently available government statistics on capital punishment, 14 states executed 85 prisoners in 2000, including two female prisoners (USDOJ 2001). A preliminary count for 2001 found 66 executions (USDOJ 2001). Since the Gregg decision, i.e., from January 1, 1977 until the end of 2000, 31 states have executed 683 prisoners, with 65 per cent of the executions occurring in five states (Texas, Virginia, Florida, Missouri, and Oklahoma) (USDOJ 2001). At year-end 2000, three states (California, Texas, and Florida) accounted for 39 per cent of the death row population (USDOJ 2001). However, the annual number of persons executed from 1930 to the late 1940s exceeded 100 per annum, i.e., was greater in absolute number for each year of the post-Gregg era (USDOJ 2001). The debate surrounding capital punishment traditionally had two major camps. Retentionists, or supporters of the death penalty, offer several reasons for preserving the ultimate punishment, including retribution, justice, deterrence, and the possibility of saving money over imprisonment if appeals are sharply limited. Moreover, the retentionists view capital punishment as satisfying the proportionality analysis, i.e., the severity of the punishment

should be commensurate with the gravity of the crime. Fear, though, has probably been the prime motivator behind the pro-death penalty position. The higher crime rates in the United States, which more closely resemble those of volatile Third World countries (that also permit capital punishment) than those of other developed western nations, may provide a partial explanation for this fear (Currie 1985). Additionally, with strong popular support for the death penalty, politicians have been reluctant to risk their careers supporting an anti-death penalty position. Abolitionists, or opponents of capital punishment, offer several reasons to support their position, including the irreversibility of the punishment, the possibility of executing an innocent person, disproportionately high economic expense arising from the legal process, ethnic imbalance in those executed with overrepresentation of African-Americans, and that the barbarity and inhumaneness of an execution violates the Eighth Amendment. Abolitions also cite quantitative data such as the lack of increased crime rates in other western democracies without capital punishment and the lack of empirical evidence to support the death penalty’s deterrent effect on crime rates in states that have reimposed capital punishment or in neighboring states which differ in terms of permitting executions. During much of the latter part of the twentieth century, American public opinion has increasingly favored the pro-death penalty position since a nadir of support in 1965. Congress has followed the pro-execution sentiment with its enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996, which limits the number of legal appeals for capital cases (see U.S. Code, Title 28, Section 2254 in particular). However, at the close of the century, scientific advances, inadequate legal representation, and other errors have become significant factors in the death penalty debate. With advances in forensic science techniques, particularly with the use of DNA evidence, there has been post-trial demonstration of not merely a ‘not guilty’ finding, but actual innocence (Connors et al. 1996). On the legal front, successful legal appeals have been based on ineffective assistance of

80 History and practice of forensic psychiatry

defense counsel. A recent review of recent death penalty convictions found substantial error rates in the imposition of capital sentences from 1973 through 1995 (Liebman et al. 2000). These serious doubts regarding the actual guilt of convicted death row prisoners have caused concern among even pro-death penalty proponents, and at the start of the Millenium there has been an increasingly intense call for a moratorium on executions. Recent public surveys indicate public opinion shifting toward suspending executions until at least reforms are instituted (The Justice Project 2000). So beyond the traditional retentionist and abolitionist division, a third major position favoring a moratorium on capital punishment has emerged and appears to be gathering momentum in the death penalty debate. What may temporarily reduce the death row inmate population, or at least delay execution in many cases, is the United States Supreme Court ruling in Ring v. Arizona (2002). In Ring, a seven-to-two vote held that those states in which their statutes allowed a judge alone to rule on aggravating factors (or in essence the imposition of the death penalty) during a capital trial would violate the Sixth Amendment right to a jury trial.

cases is probably the one area in which the goals of the legal system are most likely to collide with traditional medical ethics (primum non nocere) (Weinstock, Leong and Silva 1990). Because of the recent turmoil in the death penalty issue, while not changing medical ethics, organizations have taken positions on capital punishment. For example, the American Academy of Psychiatry and the Law (AAPL) has taken a position in favor of a moratorium on the death penalty. Following a survey of the AAPL membership, the Executive Council of AAPL adopted the following resolution on May 6, 2001 (AAPL 2001): Resolved, that the American Academy of Psychiatry and the Law calls for a moratorium on capital punishment at least until death penalty jurisdictions implement policies and procedures that: A) Ensure that death penalty cases are administered fairly and impartially in accordance with basic due process; and B) Prevent the execution of mentally disabled persons and people who were under the age of 18 at the time of their offenses.

MEDICAL ETHICS AND THE DEATH PENALTY

FORENSIC PSYCHIATRIC PARTICIPATION IN THE DEATH PENALTY PROCESS

Medicine, and especially psychiatry, has not been immune to the polemics surrounding capital punishment. Professional participation in an execution is expressly an unethical activity for physicians based on the ethical guidelines promulgated by the American Medical Association (AMA) and adopted by the American Psychiatric Association (APA). Participation though has been narrowly interpreted by the AMA as forbidding involvement in the actual administration of the means of death, or pronouncing death (Skolnick 1993). One professional group has adopted a more stringent definition of unethical psychiatric participation in capital cases, i.e., any participation after a guilty verdict has been rendered (Rosner et al. 1991). Nonetheless, rank and file physicians do not necessarily agree with the AMA-generated ethical position, as a recent survey of physicians suggests that many believe a certain level of participation in the execution process is professionally acceptable, such as assisting with a lethal injection or pronouncing death (Farber et al. 2000). Forensic psychiatrists themselves are divided on the issue of the propriety of capital punishment (Leong et al. 2000). Nonetheless, surveys of forensic psychiatrists have shown that a clear majority believe that the death penalty should be treated differently because of its special seriousness. In such surveys, forensic psychiatrists also are divided in regards to the ethics of facilitating a death sentence in any manner despite the lack of any official position by professional organizations on most death penalty matters (Weinstock 1986; Weinstock 1989). Participation by forensic psychiatrists in death penalty

Ake v. Oklahoma (1985) sets a minimal requirement for the capital case defendant to have access to psychiatric consultation. The legal system often asks forensic psychiatrists to examine defendants to evaluate various issues, including various competencies, mental state at the time of the offense, dangerousness, and sentencing (treatment) recommendations. The psychiatric assessment of these forensic issues are shared by both capital and non-capital cases and does not differ. Nonetheless, some forensic psychiatrists may view participation in capital cases as qualitatively different from that of participation in non-capital cases, citing concern about involvement in the death penalty process. In a recent survey of forensic psychiatrists, although some question the ethical propriety of providing consultation to the prosecution at any stage of a capital case (Leong et al. 2000), there is no consensus about the appropriateness of participation by forensic psychiatrists in death penalty cases. Individual forensic psychiatrists have to decide on their own as to whether to participate in forensic psychiatric evaluations and if so, for which assessments they feel professionally and personally comfortable. Whatever position a forensic psychiatrist takes, if providing forensic psychiatric expertise in a capital case, the assessment should be done honestly (Diamond 1990; Foot 1990; Weinstock, Leong and Silva 1992) in accordance with the current forensic psychiatric ethics (see Chapter 8). There are other professional issues involving psychiatrists and physicians in a capital case, but these lie beyond those facing the forensic psychiatric consultant.

The death penalty 81

PSYCHIATRIC EXPERT WITNESS TESTIMONY Unlike most non-capital cases, psychiatric testimony at the penalty (sentencing) phase of a capital trial may be particularly important and potentially controversial since the death penalty is at issue. Psychiatric testimony supporting the defense position can be crucial. Mental problems not qualifying for insanity or diminished capacity as well as a presentation of a psychodynamic or biopsychosociocultural explanation of the crime may be particularly relevant for mitigation. Nevertheless, psychopathology believed by the psychiatrist to be mitigating can be perceived by the trier of fact as aggravating. Because of the irreversible nature of the capital punishment, the Supreme Court has recognized that the capital case defendant must be afforded the opportunity to present any and all mitigating factors by which the trier of fact can decide not to impose the death penalty for a capital offense (Lockett v. Ohio 1978; Eddings v. Oklahoma 1982). Psychiatric testimony supporting the prosecution position during the sentencing phase of a capital trial can be especially problematic since its sole purpose is to bring about a death sentence. The United States Supreme Court case of Payne v. Tennessee (1991) created potential opportunities for psychiatrists to participate for the prosecution during the sentencing phase of a capital case. The Payne case reversed prior Supreme Court decisions and allows prosecutors to use Victim Impact Statements during a criminal trial’s sentencing phase. Depending on the jurisdiction, these statements can detail the victim’s character as well as the psychological impact of the crime upon the victim’s family and community. The prosecution could then conceivably call psychiatric experts to validate the psychological effect of the crime upon the victim’s family (Stone 1991). Although psychiatric participation for the prosecution after having examined only the victim’s family appears to raise serious questions regarding its ethical propriety – especially in death penalty cases – some mental health commentators have argued that there is no professional ethical argument against such participation (Kermani and Kantor 1994). Although some forensic psychiatrists are of the opinion that only efforts to prevent a death sentence are ethical, dishonesty in testimony whether supporting the prosecution or defense position, however noble the motive, is not ethically appropriate. Dishonesty would undermine respect and usefulness for psychiatry in the legal system. Although ethical guidelines for the practice of forensic psychiatry do not require impartiality, honesty and striving for objectivity are required. Barefoot v. Estelle (1983) defined some legal contours of allowable courtroom psychiatric testimony during the penalty phase of a capital trial. The Supreme Court ultimately denied Barefoot’s contentions that psychiatrists cannot accurately predict dangerousness and that a personal examination by the psychiatric expert witness of the defendant is required. In regard to permitting psychiatric

testimony based on a hypothetical situation (questions) instead of on a personal examination, the Court ruled this tactic permissible as it was already commonly used and strongly established as a legal maneuver. Notwithstanding the Barefoot decision, the clinical assessment of dangerousness may lack the high degree of accuracy that would seem to be ethically warranted when the death penalty is at issue. Moreover, offering an opinion without a personal examination of the defendant would most likely reduce the accuracy of an assessment of dangerousness than if a personal examination had been part of the psychiatric expert’s database. Surveys of forensic psychiatrists have shown that most favored an ethical guideline forbidding testimony in a capital case without a personal examination (Weinstock 1989; Weinstock, Leong, and Silva 1991). Even though the court stated that prognosticating dangerousness as done in the Barefoot case was legally permissible, professional ethical standards could find such practice unethical. Current American Academy of Psychiatry and the Law (AAPL) ethical guidelines state that an earnest effort should be made to examine the defendant and require at least a statement of the limitations of any opinion given without a personal examination. Such a statement of limitations apparently was not done in the Barefoot case. Estelle v. Smith (1981) defined the psychiatrist’s legal responsibility as to informing the defendant about the possible consequences of a psychiatric evaluation. Estelle v. Smith concerned the use of a pre-trial psychiatric assessment for competency to stand trial to serve as the basis upon which testimony by the psychiatrist supporting the prosecution position was offered during the penalty phase of a capital trial. The Supreme Court ultimately ruled the Fifth Amendment privilege against compelled self-incrimination was violated since no Miranda-type warning was given and the Sixth Amendment right to assistance of counsel was violated since defense counsel assistance could not be provided to help decide whether the defendant should be psychiatrically examined. Informing defendants of the possible consequences of a psychiatric evaluation, i.e., providing Miranda-type warnings, can raise unforeseen problems, such as affecting what information the defendant provides to the examining psychiatrist which in turn may inadvertently cause more (legal) harm than benefit (Leong, Silva, and Weinstock 1990). In addition, the effectiveness of a Miranda-type warning may wane as the interview progresses due to ‘slippage’ or the diminishing effect of such a warning on an evaluee over the course of the evaluation process (Leong, Silva, and Weinstock 1990).

COMPETENCY TO PROCEED Three capital cases have been reviewed by the U.S. Supreme Court in the last decade of the Millenium that

82 History and practice of forensic psychiatry

involve competency to stand trial. In Riggins v. Nevada (1992), the U.S. Supreme Court reversed and remanded the Nevada Supreme Court’s decision to affirm the trial court’s decision. The Court ruled that involuntary administration of antipsychotic medication during trial could be done only if such treatment was medically appropriate, the defendant was a danger to himself or others, and there were no less intrusive treatments available. In Cooper v. Oklahoma (1996), the U.S. Supreme Court ruled that even though a defendant can show by a preponderance of the evidence that he or she is not competent to stand trial, Oklahoma’s requirement that the defendant make the showing by clear and convincing standard of proof violated due process. These two decisions appear favorable toward the capital criminal defendant. However, in Godinez v. Moran (1993), the U.S. Supreme Court’s ruling did not favor the death row inmate. During trial, Moran had waived his right to counsel, pleaded guilty, and subsequently received a death sentence. After receiving a death sentence, Moran changed his mind and attempted to assert that he was not competent to proceed at the time of waiving counsel and pleading guilty. The U.S. Supreme Court rejected Moran’s argument that there were differences in competency to stand trial, competency to plead, and competency to waive counsel.

ELIGIBILITY FOR EXECUTION Demographic factors The Supreme Court has ruled under what conditions a person may be excluded from execution. In the matter of the ‘juvenile death penalty,’ the high court has forbidden capital punishment for those under age 16 in Thompson v. Oklahoma (1988), but not for those ages 16 and 17 in Stanford v. Kentucky, Wilkins v. Missouri (1989) at the time of the commission of the capital crime. However, individual states can require a higher minimum age than the Supreme Court’s age 16. Of the jurisdictions permitting capital punishment, 14 states and the federal system prohibit the execution of those under age 18 (USDOJ 2001). Adolescence may still be a relevant mitigating factor for the defense to present during the penalty phase of a juvenile death penalty case in the 24 other death penalty states. Statistical data have found that African Americans disproportionately receive the death penalty (Appelbaum 1987). However, in McCleskey v. Kemp (1987), though the Supreme Court acknowledged that race was a factor in the death sentences in some capital cases and correlated with it, the court declined to give sufficient weight to such empirical findings to overturn a death sentence on the basis of race in the State of Georgia. The majority imposed a requirement that racial bias be proven in a specific case. The court ignored the scientific implication of 95 per cent probability that the finding could not have

occurred by chance, i.e., a statistically significant finding. In the criminal justice system, such certainty ordinarily is at the ‘beyond a reasonable doubt’ level. They also could have restricted the death penalty to especially heinous crimes in which race was found to be less of a factor. They did not do so, however, despite this appreciation in the dissenting opinions.

Mental factors The only forensic psychiatric issue exclusive to capital cases concerns the competency to be executed. Vigorous debate has followed the competency to be executed process (Heilbrun, Radelet, and Dvoskin 1992; Bloche 1993). Only in the case of a person found incompetent to be executed can capital punishment be prevented for psychiatric reasons prior to a legally scheduled execution. Ford v. Wainwright (1986) involved a case of a man sentenced to death who first developed a full-blown paranoid psychotic disorder only after serving time on Florida’s death row. The Supreme Court on appeal ruled that the Eighth Amendment prohibits the execution of an ‘insane’ prisoner, and Ford had the right to a judicial hearing to determine his competency. The legal parameters in Ford governing the forensic psychiatric issue appear straightforward. However, clinical and ethical problems can arise for psychiatrists performing competency to be executed examinations or treating incompetent death row inmates. There appears to be minimal conflict in offering an opinion supporting an inmate’s incompetency to be executed, as this could delay the execution. However, if the examining psychiatrist offers an opinion supporting competency, then is the psychiatrist directly participating in the person’s execution? Although some psychiatrists may find that this does violate their personal ethical values or their view of what professional ethics should be, current medical ethics does not view this as direct participation in the execution process. Competency to be executed examinations also offer the possibility of sparing an inmate from the death penalty. A greater clinical–ethical conundrum arises after the prisoner is found incompetent to be executed and the prison psychiatrist is called upon to treat the death row inmate in order to restore his or her competency. Treatment in such a case significantly departs from ordinary medical goals insofar as the primary purpose is to allow a patient to be executed, not to relieve suffering, and therefore has the aura of representing direct participation in the death penalty process. Even if there were psychiatrists willing to treat ‘insane’ death row inmates, clinical and ethical problems become increasingly complex when the prisoner refuses prescribed psychotropic medication. The Supreme Court has so far left the right to refuse treatment by ‘insane’ death row inmates unanswered in the case of Perry v. Louisiana (1990). Instead, the U.S. Supreme

The death penalty 83

Court remanded Perry’s case back to the trial court for further proceedings to decide the right to refuse treatment issue in light of the right to refuse treatment case of Washington v. Harper (1990). The trial court reinstated the involuntary medication order. The Louisiana State Supreme Court subsequently heard the case on appeal and ruled against the involuntary administration of antipsychotic medications to restore Perry’s incompetency to be executed. However, the Louisiana State Supreme Court in State v. Perry (1992) left open the possibility that the death sentence could be reinstated if Perry became competent to be executed without the use of antipsychotic medications. Very few states provide for commutation of a prisoner’s death sentence upon a legal determination of incompetence to be executed. To address this conundrum, the AMA in the current opinions of the AMA Code of Medical Ethics by its Council on Ethical and Judicial Affairs (CEJA) holds that physicians ‘should not’ treat an incompetent death row inmate for competency restoration unless the death sentence is commuted or the inmate is undergoing extreme suffering (American Medical Association 2000). While mental illness can postpone, and in some cases preclude, capital punishment on a post-conviction basis in cases of incompetence to be executed, the presence of mental retardation has recently come to center stage. As recently as in Penry v. Lynaugh (1989) the Supreme Court ruled that mental retardation does not automatically preclude a death sentence, though it can be a mitigating factor. Only 13 years later, the Supreme Court in a six-to-three decision reversed the decision of the Virginia Supreme Court in Atkins v. Virginia (2000) and ruled that execution of a mentally retarded individual violated the Eighth Amendment prohibition against cruel and unusual punishment (Atkins v. Virginia 2002). The Supreme Court based in part their decision on the direction of state legislatures in those states allowing capital punishment toward prohibiting execution of the mentally retarded. The immediate effect of the Atkins case will be to void the capital sentences of death row inmates whose mental retardation can be demonstrated, but the operational effect for future capital cases will involve a determination of mental retardation either pre-trial or during trial prior to jury deliberations on whether to impose the death penalty. Whether the Supreme Court ruling in Atkins v. Virginia leads to further restrictions on capital punishment will likely be a focus of considerable debate for the foreseeable future.

Accelerating factors Although capital punishment has recently been under intense scrutiny and changes in the death penalty process are inevitable in the U.S. in the coming years, another area in which forensic psychiatry can become involved arises when a death row prisoner seeks to expedite the execution

process. Death penalty opponents have vigorously opposed an inmate’s preference for death over life imprisonment. What actually occurs is an inmate’s attempts to waive his or her right to further legal appeals. Attorneys for the anti-capital punishment position attempt to have the defendant’s competency to waive further legal appeals called into question (Weiss 1999).

REFERENCES Ake v. Oklahoma, 470 U.S. 68 (1985). American Academy of Psychiatry and the Law. 2001: Position Statement of AAPL on the Death Penalty (Adopted May 6, 2001). Downloaded from http://aapl.org on 12/24/01. American Medical Association. 2000: Current Opinions of the Council on Ethical and Judicial Affairs. Downloaded from http://www.ama-assn.org on June 19, 2000. Appelbaum, P.S. 1987. The empirical jurisprudence of the United States Supreme Court. American Journal of Law and Medicine 13, 335–49. Atkins v. Virginia, 260 Va. 375; 534 S.E. 2d 312 (2000). Atkins v. Virginia, 122 S.Ct. 2242 (2002). Baird, R.M., Rosenbaum, S.E. (eds). 1995: Punishment and the Death Penalty: The Current Debate. Amherst, NY: Prometheus Books. Barefoot v. Estelle, 463 U.S. 880 (1983). Bloche, M.G. 1993. Psychiatry, capital punishment, and the purposes of medicine. International Journal of Law and Psychiatry 16, 301–57. Connors, E., Lundregan, T., Miller, N., McEwen, T. 1996: Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence after Trial (NCJ 161258). Washington, DC: U.S. Department of Justice. Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373 (1996). Currie, E. 1985: Confronting Crime: An American Challenge. New York: Pantheon Books. Diamond, B.L. 1990: The psychiatric expert witness: honest advocate or ‘hired gun?’ In Rosner, R., Weinstock, R. (eds), Ethical Practice in Psychiatry and the Law. New York: Plenum Press, 75–84. Eddings v. Oklahoma, 71 L. Ed. 2d 1 (1982). Estelle v. Smith, 451 U.S. 454 (1981). Farber, N., Davis, E.B., Weiner, J., et al. 2000. Physicians’ attitudes about involvement in lethal injection for capital punishment. Archives of Internal Medicine 160, 2912–16. Foot, P. 1990: Ethics and the death penalty: participation by forensic psychiatrists in capital trials. In Rosner, R., Weinstock, R. (eds), Ethical Practice in Psychiatry and the Law. New York: Plenum Press, 207–17. Ford v. Wainwright, 106 S.Ct. 2595 (1986). Furman v. Georgia, 408 U.S. 238 (1972). Godinez v. Moran, 113 S.Ct. 2680 (1993).

84 History and practice of forensic psychiatry Gregg v. Georgia, 428 U.S. 153 (1976). Heilbrun, K., Radelet, M.L., Dvoskin, J. 1992. The debate on treating individuals incompetent for execution. American Journal of Psychiatry 149, 596–605. Kermani, E.J., Kantor, J.E. 1994. Psychiatry and the death penalty: the landmark Supreme Court cases and their ethical implications for the profession. Bulletin of the American Academy of Psychiatry and the Law 22, 95–108. Leong, G.B., Silva, J.A., Weinstock, R. 1990: Ethical considerations of giving Miranda-type warnings. In Rosner, R., Weinstock, R. (eds), Ethical Practice in Psychiatry and the Law. New York: Plenum Press, 151–62. Leong, G.B., Silva, J.A., Weinstock, R., Ganzini, L. 2000. Survey of forensic psychiatrists on evaluation and treatment of prisoners on death row. Journal of the American Academy of Psychiatry and the Law 28, 427–32. Liebman, J.S., Fagan, J., West, V., Lloyd, J. 2000. Capital attrition: error rates in capital cases, 1973–1995. Texas Law Review 78, 1839–65. Lockett v. Ohio, 57 L. Ed. 2d 870 (1978). McCleskey v. Kemp, 107 S.Ct. 1756 (1987). Payne v. Tennessee, 111 S.Ct. 2597 (1991). Penry v. Lynaugh, 109 S.Ct. 2934 (1989). Perry v. Louisiana, 111 S.Ct. 449 (1990), reh. denied 111 S.Ct. 804 (1991). Riggins v. Nevada, 504 U.S. 127, 112 S.Ct. 1810 (1992). Ring v. Arizona, 122 S.Ct. 2428 (2002). Rosner, F., Halpern, A.L., Kark, P.F., et al. 1991. Physician involvement in capital punishment. New York State Journal of Medicine 19, 15–18. Sarat, A. 2001: When the State Kills: Capital Punishment and the American Condition. Princeton, NJ: Princeton University Press. Skolnick, A.A. 1993. Health professionals oppose rules mandating participation in executions. Journal of the American Medical Association 269, 721–3.

Stanford v. Kentucky, Wilkins v. Missouri, 109 S. Ct. 2969 (1989). State v. Perry, 610 So.2d 746 (La. 1992). Stone A.A. 1991. Report on the Supreme Court decision in Payne v. Tennessee. Newsletter of the American Academy of Psychiatry and the Law 16, 79–81. The Justice Project. 2000. New survey shows overwhelming majority supports changes to death penalty: Democratic and Republican lawmakers release poll showing 80% support reform to capital punishment system. Downloaded from http://www.TheJusticeProject.com on 9/26/00. Thompson v. Oklahoma, 101 L. Ed. 2d 702 (1988). U.S. Department of Justice. 2001: Capital Punishment 2000 (NCJ 190598). Washington, DC: U.S. Department of Justice. Washington v. Harper, 110 S.Ct. 1028 (1990). Weinstock, R. 1986. Ethical concerns expressed by forensic psychiatrists. Journal of Forensic Sciences 31, 596–602. Weinstock, R. 1989. Perceptions of ethical problems by forensic psychiatrists. Bulletin of the American Academy of Psychiatry and the Law 17, 189–202. Weinstock, R., Leong, G.B., Silva, J.A. 1990. The role of traditional medical ethics in forensic psychiatry. In Rosner, R., Weinstock, R. (eds), Ethical Practice in Psychiatry and the Law. New York: Plenum Press, 31–51. Weinstock, R., Leong, G.B., Silva, J.A. 1991. Opinions by AAPL forensic psychiatrists on controversial ethical issues: a survey. Bulletin of the American Academy of Psychiatry and the Law 19, 237–48, erratum 19, 393. Weinstock, R., Leong, G.B., Silva, J.A. 1992. The death penalty and Bernard Diamond’s approach to forensic psychiatry. Bulletin of the American Academy of Psychiatry and the Law 37, 830–8. Weiss, K.J. 1999. Waiving death row appeals: whose right is it anyway? Journal of the American Academy of Psychiatry and the Law 27, 471–81.

11 Competence assessments ROBERT WEINSTOCK, GREGORY B. LEONG AND J. ARTURO SILVA

Forensic psychiatrists frequently are asked to make assessments of competence for legal or administrative purposes. Competence is a context-dependent term with criteria specific to the function being evaluated. It is possible to be competent for one purpose yet incompetent for another. Competence also can change as a person’s underlying condition changes, or circumstances occur that challenge a person’s capabilities. The type of functioning necessary for a specific purpose generally involves intellectual and emotional capabilities that a forensic psychiatrist may be most qualified to assess, although for competence assessments unlikely to reach formal litigation, a general psychiatrist ordinarily may be appropriate for the task such as offering a professional opinion about the competency to provide for basic needs (grave disability). According to Grisso (1986), legal competence includes an evaluation of an individual’s ‘functional abilities, behavior, or capacities.’ Functional abilities relate to a person’s specific knowledge, beliefs, or understanding necessary to accomplish a given task. Assessments of competence require information about ability to function in a specific area, and ability to assess a situation and weigh relevant factors. There are tools that have been developed to help assess some types of competence. For example, the MacArthur group developed one for competence to stand trial (Poythress et al. 1999). Care must be taken in using such instruments since they do not take the place of a careful assessment by a clinician of the relevant facets. For example, delusions about a crucial aspect of a trial might make a defendant incompetent to stand trial, even if the individual is in all other respects competent. Additionally, a person with deficits in many areas may be competent to stand trial on a relatively simple charge with a small penalty if a defendant is aware of the issues central to the case. Such issues are especially important and potentially complex though in assessments of competence to stand trial, since unforeseen situations may arise in a trial, and a defendant may have only one chance at a competence to stand trial assessment. According to the U.S. Supreme Court in Godinez v. Moran (1993), once a defendant is found competent to stand trial, he or she

may be considered competent for all situations that may occur in a trial, even if not foreseen at the time of the evaluation, such as representing himself/herself. Justice Thomas, in the majority opinion, thought it would be too complex to reassess a defendant each time a new issue arose during a trial. A psychiatric diagnosis of any type is not synonymous with incompetence. Only the manner in which the mental disorder interferes with functioning in a specified context is relevant to an assessment of incompetence. The law specifies the legal criteria, which differ depending on the type of competence evaluated. Oftentimes, incompetence is legally required to be the result of mental illness, such as with mental health guardianships or conservatorships. Forensic psychiatrists may be in a position to ascertain whether certain biases are prejudices or whether there are supportive psychiatric data. For example, many judges and juries believe that children should be raised by conventional parents. Even though there is no empirical justification for this opinion, it still could affect the outcome of a parental fitness (capacity) hearing. In many circumstances, no relevant data exist, and prejudices and value judgments also can influence a forensic psychiatrist’s opinion. Value judgments should be distinguished from professional opinions and scientific data. It may also be necessary to test or observe functioning at a specific task in a specific context in order to determine to what degree an impairment leads to a disability. Sometimes, psychological tests are helpful to document specific areas of impairment and disability as well as their extent (Grisso 1986). Biases of the forensic psychiatrist should not be misrepresented as scientific data with reasonable medical certainty. Efforts should be made to obtain data supporting any such belief with an ethical responsibility to strive for objectivity. Grisso (1986) conceptualizes several characteristics relevant for competence assessments. A contextual characteristic or a general environmental context establishes parameters for relevant functional abilities as they are applicable to legal competence in a specific area. Decisions

86 History and practice of forensic psychiatry

must he made regarding relevance for a particular purpose. Causal inferences are necessary to relate abilities or deficits to a specific cause and to make future prognostications. An interactive characteristic focuses on the person’s abilities to meet demands in interactions with others or demands posed by a specific situation. Competency is based on the ability to function in a specified situation or task. A person may be disabled in a particular area of functioning regardless of the degree of impairment. Competence does not depend on an absolute level of functioning or general functional ability. However, judgmental characteristics are involved in deciding what level of functioning is needed for a specific competence. Judgments then are utilized in recommending a disposition. Although judges sometimes give little or no weight to psychiatric input, they also may follow a psychiatrist’s recommendation without further consideration. Thus, a recommendation can have a very significant impact. Gutheil and Appelbaum (2000) distinguish between standards for general and for specific competence. General competence questions are raised when it is believed that a person is unable to make decisions about a wide range of affairs. A finding of incompetence can lead to a person being placed on a guardianship or conservatorship. Specific competence refers to ability to perform a specific function. A person may be competent to function in one area but not in another, because differing capacities and abilities may be required. Making this distinction itself can be an important contribution by a forensic psychiatrist consulting with general physicians and psychiatrists. A person who is assessed as generally incompetent is considered so for all legal purposes – that is, a global incompetence. However, such a person may be de facto competent for a specific purpose, and this fact should be brought to a court’s attention. For example, a person not competent to handle his or her money, or make decisions about psychotropic medication or psychiatric hospitalization, may be competent to decide whether to have their leg amputated for medical reasons. People on guardianships in most jurisdictions generally are considered legally incompetent for all purposes. Conservatorships in some states are more limited than guardianships, and may be for incompetence in some specified areas but not others. In cases of actual or de facto competence in a limited area for a person adjudicated as legally or de jure incompetent, the person’s consent should be obtained in addition to that of a conservator or guardian if practical considerations preclude a court hearing. If a person improves and general competency is restored, courts should be petitioned to rescind the guardianship or conservatorship. This situation is similar to that of adolescents and children who may be legally incompetent because of immaturity for most purposes, solely because of their age. In fact, they may be able to make more competent decisions than many adults in some circumstances despite being considered legally incompetent. However, unlike the disabled adult, the law may refuse to recognize a minor as competent for some

purposes despite the reality or facts of a situation, probably because of the perception of immaturity of juveniles. There are many different types of specific competence with varying criteria distinct for the relevant area of functioning. Although statutory and case law sometimes specify the criteria in respective jurisdictions, criteria can be vague and allow for flexibility as well as subjectivity. An attempt always should be made to find out and clarify the legal criteria before offering an opinion. Sometimes it is necessary to refer to the forensic psychiatric literature, such as with incompetence to give informed consent to medical treatment, since there is relatively little legal precedent. Specific competence assessments in the criminal arena include various competencies to proceed (stand trial, enter a plea, testify, waive counsel, be sentenced) in the legal matter, competence to waive Miranda rights, competence to confess, and most dramatically competence to be executed. In the civil area, specific competencies include those dealing with parenting, informed consent for treatment or research, consent for voluntary psychiatric hospitalization, contracting, marriage, and will-making. These specific areas and their criteria are discussed in chapters in other sections of this book. Many psychological test instruments have been developed for specific competencies (Grisso 1986), and these sometimes are helpful in assessing specific areas of functioning. However, although they produce reliability, they are not necessarily better than a careful assessment by a clinician who may reach a more valid conclusion by being able to consider which factors are most relevant to a specific situation. Even when the tests have good correlations with clinical assessments, they may miss what is essential in a specific case. They may be utilized best as supplements to careful clinical evaluations, but should not replace them. Value judgments are an inevitable part of capacity and competence determinations (Koppelman 1990). There is the internal value related to the conceptualization of a person’s success or failure at something, and the external values brought by those doing the evaluations. Values are involved in establishing the cut-off line for abilities, which divides competence from incompetence (Faden and Beauchamp 1986). Evaluators who come up with differing assessments of competence may do so also because of differing external values they bring to the assessment even if they agree on the data. For example, they may give differing value and weight to autonomy, beneficence, paternalism, civil liberties, and social protection. Values enter into priorities and into determinations of how people ought to live, what people ought to be able to do, what value to give patient welfare, and what value to give to an individual’s choice and preferences. Value judgments in this area are especially important, but probably are inevitable in all of forensic psychiatry, with impartiality probably impossible (Diamond 1959). Informed consent is another area in which psychiatrists are often asked to assess competence and for which

Competence assessments 87

there are few legal standards in most jurisdictions (Grisso and Appelbaum 1998; Berg et al. 2001). Sliding-scale thresholds have been utilized for competence to give informed consent (Roth, Meisel, and Lidz 1977; Drane 1984). Differing thresholds may depend on the factors in a specific case, such as the risks and benefits of a decision and the reasonableness of an evaluee’s choice. A high threshold tends to be utilized for competency if a person is prepared to make an unreasonable choice. Rather than using unreasonable outcome per se as a criterion, such differing thresholds suggest that a more stringent attempt should be made to search for a deficit in the ability to weigh relevant information if an evaluee’s choices are too unreasonable. A person’s choice should at least be understandable in order to be competent, even though it may be unwise. Many irrational elements enter into decisions by normal competent individuals (Brock and Wartman 1990). Values inevitably enter into any determination of reasonableness, but varying thresholds are most consistent with common-sense approaches to this issue. Although the sliding-scale concept ordinarily has been utilized in civil competence assessments, it also can be seen to have applicability in the criminal area. Criteria for competence to proceed can be interpreted in varying ways depending on the seriousness of the offense or the unreasonableness of a defendant’s wishes regarding a trial. A serious offense or complex legal case may require a greater degree of ability of a defendant to understand the charges against him or her and to provide assistance to his or her attorney. Depression must be seriously considered as making a defendant incompetent to stand trial in the case of serious felonies if it leads to a wish for a strategy to be found guilty and perhaps even a wish for the death penalty. A lower threshold is probably necessary to stand trial for less serious crimes. Sliding-scale criteria probably are frequently utilized but usually are not so conceptualized in the criminal area. The biases of an examiner also can influence the interpretation of terms utilized in the legal criteria. The most honest and effective approach is to be open about the data and also the abilities evaluated, as well as explaining which legal criteria were used and how they were interpreted. A competence assessment should indicate what areas of functioning were evaluated, how they were evaluated, and what factors were considered relevant and why. Competence for one purpose should not be confused with competence for another or with criteria for general competence. Simple conclusory statements should be avoided as they can conceal hidden value judgments and can disguise such value judgments as psychiatric expertise. Some commentators have recommended that psychiatrists utilize the term ‘capacity’ in their assessments to clarify that competence is a legal determination. Others suggest that the psychiatrist should comment solely on a person’s mental status. Although competence is a legal concept, it is unclear why a forensic psychiatrist should not give his or her opinion about competence even though

this opinion does not have the same force as a legal determination. Admittedly, other non-psychiatric factors are relevant such as the nature of the medical problem and possible alternative treatments and psychiatrists may not be the most expert at assessing subtle cognitive deficits, but psychiatrists are probably more adept than any other member of the treatment team at considering the ways in which mental factors can impede decision making capacity. In an emergency situation, such as competence to give informed consent for urgent medical treatment, there may be insufficient time to take the case to court. There is no persuasive reason to relegate the assessment of the ultimate legal issue of competence by default to an internist in these situations. Forensic psychiatrists are especially suitable for assessing a person’s mental status and its potential for interfering with specific areas of functioning. If general psychiatrists are asked to make such assessments, forensic psychiatrists can provide consultation to them. It is important to specify all the reasoning and criteria so that areas of agreement and disagreement can be determined. Lack of clarity on these facets can lead to confusion regarding distinctions between professional opinions involving specific expertise and value judgments. Minor technical disagreements should be differentiated from psychiatric data pertinent to the legal criteria. For example, it may be irrelevant for a specific legal purpose whether a person suffers from bipolar disorder, schizoaffective disorder, or schizophrenia, if it is clear that the person harbors delusions. An attorney can use any lack of clarity to confuse the trier of fact. It is important to be clear about the differing aspects of competence so that a forensic psychiatrist can make a clear case to the trier of fact and can prevent attorneys from obfuscating the many areas of reliable and valid non-controversial data in psychiatry.

REFERENCES Berg, J.W., Appelbaum P.S., Parker, L.S., Lidz, C.W. 2001: Informed Consent: Legal Theory and Clinical Practice. New York: Oxford University Press. Brock, D., Wartman, S. 1990. When competent patients make irrational choices. New England Journal of Medicine 322, 1595–9. Diamond, B.L. 1959. The fallacy of the impartial expert. Archives of Criminal Psychodynamics 3, 221–36. Drane, J.H. 1984. Competency to give informed consent: a model for making clinical assessments. Journal of the American Medical Association 252, 925–7. Faden, R.R., Beauchamp, T.L. 1986: A History of Informed Consent. New York: Oxford University Press. Godinez v. Moran, 113 S.Ct. 2680 (1993). Grisso, T. 1986: Evaluating Competencies. New York: Plenum Press.

88 History and practice of forensic psychiatry Grisso, T., Appelbaum, P.S. 1998: Assessing Competence to Consent to Treatment: A Guide for Physicians and Other Health Professionals. New York: Oxford University Press. Gutheil, T.G., Appelbaum, P.S. 2000: Clinical Handbook of Psychiatry and the Law, 3rd edition. Baltimore: Lippincott, Williams & Wilkins. Koppelman, L.M. 1990. On the evaluative nature of competency and capacity judgments. International Journal of Law and Psychiatry 131, 309–29.

Poythress, N.G., Nicholson, R., Otto, R.K., et al. 1999: MACCAT-CA: The MacArthur Competence Assessment Tool-Criminal Adjudication. Odessa, Florida: Psychological Assessment Resources. Roth, L.H., Meisel, A., Lidz, C.W. 1977. Tests of competency to consent to treatment. American Journal of Psychiatry 134, 279–84.

12 Psychological autopsy TIM E. BOTELLO, LINDA E. WEINBERGER AND BRUCE H. GROSS

An area of work that is increasingly becoming a part of forensic psychiatry is that of psychiatric consultation to the office of the Medical Examiner or Coroner (ME/C) in assisting with manner of death determinations. One type of consultation is referred to as a psychological autopsy. Although most forensic psychiatrists do not routinely perform psychological autopsies, there is a growing need for such professional involvement, which includes cooperation and interaction with other forensic scientists. Moreover, some of the basic principles of forensic psychiatry should be easily applied to psychological autopsy evaluations.

purposes such as evidence in criminal and civil cases, and as support for congressional testimony. Robert Litman performed the first recorded psychological autopsy in 1958 at the request of Theodore Curphey, who was then the Los Angeles County Medical Examiner/Coroner. The case involved a forty-six-yearold man who drowned as a result of going off a pier. The psychological autopsy concluded that his death was not a suicide.

HISTORY

Contemporary death certificates have a category that reads, ‘Natural, Accident, Suicide, Homicide, or Undetermined’ (NASH classification). Approximately 5 to 20 per cent of all deaths are not clear as to the appropriate or correct manner of death; these unclear or uncertain deaths are called equivocal deaths. The ambiguity is usually between the modes of suicide versus accident. To resolve this ambiguity, a psychological autopsy may uncover psychological material that helps to clarify the manner of death. There are other cases that are determined as a suicide by the ME/C, but contested by family or significant others. A psychological autopsy may be helpful in these contested cases. Thus, the psychological autopsy evaluations stem from the demand for the ME/C to make a definitive determination on a decedent’s manner of death in ambiguous/equivocal cases and for the ME/C to re-evaluate the manner of death in contested cases of suicide. The psychological autopsy is an evaluation that focuses on the psychological aspects surrounding the death and, most notably, the decedent’s intention as related to his or her actions at the time of his or her death. The decedent’s intention is the differentiating aspect that defines a death as suicide rather than accident. A determination of suicide requires establishing that the death was both self-inflicted and intentional. For most ME/Cs, a determination of intentionality is the most difficult criterion for establishing the manner of death. Intent requires that the decedent

The psychological autopsy concept in death investigation was developed at the Los Angeles Suicide Prevention Center by Robert Litman, Norman Farberow, and Edwin Shneidman in an effort to determine more accurately a person’s role in his or her own demise. It was Shneidman who coined the term ‘psychological autopsy.’ ‘In essence, the psychological autopsy is nothing less than a thorough retrospective investigation of the intention of the decedent – that is, the decedent’s intention relating to his being dead – where the information is obtained by interviewing individuals who know the decedent’s actions, behavior, and character well enough to report on them.’ (Shneidman 1981, p. 326). Jacobs and Klein (1993) found that there were at least six purposes for psychological autopsies. These include: ‘(i) determine the mode of death; (ii) determine a person’s intention to die through retrospective reconstruction; (iii) determine why a person would choose suicide in terms of their motivation, personal philosophy, and psychodynamics; (iv) determine why a person would suicide at a particular time by analyzing the temporal precipitants; (v) serve as a research tool to aid in the understanding and prevention of suicide; and (vi) serve as a therapeutic tool to aid the survivors of suicide.’ (Jacobs and Klein 1993, p. 209). The authors added additional

EVALUATIONS

90 History and practice of forensic psychiatry

knew or had in his or her mind that a specific act would probably result in death. Psychological autopsies are useful whenever a retrospective psychological assessment can help determine the cause of death. In 1985, the California State Supreme Court case of Searle v. Allstate Life Insurance Company (a case of a decedent’s wife contesting the life insurance company’s decision not to give her the full life insurance benefits because of the suicide determination of her husband’s death) established a landmark ruling. The court opined that mental capacity was very relevant to the determination of whether an act of self-destruction was committed by the decedent with suicidal intent: ‘If the insured did not understand the physical nature and consequences of the act, whether he was sane or insane, then he did not intentionally kill himself.’ (Searle 1985, p. 439). In consideration of the court’s decision in the Searle v. Allstate Life Insurance Company case, the psychological autopsy should focus on the decedent’s mental capacity to form the intent to commit suicide and the factors that may have impaired his or her mental capacity to form that intent, such as alcohol, drugs, mental illness, or mental retardation. It should be noted that the presence of any of these factors does not in and of itself preclude the capacity to form the intent to kill oneself.

PSYCHOLOGICAL AUTOPSIES IN LOS ANGELES COUNTY In 1989, the USC Institute of Psychiatry, Law, and Behavioral Science began consulting with the Los Angeles County Department of Coroner’s Office in performing psychological autopsies. The cases evaluated were either equivocal (i.e., the coroner’s office was unsure if the death was a suicide or an accident) or contested (i.e., a family member or significant other protested the coroner’s determination that the death was a suicide). Prior to any case being referred for a full psychological autopsy, the Los Angeles County Department of Coroner’s Office requires that the next-of-kin sign an authorization and indemnification form. The signed authorization acknowledges the risks inherent in conducting a psychological autopsy which may include psychological trauma to surviving family members, prolongation of the grieving process, and possible revelation of intimate details concerning the death. We utilize a team approach consisting of USC Department of Psychiatry faculty members (forensic psychiatrists and forensic psychologists) and postdoctoral psychiatry and psychology fellows who work under the faculty’s supervision. In an effort to conduct the retrospective analysis of the decedent’s mental capacity to form the intent to kill him or herself, the psychological examiners need to review a number of sources of information. These include: the autopsy report; the ME/C

investigator’s report; police reports, if available; and laboratory data, including toxicology results. Next, it is necessary to contact the family, spouses, friends, employers, co-workers, neighbors, persons who witnessed the lethal act, family physicians, and therapists, if any, as well as other relevant parties. Prior to the interview, each person is informed that the material gathered from him or her is confidential to the coroner’s office only and cannot be released to any other party. The sources of information should be able to provide a picture of the decedent’s life-style and his or her behavior and mental state near the time of death. The contacts are made by telephone or face-to-face interviews. If available, it is important to review past medical records and/or past psychiatric records. In that the decedent is dead and there is a need for the ME/C to render a manner of death determination, the issue of confidentiality related to medical records is, in most cases, not a barrier to access information. Shneidman (1969) developed an outline of sixteen categories that might be included in a psychological autopsy. It is important to note that during the psychological autopsy evaluation, the forensic psychiatric/psychological examiners may contact people who are still in the grieving process. As forensic examiners/consultants to the office of the ME/C, the primary purpose of the psychological autopsy is not necessarily therapeutic; rather, our main objective is to gather information, in a sensitive manner, to determine the decedent’s mental capacity to form the intent to kill him or herself. It is our policy to suggest routinely to the distressed family members/ significant others that they seek outside counseling to help them deal with the grieving process, which may have been thwarted because of the delay in certification of death. Often, the survivors state spontaneously that the psychological autopsy was of therapeutic value to them by allowing them to vent their feelings about the decedent’s death and talk about the decedent’s life. When the psychological autopsy evaluation is completed, a written report is sent to the Los Angeles County Department of Coroner’s Office. This report is confidential to the coroner only, and includes the sources of information reviewed, the opinion concerning the decedent’s manner of death, and the data and reasoning basic to the opinion. This practice is well known to forensic mental health professionals who conduct confidential evaluations for referring parties. When the psychological autopsy report is submitted to the coroner, a conference is held with a number of forensic scientists present who are involved in assisting in the final determination of manner of death. These include pathologists, toxicologists, coroner investigators, and forensic psychiatrists/ psychologists. A general consensus is reached concerning the manner of death being suicide, accident, or undetermined. This opinion is then offered to the coroner for his consideration as to the final determination of the manner of death.

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RISK FACTORS ASSOCIATED WITH SUICIDE A number of studies have been reported that highlight factors associated with persons who commit suicide. The presence of any one feature does not clearly lead to suicidal behavior; rather, when such factors appear in combination with each other, an individual’s risk for suicide is greatly increased. Demographic features have proved significant as risk factors. Suicide rates increase with age and are the highest in persons older than 65 years (Barraclough et al. 1974; Baker 1996). Males are significantly more likely to commit suicide than females (Popoli, Sobelman, and Kanarek 1989; Murphy 2000). Divorced, separated, or widowed individuals have higher rates of suicide than married or single people, and people who never married are more likely to take their lives than married individuals (Popoli, Sobelman, and Kanarek 1989; Grinspoon 1986). Whites are more likely than other races to commit suicide (Pfeffer 1985; Murphy 2000). Another risk factor category is psychiatric illness. Many individuals who commit suicide suffer from some mental disorder at the time of their death. The two most common illnesses encountered are affective disorder and alcoholism (Rich et al. 1988; Grossman 1992; Brent et al. 1993a; Avis 1994; Shaffer et al. 1996; Lecomte and Fornes 1998; Weinberger et al. 2000). Individuals who suffer from schizophrenia also represent a high-risk group for suicide (Bleuler 1978). Roy (1982a, 1982b) found that among schizophrenics, young men in the earliest stages of their illness have the highest rate of suicide. In addition, personality features such as aggression, impulsivity, and hopelessness are related to suicidal behavior (Blumenthal 1988). The issue of an individual having a history of being ill, either physically or mentally, and obtaining treatment should be considered when identifying risk factors. Former psychiatrically hospitalized adult patients have a higher rate of suicide than non-patients (Shaffer 1988). It is also common for individuals to see a medical doctor shortly before committing suicide. These individuals may feel the need for help, perceive themselves as sick, or have a chronic, painful, terminal illness that makes them feel helpless and hopeless (Bhatia, Khan, and Sharma 1986). Interpersonal and life event factors are found to play a role in suicidal behavior. Instability or dysfunction within one’s domestic life is noteworthy, particularly for young people (Pfeffer 1981; Asarnow, Carlson, and Guthrie 1987; Marttunen, Aro, and Lonnqvist 1993; Adams, Overholser, and Lehnert 1994). In addition, social isolation and withdrawal are significant behaviors (Tabachnick et al. 1966). Recent, important losses such as the death or separation from an important relative or friend, loss of health, and significant financial and legal problems are identified as risk factors (Tabachnick et al. 1966; Litman 1989; Rich, Sherman, and Fowler 1990; Brent et al. 1993b; Brent 1995). Youth are especially susceptible to rejection by

significant others, humiliating life events, and disciplinary crises (Shaffer 1988). People who are contemplating suicide frequently give warnings. They may communicate clear threats or intentions, or even give indirect hints (Rosenberg et al. 1988). It is common among adolescents who commit suicide to make threats shortly before committing the act, and often they tell only a peer or sibling (Brent et al. 1988). Previous attempts at suicide as well as a family history of suicide are also viewed as risk factors (Shneidman and Farberow 1965; Kreitman 1977; Shafii et al. 1985; Grossman 1992; Bukstein et al. 1993; Brent et al. 1993a). Other factors have been found that are associated with suicidal behavior. Rosenberg et al. (1988) identified these as ‘phrases and criteria related to intent.’ They may be used to help determine whether the individual intended to kill him or herself. Making inappropriate or unexpected preparations for one’s death, such as giving away possessions, is viewed as an indicator. Other noteworthy factors are whether the individual obtained or learned about means of death or rehearsed fatal behavior, as well as evidence that the individual ‘recognized high potential lethality of means of death. Examples: A pharmacist or physician taking an overdose of a highly lethal drug, or the decedent’s “researching” different drugs to determine their degree of lethality.’ (Rosenberg et al. 1988, p. 1450). If the decedent took measures to avoid rescue, this would also reflect upon the individual’s intent to commit suicide.

CASE EXAMPLE The following case example represents an effort to illustrate the type of material to be gathered and considered when conducting a psychological autopsy. Certain details have been altered to protect the identity of the deceased and her family. The Los Angeles County Department of Coroner’s Office referred an equivocal case to the team of forensic doctors at the USC Institute of Psychiatry, Law, and Behavioral Science. The purpose of the psychological autopsy was to assist the coroner in making a more definitive manner of death determination. The case involved a forty-four-year-old divorced white female who was found nude lying at the bottom of her swimming pool by her sixteen-year-old daughter at around 5:00 p.m. The daughter last saw the decedent that morning at breakfast, before the daughter went to school. On the day of her death, the decedent saw her attorney about an upcoming court case. The decedent had a psychiatric history of depression and was in treatment with a psychiatrist who prescribed antidepressant medication (amitriptyline). A ‘suicide note’ was found in the kitchen. The team of doctors reviewed the autopsy report as well as past psychiatric hospitalization records, and interviewed the decedent’s daughter, boyfriend, employer,

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attorney, and treating psychiatrist. According to the daughter, the decedent was born and raised in Los Angeles. She attended high school and received two years of college education. She married at age twenty-seven and was divorced twelve years later. She had one daughter, age sixteen. She worked for the past six years as a secretary for a medical office. Her employer, Dr. X, described the decedent as a capable person who did not appear depressed for the several weeks prior to her death. The decedent was the older of two children from a middle-class Italian family. The decedent’s own mother had a history of depression and had been in psychiatric treatment. The decedent had a history of depression for the past five years. The daughter described the decedent as being increasingly depressed immediately following the divorce from her husband five years earlier. The decedent’s ex-husband is described as an alcoholic, who has not been making child support payments for the past several years. According to the psychiatric hospitalization records, the decedent was hospitalized at age thirty-nine for treatment of major depression. At that time, she felt depressed, had vegetative signs of decreased appetite, weight loss, anhedonia, lethargy, hopelessness, and suicidal ideation but no intent. The major precipitant was the divorce from her husband. According to Dr. Y, her treating psychiatrist for the past three years, the decedent was responding well to antidepressant medication. She kept her weekly appointments and was last seen several days prior to her death. At that time, she was not depressed and there was no suicide ideation elicited. The decedent was concerned about her sixteen-year-old daughter, who appeared increasingly depressed herself and was considering entering psychotherapy. Mr. G, the decedent’s boyfriend, discussed their three-year relationship. He stated they were close friends and had talked of getting married after his own business was more stable. He described the decedent as being depressed in the past. However, since being treated with the antidepressant medication, amitriptyline, over the past year, the decedent’s depression was much improved. He last saw her for dinner two days prior to her death. Nothing out of the ordinary or remarkable was noted by him. He talked to her on the telephone the night prior to her death. She was concerned about the upcoming court hearing regarding back child support payments from her ex-husband, but did not mention any depressive themes or feelings of being overwhelmed. The decedent’s attorney was interviewed by telephone. The attorney knew the decedent for six months. They had a meeting at noon on the day of the decedent’s death. The attorney noticed that the decedent was slightly anxious about the case, but seemed to feel relieved upon learning that the attorney was very optimistic about the outcome of her case. The daughter stated that her mother occasionally drank alcohol during the day, about two or three times a month. She would get intoxicated about once or twice a year at parties. She described the decedent as

having several close friends. The decedent often went swimming for exercise in the backyard pool. The daughter mentioned that her mother was a good swimmer who swam nude at times when she was by herself. On the day of her death, the decedent and her daughter had breakfast together at about 7:00 a.m. The decedent talked about working in the morning and going to see her attorney at lunchtime. The daughter returned home about 5:00 p.m. and found the decedent at the bottom of the swimming pool. The daughter called the paramedics. The paramedics pronounced the mother dead after unsuccessful cardiopulmonary resuscitation (CPR) attempts. A notebook was found on the kitchen counter. On one page was a grocery list; on the second page was written, ‘Life is not worth living. Life has too many problems.’ When questioned about this, the daughter admitted that she herself wrote the note containing the depressive themes, and that the decedent wrote the grocery list. The handwriting of the grocery list was different from the handwriting of the ‘suicide note.’ The daughter’s handwriting was very similar to that of the ‘suicide note’ and not the grocery list, while the decedent’s handwriting was determined to be very similar to the grocery list. Autopsy findings were consistent with death from drowning. Toxicological results revealed blood alcohol equal to 0.27 g/100 ml, and there was a therapeutic level of amitriptyline in the blood. After obtaining material from all of the sources of information, a team of forensic psychiatrists and forensic psychologists met in conference and discussed the arguments for and against a determination of suicide. Those features that were associated with a risk to commit suicide were the white race, age of the decedent, and her divorced marital status. In addition, she had a history of psychiatric hospitalization and current treatment for depression, and had expressed feelings of hopelessness in the past. There were some features that appeared initially to weigh on the side of suicide, but upon further examination they did not support this conclusion. 1 The decedent was divorced. However, the divorce was not a recent occurrence and she was involved presently in a long-term significant relationship with her boyfriend. She was not lonely or isolated, but rather had several close friends. 2 The decedent had a five-year history of mental illness (viz., major depression) and expressed some suicidal ideation when she was first ill. She was in treatment at the time of her death. However, according to her psychiatrist, she was responding well to psychiatric treatment including antidepressant medication. She was last seen several days prior to her death and was not viewed as depressed. In addition, she never made any suicide attempts and expressed no suicidal ideation since her first hospitalization.

Psychological autopsy 93

3 The decedent had financial difficulties; however, these were not acute, but rather chronic problems. Furthermore, she was actively trying to solve her financial situation by going to court to seek back child support payments from her ex-husband. 4 The court case may have been a stressor for the decedent, yet the decedent’s attorney told her on the day of her death that she was very optimistic about the outcome of the court case. 5 It may seem that the decedent took precautions to avoid rescue by swimming alone when no one was at home. On the other hand, she had a history of swimming alone and was a good swimmer. 6 The decedent had a significant blood-alcohol level. The daughter described the decedent as drinking alcohol to celebrate certain occasions, and believed that the decedent was celebrating her meeting with her attorney and hearing the positive information about the upcoming court case. An important consequence of her drinking may be that the decedent’s mental impairment from the alcohol intoxication could have diminished her ability to swim. 7 A ‘suicide note’ was found in the kitchen. Upon further investigation and comparison, however, it was discovered that the decedent had not written the note; rather, it was written by the daughter who was recently depressed herself prior to her mother’s death. Finally, there were other factors present that did not support suicide. The decedent had a full-time job, was satisfied with it, and was performing well. Additionally, there was no family history of suicide. Further, the decedent made no preparations for her death. In conclusion, what may have appeared to be a suicidal death was not supported by the psychological autopsy. In examining retrospectively the decedent’s mental capacity at the time of her death, it could be stated that she was impaired to such a degree that she could not have formed the intent to commit suicide. We believed that her intoxication level might have weakened both her physical skills (i.e., ability to swim) and cognitive capacity (i.e., ability to realize the extent of her intoxication and understand its consequences on her swimming ability, thus placing her at high risk for serious harm). Moreover, given the material we had, there were few significant risk factors present that would support a suicidal death. That is, the psychological autopsy did not uncover factors that sufficiently established a mental state that would lead to suicide. As stated earlier, we always suggest to family, friends, and significant others that they consider seeking counseling and/or treatment regarding any possible psychological trauma resulting from the decedent’s death. In this particular case, the daughter was encouraged strongly to follow through with her plans to enter psychotherapy. The case was presented and discussed at the mode conference held at the Los Angeles County Department of Coroner’s Office. The forensic scientists agreed that

the manner of death was ‘accident’ and not ‘suicide.’ The coroner’s final determination was ‘accident.’

CONCLUSIONS The principles followed in forensic psychiatry can be applied to the legal issue of manner of death. That is, a psychological autopsy should be a forensic psychiatric report that renders a psychiatric-legal opinion regarding manner of death based on relevant data and reasoning. In performing the psychological autopsy, the forensic psychiatrist becomes part of a team of forensic scientists, for example, ME/C investigator, pathologist, and toxicologist, who share and contribute information and opinions. From our experience with the Los Angeles County Department of Coroner’s Office and other ME/C offices throughout the country, there is an unmet need for psychological autopsies. The psychological autopsies performed by forensic psychiatrists can be a great asset for the Medical Examiner/Coroner in making manner of death determinations in equivocal and contested cases.

REFERENCES Adams, D.M., Overholser, J.C., Lehnert, K.L. 1994. Perceived family functioning and adolescent suicidal behavior. Journal of the American Academy of Child and Adolescent Psychiatry 33, 498–507. Asarnow, J.R., Carlson, G.A., Guthrie, D. 1987. Coping strategies, self-perceptions, hopelessness, and perceived family environments in depressed and suicidal children. Journal of Consulting and Clinical Psychology 55, 361–6. Avis, S.P. 1994. Suicidal gunshot wounds. Forensic Science International 67, 41–7. Baker, F.M. 1996. An overview of depression in the elderly: a U.S. perspective. Journal of the National Medical Association 88, 178–84. Barraclough, B., Bunch, J., Nelson, B., Sainsbury, P. 1974. A hundred cases of suicide: clinical aspects. British Journal of Psychiatry 125, 355–73. Bhatia, S.C., Khan, M.H., Sharma, A. 1986. Suicide risk: evaluation and management. American Family Physician 34, 167–74. Bleuler, M. 1978: The Schizophrenic Disorder: Patient Long-term and Family Studies. New Haven, CT: Yale University Press. Blumenthal, S.J. 1988. Suicide: a guide to risk factors, assessment, and treatment of suicidal patients. Medical Clinics of North America 72, 937–71. Brent, D.A. 1995. Risk factors for adolescent suicide and suicidal behavior: mental and substance abuse disorders, family environmental factors, and life stress. Suicide and Life-Threatening Behavior 25, 52–63.

94 History and practice of forensic psychiatry Brent, D.A., Perper, J.A., Goldstein, C.E., et al. 1988. Risk factors for adolescent suicide. A comparison of adolescent suicide victims with suicidal inpatients. Archives of General Psychiatry 45, 581–8. Brent, D.A., Perper, J.A., Moritz, G., et al. 1993a. Psychiatric risk factors for adolescent suicide: a case-control study. Journal of the American Academy of Child and Adolescent Psychiatry 32, 521–9. Brent, D.A., Perper, J.A., Moritz, G., et al. 1993b. Stressful life events, psychopathology, and adolescent suicide: a case control study. Suicide and Life-Threatening Behavior 23, 179–87. Bukstein, O.G., Brent, D.A., Perper, J.A., et al. 1993. Risk factors for completed suicide among adolescents with a lifetime history of substance abuse: a case-control study. Acta Psychiatrica Scandinavica 88, 403–8. Grinspoon, L. (ed.) 1986. Suicide-part 1. The Harvard Medical School Mental Health Newsletter 2, 1–4. Grossman, D.C. 1992. Risk and prevention of youth suicide. Pediatric Annals 21, 448–9, 452–4. Jacobs, D., Klein, M.E. 1993. The expanding role of psychological autopsies. In Leenaars, A.A. (ed.), Suicidology: Essays in Honor of Edwin S. Shneidman. Northvale, NJ: Jason Aronson Inc., 209–47. Kreitman, N. (ed.) 1977: Parasuicide. New York: John Wiley and Sons. Lecomte, D., Fornes, P. 1998. Suicide among youth and young adults, 15 through 24 years of age. A report of 392 cases from Paris, 1989–1996. Journal of Forensic Sciences 43, 964–8. Litman, R.E. 1989. 500 psychological autopsies. Journal of Forensic Sciences 34, 638–46. Marttunen, M.J., Aro, H.M., Lonnqvist, J.K. 1993. Precipitant stressors in adolescent suicide. Journal of the American Academy of Child and Adolescent Psychiatry 32, 1178–83. Murphy, S.L. 2000. Death: final data for 1998. National Vital Statistics Reports 48, 1–105. Pfeffer, C.R. 1981. The family system of suicidal children. American Journal of Psychotherapy 35, 330–41. Pfeffer, C.R. 1985. Self-destructive behavior in children and adolescents. Psychiatric Clinics of North America 8, 215–26.

Popoli, G., Sobelman, S., Kanarek, N.F. 1989. Suicide in the State of Maryland, 1970–80. Public Health Reports 104, 298–301. Rich, C.L., Ricketts, J.E., Fowler, R.C., Young, D. 1988. Some differences between men and women who commit suicide. American Journal of Psychiatry 145, 718–22. Rich, C.L., Sherman, M., Fowler, R.C. 1990. San Diego suicide study: the adolescents. Adolescence 25, 855–65. Rosenberg, M.L., Davidson, L.E., Smith, J.C., et al. 1988. Operational criteria for the determination of suicide. Journal of Forensic Sciences 33, 1445–56. Roy, A. 1982a. Risk factors for suicide in psychiatric patients. Archives of General Psychiatry 39, 1089–95. Roy, A. 1982b. Suicide in chronic schizophrenia. British Journal of Psychiatry 141, 171–7. Searle v. Allstate Life Insurance Company. 38 Cal. 3d 425 (1985). Shaffer, D. 1988. The epidemiology of teen suicide: an examination of risk factors. Journal of Clinical Psychiatry 49, 36–41. Shaffer, D., Gould, M.S., Fisher, P., et al. 1996. Psychiatric diagnosis in child and adolescent suicide. Archives of General Psychiatry 53, 339–48. Shafii, M., Carrigan, S., Whittinghill, J.R., Derrick, A. 1985. Psychological autopsy of completed suicide in children and adolescents. American Journal of Psychiatry 142, 1061–4. Shneidman, E.S. 1969. Suicide, lethality, and the psychological autopsy. International Psychiatry Clinics 6, 225–50. Shneidman, E.S. 1981. The psychological autopsy. Suicide and Life-Threatening Behavior 11, 325–40. Shneidman, E.S., Farberow, N.L. 1965. The Los Angeles Suicide Prevention Center: a demonstration of public health feasibilities. American Journal of Public Health 55, 21–6. Tabachnick, N., Litman, R.E., Osman, M., et al. 1966. Comparative psychiatric study of accidental and suicidal death. Archives of General Psychiatry 14, 60–8. Weinberger, L.E., Sreenivasan, S., Gross, E.A., et al. 2000. Psychological factors in the determination of suicide in self-inflicted gunshot head wounds. Journal of Forensic Sciences 45, 815–19.

PART

2

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13 Informed consent and competency Harold I. Schwartz and David M. Mack

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14 Hospitalization: voluntary and involuntary Harold I. Schwartz, David M. Mack and Peter M. Zeman

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15 Involuntary civil commitment to outpatient treatment Robert D. Miller

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16 The right to treatment Jeffrey L. Geller

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17 Treatment refusal in psychiatric practice Debra A. Pinals and Steven K. Hoge

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18 Confidentiality and testimonial privilege Ralph Slovenko

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19 The duty to protect Alan R. Felthous and Claudia Kachigian

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20 Treatment boundaries in psychiatric practice Robert I. Simon

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21 Sexual misconduct in the therapist–patient relationship Robert I. Simon

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22 The law and physician illness Stephen L. Dilts and Douglas A. Sargent

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13 Informed consent and competency HAROLD I. SCHWARTZ AND DAVID M. MACK

THE ISSUE: EVOLUTION OF A DOCTRINE The concept of informed consent is well established in law; competent patients have a right to make informed treatment decisions for themselves, free from coercion. The translation of this seemingly straightforward principle into clinical practice, however, has been fraught with confusion and dissent while courts have expanded the liability of practitioners for failing to obtain informed consent for psychiatric treatments (Beahrs and Gutheil 2001). As Roth (1985) notes, the concept is relatively new, the term ‘informed consent’ having first been introduced in a 1957 California case, Salgo v. Leland Stanford Junior University Board of Trustees. The concept has evolved since Salgo, influenced by new case law, ethical considerations and changed standards of clinical practice (Meisel and Kabnick 1980). Recent developments in informed consent law and clinical practice include case law around informed consent for psychotherapy, fueled by the recovered memory controversy (Lipton 1999) and other cases; evolving standards for consent to research with psychiatrically disordered populations (Pinals and Appelbaum 2000) and the involuntary administration of medication (see Chapter 17). Most recently, controversies around end-oflife decision making and physician-assisted suicide have focused on competency assessments and the role of psychiatrists in competency determinations (Ganzini et al. 2000). Questions remain around the definition and application of some of the core principles of the informed consent doctrine. Significant confusion continues to surround the definition of competency (Schwartz and Roth 1989), in part because the courts have remained vague on the subject (Meisel 1979). Despite ambiguity in the law, the past decade has seen significant efforts to clarify the clinical practice of competency assessment (Grisso and Appelbaum 1998) and to establish standardized objective measures of competency (Grisso, Appelbaum and

Hill-Fotonhi 1997). That discussions of informed consent remain fraught with controversy may reflect the degree to which the traditional values of medical paternalism seem to conflict with a mandate to promote individual autonomy (Pernick 1982). Some physicians remain reluctant participants in a practice intended to shift the balance of power in medical decision making from the physician to the patient (Stone 1979). Psychiatry stands in a unique and somewhat paradoxical position with regard to informed consent. Because psychiatrists have long been engaged in discussion-based treatments with patients that require their patients’ fullest cooperation, and because these discussions often touch on questions of individual autonomy, psychiatrists may be more accustomed to discussing questions of personal responsibility for treatment decisions with their patients than physicians in other specialties. In this regard, their experience may lead them to value patient autonomy in medical decision making more than others. At the same time, the psychoanalytic tradition, which underlies many talk-based therapies, is not conducive to extensive disclosure by the clinician and efforts by patients to obtain information about the treatment process have often been labeled as resistance. In the role of consultant to medical and surgical colleagues, assessing competency when patients refuse treatment, many psychiatrists have developed expertise around these issues and are comfortable contending with the balance of values underlying complex competency disputes. The growing complexity of issues surrounding treatment refusal at the end of life (Sullivan and Youngner 1994) has extended most recently to the debate about physician-assisted death and the role of psychiatric assessment of competency of patients requesting hastened death (Ganzini et al. 2000). This chapter discusses the development of the informed consent doctrine and clinical/legal concepts of competency and their application to clinical practice.

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Legal and social history INFORMED CONSENT: THE SALGO CASE The requirement that patients consent to treatment had long been established in common law when, in 1914, Justice Benjamin Cardozo wrote in Schloendorff v. Society of New York Hospital that ‘Every human being of adult years and sound mind has a right to determine what shall be done with his own body.’ It was not until the Salgo case in 1957, however, that the concept of informed consent was elaborated. In that case, a patient who had experienced a spinal cord injury due to a translumbar aortography claimed that he had not been informed of the risks before the procedure. The court ruled that physicians will be liable if they withhold facts that are ‘necessary to form the basis of an intelligent consent.’ Here, for the first time, a court had emphasized that the patient’s right to consent required disclosure of the facts necessary to make an informed decision.

ELEMENTS OF DISCLOSURE AND THE ‘REASONABLE MEDICAL PRACTITIONER’ STANDARD In Natanson v. Kline (1960), a Kansas court developed the doctrine further by outlining the kinds of information or the elements of disclosure thought to be necessary for decision making by the patient. In the Natanson case the patient, claiming to have been inadequately informed of the risks of treatment beforehand, was burned by cobalt irradiation following a mastectomy. The elements of disclosure required by the court included the nature of the patient’s illness, the nature of the proposed treatment and its likelihood of success, the risks of untoward outcomes, and the availability of alternative modes of treatment. The court set limits on the amount of information that had to be disclosed about each of these elements by establishing what has come to be known as the ‘reasonable medical practitioner’ standard. Under this rule, the physician would be required to disclose only that which the reasonable medical practitioner would disclose under similar medical circumstances. This standard assumes that a consensus exists within the medical profession regarding what constitutes appropriate disclosure.

THE ‘REASONABLE PERSON’ STANDARD The reasonable medical practitioner standard came under significant challenge in the 1970s. In Canterbury v. Spence, a 1972 Washington, DC, case, the court proposed that standards of disclosure be based on that which a ‘reasonable person’ would find material to clinical decision making. It is of note that although the reasonable person standard shifts the focus from what clinicians generally do to what patients might want to know, neither the Canterbury decision nor the decision in Cobbs v. Grant, a related 1972 California case, actually required

that disclosure be formulated around the needs of a particular individual patient. These courts instead focused on what a hypothetical reasonable person would want to know, probably in an effort to balance expansion of the patient’s right to reasonable disclosure with concerns about the expansion of malpractice liability that might follow (President’s Commission 1982). Nevertheless, a physician should disclose any information the physician has reason to believe the patient would want to know, in addition to that information a reasonable person would want to know.

Other influences The evolution of the doctrine of informed consent cannot be adequately depicted by simply restating the major twentieth century legal cases that have shaped it. Here, we can only suggest the variety of historical, cultural, and social forces that have influenced the doctrine and direct the reader elsewhere for greater detail. The legal and ethical theory that underlie the development of the informed consent doctrine are well reviewed by Appelbaum, Lidz, and Meisel (1987). Faden and Beauchamp (1986) review the ethical conflict between paternalistic models of physician-driven decision making and the value of individual autonomy. Katz (1984a) reviews the complicated interface of professional, cultural, and psychological issues that have influenced the development of clinical practice and informed consent law. Important precedents in the twentieth century include the Nuremberg Code, which established informed consent requirements for human research, later reflected in informed consent requirements for treatment. Among other cultural phenomena whose influence has been important, though difficult to gauge, has been the development of medical consumerism (Schwartz and Roth 1989). Based on the civil rights and consumer movements of the past generation, medical consumerism has been marked by increased demands for information and patient participation in decision making. This has been fueled, in part, by the diminution of the role of the general practitioner and the fragmentation of care inherent in the growth of subspecialization. The structure of healthcare delivery systems may also have a profound impact on the evolution of informed consent. In Great Britain, the National Health Service is dependent on rigidly limited prospective funding. There is little room for patient choice on many matters, and hence there has been little opportunity for the development of informed consent practice as we know it in the United States (Schwartz and Grub 1985).

The impact of managed care The managed care movement has had a deleterious impact on informed consent practice in several ways.

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The decreased amount of time that a physician can spend with each patient has diminished the opportunity for reflection and discussion which truly informed consent requires. The time constraint issue is compounded by the increased paperwork and telephone time needed for precertifications and utilization management. The most serious threat to informed consent has been the ‘gag rule’ clause which some managed care companies have required in their contracts with care providers. These clauses have explicitly prevented physicians from disclosing treatment choices which are not available secondary to limitations of the patient’s insurance plan. In response, the American Psychiatric Association has revised its ethics code to require explicitly that patients be informed ‘of financial incentives or penalties which limit the provision of appropriate treatment’ (American Psychiatric Association 1998) and various states have enacted patient protection legislation that bans the use of gag rules by managed care companies.

THE COMPONENTS OF INFORMED CONSENT AND CRITERIA FOR COMPETENCY ASSESSMENT The doctrine of informed consent requires that a patient be competent in order to consent to treatment, that the consent be informed, and that it be given free of coercion. Thus, the three fundamental components of informed consent are information (disclosure), voluntariness, and competency.

Information (disclosure) The disclosure of information is central to the process of informed consent. The elements of disclosure were formulated in the Natanson v. Kline case (1960). Patients must be informed of the nature of their illness and of the treatment proposed. Patients must be informed of the risks and benefits that might reasonably attach to the treatment as well as the risks and benefits of alternative treatments and the consequences of no treatment (Meisel, Roth, and Lidz 1977). The reluctance of physicians to disclose information remains an impediment to informed consent. Although many clinicians behave as though disclosure may be harmful, there is little empirical evidence that disclosure of information has, in fact, been harmful to patients (Meisel and Roth 1981). In fact, there is evidence to the contrary. For example, while many physicians have been concerned that providing detailed information about the risks of tardive dyskinesia may lead to neuroleptic non-compliance, at least one systematic study has found that providing such information in a comprehensive fashion did not deter patients from continuing with neuroleptic medication (Munetz and Roth 1985).

Voluntariness The issue of voluntariness seems straightforward only in the extreme, that is, when the patient is forcefully coerced and informed that voluntary consent is not possible. More often the issue of voluntariness is less straightforward, as the clinician must distinguish between coercion and appropriate persuasion in his or her attempt to influence the patient’s behavior. Empirical efforts to delineate this distinction have proceeded with great difficulty (Meisel and Roth 1983). To be sure, there are elements of the doctor–patient relationship, the regression inherent in physical illness, and the influence of institutionalization, which taken together or individually, may predispose to coercion. The most widely discussed case bearing on voluntariness is Kaimowitz v. Michigan Department of Mental Health (1973). The Kaimowitz court found that involuntarily confined mental patients live in an inherently coercive institutional environment and that it would be impossible for an involuntarily hospitalized patient to feel free of coercion when his or her release from the hospital might depend on his/her consenting to experimental psychosurgery. It is difficult to generalize from this case to the treatments routinely used in psychiatric practice.

Competency The subject of competency to consent to or refuse treatment continues to arouse controversy and confusion. Adults are presumed to be competent unless adjudicated otherwise. Minors are considered to lack competency to consent. Such competency (or incompetency) de jure usually refers to global or general competency. Despite the presumption of de jure competency, patients may in fact (de facto) lack competency to make specific treatment decisions. Psychiatrists are generally called to evaluate a patient’s de facto competency to refuse (or sometimes to accept) a specific treatment. Such specific competencies have been referred to as partial or clinical competency or decisional capacity. The use of the term ‘decisional capacity’ avoids the confusion surrounding the use of the term ‘competency.’ The controversy that surrounds the issue of competency determinations emanates largely from the failure of the courts to establish a consensus on accepted standards for incompetency and the absence of a consensus on appropriate procedures for competency determinations (Appelbaum, Lidz, and Meisel 1987). In a seminal review of the subject, Roth, Meisel, and Lidz (1977) summarized the criteria by which competency assessments are made. These include evidence that the patient: (i) actually evidences a choice; (ii) evidences a choice that the clinician believes will lead to a reasonable outcome; (iii) appears to apply rational reasoning to the decision-making process; (iv) has the ability to understand the information that

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has been disclosed; and (v) actually understands that information. Other commentators have emphasized appreciation of the disclosed information as an important criterion for competency assessment above and beyond understanding (Appelbaum and Roth 1982; Drane 1985; Grisso and Appelbaum 1998). These criteria can be thought of as encompassing four activities that are basic to competent decision making: choosing; understanding; reasoning; and appreciating (Appelbaum and Roth 1982). The criterion that appears to be least restrictive or most protective of the patient’s autonomy is evidencing a choice. While evidencing a choice is seldom used alone as a standard in competency assessment, it may more commonly be used in combination with reasonableness of outcome for assessing competency to make certain very low-risk decisions. This has not infrequently been the case in accepting patients’ decisions to voluntarily admit themselves for psychiatric hospitalization. In Zinermon v. Burch (1990) the U.S. Supreme Court cast doubt on this practice by seeming to suggest that voluntary patients may require screening for competency in order to admit themselves to the hospital (Appelbaum 1990). The impact of the Zinermon case on practice has been limited to date (see Chapter 14). While examination of the reasoning process by which a patient makes a decision is often useful in competency assessment, there is, in fact, no legal requirement that an individual’s thought processes be entirely rational to be considered competent. Individuals who are delusional or even formally thought disordered may be capable of making competent treatment decisions, especially if they are able to demonstrate understanding despite their symptoms. This is often the case with patients whose circumscribed delusional system is unrelated to the treatment decision at hand. Understanding is clearly the criterion that the courts most often equate with competency (Meisel 1979; Appelbaum, Lidz, and Meisel 1987). While the courts have blurred the distinction between being informed and understanding, and between the ability to understand and actual understanding, it is clear that the demonstration of understanding of disclosed information is generally required to meet the ethical and legal requirements of informed consent. However, this standard may be inadequate in certain high-risk decision-making situations. The highest form of understanding may be thought of as appreciation, a condition with both cognitive and emotional components (Drane 1985; Appelbaum and Roth, 1982; Grisso and Appelbaum 1998). One can easily imagine a situation in which a patient, employing massive denial of illness, refuses potentially life-saving treatment. The patient may be able to reflect understanding of all that he or she has been told about his/her condition and the treatments being offered, but through the employment of denial he/she may be unable to grasp the meaning of this information in his/her own life. In certain very high-risk decisions the application of an appreciation standard is

appropriate. Decisional capacity is most often assessed during a clinical interview. Grisso and Appelbaum (1998) urge that such interviews be developed with the relevant criteria in mind and a plan to assess them systematically. The MacArthur Competence Assessment Tool (MacCATT) is a structured assessment instrument designed for use across clinical populations and treatment issues (Grisso, Appelbaum, and Hill-Fotonhi 1997).

Choosing criteria for competency assessment It has been implicit in our discussion of competency criteria that, in each and every competency assessment, criteria must be selected by which the patient’s decisional capacity will be judged. We have also indicated that the selection of criteria is influenced by the degree of risk inherent in the treatment decision. This approach was formulated by Roth and colleagues (1977) as a model for competency assessment based on the risk–benefit ratio of treatment. Drane (1985) revised this model into a sliding scale. The principle is the same in either model: as the consequences of a patient’s decision to consent to or refuse treatment become more serious, the criteria for assessing competency should become more stringent. The President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (1982) has endorsed the principle of linkage between the criterion chosen to assess capacity and the consequences of the decision that the patient is asked to make. Some commentators (Appelbaum, Lidz, and Meisel 1987) have urged adherence to a single standard for competency assessment (understanding being the most broadly accepted single standard). However, because there can be a broad range in definitions of understanding and subjectivity is involved in its assessment, some application of a sliding scale or risk–benefit ratio model is appropriate, if only to help select between various levels of understanding. Although the application of variably stringent criteria can be paternalistically abused (if the reviewer does not approve of the outcome of the patient’s decision he or she can raise the criterion until the patient is found to lack capacity), this model can also allow for a clinically appropriate balancing between the values of health and autonomy. In another version of the sliding scale, Grisso and Appelbaum (1998) employ the model of a balance scale with autonomy at one end and protection at the other. The patient’s decision-making capacities add weight to the autonomy end, while increasing risk inherent in the decision adds weight to protection and, if great enough, may override the bias in favor of autonomous decision making.

Exceptions to informed consent There are four exceptions to informed consent. These have been reviewed elsewhere (Meisel 1979) and will be only

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briefly discussed here. Incompetency is the first and most obvious exception. Patients must be competent in order to give informed consent and they cannot be expected to provide it if they are found to lack decisional capacity. This does not imply that an incompetent patient should be excluded entirely from the decision-making process. It is important to remember that a patient’s decisional capacity may change during the treatment process as a result of treatment (Appelbaum and Roth 1981), or as a matter of the natural evolution of the patient’s mental disorder (Roth 1985), or as the nature of the treatment decision facing the patient changes (Schwartz and Blank 1986). The state of medical emergency creates the second exception to the requirement for informed consent. When there is an imminent danger of serious harm to an incapacitated patient or others, treatment (limited to that which is necessary to address the imminently dangerous condition) may be given until the emergency passes. As a matter of law, the patient’s consent to treatment is implied during an emergency when consent cannot be obtained. While the definition of a medical emergency is subject to controversy, the right-to-refuse-treatment cases have recognized an emergency exception to consent (Roth 1985). Patient waivers constitute the third exception. A patient may waive the right to decide for herself. Good clinical practice would require that the physician pursue the matter with the patient in order to ascertain that the waiver truly represents the patient’s wishes. Therapeutic privilege represents the fourth exception. Therapeutic privilege allows the physician to withhold information from a patient when to provide it would clearly harm the patient. This is especially applicable if the information would cause a high degree of psychological distress and impair the patient’s decision-making capacity as a result. Therapeutic privilege can easily be abused. It is clearly not intended to allow the physician to withhold information simply because he or she believes that provision of that information will lead the patient to refuse treatment. Case law supports the conclusion that the privilege is extremely limited in application. Indeed, such limitation was noted in Canterbury v. Spence, where the court stated that the privilege was limited ‘lest the privilege devour the disclosure rule itself.’ The application of this concept is reviewed elsewhere (Somerville 1984). Statutory provisions in some states for involuntary treatment without informed consent may be considered an additional exception (American Psychiatric Association Resource Document 1997).

OBTAINING THE DATA: THE INFORMED CONSENT PROCESS Obtaining informed consent is often conceived of as a specific time-limited event: the physician comes to the

bedside, discloses information to a patient who acknowledges understanding it, and signs a form to document his or her consent. This event model may be convenient for the physician and hospital staff, but as Appelbaum, Lidz, and Meisel (1987) argue, it may also perpetuate the belief that informed consent is a charade. In place of this event model, these authors (Lidz, Appelbaum, and Meisel 1988) propose a process model in which informed consent is viewed as an ongoing process or dialogue between physician and patient throughout the course of treatment. In this model, the physician presents information to the patient in a discussion-like format, attending to the patient’s level of sophistication and intelligence, and tailoring information to the patient’s needs (Stanley 1983). The patient should be encouraged to ask questions and ultimately should understand the rationale behind the physician’s offered treatment options. The patient should be encouraged to consult with family and friends, and be given adequate time to consider and to ask additional questions. The physician must be prepared to return to the subject in the future as needs dictate. The physician should facilitate consideration of the patient’s needs and wishes in the decision-making process. All informed consent discussions should be carefully documented in the chart. The signing of a consent form is all too often substituted for a truly informed consent process. While physicians and patients alike believe that the primary purpose of the consent form is to protect doctors from lawsuits (Harris, Boyle, and Bromsetin 1982), in fact, the presence of a signed generic consent form rarely provides adequate legal protection if adequate information has not been disclosed and the informed consent discussion, including specifics of the disclosure, has not been documented in the chart. Failure to obtain informed consent can stand alone as the basis for a battery or negligent nondisclosure lawsuit.

Clinical applications HOSPITALIZATION Many states require that patients give written informed consent for voluntary psychiatric hospitalization (Roth 1985), an expansion of the customary practice for medical and surgical procedures. At the same time, a number of empirical studies suggest that patients admitted to psychiatric hospitals very often do not understand the voluntary admission process (Olin and Olin 1975; Appelbaum, Mirkin, and Bateman 1981). In states where written informed consent is required, patients who are unable to demonstrate adequate understanding would have to be hospitalized involuntarily, and yet these same patients may not meet criteria for commitment (Appelbaum 1990). As indicated above, the Supreme Court has required that in states with such a competency requirement, mechanisms must be in place to assure that

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the patient is indeed competent upon voluntary admission (Zinermon v. Burch, 1990) (see Chapter 14.) A common clinical practice that violates the spirit of informed consent is the use of the threat of commitment to coerce a patient into voluntary admission (Schwartz and Roth 1989). This often occurs when a patient, clearly in need of hospitalization, does not quite meet the criteria for involuntary admission, though the clinician is wary of the clinical and legal consequences of discharging the patient from the emergency room (Rachlin and Schwartz 1986). In fact, many patients believe that their only alternative to voluntary hospitalization is to be hospitalized involuntarily (Gilboy and Schmidt 1971). Since informed consent requires voluntariness (the absence of coercion) and an accurate disclosure of options, the patient can hardly be considered to have given informed consent for hospitalization under these circumstances.

MEDICATION AND ELECTROCONVULSIVE THERAPY The administration of psychotropic medication is the most common psychiatric intervention that requires consent. Antipsychotic medications raise the greatest concern because of the risk of tardive dyskinesia and other side effects, but certainly antidepressants, anticonvulsants, and antianxiety agents all have attendant risks requiring disclosure. Antipsychotics are often introduced when the patient’s decisional capacity is impaired by illness. Although delay of disclosure to the acutely psychotic, agitated, and disorganized patient may be warranted for a brief time (American Psychiatric Association Resource Document 1997), any delays beyond resolution of the patient’s acute disorganization are not legitimate (Halleck 1980; Roth 1983) and may create a potentially significant liability (Munetz 1985; Wettstein 1985) since mentally ill persons do not lose their right to informed consent merely because of mental illness. Lidz and colleagues (1984) review the many resistances by practitioners to appropriate informed consent discussions about neuroleptics. The right to refuse treatment is further discussed in Chapter 17. Electroconvulsive therapy (ECT), one of the few medical ‘procedures’ available in psychiatry, requires anesthesia and, in virtually all institutions, written consent forms. Patients must be informed of the risks of anesthesia and the complications secondary to ECT itself, including that of transient memory loss. Competent patients must give informed consent for ECT and, though exceptions exist, most statutory regulations require that when competency is in question, consent must be obtained from the courts (Levine et al. 1991). In In re Branning, an Illinois appeals court ruled that guardians cannot consent to ECT for their wards absent a finding of incompetency of the ward to make such a treatment decision. In Matter of A.M.P., another Illinois appellate decision, the court held that parents of a sixteen-year-old (who was non-communicative,

psychotic and failing other treatments) could not consent to ECT for their child without judicial review.

CONSULTATIONS TO OTHER SERVICES Treatment refusal by hospitalized medical or surgical patients commonly leads to a consultation for competency assessment by the psychiatrist. Much less frequently, concerns that a consenting patient may lack capacity will also lead to a consultation. It is important to remember that while the psychiatrist’s task is to evaluate the patient’s decisional capacity, and to recommend appropriate interventions that may enhance that capacity, he or she is not there to actually obtain the patient’s consent – that remains the obligation of the patient’s treating physician. The detection of overlooked medical conditions (delirium is probably the most common example) should lead to suggestions for further work-up and treatment, which may also resolve the patient’s apparent decisional incapacity. At times, ascertaining the meaning of the patient’s consent or refusal may facilitate a psychodynamically informed intervention that could enhance the patient’s decisional capacity. While the psychiatrist-consultant renders an opinion about the patient’s decisional capacity and may further opine as to the likely outcome were a competency hearing to be held, it is often necessary to remind the referring physician that only the courts declare people legally incompetent. Elements of the psychiatric interview sufficient to establish the patient’s mental status must be performed. Since competency is a shifting phenomenon, and is influenced by alterations of the patient’s mental status and evolving responses to treatment, it is often necessary to evaluate the patient over time in several interviews (Schwartz and Blank 1986). Appelbaum and Roth (1981) have emphasized the importance of clarifying with the referring physician the nature and extent of the information that has actually been presented to the patient; it would be impossible to assess the patient’s understanding without knowing the nature of the disclosure that has been made. Circumscribed delusional thinking may be detected by clarifying with others the information that the patient has been provided.

PSYCHOTHERAPY Psychotherapy has been an area of clinical practice to which informed consent is infrequently applied, though the ethical guidelines of the American Psychological Association (1992) explicitly and of the American Psychiatric Association (1998) implicitly require it. Clearly, the uncertainty that surrounds the prediction of risks, benefits and prognosis in psychotherapy, and the difficulties that clinicians experience in disclosing uncertainty (Katz 1984b), is a partial explanation. The reluctance to disclose is also partly rooted in the psychoanalytically based theoretical tradition of many psychotherapies (Robitscher

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1978). The failure to discern psychotherapy as a procedure to which significant risks attend had been an additional explanation, reinforced by what had been a limited history of successful malpractice litigation of verbal therapies. This has changed, however, especially in light of the judgments in ‘recovered memory’ litigation and as the size of monetary awards has grown (Beahrs and Gutheil 2001). It is clear, however, that psychotherapists hold out psychotherapy as a treatment that is likely to be of benefit, that the treatment often comes at significant personal cost (emotional and financial) to the patient, and that a variety of adverse consequences, that is, the development of negative transference reactions, regressive states, and depression, may attend the treatment. For all these reasons psychotherapy demands informed consent and such discussions should include some disclosure of the nature of the treatment, its length and cost, as well as the patient’s condition and prognosis with or without treatment (Simon 1982). In the case of Osheroff v. Chestnut Lodge, the plaintiff sued after spending a year in a psychiatric hospital receiving only psychoanalytic treatment for a severe depression. His claim that he had never been informed that medication was an option was settled out of court (Malcolm 1986). The Tarasoff v. Regents of the University of California (1976) case and other duty-to-protect cases that have followed have created a dilemma for the therapist who may find himself or herself having to balance the patient’s right to confidentiality in psychotherapy with a duty to protect individuals who may be harmed by the patient (Roth and Meisel 1977). (For further discussion, see Chapter 19.)

RESEARCH The issue of research involving mentally ill subjects has become increasingly controversial recently, with attention focused on studies in which ill subjects are withdrawn from active treatment or placed on placebo, and others in which subjects have been challenged by substances which can produce or exacerbate psychotic symptoms (Pinals and Appelbaum 2000). Government advisory groups, including the National Bioethics Advisory Commission (1998) (the ‘Commission’), have provided guidance on research involving mentally ill subjects. The Commission issued a report regarding, in relevant part, informed consent, capacity and surrogate decision making when engaging in research involving persons with mental disorders that may affect decision-making capacity. The Commission found that consent was of paramount importance, but allowing patients to enter into research by using proxy decision makers is also important due to the significant number of patients who are unable to communicate a choice autonomously. The Commission urged new and enhanced regulation of research with decisionally impaired

individuals to protect patients’ rights while at the same time increasing research opportunities. In T.D. v. New York State Office of Mental Health (1996) a New York regulation, which allowed surrogate decision makers to provide consent to experimental treatment on incompetent adults and minors involving more than minimal risk, was held unconstitutional by a New York appellate court. The court held that the regulation did not identify minimum qualifications or assessments to determine capacity, nor did it provide for administrative or judicial review of any determination that would satisfy due process. Pinals and Appelbaum (2000) provide an excellent review of current controversies surrounding competence and informed consent in psychiatric research.

THE ELDERLY Specific clinical or legal issues related to informed consent and competency are raised by special populations of patients, including the elderly and nursing home patients. The special issues related to minors and the developmentally disabled are beyond the scope of this chapter. The growing percentage of the population represented by the elderly focuses our attention on competency issues surrounding end-of-life decisions, protracted periods of incapacity generated by dementing illnesses, and testamentary capacity. The Patient Self-Determination Act of 1990 provides support for the increased participation in critical medical decision making of competent elderly patients through advance directives, consisting of instructional directives and proxy directives which designate healthcare decision-making surrogates. The SUPPORT project revealed the limited impact of enhanced communication regarding advance directives on improving end-of-life care (Covinsky et al. 2000). Many questions have been raised about the validity of advance instructional directives, especially about the possibility of being fully informed of medical contingencies which one may not be able to appreciate at the time a directive is formulated. While proxy decision makers are crucially important, in principle, for extending patient autonomy, studies have demonstrated poor predictive abilities of surrogates to exercise substituted judgment even after advance directive instructions are discussed (Teno et al. 1994; Covinsky et al. 2000). While some authors question the primacy of advance directives and promote best interest judgments (Dresser and Whitehouse 1994; Tonelli 1996), case law still supports the requirement to exercise substituted judgment. A myriad of informed consent issues are raised regarding nursing home placement (Dubler 1988; Kapp 1998) and research with elderly demented patients. Physicians must be aware of the special protections for this population and limitations in some jurisdictions regarding the types of research and the nature of research risks for which

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surrogates can consent (Annas and Glantz 1986; Sachs and Cohen 1996).

REFERENCES American Psychiatric Association. 1998: The Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry. Washington, DC: American Psychiatric Association, 24. American Psychiatric Association Resource Document on Principles of Informed Consent in Psychiatry. 1997. Journal of the American Academy of Psychiatry and the Law 25, 121–5. American Psychological Association. 1992: Ethical Principles of Psychologists and Code of Conduct. Washington, DC: American Psychological Association. Annas, G.J., Glantz, L.H. 1986. Rules for research in nursing homes. New England Journal of Medicine 315, 1157–8. Appelbaum, P.S. 1990. Voluntary hospitalization and due process: The dilemma of Zinermon v. Burch. Hospital and Community Psychiatry 41, 1059–60. Appelbaum, P.S., Roth, L.H. 1981. Clinical issues in the assessment of competency. American Journal of Psychiatry 138, 1462–7. Appelbaum, P.S., Roth, L.H. 1982. Competency to consent to research: a psychiatric overview. Archives of General Psychiatry 39, 951–8. Appelbaum, P.S., Mirkin, S.A., Bateman, A.L. 1981. Empirical assessment of competency to consent to psychiatric hospitalization. American Journal of Psychiatry 138, 1170–6. Appelbaum, P.S., Lidz, C.W., Meisel, A. 1987: Informed Consent: Legal Theory and Clinical Practice. New York: Oxford University Press. Beahrs, J.O., Gutheil, T.G. 2001. Informed consent in psychotherapy. American Journal of Psychiatry 158, 4–10. Canterbury v. Spence, 464 F2d 772, 787 (1972). Cobbs v. Grant, 8 Cal. 3d 229 (1972). Covinsky, K.E., Fuller, J.D., Yaffe, K., Johnston, C.B., Hamel, M.B., Lynn, J., Teno, J.M., Phillips, R.S. 2000. Communication and decision-making in seriously ill patients: findings of the SUPPORT project. Journal of the American Geriatric Society 48, S187–93. Drane, J.F. 1985: The Many Faces of Competency. Hastings Center Report 15, 17–21. Dresser, R., Whitehouse, P.J. 1994: The Incompetent Patient on the Slippery Slope. Hastings Center Report 4, 6–12. Dubler, N.N. 1988. Improving the discharge planning process: distinguishing between coercion and choice. The Gerontologist 28 (Suppl.), 76–81. Faden, R.R., Beauchamp, T.L. 1986: A History and Theory of Informed Consent. New York: Oxford University Press.

Ganzini, L., Leong, G.B., Fenn, D.S., Silva, J.A., Weinstock, R. 2000. Evaluation of competence to consent to assisted suicide: view of forensic psychiatrists. American Journal of Psychiatry 157, 595–600. Gilboy, O., Schmidt, O. 1971. ‘Voluntary’ hospitalization of the mentally ill. Northwestern University Law Review 23, 429–53. Grisso, T., Appelbaum, P.S. 1998: Assessing Competence to Consent to Treatment. Oxford University Press, New York and Oxford. Grisso, T., Appelbaum, P.S., Hill-Fotonhi, C. 1997. A clinical tool for assessing patient’s capacities to make treatment decisions: the MacArthur Treatment Competence Assessment Tool – Treatment. Psychiatric Services 48, 1415–19. Halleck, S.L. 1980: Law and the Practice of Psychiatry. New York: Plenum Press. Harris, L., Boyle, J.M., Bromsetin, P.J. 1982: Views of informed consent and decision making: Parallel surveys of physicians and the public. In President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research: Making Health Care Decisions: The Ethical and Legal Implications of Informed Consent in the Patient–Practitioner Relationship, Volume Two: Appendices, Empirical Studies of Informed Consent. Washington, DC: Superintendent of Documents. In re Branning (State v. Branning), 285 Ill. App. 3d 405 (1996). Kaimowitz v. Michigan Department of Mental Health. Div no. 7319434-AW, Cir. Ct. of Wayne County, Michigan 1973. Reprinted in Brooks, A.D. 1974: Law Psychiatry and the Mental Health System. Boston: Little, Brown and Co. Kapp, M.B., 1998. ‘A place like that’: advance directives and nursing home admissions. Psychology, Public Policy and Law 4, 805–28. Katz, J. 1984a: The Silent World of Doctor and Patient. New York: Free Press. Katz, J. 1984b: Why Doctors don’t Disclose Uncertainty. Hastings Center Report 14, 35–44. Levine, S.B., Blank, K., Schwartz, H.I., Rait, D.S. 1991. Informed consent in the electroconvulsive treatment of geriatric patients. Bulletin of the American Academy of Psychiatry and the Law 19, 395–403. Lidz, C.W., Meisel, A., Zerubavel, E., et al. 1984: Informed Consent. A Study of Decision-making in Psychiatry. New York: Guilford Press. Lidz, C.W., Appelbaum, P.S., Meisel, A. 1988. Two models of implementing informed consent. Archives of Internal Medicine 148, 1385–9. Lipton, A. 1999: Repressed memory litigation. In Taub, S. (ed.), Recovered Memories of Child Sexual Abuse: Psychological, Social, and Legal Perspectives on a Contemporary Mental Health Controversy. Springfield, Illinois: Charles C. Thomas, 165–210. Malcolm, J.G. 1986. Treatment choices and informed consent in psychotherapy: implications of the Osheroff

Informed consent and competency 105 case for the profession. Journal of Psychiatry and the Law 14, 9–106. Matter of A.M.P. 303 Ill. App. 3d 907 (1999). Meisel, A. 1979. The ‘exceptions’ to the informed consent doctrine: striking a balance between competing values in medical decision making. Wisconsin Law Review 2, 413–88. Meisel, A., Kabnick, L. 1980. Informed consent to medical treatment: an analysis of recent legislation. University of Pittsburgh Law Review 41, 407–564. Meisel, A., Roth, L.H. 1981. What we do and do not know about informed consent. Journal of the American Medical Association 246, 2473–7. Meisel, A., Roth, L.H. 1983. Toward an informed discussion of informed consent: a review and critique of the empirical studies. Arizona Law Review 25, 265–346. Meisel, A., Roth, L.H., Lidz, C.W. 1977. Toward a model of the legal doctrine of informed consent. American Journal of Psychiatry 134, 285–9. Munetz, M.R. 1985. Overcoming resistance to talking to patients about tardive dyskinesia. Hospital and Community Psychiatry 36, 283–7. Munetz, M.R., Roth, L.H. 1985. Informing patients about tardive dyskinesia. Archives of General Psychiatry 42, 866–71. Natanson v. Kline, 300 P.2d 1093, 1104, 1106 (1960). National Bioethics Advisory Commission. 1998: Research Involving Persons With Mental Disorders That May Affect Decision Making Capacity: Vol. 1, Report and Recommendations of the National Bioethics Advisory Commission. Rockville, MD: National Bioethics Advisory Commission, December 1998. Olin, G.B., Olin, H.S. 1975. Informed consent in voluntary mental hospital admissions. American Journal of Psychiatry 132, 938–41. Patient Self-Determination Act, Public Law 101-158;42 U.S.C. Sections 1395cc, 1396 (1990). Pernick, M.S. 1982: The patient’s role in medical decision making: a social history of informed consent in medical therapy. In President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research: Making Health Care Decisions: The Ethical and Legal Implications of Informed Consent in the Patient–Practitioner Relationship, Volume Two: Appendices, Empirical Studies of Informed Consent. Washington, DC: Superintendent of Documents. Pinals, D.A., Appelbaum, P.S. 2000. The history and current status of competency and informed consent in psychiatric research. Israel Journal of Psychiatry and Related Sciences 37, 82–94. President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research: Making Health Care Decisions: The Ethical and Legal Implications of Informed Consent in the Patient–Practitioner Relationship. Volume One:

Report. 1982. Washington, DC: Superintendent of Documents. Rachlin, S., Schwartz, H.I. 1986. Unforeseeable liability for patients’ violent acts. Hospital and Community Psychiatry 37, 725–31. Robitscher, J. 1978. Informed consent for psychoanalysis. Journal of Psychiatry and Law 6, 363–70. Roth, L.H. 1983. Is it best to obtain informed consent from schizophrenic patients about the possible risk of drug treatment, for example tardive dyskinesia, before initiating treatment or at a later date? Journal of Clinical Psychopharmacology 3, 207–8. Roth, L.H. 1985: Informed consent and its applicability for psychiatry. In Michels, R., Cavenar, J., Brodie, H.K.H., et al. (eds), Psychiatry. Philadelphia: J.B. Lippincott. Roth, L.K., Meisel, A. 1977. Dangerousness, confidentiality and the duty to warn. American Journal of Psychiatry 134, 508–11. Roth, L.K., Meisel, A., Lidz, C.W. 1977. Tests of competency to consent to treatment. American Journal of Psychiatry 134, 279–84. Sachs, G.A., Cohen, H.J. 1996: Ethical challenges to research. In Cassel, C.K., Cohen, H.J., Larson, E.B., et al. (eds), Geriatric Medicine. 3rd edition. New York, NY: Springer, 1025–33. Salgo v. Leland Stanford Junior University Board of Trustees, 154 Cal. App. 2d 560 (1957). Schloendorff v. Society of New York Hospital, 211 N.Y. 125 (1914). Schwartz, H.I., Blank, K. 1986. Shifting competency during hospitalization: a model for informed consent decisions. Hospital and Community Psychiatry 37, 1256–60. Schwartz, H.I., Roth, L.H. 1989: Informed consent and competency in psychiatric practice. In Tasman, A., Hales, R.E., Frances, A.J. (eds), Review of Psychiatry, vol. 8. Washington, DC: American Psychiatric Press, Inc., 409–31. Schwartz, R., Grubb, G. 1985. Why Britain can’t afford informed consent. Hastings Center Report 15, 19–25. Simon. R.I. 1982: Psychiatric Interventions and Malpractice: A Primer for Liability Prevention. Springfield, MA: Charles C. Thomas. Somerville, M.A. 1984. Therapeutic privilege: variation on the theme of informed consent. Law, Medicine and Health Care 12, 4–12. Stanley, B. 1983. Senile dementia and informed consent. Behavioral Sciences and the Law 1, 57–71. Stone, A.A. 1979. Informed consent: special problems for psychiatry. Hospital and Community Psychiatry 30, 321–7. Sullivan, M.D., Youngner, S.J. 1994. Depression, competence and the right to refuse lifesaving medical treatment. American Journal of Psychiatry 151, 971–8. T.D. v. New York State Office of Mental Health, 650 N.Y.S.2d 173 (1996).

106 Legal regulation of psychiatric practice Teno, J.M., Lynn, J., Phillips, R.S., et al. 1994. Do formal advance directives affect resuscitation decisions and the use of resources for seriously ill patients? Journal of Clinical Ethics, 5, 23–30. Tonelli, M.R. 1996. Pulling the plug on living wills: a critical analysis of advance directives. Chest 110, 816–22.

Tarasoff v. Regents of the University of California, 17 Cal. 3d 425 (1976). Wettstein, R.M. 1985. Legal aspects of neuroleptic induced movement disorders. In Wecht, C.H. (ed.), Legal Medicine. New York: Praeger. Zinermon v. Burch, no 87-1965 (U.S., February 27, 1990).

14 Hospitalization: voluntary and involuntary HAROLD I. SCHWARTZ, DAVID M. MACK AND PETER M. ZEMAN

The history of psychiatric hospitalization in the United States dates formally to 1750 when the first hospital unit dedicated specifically to mental patients was opened at the Pennsylvania Hospital in Philadelphia. The groundwork for the humane institutional treatment of the mentally ill had been laid in Europe in the late eighteenth century by pioneers such as Philippe Pinel at the Hospital of Bicêtre in Paris, Vizcenzo Chiarugi at the Hospital of Bonafaccio in Florence, and William Tuke at the York Retreat in England, each of whom took steps to introduce humanitarian approaches to the treatment of the mentally ill. The Friends Asylum at Frankford, Pennsylvania, the Bloomingdale Asylum in New York, the McLean Asylum in Charlestown, Massachusetts, and the Hartford Retreat (later, The Institute of Living), in Hartford, Connecticut, were all privately supported hospitals that opened in the early nineteenth century. By 1861, fortyeight asylums were in operation in the United States with a census of 8500 patients (Katz 1989). Although humanitarian impulses motivated the establishment of the asylums, and ‘moral treatment’ was influential with psychiatrists of the day, the procedures by which individuals were committed to hospitals did not reflect great concern for their rights and liberty interests. Patients were admitted and retained in hospital on the basis of a doctor’s judgment regarding the need for admission and continued hospitalization. Whether in a private asylum or in one of the public state hospitals built in the second quarter of the nineteenth century, patients were uniformly confined involuntarily to psychiatric institutions with only the rarely used writ of habeas corpus as recourse (Gutheil and Appelbaum 2000). Mental institutions in that era were basically asylums for confinement, not hospitals for treatment, and therefore it is not surprising that the concept of voluntary admission was unknown. Furthermore, involuntary admission was virtually unregulated by statutes protecting individual rights. Brakel, Parry, and Weiner (1985) cite a New York law, enacted in 1788, that authorized two or more judges to direct constables to detain and confine persons, who by lunacy or otherwise are furiously mad or are so far

disordered in their senses that they may be dangerous to be permitted to go abroad. However, by the midnineteenth century, cases began to appear in the courts in which early steps were taken to shape the rights of the mentally ill. Two cases cited by Brakel and colleagues are illustrative of this. In 1845, Josiah Oakes (Matter of Josiah Oakes) was confined at Mclean Asylum in Massachusetts after it was alleged that he suffered from a mental disturbance. Concern arose about him when he became engaged to a young woman ‘of unsavory character’ within days of his wife’s death. Oakes invoked the common-law right of habeas corpus to test his confinement. In response, the court acknowledged that the U.S. Constitution did not permit the detention of a person against his will without procedural or legal safeguards, and it went on to state that ‘the restraint can continue as long as the necessity [for the patient’s and others’ safety] continues. This is the limitation and the proper limitation.’ This decision was important in that it began to specify criteria to be used in determining the propriety of involuntary hospitalization. In so doing, the court moved away from the sole standard of ‘detention of the violent’ for the protection of society to consider detention for therapeutic purposes (Brakel, Parry, and Weiner 1985). In 1860, Mrs. E. P. W. Packard was confined to the Illinois State Hospital on the petition of her husband. An Illinois statute in force at the time stated, ‘Married women and infants, who, in the judgment of the medical superintendent are evidently insane and distracted, may be received and detained at the request of the husband … without the evidence of insanity and distraction required in other cases.’ After her release three years later, her efforts were instrumental in the reform of commitment legislation in her state. Illinois passed a personal liberty bill that mandated a jury trial in civil commitments. Another pivotal figure in recognizing the plight of the mentally ill and in laying the groundwork for improving conditions of treatment for them was Dorothea Dix, who traveled much of the country in the 1840s and 1850s,

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exposing abominable conditions, including the housing of those with psychiatric illnesses, in many instances, in jails and public almshouses. These individuals were neither charged with nor guilty of any crime; yet their liberty was curtailed, and they were held in squalid and miserable surroundings without even the slightest pretext of treatment (Reisner 1985). As a result of the efforts of Dorothea Dix, thirty-two mental hospitals were founded in the United States and overseas and twenty states improved their capability of caring for the mentally ill by either building or enlarging their mental hospitals (Brakel, Parry, and Weiner 1985). These early cases and others like them established the framework for the debate about involuntary commitment that continues to this day. The debate focuses on the substantive criteria by which individuals may be committed involuntarily to psychiatric hospitals and the procedural safeguards that shall be employed, in order to effect the balance between protection of the liberty interests of those who may be involuntarily confined on the one hand, while enabling the treatment of those in need, on the other. The reforms of the mid- and late nineteenth century were geared toward protecting the liberty interests of individuals and made it much more difficult to arbitrarily commit patients to involuntary hospitalization. By the turn of the century, requirements for judicial review of psychiatric commitments were commonplace. The pendulum would soon swing back toward more liberal commitment statutes and, as many commentators have noted, it has continued to swing back and forth through the twentieth century and into the twenty-first, vacillating between periods when concern about the ease of hospitalization for those in need of treatment was primary and periods of concern with protection of individuals from unwarranted confinement. Further understanding of this debate requires discussion of the legal doctrines, which underlie the authority of the state to involuntarily commit individuals.

LEGAL DOCTRINES: PARENS PATRIAE AND POLICE POWER The state’s power of civil commitment is derived from two basic legal doctrines: parens patriae and police power. Parens patriae, literally translated from the Latin as ‘Father of the country,’ originally referred to the sovereign’s power and duty to act for and in the best interest of his subjects. More liberally translated as ‘the state as parent,’ it refers to the government’s authority and responsibility to act for the infirm, incompetent, and mentally ill who are unable to act in their own interests to care and provide for themselves in a safe and capable manner. Thus, the concept of parens patriae underlies society’s actions for the benefit of those who are unable to act responsibly for themselves. It is intended to protect

the individual from his or her own disability or incompetence. Commitment statutes that allowed for the involuntary hospitalization of the mentally ill solely on the basis of the need for treatment were based purely on the principle of parens patriae. Police powers, on the other hand, flow from the government’s authority to act in the interest of maintaining order and the public safety. They would, therefore, be invoked principally when a person’s behavior or condition represents a danger to himself or the public at large. Commitment statutes requiring that an individual must be mentally ill and dangerous to himself and others are founded on both the parens patriae and police power principles (Gutheil and Appelbaum 2000). It should be stressed, however, that neither parens patriae nor police powers give state governments unlimited prerogatives to enact laws or take actions for the protection of individuals or society. Both powers are limited by provisions of the U.S. Constitution that address specific civil rights of individuals, such as the privacy rights delineated in the First and Fifth amendments (Reisner 1985).

RECENT DEVELOPMENTS By the mid-1900s the pendulum had swung once again in the direction of liberal commitment statutes based on the parens patriae principle, generally requiring only the presence of mental illness and the need for treatment. Statutes and regulations governing hospitalization through the 1950s and 1960s were frequently paternalistic and infantilizing, often, by implication, equating the status of involuntary hospitalization with incompetency. For example, in Connecticut until 1971, one could be committed if one was found to be ‘mentally ill’ and a ‘fit subject for confinement in a hospital for the mentally ill’! Patients confined under this provision could not register to vote, and automatically lost the privilege of using the telephone upon admission unless this right was specifically restored by the physician. It was not patients themselves but rather patients’ families who were consulted and asked to give informed consent for major procedures and treatment interventions. As late as 1968 in Connecticut, one sought informed consent from a patient’s family rather than from the patient in order to administer electroconvulsive therapy (ECT). Clearly, such practices were seen as effective and humane ways of delivering care, but they were hardly responsive to the civil rights and individual freedoms of the patient (Rubenstein, Zonana, and Crane 1977). The pendulum reversed itself in the 1960s as American society began taking a distinct interest, once again, in the civil liberties of psychiatric patients. A number of cultural factors influenced this development. The rise of medical technology and the increasing specialization and subspecialization of medicine that followed World War II led to

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a fragmentation of medical care and disenchantment with the medical profession (Schwartz and Roth 1989). The civil rights movement led to an enhanced interest in and recognition of the rights of various minority groups including the mentally ill. Reports in the popular media of institutional abuse and neglect, the emergence of critics from within the psychiatric profession and of a mental health bar funded through the community mental health movement converged at a time when distrust of governmental benevolence was becoming widespread (Hoge, Appelbaum, and Geller 1989). The result was a series of state statutes and appellate-level decisions that shifted parens patriae-based commitment criteria dramatically to dangerousness-based criteria. Typically the commitment criteria in most states during the 1970s and 1980s required the individual to be suffering from a mental illness and dangerous to him/herself or others (often with a requirement that the threat be ‘imminent’ or for a recent ‘overt’ act as evidence of dangerousness). In addition, many states included ‘gravely disabled’ or ‘inability to care for self ’ as an additional criterion usually referring to a condition of profound disorganization and deterioration rendering the individual unable to provide for him/herself the most basic needs of nutrition and shelter. In addition to these substantive changes in commitment criteria, changes in the procedural requirements led to what has been termed the ‘criminalization’ of commitment, for example, by requiring standards of proof in commitment hearings that had previously been used only in criminal proceedings. The following statutory enactments and developments in case law were influential in these developments.

Legislative and case law development LAKE v. CAMERON: THE LEAST RESTRICTIVE ALTERNATIVE In Lake v. Cameron (1966), Judge David Bazelon of the U.S. Court of Appeals for the District of Columbia Circuit first applied the concept of the least restrictive alternative to commitment law (Hoge, Appelbaum, and Geller 1989). The court required that the entire spectrum of services available to a patient be considered, including outpatient treatment, halfway houses, and nursing homes. Only if such less restrictive alternatives are unavailable and/or unsuitable could one consider involuntary commitment to a hospital. The concern, of course, is to prevent any infringements on personal liberty, which may be greater than absolutely necessary. It becomes incumbent, therefore, on the clinician to delineate and report as specifically as possible the historical data and clinical observations that justify the major curtailment of a person’s freedom represented by a psychiatric hospitalization, if this is indeed the least restrictive placement dictated by his or her illness. Critics of this concept argue that the least restrictive alternative may not be the most therapeutic

one. The ‘least restrictive alternative’ doctrine has most recently been shaped by the Americans With Disabilities Act (ADA) of 1990 and the Supreme Court’s extension of the protections of that act to the institutionalized mentally ill in Olmstead v. L.C. (1999) discussed below.

THE LANTERMAN-PETRIS-SHORT ACT The Lanterman-Petris-Short Act (LPS) enacted by the California Legislature in 1969 became the first in the modern era of revised commitment statutes that heavily emphasized dangerousness. This law required a demonstration of mental illness, overt dangerousness, or disability so grave that an individual would be at risk of physical harm without hospitalization. The statute provided many procedural safeguards including frequent legal reviews of commitment status and provisions for the appointment of a conservator to protect the interests of the severely disabled patient (Brakel, Parry, and Weiner 1985). Recently, the California legislature considered – but did not enact – revisions to LPS which would have dramatically broadened standards for commitment by allowing involuntary hospitalization for individuals who would be at risk for psychiatric harm in the absence of treatment, by lengthening commitment periods and establishing outpatient commitment.

LESSARD v. SCHMIDT In Lessard v. Schmidt (1972), a federal district court in Wisconsin established a requirement for evidence of an overt act demonstrating dangerousness within thirty days preceding commitment. The Lessard decision was notable for the procedural requirements for commitment which established, for instance, notification of the right to a jury trial and the right to counsel. Most significant was the requirement for proof of the need for commitment beyond a reasonable doubt, a standard that had previously been applied only to criminal procedures.

JACKSON v. INDIANA Jackson v. Indiana (1972) addressed criminal rather than civil commitment, but is relevant as a landmark case placing limitations on involuntary hospitalization. In this Supreme Court case a deaf-mute defendant charged with two criminal offenses was committed to a mental hospital by the trial court after being found incompetent to stand trial. Upheld by an Indiana high court, the commitment was reversed on appeal to the U.S. Supreme Court on the grounds that the defendant was denied equal protection and due process. The court pointed out that under existing Indiana law, an individual who was charged with, but not convicted of, a criminal offense could be deprived of liberty via an involuntary hospitalization to restore competency with fewer safeguards than those afforded an individual undergoing the process of civil commitment. Furthermore, under law existing at

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the time, the person could have been committed indefinitely if he could not be restored to competency to stand trial. As a result of this case, many states have passed laws limiting the amount of time a person may be committed on the basis of incompetency to stand trial.

O’CONNOR v. DONALDSON In O’Connor v. Donaldson (1975) the Supreme Court declared that one could not confine the non-dangerous mentally ill in a psychiatric hospital ‘without more.’ Many courts and critics have construed the Donaldson decision to mean that a finding of dangerousness is constitutionally required to justify involuntary hospitalization (Stromberg 1982). However, others have interpreted this ruling to mean that the non-dangerous mentally ill cannot constitutionally be confined without the provision of meaningful treatment. By this interpretation, Donaldson was a right-to-treatment decision rather than a decision requiring a finding of dangerousness for commitment (Roth 1980). The Supreme Court has yet to further elucidate this matter.

FASULO v. ARAFEH Fasulo v. Arafeh (1977), decided by the Connecticut Supreme Court, exemplifies efforts at the state level to regulate commitment procedures. The patients bringing the action had been subjected to long-term commitments at a state psychiatric hospital without periodic review by the court of the continued necessity for hospitalization. The court ruled that the absence of such a review violated due process and equal protection guarantees in Connecticut’s constitution. In contrast to the precedent set in Lessard v. Schmidt for proof beyond a reasonable doubt, the court ruled that the need for further involuntary hospitalization must be demonstrated by clear and convincing evidence. Most states have adopted statutes that prevent indefinite commitment without a court review.

PARHAM v. J.R.: COMMITMENT OF MINORS In Parham v. J. R. (1979), the Supreme Court balanced protection of the rights of minors undergoing commitment with an endorsement of medical decision making. The court did not agree with the position of the U.S. District Court that a post-admission adversarial hearing was necessary to protect the minor’s interest. Rather, it stressed the requirement for a neutral fact finder to determine whether the admission was appropriate. This fact finder, who could be the admitting physician, was expected to conduct a thorough review of the circumstances surrounding the child’s hospitalization as part of his or her psychiatric evaluation. It was the court’s position that such a traditional medical evaluation was preferable to a more formal adversarial hearing. In fact, the court found that turning to the courts rather than a ‘trained specialist’

on such matters ‘can turn rational decision making into an unmanageable enterprise.’

ADDINGTON v. TEXAS: RESOLUTION OF THE STANDARD OF PROOF In Addington v. Texas (1979), the Supreme Court brought resolution to the debate about the appropriate standard of evidence for commitment proceedings. The case had proceeded through the Texas trial court, Court of Appeals, and Supreme Court over the question of which standard should be used to decide whether commitment is indicated – a preponderance of the evidence, clear and convincing evidence, or proof beyond a reasonable doubt. In deciding that ‘clear and convincing evidence,’ roughly 75 per cent certainty, provided due process protection without making it unduly difficult to achieve commitment, the court endorsed the concept that a balance should be struck between protecting patients’ rights and providing needed treatment.‘Beyond a reasonable doubt,’ the standard requiring roughly 90–95 per cent certainty used in criminal cases, was felt to be unnecessarily demanding and unlikely to be met in most civil commitment situations. At the same time, ‘preponderance of the evidence,’ the standard requiring approximately 51 per cent certainty generally used in civil cases, did not satisfy Fourteenth Amendment due process requirements when confinement was at risk.

A Model Law Although neither a statute nor a legal case, the American Psychiatric Association’s Model Law on Civil Commitment (Stromberg and Stone 1983) should be mentioned. The Model Law provides for emergency psychiatric hospitalization, not to exceed two weeks, for any person showing evidence of a major mental illness. It also allows another thirty days of involuntary commitment if it is determined by the court that the individual suffers from a severe mental disorder that is treatable in the hospital (and that such treatment represents the least restrictive alternative); the person will not or cannot consent to voluntary admission; the person is incompetent to consent to treatment; and without treatment the individual will experience substantial deterioration or cause harm to him/herself or others. The requirement of incompetency and the provision for commitment in order to prevent substantial mental or physical deterioration are notable features. Aspects of this model are reflected in several state commitment statutes.

KANSAS v. HENDRICKS AND SEXUAL PREDATOR STATUTES Sexual predator statutes, which provide for civil commitment of certain individuals following completion of their criminal sentence for certain sexual crimes, are a recent

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development in the law. These statutes generally authorize a state to civilly commit convicted sex offenders beyond their prison term if they suffer from a mental abnormality, mental illness or personality disorder that makes them likely to commit additional sex crimes. The United States Supreme Court, in Kansas v. Hendricks (1997), found these sexual predator statutes constitutional as long as a finding of mental illness and dangerousness is established. The Court held that sexual predator statutes are a constitutional exercise of a state’s police power of involuntary civil commitment in order to protect the public health and safety. Thus, if a state has a sexual predator law, the state may civilly commit an individual who is mentally ill as defined by the legislature and shows a likelihood of future dangerousness. Although civil commitment for sexual predators requires findings of mental illness and dangerousness, findings adequate to meet these requirements have not been fully established by the courts (Foucha v. Louisiana 1992). However, courts are interpreting these requirements very broadly. The traditional requirements for severe mental illness have been abandoned in these laws, allowing evidence of personality disorder sufficient to meet the criteria for mental illness. Sexual predator statutes have been criticized for expanding the application of civil commitment to indefinite preventive detention based on predictions of future behavior, while inadequately addressing treatment (Appelbaum 1997). The Hendricks decision can be viewed as having blurred the boundaries between criminal behavior and mental illness, threatening the integrity of the medical model of civil commitment (Zonana and Norko 1999). (See Chapter 74 for additional discussion of sexual predator statutes.)

THE AMERICANS WITH DISABILITIES ACT AND THE OLMSTEAD CASE The Americans With Disabilities Act (ADA), passed in 1990, provides that ‘no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.’ The Code of Federal Regulations interprets the statute to require that services be provided ‘in the most integrated setting’ applicable to the needs of individuals with disabilities and that reasonable modifications to services and programs must be made to avoid discrimination unless the modifications would ‘fundamentally alter the nature of the service, program or activity.’ The ADA and interpretive federal regulations were seen by many as an avenue to require less restrictive and more ‘integrated’ treatment settings (Appelbaum 1999). A number of lower federal court lawsuits succeeded in having care transferred to the community (Petrila 1999). Given the limitations in state resources for community-based

programs, it was predictable that the right to treatment in the most ‘integrated’ setting would conflict with the economics of state systems of care. That conflict was adjudicated in Olmstead v. L.C. (1999), the case of two Georgia women with mental retardation and comorbid psychiatric diagnoses whose discharge from hospital to community was long delayed by the scarcity of appropriate community services. The Supreme Court’s ruling (in four separate opinions) in Olmstead delivered a very mixed message (Herbert and Young 1999). A majority of five held that unnecessarily prolonged inpatient hospitalization, beyond the point of appropriate discharge, is discriminatory under the ADA. However, the court placed significant limitations on a right to community care through its interpretation of the regulation that remedies that would ‘fundamentally alter’ state services are not required. For example, a program with a waiting list that moves at ‘a reasonable pace’ would be sufficient. Justice Anthony Kennedy went further in a concurring opinion to state that ‘a state may not be forced to create a community-treatment program where none exists.’ As Appelbaum (1999) notes, the impact of Olmstead remains unclear. While the rights of the disabled to appropriate treatment in the community would appear to have been advanced, the Court appears reluctant to compel states to create community programs where they don’t exist. Following Olmstead, the Second Circuit Court of Appeals held in Rodriguez v. City of New York (1999) that ‘Olmstead does not stand for the proposition that states must provide disabled individuals with the opportunity to remain out of institutions.’

CURRENT STATUS The revolution in civil commitment legislation that began in the late 1960s, and led to enhanced procedural safeguards and stringent dangerousness-based commitment criteria, appears to have ended (Wexler 1986). Families of the mentally ill have objected to commitment criteria that make it more difficult for their loved ones to obtain necessary hospitalization (Dunham 1985). Many critics have noted the relationship between the increasing prevalence of the homeless mentally ill and increasingly stringent commitment statutes and case law. In Washington state, a highly publicized murder by an individual who had been denied voluntary admission to a state hospital only hours earlier, led to a public outcry for liberalization of that state’s commitment statute. Washington had passed one of the most restrictive commitment statutes in the country in 1973. In 1979 that law was significantly liberalized to allow for the hospitalization of virtually any individual who manifested a severe deterioration in his or her condition (Durham and LaFond 1988). Similar revisions followed in other states. A number of states have relaxed their dangerousness criteria by eliminating the requirement for evidence of a specific overt act indicating dangerousness or by dropping the requirement that the threat of dangerous

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behavior be imminent. A number of states have, like Washington, revised commitment criteria to allow for involuntary hospitalization of patients who would suffer significant deterioration in their conditions without hospitalization. Recent attempts to loosen commitment criteria in California’s Lanterman-Petris-Short Act (the statute whose passage reflected the broad national shift to more restrictive commitment criteria in 1969) represent the latest development in this swing of the pendulum.

HOSPITALIZATION PROCESS AND PROCEDURES Although details vary from state to state because of differences in statutory provisions, there are certain basic procedures for psychiatric hospitalization that are followed in most jurisdictions.

Voluntary hospitalization Since the early 1960s, voluntary psychiatric hospitalization has gained in acceptance over involuntary commitment, and the majority of patients today are admitted on this basis. Indeed, many statutes or state regulations require that patients be given the option to choose voluntary admission (assuming they are competent to do so). The practice of voluntary hospitalization is intended to promote a collaborative relationship between physician and patient, to remove some of the stigma associated with admission for treatment of a mental disorder, and to eliminate the coercive element associated with involuntary hospitalization, thereby promoting patient autonomy. Critics contend that voluntary admission may also be coercive since patients are often under great pressure from family, friends, clinicians, and work associates to agree to admission (Rachlin and Schwartz 1986; Schwartz and Roth 1989). Nonetheless, a voluntary admission – even when under some duress – carries with it certain benefits and advantages that make it a more desirable option than an involuntary one for most people. In almost all jurisdictions, as a voluntary patient an individual retains the right to decide to accept or reject treatment, medications in particular, and retains the (modified) right to leave the hospital. Most state statutes have provisions for two types of admission on a voluntary basis: a so-called ‘informal’ admission usually based on the patient’s verbal agreement to be admitted; and a formal admission in which the patient generally signs a written agreement to be admitted (Reisner 1985). The difference between the two types concerns the laws governing the patient’s release from the institution. Under an informal admission, the patient must be discharged immediately upon his or her request. There is no statutory period during which he or she can be held in

the hospital following a request for discharge. Thus, the patient is able to leave the institution, often in the midst of treatment and against the advice of physicians, without their being able to do anything to prevent this, assuming involuntary commitment is not justified. While ‘informal’ admissions may satisfy the demands of some that voluntary hospitalization be without any constraints, they create a number of potentially serious problems. An informal admission allows a person suffering from a severe mental disorder, which may be seriously affecting his or her reasoning and judgment, to terminate abruptly and unilaterally a plan of treatment and leave the hospital without affording their physician any opportunity to attempt to persuade them otherwise, or to work out alternative treatment arrangements. When the abruptly departing patient is felt to be dangerous to him/herself or others, the clinician faces a quandary, since allowing the patient to leave may violate the duty to protect (the public and the patient). In contrast to an informal admission, a formal admission on a voluntary basis usually includes a mandatory period, defined by statute, during which the hospital has the discretion to hold the patient against his or her wishes should they attempt to leave. This type of admission is essentially a voluntary commitment since the patient, on the basis of his/her own agreement, usually in writing, has temporarily relinquished his/her absolute freedom to come and go as they please. The statutory period during which the patient may be held is generally short (usually three to five days), but it affords advantages over an informal admission. It provides a ‘cooling-off period’ during which both the patient and the therapist can assess their positions and perhaps reach a workable compromise to avoid a complete disruption of treatment. In the case of a seriously ill patient, where continued hospitalization is necessary to protect the patient or others, it provides time for the patient’s family or the institution to seek an involuntary commitment from the court. An important facet of formal voluntary hospitalization, highlighted by the U.S. Supreme Court in Zinermon v. Burch (1990), is that of informed consent. Most states require patients to give informed consent for voluntary hospitalization. The requirement to ascertain that a voluntary patient is admitting himself to a psychiatric hospital knowingly, voluntarily, and competently may, under certain circumstances, be overlooked. As the admitting psychiatrist, one is often faced with a clinical situation of some urgency necessitating hospital admission as quickly and expeditiously as possible. There is considerable pressure to give the patient the benefit of the clinical doubt and to allow him/her to be admitted voluntarily if he/she appears willing to do so rather than go through the inconvenience, trauma, and expense of a commitment proceeding. This may well have been the situation when Darrell Burch, found on a highway in Florida in a disoriented and psychotic state, was admitted voluntarily first to a

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private and then to a public mental health facility in December 1981. That admission led to the case of Zinermon v. Burch, ultimately decided by the U.S. Supreme Court in 1990. Burch alleged that state law had been violated because he had been allowed to admit himself as a voluntary patient when he was not competent to do so. It was his position that the hospital professional staff ‘knew or should have known’ that he was incompetent to give informed consent to a voluntary admission and therefore that he should have been accorded an involuntary commitment proceeding. The staff ’s failure to do so resulted in his being denied the constitutionally guaranteed procedural safeguards that accompany involuntary commitment. The court, noting that Florida law requires a competent consent for voluntary hospitalization, ruled that state hospital officials had deprived an incompetent patient of due process by permitting him in error to ‘consent’ to a voluntary admission rather than instituting involuntary commitment procedures. It took the position that, at least in jurisdictions with a statutory requirement for informed consent to voluntary hospitalization, the state bears an obligation to ascertain that consenting patients are, indeed, competent to do so. The impact of Zinermon has been less than might have been expected. Over the past decade, a majority of courts have not relied on Zinermon to establish common law requirements regarding consent to voluntary admission and treatment. However, Zinermon is relied upon for its 42 U.S.C. § 1983 precedent establishing that a plaintiff is entitled to sue defendants in tort as state actors for their allegedly unlawful confinement (Wilson v. Formigoni 1994). However, a minority view does depict Zinermon as establishing precedent requiring that feasible procedures exist to determine a person’s due process rights before those rights are deprived, such as competency to consent before voluntary commitment (Powell v. Georgia Department of Human Resources 1997). Nonetheless, the extreme potential of Zinermon to significantly impact the voluntary system of commitment available in this country did not materialize. Zinermon’s impact is limited in part because of the majority view of the limited § 1983 holding of the Supreme Court and because of a lack of subsequent cases brought before a court on the same issue. Most recently, economic factors have shifted the balance away from voluntary to involuntary admissions. As state hospitals continue to downsize or close, increasingly only the most acutely ill can be hospitalized, a population more likely to require involuntary commitment. At the same time, managed care companies have set the criteria for inpatient admission so narrowly that in most cases only individuals who are actively psychotic (and at risk), suicidal or homicidal can be admitted. At its most extreme, managed care practice sets the standard for admission so rigidly that only those who, by virtue of their extreme clinical condition, qualify for involuntary commitment can meet it. Still another factor impacting the tension between voluntary and involuntary

hospitalization is the growing availability of outpatient commitment (see Chapter 15).

Involuntary hospitalization Most states have statutes that provide for two means of involuntary hospitalization. The first means is by an emergency certification that is effected in most instances by a licensed physician or other qualified individual such as a clinical psychologist or psychiatric nurse. Such a certification does not need to be reviewed by the court prior to the patient’s admission, is essentially a holding order prior to commitment, and is intended to provide a means for a time-limited admission without delay in the types of urgent situations presenting themselves most typically in hospital emergency rooms. In most states the provision for emergency certification is coupled with a provision for a probable-cause hearing by the court shortly after admission in order to review the necessity for hospitalization. The second means is a more complex process that involves the filing of a petition for commitment with the court of proper jurisdiction. This petition is preceded by or leads to an examination of the patient by one or more psychiatrists or other qualified individuals designated by the court. The court then decides on the basis of the written reports and oral testimony whether the individual meets the commitment criteria outlined in the state statutes. Commitments are generally time-limited and there is usually a statutory requirement that the commitment status be reviewed on a periodic basis. In addition, an individual can always request a review of their status through a habeas corpus petition. Court-ordered commitments are by statute generally longer than emergency certifications. They provide due process protections through the various procedural safeguards discussed above (e.g., judicial review and evidentiary standards).

RELEVANT DATA AND REASONING PROCESSES Involuntary hospitalization, on an emergency basis or through formal commitment proceedings, presents many clinical, ethical, and legal dilemmas. Clinicians are typically faced with a seriously disturbed patient who is unable or unwilling to accept the required treatment; with a distraught family that is ambivalent at best about ‘forcing’ their family member into an institution against his or her wishes; with their own conflicts about depriving another of his/her liberty balanced by the desire to treat those in need; and with the specter of a lawsuit that could result from an improper commitment or from a failure to commit, leading to an outcome in which someone is harmed. In order to find one’s way through this morass, it is important for the clinician to avoid a rush to judgment and to analyze carefully and objectively the patient’s

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present condition and the historical data, which will allow for an understanding of the pattern and presentation of the patient’s illness. It is also vital to evaluate the environmental setting and social influences to which the patient will be subject if not hospitalized and to assess the likely impact of these on the patient’s condition and predicted behavior. The clinician’s assessment of the patient’s presenting picture and historical data must be considered within the context of knowledge about the particular legal standards for commitment in one’s own state. The clinician can then reason from the clinical data within the framework of the statutes in his or her jurisdiction to determine whether his/her patient’s clinical picture meets the legal requirements for an involuntary hospitalization. For example, it is critical to know whether the statute in question allows for commitment on the basis of ‘grave disability’ or ‘inability to care for oneself,’ as these criteria allow the clinician considerably more latitude than strictly defined dangerousness criteria. Mental health professionals can take some comfort from the fact that both recent legal decisions and research studies have affirmed that psychiatrists are able to make sound judgments in decisions about involuntary hospitalization. In a 1984 study, Schwartz, Appelbaum, and Kaplan found that psychiatrists’ decisions to commit correlated appropriately with legal criteria and were consistent with independent assessments of the patients’ clinical status and need for treatment. Appelbaum and Hamm (1982) previously demonstrated that decisions to commit in a Massachusetts psychiatric hospital conformed closely to the requirements of that state’s commitment statute. Two high court decisions – Youngberg v. Romeo (1982) and Parham v. J.R. (1979), among others – have expressed confidence in the ability of psychiatrists to make sound and reasoned decisions on behalf of their patients. It is not the purpose of this chapter to provide a thorough review of the emergency assessment. Gutheil and Appelbaum (2000) provide an outstanding review of such assessments and outline categories of data and clinical considerations that must be part of such evaluations. They point out that it is of critical importance to obtain a substantial amount of historical data in a short period of time. While the patient, of course, is a key source of such data, his or her clinical state may interfere with his/her ability to provide accurate and useful information, and the evaluator must be ready to turn to family, friends, and employers to supplement what the patient cannot, or will not, provide. The patient’s right to confidentiality must be respected and protected whenever possible, but his or her emergency needs must take precedence over privacy rights that would be operative in a more normal situation. One should spend the majority of time with those whom one judges to be most informative and reliable. Family members are often a rich source of data if they are able to remain relatively objective. Police officers, who accompany patients to an emergency room, can be very helpful

in describing current symptoms since they have training and experience in observing and reporting behavior. The decision to commit must balance clinical factors that increase and decrease the risk to the patient or others if the patient is not hospitalized. Gutheil and Appelbaum (2000) review the internal and external risk factors and resources that either increase or decrease the urgency of the clinical situation and enhance or diminish coping mechanisms available to the patient. Examples of risk factors include loss of significant people in one’s life through death, separation, or divorce; loss of circumstances such as a job with accompanying loss of monetary security and self-esteem; history of impulsivity, poor achievement, and poor interpersonal adaptation; and intolerably dysphoric feeling states. Examples of resource factors are a prior level of education and achievement, strong religious conviction and faith, vocational and professional training, and good interpersonal and social skills. In their clinical examination, psychiatrists must take a careful inventory of risk and resource factors to assist them both in determining the need for hospitalization and in assessing the patient’s readiness for discharge. The question of predicting dangerousness is a paradoxical one for psychiatrists. The ability to predict violence remains a controversial issue (Monahan and Steadman 1994), and many studies have raised questions about clinicians’ abilities in this regard. Nonetheless, many psychiatrists continue to believe that we can predict violence, and society continues to require that we do so (Beck 1985). We undoubtedly stand on more solid ground regarding suicide risk assessment than we do in evaluating potential violence to others; however, it is still important to acknowledge that we are better able to identify the characteristics of groups at risk than to specify the risk that a particular individual presents (see Chapter 57). Research in the area of suicidality indicates that the risk is higher for men than women, greater for the divorced and widowed, and increases after middle age. Other factors that increase risk are family history of suicide, depression, and alcoholism; current life stressors such as bereavement, moves, job loss, physical illness, or injury; ongoing psychiatric illness, most notably depression; and intense psychiatric symptomatology, agitation and dysphoria in particular, accompanied by feelings of pessimism and hopelessness (Gutheil and Appelbaum 2000). Finally, careful documentation of the history obtained, the sources of information on which it is based, the patient’s mental status findings, and a diagnostic and treatment formulation, including an assessment of dangerousness, is mandatory to guide the clinical team that will be responsible for the patient in hospital, to provide a foundation for discharge planning, and to give information to the clinician who may be faced with the patient as an unknown quantity in a future emergency. Such documentation need not be lengthy. Rather, one should aim for a brief, crisp description that contains all of the salient elements of the emergency evaluation.

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REFERENCES Addington v. Texas, 441 U.S. 418 (1979). Appelbaum, P.S. 1997. Confining sex offenders: the Supreme Court takes a dangerous path. Psychiatric Services 48, 1265–7. Appelbaum, P.S. 1999. Least Restrictive Alternative revisited: Olmstead’s uncertain mandate for community-based care. Psychiatric Services 50, 1271–2, 1280. Appelbaum, P.S., Hamm, R.M. 1982. Decisions to seek commitment. Archives of General Psychiatry 39, 447–51. Beck, J.C. 1985: Psychiatric assessment of potential violence: a reanalysis of the problem. In Beck, J.C. (ed.), The Potentially Violent Patient and the Tarasoff Decision in Psychiatric Practice. Washington, DC: American Psychiatric Press, Inc. Brakel, S.L., Parry, J., Weiner, B.A. 1985: The Mentally Disabled and the Law. Chicago: American Bar Foundation. Dunham, A.C. 1985. APA’s Model Law: protecting the patient’s ultimate interests. Hospital and Community Psychiatry 36, 973–5. Durham, M.L., LaFond, J.Q. 1988. A search for the missing premise of involuntary therapeutic commitment: effective treatment of the mentally ill. Rutgers Law Review 40, 303–70. Foucha v. Louisiana, 504 U.S. 71 (1992). Fasulo v. Arafeh, 173 Conn. 473, 378 A.2d 553 (1977). Gutheil, T.G., Appelbaum, P.S. 2000. Clinical Handbook of Psychiatry and the Law. 3rd edition. Baltimore: Williams and Wilkins. Herbert, P.B., Young, K.A. 1999. The Americans With Disabilities Act and deinstitutionalization of the chronically mentally ill. Journal of the American Academy of Psychiatry and the Law 27, 603–13. Hoge, S.K., Appelbaum, P.S., Geller, J.L. 1989. Involuntary treatment. Review of Psychiatry 8, 432–50. Jackson v. Indiana, 406 U.S. 715 (1972). Kansas v. Hendricks, 521 U.S. 346 (1997). Katz, S.E. 1989: Hospitalization and the mental health service system. In Kaplan, H.I., Sadock, B.J. (eds), Comprehensive Textbook of Psychiatry. 5th edition. Baltimore: Williams and Wilkins, 2083–90. Lake v. Cameron, 364 F.2d 657 (1966). Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972). Monahan, J., Steadman, H.J. (eds) 1994: Violence and Mental Disorder: Developments in Risk Assessment. Chicago: University of Chicago Press.

Matter of Josiah Oakes, 8 Law Rep. 123 (Mass. 1845). O’Connor v. Donaldson, 422 U.S. 563 (1975). Olmstead v. L.C., 527 U.S. 581 (1999). Parham v. J.R., 42 U.S. 584 (1979). Petrila, J. 1999. The Americans With Disabilities Act and the revitalization of community-based treatment law. Psychiatric Services 50, 473–4, 480. Powell v. Georgia Department of Human Resources, 114 F.3d 1074 (11th Cir. 1997). Rachlin, S., Schwartz, H.I. 1986. Unforeseeable liability for patients’ violent acts. Hospital and Community Psychiatry 37, 725–31. Reisner, R. 1985: Law and the Mental Health System. St. Paul, MN: West Publishing Co. Rodriguez v. City of New York, 197 F.3d 611 (2d Cir. 1999). Roth, L.H. 1980. Mental health commitment: the state of the debate, 1980. Hospital and Community Psychiatry 31, 385–96. Rubenstein, M.A., Zonana, H.V., Crane, L.E. 1977. Civil commitment reform in Connecticut: a perspective for physicians. Connecticut Medicine 41, 709–17. Schwartz, H.I., Appelbaum, P.S., Kaplan, R.D. 1984. Clinical judgments in the decision to commit. Archives of General Psychiatry 41, 811–15. Schwartz, H.I., Roth, L.H. 1989: Informed consent and competency in psychiatric practice. In Tasman, A., Hales, R.E., Frances, A.J. (eds), American Psychiatric Press Review of Psychiatry. Washington, DC: American Psychiatric Press. Stromberg, C.D. 1982: Developments concerning the legal criteria for civil commitment: who are we looking for? In Grinspoon, L. (ed.), Psychiatry 1982: The American Psychiatric Association Annual Review. Washington, DC: American Psychiatric Press, 334–50. Stromberg, C.D., Stone, A. 1983. A model state law on civil commitment of the mentally ill. Harvard Journal on Legislation 20, 175–396. Wexler, D.F. 1986. Grave disability and family therapy: the therapeutic potential of civil libertarian commitment codes. International Journal of Law and Psychiatry 9, 39–56. Wilson v. Formigoni, 42 F. 3d 1060 (7th Cir. 1994). Youngberg v. Romeo, 457 U.S. 307 (1982). Zinermon v. Burch, 494 U.S. 113 (1990). Zonana, H.V., Norko, M.A. 1999. Sexual predators. The Psychiatric Clinics of North America, 22, (No. 1; Forensic Psychiatry), 109–27.

15 Involuntary civil commitment to outpatient treatment ROBERT D. MILLER

Until the deinstitutionalization movement led to a 75 per cent reduction in censuses in inpatient psychiatric facilities by the late 1970s, most of the discussion on civil commitment in the clinical and legal literature concerned involuntary hospitalization. One of the main criticisms of commitment was that patients objected mostly to hospitalization in understaffed, coercive facilities and, if released, they would voluntarily seek treatment in the community (Bleicher 1967; Chambers 1972). The confluence of effective antipsychotic medication, the rise of the community mental health movement, the application of the legal doctrine of the least restrictive alternative to commitment (Miller 1982), libertarian attacks on the parens patriae basis for commitment, and economic pressures resulted in massive discharges from state mental hospitals. Unfortunately, expectations that patients would seek treatment voluntarily in the community were often not realized. Many patients continued to deny their illnesses and therefore their need for treatment (Van Putten 1974). Fewer than half the planned community mental health centers were ever built, and many of the ones that were opened focused increasingly on less severely ill patients and did not provide necessary services such as outreach and transportation (Chu and Trotter 1974; Goldman, Adams, and Taube 1983) for chronic patients. Although hospital censuses dropped, admission rates rose dramatically, and the only treatment that many chronically mentally ill patients received continued to be through brief but repeated hospitalizations. As it became increasingly clear that many such patients could (or would) not come voluntarily for outpatient treatment, judges and clinicians sought methods to ensure the compliance necessary to prevent deterioration, which would require hospitalization (Hiday and Goodman 1982; Miller and Fiddleman 1983). Before the mid-1980s, all states except New York permitted judges to commit patients to outpatient treatment (although the provisions were not

explicit in most states); but there were no statutory procedures to implement or enforce those orders (Miller 1985).

THE CONDITIONAL RELEASE MODEL Before the due process reforms of the 1970s mandating judicial review of both admissions and continued hospitalization (Miller 1987), state hospitals utilized an informal process of outpatient commitment to maintain control over their patients. Patients who were deemed ready for a trial release were placed on passes or convalescent leaves, but were not formally discharged from their hospitalizations until they proved themselves capable of making satisfactory adjustments to community living. These passes sometimes lasted for years, and superintendents had the authority to have patients returned to the hospital for any reason deemed sufficient by the treating clinicians. As there were few outpatient treatment facilities for chronic patients, hospital staffs were often the only clinicians available to provide treatment, either in the community or in the hospital. As courts took over the authority to determine whether commitment was legally appropriate, they also assumed responsibility in most states to decide the site of treatment. In addition, as dangerousness replaced need for treatment as the major criterion for commitment, commitment to outpatient treatment became problematic, since patients dangerous enough to satisfy existing commitment criteria often required hospitalization. Notwithstanding these difficulties, many judges adopted a conditional release model borrowed from criminal law to permit the release of patients who had demonstrated that they could not remain safely in the community without some external structure, particularly continuation of psychotropic medication (Miller 1988a). Unfortunately, many judges and attorneys went even

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further, utilizing a plea bargaining model as well, under which commitment to outpatient treatment became a compromise between clinical recommendations for continued hospitalization and patient desires for unconditional release from commitment (Miller, Maher, and Fiddleman 1984).

INITIAL COMMITMENT TO OUTPATIENT TREATMENT A more recent development over the past decade is initial commitment to outpatient treatment, without the necessity of first being hospitalized (Miller 1990). The purpose for such an alternative is to permit intervention early in the predictable course of a chronic mental illness, thus avoiding inevitable and preventable hospitalization. Prior to the 1980s, few state commitment laws permitted such direct community commitments. By 1984 a survey of state mental health program directors (Miller 1985) revealed that although thirty-seven states permitted initial outpatient commitment, it was rarely utilized. Respondents to a subsequent survey (Miller 1992) reported that thirty-five states permitted initial outpatient commitment, and that it represented a significant proportion of outpatient commitments in several of those states. More recently (Torrey and Kaplan 1995), thirty-seven states responded to a national survey of the use of outpatient commitment. Seven reported very common use, seven reported common use, and the remaining twenty-three reported infrequent use. Together, these studies show an ongoing increase in the use of outpatient commitment, although it is still underused in the majority of states.

STUDIES OF OUTPATIENT COMMITMENT Most studies of outpatient commitment are still largely anecdotal (Miller 1988a). Early studies evaluated the success of the process chiefly by measuring changes in hospital readmissions after passage of laws or regulations intended to encourage commitment to outpatient, rather than inpatient, facilities. The first report, from North Carolina prior to the passage of statutes setting forth explicit procedures governing the process (Hiday and Goodman 1982), indicated that the conditional release model was effective, as measured by reduced readmissions, when one judge (who presided over all commitment hearings for one of the state’s four commitment districts) began committing patients to outpatient treatment at their initial inpatient commitment hearings. A subsequent report from a different district of North Carolina (Miller and Fiddleman 1983) reported that most mental health center clinicians felt that commitment had been ineffective in providing treatment to their patients. Bursten (1986) reported that new statutory provisions for

outpatient commitment in Tennessee had been ineffective in reducing readmissions. Later reports from Washington, DC (Zanni and DeVeau 1986), Arizona (Van Putten, Santiago, and Berren 1988) and Ohio (Munetz et al. 1996) were more favorable; they found that not only were hospitalizations prevented but that effective treatment had been provided. The most thorough study was done in North Carolina after a series of statutory amendments added explicit procedures for enforcement of outpatient commitment, established initial commitment with broader criteria than those required for involuntary hospitalization, and provided capitation funds for centers accepting committed patients as an alternative to hospitalization (Hiday and Scheid-Cook 1987). The authors reported that, although some of the statutory provisions had not been observed in practice (particularly those requiring patients to have had previous involuntary hospitalizations after failure of attempted outpatient treatment), many community clinicians were enthusiastic about the effects of the process. Although most patients missed appointments at some point during the six-month study period, 80 per cent were still actively involved in treatment at the end of the six months – a far higher rate than that found in patients not committed for follow-up treatment. More recently, two comprehensive studies have attempted to go beyond measures of rehospitalization in assessing the effects of outpatient commitment. New York, which had been the only state to explicitly prohibit outpatient commitment, established a pilot program at Bellevue which was studied by Policy Research Associates (1998) and by Telson, Glickstein and Trujillo (1999). The program included forced medication, but only for those patients found by a court incompetent to make treatment decisions. Policy Research Associates found no statistically significant differences between committed and voluntary patients, but both groups experienced significantly fewer hospitalizations, attributed by the researchers to more intensive services made available by the program. Telson’s group, who studied the program for five years (Policy Research Associates used an 11-month period), reported that once all the participants understood the program, committed patients were rehospitalized less frequently and stayed significantly fewer days when they were hospitalized. The North Carolina study (Swartz et al. 1995) also used control groups, and also found that committed patients had fewer and briefer hospitalizations. However, the authors also found that increased resources were more important than the commitment itself.

THE RIGHT TO REFUSE TREATMENT Most patients who benefit from commitment to outpatient treatment suffer from major mental disorders

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(chiefly psychoses and affective disorders) that can be adequately controlled by medication. Most clinicians feel that the conditions of outpatient commitment for such patients must include continuation of appropriate medication (Miller and Fiddleman 1983; Miller et al. 1987; Geller 1990; Schmidt and Geller 1990; Meloy, Haroun, and Schiller 1990). Some authors (Knoedler 1988) have argued that commitment should include the authority to physically force medication on outpatients, but few commentators and no state legislatures have agreed with that proposal, because of opposition from both the great majority of community clinicians and from civil libertarians, whose support is necessary in order to pass outpatient commitment laws (Miller 1988b). And as Hiday and Scheid-Cook (1987) have demonstrated, the great majority of committed outpatients take their medication without physical force. The initial APA Task Force Report (Miller et al. 1987) recommended against physically forced outpatient medications. More recently, the authors of the APA’s Resource Document on Mandatory Outpatient Treatment (Gerbasi, Bonnie, and Binder 2000) take no position, but recommend that if medication is forced, it be forced only on those found incompetent to make treatment decisions.

treatment; and that broader criteria for outpatient commitment than for involuntary hospitalization violate constitutional guarantees of equal protection. To date, courts have not accepted these arguments. The concept of commitment to prevent clinical deterioration has been accepted by at least one court (Matter of Mental Condition of W.R.B. 1987), and another court has ratified the practice of commitment to the state department of mental health, which then has the authority to determine where the treatment will take place (Glasco v. Brassard 1971). Courts have, however, rejected clinical control over the process (Birl v. Wallis 1985, 1986), and several have held that revocation of outpatient status requires a judicial hearing, either before (Morrissey v. Brewer 1972; Meisel v. Kremens 1975; Lewis v. Donahue 1977; In re Anderson 1977; C.R. v. Adams 1981; Application of True 1982; In re Cross 1983; Matter of Mills 1983; In re M.M. 1985; In re McPherson 1985; Birl v. Wallis 1985, 1986; In re Commitment of B.H. 1986) or after (Metaxos v. People 1924; New Jersey v. Carter 1974; Hooks v. Jacquith 1975; Dietrich v. Brooks 1976; In re Richardson 1984) rehospitalization.

CURRENT STATUS AND RECOMMENDATIONS FOR OUTPATIENT COMMITMENT CRITICISMS OF OUTPATIENT COMMITMENT Although clinical scholars have generally supported the concept of outpatient commitment, several have raised concerns about the potential for abuse inherent in broader commitment criteria and the difficulties involved in its implementation (Geller 1986; Mulvey, Geller, and Roth 1987). Although civil libertarians first suggested the establishment of formal procedures for commitment to outpatient treatment (Chambers 1972) and criticized the American Psychiatric Association’s Model Law on commitment because it did not provide for outpatient commitment (Rubenstein 1985), since the practice has become operational most have been highly critical of it – particularly where need-for-treatment criteria have been established to permit initial commitment. Keilitz (1990) and McCafferty and Dooley (1990) surveyed the existing statutes and literature on outpatient commitment and came to negative conclusions that were radically different from those of the authors of the studies they reviewed. Schwartz and Costanzo (1987) published an even more scathing critique of outpatient commitment, arguing that it will not work because of insufficient community and judicial resources, resistance from clinicians, community residents and governments unwilling to fund the programs, and the difficulty of effective enforcement. Legal critics also argue that the parens patriae basis for outpatient commitment is unconstitutional; that dangerousness criteria do not permit commitment to outpatient

There is active legislative interest in outpatient commitment. The most recent survey of outpatient commitment in practice (Miller 1992) revealed that twenty-one jurisdictions revised their outpatient commitment statutes between 1984 and 1991. Eleven had made substantive changes, including making outpatient commitment explicit, establishing provisions for initial commitment, and creating need-for-treatment criteria. Eleven made procedural changes, including making provisions for dealing with non-compliant patients, requiring court hearings before rehospitalization, and lengthening the possible duration of commitment. As of 1991, twenty-seven jurisdictions continued to use rehospitalization as the major consequence for noncompliance, while eleven permitted non-compliant patients to be taken to the outpatient treatment facility. Twenty-seven jurisdictions require judicial hearings to justify rehospitalization. The American Psychiatric Association’s Task Force on Involuntary Commitment to Outpatient Treatment (Miller et al. 1987) made a series of recommendations that are still consistent with practical experience in the field: 1 Patients committed to outpatient treatment should be suffering from disorders that can be effectively controlled in a community setting. 2 The outpatient clinicians must be actively supportive of the process; they must be provided with sufficient resources to provide appropriate treatment and must

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be involved in the creation of the court-ordered treatment plan. 3 If medication is an essential part of the treatment plan, it should be court-ordered, but it should not be physically forced in outpatient settings. 4 There must be explicit procedures established to deal with non-compliance. Best are provisions to return the patient to the outpatient facility, but rehospitalization must also be available. Jurisdictional issues for conditional release commitments must be resolved. 5 Outpatient clinicians must be protected from additional liability associated with treating committed outpatients. The recent APA task force report (Gerbasi, Bonnie, and Binder 2000) did not provide model statutes, as had its predecessor; but it concurred with most of its recommendations that: 1 Outpatient commitment should not be limited to patients who meet criteria for involuntary hospitalization, but extended to prevent relapse or deterioration in those whose relapse would predictably lead to severe deterioration and/or dangerousness. 2 Predictions about relapse, deterioration and/or future dangerousness should be based on documented episodes in the recent past. 3 Outpatient commitment should not be limited to those incompetent to make treatment decisions, but should be available to assist patients who, as a result of their mental illnesses, are unlikely to seek or comply with needed treatment. 4 Outpatient commitment statutes must provide adequate resources. 5 Statutes should authorize initial commitments of 180 days, with provisions for extensions based on specific criteria. 6 A thorough medical examination should be required. 7 Outpatient clinicians should be involved in the development of the treatment plan. 8 Patients should be consulted about their treatment preferences and be given copies of their treatment plans so that they will be aware of the conditions with which they will be expected to comply. 9 The statutes should contain specific provisions to be followed in the event of non-compliance, including a court hearing if the non-compliance is substantial and further efforts to motivate compliance would fail. 10 No recommendation is made about forced medication; but if it is authorized, it must be based on incompetence to make treatment decisions. The major departure from existing provisions is to extend outpatient commitment even to patients who are competent to make treatment decisions, but choose not to accept treatment. That provision has been criticized by Munetz, Geller and Frese (2000) and Hoge and Grottole (2000) as an intolerable infringement on civil rights.

Stein and Diamond (2000) and Mattison (2000) echo earlier critics who argue that, without resources, outpatient commitment offers greater restrictions without the promise of effective treatment.

REFERENCES Application of True, 103 Idaho 151 (Idaho 1982). Birl v. Wallis, 619 F. Supp. 481 (M.D.Ala. 1985); 633 F. Supp. 707 (M.D.Ala. 1986). Bleicher, B.K. 1967. Compulsory community care of the mentally ill. Cleveland-Marshall Law Review 16, 93–115. Bursten, B. 1986. Posthospital mandatory outpatient treatment. American Journal of Psychiatry 143, 1255–8. Chambers, D.L. 1972. Alternatives to civil commitment of the mentally ill: practical guides and constitutional imperatives. Michigan Law Review 70, 1107–1200. Chu, F.D., Trotter, S. 1974: The Madness Establishment. New York: Grossman. C.R. v. Adams, 649 F.2d 625 (8th Cir. 1981). Dietrich v. Brooks, 558 P.2d (Or. App. 1976). Geller, J.L. 1986. The quandaries of enforced community treatment and unenforceable outpatient commitment statutes. Journal of Psychiatry and Law 14, 149–58. Geller, J.L. 1990. Clinical guidelines for the use of involuntary outpatient treatment. American Journal of Psychiatry 41, 749–55. Gerbasi, J.B., Bonnie, R.J., Binder R.L. 2000. Resource document on mandatory outpatient treatment. Journal of the American Academy of Psychiatry and the Law 28, 127–44. Glasco v. Brassard, 483 P.2d 924 (1971). Goldman, H.K., Adams, N.H., Taube, C.A. 1983. Deinstitutionalization: the data demythologized. Hospital and Community Psychiatry 24, 129–34. Hiday, V.A., Goodman, R.R. 1982. The least restrictive alternative to involuntary hospitalization, outpatient commitment: its use and effectiveness. Journal of Psychiatry and Law 10, 81–96. Hiday, V.A., Scheid-Cook, T.L. 1987. The North Carolina experience with outpatient commitment: a critical appraisal. International Journal of Law and Psychiatry 10, 215–32. Hoge, M.A., Grottole, E. 2000. The case against outpatient commitment. Journal of the American Academy of Psychiatry and the Law 28, 165–70. Hooks v. Jacquith, 318 So. 2d 860 (Miss. 1975). In re Anderson, 73 Cal. 3d 98, 140 Cal. Rptr. 546 (1977). In re Commitment of B.H., 212 N.J. Super. 145 (1986). In re Cross, 662 P.2d 828 (Wash. 1983). In re McPherson, 176 Cal. App. 3d 332, 222 Cal. Rptr. 416 (1985). In re M.M., No. 17, 820-CW (La. Ct. App. 2d Cir. Dec. 13, 1985). In re Richardson, 481 A.2d 473 (D.C. App. 1984).

120 Legal regulation of psychiatric practice Keilitz, I. 1990. Empirical studies of involuntary outpatient civil commitment: is it working? Mental and Physical Disability Law Reporter 14, 368–79. Knoedler, W. 1988. Outpatient commitment (letter). Hospital and Community Psychiatry 39, 783–4. Lewis v. Donahue, 437 F. Supp. 112 (W.D. Okla. 1977). Matter of Mental Condition of W.R.B., 411 N.W.2d 142 (Wis. App. 1987). Matter of Mills, 467 A.2d 971 (D.C. App. 1983). Mattison, E. 2000. Commentary: the law of unintended consequences. Journal of the American Academy of Psychiatry and the Law 28, 154–8. McCafferty, G., Dooley, J. 1990. Involuntary outpatient commitment: an update. Mental and Physical Disability Law Reporter 14, 277–87. Meisel v. Kremens, 405 F. Supp. 1253 (E.D. Pa. 1975). Meloy L.R., Haroun, A., Schiller, E.F. 1990: Clinical Guidelines for Involuntary Outpatient Treatment. Sarasota, FL: Professional Resources Exchange, Inc. Metaxos v. People, 230 P. 608 (Colo. 1924). Miller, R.D. 1982. The least restrictive environment: hidden agendas and meanings. Community Mental Health Journal 18, 46–55. Miller, R.D. 1985. Commitment to outpatient treatment: a national survey. Hospital and Community Psychiatry 36, 265–7. Miller, R.D. 1987: Involuntary Civil Commitment of the Mentally Ill in the Post-reform Era. Springfield, Illinois: Charles C. Thomas. Miller, R.D. 1988a. Outpatient civil commitment of the mentally ill: an overview and an update. Behavioral Sciences and the Law 6, 99–118. Miller, R.D. 1988b. In reply (letter). Hospital and Community Psychiatry 39, 784. Miller, R.D. 1990: Involuntary civil commitment. In Simon, R.I. (ed.), Annual Review of Clinical Psychiatry and the Law. Washington, DC: American Psychiatric Press, 95–172. Miller, R.D. 1992. An update on involuntary civil commitment to outpatient treatment. Hospital and Community Psychiatry 43, 79–81. Miller, R.D., Fiddleman, P.B. 1983. Outpatient commitment: treatment in the least restrictive environment? Hospital and Community Psychiatry 35, 147–51. Miller, R.D., Maher, R., Fiddleman, P.B. 1984. The use of plea bargaining in civil commitment. International Journal of Law and Psychiatry 7, 395–406. Miller, R.D., Luskin, R.L., Starrett, D., et al. 1987: Involuntary Commitment to Outpatient Treatment. American Psychiatric Association Task Force Report 26. Washington, DC: American Psychiatric Press.

Morrissey v. Brewer, 408 U.S. 471 (1972). Mulvey, E.P., Geller, J.L., Roth, L.H. 1987. The promise and peril of involuntary outpatient commitment. American Psychologist 42, 571–84. Munetz, M.R., Grande, T., Kleist J., et al. 1996. The effectiveness of outpatient civil commitment. Psychiatric Services 47, 1251–3. Munetz, M.R., Geller, J.L., Frese F.J. III. 2000. Commentary: Capacity-based involuntary outpatient treatment. Journal of the American Academy of Psychiatry and the Law 28, 145–8. New Jersey v. Carter, 64 N.J. 382 (1974). Policy Research Associates, Inc. 1998: Final Report, Research Study of the New York City Involuntary Outpatient Commitment Pilot Program (unpublished), New York. Rubenstein, L.R. 1985. APA’s Model Law: hurting the people it seeks to help. Hospital and Community Psychiatry 36, 968–72. Schmidt, M.L., Geller, J.L. 1990. Involuntary administration of medication in the community: the judicial opportunity. Bulletin of the American Academy of Psychiatry and the Law 17, 283–92. Schwartz, S.L., Costanzo, C.E. 1987. Compelling treatment in the community: distorted doctrines and violated values. Loyola (LA) Law Review 20, 1329–429. Stein, L.I., Diamond, R.J. 2000. Commentary: A ‘systems’based alternative to mandatory outpatient treatment. Journal of the American Academy of Psychiatry and the Law 28, 159–64. Swartz, M.S., Swanson, J.W., Wagner, H.R., et al. 1995. Can involuntary outpatient commitment reduce hospital recidivism? Findings from a randomized trial of severely mentally ill individuals. American Journal of Psychiatry 156, 1968–75. Telson, H., Glickstein, R., Trujillo, M. 1999: Report of the Bellevue Hospital Center Outpatient Commitment Pilot Program (unpublished) New York. Torrey, E.F., Kaplan, R.J. 1995. A national survey of the use of outpatient commitment. Psychiatric Services 46, 778–84. Van Putten, R.A., Santiago, J.M., Berren, M.R. 1988. Involuntary outpatient commitment in Arizona: a retrospective study. Hospital and Community Psychiatry 39, 953–8. Van Putten, T. 1974. Why do schizophrenic patients refuse to take their drugs. Archives of General Psychiatry 31, 67–72. Zanni, G., DeVeau, L. 1986. A research note on the use of outpatient commitment. Hospital and Community Psychiatry 37, 941–2.

16 The right to treatment JEFFREY L. GELLER

Whereas the right to treatment was born in the early 1960s, its progenitor was the decades of parlous neglect of patients in America’s public psychiatric institutions through the mid-twentieth century. Kenneth Appel, MD, chairperson of the mental hospitals committee of the Group for the Advancement of Psychiatry, proclaimed in 1947, ‘Automobiles get better attention than most mental patients today. The grass surrounding the state hospitals receives more care and consideration than the patients inside.’ (Deutsch 1948, p. 98) In his 1958 presidential address to the American Psychiatric Association, Harry Solomon indicated that ‘the large mental hospital is antiquated, outmoded, and rapidly becoming obsolete. We can build them but we cannot staff them … they are bankrupt beyond remedy.’ (Solomon 1958, p. 7). Much of the right-to-treatment litigation has focused on establishing standards of care and concomitant staffing patterns. In the 1940s, the American Psychiatric Association (APA) maintained that there should be no less than one psychiatrist for every 150 hospitalized patients, one graduate nurse for every forty patients, and one attendant for every eight patients, but no state hospital of the day met all the APA’s standards (Deutsch 1948). The history of the right to treatment is that of a moral position casting about for legal grounding. The right to treatment has been variously based on the Eighth Amendment (cruel and unusual punishment), the Fourteenth Amendment (both the due process clause and the equal protection clause), the quid pro quo rationale (treatment is due to civilly committed patients in exchange for enforced confinement), and the least restrictive alternative doctrine (‘deprivations of liberty solely because of dangers to ill persons themselves should not go beyond what is necessary for their protection’ (Lake v. Cameron 1966, p. 660). Further, courts have struggled with clearly defining treatment, differentiating between treatment and habilitation, and distinguishing between the rights and needs of persons with mental illness, and those with mental retardation.

INSTITUTIONAL TREATMENT The early years: 1960–1974 The right to treatment was initially articulated by Morton Birnbaum, a lawyer and physician, who argued in 1960: If the right to treatment were to be recognized, our substantive constitutional law would then include the concepts that if a person is involuntarily institutionalized in a mental institution because he is sufficiently mentally ill to require institutionalization for care and treatment, he needs, and is entitled to, adequate medical treatment; that an institution that involuntarily institutionalizes the mentally ill without giving them adequate medical treatment for their mental illness is a mental prison; and that substantive due process of law does not allow a mentally ill person who has committed no crime to be deprived of his liberty by indefinitely institutionalizing him in a mental prison (Birnbaum 1960, p. 503).

The first tests of Birnbaum’s theory were in criminal committees. In Rouse v. Cameron (1966), Judge Bazelon found that a District of Columbia statute mandated treatment for a patient committed after a finding of not guilty by reason of insanity. Judge Bazelon postulated, however, that there could be constitutional violations in confinement without treatment, noting the Eighth and Fourteenth amendments. He further remarked that the ‘hospital need not show that the treatment will cure or improve him, but only that there is a bona fide effort to do so’ (Rouse v. Cameron 1966, p. 456). In Nason v. Superintendent of Bridgewater State Hospital (1968), the Supreme Judicial Court of Massachusetts found a constitutional right to treatment for a patient found incompetent to stand trial and whose further court proceedings required his return to competency. This court grounded its decision in the due process clause of the Fourteenth Amendment.

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The right to treatment was first applied to civilly committed patients in Wyatt v. Stickney (1971), a federal district court case, affirmed by the Court of Appeals, which challenged the deplorable conditions in the Alabama state hospitals. Judge Johnson adopted the theory articulated in Rouse v. Cameron in a series of far-reaching decisions. In the third Wyatt decision, Judge Johnson indicated he had found that Alabama failed to provide ‘(1) a humane psychological and physical environment; (2) qualified staff in numbers sufficient to administer adequate treatment; and (3) individualized treatment plans.’ (Wyatt v. Stickney 1972, p. 375). The court delineated ‘Minimum Constitutional Standards for Adequate Treatment of the Mentally Ill’ for each of these three areas, outlining in great detail the minimal standards that the state would be required to meet. The staffing standards are of particular interest (see Table 16.1). Other courts took up Judge Bazelon’s analysis, applying it to institutions for the mentally retarded. In New York State Association for Retarded Children v. Rockefeller (1973), the so-called Willowbrook case, the court found that institutionalized mentally retarded persons had a right to protection from harm but no clear right to

treatment. To this point, no case had been heard by the United States Supreme Court.

U.S. Supreme Court: 1975–1982 During this time period the Supreme Court had three major opportunities to find a right to treatment, but did not do so. In O’Connor v. Donaldson (1975), Justice Stewart, writing for the majority of the Supreme Court, indicated that: There is no reason now to decide whether mentally ill persons dangerous to themselves or to others have a right to treatment … this case raises a single, relatively simple but nonetheless important question concerning every man’s constitutional right to liberty. (O’Connor v. Donaldson 1975, 573).

Rather, the Court found: A state cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of

Table 16.1 A comparison of state hospital staffing pattern per 250 patients as required by Wyatt v. Stickney (1972), U.S. v. Indiana (1984), U.S. v. Hawaii (1991), and U.S. v. Virginia (1999)

Staff member

Wyatt v. Stickney (1972)

U.S. v. Indiana (1984)1

U.S. v. Hawaii (1991)2

U.S. v. Virginia (1999)3

8.3

16

18.25 ⫹ 3 in administrative positions independent of census

Psychiatrist

2

Physician

4

Not discussed

2.5 MDs ⫹ 1.5 NPs

Psychologist (PhD & MA)

3

5.4

12.5

16 ⫹ 1 Director

Social worker (MSW & BA)

7

7.5

16.7

1 per treatment team of 15–25 patients (size dependent on type of patient population)

Rehabilitation staff (O.T. & R.T.)

12

Not discussed

27.8

Specified by functions not numbers

Registered nurse

12

13.8 excluding nights

Licensed practical nurse

6

272 Of these, must be: at least one RN per ward per shift; RNs must be 30% of each ward’s staff; any 1:1 or other special assignments are in addition

5.0–5.5 HPPD4 Of these, must be: at least one RN per ward per shift; RNs must make up 25–35% of HPPD depending on type of patient population; any 1:1 staffing is in addition

Aides

92

Not discussed

153

1 Based on assumption of 50% acute patients (as defined by consent decree) and 50% continuing care patients; also based on 1.7 FTE nursing staff to have 1 FTE on duty every day. 2 Based on assumption of 18% acute patients, 32% long-term care patients and 50% forensic patients; also based on 1.7 FTE nursing staff to have 1 FTE on duty every day. 3 Central State Hospital. Based on assumption of 34% civil patients and 66% forensic patients. 4 HPPD is nursing care hours per patient day. It is used to calculate staff as follows: required number of nurses and direct care staff ⫽ (1.8 ⫻ average no. of patients ⫻ HPPD)/8.

The right to treatment 123 willing and responsible family members or friends.’ (O’Connor v. Donaldson 1975, 576).

To emphasize the absence of a finding of a right to treatment, in a concurring opinion Chief Justice Burger found: … no other basis for equating an involuntarily committed mental patient’s unquestioned constitutional right not to be confined without due process of law with a constitutional right to treatment. (O’Connor v. Donaldson 1975, p. 587–588, emphasis in original).

However, while Chief Justice Burger’s opinion appears to reject the right to treatment, the majority opinion, while failing to find such a right, does not explicitly reject it either. In fact, the use of the phrase ‘without more’ has been interpreted by some to mean that non-dangerous individuals cannot be involuntarily hospitalized without treatment. Hence lower courts could, and have, considered the right in subsequent litigation. Having failed explicitly to find a right to treatment for the mentally ill, the Supreme Court turned its attention to the mentally retarded. In Halderman v. Pennhurst State School & Hospital (1977), the Federal District Court found: … that when a state involuntarily commits retarded persons, it must provide them a reasonable opportunity to acquire and maintain those life skills necessary to cope as effectively as their capacities permit.

The Supreme Court again did not reach the issue of a constitutional basis for a right to treatment or habilitation, but rather found in this case that the Developmental Disabilities Assistance and Bill of Rights Act (an act establishing a federal-state grant program) did not guarantee to institutionalized mentally retarded persons any such rights (Pennhurst State School & Hospital v. Halderman 1981). In Youngberg v. Romeo (1982), the Supreme Court did finally address the substantive due process rights of mentally retarded persons involuntarily committed to institutions. The Court specifically addressed whether such persons had rights under the Fourteenth Amendment to ‘(i) safe conditions of confinement; (ii) freedom from bodily restraint; and (iii) training or “habilitation” ’ (Youngberg v. Romeo 1982, 309). The Court held: Respondent has constitutionally protected liberty interests under the Due Process Clause of the Fourteenth Amendment to reasonably safe conditions of confinement, freedom from unreasonable bodily restraints, and such minimally adequate training as reasonably may be required by their interests … . And in determining what is ‘reasonable’, courts must show deference to the judgment exercised by a qualified professional, whose decision is presumptively valid. (Youngberg v. Romeo 1982, p. 307).

The ‘training’ aspect of this case appeared to particularly interest members of the Court. Justice Blackmun, in a concurring opinion, articulated that the level of training should be ‘that habilitation or training necessary to preserve those basic self-care skills he possessed when he first entered Pennhurst.’ (Youngberg v. Romeo 1982, p. 327, emphasis in original). On the other hand, in his concurring opinion Chief Justice Burger opined: I would hold flatly that respondent has no constitutional right to training, or ‘habitation’, per se … . I agree with the court that some amount of self-care instruction may be necessary to avoid unreasonable infringement of a mentally retarded person’s interests in safety and freedom from restraint, but it seems clear to me that the Constitution does not otherwise place an affirmative duty on the state to provide any particular kind of training or habilitation – even such as might be encompassed under the essentially standardless rubric ‘minimally adequate training’ to which the Court refers. (Youngberg v. Romeo 1982, p. 329–330).

Subsequent to Youngberg: 1983–1990 The Supreme Court did much less than those who championed the cause of the right to treatment would have hoped. Even before the Supreme Court completed its way through these cases, psychiatrists with particular expertise in these matters were doubtful of the usefulness of the judicial process for this right. Stone (1975) argued, ‘The right to treatment cannot come from complicated judicial discourse about civil rights and about civil liberties.’ Roth (1977) lamented, ‘I do not believe that the so-called right-to-treatment laws will ever provide the help that physicians hoped they would in ensuring that patients receive needed and effective treatment.’ The right to treatment continued to struggle throughout this period. Litigation in federal court attempting to broaden Youngberg is best exemplified by the long struggle between Morton Birnbaum and New York State, started as Woe v. Matthews (1976) and ending as Foe v. Cuomo (1989). The major advances in the right to treatment in the 1980s occurred pursuant to the Civil Rights of Institutionalized Persons Act (CRIPA) of 1980. This act authorizes the U.S. government to institute a civil action against any state whose officials, employees, or those acting on their behalf are ‘subjecting persons residing in or confined to an institution to egregious or flagrant conditions which deprive such persons of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States causing such persons to suffer grievous harm.’ Under this authority, the Civil Rights Division of the U.S. Justice Department has been able to substantially bring the right to treatment closer to a reality for thousands of persons in state psychiatric hospitals

124 Legal regulation of psychiatric practice

and in developmental disabilities/mental retardation facilities. It has done so by applying the standards of Youngberg, and it has accomplished its end largely through the vehicle of consent decrees. Just how far this process has come can be ascertained by comparing the staffing parameters of the Wyatt case, the first consent decree in 1984 (United States v. Indiana 1984), and a consent decree initiated in the late 1980s (United States v. Hawaii 1991) (see Table 16.1).

ADA and Wyatt: 1990–2000 The Americans with Disabilities Act (ADA), passed on July 26, 1990, is an act ‘to establish a clear and comprehensive prohibition of discrimination on the basis of disability.’ The Act has four major components: Title I applies to employment; Title II to public services; Title III to accommodations required of private entities; and Title IV to telecommunication services. Enforcement varies by Title. Title I is enforced by the Equal Employment Opportunity Commission (EEOC); Titles II–IV are enforced by specific government agencies, such as Department of Housing and Urban Development enforcing housing; and the United States Department of Justice (USDOJ) enforces all areas of Titles II–IV not enforced by any other federal agency (Wylonis 1999). Title II is of greatest interest in the area of right to treatment in that this title covers state and local government services and so includes state and county hospitals. The part of Title II most pertinent to the right to treatment is at section 12132, which indicates: ‘no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subject to discrimination by any such entity.’ Regulations that were required to be promulgated to operationalize this Act, state at one section, referred to as the ‘integration regulation,’ that ‘A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities’ (28 Code of Federal Regulations 1998, at 35.130(d)). In the ‘reasonablemodifications regulation,’ it states that public entities must make ‘reasonable modifications’ in order not to discriminate ‘on the basis of disability,’ but these pubic entities are not required to ‘fundamentally alter’ the nature of the public entity’s programs (28 Code of Federal Regulations 1998, at 35.130(b)(7)). While the ADA addresses public institutions, it was seen not so much as a way to improve services within state and county hospitals, but rather as a way to force states to move patients out of these institutions. The ADA could become a vehicle to further the now four-decade-old movement of patients from institutional to noninstitutional settings, generally referred to as ‘in the community’ (Geller 2000a).

After 30 years, it appears that the Wyatt case may be coming to an end. On January 20, 2000 all parties reached a settlement agreement; a fairness hearing was held on May 4 and a decision was reached July 13. The Settlement Agreement endorsed by the court includes the following components: 1 Accreditation: all mental illness facilities must maintain Joint Commission on Accreditation of HealthCare Organizations (JCAHO) accreditation. 2 Advocacy programs: maintain an advocacy staff to educate about rights, investigate complaints of rights violations, monitor conditions of facilities and certified community programs. 3 Census reduction: specific target census reductions set, but no facility closures required. 4 Community placement: develop a plan and implement ‘out-placements’ and concurrently increase communitybased placements and services. 5 Public education: institute a comprehensive, state-wide plan to enhance the public’s appreciation for abilities, needs and rights of persons with mental illness. 6 Quality improvement: maintain adherence to current policy and procedures and continue Continuous Quality Improvement Systems. 7 Safety and protection: allegations of abuse and neglect require timely responses by trained employees using standard procedures. 8 Treatment and habilitation: Alabama Disabilities Advocacy Program can have input into individualized treatment plans, and consultants will be hired to address special needs populations (dually diagnosed mental illness/mental retardation, organic brain injured, physically handicapped, HIV/AIDS, selfinjurious, others) and to review and make recommendations concerning the use of seclusion and restraint (Wyatt v. Sawyer 2000). While the most recent Wyatt decision addresses conditions in the state facilities of Alabama, it equally addresses institutional downsizing, expansion of community services, and the monitoring of some community services. The projected ending date of this Settlement Agreement is September 30, 2003 or before. The Agreement ends when all parties agree that Alabama has completed ‘certain obligation undertaken in the agreement.’ (Wyatt v. Sawyer 2000). It will be of great interest to see how Alabama proceeds, and to monitor how treatment for those with serious mental illness is actually advanced through these efforts. As a footnote to this era, it is worth noting that CRIPA is still active in the states, although new wrinkles have appeared. States are continuing to write Settlement Agreements with Plans for Continuous Improvement. Newer agreements advance somewhat different requirements from early Consent Decrees (see United States v. Commonwealth of Virginia in Table 16.1). Hawaii recently modified its direction in improving Hawaii State Hospital

The right to treatment 125

by announcing its intent to alter the nature of the hospital by modifying it into a ‘secure rehabilitation facility’ (Act 119, 1999 State of Hawaii Legislature). Florida announced in 2000, amidst litigation (Johnson v. Murphy 1987), that it would close the state hospital that was the subject of the suit (Krueger 2000).

COMMUNITY TREATMENT The right to treatment in the community was initially based on the right to treatment in the least restrictive alternative (LRA), a doctrine first articulated in mental health cases by Judge David Bazelon in Lake v. Cameron (1966). That landmark case prohibited commitment if less ‘restrictive’ treatment alternatives were possible. Although LRA is a convoluted concept at best (Hoffman and Foust 1977; Gutheil, Appelbaum, and Wexler 1983; Munetz and Geller 1993; Fisher et al. 1995), it has provided the basis for extending the right to treatment through both state statutes and the federal court. Most states have statutes conferring a right to appropriate treatment and services, and many states have statutes that explicitly address a right to treatment in the LRA (Beis 1984; Brakel, Parry, and Weiner 1985). In Dixon v. Weinberger (1975), a case involving the patients of Saint Elizabeths Hospital in the District of Columbia, the court, in basing its decision on statutory grounds (the District of Columbia Hospitalization of the Mentally Ill Act), found that patients were guaranteed a right to treatment and that this right was no less than a right to treatment in the LRA. Unfortunately, the Dixon case has resulted, throughout most of its existence, in considerably more process than outcome (Armstrong 1979; Dixon v. Sullivan 1989; Advocates welcome agreement … 2000). Through a Consent Order in late winter of 2000, however, it was hoped that returning the mental health system to the District (by ending the receivership) would hasten compliance with the twenty-five-year-old court decision (Dixon v. Miller 2000; Miller 2000). In Arizona, the Superior Court of Arizona ruled in Arnold v. Sarn (1985, p. 40) that the Arizona Department of Health Services, the Arizona State Hospital, and the Maricopa County Board of Supervisors were obligated to provide, pursuant to state statute, ‘a continuum of care’ through a ‘unified and cohesive system of community mental health care that is well integrated.’ This continuum was defined by the court as including case management, residential services, day treatment, outreach, medications, outpatient counseling, crisis stabilization, mobile crisis services, socialization, recreation, work adjustment, and transportation. This process in Arizona through the mid 1980s has been cogently summarized by Santiago (Santiago et al. 1986; Santiago 1987). The Arnold case remains alive and active in 2000. The plaintiff class and the state of Arizona and Maricopa

County entered into a Supplemental Agreement in December, 1998. Included in what the Defendants are required to complete is a needs assessment on a sample of class members; determine the services necessary to meet these needs and the methodology to create these services; develop interim and long-term plans for the operation of clinical teams; and create standards and conduct performance reviews (Arnold v. ADHS 1998). By August, 1999 a study of the mental health services needs of class members had been completed by the Human Services Research Institute of Cambridge, Massachusetts (Personal communication, H. Stephen Leff to Ronald Smith, August 6, 1999). Progress remains slow. The 2000 Independent Audit Report of the Office of the Monitor states that ‘only modest substantive progress has been made in the areas of assessment, service planning, service provision or adequate monitoring by the clinical teams’ (Arnold v. Sarn 2000, I) and refers to these results as ‘disheartening.’ One of the most far-reaching cases to date, in terms of its outcome, has been Brewster v. Dukakis (1976). Plaintiffs brought action against the Commonwealth of Massachusetts claiming violations of state statutes and federal entitlements focused on their right to be treated in the LRA. Two years later, a consent decree was signed (Brewster v. Dukakis 1978) that mandated a ‘comprehensive community mental health and retardation system to include no less than residential environments; nonresidential treatment, training, and support programs; and management services to coordinate and monitor the network of environments and programs.’ The consent decree focused on those persons of western Massachusetts who had been, were, or could be patients at the Northampton State Hospital. While the outcome has been mixed (Geller et al. 1990a, 1990b; Geller 1991a), some achievements have been remarkable. A decade after the consent decree was signed, every patient in the hospital on the day of the signing had been discharged at least once (Geller et al. 1990a). The Commonwealth of Massachusetts managed to establish in the area covered by the consent decree the best-funded community residential system in the United States (Geller and Fisher 1991). And the lawyer who brought the suit concluded ten years after the decree took effect, ‘By most accounts, few persons are still institutionalized in western Massachusetts or are at risk of hospitalization as a result of a lack of an appropriate, less restrictive alternative’ (Schwartz and Costanzo 1987, p. 1400). Currently, the major changes in community-based treatment are being fuelled by courts’ applications of the ADA to persons in psychiatric institutions. Prior to the first case heard by the U.S. Supreme Court, there were a series of cases in lower federal courts that basically found that persons with mental illnesses must receive care and treatment in community settings where professional judgment finds such treatment to be appropriate (Petrila 1999). An interesting example of such cases is Kathleen S. v. Department of Public Welfare (1998 and

126 Legal regulation of psychiatric practice

1999), a Pennsylvania case which focused on the closing of Haverford State Hospital. The thrust of the case was which, if any, patients could be transferred to Norristown State Hospital (another Pennsylvania state hospital). The court divided the patients into three subclasses and found the following:

• • •

Those identified by the state as appropriate for community placement now – placement immediately. Those identified by the state as placeable during the next three years – place all within one and one half years. Those identified by the state as not placeable and requiring hospital level of care – transfer to Norristown State Hospital, but conduct independent evaluations by a psychologist or psychiatrist within six months to determine appropriateness for community treatment.

The state appealed; the ultimate outcome was a Settlement Agreement between the two parties that made no changes for the first subclass, extended the date for the second subclass by three months, and indicated that all members of the third subclass identified as appropriate for community services would receive them no later than six months after the determination of appropriateness deadline. This case not only supported the right to community-based care and treatment, but established quite narrow time frames for the state to accomplish this objective for all of a state hospital’s patients determined by professional judgment to be appropriate for community-based services. The case of Olmstead v. L.C. (1999) is the hallmark U.S. Supreme Court decision to date on the application of the ADA to persons in state hospitals. The case involved two women with mental retardation – one of whom also had schizophrenia and the other of whom carried a personality disorder diagnosis – who were being maintained in a Georgia state hospital despite the fact that treatment professionals had concluded each could be appropriately treated in community-based programs. The Supreme Court, by a 6-3 majority opinion found that, for any person with a mental disability, community-based treatment rather than institutional placement is required of the states when ‘(1) the state’s treatment professionals have determined that community placement is appropriate; (2) the transfer from institutional care to a less restrictive setting is not opposed by the affected individual; and (3) the community placement can be reasonably accommodated, taking into account the resources available to the state and the needs of others with mental disabilities’ (Olmstead v. L.C. 1999, p. 607). The majority found that the ‘unjustified isolation … [of persons with mental disabilities] is properly regarded as discrimination based on disability’ (Olmstead v. L.C. 1999, p. 597). This finding is rooted in the majority’s opinion that ‘institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community

life’ (Olmstead v. L.C. 1999, p. 600) and that institutional confinement ‘severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment’ (Olmstead v. L.C. 1999, p. 601). The implications of the Olmstead case for the right to treatment remain unclear. Commentators have noted that the decision is ‘vague,’‘weak,’ and ‘fractured’ (Herbert and Young 1999). Others have remarked ‘that the decision is unlikely to precipitate the widespread creation of community-based services for persons with mental disabilities’ (Appelbaum 1999).

CONCLUSION Where is the right to treatment now? Perhaps best described as in the eye of the hurricane, where so much is swirling around it that one can’t get to it. The federal government is jumping into the fray with legislation passed in the fall of 2000 (Children’s Health Act of 2000 (H.R. 4365)) incorporating parts of the Mental Health Early Intervention, Treatment and Prevention Act (5.2639/H.R. 5091) to fund jail diversion programs, integrated programs for persons with co-occurring mental illness and substance abuse disorders, suicide prevention programs targeted to children and adolescents, and other programs. To whatever degree services in community settings are improved, the scope of those who are in institutions but would be appropriate for care and treatment outside of institutions, continues to expand. A recent court decision stirs the winds of change by finding that an individual can make claims simultaneously under the ADA and under Social Security Disability Insurance (Broadman 2000). And meanwhile, Alberta Lessard, the named plaintiff in the case of Lessard v. Schmidt (1972) – a case that addresses the bases for and procedures of civil commitment – has failed several times over the years to obtain care and treatment from the public psychiatric system in Milwaukee. This because, in a system of downsized acute inpatient treatment, ‘they said I wasn’t sick enough,’ said Ms. Lessard (Mental-illness ruling hinders patients 2000). While the activity level around the right to treatment is high, clarity is far from evident. The concept ‘least restrictive alternative’ was never adequately defined (Munetz and Geller 1993); the concept ‘most integrated setting’ uses new language, but is equally inadequately defined. If an individual has a right to ‘community-based services,’ do we not need to define ‘services,’ and do we not need to define ‘community’ (Geller 1991b; Geller 2000b)? Until such definitions are clear, and until such services are uniformly a reality, the right to treatment remains what in current parlance could be referred to as an ‘unfunded mandate,’ though for persons who would

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be the beneficiaries of this, ‘right’ remains simply an unfulfilled promise.

REFERENCES Act 119, 1999 State of Hawaii Legislature. Advocates welcome agreement to name new ‘transitional’ receiver for Districts mental health system. 2000. Bazelon Center for Mental Health Law News for Release, March 1. Americans with Disabilities Act, public law 101-336, 104 stat. 327, July 26, 1990 (42 U.S.C., sec 12101 et seq). Appelbaum, P.S. 1999. Least restrictive alternative revisited: Olmstead’s uncertain mandate for community-based care. Psychiatric Services 50, 1271–2, 1280. Armstrong, B. 1979. St. Elizabeths Hospital: case study of a court order. Hospital and Community Psychiatry 30, 42–6. Arnold v. ADHS, ASH and Maricopa Board of Arizona Supervisors, No. C-432355 (Ariz. Super. Ct. Maricopa Cty., December 10, 1998). Arnold v. Sarn, No. C-432355 (Ariz. Super. Ct. Maricopa Cty., May 29, 1985). Arnold v. Sarn Independent Review. Office of the Court Monitor, No. C-432355 (Ariz. Super. Ct., June, 2000). Beis, E.B. 1984: Mental Health and Law. Rockville, MD: Aspen. Birnbaum, M. 1960. The right to treatment. American Bar Association Journal 46, 499–505. Brakel, S.J., Parry, J., Weiner, B.A. 1985: The Mentally Disabled and the Law. 3rd edition. Chicago: American Bar Foundation. Brewster v. Dukakis, Civil Action 76-4423-17, C.D. Mass. (filed December 15, 1976). Brewster v. Dukakis, Civil Action 76-4423-F (E.D. Mass. December 6, 1978). Broadman, R. 2000. Americans with Disabilities Act. The Journal of the American Academy of Psychiatry and the Law 28, 236–7. Civil Rights of Institutionalized Persons Act, 42 U.S.C. Sec. 1997 et seq. Deutsch, A. 1948: The Shame of the States. New York: Harcourt, Brace and Co. Dixon v. Miller, Consent Order, U.S. Dist. Ct. for the District of Columbia, C.A. No. 74-285. (March 6, 2000). Dixon v. Sullivan, Civil Action 74-285 (AR) (D.D.C. 1989). Dixon v. Weinberger, 405 F. Supp. 974 (D.D.C. 1975). Fisher, W.H., Geller, J.L., White, C.L., Altaffer, F. 1995. Serving the seriously mentally ill in the ‘least restrictive alternative’: issues from a federal court consent decree. Administration and Policy in Mental Health 22, 423–36. Foe v. Cuomo, 892 F. 2d 196 (2d Cir. 1989). Geller, J.L. 1991a. ‘Any place but the state hospital.’ Examining the assumptions of the benefits of

admission diversion. Hospital and Community Psychiatry 42, 145–52. Geller, J.L. 1991b. Defining the meaning of ‘in the community.’ Hospital and Community Psychiatry 42, 1197. Geller, J.L. 2000a. The last half-century of psychiatric services as reflected in Psychiatric Services, Psychiatric Services 51, 41–67. Geller, J.L. 2000b. American ‘community’ psychiatry. Lancet Suppl. Dec, 540. Geller, J.L., Fisher, W.H. 1991. Reply to ‘Community-based care in western Massachusetts’ (letter to Editor). American Journal of Psychiatry 148, 816. Geller, J.L., Fisher, W.H., Simom, L.J., et al. 1990a. Second generation institutionalization II: The impact of Brewster v. Dukakis on correlates of community and hospital utilization. American Journal of Psychiatry 147, 988–93. Geller, J.L., Fisher, W.H., Wirth-Cauchon, J.L., et al. 1990b. Second generation institutionalization I: The impact of Brewster v. Dukakis on state hospital case mix. American Journal of Psychiatry 147, 982–7. Gutheil, T.G., Appelbaum, P.S., Wexler, D.B. 1983. The inappropriateness of ‘least restrictive alternative’ analysis for involuntary procedures with the institutionalized mentally ill. Journal of Psychiatry and Law 11, 7–17. Halderman v. Pennhurst State School & Hospital, 446 F. 2d 1295 (E.D. Pa. 1977). Herbert, P.B., Young, K.A. 1999. The Americans with Disabilities Act and deinstitutionalization of the chronically mentally ill. The Journal of the American Academy of Psychiatry and the Law 27, 603–13. Hoffman, P.B., Foust, L.L. 1977. Least restrictive treatment of the mentally ill: a doctrine in search of its senses. San Diego Law Review 14, 1100–54. Johnson and United States v. Murphy, C.A. No. 87-369-CIVT-24 (E) (M.D. Fla.) (Files 1987; U.S. intervention granted 1998). Kathleen S. v. Department of Public Welfare 10 F Supp. 2d 460 (ED Pa 1998). Kathleen S. v. Department of Public Welfare 1999 U.S. Dist. LEXIS 194-98. Krueger, C. 2000. Case’s scope has changed over time. St. Petersburg Times, August 7, p. 1B. Lake v. Cameron, 364 F. 2d 657 (D.C. Cir. 1966). Lessard v. Schmidt, 349 F. Supp. 1978 (E.D. Wis. 1972). Mental-illness ruling hinders patients. 2000. Deluth New Tribune, August 28. Miller, B. 2000. Plan approved to restore D.C.’s control of mental health. Washington Post, March 7, p. B4. Munetz, M.R., Geller, J.L. 1993. The least restrictive alternative in the postinstitutional era. Hospital and Community Psychiatry 44, 967–73. Nason v. Superintendent of Bridgewater State Hospital, 233 N.E. 2d 908 (Mass. 1968).

128 Legal regulation of psychiatric practice New York State Association for Retarded Children v. Rockefeller, 357 F. Supp. 752 (E.D. N.Y. 1973). O’Connor v. Donaldson, 422 U.S. 563 (1975). Olmstead v. L.C. 119 S. Ct. 2176 (1999). Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1981). Petrila, J. 1999. The Americans with Disabilities Act and community-based treatment law. Psychiatric Services 50, 473–4, 480. Roth, L.H. 1977. Involuntary civil commitment: the right to treatment and the right to refuse treatment. Psychiatric Annals 7, 244–57. Rouse v. Cameron, 373 F. 2d 451 (D.C. Cir. 1966). Santiago, J.M. 1987. Reforming a system of care: the Arizona experiment. Hospital and Community Psychiatry 38, 270–3. Santiago, J.M., Gittler, A., Beigel, A., et al. 1986. Changing a state mental health system through litigation: the Arizona experiment. American Journal of Psychiatry 143, 1575–9. Schwartz, S.J, Costanzo, C.E. 1987. Compelling treatment in the community: distorted doctrines and violated values. Loyola of Los Angeles Law Review 20, 1329–429.

Solomon, H.C. 1958. The American Psychiatric Association in relation to American psychiatry. American Journal of Psychiatry 115, 1–9. Stone, A.A. 1975. Overview: The right to treatment – comments on the law and its impact. American Journal of Psychiatry 132, 1125–34. 28 Code of Federal Regulations 35.130(b)(7) (1998). 28 Code of Federal Regulations 35.130(d) (1998). United States v. Commonwealth of Virginia, C.A. No. 99-642-A (E.D. Va., Alexandria D.V. 1999). United States v. Hawaii, Civil No. 91-00137 (D.A.E.) (D. Haw. Sept. 18, 1991). United States v. Indiana et al. No. 1P84-411C (S.D. Ind. April 6, 1984). Woe v. Matthews, 408 F. Supp. 419 (E.D. N.Y. 1976). Wyatt v. Stickney, 325 F. Supp. 781 (M.D. Ala. 1971). Wyatt v. Stickney, 344 F. Supp. 373 (M.D. Ala. 1972). Wyatt v. Sawyer, 2000. U.S. Dist. LEXIS 10398 (Filed July 13, 2000). Wylonis, L. 1999. Psychiatric disability, employment and the Americans with Disabilities Act. Psychiatric Clinics of North America 22, 147–58. Youngberg v. Romeo, 457 U.S. 307 (1982).

17 Treatment refusal in psychiatric practice DEBRA A. PINALS AND STEVEN K. HOGE

Historically, the rights of mentally ill patients to refuse treatment have been limited compared to persons without mental illnesses. This was primarily the case for patients committed to psychiatric facilities, but also applied to some voluntary patients (Appelbaum 1994). Society granted psychiatrists the authority to determine the course of treatment for committed patients and, if necessary, to administer it over objections. This was the backdrop until the last quarter of the twentieth century. By now, virtually every jurisdiction recognizes some version of the right of persons with mental illness, whether committed or not, to refuse treatment. In order to understand current legal approaches to treatment refusal, it is necessary to unravel the factors that led to this dramatic change in the nature of doctor–patient relationships in psychiatric institutions. Along with developments in mental health case law, the evolution of the informed consent doctrine and public perception about the quality of care delivered in institutions all played important roles with respect to the currently recognized right to refuse treatment (Hoge, Appelbaum, and Geller 1989; Perlin 1993; Appelbaum 1994; Winick 1997). A crucial legal development was the shift in the legal justification for civil commitment away from paternalistic grounds – operationalized in a need-for-treatment criterion – to grounds rooted primarily in the police powers of the state and dangerousness-oriented criteria. When the legal standard for involuntary hospitalization was one of need for treatment, a post-commitment right to refuse treatment made no conceptual sense. However, when states adopted the new dangerousness-oriented criteria, it became possible for courts to separate the need for confinement from the need for treatment and to question why treatment was essential, once the threat of harm had been averted (Appelbaum 1988; Hoge, Appelbaum, and Geller 1989; Appelbaum 1994). In addition, until the 1960s committed patients were regarded as globally incompetent to make decisions. In that decade the notion that status as a committed patient equated with incompetence began to fall in the face of clinical and legal pressures. Psychiatrists’ efforts to reintegrate

committed patients back into the community were thwarted by presumptions that they were incompetent to sign leases or enter into other contractual arrangements. A growing mental patients’ rights advocacy movement began to win for this group greater legal equality with other patients who retained the legal presumption of competence. As a result, by the early 1970s the presumption that committed patients were globally incompetent had virtually disappeared (Appelbaum 1994). The presumption of competence for committed patients was a pivotal development that gained even greater significance with the maturation of the doctrine of informed consent. From a clinical and scientific perspective, an enormous amount of research effort has been put forth in the past decade to elucidate capacities related to decision-making in both treatment and research settings for persons with mental illness. This literature has further supported the notion that persons with mental illness are not, by definition, incompetent to make their own decisions. Careful examination of their specific treatment decision-making capacity is required before a determination of incompetence could be made for a given individual (Gutheil and Appelbaum 2000). Informed consent law also requires doctors to go beyond mere description of the nature of the proposed treatment. In order to obtain a valid consent, doctors must disclose the risks and benefits of the treatment, alternatives to the proposed treatment, their risks and benefits, and the risk of no treatment. This expanded scope of disclosure enables individualized decision making, with the emphasis on patient autonomy to choose amongst options. Thus, informed consent made explicit that the choice of treatment was inherently an individual value judgment, and not an objective determination to be made by an authority on scientific or medical grounds. Medical decision-making authority shifted dramatically from physicians to patients. Finally, the evolving informed consent doctrine provided courts with a convenient analytic tool, the risk-benefit ratio, by which laypeople, judges, or other surrogate decision makers could evaluate alternative treatments (Appelbaum 1988; Hoge, Appelbaum,

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and Geller 1989; Appelbaum 1994; Gutheil and Appelbaum 2000). For further discussion of informed consent, see Chapter 13. Finally, concerns about the quality of care in psychiatric institutions also figured prominently in the emergence of the right to refuse treatment. The broad discretion that society had vested in psychiatrists to make treatment decisions in these facilities presumed that their decisions would be in the best interests of patients: patients would receive individualized treatment based on their specific needs. This longstanding grant of authority extended to the use of antipsychotic medications and, in the early years of their use, there was no reason to question how these medications were being employed. Antipsychotic medications – the first effective treatment for the severely mentally ill – were regarded as miracle drugs. Our understanding of these medications changed with time, as did the assumption of beneficence on the part of prescribing psychiatrists (Winick 1997). Specifically, the inherent limitations of antipsychotic medications were recognized and it was realized that the medications were not a panacea for mental illness. The risks of treatment were increasingly appreciated as long-term administration led to potentially irreversible tardive dyskinesia in a significant minority of patients (Slovenko 2000). Over time, the judgments of psychiatrists who prescribed these medications came under attack. Patients in some underfunded institutions, it was asserted, had been sedated with antipsychotic medications for staff convenience. Worse, it was claimed that patients received medications as punishment; and some institutions were said to have insufficient resources adequately to monitor their patients’ pharmacotherapy (Hoge, Appelbaum, and Geller 1989).

LEGAL CRITERIA In view of the diverse factors underlying the recognition of a right to refuse treatment, it is not surprising that a variety of legal approaches have emerged that differ in defining the contours of the right and in the prescription of procedural protections (Appelbaum 1988; Appelbaum 1994). Even within a single state, the rules governing treatment refusal may differ depending on whether the patient is hospitalized in a public or private facility and in what jurisdiction the issue is being heard. Definitions of what constitutes incompetence, or an emergency sufficient to override treatment refusal, for example, vary greatly. Thus, it is necessary that psychiatrists familiarize themselves with the relevant case law, statutes, and regulations relating to the specific setting. Legal approaches to the adjudication of treatment refusal can be categorized into two groups, based on whether they are driven primarily by concerns about patient rights or by concerns about the quality of patient

care (Appelbaum 1994). These fundamentally different legal approaches are typified by the two initial cases in this area. In Rogers v. Commissioner of Mental Health (1983) the Massachusetts Supreme Judicial Court adopted a rights-driven model, relying on state statutes and common law principles; in contrast, in Rennie v. Klein (1983) the Third Circuit of the U.S. Court of Appeals found that a treatment-driven model satisfied U.S. constitutional requirements. As case law in each of these areas evolved, several constitutional arguments have been made justifying a right to refuse treatment. Among these constitutional arguments are the right to free speech, based in part on the First Amendment, a right to be free of cruel and unusual punishment based on the Eighth Amendment, a right to due process, from the Fourteenth Amendment, and a right to privacy, derived in a general sense from the penumbra of the First, Fourth, Fifth, and Ninth Amendments (Ciccone et al. 1990; Hermann 1990).

Rights-driven models Rights-driven models are primarily concerned with the individuals’ autonomy and thus seek to protect patients’ rights to determine the course of their treatment. These rights-driven models have at their core an informed consent analysis: competent patients have the right to refuse treatment, absent an emergency; only the treatment refusals of incompetent patients may be overridden. Most jurisdictions with a rights-driven model will require a formal, legal adjudication of incompetence, but some variants of this model place the determination of competence in the hands of psychiatrists or a board (Appelbaum 1994). In general, those states that hold formal judicial hearings do not place the treatment decision in clinical hands, even following a determination of incompetence. Courts, such as the Rogers court, have feared that psychiatrists will be unable to curb past abuses because competing interests – maintaining order in the facility, discharging patients, pleasing family members – may influence their treatment decisions. Instead, in many jurisdictions the decisionmaking authority for the patient is vested in a guardian. In other jurisdictions (for example, Massachusetts and New York) the court may make the treatment decision itself. Standards for decision making may involve a variety of models (Wettstein 1999; Gutheil and Appelbaum 2000). In the first, and one of the more common prototypes, treatment decisions are made based on what is considered by an objective decision maker (e.g., the court or a guardian) to be in the best interests of the patient. An alternative rigorous standard of decision making is the substituted judgment model. In this model, the courts attempt to approximate decisions regarding treatment based on what the patient would have wanted if competent. In the Rogers case for example, the courts concluded

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that a substituted judgment determination requires evidence including the patient’s stated preferences, experienced side effects of the medication, family preferences, prognosis with and without treatment and any religious considerations that should be entered into the determination (Rogers v. Commissioner of Mental Health, 1983). This method, although respectful of a patient’s autonomy, can be difficult if the patient was never competent (Superintendent of Belchertown State School v. Saikewicz, 1977) or if there is no family or available means to ascertain the patient’s preference during times when they may have been competent.

Treatment-driven models Treatment-driven models have been devised by courts and legislatures that view patients’ right to refuse treatment as limited to inappropriate care. The notion that civil commitment is intended to bring about treatment – and not merely confinement – animates the treatmentdriven model of adjudicating refusal. Committed patients are entitled to refuse treatment only when it is not truly prescribed to therapeutic ends. Because the standard for overriding refusal is based on the appropriateness of the prescribed treatment, treatment-driven models place the primary authority to override refusal in the hands of professionals – be they treating psychiatrists, medical directors, independent psychiatrists, or multidisciplinary boards – who can identify misuses of medication. Moreover, because the determinations are made by clinicians, the procedures for review are often informal and do not require judicial hearings (Appelbaum 1994). The perspective of which model is more reasonable depends on one’s role with the treatment-refusing person. Psychiatrists generally favor treatment-driven models of adjudicating treatment refusal because they recognize the primacy of clinical decision making and therapeutic goals, and eliminate the possibility that patients who need medications will go untreated. Administrators also favor such models because they minimize the diversion of clinical time from treatment efforts. Legal and patient’s rights advocates generally object to treatment-driven models. In these models they perceive lesser protections for the rights of committed patients, which means disadvantage, loss of autonomy, and diminished dignity for persons with mental illnesses.

Differences between state and federal courts State and federal courts have charted different courses in deciding right-to-refuse-treatment cases, as was signaled by the Rennie and Rogers decisions. Federal courts have typically been willing to show deference to psychiatrists’ judgments regarding committed patients. The U.S. Supreme Court, for example, specifically instructed the

Third Circuit Court of Appeals to take the Supreme Court decision of Youngberg v. Romeo (1982) into consideration in deciding Rennie v. Klein. In Youngberg, a case involving a committed, retarded patient’s right to treatment and freedom from restraint, the Supreme Court found that the exercise of professional judgment was sufficient protection of patients’ rights when their liberties conflicted with therapeutic purposes. Lower federal courts have relied on Youngberg in adopting or upholding treatmentdriven models, as the Rennie court did (Hoge, Appelbaum, and Geller 1989; Appelbaum 1994). More recently, the U.S. Supreme Court decided a case involving the right of a mentally ill prisoner to refuse treatment, Washington v. Harper (1990). The court upheld the state of Washington’s regulatory scheme, a variant of the treatment-driven model that predicated override of refusal on a finding that the patient met commitment criteria and needed treatment. The regulations established procedures for review, including the right to notice, a hearing before a professional panel, and lay representation. Although the decision could be read narrowly as affecting only prisoners, at least one court has already relied on it – at least partly – in ruling on civilly committed patients’ right to refuse (Williams v. Wilzack 1990). Some state courts have been willing to find greater rights for committed patients than the minimum set by the federal courts, in some cases, moving to adopt rightsdriven approaches to adjudication. In doing so, these courts have found that state law – statutes, common law, or state constitutions – provides additional protections beyond those mandated by the U.S. constitution (Hoge, Appelbaum, and Geller 1989; Perlin 1993; Appelbaum 1994).

Impact of the choice of model There are several roles that the forensic psychiatrist may be called on to play with respect to the right to refuse treatment. The laws regulating treatment refusal and override of refusal vary from jurisdiction to jurisdiction; forensic psychiatrists may perform a vital function in educating treating psychiatrists about these laws. Forensic psychiatrists may be called on to act as consultants to treating psychiatrists in managing patients seeking to have their refusal upheld. Alternatively, forensic psychiatrists may be called on to act as expert evaluators for the individual attorneys, hospitals or the court. Finally, psychiatrists knowledgeable about treatment refusal may be called on to help formulate policies and procedures for their hospitals and states. Because of the variety of roles a forensic psychiatrist may take with respect to a treatment refusing patient, it is important to understand the data reflecting the impact of the choice of the model for overriding treatment decisions. The incidence of refusal amongst psychiatric patients has been shown to be greatest in forensic hospitals, ranging

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from 11 per cent to 45 per cent (Appelbaum 1994). In non-forensic settings, however, studies have shown that only approximately 10 per cent of patients will refuse treatment with antipsychotics at some point during inpatient hospitalization, with some variations depending on patient mix (voluntary or involuntary), and other factors (Hoge et al. 1990; Appelbaum 1994; Kasper et al. 1997). Of those, somewhere between 50 per cent and 90 per cent refused treatment for less than one week. When treatment refusal is persistent (which occurs in only a very small percentage of cases), empirical reports from various jurisdictions indicate that regardless of the model employed (rights-driven or treatment-driven), the outcome of review is the same: treatment refusal is overturned in 90–95 per cent of cases (Appelbaum and Hoge 1986). Although a few studies showed that override of refusal may be less frequent in treatment-driven systems (Appelbaum 1994), a more recent study of patients in a treatment-driven jurisdiction found that treatment refusal lasted only 2.8 days, and all patients who persistently refused treatment were ultimately treated involuntarily (Kasper et al. 1997). In contrast, Hoge et al. (1990) found that in a rights-driven setting, refusal episodes lasted about 13 days, while 23 per cent of treatment refusers were not treated at the end of the study period. Some 18 per cent of treatment refusers were brought before a court, where their refusal was consistently overturned. That most treatment refusals that go before a decision-making body (i.e., the courts or an administrative type review) are overturned is undoubtedly due in part to the deference to clinical opinion shown even in rights-driven, judicial models of review. Yet, it is not fair to conclude from these data that the model of review has no impact on practice. Studies from jurisdictions with rights-driven models of review and judicial determinations have reported considerable delays and costs in obtaining hearings, as feared (Veliz and James 1987; Hoge et al. 1990; Schouten and Gutheil 1990). These delays contribute to the increased length of stay seen with treatment refusers. During the interval between refusal and judicial review, refusing patients disrupt the treatment setting – thus impairing the quality of other patients’ treatment – and require seclusion and restraint with greater frequency than other patients (Hoge et al. 1990). On the other hand, judicial review mechanisms – perhaps because they are so procedurally cumbersome – do seem to empower patients. For example, as described above, in one jurisdiction with a rights-driven model, only a small fraction of treatment refusers were taken to review. The majority of patients in this prospective study began to comply with treatment after some period of negotiation and discussion. In some cases, patients were successful in having the dosages of medication reduced. Nearly one-quarter of the patients had their medication discontinued, although in several cases this occurred in conjunction with discharge from the hospital (Hoge et al.

1990). It seems fair to conclude that rights-driven, judicial review does promote autonomy interests, although optimal treatment for refusing patients and fellow patients will be compromised, and considerable financial expense will be incurred as a result. Treatment-driven models of review may offer clear advantages in efficiency and clinical flexibility (Schouten and Gutheil 1990; Bloom et al. 1997). The informal procedures associated with treatment-driven models permit significantly more refusing patients to be reviewed. Although treatment-refusing patients in treatment-driven settings are just as likely to be disruptive and require seclusion and restraint as those in rights-driven settings, lengths of refusals may be shorter and reviews may be conducted more quickly, potentially leading to more rapid treatment and shorter hospital stays (Kasper et al. 1997). Similarly, the easier access to review may permit greater flexibility, while review by clinicians – who have substantive knowledge of mental illness and appropriate treatment – may inject a greater measure of meaningful oversight (Hoge, Gutheil, and Kaplan 1987). Efficiencies gained by treatment-driven models of review may, however, come with some costs. Easy access to review may reduce some of the incentive for treating clinicians to negotiate with refusing patients and to thoroughly evaluate their concerns about medications. Treatment-driven models are also, by definition, not designed to primarily promote patient rights, and there has been concern that patients, when given less of a right to present their side to a neutral party, may not be as accepting of the outcome (Winick 1997, p. 384). Patients may feel that they do not have sufficient voice in a clinician-dominated process (Monahan et al. 1995). These are not necessary consequences of a treatment-driven model of review, but clinicians operating under such systems must be careful to consider the perspective of refusing patients and to treat them with due respect.

RELEVANT DATA General points of assessment REASONS FOR REFUSAL Careful assessment of the reasons for refusal of treatment is essential. In many instances, patients’ refusals of medication are based on actual side effects or other real concerns about their treatment. Often, these symptoms are not detected by clinicians (Weiden et al. 1987). Even common and benign side effects such as dryness and blurring of vision, which seem trivial in comparison with the beneficial effects of the medications, may lead to treatment refusal. It is necessary for clinicians to explore the practical impact and the meaning that patients impart to these side effects. Blurred vision, for example, may impair highly valued activities, such as reading or

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watching television. Patients may also ascribe dire meanings to the medications themselves or their side effects, which they are reluctant to discuss with treating psychiatrists (Hoge et al. 1990; Gutheil and Appelbaum 2000). Certain side effects warrant special mention. Patients may express their experience of akathisia and akinesia in idiosyncratic ways that may be disregarded as delusionally based. Some patients experience dysphoric responses to antipsychotic medication, which may lead to refusal. Many patients are embarrassed to discuss sexual dysfunction related to psychotropic medications, such as impotence, decreased libido, and retrograde ejaculation. Specific inquiry into the reasons behind treatment refusal is a necessary step, before resorting to a legal or administrative procedure to override the refusal (Gutheil and Appelbaum 2000). Side effects should rarely be the basis of long-term treatment refusal. Various psychopharmacological maneuvers – for example, changes in the kind of antipsychotic or other psychotropic medication, dosage amounts and intervals, adjunctive treatments – will bring side effects into control in most instances. A careful explanation of what patients may expect with those changes will alleviate their concerns in many cases. Persistent treatment refusal related to side effects is only likely to occur when the riskbenefit ratio is narrow; for example, when a patient with significant tardive dyskinesia and a history of poor response to neuroleptics refuses medication that the treating psychiatrist feels is necessary. Furthermore, with the introduction of newer medications, clinicians and patients have at hand a wider range of options from which to choose in order to minimize side effects and maximize treatment opportunities for forensic and civil patients (Pinals and Buckley 1999). Treatment refusal is often illness-related. In many instances, patients will refuse antipsychotic medication due to denial of their illness. Some patients will harbor delusions about treatment and medication; for example, patients may believe that the medication is actually a poison. Patients with mania or with psychoses, which include significant components of denial, grandiosity, and expansive mood, are likely to refuse antipsychotic medication (Hoge et al. 1990; Gutheil and Appelbaum 2000). Patients with illness-based reasons for refusing treatment pose the greatest clinical challenges. Even when psychiatrists, nurses, ward staff, family, and friends are intensively involved – and united in support of medication – many of these patients will report that they have accepted medication only as an expedient to leaving the hospital, and not because they have accepted an illnessbased need for treatment (Hoge et al. 1990).

of patients who refuse medication do so shortly after admission (Hoge et al. 1990; Kasper et al. 1997). There may be many reasons for this: patients may be angry and disagree about the need for hospitalization. Empathy, time, and space to adjust to hospitalization, and persuasion may lead to a quick end to treatment refusal. Later in the course of hospitalization, more stable or long-term patients may refuse medication in response to specific problems in the hospital. Patients may refuse treatment to obtain greater attention from their treaters; less verbal patients may refuse treatment as a stereotypic response to distress of a physical or social nature. Finally, treatment refusal may reflect transference issues or other interpersonal difficulties. The assessment of treatment refusal, therefore, requires the broadest possible understanding of the patient’s clinical circumstances (Wettstein 1999; Gutheil and Appelbaum 2000). Other contextual settings of treatment refusal have gained increasing attention. Treatment refusal amongst civil outpatients, for example, has led to more jurisdictions adopting models of outpatient involuntary commitment, which often requires treatment compliance as a condition of outpatient status (Miller 1999; see also Chapter 15). Clinicians working in correctional and forensic settings are faced with other challenges. For example, a pre-trial defendant’s right to refuse treatment has come under increasing legal and clinical scrutiny. The case of Riggins v. Nevada (1992) provided that treatment could only be administered over the objections of a pre-trial defendant when ‘medically appropriate’ and with ‘an overriding justification’ for its administration. However, the court’s opinion left open for further consideration the question of whether a defendant’s treatment refusal can be overridden for the sole purpose of restoration of competence to stand trial. A more recent and notorious federal case, U.S. v. Weston (2000) related to Russell Weston, who allegedly shot at federal officers outside the capital. He was then deemed incompetent to stand trial but refused medications to restore his competence. This case generated further discussions and legal decisions related to the rights of pre-trial defendants to refuse antipsychotic medications (Siegel, Grudzinskas, and Pinals 2001; U.S. v. Weston 2001). (See also Chapter 53.) Regardless of the context, clinicians working with treatment refusing patients should consider the principles outlined above in the management of such refusals. Developing a strong therapeutic alliance and an understanding of the patient’s rationale for refusal may be the treating clinician’s best approach.

Competency assessment CONTEXT OF REFUSAL Clues to managing and assessing the treatment refuser may be suggested by the context in which refusal takes place. For example, in an inpatient setting, the majority

In those jurisdictions with rights-based models, careful assessment of competence is necessary (see Chapter 11 for a general discussion of this topic). Although most jurisdictions recognize a lack of understanding of a proposed

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treatment as determinative of incompetence, frequent impairments of competence will be related to deficiencies in patients’ abilities to express sustained choices, abilities to rationally manipulate information, and in their abilities to appreciate the nature of their problem. With regard to treatment refusal, many patients who refuse treatment are likely to do so because they deny that they are mentally ill (Appelbaum and Hoge 1986; Hoge et al. 1990; Gutheil and Appelbaum 2000).

any potential religious objections to treatment will also be important. Sophisticated psychiatrists in substituted judgment jurisdictions will document competency assessments and compliance of their patients during well periods. Such documentation may prove particularly valuable in the event of a later refusal of treatment (Gutheil and Appelbaum 2000).

REASONING PROCESS Appropriateness of treatment When acting as a consultant, either to the treating psychiatrist or to the patient, the forensic psychiatrist must make an independent determination of the appropriateness of the prescribed treatment. Many episodes of refusal occur among acutely psychotic, newly admitted patients; treatment is frequently appropriate in this clinical context. However, this is not always so, and concerns about the appropriateness of treatment will increase as the risk-benefit ratio narrows. Proper evaluation requires careful attention to history, diagnosis, and assessment of psychopathology and side effects. It is useful to begin with a thorough review of the records and history of the patient. Often, there will be a history of treatment with psychotropic medications. Documented evidence of the patient’s previous response to treatment – in either past or current hospitalizations – should be carefully reviewed. Consulting psychiatrists should establish the patient’s diagnosis. Diagnosis will rely on the review of available records and the diagnostic interview. In some instances, further testing or further information gathering may be necessary. Signs and symptoms of mental illness, particularly those targeted by antipsychotic medication, should be carefully assessed, described, and documented. An essential component of the evaluation is the assessment of any potentially significant side effects, such as abnormal involuntary movements. Structured instruments, such as the Abnormal Involuntary Movement Scale (AIMS), should be utilized when available to assist in the quantification and documentation of side effects. Subjective complaints should be elicited and explored as described above.

Substituted judgment In jurisdictions that rely on a substituted judgment standard for determining whether or not incompetent patients will receive antipsychotic medications, psychiatrists must look for evidence of their patient’s treatment wishes when competent. In many cases the best indication will be the patient’s record of compliance during periods of wellness or times of improved functioning. Family members, friends, and previous inpatient and outpatient psychiatrists are good sources of information. Understanding

In formulating the approach to a particular patient, the episode of treatment refusal must be placed in the broader and longitudinal context of the patient’s treatment; the vast majority of treatment interactions – even for treatment refusers – will be voluntary in nature. A common error is for the treating psychiatrist to regard treatment refusal as merely a legal problem, an obstacle to be surmounted as quickly as possible. The management of an episode of treatment refusal calls upon the varied skills of the psychiatrist: psychopharmacology; psychological management of the therapeutic alliance; and management of the milieu. Psychiatrists must not let their feelings about the law get in the way of acting in the best interest of the patient; indeed, many find strict regulation of the right to refuse treatment to be an outrageous intrusion into clinical matters. Properly handled, treatment refusal may be an opportunity to strengthen the treatment bond (Gutheil and Appelbaum 2000). At any given point in the course of treatment refusal, three options exist: (i) negotiation; (ii) discharge; or (iii) pursuit of an override of the patient’s refusal.

Negotiation Treatment refusal should be viewed initially as an invitation by the patient to negotiate about treatment. The involved psychiatrist will explore the reasons for refusal and its context. Depending on the outcome of this initial assessment, one of two questions need to be addressed: 1 Can the patient be persuaded to accept the prescribed medication? 2 Are there reasonable accommodations that the treating psychiatrist can make to elicit compliance? Throughout the course of an episode of refusal, the treating psychiatrist, like any physician, should make efforts to persuade patients to accept the prescribed treatment. The efforts of the psychiatrist should be augmented by those of the nursing and milieu staff; family members and other loved ones are also important in efforts to persuade patients. Clinicians should guard against becoming entrenched in their positions regarding treatment. In fact, some patients may seek to ensnare the treating psychiatrist in a power struggle, and outside consultation may be helpful

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in negotiating such impasses. Through exploration, the treating psychiatrist may find ways of addressing patients’ concerns about medication. Clarification of misconceptions, frank discussion of side effects, and a consistent posture of seeking to act in the best interest of the patient provide the necessary foundation for resolution. Even if the psychiatrist is unable to elicit voluntary treatment compliance in this particular instance, this approach offers the greatest promise for long-term clinical success (Gutheil and Appelbaum 2000).

Discharge Discharge against medical advice may be considered in some cases when negotiation fails. Clinicians may judge that it is preferable to respect the wishes of the patient rather than to pursue override of refusal. In some instances, there will be little choice. Patients who are competent, in those jurisdictions in which override of refusal turns on this issue, may be discharged if they are judged not to pose unreasonable risk to themselves or others. Discharge from the hospital should not be a rejection of the patient, or abandonment of treatment. It should be made clear to the patient that follow-up is indicated and available, as is future medication treatment (Gutheil and Appelbaum 2000).

Use of formal mechanisms In many instances, it will be impossible to negotiate a reasonable outcome, and discharge will be precluded by the patient’s clinical condition. While there are no absolute rules, it seems that patients with very negative attitudes toward treatment, lacking appreciation of their clinical condition, will be unlikely to voluntarily comply with treatment (Hoge et al. 1990). Once the treating psychiatrist decides to seek override of the patient’s refusal, the patient should be informed of this decision, and the reasons for it. The procedures governing the review of the refusal should be explained and participation encouraged. Clinicians should discuss with patients, to the extent possible, what might be said about them during any adversarial proceeding. In some jurisdictions, patients will have been warned from the outset that their communications during an inpatient psychiatric hospitalization will not be confidential in the event that judicial involvement is required. For some patients, the process of adjudication could be more therapeutic and perceived as less coercive if patients were given a mechanism to express their thoughts (Winick 1997, p. 342–4). As mentioned above, in the majority of cases that are formally reviewed, the refusal will be overturned, and patients should have the reasons explained for this judgment. In most instances patients will accept medication at this juncture, and involuntary administration will be unnecessary. An earlier study by Schwartz, Vingiano, and

Perez (1988) affirmed this in its finding that the majority of patients who received involuntary medication came to accept it voluntarily and to acknowledge the need for treatment. Clinical experience has shown that even when treatments are only available in oral forms, once an official determination has been made to override treatment refusal, many patients will no longer refuse the proposed medication. In jurisdictions designating a decision maker on behalf of the patient (a guardian in most instances), the treating psychiatrist should obtain informed consent from this person, as he or she would from a competent patient. Although it is then not necessary to obtain consent from the patient for legal purposes, it is desirable to continue to engage the patient to the greatest possible extent in his or her treatment, thus maintaining a therapeutic alliance with the patient directly. Where reasonable, patient wishes about treatment should continue to be respected.

REFERENCES Appelbaum, P.S. 1988. The right to refuse treatment: retrospect and prospect. American Journal of Psychiatry 145, 413–19. Appelbaum, P.S. 1994: Almost a Revolution: Mental Health Law and the Limits of Change. New York: Oxford University Press. Appelbaum, P.S., Hoge, S.K. 1986. The right to refuse treatment: what the research reveals. Behavioral Sciences and The Law 4, 279–92. Bloom, J., Williams, M.H., Land, C., Hornbrook, M.C., Mahler, J. 1997. Treatment refusal procedures and service utilization: a comparison of involuntarily hospitalized patients. Journal of the American Academy of Psychiatry and the Law 25, 349–57. Ciccone, J.R., Tokoli, J.F., Clements, C.D., Gift, T.E. 1990. Right to refuse treatment: impact of Rivers v. Katz. Bulletin of the American Academy of Psychiatry and the Law 18, 203–15. Gutheil, T.G., Appelbaum, P.S. 2000: Clinical Handbook of Psychiatry and the Law. 3rd edition. Philadelphia: Lippincott, Williams & Wilkins. Hermann, D.H.J. 1990. Autonomy, self determination, the right of involuntarily committed persons to refuse treatment, and the use of substituted judgment in medication decisions involving incompetent persons. International Journal of Law and Psychiatry 13, 361–85. Hoge, S.K., Appelbaum, P.S., Geller, J.G. 1989: Involuntary treatment. In Tasman, A., Hales, R.E., Frances, A.J. (eds), American Psychiatric Press Review of Psychiatry. Volume 8. Washington, DC: American Psychiatric Press, 432–50. Hoge, S.K., Gutheil, T.G., Kaplan, E. 1987. The right to refuse treatment under Rogers v. Commissioner: preliminary empirical findings and comparisons.

136 Legal regulation of psychiatric practice Bulletin of the American Academy of Psychiatry and the Law 45, 764–9. Hoge, S.K., Appelbaum, P.S., Lawlor, T., et al. 1990. A prospective, multi-center study of patients’ refusal of antipsychotic medications. Archives of General Psychiatry 47, 949–56. Kasper, J.A., Hoge, S.K., Feucht-Haviar, T., et al. 1997. Prospective study of patients’ refusal of antipsychotic medication under a physician discretion review procedure. American Journal of Psychiatry 154, 483–9. Miller, R.D. 1999. Coerced treatment in the community. Psychiatric Clinics of North America 22, 183–96. Monahan, J., Hoge, S.K., Lidz, C., et al. 1995. Coercion and commitment: understanding involuntary mental hospital admission. International Journal of Law and Psychiatry 18, 249–63. Perlin, M.L. 1993. Decoding right to refuse treatment law. International Journal of Law and Psychiatry 16, 151–77. Pinals, D.A., Buckley, P.F. 1999. Novel antipsychotic agents and their implications for forensic psychiatry. Journal of the American Academy of Psychiatry and the Law 27, 7–22. Rennie v. Klein, 720 F.2d 266 (3rd Cir. 1983). Riggins v. Nevada, 112 U.S. 1810 (1992). Rogers v. Commissioner of Mental Health, 458 N.E. 2nd 308 (Mass. 1983). Schouten, R., Gutheil, T.G. 1990. Aftermath of the Rogers decision: assessing the costs. American Journal of Psychiatry 147, 1348–52.

Schwartz, H.I., Vingiano, W., Perez, C.B. 1988. Autonomy and the right to refuse treatment; patients’ attitudes after involuntary medication. Hospital and Community Psychiatry 39, 1049–54. Siegel, D.M., Grudzinskas, A.J., Pinals, D.A. 2001. Old law meets new medicine: revisiting involuntary psychotropic medication of the criminal defendant. Wisconsin Law Review 2, 307–80. Slovenko, R. 2000. Update on legal issues associated with tardive dyskinesia. Journal of Clinical Psychiatry 61 (Suppl. 4), 45–57. Superintendent of Belchertown State School v. Saikewicz, 370 N.E.2d 417 (1977). U.S. v. Weston, 206 F.3d (D.C. Cir.) (2000). U.S. v. Weston, 255 F.3d 873 (D.C. Cir.) (2001). Veliz, J., James, W.S. 1987. Medicine court: Rogers in practice. American Journal of Psychiatry 144, 62–7. Washington v. Harper, 110 S.Ct. 1028 (1990). Weiden, P.J., Mann, J.J., Hass, G., et al. 1987. Clinical nonrecognition of neuroleptic-induced movement disorders: a cautionary study. American Journal of Psychiatry 144, 1148–53. Wettstein, R.M. 1999. The right to refuse psychiatric treatment. Psychiatric Clinics of North America 22, 173–82. Williams v. Wilzack, 573 A.2d 809 (1990). Winick, B.J. 1997: The Right to Refuse Mental Health Treatment. Washington, DC: American Psychological Association. Youngberg v. Romeo, 102 S. Ct. 2452 (1982).

18 Confidentiality and testimonial privilege RALPH SLOVENKO

When may psychiatrists reveal the confidences of their patients? When must psychiatrists reveal their confidences? In this respect, two scenarios are involved, namely ‘in court’ and ‘out of court.’

THE IN-COURT SCENARIO In the in-court (and deposition) scenario, testimonial privilege, or shield law, is designed to protect confidentiality. Let us go fast backward to that part of history relating to medical privilege – the precursor to the psychotherapist– patient privilege that has now been enacted in all states. The medical privilege was an innovation originating in New York in 1828, a time when a person sedulously wanted to conceal from the community the fact that he or she was the victim of some ‘dreadful’ disease that was rampant at the time. In the years following, legislatures of most other states enacted some form of medical privilege, but from the viewpoint of litigation, they were of comparatively little importance when they were enacted. At the turn of the twentieth century, however, the development of life and accident insurance, workers’ compensation, and liability of common carriers rapidly expanded the role of the medical privilege. Personal injury litigation came to represent approximately 90 per cent of all litigated cases, and the medical privilege penetrated these cases. As a consequence, insurance interests came into conflict with the privilege. Furthermore, strong antipathetic comment on the part of the authorities in the law of evidence contributed to the privilege’s unpopularity at law. Surveys of decisions of appellate courts revealed that, for one reason or another, the privilege was held not to shield the physician–patient communication (DeWitt 1958). In one way or another, the privilege was circumvented by an exception or waiver. Moreover, privileges are narrowly interpreted as they go against the general principle that the law is entitled to everyone’s testimony. In suits for personal injuries – the most important area where the privilege is involved – it is considered waived

by the patient instituting litigation. In an oft-quoted expression, the patient cannot make the medical statute both a ‘sword’ and a ‘shield.’ It is considered that a goodfaith claimant suing for personal injuries would not object to the testimony of any physician who examined or treated them; rather, they would want the physician to testify. The defendant is entitled to learn whether the injury complained about predated the alleged incident. A patient who files a lawsuit and resists the release of his or her medical record can forget about their case as it would be presumed that the evidence must be unfavorable or it would have been produced. The death of the patient terminated the privilege in many jurisdictions, so a legatee to a will in testamentary actions or a beneficiary of a life insurance policy could not claim the privilege of the deceased patient (except perhaps when it may be regarded in the interest of the patient). In actions on life and accident insurance policies wherein the truth of the insured’s representations as to his or her health are vital, the insurer may desire to introduce testimony of the insured’s physician to show fraud on the part of the insured in making his/her application. The medical privilege may be circumvented quite easily by the insurer by inserting a provision in the application whereby the insured waives his or her right to the privilege, both for themselves and their beneficiary. The same procedure is often followed in employment applications, and also for disability benefits, pensions, and compensation claims. Such a waiver by contract is generally upheld. This device is particularly useful to the insurer in those states where the termination-by-death rule does not prevail. For large life insurance policies, the insured is required to undergo a medical examination by the company’s physician. As a result, most undesirable risks are eliminated and the problem of the medical privilege is diminished in importance.

State laws on psychotherapy privileges Finding that the medical privilege provided little or no shield, the Group for the Advancement of Psychiatry

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in 1960 urged the enactment of a special psychiatrist– patient privilege. In 1961, as the result of efforts of Professor Joseph Goldstein and Dr. Jay Katz of the Yale Law School, Connecticut adopted a psychotherapist– patient privilege that became the model of statutes adopted in all of the states and proposed for the Federal Rules of Evidence of 1975. The following is a typical statute. (a) Definitions • A ‘patient’ is a person who consults or is examined or interviewed by a psychotherapist. • A ‘psychotherapist’ is (A) a person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be, while engaged in the diagnosis or treatment of a mental or emotional condition, including drug addiction; or (B) a person licensed or certified as a psychologist under the laws of any state or nation, while similarly engaged. • A communication is ‘confidential’ if not intended to be disclosed to third persons other than those present to further the interest of the patient in the consultation, examination, or interview, or persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the psychotherapist, including members of the patient’s family. (b) General rule of privilege. A patient has a privilege to refuse to disclose and to prevent another person from disclosing confidential communications, made for the purposes of diagnosis or treatment of his/her mental or emotional condition, including drug addiction, among him/herself, his/her psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient’s family. (c) Who may claim the privilege. The privilege may be claimed by the patient, by his/her guardian or conservator, or by the personal representative of a deceased patient. The person who was the psychotherapist may claim the privilege but only on behalf of the patient. His or her authority to do so is presumed in the absence of evidence to the contrary. (d) Exceptions • Proceedings for hospitalization. There is no privilege under this rule for communications relevant to an issue in proceedings to hospitalize the patient for mental illness, if the psychotherapist in the course of diagnosis or treatment has determined that the patient is in need of hospitalization. • Examination by order of judge. If the judge orders an examination of the mental or emotional condition of the patient, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered unless the judge orders otherwise.

• Condition an element of claim or defense. There is no

privilege under this rule as to communications relevant to an issue of the mental or emotional condition as an element of his/her claim or defense, or, after the patient’s death, in a proceeding in which any party relies upon the condition as an element of his/her claim or defense.

HISTORY REPEATS The exceptions are so comprehensive that there is scarcely any room left for the privilege to operate. Like the medical privilege, virtually nothing is shielded by the shield. The exceptions include cases in which the condition of the patient is at issue, criminal proceedings, testament contests, malpractice cases, and disciplinary proceedings, as well as other situations (Slovenko 1974; Slovenko 1998). As in the case of medical privilege, the exception that arises most frequently – the patient–litigant exceptions – is where the patient relies on his or her mental condition as an element of a claim or defense, or, after the patient’s death, in any proceeding in which any party relies on the condition as an element of a claim or defense. By injecting mental condition into litigation, the patient is said to waive the privilege, in fairness and to avoid abuses. The adversary is entitled to learn whether the injury or distress claimed by the patient antedated the alleged wrongdoing. In a wrongful death action, privilege is waived in order to establish the cause of death; for example, to rule out suicide. The coroner is entitled to information about the patient, as when suicide is involved. Sometimes, when the testimonial privilege is asserted by the psychiatrist, the covert aim is to avoid scrutiny of the treatment provided. For example, in a lawsuit involving a suicide of a patient following discharge, it may be claimed that the patient was discharged not for medical reasons but for fiscal ones. The attorney may want to learn whether there is a pattern of discharging patients at the expiration of their insurance coverage. In this and other cases, invasion of the privacy of the therapist’s patients may be necessary to establish the allegation. The privilege may be asserted on behalf of the patient, but it belongs to the patient and is waivable by the patient. The state attorney may have access to medical records for investigative purposes but with the proviso that unauthorized redisclosure is prohibited (Beigler 1979). On one ground or another, the privilege has little or no application in criminal cases. Where the defendant pleads not guilty by reason of insanity, mental state is put into issue, thereby waiving any privilege, as in the trial of John W. Hinckley, Jr., the would-be assassin of President Reagan. Some jurisdictions exclude the privilege in all criminal cases, opening the door to medical records of the defendant and the victim. Then too, the right under the U.S. Constitution of a defendant in a criminal case to summon witnesses and to obtain evidence overrides any privilege that a victim or witnesses may have (Dershowitz

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1994). Moreover, a duty to report a patient who poses a danger to others, whether or not a report is made, undercuts any privilege, obliging the therapist to testify or provide information, as in the trial of the Menendez brothers (Slovenko 1998). The same theory may be urged when a parent sues a therapist and seeks the therapy records when the therapist has brought about a ‘revival of memory’ that the parent sexually abused the patient in childhood. In another exception, involving proceedings for hospitalization, the interests of both patient and public call for departure from confidentiality. The rationale given is that since disclosure is authorized only when the therapist determines that hospitalization is needed, control over disclosure is placed largely in the hands of a person in whom the patient has already manifested confidence. In actual fact, a patient opposed to hospitalization may be angered by the breach of confidentiality. The issue of whether disclosures by a therapist to a court-appointed examiner were reasonably necessary to protect the interests of the patient or others is one for the jury; hence the therapist is not entitled to summary disposition (Saur v. Probes 1991). In a court-ordered examination, communications are not privileged with respect to the particular purpose for which the examination is ordered unless the judge orders otherwise. The privilege applies only in the case of a treating, but not an examining, psychiatrist. (The Hippocratic oath applies only in treatment situations.) An examination done at the behest of an attorney, however, falls under the attorney–client privilege, for in this situation the expert is acting as an agent of the attorney. Another exception is made in child custody cases out of regard for the ‘best interest of the child,’ opening the door to a wide range of evidence pertaining to the fitness of the parents. As a general principle, the ‘best interest’ standard overrides any psychotherapist–patient privilege, thereby allowing access to therapy records and testimony of the therapist. Records of treatment of a parent or child occurring years ago, however, might be protected on relevancy grounds. As one court put it,‘Testimony from a psychiatrist who briefly treated the wife seven years ago can be of no relevance to the wife’s present ability to care for the child’ (Peisach v. Antuna 1989). Records will likely be deemed relevant in the case of a patient who is hospitalized during the course of litigation, or is suicidal, or is using illegal drugs, or is surreptitiously engaged in homosexual activity, or is abusing the child. Indeed, reporting laws mandate that a therapist report child abuse to the authorities. Quite often, in child custody disputes, one spouse alleges that the other has been abusing the child, sexually or otherwise. California’s psychotherapist–patient privilege, a copy of the Connecticut statute, was tested shortly after its enactment in 1965 in a much publicized case involving Dr. Joseph Lifschutz (In re Lifschutz 1970). The case was featured in national news weeklies and was reported at numerous meetings of psychiatric societies and in psychiatric and psychoanalytic bulletins and newsletters.

The Northern California Psychiatric Society made a nationwide appeal to psychiatrists for contributions to cover legal expenses. The American Psychoanalytic Association and the National Association for Mental Health filed amicus curiae briefs. Although great effort was exerted on behalf of privilege, the case illustrates the irrelevancy of privilege law (as well as the irrelevancy of much psychiatric testimony). Joseph Housek, a high-school teacher, brought a damage suite against John Arabian, a student, alleging an assault that caused ‘physical injuries, pain, suffering, and severe mental and emotional distress.’ During a deposition taken by defense counsel, Housek stated that he had received psychiatric treatment ten years earlier from Dr. Lifschutz over a six-month period. The defendant then sought Housek’s psychiatric records from Dr. Lifschutz. He refused to produce any of his records, assuming there were any, and also declined to disclose whether or not Housek had consulted him or had been his patient. Thereupon defendant Arabian sought a court order to compel Dr. Lifschutz to answer questions on deposition and to produce the subpoenaed records. The court determined that the plaintiff had put his mental and emotional condition in issue by instituting the pending litigation, and the statutory psychotherapist–patient privilege did not apply. The privilege belongs to the patient – not to the physician – and is waived by the patient as a consequence of bringing suit. Dr. Lifschutz argued a right of privacy separate from that of any individual patient, a right derived from what he saw as a duty not to Housek alone but to all his patients. He argued that the disclosure of one patient’s confidential communications causes damage to all of the therapists’ other patients. He also argued that compelling him to testify, unconstitutionally impairs the practice of his profession. The court was unpersuaded. It said: ‘[W]e cannot blind ourselves to the fact that the practice of psychotherapy has grown, indeed flourished, in an environment of a non-absolute privilege.’ Statements made by a patient to a physician or a psychiatrist as to the symptoms and effects of his or her injury or malady are admissible in evidence on his behalf as an exception to the hearsay rule. Under the sporting theory of justice it is deemed only fair that the defendant also have the benefit of these statements when they are favorable to him or her. Since the privilege is intended as a shield and not a sword, it is considered waived by the patient when he or she makes a legal issue of his/her physical or mental condition. Thus, when plaintiff Housek claimed that he had suffered ‘emotional distress’ as a result of the injuries he had suffered, the privileged status of his communications with his psychiatrist was waived, said the trial court. However, on appeal, the California Supreme Court doubted that ‘the 10-year-old therapeutic treatment sought to be discovered from Dr. Lifschutz would be sufficiently relevant to a typical claim of “mental distress” to bring it within the exception.’

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Because the real test is one of relevancy or materiality (which arises regarding all evidence in every trial), it must be asked: What are the material issues, and what is relevant or competent to establish them? In other words, does the item of evidence tend to prove that precise contention or fact which is sought to be proved? In every case where the testimony or records of a physician or psychotherapist have been required by a court, it was because the evidence was deemed relevant or material to an issue in the case. As a consequence, in the last analysis, the confidentiality of a physician–patient or psychotherapist–patient communication is protected from disclosure in a courtroom only by a showing that the communication could have no relevance or materiality to the issues in the case, or that it is unduly prejudicial. A motion to quash a subpoena is in order when other evidence more relevant and material is available, or would be less intrusive to obtain. Such a procedure might even protect a patient from having to state in discovery processes whether or not he or she ever saw a psychiatrist. At best, the privilege covers communications, not the identity of a patient. Quite often, mental health professionals and others automatically give up records simply because a subpoena has arrived in the mail, without realizing that a subpoena is not a court order. Therapists often assume that a subpoena is an order of the court and they respond as though they are required to comply. Actually, subpoenas are issued by an attorney without court review. The therapist has the right – nay, obligation – to assert the therapist–patient privilege on behalf of the patient, at least until such time as the patient has had the opportunity to be notified. The therapist should alert the patient’s attorney, who may file a motion to quash the subpoena or to obtain a protective order limiting disclosure to that which is relevant and necessary. A privilege must be asserted in a timely fashion in order to prevent discovery; a privilege not so asserted is waived. The privilege is waived when the party releases the records to the opposing attorney or files a witness list naming the treating physician. Once the privilege has been waived, the physician is like any other witness; his or her duty is to tell the truth.

Federal law on psychotherapy privileges The Federal Rules of Evidence, when adopted in 1975, omitted a medical privilege, given the numerous exceptions that had been made to it. Its Advisory Committee, however, recommended a psychotherapist–patient privilege, modeled on the Connecticut law, though the proposal, along with several others, evoked considerable criticism. Two committees of the American Bar Association recommended to the A.B.A. House of Delegates ‘the complete abolition of any and all privilege in the physician–patient area including the proposed “psychotherapist–patient privilege.”’ The Committee on

the Judiciary of the House of Representatives, after extensive hearings, recommended and the House approved the scrapping of all proposed rules on privileges and left the federal law of privileges unchanged, to wit, that the federal courts are to apply the state’s privilege law in actions founded upon a state-created right or defense, while in other civil cases and in criminal cases, according to Rule 501, the principles of the common law, as interpreted by the federal courts in ‘the light of reason and experience,’ would apply. In subsequent years the federal courts in ‘the light of reason and experience’ adopted only an attorney–client privilege and a marital privilege, but by legislation all fifty states and the District of Columbia adopted some form of psychotherapist privilege (Advisory Committee 1975). In subsequent years, the U.S. Second, Sixth, and Seventh Circuit Court of Appeals held that ‘reason and experience’ compel the recognition of the psychotherapist–patient privilege in both civil and criminal cases. In contrast, the Fifth, Ninth, and Eleventh Circuits rejected the privilege. Given the conflict among the circuits, the U.S. Supreme Court granted certiorari in Jaffee v. Redmond (1996). In this civil rights case, coming out of the Seventh Circuit, the surviving family members of a man who was shot and killed by a police officer sought the therapy records of the officer. Mary Lu Redmond, a police officer in an Illinois town, fatally shot Ricky Allen after responding to a report of a disturbance at an apartment complex. She said she shot Allen because he was holding a butcher’s knife and was about to stab another man, but Allen’s mother and other relatives alleged that he was unarmed. Redmond had undergone counseling with a licensed clinical social worker after the shooting, and Allen’s relatives sought to have communications between Redmond and the social worker divulged. Both Redmond and the social worker refused, and the trial judge told jurors they could presume the information would be unfavorable to both Redmond and the town. The Seventh Circuit ordered a new trial. It upheld privilege under Rule 501 of the Federal Rules of Evidence because the ‘key to successful treatment lies in the ability of patients to communicate freely without fear of public disclosure.’ The Seventh Circuit said that the privilege was not absolute and should be determined by balancing the interests protected by shielding the evidence sought with those advanced by the disclosure. In this case, the court found in favor of applying the privilege, noting the strong interest in encouraging officers who are frequently forced to experience traumatic events by the nature of their work to seek qualified professional help. At the same time, the court noted that there were many witnesses to the shooting, and the plaintiffs’ need for the officer’s personal innermost thoughts about the shooting were cumulative at best, compared to the substantial nature of the officer’s privacy interest. So, once again, privilege or no privilege, the outcome depended essentially on relevancy or materiality.

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In oral argument before the U.S. Supreme Court, these issues were raised: 1 Do the Federal Rules of Civil Procedure provide trial judges with adequate tools to protect privacy interests involved in confidential communications with a psychotherapist without creation of new evidentiary psychotherapist–patient privilege under the Federal Rules of Evidence? 2 Should any privilege for psychotherapist–patient communications be extended to social workers, rather than being limited to psychiatrists and clinical psychologists? 3 Should a psychotherapist–patient privilege be recognized and, if so, what would be the scope of the privilege? In the course of oral argument Justice Scalia asked; ‘If somebody comes up to me and, let’s say, my nephew comes up to me and says, “You know, Unc, I want to tell you something in strictest confidence,” and I say,“Yes, you tell me that, I promise you I won’t tell this to anybody.” Is that enough that I’ve undertaken a duty of confidentiality to justify the creation of a privilege?’ And Justice Breyer asked, ‘Why in logic or policy distinguish between physicians who treat physical problems and psychotherapists? Is there any reason in logic or policy, is there any reason, other than what the courts have held? I’m not interested, for this question, what courts have held in the past. I’m interested in whether there is a reason in logic or policy for drawing the line that I just referred to.’ In its decision the Supreme Court declared the privilege to be absolute, or so it said, concluding that anything else would be worthless. ‘Making the promise of confidentiality contingent upon a trial judge’s later evaluation of the relative importance of the patient’s interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege,’ Justice Stevens wrote for the majority. The decision went further than the appellate decision that it affirmed. The Seventh Circuit had created not an absolute privilege but a qualified one, to be balanced in appropriate cases by the ‘evidentiary need for disclosure.’ Although the ruling applies generally to federal litigation, the Court found the law-enforcement context of the case to be particularly persuasive. ‘The entire community may suffer if police officers are not able to receive effective counseling and treatment after traumatic incidents,’ Justice Stevens said, ‘either because trained officers leave the profession prematurely or because those in need of treatment remain on the job.’ Two law enforcement organizations – the International Union of Police Associations and the National Association of Police Organizations – joined numerous organizations of mental health professionals in urging the Court to adopt the privilege. Given that all of the states and several circuits had adopted the privilege, it was justified in federal law, Justice Stevens wrote, in ‘the light of reason and experience.’

Under the ambit of the privilege, the Supreme Court included social workers who provide counseling. The Court noted that when Americans turn to psychotherapy, it is often provided by social workers who generally are less expensive that psychiatrists or psychologists. ‘Their clients often include the poor and those of modest means who could not afford the assistance of a psychiatrist or psychologist,’ Justice Stevens wrote. Justice Scalia wrote one of his fiery dissents, suggesting that people would be better advised to seek advice from their mothers than from psychiatrists, yet there is no mother–child privilege. Justice Scalia wrote: When is it, one must wonder, that the psychotherapist came to play such an indispensable role in the maintenance of the citizenry’s mental health? For most of history, men and women have worked out their difficulties by talking to, inter alios, parents, siblings, best friends and bartenders – none of whom was awarded a privilege against testifying in court. Ask the average citizen: Would your mental health be more significantly impaired by preventing you from seeing a psychotherapist, or by preventing you from getting advice from your mom? I have little doubt what the answer would be. Yet there is no mother–child privilege.

Justice Scalia’s suggestion that people would be better advised to seek advice from their mothers rather than from a psychiatrist prompted a comment in a letter to The New York Times: ‘Apparently he has never heard the old story of the mother who boasted about the devotion of her son: “Not only did he buy me a condo, a Cadillac and a mink coat, but he also pays a psychiatrist $250 a visit every week and all he talks about is me”’ (Muravchik 1996). Justice Scalia in his dissent argued that the privilege would interfere with the truth-finding function of the courts and cause the courts ‘to become themselves the instruments of wrong.’ He wrote: Even where it is certain that absence of the psychotherapist privilege will inhibit disclosure of the information, it is not clear to me that that is an unacceptable state of affairs. Let us assume the very worst in the circumstances of the present case: that to be truthful about what was troubling her, the police officer who sought counseling would have to confess that she shot without reason, and wounded an innocent man. If (again to assume the worst) such an act constituted the crime of negligent wounding under Illinois law, the officer would of course have the absolute right not to admit that she shot without reason in criminal court. But I see no reason why she should be enabled both not to admit it in criminal court (as a good citizen should), and to get the benefits of psychotherapy by admitting it to a therapist who cannot tell anyone else. And even less reason why she should be enabled to deny her guilt in the criminal trial – or in a civil trial for negligence – while

142 Legal regulation of psychiatric practice yet obtaining the benefits of psychotherapy by confessing fault to a social worker who cannot testify. It seems to me entirely fair to say that if she wishes the benefits of telling the truth she must also accept the adverse consequences. To be sure, in most cases the statements to the psychotherapist will be only marginally relevant, and one of the purposes of the privilege (though not one relied upon by the Court) may be simply to spare patients needless intrusion upon their privacy, and to spare psychotherapists needless expenditure of their time in deposition and trial. But surely this can be achieved by means short of excluding even evidence that is of the most direct and conclusive effect.

An individual who kills another may feel guilty about it whether or not it was done in lawful self-defense or defense of others. Expressing such feelings in the course of therapy, however, may appear as a confession of wrongdoing when it is used in a legal proceeding. But absolute confidentiality is not acceptable to common sense, as illustrated by a Michigan case involving the murder of Dr. Deborah Iverson, an ophthalmologist. Dr. Iverson, every Thursday morning for several years, would drive to see her psychiatrist, Dr. Lionel Finkelstein, and would park in an adjoining area. One Thursday morning she disappeared after leaving his office and was found strangled a distance away the next day in the backseat of her car. As the media reported, law-enforcement officials questioned Dr. Finkelstein for possible clues. Was the patient threatened? Did she fear someone? Apparently unsatisfied with their interview, the law-enforcement officials obtained a search warrant and seized the patient’s file. Privilege is no bar to a search warrant. Confidentiality cannot be turned into a holy grail without concern for good judgment in these matters. In all cases, trust – not absolute confidentiality – has to be the measure of confidentiality. From the file on Dr. Iverson the law-enforcement officials learned that she was having problems with hospital co-workers and also ‘troubles or conflicts’ with some relatives. Using that information, detectives focused much of their probe on relatives and co-workers, but it shed no light on the killing. Assuredly, the patient or the patient’s family would want law enforcement to be informed about any fear that the patient may have had of an attack (Martin 1996). In a footnote to the majority opinion in Jaffee, Justice Stevens, while calling the privilege absolute, recognized that there would be situations where the privilege would have to give way to competing demands. He wrote, ‘Although it would be premature to speculate about most future developments in the federal psychotherapist privilege, we do not doubt that there are situations in which the privilege must give way, for example, if a serious threat of harm to the patient or to others can be averted only by means of a disclosure by the therapist.’ Justice Stevens also said, ‘Because this is the first case in which

we have recognized a psychotherapist privilege, it is neither necessary nor feasible to delineate its full contours in a way that would govern all conceivable future questions in this area.’ The court did not bring its decision within constitutional territory by invoking some notion of privacy grounded in the Constitution but instead it was an interpretation of the Federal Rules of Evidence that govern trials in federal courts. As might be expected, in the wake of the Jaffee decision, no time was lost in the setting out of exceptions. The first Circuit in 1999 held that the nascent psychotherapistpatient federal privilege encompasses a crime-fraud exemption similar to that of the established attorneyclient privilege (In re Grand Jury Proceedings of Violette 1999). The decision arose out of subpoenas issued to two psychiatrists in the course of a grand jury investigation. It was alleged that the accused trumped up an array of disabilities, which he communicated to selected healthcare providers, who in turn provided the information to insurance carriers that had underwritten credit disability policies, thus fraudulently inducing payments. As with the attorney–client privilege, the exception applies even when the psychiatrist is an unknowing pawn of the patient. Inevitably, other exceptions will follow as occurred in the case of the state-adopted privilege (Shuman and Foote 1999). As we have noted, when push comes to shove, the principle of relevancy or materiality rather than privilege provides the protection of confidentiality. And, we would emphasize, because relevancy or materiality are elastic terms, given to interpretation, the therapist should withhold information until the patient consents or the court orders disclosure (and, of course, a subpoena is not a court order). The courts tend to find communications in therapy irrelevant, immaterial, or prejudicial, and do not call for their production. In any event, psychotherapists were enthused by the news of the Supreme Court’s decision in Jaffee – at least it did not deflate the myth in the public mind and in the mind of therapists that the privilege is a solid shield. Given the extensive publicity to decisions of the Supreme Court, a decision against privilege would have punctured the myth of privilege, though in practice, privilege or no privilege, the outcome is usually the same.

Military law In the military, until recently, no privilege whatsoever was recognized for either the physician–patient or psychotherapist–patient relationship, regardless of whether the physician or therapist is military or civilian. The basis for not extending privilege to the relationship is that the harm done to the relationship by disclosure is considered of less seriousness than the harm done by non-disclosure to the security of military order and justice. Then, in late 1999, President Clinton signed an executive order extending a psychotherapist–patient privilege to court-martial

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proceedings. The definition of psychotherapist in the amended Military Code of Justice encompasses psychiatrists, clinical psychologists, clinical social workers, and assistants to a psychotherapist (assistants are people whom the psychotherapist assigns to provide professional service to a patient). This addition to the Uniform Code of Military Justice, known as Rule 513, does not extend the shield to any aspects of military life other than courts-martial. In disciplinary or administrative proceedings that do not come to trial, such as those involving dismissal of service members because they are gay, psychiatrists and other mental health professionals may still be subject to orders to provide information on a soldier’s sexuality. The privilege, moreover, does not hold when the patient is dead, even if his or her family wishes the confidentiality to be maintained. Military personnel also lose the privilege when any communication with their therapist contains evidence of spouse or child abuse, or when federal, state, or military law specifically exempts such abuse allegations from confidentiality protection. Additional exclusions allowed under the new rule occur in cases in which a therapist believes that a patient communicates intent to commit ‘fraud or crime,’ and when the information is ‘necessary to ensure the safety and security of military personnel, military dependents, military property, classified information, or the accomplishment of a military mission.’ The specific interpretation of the limits of these exclusions is left to the discretion of military judges who can thus choose to view them broadly or narrowly on a case-by-case basis. In sum and substance, the exceptions viscerate the privilege.

THE OUT-OF-COURT SCENARIO The Task Force on Confidentiality of the American Psychiatric Association reported some years ago that although psychiatrists are more worried about demands for information that emanate from courts, the most frequent demands are made by insurers who cannot compel disclosure but who can withhold a benefit without it (American Psychiatric Association 1978). To provide coverage, an insurance carrier must be able to obtain information with which it can assess the administration and cost of programs. Having the medical model in mind, insurers expect information comparable to that received for physical disorders. Apart from statutory disclosure requirements and judicial compulsion, there is no legal obligation to furnish information, even to law-enforcement officials. In the usual case, patients themselves make disclosures or authorize their psychiatrist to make them so as to receive a benefit, such as employment, welfare, or insurance. Unless justification for disclosure can be established, a breach of confidentiality in the out-of-court scenario may even result in a tort action for defamation or invasion of privacy. Even disclosure of the fact that an

individual is a patient may constitute an invasion of privacy. (Anderson v. Strong Memorial Hospital 1989). The supervisory process provides another challenge to the concept of confidentiality. Quality control necessitates a review of individual patients and therapists and requires discriminating disclosure. The therapist in training must breach the confidence of a patient in order to discuss the case with a supervisor. Patients must be informed of the presence and role of the supervisor. Since confidentiality is intended to benefit patients, and not to harm them, modification of the rules on confidentiality have been made in nearly all jurisdictions to allow free exchange of information among public mental health agencies involved in a patient’s treatment, even without the patient’s consent. In the discharge of a patient, information must be provided to the new caretaker, for example, a foster home; the foster family needs to know what symptoms to look for in case of deterioration of the patient. In many instances, however, confidentiality has been interpreted as a holy grail. As a result, for example, families who wish to assist mentally ill relatives who may be permanently or periodically homeless find that confidentiality is an obstacle to getting in contact with their family members. Hospitals or outpatient programs often decline to acknowledge that a particular person is enrolled, even when the family has been notified by the police that this is the case. Only a few states give law-enforcement agencies mental health information for background checks on prospective gun buyers. Now, fueled by a number of shootings, there is a growing debate pitting public-safety concerns against the rights of the mentally ill (Butterfield 2000). Confidentiality is also an obstacle to research, but in some measure it gives way to research. The Michigan Mental Health Code, for example, provides that information shall be disclosed ‘as necessary for the purpose of outside research evaluation, accreditation, or statistical compilation, provided that the person who is the subject of the information can be identified from the disclosed information only when such information is sought or when preventing such identification would clearly be impractical, but in no event when the subject of the information is likely to be harmed by such identification’ (§ 330.1748). Writing about a patient for publication presents another problem of confidentiality. In general, a professional person has multiple loyalties – to the client, to society, and to the profession. Through writing, professionals share acquired knowledge and experience, providing information that may be of value to other professionals and to the public generally. However, in the case of psychiatry, it is difficult to write about a patient without breaching the confidentiality of that relationship. Unlike physical ailments, which can be discussed without anyone recognizing the patient, a psychiatric history usually entails distinguishing characteristics (Slovenko 1983).

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The matter has come before the courts. In the case of Doe v. Roe (so-called to protect the privacy of the contending parties), the plaintiff, a university professor of social work, complained that the publication of a book written by her therapist violated her right of privacy. The case went to the U.S. Supreme Court, but it remanded the case to the trial court in New York, the forum where the case arose (Doe v. Roe 1975). The trial court was to decide in that case what is legitimate disguise of a patient, what is proper consent, and what degree of disguise requires consent. Over a year later the trial court handed down an award of compensation for losses and anguish and enjoined further circulation of the book. In a 22page decision, the trial judge wrote: ‘A physician who enters into an agreement with a patient to provide medical attention, impliedly covenants to keep in confidence all disclosures made by the patient concerning the patient’s physical or mental condition as well as matters discovered by the physician in the course of examination or treatment. This is particularly and necessarily true of the psychiatric relationship’ (Doe v. Roe 1977). In response to the defendant’s contention that the obligation of confidentiality is not absolute but must give way before overriding public interest, such as a scientific publication, the court said that ‘an important scientific discovery would take precedence over a patient’s privilege of nondisclosure,’ but in this case, the court ruled, the defendant failed in its proof that the book represented a major contribution to scientific knowledge (Doe v. Roe 1977). More recently, in a number of articles, Dr. Martin Orne has been both praised and condemned for releasing records (and audiotapes) to Diane Wood Middlebrook for a biography of his patient Anne Sexton, the gifted writer who committed suicide. The dead, after all, are dead, but survivors may suffer defamation, and patients in therapy may wonder about the confidentiality of their sessions. Dr. Orne, justifying his actions, claimed that Sexton told him ‘to keep the tapes and use them in any way that [he] saw could help others who were troubled.’ Dr. Orne also was quoted as saying that Sexton had begun her career as a confessional poet when he suggested ‘that other troubled individuals might be helped by her writing about her experiences in therapy’ (Symposium 1992). One psychiatrist asked, ‘Does this mean that Sexton’s wish was the result of Orne’s suggestion? Was her permission iatrogenic?’ (Nakdimen 1991). In many states, the decedent’s executor has the right to waive the privilege, although in some a court order is required. It was the assessment of Dr. Orne and Sexton’s executors that she did not want her private life buried with her. Is a patient’s consent to publication given ambivalently? Can a patient ever be fully aware, in advance, of what will be disclosed? Must a patient review the completed manuscript in order to be fully informed? A patient who is competent and consents with full knowledge may be considered a joint venturer (although not sharing in the profits). Without adequate disguise, consent of the

patient to publication is required. In all matters, the law distinguishes between a particular retrospective waiver of confidentiality and a general prospective one. General prospective waivers, which are now quite commonly obtained in medical and psychiatric practice, may not stand up when challenged, even though they are written. The more the hazards are unknown, the more a prospective waiver may be said to be void for want of an informed consent. However, such waivers may dissuade the legally unsophisticated from making complaints. Another problem surrounding confidentiality is the issue of disclosure to safeguard the patient or others. There are times, albeit few in number, when reporting by a psychotherapist may be crucial. Conflict may arise between the therapist’s responsibility to an individual patient and to the public safety. In a number of situations, reporting by the physician to the authorities is specifically required by law. The classic example of mandated reporting is the patient who is determined to have epilepsy and who operates a motor vehicle. Other notable examples of mandated reporting include dangerous or contagious diseases, firearm and knife wounds, and child abuse. In contrast to mandatory reporting laws stands legislation that mandates non-disclosures of medical information. Amendments to the Drug Abuse and Treatment Acts and Comprehensive Alcohol Abuse and Alcoholism Prevention Treatment and Rehabilitation Act, and implementing regulations, impose rigorous limitations on the disclosure of information from alcohol and drug abuse treatment programs. In various states, legislation prohibits the disclosure of the results of a human immunodeficiency virus (HIV) test except to the subject of the test, and then only if the subject agrees to being informed. In Hillman v. Columbia County (1991), the Wisconsin Court of Appeals held that a jail inmate had a cause of action against jail employees for disclosing results of his HIV test to other inmates. As a general principle, a person has no legal duty to come to the aid of another unless there is a specific relationship giving rise to that duty. In the much publicized case of Tarasoff v. Regents of University of California (1976), the California Supreme Court held that the therapist– patient relationship entails sufficient involvement by the therapist to impose on him or her an obligation of care for the safety not only of the patient but also of others. The discharge of the duty imposed on the therapist to protect an intended victim against the danger that a patient may present may take one or more various steps depending on the nature of the case (Slovenko 1975; Slovenko 1989). In People v. Wharton (1991), where the defendant was convicted for first-degree murder and sentenced to death, the California Supreme Court held that the psychotherapist’s warning to the potential victim of the danger posed by the defendant and the defendant’s statements made in therapy that caused or triggered the warning were not covered by the psychotherapist– patient privilege.

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Actually, long before Tarasoff, it had been the practice of psychiatrists to warn appropriate persons or lawenforcement authorities when a patient presented a distinct immediate threat to self or others. In its 1978 Position Statement on Confidentiality, the American Psychiatric Association set out examples of clinical situations in which confidentiality might be broken. The APA called on clinicians to apply common sense and good judgment to the careful evaluation of the patient and the issues ‘from the standpoint of their purposes and values’ and to view the issues as would an impartial sympathetic observer. Examples of situations in which one would conclude that breaking confidentiality was warranted included: 1 A patient will probably commit murder; the act can be stopped only by the intervention of the psychiatrist. 2 A patient will probably commit suicide; the act can be stopped only by the intervention of the psychiatrist. 3 A patient, such as a bus driver or airplane pilot, who is charged with serious responsibility, shows marked impairment of judgment. The responsibility of psychiatrists for maintaining confidentiality does not negate their responsibility to third persons or to patients, to the rest of the profession, and to science. No patient has a right to exploit a confidential relationship in order to entrap the psychiatrist as a participant in criminal activity or in a suicide. Psychiatrists and other professionals have an obligation to practice responsibly. Trust – not absolute confidentiality – is the cornerstone of psychotherapy. Typically, as a last resort, the therapist may say something like, ‘You’re losing control. I must do something about it.’

CONCLUSION Rules cannot fairly say when the therapist may divulge, should divulge, or must divulge. Such decisions are not easy to delineate and require the constant application of common sense and sound clinical judgment.

REFERENCES Advisory Committee Notes. 1975. Federal Rules of Evidence. Proposed Rule 504. American Psychiatric Association 1978. Position Statement on Confidentiality. Washington, DC: American Psychiatric Association. Anderson v. Strong Memorial Hospital, 140 Misc. 2d 770, 531, N.Y.S.2d 735 (1988), aff’d, 151 App. Div. 2d 1033, 542 N.Y.S.2d 96 (1989). Beigler, J.S. 1979. Editorial: The APA model law on confidentiality. American Journal of Psychiatry 136, 71–3.

Butterfield, F. 2000. Hole in gun control law lets mentally ill through. New York Times, April 11, p. 1. Dershowitz, A. 1994: The Advocate’s Devil. New York: Warner Books. Dewitt, C. 1958: Privileged Communication Between Physician and Patient. Springfield, IL: Charles C. Thomas. Doe v. Roe, 345 N.Y.S.2d 560, aff’d, 352 N.Y.S.2d 626, 307 N.E.2d 823, cert. granted, 417 U.S. 907, cert. dismissed, 420 U.S. 307 (1975). Doe v. Roe, 400 N.Y.S.2d 668 (N.Y. Cy. 1977). Drug Abuse and Treatment Acts and Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act, 42 U.S.C.A. §§ 290dd-3, 390ee-3, and implementing regulations, 42 C.F.R. Part 2 (1985). Federal Rules of Evidence, Proposed Rule 504 (1975). Hillman v. Columbia County, 474 N.W.2d 913 (Wis. App. 1991). In re Grand Jury Proceedings of Violette, 183 F.3d 71 (1st Cir. 1999). In re Lifshutz, 2 Cal. 3d 415, 467 P.2d 557, 85 Cal Rptr. 829 (1970). Jaffee v. Redmond, 518 U.S. 1 (1996). Martin, J. 1996. Slain doctor talked of conflicts. Detroit Free Press, June 20, p. B-1. Michigan Mental Health Code, § 330.1748. Muravchik, E. 1996 (letter). New York Times, June 19, p. 14. Nakdimen, K. 1991. Confidentiality (letter). Psychiatric News, November 1, p. 21. Peisach v. Antuna, 539 So. 2d 544 (Fla. App. 3d Dist. 1989). People v. Wharton, 53 Ca. 3d 522, 809 P. 2d 29, 280 Cal. Rptr. 631 (1991). Saur v. Probes, 190 Mich. App. 636 (1991). Shuman, D.W., Foote, W. 1999. Jaffee v. Redmond’s impact: life after the Supreme Court’s recognition of a psychotherapist–patient privilege. Professional Psychology, Research, and Practice 30, 479–87. Slovenko, R. 1974. Psychotherapist–patient testimonial privilege: a picture of misguided hope. Catholic University Law Review 23, 649–73. Slovenko, R. 1975. Psychotherapy and confidentiality. Cleveland State Law Review 24, 375–96. Slovenko, R. 1983. The hazards of writing or disclosing information in psychiatry. Behavioral Science and Law 1, 109–27. Slovenko, R. 1989. Misadventures of psychiatry with the law. Journal of Psychiatry and Law 17, 115–56. Slovenko, R. 1998: Psychotherapy and Confidentiality. Springfield, IL: Charles C. Thomas. Symposium. 1992. Privacy, professionalism and psychiatry. Transaction/Social Science and Modern Society 29, 5–29. Tarasoff v. Regents of University of California, 529 P.2d 342, 118 Cal. Rptr. 129 (1974), vacated, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (1976).

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Suggested reading Slovenko, R. 1960. Psychiatry and a second look at the medical privilege. Wayne Law Review 6, 175–203. Slovenko, R. 1973: Psychiatry and Law. Boston: Little, Brown, 61–74, 434–56.

Slovenko, R. 1977. Group psychotherapy: privileged communication and confidentiality. Journal of Psychiatry and Law 5, 405–66. Slovenko, R., Grossman, M. 1985: Testimonial privilege and confidentiality. In Michels, R., et al. (eds), Psychiatry, volume 3. Philadelphia: Lippincott, 1–17.

19 The duty to protect ALAN R. FELTHOUS AND CLAUDIA KACHIGIAN

Psychiatrists and other mental health professionals can, under certain circumstances, be liable in a malpractice claim when a patient seriously harms another person. When a victim of patient-inflicted violence or the family or estate of a deceased victim files a lawsuit based on the psychiatrist’s negligent failure to protect, the forensic psychiatrist may be called on to review the case to determine whether the care given was negligent, substandard, or failed to satisfy fiduciary or legal duties, and whether the errors might have led to the harm inflicted. The consulting forensic psychiatrist must be familiar with relevant legal cases, statutory law, and the professional standard of practice.

LAW FROM THE COURTS There is a common perception that the duty to protect was inaugurated by the Tarasoff v. Regents of the University of California case in California (1974, 1976). This is not completely accurate, however. Both before and after Tarasoff, without reliance on the Tarasoff principle, courts have addressed cases of wrongful discharge from psychiatric hospitals and patient-inflicted harm to other persons (e.g., Hicks v. United States 1975; Homer v. State 1974, Selmer v. Psychiatric Institute of Washington, D.C. 1976). Related claims were failure to control or failure to commit a patient who was already under custodial control (VandeCreek and Knapp 1989). When a hospitalized mental patient is discharged and then seriously harms or kills another person, questions are raised about whether the release was accomplished in a lawful, prudent, and clinically acceptable manner. If the physician or hospital released the patient negligently and such harm resulted, the victim or victim’s family may be entitled to recover damages. Courts have favored the plaintiff in some of these cases even without proof of malpractice (Felthous 1985), but the consulting forensic psychiatrist usually remains on firm ground by analyzing the case within the framework of malpractice law.

According to common law in the United States, one person – such as a psychiatrist or psychotherapist – is not responsible for the harmful violence that a second person – such as a patient – inflicts upon a third, unless the first person had a special or controlling relation with either the second or the third person (Restatement [Second] of Torts, 1965). Hospital administrators and physicians were thought to have considerable control over patients and were sometimes held accountable for discharge decisions with adverse outcome. As hospital care became more restricted in favor of community treatment programs, however, the prospect of treating outpatients who are marginally mentally ill or potentially violent became more commonplace. In 1974, the Supreme Court of California, in its Tarasoff I decision, articulated the duty to warn. ‘[When] a doctor or therapist, in the exercise of his professional skill and knowledge, determines, or should determine, that a warning is essential to avert danger … he incurs a legal obligation to give a warning.’ Therefore, therapists in California had a legal duty to notify an identifiable victim and/or the police when a patient presented a danger of seriously harming another person and when such disclosures were the most reasonable measures to prevent violence. Several organizations, including the American Psychiatric Association, criticized this new law, so the court reheard the case. The second case, Tarasoff II (hereafter designated Tarasoff ), in 1976, vacated Tarasoff I, replacing its ‘duty to warn’ with a ‘duty to protect,’ which emphasized warnings but also allowed for other protective actions. Through its 1976 Tarasoff decision, the Supreme Court of California extended liability to the world of outpatient care and, more explicitly than before, articulated a therapist’s duty to protect third persons. The psychiatrist who reviews malpractice claims of failure to protect should be familiar with Tarasoff and other landmark cases that advanced or developed legal principles to deal with protecting other people (e.g., McIntosh v. Milano 1979; Lipari v. Sears, Roebuck and Co. 1980; Hedlund v. Superior Court

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of Orange County 1983; Jablonski by Pauls v. United States 1983; Petersen v. State 1983; Naidu v. Laird 1988), as well as the case and statutory law in the relevant jurisdiction. Other articles and books have summarized these cases. Here, emphasis is placed on the principles enunciated, and not the details of each case. The Tarasoff principle is as follows: When a psychotherapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more of various steps, depending on the nature of the case. Thus, it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances (p. 431).

The Tarasoff decision created responsibilities and liabilities for therapists who have little actual control over their patients. In some instances, the principle could pertain to patients who could not be civilly committed. Although Tarasoff is the most widely known case on the duty to protect, many other courts addressed the issue of protecting third persons, and they did not uniformly adopt the same principle. Some courts adopted the ‘specificity rule.’ According to this principle, the duty to protect arises only if a specific threat is made against an identifiable victim (e.g., Brady v. Hopper 1984; White v. United States 1986). Other courts found that an identifiable victim was not necessary for the duty to arise (Lipari v. Sears, Roebuck and Co. 1980; Durflinger v. Artiles 1981; Petersen v. State 1983; Naidu v. Laird 1988). The therapist may have a duty to protect even with regard to automobile accidents caused by his patient if the violent event was considered to be foreseeable (Felthous 1990). Victims of the violence need not be identifiable, nor is a threat required for the duty to arise. Some post-Tarasoff cases found a duty to protect without reliance on the legal reasoning of Tarasoff (Cain v. Rijken 1986; Schuster v. Altenberg 1988). The Michigan Supreme Court held that psychiatrists in a state hospital have sovereign immunity from liability for failure to protect third persons (Canon v. Thumudo 1985). Another court refuted the Tarasoff principle, finding that without the control of hospitalization, there is no duty to protect (unless the therapist actually predicts violence) (Hasenei v. United States 1982). The Ohio Supreme Court deferred to professional judgment, and formulated a standard for determining whether professional judgment was exercised (Littleton v. Good Samaritan Hospital 1988). If the 1980s saw expanding diversification of duty to protect principles, courts during the last decade of the century increasingly tended to reject or retreat from Tarasoff (Felthous and Kachigian 2001). Courts in the 1990s found

no duty to warn (Boynton v. Burgess 1991; Green v. Ross 1997; Evans v. United States 1995; Thapar v. Zezulka 1999); no duty to control a voluntary patient (Burchfield v. United States 1990; Moye v. United States 1990; Santa Cruz v. N.W. Dade Com. Health Ctr 1991; Boulanger v. Pol 1995; Nasser v. Parker 1995; Rousey v. United States 1997) or courts acknowledged but strictly limited the circumstances under which protective duties could be incurred (Charleston v. Larson 1998; Emerich v. Philadelphia Center for Human Development 1998). Nonetheless, other courts in this same decade adopted the Tarasoff principle concerning outpatients (Estates of Morgan v. Fairfield Family Counseling Ctr. 1997) or extended a Tarasoff-like duty to protect to other applications [see, for example Reisner v. Regents of the University of California 1995 (informing a patient of her HIV status to protect third parties from infection); Pate v. Threlkel 1995 (informing a patient of the genetic heritability of a cancerous tumor to protect potential offspring); Almonte v. New York Medical College 1994 (rendering instructors in medical schools potentially responsible for protecting patients from harm inflicted by residents); and People v. Wharton 1991 and Menendez v. Superior Court 1992 (forcing testimony by therapists in the criminal prosecution of their patients)]. The important point is that the consulting forensic psychiatrist must become familiar with the relevant case law of the jurisdiction in which treatment was rendered.

LAW FROM THE LEGISLATURES Twenty-eight states now have statutes that explicitly permit or establish a duty for psychiatrists to make some type of disclosure to protect those threatened by their patients. All but two of these statutes [S.C. Code Ann. S. 44-22-90 (Law. Co-op. 1991) and W.Va. Code s. 27-3-1 (1977)] present options for dealing with patients posing a threat (Table 19.1). With the exception of that in Texas, all the statutes allow/require warning the potential victims. Other options include informing law enforcement or hospitalizing the patient. Less common options include warning the parents of a minor (Idaho, Mississippi, New Jersey, and Virginia), or alternatives unique to that state. For example, in Arizona, the duty can be fulfilled by ‘taking any other precautions that a reasonable and prudent mental health provider would take under the circumstances.’ Such a law avoids the criticism of providing a cookbook formula, but it provides precious little more guidance than the courts have done. Although states vary in which mental health professionals are also included under the provisions of their respective statutes, all the statutes herein referenced apply to psychiatrists. In California, the statutory provision for protective disclosure simply refers to psychotherapists. In Louisiana, the law pertains to licensed psychologists and licensed psychiatrists. By contrast,

Table 19.1 Statutory options for discharging the duty to protect

a b

State

Warn victim

and/or

Report to police

and/or

Hospitalize voluntarily

Attempt involuntary hospitalization

Other

Arizona [Ariz. Rev. Stat. Ann § 36-517.02 (1989)] California [CAL. Civ. Code § 43.92 (West 1985)] Colorado [Colo. Rev. Stat. Ann. § 13-21-117 (West 1986)] Delaware [DEL. Code Ann. tit. 16 § 5402 (1992)] Dist. of Columbiaa [D.C. Code Ann. § 6-2023 (1981)] Floridaa [FLA. Stat. Ann. § 456.059 (West 2000)] Idaho [Idaho Code § 6-1903 (1991)] Illinois [IL. Rev. Stat. Ch. 405, para. 5/6-103 (1991)] Indiana [Ind. Code § 34-30-16-2 (1998)] Kentucky [Ky. Rev. Stat. Ann § 202A.400 (Baldwin 1986)] Louisiana [LA. Rev. Stat. Ann. § 9:2800.2 (West 1986)] Maryland [Md. Code Ann., Cts. & Jud Proc. § 5-609 (1989)] Massachusetts [Mass. Gen. Laws Ann. Ch. 123 § 36B] Michigan [Mich. Comp. Laws Ann. § 330.1946 (West 1989)] Mississippia [Miss. Code Ann. § 41-21-97 (1991)] Montana [Mont. Code Ann. § 27-1-1102 (1987)] Nebraska [Neb. Rev. Stat. § 329:31 (1994)] New Hampshire [N.H. Rev. Stat. Ann § 329:31 (1994)] New Jersey [N.J. Stat. Ann § 2A:62A-17 (West 1991)] NewYorka [N.Y. [Mental Hygiene] Law § 33.13 (McKinney 1985)] Ohioa [Ohio Rev. Code Ann § 2305.51 (Baldwin 1999)] Tennessee [Tenn. Code Ann. § 33-3-207 (1989)] Texasa [Tex. [Health & Safety] Code Ann § 611.004 (West 1991)] Utah [Utah Code Ann § 78-14a-101 (1988)] Virginia [Va. Code Ann. § 54.1-2400 (Michi 1994)] Washingtona [Wash. Rev. Code § 71.05.390 (1987)]

yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes – yes yes yes

– and and and or or and and or and and and or and or and and or or and and – – and or and

yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes yes – yes yes yes yes

– – or or or – – or or – – or or or – – – or or – or or – – or –

yes – yesb yes – – – yesb – – – – yes yesb – – – – yes – yes yes – – – –

yes – yes yes yes – – yes yes yes – yes yes yesb – – – yes yes – yes yes – – yes –

yes – yes – yes – yes – yes – – yes – yes yes – – – yes – yes – yes – yes –

Provide options for dealing with patient-expressed threats, but statute is permissive; no explicit duty to warn or protect is stated. Initiation of hospitalization unspecified as voluntary or involuntary.

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the law in Indiana pertains to more than fifteen different professions, agencies, and institutions. Other statutes not referenced in this chapter do not pertain to psychiatrists, but establish protective duties for other mental health providers, such as counselors, family and marriage therapists, and psychiatric nurses. In most states, the law applies when a patient makes a threat of physical violence against an identifiable or identified victim. Beyond the expressed threat itself, a minority of states also have statutes requiring that the psychiatrist determine the patient has the ability to carry out the threat. In Florida, there is an additional requirement that the patient will more likely than not carry out the threat in the near future before a protective disclosure may be issued [Fla. Stat. Ann. § 456.059 (West 1994)]. Other statutes simply indicate that the potential violence be imminent. New Jersey requires beyond the threat that ‘a reasonable professional in the practitioner’s area of expertise would believe the patient intended to carry out the threat.’ [N.J. Stat. Ann. § 2A: 62A-16 (West 1993)]. Moreover, an explicit threat is not necessary in New Jersey for a duty to warn and protect to arise if: ‘the circumstances are such that a reasonable professional in the practitioner’s area of expertise would believe the patient intended to carry out an act of imminent, serious physical violence against a readily identifiable individual or against himself ’ (ibid). Thus, New Jersey law, unlike protective disclosure statutes in most states, does not restrict protective duties to situations wherein the narrower specificity rule applies. Threats triggering the duty are variously qualified as ‘immediate,’ ‘serious,’ ‘actual,’ or ‘specific.’ The New Hampshire and Delaware laws include threats of property damage, not just bodily harm.

LAW FROM BOTH COURTS AND LEGISLATURES A number of states now have both case and statutory law that address a Tarasoff-like duty to warn or protect. Familiarity with relevant case law alone is insufficient for the forensic psychiatrist who consults on a duty to protect case in one of these jurisdictions. Neither should the reviewing psychiatrist feel content to examine only the state’s protective disclosure statute. Germane law may have been crafted by both the legislature and the courts and includes law governing civil commitment and privileged and confidential information. It therefore behooves the consultant to know about both statutory and judicial law pertaining to confidentiality and the duty to protect. Even if always necessary, and usually helpful, comparisons of statutory and judicial law are not always satisfactorily clarifying, a matter confounded by the flux of changing public policies. Here will be cited the experience in just three states as examples: Colorado, Texas, and Florida.

In Brady v. Hopper, the Tenth Circuit United States Court of Appeals in 1984 affirmed the District Court’s holding (Brady v. Hopper 1983) that brought the ‘specificity’ version of the Tarasoff principle to the state of Colorado; that is, a duty to protect, but only where the patient has made a specific threat against an identifiable victim. Two years later, Colorado enacted protective disclosure law that codified the specificity rule. Like the earlier federal court rulings, the statutory rule does not acknowledge a duty to warn or protect unless the patient makes a specific threat. This protective disclosure law, with its immunity provision for the physician, applies to outpatients, but not to hospitalized patients who are negligently released. Neither does this protective disclosure law, with its attendant immunity for the physician, pertain to the failure to hospitalize an imminently dangerous and mentally ill outpatient. The issue of wrongful discharge was brought before the Colorado Supreme Court in Perreira v. Colorado in 1989. The court decided that a specific threat was not necessary for the duty to protect to occur when a violent patient is about to be discharged. In Colorado, judicial and statutory law complement one another. Texas does not have a statutory duty to warn or protect. When a physician has reason for concern that a patient will harm another person, the state’s statute on confidential and privileged communication permits disclosure, but only to medical or law enforcement personnel. Case law decisions of five separate (appellate) courts appeared to support a duty to warn or protect (Williams v. Sun Valley Hospital 1987; Kerriville State Hospital v. Clark 1995; Kehler v. Eudaly, 1996; Limon v. Gonzaba 1997; Zezulka v. Thapar 1997), even though facts conformed to the respective court’s rule for a duty to warn in but a single case (Zezulka v. Thapar 1997). Despite the limitation of the statutory provision, it appeared that a duty to warn or protect had arrived in these five state districts, though the scope of the duty varied somewhat depending on which rule was adopted for determining the identifiability of the patient’s intended victim (Felthous and Scarano 1999). However, when this latter case was appealed to the Supreme Court of Texas, the court held there was no duty to warn in Texas (Thapar v. Zezulka 1999). Moreover, the court put psychiatrists on notice that they could be in violation of state law protecting confidentiality if they issue protective warnings. The Florida experience demonstrates interactive law deriving from court decisions based on confidentiality law and the state’s protective disclosure statute. In Boynton v. Burgess (1991), the District Court of Appeal for the Third District of Florida not only rejected a Tarasoff-like duty to warn, like the high Texas court at the end of the decade, but the Third District also warned psychiatrists that protective warnings would be in violation of the confidentiality law. Subsequently, in 1994, the Florida legislature enacted a protective disclosure statute that, without establishing

The duty to protect 151

a duty, permitted psychiatrists to issue protective disclosures to the victim or the police (Fla. Stat. § 455.2415 1994, amended to 456.059 in 2000). In Green v. Ross (1997), the Second District Court did not establish a duty to warn, because the legislature had left protective disclosures as permissive. However, neither did the Second District Court advise clinicians not to warn. Owing to Florida’s 1994 protective disclosure law, warnings were, by then, legally permitted.

CLINICAL STANDARD OF CARE In its brief to the Supreme Court of California regarding Tarasoff, the American Psychiatric Association and other amicae argued that no clinical standard existed for the accurate prediction of clinical violence. Moreover, the preventive efficacy of warnings and reports, the most commonly mentioned extra-clinical measures to avert violence, have yet to be demonstrated empirically. Nonetheless, when referred a duty-to-protect case involving a patient’s violence to another person, the forensic psychiatrist must answer the question: Was the professional standard of care met? Appelbaum (1985) has suggested that when encountering a potentially violent patient, the psychiatrist should take three steps: (i) Assess the patient’s dangerousness; (ii) select a course of action; and (iii) implement this plan. This three-step procedure is simple, clear, and practical: clinicians should have little trouble accepting it as a standard of practice. Despite the limited ability to accurately predict patients’ future acts of violence, clinicians should at least be capable of asking the right questions, Appelbaum asserts. Felthous (1999) proposed an algorithm to help psychiatrists in dichotomous decision making for warnings and hospitalization as measures to prevent violence to third parties. This algorithm requires the psychiatrist to attempt to answer the following four questions: 1 Is the patient dangerous to others? 2 If yes, is his or her dangerousness due to serious mental illness? 3 If not due to serious mental illness, is the dangerousness imminent? 4 Are potential victims of the patient’s violence reasonably identifiable? Assessment of dangerousness is a dynamic process, as dangerousness itself ebbs and flows with internal changes and interactions with the environment, including therapeutic and other interventions that are less intrusive than warnings and hospitalization. Protective intervention, like the prediction of violence, is more art than science; the critical question is whether an appropriate attempt was made at assessment and appropriate intervention.

The potential for homicide and serious assault can be evaluated much like suicide potential. There are many helpful writings on the clinical assessment and safe management of potentially violent patients. Forensic psychiatrists should be familiar with the recommendations of Beck (1980, 1985, 1990), Borum, Schwartz, and Swanson (1996), Felthous (1989), Lion (1981, 1987), Lion and Tardiff (1987), Reid and Balis (1987), Resnick and Scott (1997), Roth (1987), Simon (1990), Tardiff (1996), Tupin (1987) and others, but they must exercise caution in assigning new standards of practice with corresponding liability. A recent article by Borum and Reddy (2001) is helpful in assessing a patient’s threat to harm a specific person, rather than his/her ‘dangerousness’ in general. Where a patient expressed a violent threat or homicidal ideation, the consulting expert ought to consider the following questions: How serious was any intent behind the threat? How developed was the plan for executing the violent impulse? Did the therapist determine whether the threat was absolute and without alternative courses of action? Was the threat based on likely contingencies (e.g., ‘I will not kill that woman unless I catch her with another man. But I fully expect to see her dating someone tonight.’)? Did the patient have a lethal weapon in mind? How available was the chosen weapon? How accessible was the intended victim? How soon would the patient likely carry out his or her threat? Had the patient already taken any action towards fulfillment of the threat? Had the patient in other ways shown a recent worsening in his ability to control violent impulses? Had the patient acted violently when under similar stressors in the past? Did the patient appear to be disinhibited by substance abuse? Overemphasis on the presence of verbal threats can prematurely foreclose an appropriate assessment of violent potential. Consider the patient who never made a verbal threat and swore to the psychiatrist that he or she had no thoughts of harming anyone. Yet earlier the same day, without provocation, he/she had severely assaulted a neighbor, broken the windows of the neighbor’s home, set fire to the house, and then purchased an M-16 with several rounds of ammunition. Sometimes action speaks louder than words. Here, an assessment of violent potential should have been made. The psychiatrist should have also determined whether the violent impulses were related to a particular mental disorder. A third duty-to-warn or duty-to-protect scenario is the patient who makes no violent threats and presents no history of deliberately aggressive behaviors. This patient is the proverbial ‘accident waiting to happen.’ Already several duty-to-protect cases of some importance have involved patient-caused automobile accidents (Felthous 1990). In some cases, the patient-drivers were afflicted with major mental illness; in others alcohol or another chemical may have been the main causative factor. Although courts have not always found a duty to protect when alcohol was the main contributor, alcoholism and intoxication statistically show a greater association with vehicular accidents than

152 Legal regulation of psychiatric practice

other mental states and disorders. Arguably, reporting an alcoholic driver to the state department of motor vehicles, with a resultant driving restriction, may, in some cases, provide the least restrictive and most effective intervention, in comparison with warnings in other situations. Nonetheless, the notion of physicians reporting alcoholic drivers remains highly controversial (Aberdeen Medical Group 1986). Similarly, the expert may be asked to consider a duty to protect where the patient is an alcoholic pilot employed by a major commercial airline. The law has not yet addressed this issue. Presumably, the common practice is to honor confidentiality over public safety and report nothing. The conscientious physician may, after careful assessment, make a morally justifiable decision and notify the FAA (Federal Aviation Administration). The physician who reports then runs the risk of being sued for disclosing confidential information, causing the patient-pilot to be ‘downed’ with commensurate loss of income. Nonetheless, the physician who makes a careful assessment, determines a substantial risk, and makes a disclosure to prevent a disastrous airplane crash should not be skewered in court, because firm professional standards and guiding laws are lacking. The military physician whose alcoholic patient handles weapon systems of mass destruction is not stymied by this confidentiality dilemma. In the interest of public and personnel safety, military physicians are allowed to make protective disclosures without fear of negative sanctions for breaching confidentiality. The expert who addresses potential duties and dilemmas, not yet defined by law, may feel tempted to chart new territory by claiming a specific standard of practice. This may well be encouraged by the referring attorney. Rather than sharpening the horns of this dilemma of confidentiality versus protection, not yet established in law or practice, the expert is advised to exercise restraint and recognize ‘gray areas,’ which should permit professional discretion in the absence of fixed rules. The psychiatric profession has not settled on a standard for warning victims and notifying police. Even the APA’s model code for protecting third parties does not advocate a duty to protect, much less a specific duty to warn, though this code lists warnings as one of the protective actions the psychiatrist might choose to select (Appelbaum et al. 1989). Warnings and reports have long been allowed by ethical standards to prevent violence, but have not been ethically prescribed. The expert may point to a legal duty to warn, if it is prescribed by law. Otherwise, in jurisdictions where the duty is not yet firmly imposed, the expert, who feels compelled to offer that a victim should have been warned, probably ought to qualify this warning as their own judgment, and not insist that it is a practice to which most of the profession would adhere. A failure to warn is more clearly in error if it is in violation of case or statutory law, rather than if it is a deviation from a nonexistent clinical standard.

In many duty-to-protect cases, the most serious and patent errors are clinical ones, and not the failure to take extra-clinical measures such as warning a victim and reporting to a law-enforcement agency. The potentially violent patient was not evaluated carefully, not diagnosed accurately, not admitted to the hospital, not medicated properly, not observed closely enough, or the patient was discharged from the hospital prematurely and without adequate planning. Both psychiatrists and lawyers can make the mistakes of overemphasizing the importance of threats and warnings and giving too little attention to proper diagnosis and treatment. Riveted by the patient’s threat, the clinician fails to conduct an adequate mental status examination. He or she considers warning the designated victim, but not hospitalizing the potentially violent patient with serious emotional disturbance. In deposition, the plaintiff ’s attorney launches into questioning about why the clinician failed to warn the victim, rather than first laying the groundwork of what data the clinician elicited or failed to inquire about. Overly concerned about failureto-warn vulnerability, defense counsel may neglect to fully develop all that the clinician correctly accomplished in the way of a diagnostic evaluation, treatment, and management. The forensic expert who reviews a duty-towarn malpractice case must give careful attention to the clinical care the patient received.

CONSULTATION ON DUTY-TO-PROTECT CASES The forensic psychiatrist who consults on duty-toprotect cases should already be familiar with cases such as Canon, Lipari, Littleton, McIntosh, Naidu, Nasser, Peck, Petersen, Schuster, Tarasoff, and Thapar. Likewise, he or she should understand principles applied in duty to warn cases such as the Hasenei rule, the specificity rule, the Tarasoff principle, sovereign immunity and the ‘no duty to control a voluntary patient’ rule requiring a more controlling relationship than either outpatient therapy or even voluntary hospitalization (e.g., Hasenei v. United States 1982; Nasser v. Parker 1995). The forensic consultant should also know about pertinent documents of the American Psychiatric Association including its Amicus Brief to the Supreme Court of California concerning Tarasoff, the most recent ethical code of the APA, and the APA’s Model Law for Protecting Third Persons. Some knowledge of recent legislative trends and familiarity with writings of clinicians on the topics of evaluating and managing potentially violent patients, risk assessment and algorithmic decision making (Felthous 1999) is useful. Finally, it is recommended that the consultant continue to treat violent patients and remain well practiced in the field. If the referral comes from another state, then enlist the referring attorney’s assistance in procuring pertinent

The duty to protect 153

jurisdictional law from state and federal courts, any protective disclosure statute, any privileged and confidential information statutes, and the state’s mental health code. If the clinician-defendant was employed by a hospital or institution, obtain policy statements pertaining to homicidal and violent patients. With regard to the instant case, obtain all medical and psychiatric records, transcriptions of all depositions and courtroom proceedings already held on the case, and all exhibits already submitted into evidence. If one knows which experts are consulting on the other side and they have written on related topics, it may be prudent to review some of their writings before going to trial. The consultant should have some basic questions in mind before starting to read the case materials. Was the clinical assessment adequate? Was the diagnosis appropriate? What, if any, signs of violent potential were there? If clinical findings warranted further assessment for violent potential, was this done? Even though the attorney’s foremost question may pertain to the duty to warn or protect, the consultant should first assess whether basic clinical responsibilities were satisfied: assessment, diagnosis, treatment including medication, and hospitalization. If treatment was accomplished on an outpatient basis, were the sessions frequent enough? If signs of violence were escalating, was hospitalization considered? If the patient was hospitalized, the consultant should assess information on the level of observation, control, and thoughtful discharge planning before releasing the patient. Adequacy of consistent and accurate progress notes is always a consideration. Finally, the consultant must look for sufficient communication between treaters where several professionals have been involved in the patient’s treatment. Though relying on legal parameters, the consultant should endeavor to be more fair and practical than the law seems to be. Our colleagues can be sued for breach of confidentiality or for failure to warn or protect. If the stakes seem high for physicians, consider their patients and the patients’ potential victims. Inappropriate disclosure of confidential information can cause a patient to lose a job or his or her most valued relationship. Failure to take preventive action may lead to homicide. Yet our abilities to accurately predict and prevent violence are meager (Dutile and Foust 1987; Monahan 1981; Wettstein 1984). The clinician walks on a precarious tightrope. Tilting to one side or the other can risk liability for oneself and harm others. Meanwhile, the law itself sets this tightrope differently, variously favoring one or the other in the balance between confidentiality and warnings/ reports, or protective hospitalization/restrictive civil commitment and ‘de-hospitalization’ (a term more specific than ‘de-institutionalization’ for referring to the use of inpatient hospitalization to treat and manage mental health patients; see also Felthous and Kachigian 2001). The fair consultant will grant the defendant some margin in which to exercise good-faith judgment before finding an error of committing breach of confidence in

the face of serious harm or of omitting to take specific extraclinical measures. Fault can more firmly be established where the defendant violated clear legal regulations or deviated from the clinical standard of care. If the consultant is to refrain from advancing novel duties and standards, the prudent expert must also have the courage and objectivity to identify violations of a clearly stated and unambiguous law or substandard clinical practice, where the dereliction of the clinician’s duty proximately caused the patient to harm another person.

REFERENCES Aberdeen Medical Group. 1986. Drunken drivers: what should doctors do? Journal of Medical Ethics 20, 151–5. Almonte v. New York Medical College, 851 F. Supp. 34 (D. Conn. 1994). Appelbaum, P. 1985: Rethinking the duty to protect. In Beck, J. (ed.), The Potentially Violent Patient and the Tarasoff Decision in Psychiatric Practice. Washington, DC: American Psychiatric Press, 110–30. Appelbaum, P.S., Zonana, H., Bonnie, R., Roth, L.H. 1989. Statutory approaches to limiting psychiatrists’ liability for their patients’ violent acts. Appendix 2: American Psychiatric Association model statue on the physician’s duty to take precautions against patient violence. American Journal of Psychiatry 146, 821–9. Beck, J. 1980. When the patient threatens violence: an empirical study of clinical practice after Tarasoff. Bulletin of the American Academy of Psychiatry and the Law 10, 189–201. Beck, J. 1985. Violent patients and the Tarasoff duty in private psychiatric practice. Journal of Psychiatry and the Law 13, 361–76. Beck, J. 1990: Clinical aspects of the duty to warn or protect. In Simon, R.I. (ed.), Review of Clinical Psychiatry and the Law, volume 1. Washington, DC: American Psychiatric Press, 191–204. Borum, R., Reddy, M. 2001. Assessing violence risk in Tarasoff situations: a fact-based model of inquiry. Behavioral Sciences and the Law 19, 375–85. Borum, R., Schwartz, M., Swanson, J. 1996. Assessing and managing violence risk in clinical practice. Journal of Practical Psychiatry and Behavioral Health 2, 205–15. Boulanger v. Pol, 258 Kan. 289, 900 P. 2d 823 (Kan. 1995). Boynton v. Burgess, 590 So. 2d 446 (Fla. Dist. Ct. App.-3 Dist. 1991). Brady v. Hopper, 570 F. Supp. 1333 (1983). Brady v. Hopper, 751 F.2d 329 (10th Cir. 1984). Brief of Amicus Curiae in Support of Petition for Rehearing of Tarasoff. The Regents of the University of California (a motion of American Psychiatric Association, Area VI of the Assembly of the American

154 Legal regulation of psychiatric practice Psychiatric Association, Northern California Psychiatric Society, California State Psychological Association, San Francisco Psychoanalytic Institute and Society, California Society for Clinical Social Work, National Association of Social Workers, Golden Gate Chapter California Hospital Association to the Supreme Court of the State of California). Burchfield v. United States, 750 F. supp. 1312 (S.D. Miss. 1990). Cain v. Rijken, 717 P.2d 140 (Or. 1986). Canon v. Thumudo, 144 Mich. App. 604; 422 N.W. 2d 688 (1985). Charleston v. Larson, 297 Ill. App. 3d 540, 696 N.E. 2d 793, 231. Ill. Dec. 497 (Ill. App. Ct. 1998). Durflinger v. Artiles, 563 F. Supp. 322 (D. Kan. 1981). Dutile, F.N., Foust, C.H. (eds). 1987: The Prediction of Criminal Violence. Springfield, IL: Charles C. Thomas. Emerich v. Phila. Center for Human Dev., 554 Pa. 209, 720 A. 2d 1032 (Pa. 1998). Estates of Morgan v. Fairfield Family Counseling Ctr., 77 Ohio St. 3d 284, 673 N.E.2d 1311 (Ohio 1997). Evans v. United States, 883 F. Supp. 124 (S.D. Miss. 1995). Fla. Stat.§ 455.2415 (West 1994). Felthous, A.R. 1985. Negligence without malpractice: broadening liability for psychiatrists who release dangerous mental patients. Medicine and Law 4, 453–62. Felthous, A.R. 1989: The Psychotherapist’s Duty to Warn or Protect. Springfield, IL: Charles C. Thomas. Felthous, A.R. 1990: The duty to warn or protect to prevent automobile accidents. In Simon, R.I. (ed.), Review of Clinical Psychiatry and the Law. Washington, DC: American Psychiatric Press, 221–38. Felthous, A.R. 1999: The clinician’s duty to protect third parties. In Resnick, P.J. (ed.), Forensic Psychiatry. The Psychiatric Clinics of North America 22, 49–60. Felthous, A.R., Kachigian, C.K. 2001. The fin de millenaire duty to warn or protect. Journal of Forensic Sciences 46, 1103–12. Felthous, A.R., Scarano, V.R. 1999. Tarasoff in Texas. The Journal of Texas Medicine 95, 72–8. Green v. Ross, 691 So. 2d 542 (Fla. Dist. App.-2 Dist. 1997). Hasenei v. United States, 541 F. Sup. 999 (1982). Hedlund v. Superior Court of Orange County. 194 Cal. Rptr. 805 (Cal. 1983). Hicks v. United States, 511 F.2d 407 (1975). Homer v. State, 361 N.Y.S.2d 820 (1974). Idaho Code §§ 6.1902, 6-1903 (1994). Jablonski by Pauls v. United States, 72 F.2d 391 (9th Cir. 1983). Kehler v. Eudaly, 933 S.W.2d 321 (Tex. App.-Fort Worth 1996). Kerriville State Hospital v. Clark, 900 S.W.2d 425 (Tex App.Austin 1995). Limon v. Gonzaba, 940 S.W.2d 236 (Tex. App.-San Antonio 1997). Lion, J. 1981: Countertransference and other psychotherapy issues. In William, R. (ed.), The Treatment of Antisocial

Syndromes. New York: Van Nostrand Reinhold Company, 30–40. Lion, J. 1987: Clinical assessment of violent patients. In Roth, L. (ed.), Clinical Treatment of the Violent Person, New York: Guilford Press, 1–19. Lion, J., Tardiff, K. 1987: The long-term treatment of the violent patient. In Hales, R.E., Frances, A.J. (eds), Annual Review. Volume 6. Washington, DC: American Psychiatric Press, 537–48. Lipari v. Sears, Roebuck and Co., 497 F. Supp. 185. (1). (Neb. 1980). Littleton v. Good Samaritan Hospital, 529 N.E.2d 449 (Ohio 1988). McIntosh v. Milano, 403 A.2d 500 (1979). Menendez v. Superior Court, 3 Cal. 4th 435, 834 P. 2d, 786, 11 Cal. Rptr. 2d 92 (Cal. 1992). Miss. Code Ann. § 41-21-97 (e) (1991). Monahan, J. 1981: The Clinical Prediction of Violent Behavior. Rockville, MD: National Institute of Mental Health. Moye v. United States, 735 F. Supp. 179 (E.D.N.C. 1990). Naidu v. Laird, 539 A. 2d 1064 (Del. 1988). Nasser v. Parker, 455 S.E. 2d 502 (Va. 1995). N.J. Stat. Ann. § 2A: 62A-16 (West 1993). Pate v. Threlkel, 661 So. 2d 278 (Fla. 1995). Peck v. Counseling Service of Addison County, 449 A.2d (Vt. 1985). People v. Wharton, 53 Cal. 3d 522, 809 P. 2d 290, 280 Cal. Rptr. 631 (Cal. 1991). Perreira v. Colorado, 768 P.2d 1198 (1989). Petersen v. State, 671 P.2d 230 (Wash. 1983). Reid, W., Balis, G.U. 1987: Evaluation of the violent patient. In Hales, R.E., Frances, A.J. (eds), Annual Review. Volume 6. Washington, DC: American Psychiatric Press, 491–509. Reisner v. Regents of the University of California, 31 Cal. App. 4th 1195, 37 Cal. Rptr. 2d 518 (Cal. Ct. App. 1995). Resnick, P.J., Scott, C.L. 1997. Legal issues in treating perpetrators and victims of violence. Psychiatric Clinics of North America 20, 473–87. Restatement (Second) of Torts, Sections 15, 19, and 20, The American Law Institute (1965). Roth, L. 1987: Treating persons in prisons, jails, and security hospitals. In Roth, L. (ed.) Clinical Treatment of the Violent Person, New York: Guilford Press, 207–34. Rousey v. United States, 115 F. 3d 394 (6th Cir. 1997). Santa Cruz v. N.W. Dade Com. Health Ctr., 590 So. 2d 444 (Fla. Dist. Ct. App. -3 Dist. 1991). Simon, R. 1990: The duty to protect in private practice. In Beck, J.C. (ed.), Confidentiality Versus the Duty to Protect. Washington, DC: American Psychiatric Press, 23–42. Schuster v. Altenberg, Wisconsin Supreme Court No. 87-0115 (1988). Selmer v. Psychiatric Institute of Washington, D.C., 538 F.2d 121 (1976). Tarasoff v. Regents of the University of California, 529 P.2d 553, 118 Cal. Rptr. 129 (1974).

The duty to protect 155 Tarasoff v. Regents of the University of California, 17 Cal. 3d 425 (1976). Tardiff, K. 1996: Concise Guide to Assessment and Management of Violent Patients. 2nd edition. Washington, DC: American Psychiatric Press, Inc. Thapar v. Zezulka, 994 S.W. 2d 635, 1999. Tupin, J. 1987: Psychopharmacology and aggression. In Roth, L. (ed.) Clinical Treatment of the Violent Person, New York: Guilford Press, 79–94. VandeCreek, L., Knapp, S. 1989: Tarasoff and Beyond: Legal and Clinical Considerations in the Treatment of

Life Endangering Patients. Sarasota, FL: Professional Resource Exchange, Inc. Wettstein, R. 1984. The prediction of violent behavior and the duty to protect third parties. Behavioral Sciences and the Law 2, 291–317. White v. United States, 780 F.2d 97 (D.C. Cir. 1986). Williams v. Sun Valley Hospital, 723 S.W.2d 783 (Tex. App.-El Paso 1987). Zezulka v. Thapar, 961, S.W.2d 506 (Tex. App.-Houston [1st Dist.] 1997).

20 Treatment boundaries in psychiatric practice ROBERT I. SIMON

The concept of treatment boundaries developed during the twentieth century in the context of outpatient psychodynamic psychotherapy. Treatment boundary issues arose from the very beginning of psychoanalysis, reflected in Freud’s disputes with Ferenczi, Reich, and others. Ethical principles promulgated by the mental health professions and the legal duties imposed by courts and statutes have additionally defined treatment boundaries. For example, the clinician’s maintenance of confidentiality derives from three distinct duties: professional (clinical); ethical; and legal. Treatment boundaries are set by the therapist that define and secure the professional relationship of the therapist with the patient for the purpose of promoting a trusting, working alliance. The boundary guidelines listed below are generally applicable across the broad spectrum of psychiatric treatments. Nevertheless, considerable disagreement exists among psychotherapists concerning what constitutes treatment boundary violations. Appropriate technique for one therapist may be considered a boundary violation by another therapist. Much variability in defining treatment boundaries appears to be a function of the nature of the patient, the therapist, the treatment, and the status of the therapeutic alliance. For example, notable exceptions may exist in alcohol and drug abuse programs, in inpatient settings, and with certain cognitive-behaviorally based therapies. Regardless of the therapy used, however, every therapist must maintain basic treatment boundaries with all patients. If boundary exceptions are made, they should be for the benefit of the patient. Every effort must be exerted to therapeutically restore breached boundaries. Brief boundary crossings that are quickly rectified can provide useful insight into conflictual issues for both the therapist and patient (Gutheil and Gabbard 1993). Harm threatens the patient when boundary violations progress in frequency and severity over time. Boundary guidelines maintain the integrity of therapy and safeguard both the therapist and the patient. Proponents of therapies that breach generally accepted boundary guidelines risk harming the patient and incurring legal liability (Simon 1990a). Psychiatry continues to be highly

receptive to innovative therapies that offer the hope of more effective treatments for the mentally ill (Simon 1993). The maintenance of basic treatment boundaries should not be inimical to therapeutic creativity.

PSYCHOTHERAPY: THE IMPOSSIBLE TASK All psychiatric treatments, regardless of theoretical orientation, are based on the fundamental premise that the interaction with another human being can alleviate psychic distress, change behavior, and alter a person’s perspective of the world (Simon and Sadoff 1992). Psychotherapy can be defined as the application of clinical knowledge and skill to a dynamic psychological interaction between two people for the purpose of alleviating mental and emotional suffering. This principle also applies to biological and behavioral therapies. Yet psychotherapy is an impossible task (Simon 1990a). There are no perfect therapies and there are no perfect therapists. Psychotherapy has been described as a mutually regressive relationship with shared tasks but different roles (Shapiro and Carr 1991). Boundary violations are therapist role violations that inevitably occur to some degree in every therapy. Although maintaining treatment boundaries is a major psychotherapeutic task, competent psychotherapy also requires recognition by the therapist that he or she has erred. Often, the work of psychotherapy involves the therapeutic restitution of breached boundaries. Treatment boundaries usually can be re-established if the therapist raises a boundary violation as a treatment issue. Since therapists use themselves as a primary therapeutic tool, sensitivity to boundary violations must be maintained at a high level. From a clinical perspective, the therapeutic alliance is considered by many practitioners to be the single most critical factor associated with successful treatment (Marziali, Marmar, and Krupnick 1981). The maintenance of treatment boundaries creates the foundation for the development of the therapeutic alliance and the

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subsequent work of therapy. Trust is the essential basis for a secure therapeutic relationship that permits patients to reveal their most intimate problems. The patient’s trust is based on the conviction that the therapist will use professional skills in a manner that benefits the patient. The development of trust itself may be the sole treatment goal. The maintenance of consistent, stable, and enabling treatment boundaries creates a safe place for the patient to risk self-revelation. Fundamentally, the therapist’s professional concern and respect for the patient ensures that treatment boundaries will be preserved. Treatment boundary violations occur on a continuum, usually interfering with the provision of good clinical care to the patient. Boundary violations frequently result from the therapist’s acting out of his or her personal conflicts. As a consequence, the patient’s diagnosis may be missed or overlooked. Inappropriate or useless treatment may be rendered. Moreover, the patient’s original psychiatric condition may be exacerbated. Boundary violations that represent deviations in the standard of care and are alleged to have harmed the patient may form the basis of a malpractice suit. Boundary violations in the form of negligent psychotherapy are usually part of a claim for sexual misconduct as well as other suits alleging exploitation of patients. Boundary violations foster malpractice suits by creating a misalliance between therapist and patient. Boundary violations, usually reflecting the personal needs of the therapist, set patient and therapist against one another. Langs observes that the failure to maintain treatment boundaries may lead to autistic, symbiotic, and parasitic relationships with patients (Langs 1990, p. 339). Langs explains that autistic relationships (severed link) between therapist and patient damage meaningful relatedness, symbiotic (fusional) relationships pathologically gratify the patient, and parasitic (destructive) relationships exploit the patient. Frequently, bad results combined with bad feelings set the stage for a malpractice suit (Gutheil 1989).

BOUNDARY GUIDELINES Treatment boundaries are established by the therapist according to accepted professional standards. It is the therapist’s professional duty to set and maintain appropriate treatment boundaries in the provision of good clinical care. This duty cannot be relegated to the patient. Once treatment boundaries are established, boundary issues inevitably arise from the therapeutic work with the patient that form an essential aspect of treatment. Boundary crossings that arise from either the therapist or the patient are quickly addressed and rarely harm the patient (Gutheil and Gabbard 1993). Boundary violations, on the other hand, arise solely from the therapist and are often detrimental to treatment, particularly if unchecked and progressive. The therapist who creates

idiosyncratic boundaries or sets no boundaries at all is likely to provide negligent treatment that harms the patient and invites a malpractice suit. A fundamental task for practitioners is the maintaining of constant vigilance against boundary violations and immediately repairing any breaches in a clinically supportive manner. The following boundary guidelines for psychotherapy help maintain the integrity of the treatment process:

• • • • • • • • • • •

Maintain relative therapist neutrality. Foster psychological separateness of patient. Protect confidentiality. Obtain informed consent for treatments and procedures. Interact verbally with patients. Ensure no previous, current, or future personal relationship with the patient. Minimize physical contact. Preserve relative anonymity of therapist. Establish a stable fee policy. Provide consistent, private and professional setting. Define time and length of sessions.

Some of these basic guidelines have been considered by Langs (1990, p. 303–23) to form the necessary treatment frame for the conduct of psychodynamic psychotherapy. Although additional boundary rules could be elaborated, a general consensus exists concerning the basic rules listed above. For example, rules concerning the management of transference and counter-transference could be included but might not find ready acceptance among some behaviorists, biological psychiatrists, and in ‘here and now’ treatments such as Gestalt therapy. Nevertheless, all therapists, regardless of their theoretical orientation, must recognize that transference and counter-transference play an important role in any therapy. An absolutist position concerning boundary guidelines cannot be taken. Otherwise, it would be appropriate to refer to boundary guidelines as boundary standards. Treatment boundaries are not rigid, easily defined, static structures that separate the therapist from the patient like a wall. Instead, they delineate a fluctuating, reasonably neutral, safe space that enables the dynamic, psychological interaction between therapist and patient to unfold. Since treatment boundaries have a certain degree of flux, unanimity of professional opinion does not exist on a number of boundary matters. Moreover, clinicians may place greater emphasis on certain boundary guidelines.

UNDERLYING PRINCIPLES Rule of abstinence There are a number of fundamental, overlapping principles that form the bases for boundary guidelines. One

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of the foremost principles is the rule of abstinence, which states that the therapist must refrain from obtaining personal gratification at the expense of the patient (Freud 1959). Extra-therapeutic gratifications must be avoided by both therapist and patient (Langs 1990, p. 303–23). A corollary of the rule of abstinence states that the therapist’s primary source of personal gratification derives from professional involvement in the psychotherapeutic process and the satisfactions gained in helping the patient. The only material satisfaction directly obtained from the patient is the fee for the therapist’s professional services. Treatment boundaries are violated when the therapist’s primary source of gratification is received from the patient directly rather than through engagement in the therapeutic process with the patient. The rule of abstinence is fundamental to virtually all boundary guidelines.

Duty to neutrality The rule of abstinence attempts to secure a position of neutrality for the therapist with the patient. Therapeutic neutrality is not defined in the psychoanalytic sense of equidistance between the patient’s ego, superego, id, and reality. Rather, it refers to the therapist knowing his or her place and staying out of the patient’s personal life (Wachtel 1987, p. 176–84). Therapeutic neutrality permits the patient’s agenda to be given primary consideration. The relative anonymity of the therapist assures that self-disclosures will be kept at a minimum, thus maintaining therapist neutrality. The law also independently recognizes the therapist’s duty of neutrality toward patients (Furrow 1980). The concept of relative neutrality refers to the limitations placed on psychotherapists that prevent interference in the personal lives of their patients. Life choices involving marriage, occupation, where one lives, and with whom one associates, although grist for the therapeutic mill, are basically the patient’s final choice (Wachtel 1987, p. 176–84). Therapists must be very careful about expressing their personal views in the treatment situation concerning, for example, politics, religion, abortion, and divorce. If an otherwise competent patient is thinking about making a decision that appears foolish or even potentially destructive, the therapist’s role is primarily limited to raising the questionable decision as a treatment issue. For example, the therapist can legitimately explore the psychological meaning of the decision as well as its potential adverse consequences for the patient’s treatment and life situation. On the other hand, clinical situations do arise when the psychotherapist must intervene directly. If a patient’s decision-making capacity is severely impaired by a mental disorder, the therapist may need to actively intervene to protect the patient or others (Simon 1990b). For example, a psychotically depressed, acutely suicidal patient who refuses to enter a hospital voluntarily requires involuntary hospitalization. Under these circumstances,

the clinician intervenes in the patient’s life for valid clinical, not personal, reasons.

Patient autonomy and self-determination Fostering the autonomy and self-determination of the patient is another major principle underlying boundary guidelines. Maintaining patient separateness by supporting the process of separation–individuation follows as a corollary. Of the over 450 current psychotherapies, none holds as a long-term treatment objective that patients remain dependent and psychologically fused with their therapists or others. Obtaining informed consent for proposed procedures and treatments also preserves patient autonomy (Simon 1992). Patient self-determination dictates that the therapist’s clinical posture toward the patient should be expectant; that is, the patient primarily determines the content of his or her sessions. This is not the modus operandi, however, in cognitive-behavioral therapies or even with some forms of interpersonal therapy. Moreover, the prohibition that physical contact with patients be essentially avoided and that the therapist stay out of the person’s personal life (no past, current, or future personal relationships) derive in large measure from the principle of autonomy and self-determination. Progressive boundary violations invariably constrict the patient’s freedom of exploration and choice. Properly maintained treatment boundaries maintain the separateness of the patient from the therapist while also preserving the psychological relatedness of the patient to others.

Fiduciary relationship As a matter of law, the doctor–patient relationship is fiduciary (Omer v. Edgren 1984). The knowledge and power differentials that exist between therapist and patient require the therapist, as a fiduciary, not to exploit the patient for his or her personal advantage. This responsibility is ‘implicit’ in the therapist–patient relationship and is fundamental to the general ‘duty of care.’ The special vulnerabilities and dependence of the patient rather than the unique powers of a profession give rise to a fiduciary duty (Simon 1987). A fiduciary relationship arises, therefore, whenever confidence, faith, and trust are reposed on one side, and domination and influence results on the other (Black 1990). Not only psychiatrists but also all mental health professionals have a fiduciary responsibility to their patients. The maintenance of confidentiality, privacy, a stable fee policy, and consistent time and professional treatment settings are based in large measure on the fiduciary duties of the therapist.

Respect for human dignity Moral, ethical, and professional standards require that psychiatrists treat their patients with compassion and

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respect. The dedication of physicians to their patients has a long and venerable tradition that finds expression in the Hippocratic oath. The Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry (1998, Section 1) instructs: ‘A physician shall be dedicated to providing competent medical service with compassion and respect for human dignity.’ On clinical grounds alone, the competent therapist always strives to maintain the patient’s healthy self-esteem in the course of therapy. Exploitative therapists, however, engage patients as part objects to be used for their own personal gratification. Frequently, such therapists attack the self-esteem of their patients as a means of gaining control over them. All of the boundary guidelines are based on the principle of respect for human dignity.

Defensive boundaries Defensive psychiatry refers to any act or omission that is performed not for the benefit of the patient but to avoid malpractice liability or to provide a legal defense against a malpractice claim. Defensive practices that produce deviant treatment boundaries usually take the form of clinically unnecessary prohibitions that disturb the therapist’s position of neutrality. Typical clinical issues that provoke defensive treatment boundaries include treating patients with sexual transferences and managing potentially violent patients that may require the therapist to warn and protect endangered third parties. Defensive boundaries are usually created by unrecognized or uncorrected therapists’ counter-transferences (Simon 2000).

Impaired therapists TREATMENT BOUNDARIES: GENERAL ISSUES Boundaries in small communities Psychiatrists and other mental health professionals who practice in small communities and rural areas encounter unique situations and customs that may complicate the task of maintaining treatment boundaries (Simon and Williams 1999). Boundary problems are more likely to occur in maintaining confidentiality and a position of relative therapist neutrality and anonymity. Boundary guidelines must be adaptable to small community practice without endangering the therapeutic frame and the patient.

Impaired therapists usually experience great difficulty in setting and maintaining acceptable treatment boundaries (Olarte 1991). Deviant, aberrant, idiosyncratic boundaries form the basis for patient exploitation. Severely character-disordered therapists tend to repeat boundary deviations with their patients. Predatory, exploitative therapists also belong to this group. Therapists who establish aberrant boundaries may also be incompetent; impaired by alcohol, drugs, and mental illness; situationally distressed by personal crises; or suffering from a paraphilia, particularly frotteurism. Frotteurs have great difficulty in maintaining appropriate physical distance from patients, frequently becoming involved in inappropriate touching.

Vulnerable patients Exigent boundary crossings In the course of treatment, it may be necessary for the sake of the patient or the welfare of others for the therapist to cross accepted treatment boundaries. The observance of usual treatment boundaries may be interrupted by crises in clinical care, and by intervening, superseding ethical or legal duties. For example, an agoraphobic patient initially may be so incapacitated that he or she is unable to come to the psychiatrist’s office. Home visits may be necessary. The potentially violent patient who threatens others creates a conflicting ethical position for the clinician concerning the maintenance of confidentiality. The existence of legal requirements to warn and protect endangered third persons may necessitate a breach of the patient’s confidentiality. If the patient’s cooperation can be enlisted in the process of warning, the treatment boundaries may be maintained. Engaging the patient in the decision to readjust treatment boundaries that result from treatment exigencies may permit salutary boundary reshaping that can facilitate the treatment process.

Every patient is vulnerable to psychological harm from therapists who violate treatment boundaries. Borderline patients are especially at risk for psychic injury (Gutheil 1991). Many of these patients have been physically and sexually abused as children, and their sense of appropriate relationships and boundaries may be seriously impaired. Treatment boundaries are frequently tested through compulsive repetition of early childhood relationships where personal boundaries were not respected. Highly dependent patients or patients recently experiencing a personal loss are also particularly vulnerable to exploitation. Although therapists set treatment boundaries, patients invariably test boundaries repeatedly, and in various ways. Healthier patients generally are able to stay within acceptably established treatment boundaries, using the treatment framework productively. More disturbed patients often act out their conflicts around boundary issues. For instance, a patient who was sexually abused as a child may test the integrity of the therapist by continually challenging treatment boundaries. With more disturbed

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patients, a considerable portion of the therapy may be devoted to examining the psychological meaning of the patient’s efforts to gain exceptions to established treatment boundaries. Patients who cannot tolerate limit setting by the therapist may be untreatable (Green et al. 1988).

DISCUSSION OF BOUNDARY GUIDELINES Neutrality and self-determination The rule of abstinence and the therapist’s position of relative neutrality empower patient separateness, autonomy, and self-determination. Therapists who abandon a position of neutrality and undercut the patient’s independence through numerous boundary violations tend to promote a fusional relationship between psychiatrist and patient. In extreme instances, the therapist gradually gains control over the patient’s life, making basic life decisions for the patient. Whether done consciously or unconsciously, boundary violations limit a patient’s options for independent psychological functioning and recovery. The achievement of psychological independence is a goal of treatment. The maintenance of patient separateness that permits pursuit of this goal is a boundary requirement for the therapist.

Confidentiality The maintenance of confidentiality is a fundamental boundary guideline that must be adhered to unless specific clinical, ethical, or legal exceptions arise (Simon 1992). Confidentiality must be maintained unless release of information is competently authorized by the patient. Breaches of confidentiality typically occur when therapists find themselves in dual roles (Simon 1987). Such roles usually occur when the therapist must serve simultaneously the patient and a third party. Clinicians working in managed-care settings often find themselves struggling with dual roles (New Mental Health Economics 1987).

Informed consent The law requires informed consent for treatments and procedures. Incidental to legal intent, informing patients of the risks and benefits of a proposed treatment maintains patient autonomy and fosters the therapeutic alliance (Simon 1989a). In a number of sexual misconduct cases, drugs and even electroconvulsive therapy have been used to gain control over patients (Simon 1992). Negligent medication practices are especially prominent in these cases. Obviously, no effort is made to inform the patient of the risks and benefits of any prescribed medications. Frequently, addictive medications are given, particularly barbiturates and benzodiazepines.

Verbal interaction The process of psychotherapy requires that the interaction between therapist and patient be essentially verbal. Engaging the patient verbally acts as a check against acting out behaviors by the therapist. In psychotherapy, the therapist must always be alert to the possibility of acting out emotional conflicts with the patient. Acting out may be manifested either by the therapist’s behavior or by inducing the patient to act out. There is, however, a fundamental difference between active interventions utilized by the therapist and therapist acting out. For instance, when somatic therapies or behavioral modification techniques are used, active interventions are made in the service of the treatment, not for the purpose of exploiting the patient (Goisman and Gutheil 1992). Moreover, therapists may find it necessary to actively clinically intervene on behalf of a patient in crisis. All therapies, including Rogersian therapy and even psychoanalysis, employ active interventions and reinforcement approaches (Wachtel 1987, p. 120–2). The danger to patients and their therapy does not arise from therapist activity per se, but rather from therapist acting out. Bibring (1954) noted that all dynamic psychotherapies variously utilize catharsis, suggestion, manipulation, clarification, and insight in their therapeutic approaches to the patient. Irrespective of the methods favored, the patient should be primarily engaged on a verbal rather than on an action level. Therapists who act out verbally can also seriously harm their patients. The behavioral expression of emotional conflict by therapists is usually more damaging to patients.

Personal relationships Most therapists accept the boundary guideline principle of no previous, current, or future personal relationship with the patient. Past and current personal relationships with patients can hopelessly muddle treatment boundaries and doom any therapeutic efforts. Social chit-chat is not psychotherapy. Maintaining post-treatment relationships with patients remains controversial (Simon 1992). For a number of sound clinical reasons, post-termination relationships with patients should be avoided (Simon 1992). Transferences can be timeless, raising serious concerns about a former patient’s ability for autonomous consent to a posttreatment relationship. A one-year waiting period has been proposed that ‘should minimize problems and allow former patients and therapists to enter into intimate relationships’ (Appelbaum and Jorgenson 1991). The vast majority of therapist–patient sexual relationships begin within six months of termination. On the other hand, if the therapist thinks about the patient as a future sexual partner, boundary violations may likely result that impair the patient’s treatment. The Principles of Medical

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Ethics with Annotations Especially Applicable to Psychiatry (1998, Section 2, annotation 1) states, ‘Sexual activity with a current or former patient is unethical.’

Physical contact The avoidance of physical contact with patients is also a controversial issue (Bancroft 1981). Situations may arise in treatment when a handshake or a hug is the appropriate human response. Inoffensive and necessary touching occurs in the course of administering some procedures or treatments. Therapists who work with children, the elderly, and the physically ill frequently find that a caring human touch is comforting and is clinically supportive. An absolute prohibition against touching patients would preclude such therapeutic, human responses. Nevertheless, therapists must be extremely wary of touching patients. Hugging may seem innocuous, but when carefully scrutinized, may contain erotic messages. Gratuitously touching the patient is clinically inappropriate and may be a prelude to sexual intimacies (Holub and Lee 1990). Holroyd and Brodsky (1989) found that non-erotic hugging, kissing, and touching of oppositesex patients, but not same-sex patients, was a sex-biased therapy practice associated with a high risk of leading to sexual intercourse with patients. Every patient has the right to maintain the privacy of his or her own body. Some psychiatrists continue to do their own physical examinations of patients. The transference and countertransference complications of physical examinations performed by the treating psychiatrist are well known. It is important that a physical examination not become the first step to progressive personal involvement with the patient.

Anonymity Therapist self-disclosure is also a complicated topic (Stricker and Fisher 1990). Patient and therapist shared regression is one of the obvious dangers of therapist selfdisclosure. Some therapists have found the sharing of a past personal experience to be helpful for certain patients in especially supportive psychotherapy. However, the self-disclosure of current conflicts and crises in the therapist’s life can induce a role reversal in the patient who then attempts to rescue the therapist. Details of the therapist’s personal life, especially fantasies and dreams, should not be shared with patients (Gutheil and Gabbard 1993). Therapist self-disclosures appear to be highly correlated with the occurrence of therapist–patient sex (Borys and Pope 1989; Schoener 1989). On the other hand, selfdisclosure may be necessary if the therapist is suffering from an illness that might negatively affect the treatment or may cause the therapist to be absent from practice for a significant period of time.

The therapist’s position of relative anonymity, however, does not require that he or she remain a blank screen. The therapeutic relationship between therapist and patient is essentially interactive (Wachtel 1987, p. 176–84). For example, the therapist’s overt and covert reactions to the patient can be therapeutically valuable in pointing out to the patient the repetitive nature of the patient– therapist interaction as it plays out in other important relationships.

Fees A fee should be established between the therapist and the patient that is mutually acceptable. Fees may change over time according to economic conditions and the personal circumstances of the patient. Therapists’ fees should be paid with money only. The pecuniary value of nonmonetary payments is difficult to establish, and should not be accepted (Simon 1992). Therapists who become sexually involved with patients frequently discontinue billing. Although this practice has a number of meanings, some therapists do so in the erroneous belief that not billing the patient terminates the treatment relationship and therefore the possibility of being sued. The establishment and continuance of the doctor–patient relationship is not dependent on the payment of a fee (King 1986).

Treatment setting As Langs (1990) points out, a consistent, relatively neutral treatment setting provides the necessary physical constants that endeavor to maintain ‘a maximal degree of consistency, certainty, and stability’ for the treatment experience to unfold. Since many patients have suffered from inconstancy and intrusiveness in their relationships and physical environments, maintaining a professional treatment setting is psychologically important. Behavior therapists, however, do accompany phobic patients into threatening environments and situations as part of their legitimate treatment regimen. Therapists with religious orientations may attend a patient’s house of worship. Under exceptional circumstances or in an emergency, the therapist may find it necessary to make a house call. Flexibility is necessary because of clinical exigencies and reasonable variations in treatment approaches. Most patients need to come to the therapist’s office for treatment. Psychotherapy cannot ordinarily be conducted over a telephone. With obvious exceptions, the telephone should be used mainly for making or breaking appointments or for emergencies. The telephone and other communication devices (e.g., cellphones, beepers, answering machines) are very useful in emergencies, but should not be allowed to create technological barriers between the therapist and the patient (Canning, Hauser, and Gutheil 1991).

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On the other hand, therapists who treat patients suffering from dissociative identity disorders sometimes have to contend with ‘altered mental states’ over the telephone. On occasion, therapy may be temporarily conducted over the telephone when the patient cannot come to the office for reasons of work, travel, or physical illness. Medications may require adjustment over the telephone between sessions. Telephone contact may be required in emergencies, but non-emergency telephone interviews should be well structured, prearranged, time-limited therapeutic engagements that are paid for at the regular rates.

Time Sessions that are defined in time and length also add stability to the treatment relationship. In sexual misconduct cases, therapy sessions progressively lose time definition, both in scheduling and length. Therapists must always question their reasons for lengthening or shortening of sessions. Longer sessions may cause certain patients to feel special and, potentially, more vulnerable to exploitation. On the other hand, the length of some sessions may require a sensitivity to the exigent clinical needs of the patient. Patients in crisis often need additional time during a session. Patients with dissociative identity disorders may require flexibility in the length of sessions. Some longer sessions may be needed as various mental states emerge (Putnam 1989).

BOUNDARY VIOLATIONS AND MALPRACTICE In almost all cases of therapist–patient sex, progressive boundary violations precede and accompany the eventual sexual acts (Simon 1989b). Empirical and consultative experience reveals that damaging boundary violations begin insidiously and are progressive. During the segment of the therapy session that occurs ‘between the chair and the door,’ patients and therapists are more vulnerable to committing boundary excursions and violations. Inchoate boundary violations with a potential for damaging progression usually first appear within this interval. This part of the session can be scrutinized for early warning of boundary violations and studied for its instructive value in risk management and prevention of sexual misconduct (Gutheil and Simon 1995). Patients usually are psychologically damaged by the precursor boundary violations as well as the sexual exploitation (Schoener 1989; Simon 1991). Even if the therapist and patient stop short of an overt sexual relationship, precursor boundary violations often prevent adequate diagnosis and treatment of the patient. The patient’s original mental disorder is often exacerbated and other mental disorders are iatrogenically induced. Thus, therapists may be sued not only for sexual misconduct but also for negligent psychotherapy. In sexual

misconduct cases where insurance coverage is excluded, a malpractice claim may be filed based upon the numerous, harmful boundary violations that precede therapist– patient sex.

MONETARY EXPLOITATION Boundary violations involving money and insurance matters are quite common (Simon 1992). Irregularities concerning patient billing of insurance companies may be only one of a number of boundary violations in the treatment. Any hint of dishonesty in the therapist’s dealings with third parties will likely disrupt the therapist’s position of neutrality and create mistrust in the therapist–patient relationship. Becoming involved or involving the patient in an acrimonious battle with third-party payers can disrupt boundaries and harm treatment. Practitioners who become involved in business dealings with patients may later be accused of undue influence when purchasing valuable goods or property from the patient at below market value, or when the patient leaves the witting therapist a large amount of money in a will (Halleck 1980). The use of ‘insider information’ obtained from the patient for the personal advantage of the therapist occurs with disturbing frequency (American Psychiatric Association 1990). An example of such a practice occurred when a psychiatrist used a stock tip obtained from a bank executive’s wife during the course of therapy to turn a large profit (Northrup 1991). Once the Securities and Exchange Commission learned from the patient that ‘insider’ information about a merger was provided, it charged the psychiatrist with profiting illegally. Profits of $26,933.74 were surrendered, and the psychiatrist was fined $150,000 and sentenced to five years of probation and 3000 hours of community service (Washington Post 1991). Psychiatrists who work in managed-care settings may face major ethical concerns and potentially serious double-agent roles (Sabin 1989). ‘Negative incentives’ that cut costs at the expense of diminished quality of care represent a significant threat to the therapist’s fiduciary commitment to patients (May 1986). Money matters must be secondary to the clinician’s professional, ethical and legal duty to provide adequate clinical care.

DOUBLE AGENTRY The problem of conflicting loyalties is a major concern to many psychiatrists (Weinstein 1991). Double agentry refers to the psychiatrist’s conflicting loyalties when simultaneously serving the patient and an agency, institution, or society (In the Service of the State 1978). In the case of a military psychiatrist, for example, the professional

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duty owed to the soldier (patient) versus loyalty to the military’s best interests poses a potential double-agent role. Prison psychiatrists are frequently confronted with the conflict of having to serve the interests of their prisoner patients, prison officials, and society. School psychiatrists must consider the interests of the student, the parents, and the school administration. Boundary violations – particularly those involving breaches of confidentiality – may occur when therapists find themselves serving both the patient and a third party. Dual roles often skew the therapist’s maintenance of appropriate treatment boundaries. Therapists must inform patients from the very beginning about any limitations placed on the patient’s treatment, and particularly limits on confidentiality due to dual responsibilities of the therapist. Practitioners may hold personal agendas that create a conflict of interest, disturbing the therapist’s position of neutrality and creating legal liability. For example, in Roe v. Doe (1977) a psychiatrist was sued by a former patient for publishing a book that reported verbatim information from the therapy including the patient’s thoughts, feelings, and fantasies.

CONCLUSION Treatment boundaries fluctuate in response to the dynamic, psychological interaction between therapist and patient. As a consequence, boundary crossings and violations occur in almost every therapy. The boundarysensitive therapist can usually re-establish treatment boundaries before the patient is psychologically harmed. Epstein and Simon (1990) have devised an Exploitation Index that offers therapists an early warning indicator of treatment boundary violations. A survey of 532 psychiatrists who were administered the Exploitation Index revealed that 43 per cent found one or more questions that alerted them to boundary violations, while 29 per cent noted that the questionnaire stimulated them to make specific changes in future treatment practices (Epstein, Simon, and Kay 1992). Although ‘minor’ boundary excursions initially may appear innocuous, they can represent inchoate violations along the progression to eventual exploitation of the patient. A spot test can be applied by the boundary-sensitive therapist to determine whether he or she has committed a boundary violation: first, is the intervention in question done for the benefit of the therapist or for the sake of the patient’s therapy? Second, is the intervention in question part of a series of progressive boundary violations? If the answer to either is ‘yes,’ the therapist is on notice to desist immediately and to take corrective action. If basic treatment boundaries are violated and the patient is harmed, therapists may be sued, charged with ethical violations, and may lose their professional license.

REFERENCES American Psychiatric Association. 1998. The Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry. Washington, DC: American Psychiatric Association. American Psychiatric Association Ethics Committee. 1990. Non-sexual exploitation of patients. Ethics Newsletter 6(2). Appelbaum, P.S., Jorgenson, L. 1991. Psychotherapist–patient sexual contact after termination of treatment: an analysis and a proposal. American Journal of Psychiatry 148, 1466–73. Bancroft, J. 1981: Ethical aspects of sexuality and sex therapy. In Block, S., Chodoff, P. (eds), Psychiatric Ethics. New York: Oxford University Press, 160–84. Bibring, E. 1954. Psychoanalysis and the dynamic psychotherapies. Journal of the American Psychoanalytic Association 2, 745–70. Black, H.C. 1990: Black’s Law Dictionary, 6th edition. St. Paul, MN: West Publishing. Borys, D.S., Pope, K.S. 1989. Dual relationships between therapist and client: a national study of psychologists, psychiatrists, and social workers. Professional Psychology Research and Practice 20, 287–93. Canning, S., Hauser, M., Gutheil, T. 1991: Communications in psychiatric practice: decision making and the use of the telephone. In Gutheil, T., Bursztajn, H., Brodsky, A., et al. (eds), Decision Making in Psychiatry and the Law. Baltimore: Williams & Wilkins, 227–35. Epstein, R.S., Simon, R.I. 1990. The exploitation index: an early warning indicator of boundary violations in psychotherapy. Bulletin of the Menninger Clinic 54, 450–65. Epstein, R.S., Simon, R.I., Kay, G.G. 1992. Assessing boundary violations in psychotherapy: survey results with the Exploitation Index. Bulletin of the Menninger Clinic 56, 1–17. Freud, S. 1959: Further recommendations in the technique of psychoanalysis. In Jones, E., Riviere, J. (eds), Collected Papers. Volume 2. New York: Basic Books, 121–38. Furrow, B. 1980: Malpractice in Psychotherapy. Lexington, MA: D.C. Heath, 31. Green, S., Goldberg, R., Goldstein, D., et al. 1988: Limit Setting in Clinical Practice. Washington, DC: American Psychiatric Press. Goisman, R.M., Gutheil, T.G. 1992. Risk management in the practice of behavior therapy: boundaries and behavior. American Journal of Psychotherapy 46, 532–43. Gutheil, T. 1989. Borderline personality disorders, boundary violations, and patient–therapist sex: medicolegal pitfalls. American Journal of Psychiatry 146, 597–602. Gutheil, T.G. 1991. Patients involved in sexual misconduct with therapists: is a victim profile possible? Psychiatric Annals 21, 661–7.

164 Legal regulation of psychiatric practice Gutheil, T., Gabbard, G. 1993. The concept of boundaries in clinical practice: theoretical and risk management dimensions. American Journal of Psychiatry 150, 188–96. Gutheil, T.G., Simon, R.I. 1995. Between the chair and the door: boundary issues in the therapeutic ‘transition zone’. Harvard Review of Psychiatry 2, 336–40. Halleck, S. 1980: Law in the Practice of Psychiatry. New York: Plenum, 38–9. Holub, E.A., Lee, S.S. 1990. Therapists’ use of nonerotic physical contact: ethical concerns. Professional Psychology: Research and Practice 21, 115–17. Holroyd, J.C., Brodsky, A.M. 1989. Does touching patients lead to sexual intercourse? Professional Psychology: Research and Practice 11, 807–11. In the Service of the State: The Psychiatrist as Double Agent. Special supplement. 1978. Briarcliff Manor, NY: The Hastings Center. King, J. 1986: The Law of Medical Malpractice. St. Paul: West, 17. Langs, R. 1990: Psychotherapy: A Basic Text. Nortlivale, NJ: Jason Aronson, 303–23, 339. Marziali, E.M., Marmar, C., Krupnick, J. 1981. Therapeutic alliance scales: development and relationship to psychotherapy outcome. American Journal of Psychiatry 138, 361–4. May, W.E. 1986. Patient advocate or secret agent? Journal of the American Medical Association 256, 1784–7. New Mental Health Economics and the Impact on the Ethics of Psychiatric Practice. April 16–17, 1987. Briarcliff Manor, NY: The Hastings Center. Northrup, B. 1991. Psychotherapy faces a stubborn problem: abuses by therapists. Wall Street Journal, October 29, 1. Olarte S.W. 1991. Characteristics of therapists who become involved in sexual boundary violations. Psychiatric Annals 21, 657–60. Omer v. Edgren, 38 Wash. App. 376, 685 P.2d 635 (1984). Putnam, F.W. 1989: Diagnosis and Treatment of Multiple Personality Disorder. New York: Guilford Press. Roe v. Doe, 93 Misc2d 201, 400 N.S.Y2d, 668 (Sup Ct 1977). Sabin, J.E. 1989. Psychiatrists face tough ethical questions in managed care setting. Psychiatric Times 16, 1, 10–11. Schoener, G. 1989. Assessment of damages. In Schoener, G., Milgrorn, J., Gonsiorek, J., et al. (eds), Psychotherapists’ Sexual Involvement with Clients: Intervention and

Prevention. Minneapolis: Walk-in Counseling Center, 133–45. Shapiro, E., Carr, W. 1991: Lost in Familiar Places: Creating New Connections Between the Individual and Society. New Haven, CT: Yale University Press. Simon, R.I. 1987. The psychiatrist as a fiduciary: avoiding the double agent role. Psychiatric Annals 17, 622–6. Simon, R.I. 1989a. Beyond the doctrine of informed consent: a clinician’s perspective. Journal for the Expert Witness, the Trial Attorney, the Trial Judge 4, 23–5. Simon R.I. 1989b. Sexual exploitation of patients: how it begins before it happens. Psychiatric Annals 19, 104–12. Simon, R.I. 1990a: Legal liabilities of an ‘impossible’ profession. In Simon, R.I. (ed.), American Psychiatric Press Review of Clinical Psychiatry and the Law. Volume 2. Washington, DC: American Psychiatric Press, 3–91. Simon, R.I. 1990b: The duty to protect in private practice. In Beck, J.C. (ed.), Confidentiality Versus the Duty to Protect. Foreseeable Harm in the Practice of Psychiatry. Washington, DC: American Psychiatric Press, 23–41. Simon, R.I. 1991. Psychological injury caused by boundary violation precursors to therapist–patient sex. Psychiatric Annals 21, 614–19. Simon, R.I. 1992: Clinical Psychiatry and the Law. 2nd edition. Washington, DC: American Psychiatric Press. Simon, R. 1993. Innovative psychiatric therapies and legal uncertainty: a survival guide for clinicians. Psychiatric Annals 23, 473–9. Simon, R. 2000. Defensive psychiatry and the disruption of treatment boundaries. Israel Journal of Psychiatry 37, 124–31. Simon, R., Sadoff, R. 1992: Psychiatric Malpractice: Cases and Comments for Clinicians. Washington, DC: American Psychiatric Press. Simon, R., Williams, I. 1999. Maintaining treatment boundaries in small communities and rural areas. Psychiatric Annals 50, 1440–6. Stricker, G., Fisher, M. 1990: Self-Disclosure in the Therapeutic Relationship. New York: Plenum Press. Wachtel, P. 1987: Action and Insight. New York: Guilford Press, 120–2, 167–75, 176–84. Washington Post, January 8, 1991, D10. Weinstein, H. 1991: Dual loyalties in the practice of psychiatry. In Simon, R.I. (ed.), American Psychiatric Press Review of Clinical Psychiatry and the Law. Volume 3. Washington, DC: American Psychiatric Press.

21 Sexual misconduct in the therapist–patient relationship ROBERT I. SIMON

INCIDENCE The sexual exploitation of patients by therapists is of serious professional, ethical, and legal concern for the mental health professions. The results of a nationwide survey of psychiatrist–patient sex revealed that 7.1 per cent of male and 3.1 per cent of female respondents acknowledged sexual contact with their patients (Gartrell et al. 1986). Of the sexual contacts that occurred, 88 per cent took place between male psychiatrists and female patients, 7.6 per cent between male psychiatrists and male patients, 3.5 per cent between female psychiatrists and male patients, and 1.4 per cent between female psychiatrists and female patients. Most surveys show a consistent gender difference that varies from approximately 2:1 to 4:1 male to female ratio of therapists who sexually exploit their patients. In surveys carried out after 1980, the percentage of therapists admitting sexual contact with patients has steadily declined. In 1989, a survey of 4800 psychiatrists, psychologists, and social workers showed a rate of therapist–patient sex of 0.9 per cent for male therapists and 0.2 per cent for female therapists (Borys and Pope 1989). As of this writing, forensic psychiatrists generally see fewer sexual misconduct cases than a decade ago. One reason may be the exclusion of malpractice coverage for therapist–patient sex by insurers. Another reason may be the influence of managed care in limiting the amount of time therapists spend with patients, thus diminishing the intensity of therapist–patient interactions.

STANDARD OF CARE The Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry unequivocally prohibit sex with a current or former patient (1998). This ethical position has a venerable tradition in medicine since the time of

Hippocrates. Sex between the therapist and the patient is negligence per se (Simon 1992). Therapist–patient sex is a violation of those statutes that govern the licensing and regulation of mental health professionals, incorporating ethical codes adopted by the professions that specifically prohibit sexual contact between therapist and patient. It is also unequivocal evidence of professional incompetence. The psychiatrist holds himself or herself out to the public as having standard professional skill and knowledge. The psychiatrist ‘must have and use the knowledge, skill, and care ordinarily possessed and employed by members of the profession in good standing’ (Keeton et al. 1984). Since a respected minority of psychiatrists does not exist who will state that sex with a patient falls within the standard skill and knowledge of psychiatrists, sex between psychiatrist and patient is an unquestioned and unchallenged deviation in the standard of care. An increasing number of states are limiting by statute the period of time after treatment ends whereby psychotherapists may be held legally liable for sexual involvement with a former patient (Gartrell et al. 1986). Some state statutes provide immunity from legal liability for sex between therapist and a former patient that occurs after a proscribed period of time, usually one to two years following termination (Bisbing, Jorgenson, and Sutherland 1995, p. 755–6). Appelbaum and Jorgenson (1991) have proposed a one-year waiting period that ‘should minimize problems and allow former patients and therapists to enter into intimate relationships.’ Since approximately 98 per cent of sexual contact with former patients occurs within a year of initial clinical contact, most statutory time limits prohibiting post-treatment sex more than adequately cover the time of maximal vulnerability of patients to sexual exploitation (Gartrell et al. 1986). On the other hand, if the therapist entertains the prospect of sex with the patient in the future, boundary violations may likely result that impair the patient’s treatment.

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Nevertheless, although it may not be illegal for psychotherapists to have sex with a former patient after expiration of a statutory prohibitionary period, it is unethical for psychiatrists. The patient may not have had a therapeutic termination but rather an interrupted therapy by the therapist who anticipates having sex with the patient. Post-treatment sex with the patient often signals the presence of earlier precursor boundary violations by the therapist. Frequently, therapists who entertain the possibility of post-treatment sex with a patient usually communicate this desire during the course of treatment. Therapist sex with a former patient presents complex ethical and legal issues. Some therapists marry their former patients. Moreover, constitutional issues surrounding the right of association and the competency of the former patient to choose freely complicate the legal analysis of post-treatment sex (Schoener et al. 1989). Clinically, however, the matter is much more simple. The most credible policy is to avoid sex with former patients. A closed-door policy toward former patients should be considered. Once the patient enters the door of the psychotherapist’s office, it is forever closed to the possibility of a sexual relationship. Aside from ethical and legal concerns, a number of sound clinical reasons exist for this position (Simon 1992). Sexual relations between supervisor and trainee also raises ethical issues. The Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry states the following: Sexual involvement between a faculty member or supervisor and a trainee or student, in those situations in which an abuse of power can occur, often takes advantage of inequalities in the working relationship and may be unethical because: (a) any treatment of a patient being supervised may be deleteriously affected; (b) it may damage the trust relationship between teacher and student; and (c) teachers are important professional role models for their trainees and affect their trainees’ future professional behavior. (section 4, annotation 14, 1998)

THERAPIST–PATIENT SEX: CLINICAL ISSUES, BOUNDARY VIOLATIONS The road to therapist–patient sex is littered with numerous boundary violations (Simon 1999). Sexual misconduct rarely happens suddenly, but is usually preceded by progressive, increasingly damaging precursor boundary violations (Simon 1989). The precursor boundary violations usually psychologically harm the patient by interfering with appropriate diagnosis and treatment (Simon 1991a). Precursor boundary violations can cause serious psychological injury, even if the therapist and patient stop short of a sexual relationship.

Although every case of sexual misconduct is unique, a ‘typical’ scenario can be derived from cases evaluated for litigation:

• • • • • • • • • •

Therapist’s position of neutrality is gradually eroded in ‘little’ ways. Therapist and patient address each other by first name. Therapy sessions become less clinical and more social. Therapist’s self-disclosures occur, usually about current problems and sexual fantasies about the patient. Therapist begins touching patient, usually by hugs and embraces. Therapist gains control over patient, usually by manipulating the transference and by medications. Therapy sessions become extended in time. Therapy sessions are rescheduled at the end of the day. Therapist and patient have drinks/dinner after sessions; dating begins. Therapist–patient sex begins.

Since precursor boundary violations to therapist–patient sex usually occur gradually and incrementally, the therapist may have time to restore treatment boundaries. Empirical and consultative experience reveals that damaging boundary violations begin insidiously and are progressive. During the segment of the therapy session that occurs ‘between the chair and the door,’ patients and therapists are more vulnerable to committing boundary excursions and violations. Inchoate boundary violations with a potential for damaging progression usually first appear within this interval. This part of the session can be scrutinized for early warning of boundary violations and studied for its instructive value in risk management and prevention of sexual misconduct (Gutheil and Simon 1995). Self-disclosure by therapists during the course of psychotherapy remains a controversial issue (Stricker and Fisher 1990). Therapist self-disclosures, especially about current personal problems and sexual fantasies about the patient, appear to be highly correlated with eventual sexual misconduct (Borys and Pope 1989; Schoener et al. 1989). Self-disclosures about relationship problems, sexual frustrations, fantasies about the patient, and feelings of loneliness are particularly troublesome for the patient. Therapist self-disclosures not only waste treatment time but also promote a caretaking role on the part of the patient. On the other hand, explanations may be provided to patients when the therapist will be absent for a considerable period of time. For example, a therapist’s prolonged absence due to illness may require that the patient see another therapist. A simple explanation to the patient would be in order. Epstein and Simon (1990) have devised an Exploitation Index that can be used by therapists as an early warning indicator of treatment boundary violations. A survey of 532 psychiatrists using the Exploitation Index revealed that 43 per cent found that one or more questions alerted them to boundary violations, whilst 29 per cent were

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stimulated to make specific changes in treatment practices (Epstein, Simon, and Kay 1992).

Transference exploitation Patients who come for psychiatric treatment are undergoing painful mental and emotional suffering that is often debilitating. As a consequence, their decision-making capacity and judgment are usually impaired. Moreover, the therapist is viewed as a critically important source of help and hope. Under these circumstances, a patient’s transference of expectant beneficence may develop that is highly influenced by early, powerful wishes for nurture and care. The therapist is frequently idealized as the allgood, all-giving parent. Combined with the fear of losing the newly acquired idealized parental figure, the beneficent transference leaves the patient vulnerable to exploitation by the therapist. The beneficent transference is a common psychological reaction, experienced to varying degrees by practically all patients. It should be distinguished from the transference neurosis that develops in a number of patients usually undergoing intensive, psychodynamic psychotherapy. Unlike the physician who works intuitively within the gambit of a positive transference that provides hope and succor to the patient, psychiatrists and other mental health professionals frequently work directly with transference phenomena as a therapeutic tool. As a treatment strategy in intensive psychotherapy or psychoanalysis, the therapist may encourage development of the transference but then is expected to keep counter-transference feelings in check for the benefit of the patient. Biologically or behaviorally trained psychiatrists and psychotherapists may not place much emphasis on transference issues in treatment. Nevertheless, the importance of transference is well known and must be recognized by all therapists, regardless of their training and theoretical background. The legal concepts of undue influence and breach of fiduciary trust may be utilized in place of the concept of transference in the civil litigation of sexual misconduct cases involving biologically or behaviorally trained therapists (Simon 1991b). The issue of patient transference and the competency to consent to therapist–patient sex sometimes arises in the context of litigation (Simon 1994). However, it is the breach of fiduciary trust by the therapist who engages in sex with the patient that should be the appropriate focus of wrongdoing (Simon 1992). In explaining therapist–patient sex, the concepts of transference and counter-transference mismanagement have limitations. Psychotherapists with malignant character disorders or paraphilias manifesting severe narcissistic, antisocial, or perverse character traits sexually simply exploit patients. The mismanagement of transference and counter-transference feelings is an epiphenomenon of character impairment.

Certain patients appear to be particularly vulnerable to sexual exploitation. Patients with borderline, dependent, and histrionic personality disorders are vulnerable to sexual exploitation because significant potential exists for developing intense erotic and dependent transferences. The borderline patient may attempt to live out her or his transference with the therapist. Exceptions to treatment boundaries may be constantly sought (Gutheil 1989). Many patients who are victims of sexual misconduct have been physically and sexually abused as children. In therapy, formerly abused patients tend to constantly test treatment boundaries to assess the integrity of the therapist. Exploitative therapists take advantage of these patients’ efforts to find a person in authority that they can begin to trust. No matter how seductive the patient, the therapist is expected to maintain his or her treatment neutrality while attempting to understand the meaning of the seductive behavior with the patient. The therapist charged with sexual misconduct by the patient cannot complain that he or she was seduced.

CIVIL LIABILITY Malpractice is the most common form of legal liability in sexual misconduct cases. Litigation is almost always sparked by a real or perceived rejection of the patient by the therapist that shatters the patient’s sense of specialness. If it is just the plaintiff ’s word against the therapist’s word that therapist–patient sex took place, proving the case against the therapist may be very difficult. In these cases, the forensic psychiatrist’s position on either side of the litigation should be one of neutrality concerning the factual dispute. A tenable stance is that if the therapist did engage in a sexual relationship with the patient, then negligence did occur. When it can be demonstrated that significant boundary violations have existed, the plaintiff ’s case alleging sexual misconduct by the therapist is bolstered. Although the presence of typical precursor boundary violations makes it more likely that sexual misconduct occurred, it cannot be inferred with certainty that an actual therapist–patient sexual relationship took place. If the plaintiff can provide corroborating evidence to support the allegations of sexual misconduct, such as testimony from other abused (former) patients, letters, pictures, hotel or motel receipts, and identifying body marks, then the legal defense of the therapist becomes very difficult. The psychiatrist evaluating psychological damages will be asked to distinguish the preinjury from postinjury psychiatric status of the abused patient. Pope and Bouhoutsos (1986, p. 45–56) have described a therapist– patient sex syndrome. This syndrome may not be distinct, but probably reflects the existence of comorbidity so often seen in victims of therapists’ sexual misconduct.

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A study by Bouhoutsos et al. (1983) found that 90 per cent of the patients were damaged by therapist–patient sexual intimacies. Pope and Bouhoutsos, in their review of the literature, state that, ‘overall, the balance of the empirical findings is heavily weighed in the direction of serious harm resulting to almost all patients sexually involved with their therapists’ (Pope and Bouhoutsos 1986, p. 63). Guidelines for the assessment of psychological harm caused by therapist–patient sex have been proposed (Pope 1989; Schoener et al. 1989, p. 133–45). A systematic approach to the evaluation of claims of therapist– patient sexual misconduct also requires considerations of false accusations in order to maintain a balanced forensic perspective (Gutheil 1992).

MALPRACTICE CASES A few representative malpractice cases will illustrate the general position that courts have taken in undue familiarity litigation. For example, the injurious nature of precursor boundary violations was underscored in Zipkin v. Freeman (1968), one of the earliest sexual misconduct cases. The defendant psychiatrist was found to have manipulated the patient to his advantage by convincing the patient to become his mistress and to leave her husband. The patient alleged that she had sex with the psychiatrist and attended ‘group therapy’ that involved nude swimming. She complained that the psychiatrist mishandled the transference, which a psychiatrist is expected to properly handle. The judge stated: Once Dr. Freeman started to mishandle the transference phenomena, with which he was plainly charged in the petition and which is overwhelmingly shown in the evidence, it was inevitable that trouble was ahead. It is pretty clear from the medical evidence that the damage would have been done to Mrs. Zipkin even if the trips outside the state were carefully chaperoned, the swimming done with suits on, and if there had been ballroom dancing instead of sexual relations.

The jury awarded the patient monetary damages of $17,000. Before the Roy v. Hartogs decision in 1976, there was little significant litigation arising from sexual involvement between a psychiatrist and patient. In Hartogs, for the first time, large monetary damages were awarded when Dr. Hartogs attempted to treat his patient’s fear of being a lesbian by initiating a sexual relationship with her. The court held that the psychotherapist–patient relationship was a fiduciary relationship similar to a guardian–ward relationship. The court stated further that ‘there is a public policy to protect a patient from the deliberate and malicious abuse of power and breach of trust by a psychiatrist when the patient entrusts to him her body and mind.’

In Simmons v. United States (1986), the court addressed the consequences of mishandling the transference: The impacts of sexual involvement with one’s counselor are more severe than the impacts of merely ‘having an affair’ for two major reasons: First, because the client’s attraction is based on transference, the sexual contact is ordinarily akin to engaging in sexual activity with a parent, and carries with it the feelings of shame, guilt, and anxiety experienced by incest victims. Second, the client is usually suffering from all or some of the psychological problems that brought him or her into therapy to begin with. As a result, the client is especially vulnerable to the added stress created by the feelings of shame, guilt, and anxiety produced by the incestuous nature of the relationship, and by the sense of betrayal that is felt when the client eventually learns that she is not ‘special’ as she had been led to believe, and that her trust has been violated.

MALPRACTICE INSURANCE Most professional liability insurers will not insure for sexual misconduct, excluding it as an intentional tort or criminal action. The rationale is that since it is not practice, it cannot be malpractice. Some malpractice policies will cover the costs of litigation but not the cost of damages. Other insurers will only cover the therapist if the charge of sexual misconduct is denied. The negligent management of transference and counter-transference has been alleged as a cause of therapist sexual misconduct and covered by some professional liability policies. Since this allegation may be self-serving on the part of the therapist, the testimony of an expert witness may be necessary in a legal action between the therapist and the carrier. Most cases of therapist–patient sex are preceded by progressive treatment boundary violations. As a result, patients are usually psychologically damaged by precursor boundary violations in addition to the eventual sexual misconduct of the therapist (Simon 1991a). The therapist’s mismanagement of boundaries may fall under the negligence provisions of his or her professional liability policy. The trend of court decisions in undue familiarity litigation favors compensation of victims. The statute of limitations may be invoked in sexual misconduct cases. For example, in Decker v. Fink (1980), a sexual misconduct case, the Maryland Special Court of Appeals ruled that the plaintiff ’s impaired judgment, presumably because of the effects of transference, was not ‘sufficient legal justification for failing to timely file [a] medical malpractice action, and evidence established that [the] plaintiff knew or should have known [of the] existence of her alleged cause of action.’ In Riley v. Presnell (1991), however, the Massachusetts Supreme Judicial

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Court invoked the discovery rule, which tolled (stopped) the statute of limitations from running. It rejected the defendant’s defense that it was too late to bring a malpractice suit seven years after the alleged sexual misconduct. The plaintiff successfully contended that he was unable to discover the psychological injuries resulting from the sexual misconduct because of the harm caused by the psychiatrist’s behavior. In cases that involve exploitation of the patient, the therapist’s negligence may impair the patient’s ability to become aware of the psychological injuries that are produced (Jorgenson and Appelbaum 1991). Idealization of the therapist may prevent the patient from discovering his or her injury, thus permitting the presence of transference to toll the statute of limitations. Fraudulent concealment of negligence by the therapist also may toll the statute; for example, it may occur in therapist–patient sex when the therapist informs the patient that sex is therapy, or when the therapist does not inform the patient that he or she is under the influence of transference.

CIVIL AND CRIMINAL STATUTES An increasing number of states have statutorily made sexual activity both civilly and criminally actionable. For instance, Minnesota has enacted legislation that states: A cause of action against a psychiatrist for sexual exploitation exists for a patient or former patient for injury caused by sexual contact with the psychotherapist if the sexual contact occurred: (1) during the period the patient was receiving psychotherapy … or (2) after the period the patient received psychotherapy … if (a) the former patient was emotionally dependent on the psychotherapist; or (b) the sexual contact occurred by means of therapeutic deception. [Minn. Stat. Ann. § 148A.02 (West Supp. 1989)]

Some states make therapist–patient sex negligence per se by statute, creating a non-rebuttable presumption concerning the therapist’s duty of care (Simon 1992). To establish liability, the plaintiff need only prove that sexual contact occurred and caused damage. In legislation prohibiting therapist–patient sexual exploitation, sexual behavior is defined in a variety of ways, some so vague as to invite constitutional challenges based on violation of the due process clause in state and U.S. constitutions (Jorgenson, Randles, and Strasburger 1991). Most statutes define sexual activity as intercourse, rape, the touching of breasts and genitals, cunnilingus, fellatio, sodomy, and inappropriate or unnecessary examinations and procedures performed for sexual gratification. Obviously, statutory definitions cannot possibly encompass the wide variety of sexual activities that constitute abuse of patients by a therapist.

Three basic types of remedies have been codified into reporting, civil liability, and criminal statutes (Appelbaum 1991; Strasburger, Jorgenson, and Randles 1991). Reporting statutes require the disclosure to state authorities by a therapist who learns of any past or current therapist– patient sex. A few states have civil statutes proscribing sexual misconduct. The civil statutes incorporate a standard of care and make malpractice suits easier to pursue. For example, Minnesota has enacted a statute that provides a specific cause of action against psychiatrists and other psychotherapists for injury caused by sexual contact with a patient (Simon 1992). Some of these statutes also restrict unfettered discovery of the plaintiff ’s past sexual history. Criminal sanctions may be the only remedy for exploitative therapists without malpractice insurance, who are unlicensed or do not belong to professional organizations. Sexual exploitation of a patient, under certain circumstances, may be considered rape or some analogous sexual offense and therefore criminally actionable. Typically, the criminality of the exploitation is determined by one of three factors: the practitioner’s means of inducement; the age of the victim; or the availability of a relevant state criminal code. Some states can, and do, prosecute sexual exploitation suits using their sexual assault statutes (Simon 1992). Sex with a current patient may be criminally actionable if the state can prove beyond a reasonable doubt (e.g., with 90–95 per cent certainty) that the patient was coerced into engaging in the sexual act. Typically, this type of evidence is limited to the use of some form of substance such as medication to either induce compliance or reduce resistance. Anesthesia, electroconvulsive treatment, hypnosis, force, and threat of harm have been used to coerce patients into sexual submission (Schoener et al. 1989, p. 331). To date, claims of ‘psychological coercion’ via the manipulation of transference phenomena have not been successful in establishing the coercion necessary for a criminal case. In cases involving a minor patient, the issue of consent or coercion is irrelevant, because minors and incompetents (including adult incompetents) are considered unable to provide valid consent. Therefore, sex with a child or an incompetent is automatically considered a criminal act. Wisconsin and an increasing number of other states make sexual relations between a therapist and patient a statutory criminal offense (Bisbing, Jorgenson and Sutherland 1995). For example, the Wisconsin statute holds: Any person who is or who holds himself or herself out to be a therapist and who intentionally has sexual contact with a patient or client during any ongoing therapist–patient or therapist–client relationship regardless of whether it occurs during any treatment, consultation, interview, or examination is guilty of a class D felony. Consent is not an issue in an action under this subsection. [Wis. Stat. Ann. § 225(2) (Supp. 1982)]

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PROFESSIONAL DISCIPLINARY ACTION In addition to civil and criminal liability, psychiatrists who indulge in sex with patients also can become embroiled in ethical proceedings conducted by professional organizations. The statute of limitations does not apply in ethics proceedings. Moreover, for the purpose of adjudicating allegations of professional misconduct, licensing boards are typically granted certain regulatory and disciplinary authority by state statutes. As a result, state licensing organizations, unlike professional associations, may discipline an offending professional more effectively and punitively by suspending or revoking his or her license. Because licensing boards are not as restrained by rigorous rules of evidence in civil and criminal actions, it generally is less difficult for the patient to seek redress through this means. Published reports of sexual misconduct adjudicated before licensing boards generally reveal that if the evidence was reasonably sufficient to substantiate a claim of exploitation, the professional’s license was revoked or the professional was suspended from practice for varying lengths of time, including permanent suspension.

REPORTING SEXUAL MISCONDUCT Reporting the alleged sexual misconduct of other therapists based on the statements of patients is fraught with complex clinical, ethical, and professional issues. Requiring mandatory reporting may create serious double-agent roles for the therapist that can undermine subsequent treatment interventions with the exploited patient. A few states require mandatory reporting of sexual misconduct by therapists (Bisbing, Jorgenson, and Sutherland 1995, p. 168–9). In most states with reporting requirements involving therapist–patient sex, reporting may not proceed without the patient’s consent. Clinical flexibility concerning reporting is required in the treatment and management of sexually exploited patients. When the patient is a therapist who reports exploiting his or her patient, does a Tarasoff duty to warn and protect his or her other patients arise? Conflicting ethical issues exist surrounding breaching confidentiality versus potential Tarasoff duties arising from the discovery of a patient–therapist’s continuing sexual exploitation (Eth and Leong 1990). The requirement to report an impaired colleague or the allegation of sexual misconduct often conflicts with the duty to maintain patient confidentiality. Some abused patients do not want their sexual relationship with a therapist made public. If the patient is the offending therapist, the conflict between reporting and maintaining confidentiality is further heightened since reporting would likely doom the therapy and unilaterally expose the patient (therapist) to grave personal and professional consequences.

Second, the reports of therapist sexual misconduct by a patient may not be true. False allegations of therapist– patient sex are a relatively rare phenomenon. Nevertheless, the new therapist should withhold judgment upon hearing charges of sexual misconduct against another therapist. Furthermore, the patient should decide about bringing allegations of therapist sexual misconduct in the open, except where mandatory reporting by the therapist is required. Thus, the question of reporting is turned into a treatment issue. Third, treatment may be the most pressing need for the patient who has been sexually abused. Unfortunately, the patient may have to choose between treatment and litigation. Psychotherapy and litigation do not mix. The emotional turmoil and the additional stress the patient may experience when involved in litigation are often too disruptive to the continuing conduct of psychotherapy. Nevertheless, some therapists believe that therapeutic value exists for the plaintiff in pursuing a suit in overcoming helplessness, expressing anger and revenge, and resolving trauma. Fourth, a therapist’s zeal to report another therapist’s alleged sexual abuse without regard to the patient’s clinical status can further psychologically damage the patient. Abused patients have been revictimized by therapists who have attempted to undo the trauma caused by the initial sexual exploitation. A common scenario occurs when the therapist bends over backward to try to prove his or her own trustworthiness to the patient, or to try to reparent the patient. As a consequence, serious, damaging boundary violations have occurred (Simon 2001). The maintenance of therapist neutrality is critical in these cases and should not be construed as a conspiracy of professional silence. The new therapist faced with a patient alleging sexual exploitation should consider consultation with a forensic psychiatrist familiar with the legal and ethical issues surrounding allegations of sexual misconduct. The therapist may be better able to maintain a treatment role while the forensic consultant handles the legal issues with the patient. The therapist’s provision of detailed psychiatric testimony gleaned in the course of therapy may utterly destroy the treatment relationship and sorely vex the therapist (Strasburger 1987).

PREVENTION The sexual exploitation of patients is not correlated with the level of training or the theoretical persuasion of the therapist. Gartrell et al. (1986) found offenders were more likely to have graduated from an accredited residency and to have undergone personal psychotherapy or psychoanalysis. Thus, all therapists must be educated about sexual misconduct and the devastating consequences for the patient and the therapist. In tutorials and seminars,

Sexual misconduct in the therapist–patient relationship 171

therapists need to be taught that the principle of abstinence requires that the therapist’s primary source of gratification arises from the treatment process with the patient. The therapist’s position of neutrality demands that the patient not be exploited as a personal source of gratification for the therapist. Receiving a fee for professional services is the only material satisfaction provided directly by the patient. Moreover, therapists must be sensitized to the boundary violation precursors to therapist–patient sex. Since precursor boundary violations occur over time, the alerted therapist may be able to restore treatment boundaries before the patient is harmed or progression to therapist–patient sex occurs (Simon 1995). Of course, therapists with severe character disorders who relate to patients through manipulation and exploitation cannot be expected to benefit very much from educational efforts. Therapists who find themselves sexually attracted to patients and in danger of acting out their feelings must consider:

• • • • •

Consultation with a colleague. Referral of the patient (with no further contact). Personal therapy. Acknowledging personal and professional limitations with certain patients. All of the above.

Feelings of sexual attraction by therapists toward patients is common. A survey of 575 psychotherapists found that 87 per cent felt sexually attracted to their clients, but only 9.4 per cent of men and 2.5 per cent of women acted out such feelings (Pope, Keith-Spiegel, and Tabachnick 1986). Unfortunately, counter-transference feelings, particularly the erotic variety, have become associated with mismanagement of the patient’s treatment and are viewed with shame and embarrassment by some therapists. Countertransference, however, when properly managed, can be used as an important therapeutic tool (Heimann 1950). On the other hand, ignorance of countertransference phenomena may harm the therapeutic process.

CONCLUSION Malpractice suits against psychotherapists alleging undue familiarity continue. Unlike the aftermath of other malpractice actions, the consequences for the offending therapist go far beyond large monetary judgments. Ethical proceedings, loss of licensure, professional and personal disgrace, as well as the loss of income, friends, and family are just some of the disastrous consequences that occur. Numerous efforts to address this serious problem continue through civil and criminal litigation, legislation of protective statutes, and education of lay-people and professionals alike.

REFERENCES American Psychiatric Association. 1998. The Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry, section 2, annotation 1. Washington, DC: American Psychiatric Association. Appelbaum, P.S. 1991. Statutes regulating patient–therapist sex. Hospital and Community Psychiatry 41, 15–16. Appelbaum, P.S., Jorgenson, L. 1991. Psychotherapist– patient sexual contact after termination of treatment: an analysis and a proposal. American Journal of Psychiatry 148, 1466–73. Bisbing, S.B., Jorgenson, L.M., Sutherland, P.K. 1995: Sexual Abuse by Professionals: A Legal Guide. Charlottesville: Michie, 833–55. Borys, D.S., Pope, K.S. 1989. Dual relationships between therapist and client: a national study of psychologists, psychiatrists, and social workers. Professional Psychology Research and Practice 20, 287–93. Bouhoutsos, J., Holroyd, J., Lerman, H., et al. 1983. Sexual intimacy between psychotherapists and patients. Professional Psychology 14, 185–96. Decker v. Fink, 422 A.2d 389, 390 (Md. Ct. Spec. App. 1980). Epstein, R.S., Simon, R.I. 1990. The exploitation index: an early warning indicator of boundary violations in psychotherapy. Bulletin of the Menninger Clinic 54, 450–65. Epstein, R.S., Simon, R.I., Kay, G.G. 1992. Assessing boundary violations in psychotherapy: survey results with the Exploitation Index. Bulletin of the Menninger Clinic 56, 1–17. Eth, S., Leong, G. 1990: Therapist sexual misconduct and the duty to protect. In Beck, J.C. (ed.), Confidentiality Versus the Duty to Protect. Foreseeable Harm in the Practice of Psychiatry. Washington, DC: American Psychiatric Press, 107–19. Gartrell, N., Herman, J., Olarte, S., et al. 1986. Psychiatrist–patient sexual contact – results of a national survey, 1: Prevalence. American Journal of Psychiatry 143, 1126–31. Gutheil, T. 1989. Borderline personality disorders, boundary violations, and patient–therapist sex: medicolegal pitfalls. American Journal of Psychiatry 146, 597–602. Gutheil, T.G. 1992. Approaches to forensic assessment of false claims of sexual misconduct by therapists. Bulletin of the American Academy of Psychiatry and Law 20, 289–96. Gutheil, T.G., Simon, R.I. 1995. Between the chair and the door: boundary issues in the therapeutic ‘transition zone’. Harvard Review of Psychiatry 2, 336–40. Heimann, P. 1950. On countertransference. International Journal of Psychoanalysis 31, 81–4. Jorgenson, L., Appelbaum, P.S. 1991. For whom the statute tolls: extending the time during which patients can sue. Hospital and Community Psychiatry 42, 683–4.

172 Legal regulation of psychiatric practice Jorgenson, L., Randles, R., Strasburger, L. 1991. The furor over psychotherapist–patient sexual contact: new solutions to old problems. William and Mary Law Review 32, 645–732. Keeton, P., Dobbs, D., Keeton, R., et al. 1984: Prosser and Keeton on Torts. 5th edition. § 32, p. 187, St. Paul: West. Pope, K. 1989: Therapist–patient sex syndrome: a guide for attorneys and subsequent therapists to assessing damages. In Gabbard, G. (ed.), Sexual Exploitation in Professional Relationships. Washington, DC: American Psychiatric Press, 39–55. Pope, K., Bouhoutsos, J. 1986: Sexual Intimacy Between Therapists and Patients. New York: Praeger. Pope, K.S., Keith-Spiegel, P., Tabachnick, B.G. 1986. Sexual attraction to clients. American Psychologist 41, 147–58. Riley v. Presnell, 565 N.E. 2d 780, Mass. (1991). Roy v. Hartogs, 85 Misc. 2d 891, 381 N.Y.S. 2d 587 (N.Y. Sup. Ct. 1976). Schoener, G., Milgrom, J., Gonsiorek, J., et al. 1989: Psychotherapists’ Sexual Involvement with Clients. Minneapolis: Walk-In Counseling Center, 331. Simmons v. United States, 805 F.2d 1363, 1365 (9th Cir. 1986). Simon R.I. 1989. Sexual exploitation of patients: how it begins before it happens. Psychiatric Annals 19, 104–12. Simon, R.I. 1991a. Psychological injury caused by boundary violation precursors to therapist–patient sex. Psychiatric Annals 21, 614–19.

Simon, R.I. 1991b: Legal liabilities of an ‘impossible’ profession. In Simon, R.I. (ed.), American Psychiatric Press Review of Clinical Psychiatry and the Law. Volume 2. Washington, DC: American Psychiatric Press. Simon, R.I. 1992: Clinical Psychiatry and the Law. 2nd edition. Washington, DC: American Psychiatric Press. Simon R.I. 1994. Transference in therapist–patient sex: the illusion of patient improvement and consent, Part 1 and 2. Psychiatric Annals 24, 509–15, 561–5. Simon R.I. 1995. The natural history of therapist sexual misconduct: identification and prevention. Psychiatric Annals 25, 90–4. Simon R.I. 1999. Therapist–patient sex: from boundary violations to sexual misconduct. Psychiatric Clinics of North America 22, 31–47. Simon, R.I. 2001: Concise Guide to Psychiatry and Law for Clinicians. 3rd edition. Washington, DC: American Psychiatric Press. Strasburger, L.H. 1987. ‘Crudely, without any finesse’: the defendant hears his psychiatric evaluation. Bulletin of the American Academy of Psychiatry and the Law 15, 229–33. Strasburger, L.H., Jorgenson, L., Randles, R. 1991. Criminalization of psychotherapist–patient sex. American Journal of Psychiatry 148, 859–63. Stricker, O., Fisher, M. 1990: Self-Disclosure in the Therapeutic Relationship. New York: Plenum Press. Zipkin v. Freeman, 436 S.W.2d 753, 761 (Mo. 1968).

22 The law and physician illness STEPHEN DILTS AND DOUGLAS A. SARGENT

THE CONCEPT OF IMPAIRMENT The legal regulation of medical practice is intensified when the physician is, or is suspected of being, impaired. The main reason for distinguishing impaired behavior from other forms of medical misconduct is to safeguard patients by identifying, treating, and rehabilitating physicians whose medical skills and behavior may be compromised by remediable illnesses. Despite general agreement in law and medicine about the technical definition of impairment, many states’ laws still use the terms ‘impaired’, ‘troubled’, ‘addicted’, ‘incompetent’, and ‘distressed’ interchangeably. In practice today, impairment has become a legal term of art for any medical condition that brings a physician within the jurisdiction of agencies regulating medical practice. As a result, state programs that help physicians to enter appropriate medical treatment for their conditions have uniformly dropped the term, Impaired Physician Program, and commonly call themselves Physician Health Program (PHP); this change in title underscores the mission of these programs which is to prevent or remove any medical impairment of ability to practice. In 1838, Isaac Ray complained that medicine had not achieved for the legal rights of the mentally ill the same advances attained in pathology and therapeutics. He blamed this on the neglect of doctors (Ray 1838). In 1869, Sir James Paget decried ‘habits of intemperance’, and at the turn of the century Sir William Osler complained of ‘the morphia habit’ among physicians of his day (Brewster 1986). But these observations were islands in a sea of indifference. It would be a hundred years before any state’s medical licensure law considered illness in a physician as a matter for rehabilitation rather than removal. During the past forty years, however, much has happened to remedy medicine’s neglect of the medically disabled physician. By the mid-nineteenth century, states had begun to codify regulations governing medical practice and to establish Boards of Medicine (BOM) to set and enforce standards of fitness for entry into medical

practice. In 1918, the American College of Surgeons started the peer review movement by requiring members to submit cases for review by colleagues. All these activities sought to safeguard the public from incompetent doctors by culling ‘bad apples.’ In 1969, Florida (Texas and Delaware soon followed) enacted the first ‘sick doctor’ statute recognizing impairment as illness calling for treatment (American Medical Association 1973). The law’s handling of what we now call impairment began as an attempt to assure patient safety through the rigorous removal of misbehaving doctors. This approach was intensified as healthcare expanded and boards strengthened their capacities to deal with related issues. Despite the reforms of recent years, this area of law still bears the marks of a heavy-handed disciplinary legacy since physicians still are disciplined for merely having an illness in the absence of any practice problems (Walzer 1990). Clearly, almost any medical illness has the potential to impair a physician’s ability to practice, and it is the physicians’ responsibility to self-monitor their ‘fitness for duty.’ Infrequently, illnesses progress to the point of actually impairing the ability to practice with reasonable skill and safety to patients, and some formal intervention is needed; however, discipline alone has proven ineffective. Many doctors excluded were well trained, respected, and once effective, and only later succumbed to disease. Further, experts estimate that only 15 per cent of truly impaired physicians are uncovered by disciplinary means (Brewster 1986). Simply weeding out detected offenders did not materially advance the safety of patients, was needlessly wasteful of valuable medical skills and, not least, was inhumane. Something better was needed. As the scope of discipline widened under the pressure of events, its strictures softened as the results of studies and experience persuaded legislators to adopt a rehabilitative focus.

Impairment defined: the sick physician An impaired physician is one unable to ‘practice medicine with reasonable skill and safety to patients by reason

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of mental or physical illness, including but not limited to deterioration through the aging process, or loss of motor skills, or excessive use or abuse of drugs, including alcohol’ (American Medical Association 1973). An American Medical Association (AMA) report entitled The Sick Physician, together with its offshoot, the model Disabled Doctor Act (updated in 1985 as the AMA Impaired Physician Treatment Act, IPTA), also depicted commoner forms of impairment, identified denial and other barriers to its resolution, and presented a broad plan to cope with the problem. The plan included a mechanism for identification and referral: state medical society committees augmented by hospital and county medical society committees would organize and carry out the task of case-finding and referral for treatment. When professional resources were insufficient, the state BOM was to be the resource of last resort. The AMA’s definition has since been adopted, with minor variations, by most authorities and the medical practice acts of most states. IPTA’s humane suggestions soon infiltrated laws regulating the practice of medicine.

Highlights of the physician health movement The Sick Physician called upon physicians to help faltering colleagues who endangered patients and themselves to recognize their need for professional diagnosis and treatment. It sketched the profile of the sick physician; identified approaches that should assist concerned colleagues, family, and friends to bring the physician to treatment; identified barriers to treatment; prescribed practice restrictions when necessary; and recommended that disciplinary and remedial efforts be coordinated to rehabilitate physicians who could be restored to practice and remove those who could not. It recommended guaranteed restoration of licensure to physicians who regained the ability to practice competently. The AMA launched a ten-year educational campaign to break the ‘conspiracy of silence’ enshrouding impairment. AMA-sponsored conferences drew together physicians and other experts in this field, as well as members of state and national medical societies and licensure boards, interested in implementing the latest findings. For example, a national AMA/American Psychiatric Association (APA) study showed that suicide often involved disorders that gave rise to impairment, and that suicidal physicians signaled their intent, thus providing opportunities for preventive intervention (AMA 1987).

LEGAL CRITERIA FOR REGULATING PRACTICE The task of protecting the sick physician’s patients while preserving valuable medical skills falls into three

main components: 1 Identifying, treating, and rehabilitating the sick physician. This is carried out by state medical society programs authorized by state boards of medicine. 2 Maintaining and protecting the peer review systems that detect impaired practice. 3 Safeguarding the sick physician against excessive, harsh, or unreasonable treatment. This involves issues of confidentiality, fairness, due process, and economic rights, as well as maintaining the physician’s emotional health throughout the stressful process. Each of these components has a structure supported by a network of interlocking, though not necessarily smoothly, meshing laws and regulations.

State laws Legal control of the sick physician’s practice is mainly through state law, supported by hospital regulation and medical ethics. Most state laws, although with great variation, justify intervention into a physician’s practice whenever ‘impairment’ is found; that is, illness or addiction creating a strong likelihood of misconduct that endangers patients. Despite the earlier preference for actual performance deficit as the proper measure (IPTA), few states withhold intervention until impairment is proven conclusively through harm to a patient. A reasonable suspicion of a potentially impairing illness now is legally sufficient to bring a physician within reach of the medical board. State authority to regulate medical practice comes from its ‘police power,’ a residual constitutional power (Article 11) conferred upon the state by the Tenth Amendment, to preserve and promote the health, safety, and welfare of its citizens. In most states, this authority is codified in a Medical Practice Act (MPA) that empowers the BOM to determine the fitness of licensees both at entry into practice and on a continuing basis. Regulatory action is triggered when complaints reach the BOM, or by its own initiative for cause. The authority over the sick physician is a special case of this general power.1 Typical is Pennsylvania’s MPA (Pennsylvania Statutes 1989), which requires healthcare facilities and colleagues to report to the board physicians who are addicted and not receiving treatment, who are diverting drugs, who are mentally or physically incompetent to practice, who have resigned to escape discipline, whose privileges have 1 Oregon, the first state board to be responsible for a statewide impaired physician program, has an MPA [ORS 677.415 (1989)] listing typical grounds for intervention: fraud or misrepresentation, medical incompetence including incurable or impairing illness, unprofessional conduct broadly defined (J.J. Uwelling, Federal Bulletin 78, 131–57, 1991). Illinois [111. Rev. Stat. ch. 111, par. 4400-9 (1991)] covers the same ground with greater specificity, listing thirty-eight separate violations that may lead to suspension or revocation of the license.

The law and physician illness 175

been terminated, or who have been convicted of a felony; Minnesota’s MPA requires such physicians to report themselves. Some states, for example, Colorado (Colorado Revised Statutes 12–36), do not mandate reporting when knowledge of the illness is derived in the course of treating a sick physician.

Board procedure Typically, the BOM accepts complaints about physician misconduct from any source. Upon receiving a complaint, Michigan, for example, gives the reported physician notice of the complaint and an opportunity to demonstrate compliance (refute the charge) at an informal conference, where the respondent may be represented by counsel and may present evidence and witnesses without the evidentiary stringencies of a courtroom. If the complaint is not resolved to the satisfaction of the parties, a formal hearing before the BOM as a whole is available, with legal counsel and most of the procedural protections customarily available to defendants; typical of most boards’ procedures, evidence of a kind ordinarily relied on by reasonable people in the conduct of their daily affairs may be admitted even though court rules of evidence might bar it. The BOM usually conducts an investigation to ascertain the nature and cause of the misconduct. Where illness is suspected, psychiatric and other evaluations may be ordered leading to a professional diagnosis, prognosis, and recommendations for treatment if the cause is a treatable illness. In treatable cases, a recommendation also is obtained regarding the need for restricting practice pending restoration to health. If the BOM then makes a finding of non-compliance, it may order treatment, perhaps under the monitoring of a program it authorizes, often one run by the medical society, with return to practice considered if and when the physician recovers (Shore 1987). Physicians who reject or fail at treatment are dealt with according to the disciplinary measures customary in the jurisdiction. These usually range from reprimand to revocation of the license to practice. The decision of the board usually is appealable to a court of general jurisdiction. At every stage of this procedure variations in local laws may have important effects on the subject physician and the likelihood of rehabilitation. Psychiatrists working in this area of practice should familiarize themselves with the laws of their jurisdiction.

State programs State physician health programs are the mainstay of the system; they usually are run by the state medical society or are a freestanding non-profit scheme. They encourage referrals of problem physicians from hospital committees, and from the physicians themselves or those concerned for their welfare. State boards also use them for monitored treatment of qualified physicians. However,

the program must interact smoothly with its BOM if it is to function effectively. Although most programs grew from the efforts of volunteer physicians acting through their medical societies, problems of empowerment and financing inevitably have led most societies to form liaisons with boards. The resulting national system has formed the Federation of State Physician Health Programs, each program having ties, close or distant, and some degree of support from their states’ BOM. Michigan’s Program to Assist the Impaired Physician, for example, began as the creature of the state medical society and initially was wholly staffed and run by the Michigan State Medical Society; similarly, the Colorado Physician health Program was formed by the medical and osteopathic societies and spun off as a free-standing non-profit scheme (Casper et al. 1988). Written policies emphasized peer efforts to persuade sick physicians to seek voluntary treatment. Alabama’s law (Code of Alabama 534-24-400, 1990), on the other hand, illustrates a typical joint board/medical society program: An Act … to establish … the Alabama Impaired Physicians Committee (now called the Alabama Physician Health Program) to provide that the State Board of Medical Examiners shall have the duty and obligation to promote early identification, intervention, treatment and rehabilitation of physicians and osteopaths impaired by reason of illness, inebriation, excessive use of drugs, narcotics, alcohol, chemicals or other substances or as a result of any physical or mental condition; to define the term impaired … .

Most other state programs fall somewhere between these two in their degree of society–BOM connectedness. The Alabama act goes on to authorize the BOM to create a joint board–medical society program with procedures for reporting confidential information between committee and board; immunity from liability for the BOM and committee, their members, and agents; and confidentiality and non-discoverability for information about the sick physician and BOM and committee records and actions. Programs in some states may be required to report to the board physicians who appear to need but who refuse diagnostic and prescriptive services, even without receiving complaints, if there is reasonable concern of a potential for impairment of the practice. Reports to the committee are deemed to be reports to the board for mandatory reporting purposes. Finally, the act ‘repeal(s) all laws in conflict with this Act.’ The impetus for the physician health movement came from a number of energetic, dedicated physicians who were publicly in recovery from substance use disorders. As a result, the original state programs dealt only with this group of diagnoses. Colorado led the way in establishing a program dealing with all medical diagnoses including substance use and other psychiatric disorders, stress, family problems, and physical problems, such as cancer and neurologic diagnoses; Colorado also led

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the way in clarifying the confusion created by the term ‘impaired physician’ by calling itself the Colorado Physician Health Program (Casper et al. 1988; Dilts et al. 1994). Since then, other state programs have broadened their scope to some extent.

•

Diversion: a benign alternative

•

Since Florida’s ‘Sick Doctor Act,’ a growing number of states have provided therapeutic alternatives, known as diversion programs, for sick physicians with a potential for rehabilitation. California’s program is a good example; Keeve (1984) describes how the program operates. The popularity of the diversion alternative has mitigated the old conflict between voluntary versus mandatory reporting and treatment by reducing the apprehensions of physicians facing discipline while affording them the undoubted benefits of the strict monitoring of treatment that characterizes most joint board–medical society program features and that sick physicians may need.

The Hospital Physician Health Committee Hospital Physician Health Committees (sometimes called the Physician’s Well-Being Committee) can perform the front-line job of identifying and persuading troubled physicians to seek help (Keeve 1984). The committee of volunteer medical staff members provides physicians with information about the availability of counseling and treatment that is confidential, voluntary, and non-punitive. It contracts with the ‘agreeable’ physician to support the treatment by periodic monitoring and contact with both the treating physician and program for evidence of compliance and the wish to get well. These committees have had mixed success. Although they offer the friendliness of being local people, they run into very real issues of conflict of interest; as a result, the sick physician may not want to approach them. Moreover, committee members face multiple problems of maintaining objectivity about local colleagues with whom they may interact in a variety of hospital and social roles. This loss of objectivity can lead to misidentification of problems and both over and under reactions, creating very real and significant liability risks for the hospital and for the committee members. Hospital committees and others encounter the following questions about their operation, answers to which must be found in the laws of each jurisdiction:2

•

2

If the sick physician does not comply and endangers patients, may the committee inform the hospital administration or state board of medicine? – This is mandatory in many states.

A model hospital staff bylaws is found in C. Krezek: Addressing the problem of the impaired physician. In Miller, R.D. 1989: Legal Implications of Hospital Policies and Practices. New Directions for Mental Health Services, no. 44. San Francisco: Jossey-Bass.

•

• • • • • • •

Is it unethical not to report suspected impairment? – Reporting is encouraged by the AMA ethical code but must be balanced by consideration of the value of patient confidentiality. What is the liability, if any, of doctors for reporting? – None in most states. Does the hospital indemnify (seldom, if ever) or the law protect (almost always) reporters? Is a treating psychiatrist required to report? – Often, but not always. Does a committee member who contacts a sick physician establish a doctor–patient relationship? – No. Should that member get a release of information from the sick physician? – Usually, yes. Should the committee member give the sick physician a Miranda warning? – Probably. Should (or must) the committee keep minutes of its procedures with names? – Yes; may be coded for privacy. Are such minutes discoverable? – Usually not. Should the committee consider complaints of unethical behavior? – Only if they contain an inference of illness. Could the committee be liable for failing to warn the hospital administration about a truly impaired physician? – This is a gray area.

Although the answers to these questions vary somewhat between jurisdictions from those suggested, the trend is to immunize (seldom indemnify) good-faith reporters and to require reporting of suspected impairment. The Joint Commission on Accreditation of HealthCare Organizations (JCAHO) regulations require regular fitness reports on all medical staff members, including mental fitness, which is tantamount to reporting impairment. The Health-Care Quality Assurance Act (Federal Health-Care Quality Improvement Act 1986) also mandates reporting by peer-reviewing healthcare entities (and this is likely to include all such hospital committees) and offers immunity, including immunity from antitrust charges, for good-faith reporters; these are powerful inducements for reporting. A discussion of these issues can be found in the APA Ethics Newsletter (American Psychiatric Association 1994).

DEFENDING THE SICK PHYSICIAN A psychiatrist consulted by a sick physician should consider this physician in grave danger until proven otherwise. Accused physicians are at increased risk for depression and self-destructive acting-out, including suicide. They and their families (Sargent 1989) almost always need emotional support and treatment, not only for the condition giving rise to potential impairment but perhaps even more for the distress that accompanies being charged with misconduct.

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Although sick physicians may not have more practice difficulties than do other physicians, denial often blocks sick physicians’ appreciation of their potential impairment and hampers their ability to defend themselves. Thus, sick physicians often need defending before boards of medicine, hospital staff committees, and so forth. Some report feeling pressured to accept the ‘solution’ proffered by the BOM at conference, though it may require acknowledging facts that might better be disputed, and accepting public disclosure of their lapses in exaggerated form. Yet the cost of defending their versions of the truth at a full hearing and the small likelihood of success lead many such physicians to accept a sanction that rankles because it seems to them unfair. This, too, should be handled therapeutically. Sick physicians may not be able to present themselves well to a regulatory body because they feel overwhelmed by embarrassment and guilt. Often they are depressed and under great stress from the threatened loss of license, livelihood, and self-esteem. A psychiatrist called in to consult with legal counsel must appreciate that the sick physician is likely to be excessively self-critical, prone to accepting, without challenge, inflated charges, and easily intimidated by ‘prosecutorial’ investigations. The consultant can assist legal counsel to recognize and counteract the legal consequences of depression-driven behavior and to understand that a benign, therapeutic alternative to discipline may exist (see section on diversion). The lawyer selected to defend the physician may be unfamiliar with the concept of impairment, its relationship to the charges that his or her client faces, and the opportunities available for rehabilitation for those with a remedial condition. The psychiatrists consulted should be prepared to remedy this lack. After obtaining an accurate history and a proper examination, the psychiatrist might recommend a diversion or monitoring program, including a restriction on practice. The psychiatrist’s opinion about the treatability of the impairing condition will be useful to the board. The physician’s defense also will benefit from psychiatric expertise concerning the effects of stress disorders, addictions, and other mental illnesses on the ability to practice; what benefits treatment may confer, and how and where they are best attained including specific treatment programs set up for physicians; how to manage the impact of illness on medical families; and the risks that dot the road back to health, including the risk of suicide. Neither family nor legal counsel may fully appreciate the need to guard against the crisis that disclosure of the ‘guilty’ secret of impairment usually creates.

point: A forty-year-old, depressed, non-drug-abusing oncologist tried to kill himself with an intravenous bolus of Demerol (meperidine hydrochloride). He was rescued and treated successfully. He resumed his practice, but two years later the board of medicine charged him with drug abuse. The physician was offered the option of probation or a hearing before the full board, but was warned that the latter would involve more time and legal expense and might have an even harsher outcome. Negotiation by his persistent lawyer resulted in a compromise: The doctor’s name was published by the board together with his denial of the violation and his agreement to accept the board’s jurisdiction. The state medical society, meanwhile, was persuaded to reconsider its automatic publication policy as sometimes unfair. A newspaper that had gotten wind of the doctor’s troubles was dissuaded from ‘exposing’ him. Psychiatrists who deal with sick physicians must be prepared to intervene actively with the system to ameliorate unproductive harshness and to protect the physician against the occasional BOM that views its task as prosecutorial rather than rehabilitative.

Confidentiality Most physicians who seek treatment fear public disclosure of their shortcomings because they believe, with some justification, that stigma will destroy their practices. They may find some comfort in the confidentiality provisions of some state laws, but this protection is not absolute, especially in certain areas, e.g., sexual boundary violations. State MPA and PHP laws provide varying degrees of confidentiality for the sick physician,3 as does, to a greater degree, the Federal Drug Abuse and Treatment Act (1972), which applies mainly to patients of federally funded drug abuse clinics. But most states do not protect the sick physician’s medical record from disclosure to its BOM, deeming licensure to automatically waive the usual physician– patient confidentiality in communications to the board. These laws do offer protection against public disclosure of illness, at least until the doctor is adjudged to have violated a law and has completed any treatment prescribed. Such confidentiality may encourage the undiscovered sick physician to seek treatment.

PROTECTING THE PEER REVIEW SYSTEM The reform of medical discipline achieved by the physician health movement left the peer review system

Guarding against disciplinary excesses 3

Hospitals and boards do not always deal judiciously with sick physicians. Sometimes disciplinary agencies still equate protecting the public with ‘doctor removal,’ ignoring the good results of treatment programs. A case in

Pennsylvania’s law suggests that confidentiality be maintained only ‘as long as this serves the best interests of the physician and is in keeping with the law. Physicians who pose a threat to patients (by refusing treatment or to suspend practice when necessary) must by law be reported to the state medical board’ (J.S. Sainkoff and R. McDermott, Pennsylvania Medicine 60 (May), 1988).

178 Legal regulation of psychiatric practice

vulnerable to suit by physicians reviewed. The Medicare Act of 1965 established mandatory peer review as a national standard. Yet healthcare-reviewing entities were not completely protected against liability for bad-faith or negligent review, or for suits claiming violation of federal antitrust laws. Most states provide some immunity to good-faith peer reviewers. California, for example, immunizes ‘any professional society [or members of its committees or staff … peer review committee reviewing the quality of medical services], hospital governing board, … (or), any person who participates in quality of care or utilization review’ against ‘monetary liability or cause of action for damages (arising from) any act … within the scope of function of committees … formed to maintain … professional standards’ (California Civil Code).

Federal protection Until the case of Patrick v. Burget (1988), it was believed that a so-called ‘state action exception’ recognized by federal courts protected peer reviewers from liability in antitrust actions. This exception to antitrust regulation permitted certain clearly state-articulated and statesupervised anticompetitive activities, one being peer review. But when a doctor, Patrick, sued a hospital peer review committee for excluding him from practice, a federal district court upheld his claim that the reviewers acted in bad faith in order to exclude him as a competitor. The court rejected the so-called ‘state action exception’ as inapplicable to this claim and said the wisdom of exempting peer review from antitrust scrutiny was a question for the legislature (AMA Board of Trustees 1988). The Federal Health-Care Quality Improvement Act of 1986 and its companion, the National Data Bank for Adverse Information on Physicians and Health-Care Practitioners, implemented in 1991, protects good-faith peer review from antitrust scrutiny and levels the playing field by providing a national standard for peer review. The Act attempts to control medical misconduct by incompetent, exploitative, or truly impaired physicians through heightened peer review and intensified disciplinary measures. The Act requires healthcare entities – but not individual physicians – to report certain adverse review actions against physicians where the quality of care rendered is at issue. This clearly includes actions against impaired physicians. Also required to report are insurance carriers and others paying moneys in judgment or settlement of claims for injuries caused by substandard care, such as malpractice judgments. Failure to report carries heavy penalties. Reporting entities whose procedures for assessing the responsibility of physicians for substandard practice meet the Act’s standard of fairness are relieved of some of the Act’s procedural burdens. It can be argued that the leveling effect of the act on the variations in state laws regarding impairment will

bring a pax Romana to a vexed area of the law. On the other hand, the availability of this information has led some credentialing agencies, e.g., hospitals and managed care systems, to exclude physicians who have probationary licenses, even if the cause of the probation is only a health condition with no history of impaired practice. Physician organizations (e.g., American Academy of Addiction Psychiatry) are attempting to create flexible guidelines to replace such arbitrary rules.

Corporate liability Another pressure to nationalize standards of physician performance and regulate the behavior of impaired physicians comes from court decisions in many states finding healthcare corporations liable for harm to patients from non-employee physicians and others working in their corporate facilities. As Brenner has stated: ‘Using the logic and values inherent in the concept of predictable human error, courts are demanding that hospitals take an active role in protecting patients from the potentially devastating consequences of physician incompetence or impairment’ (Brenner 1988). A landmark decision of the Illinois Supreme Court (Darling v. Charleston Memorial Community Hospital 1966) found that a hospital has a duty of due care to patients that is independent of its vicarious liability for the torts of its staff or employees. This distinction sank the old rule that the physician, as captain of the ship, was an independent contractor bearing ultimate responsibility for the acts of his or her crew. Plaintiffs soon targeted the deeper pockets of the hospital. Over the thirty-six years since Darling, the change has been so profound that today one commentator has asserted that there no longer is a meaningful distinction between corporate liability and vicarious liability. The hospital and its officers and medical staff now contend with the treating physician as the defendant of choice in malpractice suits. The hospital’s pockets are deep and its duties easily established. Juries may not hesitate to award large damages when the defendant is not a single, perhaps sympathy-inducing doctor, but an imposing, impersonal, and apparently well-heeled hospital. Today liability accrues if the hospital is negligent in the selection and continuing oversight of the medical staff, fails to act to restrict privileges when it knows (or should know) the physician is impaired, does not enforce or fails to promulgate its own guidelines for maintaining a high-quality staff, or fails to comply with state and federal guidelines having the same purpose and effect. Corporate liability strongly motivates hospitals to increase their scrutiny of medical staff competence to practice, which increases its scrutiny of sick physicians. How this scrutiny is applied can affect the movement to rehabilitate physicians for good or ill. Where the effect is to amplify efforts to identify sick physicians and bring them into treatment by providing

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committees, programs, and guidelines, as recommended by the AMA, and by publicizing the duty to report suspected impaired physicians, it will be for good. But if the response is merely to intensify ‘discipline’ while neglecting the salvage of remedial cases, or if rehabilitation founders on inadequate funding, inaccessible treatment, and the like, it is likely to restore the ‘conspiracy of silence’ that The Sick Physician sought to eliminate.

DISCUSSION Few disciplinary agencies heed Brewster’s finding that physicians are no more likely to be impaired than other comparable groups. Insufficient attention is paid to Shore’s studies showing the high potential for rehabilitation of sick physicians, or Crawshaw’s disclosure of the tragic effects of ‘strict discipline’ applied to this problem (Crawshaw et al. 1980). A few states require programs to disclose the names of all sick physicians to the board, including unreported physicians who volunteer for treatment. Proponents of early intervention and treatment believe that such ‘snitch laws’ chill early self-referral for treatment since they threaten loss of license or public disclosure and amplify the sick physician’s deepest fears. Supporters of strict discipline insist that volunteerism encourages ineffective treatment and only delays the sick physician’s inevitable decline into ineptitude, incompetence, misconduct, and harm to patients: true impairment. Both sides cite data to support their positions, but neither has clearly established the correctness of its view. The emerging pattern today occupies the middle ground between these extremes, as more states embrace the rehabilitation favored by organized medicine and have effected pragmatic compromises on outstanding issues.

REFERENCES American Medical Association. 1973. Council on mental health report: the sick physician. Journal of the American Medical Association 223, 684–7. American Medical Association. 1987. Council on Scientific Affairs report: Results and implications of the AMA/APA physician mortality project, stage II. Journal of the American Medical Association 257, 2949–52. American Medical Association Board of Trustees. 1988. Report MMM. Peer review after Patrick v. Burget.

American Psychiatric Association. 1994. Reporting impaired, incompetent, or unethical colleagues. American Psychiatric Association Ethics Newsletter 10, 1–6. Brenner, L.H. 1988. Corporate responsibility for physician impairment. QRB April, 123–8. Brewster, J.M. 1986. The prevalence of alcohol and other drug problems among physicians. Journal of the American Medical Association 255, 1913–20. California Civil Code Sec. 43.7(13); Cal. Health Safety Code Sec. 1370,1370.1. Casper, E., Dilts, S.L., Soter, J.J., Lepoff, R.B., Shore, J.H. 1988. Establishment of the Colorado Physician Health Program with a legislative initiative. Journal of the American Medical Association 260, 671–3. Code of Alabama. Chapter 24. Art. 8-9. 34-24-384 to 406 (1990). Colorado Revised Statutes 12–36. Crawshaw, R., Bruce J.A., Eraker, P.L., et al. 1980. An epidemic of suicide among physicians on probation in Oregon. Journal of the American Medical Association 243, 1915–17. Darling v. Charleston Memorial Community Hospital, 33 Ill. 2d. 326, 211 N.E. 2d 253 (1965).cert. denied, 383 U.S. 946 (1966). Federal District Court. 800 F.2d. 1498 (9th. Cir. 1966). Dilts, S.L., Gendel, M.H., Lepoff, R.B., et al. 1994. The Colorado Physician Health Program: observations at seven years. American Journal on Addictions 3, 337–45. Federal Drug Abuse and Treatment Act. 1972. P.L. 92-255 21 U.S.C. Sec. 1174 & 1175. Federal Health-Care Quality Improvement Act. 1986. 42 U.S.C. 11101–11152. Title IV of P.L. 99–660. Keeve, P. 1984. Physicians at risk: some epidemiological considerations of alcoholism, drug abuse and suicide. Journal of Occupational Medicine 6, 503–8. Patrick v. Burget et al. 486 U.S. 94 1; 108 S. Ct. 1658 (1988). Pennsylvania Statutes. 63 P.S. Sec. 271.16 (1989). Ray, I. 1838: The Medical Jurisprudence of Insanity. Boston: Little & Brown. Sargent, D.A. 1989: Physician suicide and the medical family. In Living with Medicine. Washington, DC: American Psychiatric Press, 146–55. Shore, J.H. 1987. The Oregon experience with physicians on probation. Journal of the American Medical Association 257, 2931–34. Walzer, R.S. 1990. Impaired physicians: an overview and update of the legal issues. Journal of Legal Medicine 11, 131–98.

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PART

3

Forensic evaluation and treatment in the criminal justice system

23 Introduction Robert D. Miller

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24 Criminal competence Robert D. Miller

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25 Criminal responsibility Robert D. Miller

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26 Novel mental disorders Robert D. Miller

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27 Post-conviction dispositional evaluations Robert D. Miller

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23 Introduction ROBERT D. MILLER

The majority of forensic evaluations concern persons involved with the criminal justice system, except for evaluations for involuntary civil commitment, relatively few of which are performed by forensic psychiatrists. The majority of criminal forensic evaluations are performed by staff of public mental hospitals and outpatient clinics who have had little formal training in the legal issues involved. The purpose of this part of the book is to outline the various forensic evaluations that may be requested by the criminal courts, to present the legal concepts relevant to those evaluations, and to discuss techniques for performing the evaluations themselves. The criminal law is chiefly interested in input from mental health professionals in determining capacities of persons charged or convicted of crimes. Thus, cognitive capacities are of major concern in threshold issues of competency – to understand Miranda warnings, to confess, to enter a plea, to proceed to trial, to be sentenced, and to be executed. In the determination of legal responsibility for behavior, both cognitive and volitional capacities may need to be investigated. The evaluator may be asked to provide opinions about a defendant’s past (retrospective), present, or future (prospective) capacities. The chapter on competency is organized chronologically, according to the stage of a criminal prosecution in which questions of capacity arise. The chapter on responsibility is arranged in ascending order of responsibility. Following, there is a discussion of post-conviction evaluations. While the criteria for forensic evaluations vary considerably depending on the specific legal issue in question, there are some general principles that apply to all evaluations of criminal defendants. The law assumes that, once persons achieve the age of majority, they are legally competent to perform all adult acts, and are responsible for their actions. When a person’s behavior departs significantly from the norm however, his or her competency or responsibility may be questioned. The initial burden of establishing lack of capacity usually lies with the party challenging that capacity, although many jurisdictions provide that once sufficient presumption of

impaired capacity or responsibility is raised, the burden is on the opposing party to refute it. When a request for an opinion about a criminal defendant is received, it is crucial for the evaluator to determine the specific type of evaluation in question and the legal criteria (if any) for the legal construct to be evaluated. One cannot assume from the circumstances of the evaluation what is actually to be evaluated; nor can one even assume that the legal professional making the request understands what is being requested. Requests such as ‘Please do a psychiatric evaluation’ (which continue to be all too common in practice) are meaningless in the forensic context and should not be accepted without further clarification. In addition, evaluators should be aware of all the ways in which defendants’ mental states could be relevant to their defense to the charges against them. Attorneys requesting evaluations are not always aware of the various types of competency (such as to waive Miranda rights, to plead guilty) and the various degrees of criminal responsibility available in the jurisdiction (e.g., insanity, diminished capacity, guilty but mentally ill, extreme emotional distress). The role of a forensic clinician often goes beyond that of mere agent for the requesting source and encompasses that of an agent for justice who advises the court of all relevant interactions of a defendant’s mental condition (past, present, or future) and the criminal proceedings against him or her (Ake v. Oklahoma 1985). It is crucial that the evaluator be familiar with the relevant statutes and case law in the jurisdiction where the evaluation is to take place. Not only is such knowledge an essential precursor to a valid examination but unfamiliarity may even result in the evaluator’s opinion being declared inadmissible (K.L.A. and M.A. v. Hutchinson et al. 1991). In addition, evaluators need to be sensitive to the possibility of hidden agendas on the part of the agent requesting the evaluation (Miller 1990a). In many jurisdictions statutes establish public funding for some, but not all, evaluations. For example, some states provide public funds for competency but not for insanity evaluations (Miller and Germain 1989). Even though the Supreme Court has

184 Forensic evaluation and treatment in the criminal justice system

mandated public funding for insanity evaluations (Ake v. Oklahoma 1985), the case law to date indicates that trial judges have considerable leeway in deciding whether or not to authorize them (Rachlin 1988). As a result, public defenders frequently request a generic psychiatric evaluation in order to decide whether or not an insanity defense might be appropriate, and to develop sufficient evidence to convince a court to order one. Clarification as to the exact nature of the examination desired is important not only so that evaluators can focus their interviews and requests for additional information but also so that they can provide accurate information to those they are evaluating. The issue of informed consent and the potential for double agentry inherent in all forensic evaluations is discussed in greater detail in Chapter 92 (Legal Regulation of Psychiatry); here it is necessary to emphasize the fact that opinions based on faulty or incomplete warnings to defendants may subsequently be ruled inadmissible. For example, the Supreme Court has ruled that information obtained from a defendant who was told that his competency to stand trial was being evaluated may not be used to form opinions for testimony in subsequent capital sentencing proceedings (Estelle v. Smith 1981). Because of the inherently adversarial nature of criminal proceedings, and the potentially serious consequences of those proceedings for defendants, there are also specific legal protections for criminal defendants that are not generally available to other evaluees; it is essential that evaluators be aware of those protections before beginning an evaluation. Evaluators also need to be aware of professional ethical and practice guidelines relevant to evaluations they are asked to perform. For example, the ethical guidelines of both the American Psychiatric Association (1998) and the American Academy of Psychiatry and the Law (1987) prohibit the forensic evaluation of criminal defendants prior to the appointment of counsel, except to provide emergency clinical care. Despite these explicit guidelines, some evaluators continue to violate that prohibition. As is frequently the case, legal rules do not prohibit such evaluations or testimony (Miller 1990b); but it is incumbent upon forensic psychiatrists to maintain a high standard of clinical practice by avoiding violations of professional ethical principles. Another example of legal safeguards is the common statutory provision of a right to remain silent for criminal defendants undergoing psychiatric evaluation (Miller, Maier, and Kaye 1986). Evaluators need to be aware of such provisions, lest they jeopardize the admissibility of their evaluations by violating them. While such provisions also exist in many jurisdictions in the case of involuntarily civilly committed patients, the question of whether they were observed is much more likely to come up in criminal proceedings. Another major difference between evaluations of criminal defendants and comparable evaluations of general psychiatric patients is the much greater incentive for

defendants to distort the information they provide. They are also often quite uncooperative with evaluation, particularly if it is made at the request of the prosecution or the court. For this reason, it is much more important for evaluators of criminal defendants to insist on obtaining as much external corroborating information as possible (Miller et al. 1988). That necessity is reinforced by the fact that, while general psychiatric evaluations are usually focused on current mental state, forensic evaluations are frequently directed at past or future mental functioning or behavior, making past information particularly important in order to establish historical patterns. Forensic evaluations must often therefore be indirect, and conclusions must be drawn from a defendant’s behavior apart from response to specific questions concerning the legal construct under evaluation. In such cases, inpatient evaluation may be valuable in providing more extended observations of such behavior (Miller and Germain 1989). Forensic evaluators also need to be aware of their jurisdiction’s specific rules concerning disclosure of the information they obtain and the opinions they generate based on that information. In general, opinions stemming from evaluations requested by (and reimbursed by) a court are not confidential, and either prosecution or defense may require that evaluators present their conclusions, and the data on which they are based, in court. Evaluations requested by (and reimbursed by) the prosecutor’s office may not be discoverable by the defense if the prosecutor chooses not to call the expert witness to testify. In most states, evaluations requested by (and reimbursed by) the defense are not discoverable by the prosecution unless presented as evidence by the defense, because they are considered to be part of the defense attorney’s work product, and therefore privileged. Prosecutors in several jurisdictions have attempted to have courts or legislatures permit them access to such evaluation and opinions, and such conclusions are explicitly discoverable in some. In addition, most jurisdictions have decided that when a criminal defendant places his or her mental status at issue, such as by claiming incompetency to proceed or insanity, all privilege as to the content of mental evaluations is automatically waived (Gray v. District Court 1994). Given the variation among jurisdictions concerning confidentiality of psychiatric evaluations and opinions, it is important that evaluators determine the legal status of their opinions before informing defendants of the possible consequences of cooperating with a forensic evaluation.

REFERENCES Ake v. Oklahoma, 105 S. Ct. 1087 (1985). American Academy of Psychiatry and the Law. 1987. Ethical guidelines for the practice of forensic psychiatry. Newsletter of the American Academy of Psychiatry and the Law 12, 16–17.

Introduction 185 American Psychiatric Association. 1998. The Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry. Washington, DC: American Psychiatric Association. Estelle v. Smith, 451 U.S. 454 (1981). Gray v. District Court, 884 P.2d 286 (Colo. 1994). K.L.A. and M.A. v. Hutchinson et al., No. 88-CV-384 (Kenosha Cty. Wisc. September 1991). Miller, R.D. 1990a. Hidden agendas at the law-mental health interface. Journal of Psychiatry and Law 18, 35–58. Miller, R.D. 1990b. Pre-arraignment forensic evaluation: the odyssey moves east of the Pecos. Bulletin of the American Academy of Psychiatry and the Law 18, 311–21.

Miller, R.D., Germain, E.J. 1989. Inpatient evaluation of competency to stand trial. Health Law in Canada 9, 74–8, 92. Miller, R.D., Maier, G.J., Kaye, M. 1986. The right to remain silent during psychiatric examination in civil and criminal cases – a national survey and an analysis. International Journal of Law and Psychiatry 9, 77–94. Miller, R.D., Roach, L. Maier, G.J., et al. 1988. The re-minds of Billy Milligan. Paper read at the 19th Scientific Meeting of the American Academy of Psychiatry and the Law, October 20, San Francisco, CA. Rachlin, S. 1988. From impartial expert to adversary in the wake of Ake. Bulletin of the American Academy of Psychiatry and the Law 16, 25–33.

24 Criminal competence ROBERT D. MILLER

PRE-TRIAL ISSUES Forensic psychiatrists may be called on to evaluate the capacities of criminal defendants to satisfy minimal criteria for the fulfillment of their roles as defendants. The criminal law is concerned with defendants’ capacities for two reasons. Historically, the first was preservation of the dignity of the law itself; it is unseemly to try, convict, or sentence someone who is unaware of what is happening to him or her or unable to participate in his or her prosecution. More recently, concerns have arisen about the fundamental fairness of criminal prosecutions and the protection of the rights of defendants, although the current trend away from individual rights and toward society’s rights has caused a significant erosion in many protections for defendants. This shift in the balance of power has resulted in an increase in the tension between the two goals, which is explored in more detail in the subsequent sections. Although not first in terms of the process of a criminal prosecution, the general construct of competence to proceed has been the subject of far more analysis by courts and forensic clinicians than any other criminal competence issue, and is discussed first as a model for other evaluations. Many of the techniques discussed in this initial section are equally applicable to the evaluation of other types of competence. Except for competence to waive Miranda rights and to confess, most competence evaluations are contemporaneous and involve determinations of a defendant’s capacity to perform specified tasks. They are therefore in general easier to perform than evaluations of responsibility, which are almost always retrospective, and involve more nebulous and subjective criteria. Competence evaluations may involve two types of capacities: 1 The capacity to understand the relevant legal constructs. 2 The capacity to utilize that information in legally appropriate ways.

Until the Supreme Court’s decision in Godinez v. Moran (1993), discussed below, some courts have held that competence to represent one’s self requires that a defendant possess specific legal knowledge and skills as well as understanding. Unless trained and experienced in the practice of criminal law, forensic evaluators may not be able to offer opinions on these capacities. For this reason, some authors have recommended that evaluations be done by attorney–clinician teams (Gutheil et al. 1987); and some states permit competence evaluations to be performed by attorneys as well as by mental health professionals (Wisc. Stat. Ann. Ch. 1989). Some defense attorneys have argued that they should be the ones doing the evaluations, since they are in the best position to evaluate their clients’ capacities; however, despite their legal knowledge and first-hand experience with the defendant in question, attorneys may not be able to maintain the necessary objectivity concerning their own clients, may desire a higher level of competence than is legally required, and may not be able to see problems stemming from their specific attorney–client relationship, which might not generalize to relationships with other attorneys. The past two centuries have seen a significant expansion of due process rights for criminal defendants, particularly the right to state-provided counsel, and the right to be explicitly informed of one’s rights and to have them respected by the police and the prosecution. Procedures to protect those rights have been promulgated by the federal courts and subsequently applied to the states through the Fourteenth Amendment. As these rights have won their place in criminal procedure, however, their implementation has become an expectation of the criminal justice process, rather than solely rights of defendants. As a result, there has developed the presumption that defendants will avail themselves of all their rights. Thus, the default characteristics of a criminal prosecution are that defendants will assert their privileges against selfincrimination, and rights to decline to talk to the police

Criminal competence 187

until represented by counsel, plead not guilty, request a jury trial with representation by counsel, and appeal any conviction, particularly when the death sentence has been imposed. The law has a strong presumption against waiver of any of these constitutional rights, for two main reasons: (i) it violates the dignity of the law to convict a defendant unless all his or her rights have been scrupulously protected; and (ii) convictions obtained when defendants have waived some of their rights are more vulnerable to appeal. In order to limit the inappropriate waiver of rights, the Supreme Court has held that waiver must be ‘knowing and intelligent’ (Johnson v. Zerbst 1938). Therefore, when defendants waive any of their rights, forensic clinicians may be called in to assist the court in determining the quality of their decision making. Even when defendants assert all their rights, their mental conditions and behavior may require that their competence be evaluated before the prosecution proceeds.

COMPETENCE TO STAND TRIAL The concept of competence to stand trial goes back to the English common law requirement that criminal defendants cannot be tried in absentia (Gobert 1973). Originally interpreted to mean that defendants must be permitted to be physically present at their trials, it was ultimately extended to include mental presence as well as physical. As defendants were increasingly expected to take an active part in their defenses, the law increased its expectations of their capacities and behavior during that process. When defendants could (or would) not conform to those expectations, their competence to fulfill the role of defendant was questioned. While requirements that defendants not be tried unless they were competent had been included in common and statutory law for centuries, the concept was first given specific constitutional support in the United States by a series of Supreme Court decisions beginning in 1960. In Dusky v. United States (1960), the court for the first time provided criteria for competence to stand trial: ‘The test must be whether he [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him.’ Although admittedly vague, these criteria set forth the two main components of competence to stand trial: (i) cognitive – the capacity to comprehend relevant legal concepts and procedures; and (ii) volitional – the capacity to utilize information appropriately in one’s own defense and to function effectively in the legal environment. Courts and scholars have attempted to operationalize these criteria. The federal court for the western district of

Missouri provided the following criteria for competence in the year following Dusky: 1 The defendant has ‘the mental capacity to appreciate his presence in relation to time, place, and things.’ 2 The defendant has ‘sufficient elementary mental processes to apprehend (i.e., to seize and grasp with what mind he has) that he is in a court of justice, charged with a, criminal offense.’ 3 The defendant ‘understands that there is a judge on the bench.’ 4 The defendant ‘understands that a prosecutor is present who will try to convict him of a criminal charge.’ 5 The defendant ‘understands that a lawyer will undertake to defend him against that charge.’ 6 The defendant understands that ‘he is expected to tell his lawyer the circumstances, to the best of his mental ability (whether colored or not by mental aberration) the facts surrounding him at the time and place where the law violation is alleged to have been committed.’ 7 The defendant ‘understands that there will be a jury present to determine guilt or innocence.’ 8 The defendant ‘has memory sufficient to relate those things in his own personal manner’ (Weiter v. Settle 1961). A number of clinicians have attempted to provide checklists or other instruments to guide evaluators in the assessment of competence to stand trial and to provide some uniformity among evaluations. These approaches are discussed in detail in the section on evaluation. The Supreme Court also dealt with procedural issues in a series of decisions. In Pate v. Robinson (1966), the Court reversed the conviction of a mentally disordered defendant because no one had made a formal request for a competence evaluation during the trial, although the defense attorney had brought it up. On appeal, the state argued that counsel’s failure to request a competence evaluation or hearing constituted waiver of that right. The Supreme Court disagreed, pointing out that ‘it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently “waive” his right to have the court determine his capacity to stand trial.’ The Court opined that as seven years had elapsed since the trial, retrospective evaluation of competence would not be productive; it therefore ordered the state either to try Robinson again, or to release him. In Drope v. Missouri (1975), the trial judge had found Drope to be competent to stand trial; however, during the trial, Drope shot himself and had to be hospitalized. The judge ruled that the act was voluntary and was done in order to delay the trial; he therefore directed that the trial proceed without Drope. The Supreme Court held that while the judge had initially ‘jealously guarded’ Drope’s right not to be tried while incompetent, the apparent suicide attempt should have caused the judge to order another competence evaluation. It stated that, ‘Even when a defendant is competent at the commencement of his

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trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial.’ Pate and Drope established the principle that even if the defense does not raise the issue of competence, the prosecutor and/or the judge must raise it if sufficient evidence appears to suggest incompetence. Defense attorneys may not decide, even for valid strategic or tactical reasons, to decline to raise competence in the face of sufficient evidence to call it into question (Evans v. Kropp 1966; Johnson v. State 1986). The dignity of the law must here take precedence over a defendant’s right to devise his or her own defense plan. Prior to reforms in commitment laws in the 1970s, indefinite commitment as incompetent to stand trial frequently amounted to a life sentence without trial, even for minor criminal charges. The Supreme Court finally addressed this issue in Jackson v. Indiana (1972). Jackson had been charged with two robberies, of $5 and $4, for which he could have been sentenced to a maximum of one year in jail if convicted. He was a deaf mute with no ability to communicate with anyone, and was therefore found to be incompetent to stand trial and committed for treatment. After a year, two psychiatrists reported that Jackson’s condition was not treatable; the judge ordered the commitment to continue until Jackson had regained his competence, and his attorney appealed. The Supreme Court ruled that persons charged with crimes were entitled to the same protections as civilly committed persons, according to the decision in Baxstrom v. Herold (1966). The Court held that ‘a person charged by a state with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain the capacity in the foreseeable future.’ It also held more generally that the duration of a mental commitment must bear a reasonable relationship to the purpose of the commitment. This somewhat oracular pronouncement has been interpreted by most states to limit commitment for treatment to competence to stand trial to the maximum sentence provided for the crime(s) charged. Some states have gone even further; for example, Wisconsin limits commitment to the maximum sentence for the crime or twelve months, whichever is less (Wisc. Stat. Rev. Ch. 1989). Limitations on commitment of incompetent defendants charged with serious crimes cause significant problems for the criminal justice system, although the number of defendants found to be permanently incompetent is extremely small. While the charges may remain pending indefinitely in most jurisdictions after a finding of incompetence, the state has limited options after the statutory maximum period of commitment for treatment to competence. It may not confine the defendant in jail indefinitely (often not at all). It may, of course, release him or her, but in the case of serious crimes that is not a politically viable option. In practice, most such defendants are committed under either civil commitment or guardianship statutes;

but they may then be subject to more strict criteria for continued commitment than under criminal commitment. More recently, the Supreme Court has addressed more procedural issues. In Godinez v. Moran (1993), Moran initially pleaded not guilty to three counts of murder. After a suicide attempt, he was evaluated by two psychiatrists and found competent to stand trial under the Dusky standard. He later discharged his lawyers and pleaded guilty, saying that he wanted to prevent mitigating evidence being presented at sentencing. The judge found that Moran’s waiver was intelligent and knowing, and granted his request; he was found guilty and sentenced to death. He appealed, arguing that he had been incompetent to represent himself; the state courts and the federal district court denied his appeal, but the Ninth Circuit reversed, holding that the trial court should have held a hearing to determine if Moran’s waiver was voluntary, knowing and intelligent. It held that waiver of constitutional rights required a higher competency than that required to stand trial, the capacity to make a reasoned choice among alternatives. The Supreme Court took the case to resolve differences among the courts of appeal concerning whether the standard for waiving counsel is higher than the standard for standing trial. It held that the standard for waiving counsel is no higher than to stand trial. The competence involved is that of waiving a right, not the competence to represent oneself. It did hold that the waiver must be knowing (or intelligent) and voluntary. In Cooper v. Oklahoma (1996), Cooper was charged with capital murder. He was found competent to proceed several times under Oklahoma law that presumed a defendant competent unless he established incompetence by clear and convincing evidence (thus allowing a defendant who is more likely than not to be incompetent to be found competent). After being convicted and receiving the death sentence, Cooper appealed, arguing that the law places too great a burden on a defendant. The Oklahoma Court of Appeals affirmed, holding that the state has a great interest in a speedy trial, and that a truly incompetent defendant can easily establish his incompetence. The Supreme Court reversed, holding that, although the burden (by preponderance of the evidence) to prove incompetence can be placed on a defendant (citing Medina v. California 1992) a lengthy review of legal tradition indicates that a burden higher than preponderance violates due process. The assignment of the legal burden indicates society’s determination of the confidence the factfinder should have in the factual accuracy of conclusions for a particular type of adjudication. With competence to proceed, the consequences of an erroneous decision are clearly much greater than the consequences to the state.

Hidden agendas in competence evaluations Prior to Jackson, the indefinite commitment provisions of competence law made the process attractive to both prosecutors and defense attorneys. Prosecutors were often

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able to effect a life sentence without having to prove anything at trial. Overworked defense attorneys rarely actively challenged the commitments, as they were responsible for a large caseload of competent clients and often felt that their incompetent ones were better off in a hospital receiving treatment than they would be in jail or on the streets. In addition, they served to delay the prosecution, usually advantageous to the defense as witnesses forget, move, or die. With the post-Jackson limitations on the duration of commitments for treatment to competence, prosecutors have largely lost interest in the process, other than to ensure that convictions withstand appeal. With effective and rapid treatment available for most incompetent defendants, the delays have been significantly decreased, and defense attorneys have also largely abandoned covert agendas. A recent study (Miller and Kaplan 1992) revealed that in over 95 per cent of cases, the chief reason for questioning competence was serious mental disorder causing significant difficulty in communication between the attorneys and their clients. The forensic evaluators concurred with those assessments in the great majority of cases, demonstrating that the presence of mental disorder was not just being used as a convenient excuse for commitment. Other hidden agendas have surfaced in the past two decades, however. As the criteria for involuntary civil commitment became increasingly stricter because of civil libertarian reforms, and the community psychiatry movement pressed for institutionalization, state hospital censuses dropped 75 per cent from their peak in 1955, and the numbers of mentally disordered persons living in communities rose correspondingly (Miller 1987). When the promised community treatment failed to materialize (Chu and Trotter 1974), a community backlash against discharged but still disordered patients developed, and public pressure to incarcerate them mounted. Since the civil commitment option remained closed, for both legal and economic reasons, the criminal justice system was the only system available, and the numbers of mentally disordered in correctional facilities rose significantly (Stelovich 1979; Lamb and Grant 1982). The situation in Wisconsin was exacerbated by the fact that statutory changes in 1976 incorporated not only strict due process reforms to the civil commitment process but also shifted funding responsibility for hospital admissions to the counties, while continuing state funding for criminal commitments (Miller 1991). There was an immediate 42 per cent rise in commitments for competence evaluation and treatment (Dickey 1980), and the increase has been maintained over the subsequent fifteen years (Miller 1991). Rachlin, Stokman, and Grosman (1986) have described similar problems in New York. Another frequent underlying reason for requests for competence evaluation is the desire of the defense attorney to obtain a criminal responsibility evaluation. Many states provide such evaluations along with competence evaluations in state forensic facilities. Unlike competence evaluations, however, where the law requires evaluation

with the most minimal suggestion of competence, trial court judges have considerable leeway in deciding whether or not to order a sanity evaluation at government expense. As discussed in Chapter 23, when judges are resistant to ordering sanity evaluations, defense attorneys have learned to request competence evaluations, hoping to obtain information that is also useful for an insanity defense.

The characteristics of defendants referred for competence evaluation Descriptive research on defendants referred for competence evaluations is presented and reviewed in three excellent books, by Steadman (1979), Roesch and Golding (1980), and Melton and colleagues (1987). The reader is referred to those sources for more detailed information. Much of the empirical research into competence to stand trial was done more than ten years ago; while the absolute numbers involved have certainly risen due to increases in criminal arrests, there is no reason to believe that comparative or percentage data have changed significantly. In 1978, 6420 defendants were committed to forensic hospitals for treatment to competence (Steadman et al. 1982). Roesch and Golding (1980) found in their review of studies that an average of only 30 per cent of defendants referred for competence evaluation were found to be incompetent, suggesting that as many as 20 000 defendants were referred for competence evaluation in 1978. That number has certainly grown significantly in the intervening twenty years; defendants admitted for evaluation of, or treatment to, competence continue to make up the largest proportion of patients in state forensic hospitals; and the great majority of those defendants are found to be competent (Daniel et al. 1984). Daniel and colleagues (1984) found that a cluster consisting of bizarre behavior at the time of the offense, psychosis, irrational behavior associated with substance abuse, and impaired orientation correctly predicted 90 per cent of competence determinations. Heller et al. (1981) also found that psychosis and mental retardation were highly correlated with findings of incompetence. Bennett and Kish (1990) found that although incompetent defendants were more likely than competent ones to be non-white and unmarried, and to have less education, most studies did not report statistically significant differences.

Evaluation Although competence to stand trial is usually a contemporaneous evaluation, with relatively clear criteria and a significant research literature, the evaluation process is complicated by the sheer numbers of defendants referred and by the various covert agendas that drive the referral system. Evaluators therefore need not only be familiar with the statutes and case law in their jurisdictions relevant to competence but also with the social and political

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climate of the community. If they are not, they run the risk of missing the point of the referral entirely and becoming frustrated and ineffective in dealing with the underlying social and political factors involved. This is not to say that evaluators should ignore the issue of competence itself. There are a number of principles for evaluation that have stood the test of time and research. As with other evaluations, one must first make sure what evaluation is really desired. Beware of preprinted court forms specifying particular evaluations; clerks have been known to grab the wrong form, and attorneys or judges with covert agendas may use such forms to transfer problem patients from jails to forensic hospitals. It is also incumbent upon forensic evaluators to be sensitive to issues of competence, even when the referral was for some other purpose, such as criminal responsibility. If indications that a defendant may be incompetent to stand trial are present, the evaluator should address them specifically and call them to either the attorney’s or the court’s attention. Otherwise, a prosecution may proceed with a functionally incompetent defendant, resulting in a denial of constitutional rights and ultimately in a reversal of conviction that would have been unnecessary had the issue of competence been raised appropriately. While the use of standard psychiatric diagnostic skills is certainly an essential part of a competence evaluation, these skills are not sufficient by themselves (Halleck et al. 1992). There is no simple equation between mental disorder and incompetence; neither psychosis nor organic mental disorder nor mental retardation per se render a defendant incompetent (May v. State 1981), although most defendants found to be incompetent suffer from one of these conditions, and their presence should certainly raise the evaluator’s level of suspicion (Bukatman, Foy, and DeGrazia 1971; Heller et al. 1981). Evaluators should also resist the temptation to support inappropriate use of requests for competence evaluation by setting too high a threshold for competence, or by keeping patients after they have recovered their competence in order to provide more complete psychiatric treatment (Group for the Advancement of Psychiatry 1974; Halpern 1975). There are several other significant differences between standard psychiatric evaluations and forensic evaluations that must be taken into account in evaluating competence. Although many psychiatric patients are less than forthcoming about their problems, criminal defendants have additional reasons to withhold information from evaluators. They may simulate disorder to delay or avoid trial; they may dissimulate in order to avoid hospitalization or to minimize factors that would impact negatively at sentencing; and they may refuse to cooperate altogether (Rogers 1997). Some defendants may not want to be defended at all; although such positions go against the basic assumptions of the criminal justice system, they do not necessarily indicate incompetence (although they almost certainly will result in competence evaluations) (Miller and Germain 1987).

For these reasons, it is essential that evaluators seek as much corroborating information as possible. Past psychiatric and criminal histories provide a context in which current behavior can be assessed. Since it is rare that incapacity exists only with respect to legal comprehension, observation of other behaviors and interviews with those in a position to make such observations (defense attorneys, jailers, etc.) are an essential part of competence evaluation, even with apparently cooperative defendants. External information (particularly court transcripts and interviews with the attorneys and judge) are essential for retrospective competence evaluations (Miller and Germain 1988). Competence to stand trial is not a bimodal construct that a defendant either has or does not have (Bennett and Sullwold 1984). It is the capacity to perform specific tasks as part of a criminal defense, and as such will depend on the tasks to be performed. Defendants may be capable of performing some, but not all, of the possible tasks involved in their defenses. Evaluators should therefore attempt to be specific in addressing potential tasks (pleading guilty, waiving counsel, waiving a jury trial, actively assisting counsel during a trial, testifying, etc.) individually. At times, the evaluator will know precisely what the defense plans are and may be able to prevent unnecessary hospitalization of defendants who are incapable of performing tasks that they will not need to perform (Miller and Germain 1986). Specific discussion of several of these capacities are presented in following chapters.

AMNESIA Amnesia presents a difficult problem for evaluators (Koson and Robey 1973). Defendants referred for competence evaluation frequently claim loss of memory for the times of their alleged crimes. Given the high association between criminal behavior and intoxication with alcohol or other drugs, head injuries, and emotional stress, a substantial incidence of amnesia is to be expected in this population. Defense attorneys point out that an amnestic defendant cannot provide essential information, such as his or her whereabouts, actions, and mental state at the time of the alleged crime, and therefore cannot meet the cooperate-with-counsel prong of the competence criteria (Note 1981). Because of the frequency of allegations of amnesia, and because of the difficulty in determining its validity and resolving it (Koson and Robey 1973), most courts have concluded that amnesia per se does not render a defendant incompetent to proceed (Bradley v. Preston 1968). They reason that in most cases sufficient ancillary information will be available to permit an effective defense to be mounted. One court has suggested that if an amnestic defendant is otherwise competent, the prosecution should proceed, and if the defendant is convicted, the judge will review the case to determine retrospectively whether the defendant’s amnesia denied him or her a fair trial (United States v. Wilson 1966). Recently, a Colorado appeals court

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adopted the Wilson rationale; the Colorado Supreme Court declined to adopt the Wilson test, but acknowledged that the effects of amnesia on competence must be evaluated on a case-by-case basis. (People v. Palmer 2000; People v. Palmer 2001) In practice, the most effective procedure to follow when evaluators feel that the amnesia is genuine and causes a significant impairment in the particular case (especially if an insanity defense seems appropriate and the defendant cannot recall his or her mental state at the time of the crime) is to inform the court of the problem and to suggest a brief trial of memory-enhancing techniques to see if the memories can be recovered. If they can, then competence is clear; if not, at least the court can be assured that available treatment is unlikely to restore them (Melton et al. 1987; Miller and Stava 1997). This procedure has been approved by several courts (Cornell v. Sup. Ct. 1959; People v. McBroom 1968; State v. McClendon 1968; United States v. Borum 1972; Davis v. State 1978; United States v. Adams 1978; State v. Mack 1980; State v. Palmer 1987). Since such techniques, if effective, may reveal information detrimental to the defendant that is likely to be discoverable in court, extreme care should be taken to attempt to obtain informed consent from the defendant, as well as from the defense attorney, before using techniques such as hypnosis or narcotherapy.

OUTPATIENT COMPETENCE EVALUATIONS Because of the deprivation of liberty involved in inpatient competence evaluations, and because the evaluation can often be accomplished effectively without hospitalization, many critics have called for competence evaluations to be carried out on an outpatient basis (i.e., in jail or in the community if the defendant is on bail) (Miller and Germain 1989). A number of jurisdictions have established such community-based evaluations services, either with traveling teams of trained professionals (Herron, Zonana, and Crane 1983) or through training of existing community mental health staff (Melton, Weithorn, and Slobogin 1985). Many larger cities have developed specialized court clinics, often located in the jail itself, to perform competence evaluations efficiently (Sadoff 1967). Community-based evaluation can be very effective in the majority of cases, provided that the evaluators are sufficiently trained. It avoids unnecessary drain on inpatient resources, eliminates transportation problems, facilitates interactions with defense attorneys (Gutheil et al. 1987), and permits local evaluators to develop good working relationships with the court and jail systems. Despite these advantages, however, the majority of states continue to rely on inpatient competence evaluations (Miller and Germain 1989). There are advantages to hospitalization in problematic cases, again assuming appropriate facilities with sufficient, trained staff. Continued observation over time by trained forensic clinicians may be necessary to resolve questions of malingering, and inpatient staff

are in a position to develop expertise with conditions (such as multiple personality disorder) that are disproportionately represented in forensic populations (Miller and Germain 1989). Specialized techniques, such as group interviews to assess a defendant’s capacity to deal with a number of people (as might be necessary during a trial), and the use of lawyer–clinician evaluation teams (Gutheil et al. 1987) are easier to implement in an inpatient facility than in all but the largest community-based evaluation programs. In addition, inpatient staff are often in a better position to make predictions of response to treatment, since they are the ones who will be providing the treatment and have direct experience in doing so. Because of these advantages, inpatient evaluation should continue to remain a referral option for community-based facilities.

ASSESSMENT INSTRUMENTS A number of formalized checklists and structured interviews have been developed to assist evaluators with competence assessments. Creation of the early schemes (Robey 1965; Lipsitt, Lelos, and McGarry 1971) was necessitated by conditions in overburdened forensic facilities with insufficient professional staff to perform the evaluations; they were designed to permit line staff with less training to handle the great majority of evaluations. They were simple in construction and interpretation, and had the virtue of collecting relevant raw data that could be made available to the court, and of imposing some standardization on the process. The next major attempt to structure evaluations came from Harvard’s Laboratory of Community Psychiatry (1973), which developed the Competency Screening Test (CST), designed as a tool for preliminary evaluation, and the more lengthy Competency Assessment Instrument (CAI) for final evaluations. The CST has been heavily criticized by Brakel (1974) and others for its strong bias toward the status quo, resulting in defendants who express negative feelings toward attorneys, judges, or the criminal justice system being found incompetent. The CAI has not been subjected to sufficient research to estimate either its reliability or validity (Melton et al. 1987). The Interdisciplinary Fitness Interview (Golding and Roesch 1984) was developed by two psychologists who were very experienced with competence evaluations. Designed to be used by a lawyer–mental health professional team, it was developed using more sophisticated psychometric approaches than its predecessors, and has been more extensively validated. It leads to a much more detailed examination of both psychopathology and legal knowledge, and also provides explicit scales for rating the impact of each response on the eventual competence determination. Inter-rater reliability has been quite high as to the ultimate opinions (Schreiber, Roesch, and Golding 1987). Grisso’s (1986) book on competence assessment techniques and instruments has become a standard reference work in the field.

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Most recently, the MacArthur work group has developed a field-tested and well-validated instrument, the MacArthur Competency Assessment Tool, Criminal Adjudication (Poythress et al. 1999) which is gaining wide acceptance in the field. In addition to the generic assessment instruments, Everington (1990) has developed an instrument designed specifically for developmentally disabled defendants. This takes into account the particular behaviors and deficits unique to this population, and provides much-needed standardization to their evaluation.

Treatment to restore competence Although outpatient evaluation of competence is becoming increasingly prevalent, virtually all defendants adjudicated incompetent to stand trial are committed to inpatient units for treatment to restore competence (Miller and Germain 1989). While the post-Jackson reforms have limited the duration of commitment in most states, that still permits extended hospitalization for restoration of competence, particularly since most defendants are initially charged with crimes more serious than those to which they will eventually plead. Since the majority of defendants found incompetent to stand trial suffer from psychoses, the treatment modality most relevant to restoration of competence is antipsychotic medication. Courts have struggled with the issue of ‘chemical competence’ achieved through medication. Some early decisions (State v. Murphy 1960) held that defendants must be tried in a ‘natural state,’ that is, off medications. More recently, courts have appeared to recognize that psychotropic medications are restorative of normal functioning, and have permitted even involuntary administration if necessary to restore competence, since the state’s interest in restoration outweighs the defendant’s privacy and other interests in refusing (State v. Laws 1978). Defense attorneys frequently object to their clients being treated with antipsychotic medications, since (they argue) it prevents the jury from seeing the defendant as he or she was at the time of the crime, and even may render him/her apparently indifferent to the proceedings. Several courts have taken notice of this criticism and have ruled that treatment may be imposed until the defendant becomes competent. At that time, he or she may refuse again; but if as a result he/she loses his/her competence, they may be tried anyway, being considered to have (competently) waived their right to be tried while competent by deciding to stop treatment (People v. Parsons 1975; State v. Jojola 1976; State v. Hayes 1978). The issue of the defendant’s appearance to the jury has recently come before the Supreme Court in the context of the death sentence of a defendant whose pre-trial competence was restored through medications. His request to stop the medications during the trial was denied by the judge, apparently based on predictions from examining clinicians that he would

lose his competence without medications. The Court overturned the conviction because no formal hearing was held on the issue of forced medication during trial, suggesting that forced medication might be continued upon a showing at such a hearing that it was necessary to maintain competence. The issue of forcing medication before trial to restore competence was not definitively addressed (Riggins v. Nevada 1992). Other jurisdictions deal with medication refusal by defendants found incompetent for trial through procedures identical to those applied to civilly committed patients (Miller et al. 1989). For defendants whose incompetence is caused by mental retardation, organic brain syndromes, or other factors that do not respond to current medication, various psychoeducational programs have been devised to present the relevant legal material in effective ways (Pittenger 1983; Webster et al. 1985).

COMPETENCE TO WAIVE MIRANDA RIGHTS AND TO CONFESS The first major decision facing a person arrested for a crime is whether to talk to the police. The Fifth Amendment to the federal Constitution provides that a person may not be compelled to be a witness against him/herself; but that privilege has little meaning unless the accused is aware of it. Originally, the English common law privilege against self-incrimination prevented questioning until formal charges had been brought; but at that point, the accused could be forced to undergo interrogation. As part of the reaction against royal abuse of power in the seventeenth century, the right not to be questioned at trial was established. At the same time, the voluntariness doctrine (which had originated more than a century earlier) evolved, virtually barring pre-trial interrogation. That doctrine was concerned with the reliability of confessions, not with any rights of an accused (Benner 1989). An 1848 English statute required that an accused be informed that his statements could be used against him.

Legal issues In Bram v. United States (1897), the U.S. Supreme Court reviewed the English and American common law of confessions, then grafted the voluntariness doctrine onto the Fifth Amendment privilege against self-incrimination, again based on a desire to limit the unreliability of confessions. It held that confessions should ‘be free and voluntary, that is, not produced by inducement engendering either hope or fear.’ It eschewed the subjective approach of attempting to determine the effects of various factors on the accused, choosing rather an objective test under which

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a confession must be deemed involuntary if any degree of influence has been exerted. Bram established a presumption of compulsion, which the state was required to overcome, that was followed by the federal courts until the 1930s. At that point, the criteria for compulsion began to be diluted, and confessions induced by promises became admissible (Benner 1989). The Fifth Amendment privilege against self-incrimination was not applied to the states through the Fourteenth Amendment until Malloy v. Hogan (1964). In that same year, the Supreme Court held that police interrogation was a ‘critical stage of a prosecution,’ and therefore the right to counsel obtained (Escobedo v. Illinois 1964.) Two years later, in Miranda v. Arizona (1966), the Court added the wellknown requirements that police inform a suspect that he or she has the right to remain silent and the right to counsel, and that if he/she chooses to talk with police, anything that he/she says could be used as evidence against them. It limited the application of the right to custodial interrogations. Moreover, it reaffirmed that when a confession is obtained in the absence of counsel, ‘a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.’ The voluntariness doctrine has undergone a series of changes through the second half of the twentieth century. Due process prohibitions against coerced confessions had been applied to the states in Palko v. Connecticut (1937) well before the Fifth Amendment was in Malloy. As far back as 1884, the Supreme Court held that a confession loses its value when pressures operating on the defendant’s fears and hopes deprive ‘him of that freedom of will or self-control essential to make his confession voluntary within the meaning of the law’ (Hopt v. Utah 1884). In a series of cases beginning in 1948, the Court rejected confessions obtained from defendants whose mental capacities were impaired, through immaturity (Haley v. Ohio 1948), mental retardation (Fikes v. Alabama 1957; Payne v. Arkansas 1958; Reck v. Pate 1961; Culombe v. Connecticut 1961), intoxication with drugs (Townsend v. Sain 1963), or mental illness (Fikes v. Alabama 1957; Spano v. New York 1959; Blackburn v. Alabama 1960). In those cases, the Court specifically took into account the defendants’ individual susceptibilities as well as official conduct in determining that their confessions had not been voluntary. In Blackburn (1960), the Court held that a confession is coerced if it is not ‘the product of a rational intellect and a free will,’ and noted that coercion can be mental as well as physical. In Culombe (1961), it held that,‘The ultimate test [for admissibility of confessions] remains that which has been the only clearly established test in AngloAmerican courts for two hundred years, the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker?’ Beginning with the Burger Court, and accelerated with the Rehnquist Court, however, the due process protections inherent in Miranda have been eroded in favor

of facilitation of criminal convictions (Parry 1987; Perlin 1987). The coercion required to invalidate confessions has been progressively limited to conscious police misconduct, and the capacity of a defendant to make a rational choice has become irrelevant. In 1987, the Court held in Colorado v. Spring (1987) that the confession from a defendant who was misled about the purpose of the interrogation was admissible because, ‘The Constitution does not require that a suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege.’ In Illinois v. Perkins (1990), the Court upheld a confession obtained by an undercover policeman placed in Perkins’ cell in order to trick him into confessing to a murder unrelated to the crime for which he had been arrested. The Court majority held that coercion exists only from the interaction of police custody and official (i.e., identifiable) interrogation, and the confession was therefore ‘voluntary.’ Most specifically relevant to the issues of voluntariness and competence is the Court’s decision in Colorado v. Connelly (1986). Connelly had traveled from Massachusetts to Colorado, under the influence of command hallucinations, to confess to a murder. When counsel was appointed the next day, he requested a competence evaluation, and Connelly was found to be psychotic and incompetent to stand trial. After his competence was restored, his attorney moved to strike his confession, arguing that it had been involuntary because Connelly’s psychosis prevented him from making a truly voluntary decision to waive his rights. The state courts agreed, but the Supreme Court majority reversed, reasoning that because there had been no police misconduct and Connelly understood that his admissions might be used against him at trial, the confession was voluntary under their revised legal definition of that concept. Reversing two hundred years of jurisprudence, the Court held that, ‘Notions of “free will” have no place in this area of constitutional law. Respondent’s perception of coercion flowing from the “voice of God” is a matter to which the Federal Constitution does not speak.’

Evaluation Prior to Connelly, it appeared that the evaluation of competence to waive Miranda rights (i.e., to confess to a crime) was conceptually similar to competence to stand trial. Bursten (1979) argues that voluntariness should include: (i) a lack of physical or psychological coercion; (ii) appropriate knowledge; and (iii) impulse control, which includes motivational themes, the capacity to delay action, and the capacity to deliberate and plan. Arguing for a very broad test of voluntariness, Bursten states that ‘the psychological standard for voluntariness may go beyond the element of lack of feeling that one is being coerced, and it goes beyond a narrowly construed knowledge test. Fantasy, fright, despair, internal psychological fact, undue influence, and a product test all widen the scope of relevant data and take it

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beyond the cognitive sphere; they open the doors to emotional and judgmental factors’ (Bursten 1979, p. 354). Under the Supreme Court’s purely objective test of voluntariness, mental health professionals may have little to offer the court, other than to interpret the effects of potentially coercive police behavior on the particular defendant in question. Here, the capacities of individual defendants may be relevant if it can be demonstrated that they might be unusually susceptible to persuasion short of outright coercion. Since, however, individual states retain the power to pass and interpret their statutes and constitutions in a manner more protective of individual rights than required by the federal Constitution (as interpreted by the Supreme Court), it is still possible that some states will choose to retain free will as a necessary part of the definition of voluntariness. In these cases, forensic clinicians will continue to be of great benefit to the courts.

COMPETENCE TO PLEAD GUILTY Plea bargaining accounts for between 87 per cent and 95 per cent of dispositions in criminal cases (American Bar Association 1968). A guilty plea involves three elements. First, it is a waiver of three constitutional rights: (i) the privilege against self-incrimination; (ii) the right to a jury trial; and (iii) the right to confront witnesses. Second, it is the defendant’s consent to the judge’s entering a judgment against him or her and passing sentence. Third, it is an admission of actual guilt (Note 1971). Guilty pleas are entered in return for the guarantee of a disposition that is usually less severe than the maximum sentence for the crime charged. Such pleas are required to be both voluntary and informed (Newman 1966; McClure 1971; Tofie 1971; Davis 1972; Gallagher 1974; Dix 1977; Westen and Westin 1978). Critics of the plea bargaining process argue that it gives prosecutors (Newman 1966; Davis 1972; Alschuler 1976) and judges (Whitman 1967; Newman and NeMoyer 1970; McClure 1971; Ferguson 1972-1973; Gallagher 1974) too much power and leads to overcharging in order to have bargaining room, thereby fostering disrespect for the criminal process (Alschuler 1968; McClure 1971; Gallagher 1974; Westen and Westin 1978). For plea bargaining to operate appropriately, there must be effective assistance of counsel (Alschuler 1975), which is often not provided in practice. Proponents argue that plea bargaining saves considerable court time and is supposed to foster the rehabilitative process, since the defendant usually admits guilt (Newman and NeMoyer 1970; Ferguson 1972–1973). Whitman (1967) points out that defendants benefit from the lesser sentences obtained through plea bargaining; and another author (see Note 1977) argues that if plea bargaining worked as it is supposed to, it would be

preferable to a trial, since the defendants’ direct participation in the process would allow them to feel more satisfied with the outcome.

Legal issues Despite criticisms of both the theory and practice of plea bargaining, it is clearly logistically essential to the operation of the criminal justice system. As a result, there exists a strong pressure not to interfere with the operation of the process, which translates into strong resistance on the part of appellate courts to overturn convictions obtained through plea bargaining. For example, Judge Tuttle of the Fifth Circuit wrote in 1957 that,‘[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e.g., bribes)’ (Shelton v. United States 1957). Before competence-to-stand-trial jurisprudence became established in the 1970s, trial judges were accorded considerable autonomy in accepting defendants’ guilty pleas. Even before that, however, some appellate courts had begun to argue that formal determination of competence might be necessary before such pleas could be accepted. In a series of cases, the Ninth Circuit Court of Appeals reversed convictions obtained through guilty pleas because the trial judge had made no inquiry on the record concerning the defendant’s competence to enter the plea (Jones v. United States 1967; Castro v. United States 1968; United States v. Tweedy 1969; Sieling v. Eyman 1973). The Supreme Court concurred with that reasoning in 1969 in Boykin v. Alabama (1969). Following the rationale of Johnson v. Zerbst (1938) that the law presumes against the waiver of a constitutional right, the Court placed the burden of proof on the state to demonstrate that a plea has been voluntarily and intelligently made. The federal courts have for almost a century required that guilty pleas be voluntary and intelligent (Bram v. United States 1897; Machibroda v. United States 1962; Boykin v. Alabama 1969; McCarthy v. United States 1969), and that a guilty plea may not be accepted from an incompetent defendant (Youtsey v. United States 1899; People v. Maynard 1932; Forthoffer v. Swope 1939); however, they have not effectively operationalized those concepts in the context of guilty pleas. Most courts have followed the traditional approach of examining external coercive factors, rather than the specific characteristics of the defendants themselves (see Note 1984). There has been considerable discussion in the case law as to the standard for competence to plead guilty. It seems clear that a general determination of competence to

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stand trial does not also establish that a defendant is competent to plead guilty (In re Williams 1958; Brookhart v. Janis 1966). Several courts have held that a defendant who pleads guilty without benefit of counsel should be held to a higher standard than one who is represented (Brady v. United States 1970; Heberling 1972). Justice Hufstedler of the Ninth Circuit, in a 1970 dissent, wrote that, ‘To the extent that they differ, the standards of competence to plead guilty are higher than those of competence to stand trial. A defendant is not competent to plead guilty if mental illness has substantially impaired his ability to make a reasoned choice among the alternatives presented to him and to understand the nature of the consequences of his plea’ (Schoeller v. Dunbar 1970). Three years later, the Ninth Circuit adopted that position in Sieling v. Eyman (1973, at 214), holding that a judge must go beyond the usual colloquy with the defendant because that method does not measure the defendant’s capacity by a ‘high enough standard.’ Chernoff and Schaffer (1972) argue, however, that standing trial requires a higher level of competence than does pleading guilty, because more is expected of a defendant during trial.

Evaluation There is little judicial guidance for the evaluator asked to offer opinions on a defendant’s competence to plead guilty. Justice Tuttle’s dissent in Shelton v. United States (1957) was adopted by the Supreme Court in 1970 as criteria for competence to plead guilty (Brady v. United States 1970). The Wisconsin Supreme Court offered more specific guidelines in State v. Burke 1964). It stated that it is feasible for judges seeking to ensure that a guilty plea is valid to do the following: (i) determine the extent of the defendant’s education and general comprehension; (ii) establish the accused’s understanding of the nature of the crime with which he is charged and the range of punishments it carries; (iii) ascertain whether any promises or threats have been made to him in connection with his appearance, his refusal of counsel, and his proposed plea of guilty; (iv) alert the accused to the possibility that a lawyer may discover defenses or mitigating circumstances that would not be apparent to a layperson such as the accused; and (v) make sure the defendant understands that if he cannot afford it, counsel will be provided at no expense to him. Most of these criteria require legal rather than clinical knowledge, and focus on objective factors rather than the defendant’s actual capacities. Evaluators should therefore familiarize themselves with case law in their jurisdictions and make sure to address specific criteria, if any. Beyond that, they should attempt to apply their clinical knowledge to questions concerning how the defendant’s mental disorder (if any) might impair his or her capacity to understand the relevant legal information and apply it in his/her case, and also to any problems that would render him/her unusually susceptible to external coercion.

COMPETENCE TO WAIVE REPRESENTATION BY COUNSEL The second major decision a defendant must make after arrest is whether or not to seek or accept representation by counsel. The right to counsel, after notice and a hearing, is the most central right accorded a defendant in contemporary U.S. criminal jurisprudence. Until Gideon v. Wainwright (1963) and Argersinger v. Hamlin (1972), criminal defendants in state courts were not guaranteed that lawyers would be provided for them. Once counsel had to be provided for indigent defendants, a number of potential difficulties were predictable, indeed inevitable. Could defendants choose their own lawyers and force the state to pay? If not, how would the court provide counsel?

Legal issues Statutory law in the United States has permitted criminal defendants to be represented by attorneys since the founding of the country. Historically, at a time when representation by counsel was prohibited for most defendants, it could be forced on an unwilling defendant in English law in Star Chamber proceedings. In those infamous proceedings, the purpose of counsel was not chiefly to assist the defendant but rather to serve as a guarantor of the validity of the defendant’s plea; if the plea were found to be inaccurate or frivolous, the attorney could be punished along with the defendant (Faretta v. California 1975). The U.S. Congress passed a law in 1789, one day before the Sixth Amendment was even proposed, that has been cited as guaranteeing defendants the right to represent themselves: ‘In all courts of the United States, the parties may plead and manage their own causes personally or by the assistance of such counsel or attorneys at law as by the rules of the said courts respectively shall be permitted to manage and conduct causes therein’ (Judiciary Act 1970). But that statute left room for judicial discretion in determining whether or not to permit defendants to represent themselves in specific cases. There has remained a tension between developing law in the areas of defendants’ rights to counsel and their right to self-representation, with some courts and scholars holding the rights to be mutually exclusive and others holding them to be complementary (see Note 1965; Grano 1970; see Comment 1971; see Comment 1973; see Note 1976; Chused 1977; Berger 1986). The constitutional arguments have been heavily colored by practical considerations. In the days before defendants were held to have the absolute right to representation by counsel, opponents of that right argued that it would delay trials and cost the state too much money, and also that defendants were quite capable of presenting their own defenses. As the right became established, however, critics of self-representation argued that it would delay and disrupt trials for defendants

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to conduct their own defenses, and that departure from representation by counsel would constitute violation of due process. Judges were concerned that they would be placed in an impossible situation if defendants attempted to waive counsel, with an appeal almost guaranteed no matter which choice they made. The U.S. Supreme Court has addressed the issue of waiver of representation in several decisions since Johnson v. Zerbst (1938). There, the Court held that,‘This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court.’ It went further to hold that, ‘courts indulge every reasonable presumption against waiver of fundamental constitutional rights,’ and that ‘We do not presume acquiescence in the loss of fundamental rights.’ (Johnson v. Zerbst 1938, p. 465). In Adams v. United States ex rel. McCann (1942), the Court ruled that the Constitution does not require that a defendant be represented by counsel. The Court did not explicitly address the issue of whether the state could force an attorney on a defendant, although it implied rejection of that power in dicta: ‘When the administration of the criminal law … is hedged about as it is by Constitutional safeguards for the protection of the accused, to deny him in the exercise of his free choice the right to dispense with some of these safeguards … is to imprison a man in his privileges and call it the Constitution.’ In Carter v. Illinois (1946), the Supreme Court held that the right to counsel ‘does not, however, mean that the accused may not make his own defense … neither the historic conception of Due Process nor the vitality it derives from progressive standards of justice denies a person the right to defend himself … . Under appropriate circumstances, the Constitution requires that counsel be tendered; it does not require that under all circumstances counsel be forced upon a defendant.’ In Von Moltke v. Gillies (1947), the Court held that, ‘To be valid such waiver [of counsel] must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.’ The Court has also made it clear that it will not permit defendants to use their right to self-representation to delay trials or to create phantom issues to raise on appeal (United States v. Abbamonte 1966). In Faretta v. California the 6–3 Supreme Court majority held that the right to self-representation exists not only in the federal Constitution but also in federal law, and in the constitutions and laws of the majority of states. It held that the Sixth Amendment grants to the accused personally the right to make his defense, and held that to force unwanted counsel on a defendant ‘can only lead him to believe that

the law contrives against him’ (Faretta v. California 1975, at 834). It reiterated that waiver of counsel must be knowing and intelligent. Trial judges, however, clearly retain discretion in ensuring that trials satisfy due process and fundamental fairness requirements (McKastle v. Wiggins 1984). Thus, although Faretta guaranteed the right to selfrepresentation to competent defendants, it did not operationalize the ‘knowing and intelligent waiver’ requirements, and left considerable authority to state courts and trial judges to force counsel on unwilling defendants. Forensic clinicians who are asked to evaluate the competence of defendants who express a wish to represent themselves must therefore familiarize themselves with case law in their jurisdictions (if any) and consult with practicing attorneys to determine the criteria used for the decision. Although there are no previous published reports that provide quantitative data on the actual incidence of waiver, a 1962 survey of federal district court judges and prosecutors (see Note 1963) reported that the overall rate at which defendants waived counsel was 20 per cent, with some districts reporting that 81–100 per cent of defendants represented themselves. The variation depended in part on the willingness of judges to permit waiver. The respondents also indicated that most defendants who waived counsel pleaded guilty. In another study (Comment 1973), most Illinois trial judges surveyed reported that fewer than 10 per cent of misdemeanants and fewer than 5 per cent of felons waived representation. They reported that fewer than 5 per cent of pro se felony defendants were acquitted, while in some courts more than half of pro se defendants charged with misdemeanors were found not guilty. The judges felt that the defendants’ obvious guilt was the main reason for conviction, rather than lack of representation. They reported that their decisions as to whether to permit waiver were based chiefly on the seriousness of the charges, rather than on the competence of the defendants. One author (see Note 1976) suggests several reasons for waiver: 1 Some defendants have little trust in the fairness of the system, because public defenders are overworked, or because they work for the state. 2 Other defendants have too much trust in the system; many who believe themselves to be innocent feel no need for representation because they assume that they will be found not guilty. 3 Still other defendants wish to get a political agenda into court and believe that assigned counsel will not further that goal. 4 Some defendants believe that they can explain their defenses better than an attorney could. 5 Some defendants desire the opportunity to speak to the jury without undergoing cross-examination. 6 Some defendants believe that they can win the jury’s sympathy if they appear without an attorney. 7 Finally, some defendants who are not indigent wish to avoid paying attorney’s fees.

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Another author (see Note 1965) pointed out that experienced and wily defendants may believe that by refusing counsel they may lay grounds for future appeals should they be convicted, and that other defendants may wish to speed up the process. In the only prospective study in the literature, Miller and Kaplan (1992) studied 100 consecutive defendants admitted for evaluation of, or treatment to regain, competence to stand trial. Data were collected from defendants concerning their understanding of the reason for their commitments, their reasons for wishing to discharge their attorneys and/or to represent themselves (if they did), their opinions of their competence, their views toward attorneys in general and their attorneys in particular. Defense attorneys for each defendant were contacted by telephone; they were asked who raised the question of their clients’ competence and why the issue had been raised. For those defendants without representation, the assistant district attorney responsible for prosecuting the case was contacted. The ultimate outcome of the evaluation was also recorded. Twenty-four defendants had attempted to discharge their appointed attorneys; eleven of those had expressed the desire to waive counsel altogether and to represent themselves. The twenty-four defendants who wished to fire their attorneys were not statistically different from the total sample with respect to age, diagnosis, or type of crimes charged. The eleven defendants who wished to waive counsel and represent themselves chiefly argued that they could represent themselves better than any attorney, or that it was their constitutional right to represent themselves, while the thirteen who merely wished to fire their lawyers criticized their current attorneys because of spending too little time with them, not listening to them, or trying to coerce them into entering guilty or insanity pleas. The attorney respondents reported that the issue of competence had been raised chiefly by defense attorneys in 84 per cent of cases. By far the major reason for raising the issue of competence was the perception that the defendant was too mentally ill or retarded to understand what the attorney was telling him or her (93 per cent); other frequent reasons were a history of mental illness and a need (perceived by the attorney) for treatment. Of the eleven defendants who asserted their privilege to represent themselves, nine were found incompetent to proceed and to represent themselves by the courts. The remaining two were initially felt to be competent to represent themselves, but both subsequently deteriorated without psychotropic medication and were ultimately found to be incompetent to waive representation at some stage of the proceedings, before treatment was reinstated. All these defendants were suffering from major psychiatric disorders, which raised legitimate concerns about their competence apart from any desire to waive counsel, and their desires to represent themselves were clearly related to their psychoses. By contrast, eleven of the thirteen

defendants who indicated a desire to fire their attorneys, but not to represent themselves, were thought to be competent by the clinical evaluators and the courts.

Evaluation Under Faretta v. California (1975), and now Godinez v. Moran (1993), the only issue is a defendant’s capacity to understand that he or she is relinquishing their right to be represented by counsel, and to understand that he or she might as a result be at a disadvantage in court. Justice Black’s opinion in Von Moltke v. Gillies (1947), which has been adopted by some courts, would require that, in addition, a defendant must be aware of more specific legal issues, including ‘all other facts essential to a broad understanding of the whole matter.’ Therefore, clinical evaluators need to be aware of the specific criteria for competence to represent one’s self (if any) in their jurisdictions. The ‘knowing and intelligent’ test for competence to waive counsel is conceptually and operationally similar to the ‘rational as well as factual understanding’ (Dusky v. United States 1960) test for competence to proceed and should pose no greater difficulty to non-legal evaluators. In both situations, evaluators must be careful to determine that defendants are not simply parroting back information without comprehending it, or using accurate information in a psychotic fashion. They must also avoid equating poor judgment or lack of agreement with the evaluator or the attorney as indicating, per se, lack of competence. If, however, competence requires that defendants have the capacity to represent themselves effectively in court, clinical evaluators may not be capable of providing meaningful opinions to the court, and the involvement of an attorney may be necessary (Gutheil et al. 1987). Evaluators also need to be aware of the strong legal presumption (both theoretical and practical) against waiver of any major constitutional right, especially the right to counsel, and need to be prepared to defend opinions that a defendant is competent to waive counsel against strong judicial biases to the contrary.

COMPETENCE TO WAIVE A JURY TRIAL Legal issues Unlike the other choices available to defendants that are discussed in this section on competence, the Supreme Court has held that there is no constitutionally protected right, even for competent defendants, to waive a jury trial and instead be tried before a judge alone: ‘A defendant’s only constitutional right concerning the method of trial is to an impartial trial by jury. We find no constitutional impediment to conditioning a waiver of this right on the consent of the prosecuting attorney and the trial judge when, if either refuses to consent, the result is simply that

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the defendant is subject to an impartial trial by jury – the very thing the Constitution guarantees to him’ (Singer v. United States 1965). Some states have, however, created statutory rights to waive jury trial in certain circumstances; for example, Alaska provides defendants who plead insanity a unilateral right to waive a jury trial (Alaska Stat. 1982). Just as defendants (or their attorneys) may have their reasons for preferring a judge to a jury, so the other participants may prefer that a jury – representatives of the community – bear the decision-making burden. Particularly in notorious crimes, elected officials (such as judges) often prefer not to have to make the final judgment. Nevertheless, although judges retain ultimate authority over the nature of the fact-finder, they are not prohibited from acceding to a competent defendant’s request for a bench trial, and in fact frequently do, since bench trials save the government considerable time and money. When a defendant seeks to waive the right to a jury trial, however, that waiver must be ‘knowing and intelligent,’ (Johnson v. Zerbst 1938), as with any other waiver of a constitutional right.

Evaluation Since the right is not constitutionally protected, courts have not provided explicit criteria for competence to waive a jury trial; nevertheless, by analogy with comparable evaluations, ‘knowing and intelligent waiver’ should include the defendant’s knowing that he or she has the right to be tried by a jury of his/her peers, that he/she is seeking to give up that right, and that he/she might receive a longer sentence, or be convicted rather than found not guilty, by so doing. Clinical evaluators should also seek to analyze the defendant’s reasons for seeking a bench trial (or avoiding a jury trial) as part of the evaluation of the intelligence of the decision.

COMPETENCE TO WAIVE APPEALS Legal issues The right to challenge a conviction, either through direct appeals through state and federal courts or through habeas corpus proceedings, is an established part of Anglo-American law. Indeed, appeals of capital sentences through the state courts have been required by the majority of state supreme courts (People v. Stanworth 1969; People v. Silagy 1984; Hamblen v. State 1988). As with other fundamental rights, a person has the right, under appropriate circumstances, to waive the right and to forego an appeal. As with other competence issues, the questions concern the circumstances under which the right can be waived. The appeals process was developed not just to protect defendants from convictions obtained improperly but

to preserve the dignity of the law by providing review of trial court decisions for propriety, particularly in sentences of death or long-term imprisonment. In practice, the appeals process is usually invoked only for lengthy sentences, since the duration of the appeals process itself may well exceed the length of shorter sentences. Therefore, when defendants decline to pursue appeals of sentences for which state law provides automatic review, or to withdraw appeals already in progress, the interests of the state are also involved, and the courts are not required to accept the prisoner’s choice. Bonnie (1990) argues that the autonomy of a competent defendant should be respected in these areas, despite the acknowledged interests of the state in the reliable administration of justice, particularly when it involves the death penalty. But courts have generally held that mitigating evidence, either at sentencing or on appeal, may be introduced over the defendant’s objection (People v. Deere 1985; State v. Hightower 1986; Hamblen v. State 1988). The controlling standard for evaluating the validity of waiver of appeal is the Supreme Court’s ruling in Johnson v. Zerbst (1938), that waiver is ‘an intentional relinquishment or abandonment of a known right or privilege,’ which must be ‘knowing and intelligent.’ In Fay v. Noia (1963), the Court addressed jurisdictional issues between state and federal courts, and the problem of implied waiver when a prisoner does not file or raise issues on appeal in a timely fashion. It held, ‘… nor does a state court’s finding of [implied] waiver bar independent determination of the question by the federal courts on habeas, for waiver affecting federal rights is a federal question.’ In Rees v. Payton (1966), Rees had been sentenced to death for murder. After his direct appeals had been denied, he filed a habeas petition in federal court, which was rejected by district and appeals courts. The Supreme Court granted certiorari; while the petition was pending, Rees directed his attorney to withdraw it and to forego any further legal action. The attorney advised the court that he had doubts of his client’s competence and arranged for a psychiatric examination. That examiner concluded that Rees was incompetent to withdraw his appeal; Rees refused to cooperate with state psychiatrists. The Supreme Court ruled that it had jurisdiction to determine whether or not to permit Rees to withdraw his petition; but without a formal determination of his competence, it could arrive at no decision. It remanded the case to the federal district court to hold a competence hearing, asking that court to determine whether Rees had the ‘capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.’ Although the Court has not been reluctant to find competent waiver in capital cases (Gilmore v. Utah 1976; Hammet v. Texas 1980), it has noted that the criteria for competence to waive appeal must be especially demanding,

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given the consequences of accepting it (Rees v. Payton 1966; Rumbaugh v. Procunier 1985).

Evaluation Bonnie (1990) has argued that because of the typical ambivalence of deathrow inmates who express a desire to withdraw appeals (White 1987), and because of the severe depression from which many of them suffer, which might cause them to despair despite legitimate issues for appeal, it is crucial that affective factors be considered equally with cognitive ones, and that clinical evaluators be able to persuade the courts to consider them, given the cognitive emphasis in the case law. It is also important to make evaluations over time, reflecting the tendency of such inmates to change their minds. As with other issues associated with the death penalty, evaluators may be expected to have strong positions on the morality of capital punishment and must be careful to minimize the effects of those views on their opinions.

COMPETENCE TO BE EXECUTED Clinician involvement in the evaluation of competence to be executed and in the treatment of incompetent deathrow inmates is clearly the most controversial subject in current forensic psychiatry. As neither the American Psychiatric Association nor the American Academy of Psychiatry and the Law has taken a definitive stand on the ethical issues involved, and neither is likely to do so, this section takes no position on the morality of participation by clinicians. After a discussion of the legal issues involved, it presents a discussion of the ethical arguments that have been presented in the literature and suggests guidelines for practice for those clinicians who do choose to become involved in the process.

Legal issues Anglo-American jurisprudence has prohibited the execution of incompetent (often called ‘insane’ by lawyers) prisoners for over 300 years. Edward Coke (1680) wrote that the execution of a madman ‘can be no example to others.’ Blackstone (1769) linked the prohibition against executing the incompetent to the possibility that,‘Had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution.’ The U.S. Supreme Court first addressed the issue in 1897 in Nobles v. Georgia (1897); it rejected Nobles’ contention that he was due a jury trial on his allegation of incompetence to be executed, reasoning that such a process would give the prisoner too much control over the process. It held that the exemption of the incompetent

from execution was not a right but a privilege under common law; and it therefore permitted the legislature to prescribe the proper procedure for evaluating inmates’ claims of post-sentencing incompetence. In Phyle v. Duffy (1948), the Court avoided constitutional issues by reverting to state remedies. In Solesbee v. Balcom (1950), the Court rejected Solesbee’s arguments that he was entitled to notice and an adversarial hearing at which he could have counsel, cross-examine witnesses, and present evidence on his alleged incompetence for execution. The Court held that the state procedure did not deny due process, and compared it to reprieve or clemency powers usually vested in the executive branch and therefore free from judicial review. Justice Frankfurter dissented, arguing that a reprieve from execution while incompetent was not a matter of executive discretion but was subject to due process safeguards that should at least provide the opportunity for the inmate to be heard. In Caritativo v. California (1958), the Court upheld California law, which vested sole responsibility for raising the issue of competence for execution in the prison warden. Citing Solesbee, the Court majority agreed that the courts lacked jurisdiction to consider an inmate’s competence or to review a warden’s decision unless the warden initiated a competence inquiry. Frankfurter again dissented, suggesting that some review of the warden’s actions was warranted. Finally, in Ford v. Wainwright (1986), in its first opinion after holding that the Eighth Amendment applied to the states, Justice Marshall’s plurality opinion held that Florida’s procedures, under which the governor had sole decision-making authority on competence determinations, and that inmates had no rights to a hearing or other due process protections, was unconstitutional. The opinion stated, ‘… whether [the prohibition’s] aim be to protect the condemned from fear and pain without the comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, the restriction [against executing an incompetent inmate] finds enforcement in the Eighth Amendment’ (Ford v. Wainwright 1986, p. 410). Marshall’s opinion further held that the Florida procedures violated due process and were deficient in protecting information for federal review; it held that an inmate is entitled to an evidentiary hearing in federal court on his competence. The majority opinion did not address criteria for incompetence, leaving state definitions controlling. Justice Powell’s separate opinion mentioned several theories supporting prohibiting the execution of an incompetent inmate: (i) to preserve the inmate’s ability to make arguments on his own behalf; (ii) execution of an incompetent has no deterrent value; (iii) to permit the inmate to make religious preparations (Ford v. Wainwright 1986). It is therefore clear that states may not execute incompetent inmates, and that the determination of competence requires an adversarial hearing with at least some of the

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due process protections available at the trial stage (such as the right to be present, to present witnesses, and to cross-examine adverse witnesses). The opinions do not explicitly require that the inmate be represented by counsel, or that hearings be judicial in nature. According to state attorneys general (Miller 1988), fewer than half of the thirty-eight states with capital punishment had developed specific procedures for disposition of incompetent inmates. Maryland has passed a statute that provides for automatic commutation of the death sentence of an incompetent inmate to life without parole (Ann. Code Maryland 1987), but so far no other state has followed suit. The right of an inmate found incompetent for execution to refuse treatment designed to restore his competence has not been definitively settled. Few states address the issue explicitly, although a number of attorneys general believe that no such right exists because of the state’s interest in carrying out its sentences (Miller 1988). The Supreme Court was presented with that issue in Perry v. Louisiana (1990). Perry had been found competent for execution, but only as long as he received antipsychotic medication. The trial court therefore ordered the medication continued, involuntarily if necessary. The state courts denied review – the Supreme Court initially granted certiorari, but then vacated it, directing the state courts to consider the issue in light of Washington v. Harper (1990). The Louisiana Supreme Court subsequently prohibited the involuntary administration of medication to restore competence for execution, holding that it violated state constitutional prohibitions against cruel and unusual punishment and protection of privacy (State v. Perry 1992). The South Carolina Supreme Court reached a similar conclusion (Singleton v. State 1992). Evans (1991) points out that the purpose of treatment in the Perry situation is clearly for the benefit of the state, not the prisoner, as required by Harper.

Ethical issues The American Medical Association has adopted the position that physicians may not participate in executions, but has not specified what is meant by ‘participate’ (Current Opinions 1986). Some authors have argued that any involvement in capital cases, including pretrial evaluations, is unethical because it legitimizes the death penalty (Foot 1990). Others have countered that if conscientious clinicians refuse to participate, it will abandon the field to those less qualified, and will ultimately harm the prisoners (Brodsky 1986; Ward 1986; Bonnie 1990; Foot 1990). The strong division among practitioners was demonstrated by a survey of forensic psychiatrists in which 39 per cent of respondents felt that treating inmates to restore their competence for execution was ethical (Weinstock 1987). While the American Psychiatric Association has not taken a position on the issues involved, the Section of

Psychiatry and Behavioral Sciences of the National Medical Association has issued a position statement that both evaluation and treatment are ethical (National Medical Association 1986). That position is supported by Brodsky (1986), Ward (1986), Stone (1984), and Wallace (1987). While Resnick (1987) argues that no moral distinctions can be made among participation at various stages of a capital prosecution, some authors have attempted to do so. In a state that at the time did not have capital punishment, the Council of the Medical Society of the State of New York (Rosner et al. 1991) issued a policy statement interpreting the AMA’s prohibition against physician participation in an execution to bar any physician involvement in evaluation for capital sentencing or for competence for execution. It is less clear whether treatment of incompetent inmates is permissible; the statement holds that physicians may ‘relieve acute suffering of a convicted prisoner while he is awaiting execution’ (Rosner et al. 1991, at 18). Radelet and Barnard (1986) and Sargent (1987) also draw the line at the evaluation of competence for execution or the treatment of incompetent inmates. Foot (1990) and Appelbaum (1990) would permit evaluations but not treatment. Appelbaum argues that evaluation does not involve a doctor–patient relationship, while treatment inevitably does. A number of authors (including several who have been directly faced with the responsibility of treating incompetent inmates) argue that if clinicians are to provide treatment, it is essential that treatment be totally separated from assessment (Radelet and Barnard 1986; Ward 1986; Heilbrun and McClaren 1988; Brodsky undated). Several authors recognize the moral dilemma faced by those opposed to capital punishment and suggest that such clinicians be granted a ‘conscientious objector’ status with respect to evaluation and treatment of incompetent deathrow inmates (Bonnie 1990; Brodsky undated; Salguero 1986; see Note 1986). Brodsky (1986) suggests the creation of a classification of ‘death-qualified’ clinicians, comparable to death-qualified jurors. Such clinicians would have to be neither unalterably opposed to, nor strongly in favor of, the death penalty. He acknowledges the problems inherent in such classifications – that (as with death-qualified juries) such clinicians are much more likely to favor than to oppose capital punishment, and therefore are more likely to find inmates competent for execution.

Evaluation Brodsky (undated) discusses three problems with evaluations of competence for execution: 1 Reliability: There are basic problems with diagnostic assessments in general. They are inherently subjective, and when combined with the vague criteria for such

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competence and the emotional context of capital punishment, unreliability is inevitable. 2 Frame of reference: Although no checklists or specific tests have to date been developed for evaluation of competence for execution, it is reasonable to use the model of competence to stand trial; the criteria are comparable, and the professions have considerable experience with such evaluations. 3 The differential impact of findings of competence and incompetence: Even clinicians without strong opposition to capital punishment as a concept may find it very difficult to render opinions that would lead directly to the execution of the evaluated inmate. As discussed above, the Supreme Court has discussed, but not made explicit, criteria for competence for execution. It appears generally clear that competence at least requires that the inmate know he has been sentenced to death and why (Florida Stat. 1935). Some commentators would also require the capacity to assist counsel in ongoing appeals, and several states have made that requirement explicit statutorily (Mo. Rev. Stat. 1978; Utah Code 1982; Miss. Code 1985). Others would require the capacity to make peace within whatever religious system in which the inmate believes. Based on their practical experience, Heilbrun and McClaren (1988) provide a comprehensive outline of procedures to be followed by evaluators:

• • • • • •

Make sure to understand the jurisdiction’s legal criteria. Make sure that the inmate understands the purpose and potential consequences of the evaluation. Attempt to secure minimally adequate surroundings for the evaluation. Obtain as much independent information as possible. Use established instruments, such as the Minnesota Multiphasic Personality Inventory (MMPI) and Wechsler Adult Intelligence Scale (WAIS), to bolster reliability and validity. Document the data base and reasoning for the opinion, to facilitate legal review.

Treatment to competence for execution Perhaps the majority of clinicians would choose not to provide such treatment (which responsibility would generally fall on correctional or state hospital clinicians, many of whom would not consider themselves ‘forensicists’ in Appelbaum’s typology and would decline to use treatment to facilitate an execution). Without any official ethical prohibition against the practice, however, state-employed clinicians might find themselves in trouble with their employers. It should be noted that the Louisiana (State v. Perry 1992) and South Carolina (Singleton v. State 1992) Supreme Courts cited the integrity of the medical profession as another reason to prohibit forced medication to restore competence for execution.

For clinicians who do elect to provide treatment, the issue of informed consent becomes paramount, even if not legally required (Ward 1986; Miller 1988; Brodsky 1990). There are in fact some inmates who, while competent, would prefer to be executed rather than spend the rest of their lives in prison, and clinicians should not place their own beliefs above those of their patients (Ward 1986; Miller 1988).

COMPETENCE TO TESTIFY The issue of capacity to testify in court may be raised with respect to both defendants and factual witnesses. In the case of defendants, potential issues of capacity to testify are usually handled as part of the general construct of competence to stand trial. Challenges to the capacities of factual witnesses are raised most often in the case of child witnesses; as such they are discussed in detail in Part Five. Mental health professionals may also occasionally be called on to provide information to courts about the capacities of adult factual witnesses, though most courts have held that in ordinary circumstances the fact finder is capable of determining the credibility of witnesses without the opinions of experts (Slovenko 1987). A Minnesota appeals court ruled that the testimony of a psychologist concerning an automobile driver’s tendency to admit blame regardless of fault based on a history of childhood physical and sexual abuse was inadmissible. The court held that the jury, through its own knowledge and experience, was capable of assessing the credibility of a witness (Scott v. Johnson 1985). In addition, there is the very real risk that psychiatric examination of witnesses, particularly victims, may serve to intimidate and dissuade them from reporting crimes (Goldstein 1980).

Legal issues Even where expertise would seem to be relevant, it is often barred. In Massachusetts v. Laguer (1991), defense counsel chose not to introduce expert testimony to attack the credibility of the victim, who suffered from schizophrenia. The defendant argued on appeal that such testimony could have informed the jury concerning cognitive deficits common in schizophrenia that would be relevant to the victim’s reliability as a witness. The state high court held that such testimony was ‘at its best speculative,’ and affirmed the conviction. On the other hand, expertise is sometimes found to be probative in specific cases. In a robbery and burglary case, the seventy-two-year-old victim’s personal physician testified that she needed medication for ‘mild mental deterioration’ and ‘memory lapses.’ A defense psychiatrist diagnosed the victim as suffering from ‘Amnesia Confabulatory Syndrome’, characterized by rambling, confusion,

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and ‘a tendency to fabricate forgotten events by filling in the details through some sort of suggestion.’ The jury convicted the defendant; the trial court lacked the authority to set aside the verdict, but noted that it went against the weight of the evidence. The appeals court (which did have the authority) set aside the verdict, citing the expert’s testimony and numerous observations from the trial record indicating the victim’s confusion (New York v. Roberts 1991). Courts have reversed convictions when psychiatric testimony on a witness’s credibility was barred (People v. Rensing 1964; People v. Parks 1976). As with other types of capacities in the criminal justice system, courts are unlikely to craft per se rules concerning witness’s reliability based on their membership in a particular class of persons. As an example, the Georgia Court of Appeals recently affirmed a trial court’s decision to permit a witness with an IQ of 40 to testify (Cook v. Georgia 1991). The appellate court held that the record indicated that the trial judge’s examination of the witness showed that she could conceptualize the truth, and that she could distinguish between right and wrong answers in a series of questions administered by the judge. Other courts have affirmed verdicts in cases in which testimony from mentally retarded witnesses (Bussey v. Kentucky 1990; New York v. Berardicurti 1990; South Dakota v. Warren 1990; Wagner v. Indiana 1990) was essential. Courts are more likely to permit expert testimony on a general topic where significant expertise exists than on the capacity of a particular defendant. Two major areas where such expertise exists are eyewitness testimony and hypnotically enhanced testimony.

EYEWITNESS TESTIMONY There is a significant body of experimental research on the reliability and validity of eyewitness testimony (Hilgard and Loftus 1979). The data indicate that free recall is consistently more accurate but less complete than information obtained through structured interviews. The wording of questions can significantly affect responses; what would be called leading questions in court significantly distort answers. For example, asking ‘Did you see the car?’ produced over three times more positive responses than ‘Did you see a car?’ when no car had been present in the videotape seen by the subjects. Based on the research data, it appears that the most effective method to use in interrogating eyewitnesses is to ask them first for free recall, and then to ask more specific (but as non-leading as possible) questions, documenting the information obtained at each part of the interview.

HYPNOTICALLY ENHANCED TESTIMONY Hypnosis can be an effective technique for recovering memories lost to psychogenic amnesia, but its use presents significant problems in the forensic context. The extensive research literature indicates that the demand characteristics of the hypnotic situation are likely to lead

to confabulation in suggestible subjects, and that ‘memories’ so established are difficult to challenge in court (Miller and Stava 1997). For these reasons, some courts have barred hypnotically enhanced testimony for years (People v. Ebanks 1897). As research provided greater understanding and acceptance of hypnosis as a clinical tool, courts began to hold that hypnosis affects the credibility, but not the admissibility, of witness testimony (Harding v. State 1968; United States v. Miller 1969; State v. McQueen 1978; Clarke v. State 1979; Key v. State 1983; People v. Boudin 1983). In an affidavit submitted to the U.S. Supreme Court, Orne (Quaglino v. California 1978) recommended five criteria for the admissibility of hypnotically enhanced testimony:

• • • • •

That the hypnosis be performed by a specially trained psychiatrist or psychologist who is not otherwise involved in the case. That only the bare minimum of facts should be presented in writing to the clinician to document the prehypnosis database. That the subject should be asked for free recall before hypnosis is attempted. That a videotape of the entire session be made. That no one except the clinician and the subject should be in the room during the session(s).

These criteria were adopted by several other courts (State v. Hurd 1981; State v. Armstrong 1983). Subsequently, however, difficulties in implementing these procedures have caused Orne to call for absolute rejection of hypnotically enhanced testimony (Orne 1983). Reiser (1986), a psychologist who established the hypnosis training program for the Los Angeles Police Department, has argued that confabulation is rare and that the accuracy of recall after hypnosis is 80 per cent. Spiegel and Spiegel (1984) and Beahrs (1989) take an intermediate position, acknowledging the problems with hypnosis but arguing that it does product sufficiently accurate information so that it should be admissible. Currently, courts have taken differing positions on the admissibility of hypnotically enhanced testimony. Courts in Illinois (People v. Harper 1969), Virginia (Greenfield v. Commonwealth 1974), California (People v. Shirley 1982), Florida (Bundy v. State 1986), and the military courts martial system (United States v. Andrews 1976) continue to bar all testimony from witnesses who have been hypnotized. At the other extreme, courts in Wyoming (Chapman v. State 1982), Louisiana (State v. Wren 1983), North Dakota (State v. Brown 1983), and the Ninth Circuit (United States v. Awkward 1979) have held that testimony from witnesses who have been hypnotized may not be barred for that reason. Many courts have adopted intermediate positions. Those in Wisconsin (State v. Armstrong 1983), Idaho (State v. Iwakiri 1984), Colorado (People v. Romero 1987), and the federal Fourth Circuit (McQueen v. Garrison 1987) and Fifth Circuit (Wicker v. McCotter 1986) have

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held that the court must first determine if the proposed testimony is reliable before it may be admitted. Courts in Minnesota (State v. Koehler 1981), Arizona (State ex rel. Collins v. Superior Court 1982), Nebraska (State v. Patterson 1983), New York (People v. Hughes 1983), North Carolina (State v. Peoples 1984), Washington (State v. Martin 1984; Michigan (State v. Nixon 1984), Missouri (Aisbach v. Bader 1985), Massachusetts (Commonwealth v. Kater 1985), Hawaii (State v. Moreno 1985), Kansas (State v. Haislip 1985), Georgia (Walraven v. State 1985), Alaska (Contreras v. State 1986), Delaware (State ex rel. Elliotte v. State 1986), and Illinois (People v. Wilson 1987) have held that witnesses who have been hypnotized may testify only to their recollections prior to the hypnosis. The Supreme Court has not ruled definitively on the admissibility of testimony from hypnotized witnesses, except to hold that to bar the testimony of a defendant who has been hypnotized would violate the defendant’s rights under the Fifth (self-incrimination), Sixth (compulsory process), and Fourteenth (due process) amendments (Rock v. Arkansas 1987).

are questioned and researched less frequently are discussed.

Evaluation

Competence to be evaluated

Psychiatrists who are asked to offer opinions on the capacities of particular witnesses should be aware of the ethical requirement that diagnoses not be made unless the psychiatrist has personally examined the witness, at least in the case of prominent national figures (American Psychiatric Association 1998). It is not clear whether diagnostic opinions may be ethically proffered without a personal examination if sufficient information (medical records, reports by those who have examined the defendant, etc.) is available. Opinions on general topics, such as the reliability or validity of eyewitness testimony or hypnotically enhanced testimony, may of course be given without examining witnesses. Forensic experts should be aware of the numerous research data on the reliability and validity of eyewitness testimony (with and without hypnotic enhancement), and should be able to utilize those data in forming opinions for the court. Evaluators who are retained to hypnotize witnesses should be aware of the jurisdiction’s rules on the admissibility (if any) of hypnotically enhanced testimony, and should make sure that they conform to those rules. If such testimony is admissible, but there are no legal rules governing the process, clinicians would be well advised to follow Orne’s rules, as they appear to have gained the most support, both clinically and legally.

Since a variety of issues related to criminal prosecution involve professional evaluations of defendants (e.g., competence to stand trial, insanity, sentencing, release), questions may arise concerning the capacity of the defendant to participate meaningfully in the evaluation itself, including the capacity to consent to those evaluations that require such consent in a particular jurisdiction. As there are no statutory or case law definitions of competence to be evaluated, and the potential for an infinite regress is obvious (Miller and Musholt 1988), clinicians will have to utilize concepts from informed consent and general competence law to guide their evaluations.

MISCELLANEOUS COMPETENCIES In addition to the competencies previously discussed, defendants’ capacities may be questioned at any stage of the proceedings. In this section, competencies that

Competence to waive extradition Defendants may be arrested at the request of law enforcement officers in other jurisdictions because of outstanding criminal charges in those jurisdictions. Alternately, defendants arrested for a crime in one jurisdiction may have more serious charges in another, resulting in a request for extradition from the latter. Defendants have the legal right to challenge such transfers and are entitled to a formal hearing if they do so. In order to participate competently in such hearings (and, indeed, to initiate the hearing by challenging the extradition proceedings themselves), defendants must be aware that charges are pending in the other jurisdiction(s), the nature of the charges and possible outcome of prosecution, the fact that extradition may be challenged, and the holding jurisdiction’s criteria for granting extradition.

Competence to be sentenced Competence is not a fixed characteristic of defendants but can vary according to individual predispositions and to the stresses faced during a criminal prosecution. Therefore, a determination that a defendant is competent to plead guilty or to stand trial does not foreclose changes in competence during those procedures (Drope v. Missouri 1975). It is possible that a defendant will competently enter a guilty plea, or competently go through a trial, but become disturbed after conviction but before sentence is passed. There is little in statutes or case law to define competence to be sentenced, a procedure that requires relatively little participation by the defendant. Since the issue is raised infrequently, attorneys and judges have little practical experience in dealing with it. Evaluators will therefore have to operationalize criteria for evaluation based on the particulars of the individual case.

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As usual with legal issues, there are two major factors to be considered. First, there are the rights of defendants and their capacities to exercise those rights. The major process that occurs in most cases after conviction but before sentencing is the preparation of a presentence report, usually by the probation and parole department. Agents interview the defendant and other relevant persons, and review past records concerning the defendant. The report is then presented to the trial judge to aid in the determination of sentence; if the defendant is incarcerated, it is also available to the parole board to assist it in making release decision. It is therefore potentially a very important document in jurisdictions with flexible sentencing guidelines. In order for defendants to minimize the adverse consequences of conviction, they must be able to participate in the preparation of the document by providing information to the agent compiling it; and they must also be able to raise appropriate objections to inaccurate information contained in it and to the agent’s conclusions and recommendations based on that information. The other major factor is the dignity of the law. Even if the facts of the case are straightforward and the presentence report is accurate and fair, defendants must be aware that they have been convicted of a crime, the reasons for the conviction, the range of penalties for that crime (if such a range exists), and why the court is justified in imposing a sentence upon them. Without such understanding, it is unseemly for the court to impose sentence. In practice, requests for evaluation of competence to be sentenced arise chiefly when a defendant’s behavior changes significantly after trial, and he or she suddenly appears mentally or behaviorally disordered. Threatened or attempted suicide is a frequent trigger for raising the question of competence. The attorney raising the question is usually more concerned with the client’s mental or emotional health than with the specific legal capacities involved; raising the issue of competence is often the most effective method available to direct clinical attention to those perceived problems. The problem thus often boils down to providing appropriate clinical treatment to a disordered individual, which will both effect a remission in the mental disorder and satisfy the concerns of the legal system that were expressed in terms of competence.

Competence to face revocation of probation or parole Although probation and parole may be revoked without the level of formal hearing required to secure a conviction originally, persons facing such restrictions on their liberty retain due process rights to require the state to prove that they have violated the conditions under which they were released. To take advantage of these rights, they must be aware of the conditions of their probation or parole, that they are alleged to have violated these conditions,

and they must be able to assist their attorneys in preparing a defense to the allegations.

COMPETENCE IN THE JUVENILE JUSTICE SYSTEM Forensic issues in general involving minors are addressed in greater detail in Part Five; specific aspects of mental health evaluations in the criminal justice system applicable to juveniles are summarized in this section. The subject is of increasing importance, as the number of serious crimes committed by juveniles continues to increase, and these crimes are being committed by ever younger juveniles. Courts are trying juveniles as adults with increasing frequency and are even passing death sentences (Penry v. Lynaugh 1989). Until the nineteenth century, the criminal law made few formal distinctions based on age, except for the very youngest children. From its inception, the juvenile justice system was conceived of as rehabilitative, rather than punitive or deterrent. Attorneys appointed to represent juveniles were often guardians ad litem, who did what they felt was best for their clients, rather than adversarial advocates for their clients’ wishes. Proceedings were informal, and juveniles were not provided with many of the due process protections afforded adult defendants – a fact noted explicitly by the Supreme Court in Kent v. United States (1966) in upholding the District of Columbia circuit court’s statutory right to waive a juvenile defendant into adult court after a ‘full investigation,’ but without an adversarial hearing. Shortly after Kent, however, the Court’s thinking underwent a significant change. Critics were increasingly attacking the whole parens patriae concept of state action when it involved loss of liberty for the subject of the state’s beneficence. The Court responded to both the libertarian criticisms and to mounting evidence that many of the supposed treatment facilities were warehouses at best, at least as bad as jails, and prisons at worst. In the landmark case In re Gault (1967), the Court rejected the rehabilitation–punishment distinction, held that the due process clause of the Fourteenth Amendment applied to juveniles, and that juveniles facing criminal charges in juvenile court should be afforded the same procedural protections as were available in adult courts. Three years later, in In re Winship (1970), the Court extended the procedural rights of juvenile defendants to include the right to a jury trial and a requirement of proof beyond a reasonable doubt for conviction. Although the Court backed away somewhat by reversing itself the next year and holding that the right to a jury trial was not constitutionally required (McKeiver v. Pennsylvania 1971), the principle that potential loss of liberty warranted significant procedural protections had been established.

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These changes have impacted on issues of competence in juvenile court. Many courts have adopted an adversarial model parallel to adult criminal procedure (McMillian and McMurtry 1969–70; Institute of Judicial Administration 1980). But many juvenile courts have persisted in using a ‘best interests’ model and have not implemented the Gault reforms in practice (Kay and Segal 1972–73). In some courts, defense attorneys are still expected to report to the judge any admissions of guilt made by their clients (Ferster, Courtless, and Snethen 1970–71).

Competence to stand trial The major problems in discussing competence to stand trial in juvenile court are the major variations in practice among jurisdictions, and even from court to court within jurisdictions; as discussed above, that practice varies from a relatively strict due process model comparable to adult court to persistent parens patriae models in which the judge and attorney for the juvenile make all the important decisions. Only eighteen states, the District of Columbia, and the federal courts explicitly bar proceedings against incompetent juveniles; in those jurisdictions, the Dusky v. United States (1960) criteria are generally used (Grisso, Miller, and Sales 1987). Many of the other jurisdictions utilize diversion to the mental health system for apparently incompetent juveniles; but twelve states bar psychiatric evaluation prior to adjudication, reasoning that to do so would introduce legally irrelevant material into the criminal proceedings. Grisso and colleagues (1987) list four possible reasons to bar prosecution of incompetent juveniles: 1 Constitutional prohibitions. 2 Protection from stress or duress; several courts have held that the vulnerability of juveniles requires additional protection (Haley v. Ohio 1948; Gallegos v. Colorado 1962; Briones v. Juvenile Court of Denver 1975). 3 Diversion into the mental health system; the authors argue that the need for diversion with juveniles is no greater than with adults, so that special diversion procedures are not only unnecessary but have a great potential for misuse. In addition, there are significant jurisdictional and intersystem problems with juveniles because transfer procedures are often not explicit in the statutes (In re Two Minor Children 1979). 4 The need to present an adequate defense. This reason assumes adversarial representation and active participation by the juvenile, which is clearly not true in all jurisdictions. Existing case law has generally not distinguished competence criteria for juveniles from those for adults, although dicta in some decisions suggest that factors such as age, IQ (as a reflection of the juvenile’s functional age) (State

in Interest of Causey 1979), school achievement, mental disorder or emotional disturbance, prior court experience, and demeanor during contacts with counsel may be relevant to competence. Given the lack of uniformity among courts as to how active juveniles are expected to be in their defenses (Grisso, Miller, and Sales 1987), practical application of the Dusky criteria is far from uniform. Stein (1983) has presented a list of specific capacities to consider when evaluating juvenile competence, based on the author’s experience in juvenile court, though this has not been validated. Because of the wide variability among courts as to the expectations of the juvenile, the weight given to the various factors would be expected to vary significantly. All jurisdictions mandate inpatient commitment of incompetent juveniles, as is essentially the case with adults. In half of those jurisdictions, the juvenile court retains jurisdiction, whereas in the other half, a determination of incompetence results in automatic dismissal of the charges (Grisso, Miller, and Sales 1987). Barnum et al. (1989) report on the characteristics of juveniles referred for psychiatric evaluation at a large urban juvenile court clinic. Because of the unusually high level of resources at their clinic, judges feel free to refer anyone they feel should be evaluated; in addition, state law requires evaluation of all juveniles being considered for waiver to adult court. As a result, 1000 of the juvenile court’s annual case load of 1500 were referred. The authors compared eighty referred juveniles with sixty who were not referred, and reported that referral was more likely for younger children, those who had been in special education, those whose fathers fell into the lowest socioeconomic class, those with previous referrals to welfare agencies, those with longer previous arrest records, and those with a history of being abused. There was no significant difference between the groups on the nature of the criminal charge. The authors concluded that since few of the variables correlated with referral are associated with treatment response, it is unlikely that treatment was the major reason for referral. They suggest that a high risk for recidivism was a more likely motivating factor.

Waiver into adult court The two major criteria presented by Barnum et al. (1989) for waiver into adult court in their jurisdiction, high predicted rate of recidivism and unresponsiveness to treatment, are also the major criteria in most jurisdictions (Barnum 1987). It appears that a juvenile’s capacity to participate in the waiver proceedings themselves has received little attention from the courts. In his article on evaluation of juveniles facing waiver, Barnum (1987) concentrates on the determination of treatability, arguing that clinicians are not experts in predicting recidivism. He points out that ‘treatment’ for the

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juvenile justice system includes special education, foster care, and work programs in addition to traditional mental health services. Evaluators therefore need to be familiar with a variety of social and educational support systems in their communities. They must also consider the effects of incarceration itself on the juvenile’s future behavior.

Competence to waive Miranda rights After Gault, courts were faced with the problem of ensuring that juveniles could exercise their new due process rights (Melton 1981). Because younger juveniles have not developed adult cognitive skills, their capacities to make valid decisions about waiving counsel and making confessions is questionable. Studies of cognitive capacity (Inhelder and Piaget 1968; Niemark and Lewis 1968) demonstrate that abstract reasoning, inductive and deductive logical processes, and cognitive complexity begin to take on the form characteristic of adult thinking between ages eleven and thirteen, but there is considerable variability from one child to another that must be taken into consideration in the legal context. Grisso and colleagues (Grisso and Pomicter 1977; Grisso 1980; Grisso and Manoogian 1980; Grisso 1981) have carried out the major studies in the area of competence to waive Miranda rights. In a series of studies of juveniles in the St. Louis area, Grisso’s group investigated the frequency of police interrogation of juveniles, parents’ behavior during interrogation of their children and their attitudes toward their children’s due process rights, differences between juveniles’ and adults’ comprehension of the Miranda warnings and comprehension of the functions of interrogation and representation by counsel, and juveniles’ reasoning about the effects of waiving their Miranda rights (Grisso 1981). Grisso reported that police interrogation of juveniles charged with felonies occurred in over 60 per cent of cases; juveniles usually responded to the questioning. Juveniles under age fifteen virtually never invoked their rights; those aged fifteen and sixteen did so in only 12–14 per cent of cases. These rates were substantially lower than in studies of adult waiver. Juveniles were typically accompanied by their parents, but were not represented by counsel, during police interrogation. Parents were not found to be effective advocates in these situations; in fact, in the majority of cases they appeared to believe that their children should confess. Juveniles under age fifteen, and those aged fifteen and sixteen with IQs below 80, were significantly more likely to be incompetent to understand their Miranda rights than a comparable adult sample. One-third to one-half of the fifteen- and sixteen-year-olds with IQs above 80 were also incompetent, but this is comparable with the adult controls in the study. Comparable results were obtained by Ferguson and Douglas (1970). Contrary to the beliefs of many courts (Fare v. Michael C. 1979), prior experience

with the juvenile justice system was not correlated with greater comprehension. Based on his research, Grisso (1981) has recommended that confessions obtained from juveniles under age fifteen be excluded unless counsel was present during the interview. Courts have not yet, however, made significant use of psychological and developmental research on juveniles in their decisions, focusing instead on police conduct rather than on the individual capacities of juvenile suspects. Given the lower cognitive capacities of juveniles, it is even more important to consider such capacities in determining the admissibility of confessions. Courts have examined, but generally rejected, per se exclusionary rules. Thus, the California Supreme court rejected a per se rule requiring parental consent for juvenile waivers in People v. Lara (1967), and other courts have followed this lead (State v. Melanson 1972; Theriault v. State 1974). Given the lack of advocacy demonstrated by parents in Grisso’s study, parental involvement does not seem to be of much use in any event. A federal court of appeals in West v. United States (1968) expanded on the Lara decision, holding that courts should consider the juvenile’s age, intelligence, and previous court experience as well as the circumstances of the interrogation, such as its length and the care with which due process was applied, in determining the validity of waiver of Miranda rights. The Supreme Court also provided a list of factors to be considered in waiver determinations: ‘The totality approach permits – indeed it mandates – inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile’s age, experience, education, background, and intelligence, and whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights’ (Fare v. Michael C. 1979, at 725). Several courts have examined the possibility of a per se exclusion of confessions from juveniles, and have rejected the concept (Cotton v. United States 1971; United States v. Ramsey 1973; In the Interest of Thompson 1976). Another court refused to base exclusion solely on the IQ of the juvenile (In the Interest of Stiff 1975). Given the dramatic shift away from consideration of the characteristics of defendants in adult waiver cases (Colorado v. Connelly 1986), it is not clear that the Supreme Court would continue to hold to this position if presented with a case today. These decisions came before the availability of research such as Grisso’s; but there have not been subsequent decisions that have cited such research in refining criteria.

Attorneys’ right to be present during psychiatric examinations Defense attorneys have frequently claimed that they have the right to be present at psychiatric examinations of

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their clients, arguing that it is a critical stage of the prosecution. Federal courts have uniformly rejected such claims; in United States v. Albright (1968), the Fourth Circuit held that there is no constitutional right to have an attorney present during a court-ordered psychiatric examination for sanity, since that might defeat the purpose of the examination. The same rationale was given by the Second Circuit (United States v. Baird 1969); the Seventh Circuit (United States v. Bohle 1971); and the Fifth Circuit (United States v. Cohen 1976), The courts in Baird and Cohen also held that a psychiatric examination is not a critical stage of the proceedings. The Supreme Court has not directly addressed the issue, although it let decisions in Cohen and Baird stand by denying certiorari. In Buchanan v. Kentucky (1987) Buchanan argued that exclusion of his counsel from the psychiatric examination requested by both prosecution and defense violated his Sixth Amendment rights. The Court affirmed the conviction without even addressing the issue. Reported state court decisions are fewer, but are consistent with the federal cases. In People v. Galimanis (1989) the defendant has no constitutional right to counsel during a psychiatric examination, citing Cohen.

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Evans v. Kropp, 254 F. Supp. 218 (1966). Everington C. 1990. The Competence Assessment for Standing Trial for Defendants with Mental Retardation (CAST-MR): a validation study. Criminal Justice and Behavior 17, 147–68. Fare v. Michael C., 442 U.S. 707 (1979), rehearing denied, 444 U.S. 887 (1979). Faretta v. California, 422 U.S. 806 (1975). Fay v. Noia, 372 U.S. 391, 439 (1963). Ferguson, A., Douglas, A. 1970. A study of juvenile waivers. San Diego Law Review 7, 39–54. Ferguson, G.A. 1972–1973. The role of the judge in plea bargaining. Criminal Law Quarterly 15, 26–51. Forthoffer v. Swope, 104 F.2d 707 (9th Cir. 1939). Ferster, E., Courtless, T., Snethen, E. 1970–1971. The juvenile justice system: in search of the role of counsel. Fordham Law Review 39, 375–412. Fikes v. Alabama, 352 U.S. 191 (1957). Florida Stat. Sec. 922.07 (1935). Foot, P. 1990: Ethics and the death penalty: participation by forensic psychiatrists in capital trials. In Rosner, R., Weinstock, R. (eds), Ethical Practice in Psychiatry and the Law. New York: Plenum Press, 207–17. Ford v. Wainwright, 477 U.S. 399 (1986). Gallagher, K. 1974. Judicial participation in plea bargaining: a search for new standards. Harvard Civil Rights–Civil Liberties Law Review 9, 29–51. Gallegos v. Colorado, 370 U.S. 49 (1962). Gideon v. Wainwright, 372 U.S. 335 (1963). Gilmore v. Utah, 429 U.S. 1012,1015–1016 nn. 4–5 (1976). Gobert, J.J. 1973. Competency to stand trial: a pre- and post-Jackson analysis. Tennessee Law Review 40, 659–88. Godinez v. Moran, 113 S.Ct. 2680 (1993). Golding, S.L., Roesch, R. 1984. Assessment and conceptualization of competency to stand trial: preliminary data on the Interdisciplinary Fitness Interview. Law and Human Behavior 8, 321–34. Goldstein, R.L. 1980. Credibility and incredibility: the psychiatric examination of the complaining witness. American Journal of Psychiatry 137, 1238–40. Grano, J.D. 1970. The right to counsel: collateral issues affecting due process. Minnesota Law Review 54, 1175–264. Greenfield v. Commonwealth, 204 S.E.2d 415 (Va. 1974). Grisso, T. 1980. Juveniles’ capacities to waive Miranda rights: an empirical analysis. California Law Review 68, 1134–66. Grisso, T. 1981: Juveniles’ Waiver of Rights: Legal and Psychological Competence. New York: Plenum Press. Grisso, T. 1986: Evaluating Competencies: Forensic Assessments and Instruments. New York: Plenum Press. Grisso, T., Manoogian, S. 1980: Juveniles’ comprehension of Miranda warnings. In Lipsitt, P.D., Sales, B.D. (eds), New Directions in Psycholegal Research. New York: Van Nostrand Reinhold, 127–40.

Criminal competence 209 Grisso, T., Pomicter, C. 1977. Interrogation of juveniles: an empirical study of procedures, safeguards, and rights waiver. Law and Human Behavior 1, 321–42. Grisso, T., Miller, M.O., Sales, B. 1987. Competency to stand trial in juvenile court. International Journal of Law and Psychiatry 10, 1–20. Group for the Advancement of Psychiatry. 1974: Misuse of Psychiatry in the Criminal Courts. New York: Group for the Advancement of Psychiatry, Report No. 89. Gutheil, T.G., Bursztajn, H., Kaplan, A.N., et al. 1987. Participation in competency assessment and treatment decisions: the role of a psychiatrist-attorney team. Mental and Physical Disability Law Reporter 11, 466–99. Haley v. Ohio, 332 U.S. 596 (1948). Halleck, S.L., Hoge, S.K., Miller, R.D., et al. 1992: Report of the American Psychiatric Association Task Force on the Use and Misuse of Psychiatric Diagnoses in Court. Task Force Report 32, American Psychiatric Association. Washington, DC: American Psychiatric Press. Halpern, A.L. 1975. Use and misuse of psychiatry in competency examinations of criminal defendants. Psychiatric Annals 5, 123–50. Hamblen v. State, 527 So. 2d 800 (Fla. 1988). Hammett v. Texas, 448 U.S. 725, 726 (1980). Harding v. State, 246 A.2d 302 (Md. 1968); cert. denied, 395 U.S. 949 (1968). Heberling, J.L. 1972. Judicial review of the guilty plea. Lincoln Law Review 7, 137–209. Heilbrun, K.S., McClaren, H.A. 1988. Assessment of competency for execution? A guide for mental health professionals. Bulletin of the American Academy of Psychiatry and the Law 16, 205–16. Heller, M.S., Traylor, W.H., Ehrlich, S.M., et al. 1981. Intelligence, psychosis and competency to stand trial. Bulletin of the American Academy of Psychiatry and the Law 9, 267–74. Herron, D., Zonana, H., Crane, L. 1983. Competence to stand trial in Connecticut. Bulletin of the American Academy of Psychiatry and the Law 11, 261–71. Hilgard, E.R., Loftus, E.F. 1979. Effective interrogation of the eyewitness. International Journal of Clinical and Experimental Hypnosis 27, 342–57. Hopt. v. Utah, 110 U.S. 574, 589 (1884). Illinois v. Perkins, 496 U.S. 292 (1990). Inhelder, B., Piaget, J. 1968: The Growth of Logical Thinking. New York: Basic Books. In re Gault, 387 U.S. 1 (1967). In re Two Minor Children, 592 P.2d 166 (Nev. 1979). In re Williams, 165 F. Supp. 879, 881 (D.D.C. 1958). In re Winship, 397 U.S. 358 (1970). Institute of Judicial Administration-American Bar Association. 1980: Juvenile Justice Standards. Cambridge MA: Ballinger Press. In the Interest of Stiff, 336 N.E.2d 619 (1975). In the Interest of Thompson, 241 N.W.2d 2, 5 (1976). Jackson v. Indiana, 406 U.S. 715, 737-38 (1972). Johnson v. State, 395 N.W.2d 176 (1986).

Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Jones v. United States, 384 F.2d 916 (9th Cir. 1967). Judiciary Act of Sept. 24, 1789, Chapter 20, Sec. 35, 1 Stat. 73, 92 [codified at 28 U.S.C. Par. 1654 (1970)]. Kay, R., Segal, D. 1972–1973. The role of the attorney in juvenile court proceedings: A non-polar approach. Georgetown Law Journal 61, 1401–24. Kent v. United States, 383 U.S. 541 (1966). Key v. State, 480 So. 2d 488 (Fla. 1983). Koson, D., Robey, A. 1973. Amnesia and competency to stand trial. American Journal of Psychiatry 130, 588–91. Laboratory of Community Psychiatry. 1973: Competency to Stand Trial and Mental Illness. New York: Jason Aronson. Lamb, H.R., Grant, R.W. 1982. The mentally ill in an urban county jail. Archives of General Psychiatry 39, 17–22. Lipsitt, P.D., Lelos, D., McGarry, A.L. 1971. Competency for trial: a screening instrument. American Journal of Psychiatry 128, 105–9. Machibroda v. United States, 368 U.S. 487 (1962). Malloy v. Hogan, 378 U.S. 1 (1964). Massachusetts v. Laguer, 571 N.E. 2d 371 (Mass. Sup. Jud. Ct. 1991). May v. State, 398 So. 2d 1331 (Miss. 1981). McCarthy v. United States, 394 U.S. 459 (1969). McClure, R.W. 1971. Plea bargaining: the judicial merrygo-round. Duquesne Law Review 10, 253–69. McKastle v. Wiggins, 465 U.S. 168 (1984). McKeiver v. Pennsylvania, 403 U.S. 528 (1971). McMillian, T., McMurtry, D. 1969–1970. The role of the defense lawyer in juvenile court: advocate or social worker? St. Louis University Law Review 14, 561–603. McQueen v. Garrison, 814 F.2d 951 (4th Cir. 1987). Medina v. California, 505 U.S. 437 (1992). Melton, G.B. 1981. Making room for psychology in Miranda doctrine: juveniles’ waiver of rights. Law and Human Behavior 7, 67–85. Melton, G.B., Weithorn, L., Slobogin, C. 1985: Community Mental Health Centers and the Courts: An Evaluation of Community-Based Forensic Services. Charlottesville, VA: Institute of Law, Psychiatry and Public Policy. Melton, G.B., Petrila, J., Poythress, N.G., et al. 1987: Competency to stand trial. In Psychological Evaluations for the Courts. New York: Guilford Press, 65–92. Miller, R.D. 1987: Involuntary Civil Commitment of the Mentally Ill in the Post-Reform Era. Springfield, IL: Charles C. Thomas. Miller, R.D. 1988. Evaluation of and treatment to competency to be executed: a national survey and an analysis. Journal of Psychiatry and Law 16, 67–90. Miller, R.D. 1991. Economic factors leading to diversion of the mentally disordered from the civil to the criminal commitment systems. International Journal of Law and Psychiatry 15, 1–12. Miller, R.D., Germain, E.J. 1986. The specificity of evaluations for competency to stand trial. Journal of Psychiatry and Law 14, 333–47.

210 Forensic evaluation and treatment in the criminal justice system Miller, R.D., Germain, E.J. 1987. Evaluation of competency to stand trial in defendants who don’t want to be defended against the crimes charged. Bulletin of the American Academy of Psychiatry and the Law 15, 371–9. Miller, R.D., Germain, E.J. 1988. The retrospective evaluation of competency to stand trial. International Journal of Law and Psychiatry 11, 113–25. Miller, R.D., Germain, E.J. 1989. Inpatient evaluation of competency to stand trial. Health Law in Canada 9, 74–8, 92. Miller, R.D., Kaplan, L.V. 1992. Representation by counsel: right or obligation? Behavioral Sciences and the Law 10, 395–406. Miller, R.D., Musholt, E.A. 1988. Competency to be released. Newsletter of the American Academy of Psychiatry and the Law 13, 18–19. Miller, R.D., Stava, L. 1997: Hypnosis and dissimulation. In Rogers, R. (ed.), Clinical Assessment of Malingering and Deception, 2nd edition. New York: Guilford Press, 282–300. Miller, R.D., Bernstein, M.R., Van Rybroek, G.J., et al. 1989. The impact of the right to refuse treatment in a forensic population: six-month review. Bulletin of the American Academy of Psychiatry and the Law 17, 107–19. Miranda v. Arizona, 436,475 (1966). Miss. Code Ann. Sec. 99-19-57(2)(b) (Supp. 1985). Mo. Rev. Stat. Sec. 552.060(1) (1978). National Medical Association, Section on Psychiatry and Behavioral Sciences. 1986. Position statement on the role of the psychiatrist in evaluating and treating ‘death row’ inmates. Chicago. Newman, D.J. 1966: Conviction: The Determination of Guilt or Innocence Without Trial. Boston: Little, Brown. Newman, D.L., NeMoyer, E.C. 1970. Issues of propriety in negotiated justice. Denver Law Journal 47, 367–407. New York v. Berardicurti, 561 N.Y.S.2d 949 (N.Y. App. Div. 1990). New York v. Roberts, 569 N.Y.S.2d 53 (N.Y. App. Div. 1991). Niemark, E., Lewis, N. 1968. Development of logical problem solving: a one-year retest. Child Development 39, 527–36. Nobles v. Georgia, 168 U.S. 398 (1897). Note. 1963. The representation of indigent criminal defendants in the federal district courts. Harvard Law Review 76, 579–618. Note. 1965. The right of an accused to proceed without counsel. Minnesota Law Review 49, 1133–53. Note. 1971. The guilty plea as a waiver of rights and as an admission of guilt. Temple Law Quarterly 44, 640–51. Note. 1976. Faretta v. California and the pro se defense: the constitutional right of self-representation. American University Law Review 25, 897–937. Note. 1977. Plea bargaining and the transformation of the criminal process. Harvard Law Review 90, 564–95.

Note. 1981. Amnesia: the forgotten justification for finding an accused incompetent to stand trial. Washburn Law Journal 20, 289–306. Note. 1984. Competence to plead guilty: a new standard. Duke Law Journal 1984, 149–74. Note. 1986. Medical ethics and competency to be executed. Yale Law Journal 96, 167–86. Orne, M.T. 1983. Forensic hypnosis. Paper read at the 16th Annual Meeting of the American Academy of Psychiatry and the Law, Albuquerque, New Mexico, October 1983. Palko v. Connecticut, 302 U.S. 319 (1937). Parry, J. 1987. Involuntary confessions based on mental impairment. Mental and Physical Disability Law Reporter 11, 2–6. Payne v. Arkansas, 356 U.S. 560 (1958). Pate v. Robinson, 86 S. Ct. 836, 841 (1966). Penry v. Lynaugh, 109 S. Ct. 2934 (1989). People v. Boudin, Ind. No. 81-285 (Sup. Ct. N.Y., filed March 11, 1983). People v. Deere, 710 P.2d 925 (1985). People v. Ebanks, 49 P. 1049 (Cal. 1897). People v. Galimanis, 765 P.2d 644 (Colo. App. Div. 1, 1989). People v. Harper, 250 N.E.2d 5 (Ill. App. 1969). People v. Hughes, 453 N.E.2d 484 (N.Y. 1983). People v. Lara, 432 P.2d 202 (Cal. 1967). People v. Maynard, 179 N.E. 833 (1932). People v. McBroom, 70 Cal. Rptr. 326 (1968). People v. Palmer, 9 P.3d 1156 (Colo. App. 2000). People v. Palmer, 31 P.3d 863 (Colo. 2001). People v. Parks, 41 N.Y.2d 36 (N.Y. Ct. App. 1976). People v. Parsons, 82 Misc. 2d 1090, 371 N.Y.S.2d 840 (Nassau Cty. Ct. 1975). People v. Rensing, 14 N.Y.2d 211 (N.Y. Ct. App. 1964). People v. Romero, 745 P.2d 1003 (Colo. 1987). People v. Shirley, 641 P.2d 775 (Cal. 1982). People v. Silagy, 461 N.E.2d 415 (Ill. 1984). People v. Stanworth, 457 P.2d 891 (Cal. 1969). People v. Wilson, 506 N.E.2d 571 (Ill. 1987). Perlin, M. 1987. The Supreme Court, the mentally disabled criminal defendant, and symbolic values: random decisions, hidden rationales, or doctrinal abyss? Arizona Law Review 29, 291–8. Perry v. Louisiana, 498 U.S. 38 (1990). Phyle v. Duffy, 334 U.S. 431 (1948). Pittenger, R.D. 1983: Manual for Competency Assessment and Treatment. Atascadero, CA: Atascadero State Hospital. Poythress, N., Nicholson, R., Otto, R., et al. 1999: MacArthur Competency Assessment Tool, Criminal Adjudication. Psychological Assessment Resources, Odessa Florida Quaglino v. California, cert. denied, 99 S. Ct. 212, pet. rehearing denied, 99 S. Ct. 599 (1978). Rachlin, S., Stokman, C., Grosman, S. 1986. Incompetent misdemeanants – pseudocivil commitment? Bulletin of the American Academy of Psychiatry and the Law 14, 23–30.

Criminal competence 211 Radelet, M.L., Barnard, G.W. 1986. Ethics and the psychiatric determination of competency to be executed. Bulletin of the American Academy of Psychiatry and the Law 14, 37–53. Reck v. Pate, 367 U.S. 433 (1961). Rees v. Payton, 384 U.S. 312, 314 (1966). Reiser, M. 1986. Admission of hypnosis-induced recollections into evidence. American Journal of Forensic Psychiatry 7, 31–40. Resnick, P.J. 1987: Discussion at the Spring Scientific Meeting of the Midwestern Chapter of the American Academy of Psychiatry and the Law, April 4, Cincinnati, OH. Riggins v. Nevada, 112 S. Ct. 1810 (1992). Robey, A. 1965. Criteria for competency to stand trial: a checklist for psychiatrists. American Journal of Psychiatry 122, 616–23. Rock v. Arkansas, 107 S. Ct. 2704 (1987). Roesch, R., Golding, S. 1980: Competency to Stand Trial. Chicago: University of Illinois Press. Rogers, R. (ed.). 1997: Clinical Assessment of Malingering and Deception, 2nd edition. New York: Guilford Press. Rosner, F., Halpern, A.L., Kark, P.R., et al. 1991. Physician involvement in capital punishment. New York State Journal of Medicine 91, 15–18. Rumbaugh v. Procunier, 753 F.2d 395 (5th Cir.), cert. denied, 473 U.S. 919 (1985). Sadoff, R.L. 1967. The forensic psychiatry clinic: model for a new approach. American Journal of Psychiatry 123, 1402–7. Salguero, R.W. 1986. Medical ethics and competency to be executed. Yale Law Journal 96, 167–86. Sargent, D.A. 1987: Resolved: it is unethical for psychiatrists to diagnose or treat condemned persons in order to determine their competency to be executed. Debate presented at the Annual Scientific Meeting of the American Psychiatric Association, May 13, Chicago, IL. Schoeller v. Dunbar, 423 F.2d 1183, 1194 (9th Cir.), cert. denied, 400 U.S. 834 (1970), Hufstedler, L., dissenting. Schreiber, L., Roesch, R., Golding, S. 1987. An evaluation of procedures for assessing competency to stand trial. Bulletin of the American Academy of Psychiatry and the Law 15, 187–203. Scott v. Johnson, 379 N.W.2d 180 (Minn. App. 1985). Shelton v. United States, 242 F.2d 101, 115 (5th Cir. 1957) Tuttle, L., dissenting. Sieling v. Eyman, 478 F.2d 211 (9th Cir. 1973). Singer v. United States, 380 U.S. 24, 36 (1965). Singleton v. State, 437 S.E.2d 53 (S.C. 1992). Slovenko, R. 1987. The lawyer and the forensic expert: boundaries of ethical practice. Behavioral Sciences and the Law 5, 119–47. Solesbee v. Balcom, 339 U.S. 9 (1950). South Dakota v. Warren, 462 N.W.2d 195 (S.D. Sup. Ct. 1990).

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212 Forensic evaluation and treatment in the criminal justice system United States v. Abbamonte, 348 F.2d 700 (2d Cir. 1965); cert. denied, 382 U.S. 982 (1966). United States v. Adams, 581 F.2d 193 (9th Cir); cert. denied, 439 U.S. 1006 (1978). United States v. Albright, 388 F.2d 719, 726-7 (4th Cir. 1968). United States v. Andrews, General Court-Martial No. 75-14 (N.F. Jud. Cir. Navy-Marine Corps Judiciary, Phila., Pa., Oct. 6, 1976). United States v. Awkward, 597 F.2d 667 (9th Cir.), cert. denied, 444 U.S. 885 (1979). United States v. Baird, 414 F.2d 700, 711 (2d Cir. 1969); cert. denied, 396 U.S. 1005 (1970). United States v. Bohle, 445 F.2d 54, 67 (7th Cir. 1971). United States v. Borum, 464 F.2d 896 (10th Cir. 1972). United States v. Cohen, 530 F.2d 43 (5th Cir. 1976), cert. denied, 429 U.S. 855 (1976). United States v. Miller, 411 F.2d 825 (1969). United States v. Ramsey, 367 F. Supp. 1307 (1973). United States v. Tweedy, 419 F.2d 192 (9th Cir. 1969). United States v. Wilson, 263 F. Supp. 528 (D.C. 1966). Utah Code Ann. Sec. 77-15-2 (1982). Von Moltke v. Gillies, 332 U.S. 708, 724 (1947). Wagner v. Indiana, 562 N.E.2d 421 (Ind. Ct. App. 1990). Wallace, D.W. 1987. Incompetency for execution: the Supreme Court challenges the ethical standards of the mental health professions. Journal of Legal Medicine 8, 265–81.

Walraven v. State, 336 S.E.2d 798 (Ga. 1985). Ward, B.A. 1986. Competency for execution: problems in law and psychiatry. Florida State University Law Review 14, 35–107. Washington v. Harper, 110 S. Ct. 1028 (1990). Webster, C., Jenson, F., Stermac, C., et al. 1985. Psycho-educational assessment programmes for forensic psychiatric patients. Canadian Psychologist 26, 50–3. Weinstock, R. 1987: Controversial ethical issues in forensic psychiatry. Panel presented at the 18th Annual Meeting of the American Academy of Psychiatry and the Law, October 16, Ottawa, Canada. Weiter v. Settle, 193 F. Supp. 318, 321-22 (W.D. Mo. 1961). West v. United States, 399 F.2d 467 (1968). Westen, P., Westin, D. 1978. A constitutional law of remedies for broken plea bargains. Columbia Law Review 66, 471–539. White, W.S. 1987. Defendants who elect execution. University of Pittsburgh Law Review 48, 853–77. Whitman, P.A. 1967. Judicial plea bargaining. Stanford Law Review 19, 1082–92. Wicker v. McCotter, 783 F.2d 487 (5th Cir.), cert. denied, 106 S. Ct. 3310 (1986). Wisc. Stat. Ann. Ch. 971.14 (1989). Wisc. Stat. Rev. Ch. 971.14 (1989). Youtsey v. United States, 97 F. 937 (6th Cir. 1899).

25 Criminal responsibility ROBERT D. MILLER

‘A person is not to be excused for criminally offending simply because he wanted to very, very badly.’ United States v. Lyons, 731 F.2d 243 (5th Cir. 1984)

In order for defendants to be found responsible for crimes, the state must prove, beyond a reasonable doubt, both that they committed an illegal act (actus reus) and that they possessed the necessary intent to commit that crime (mens rea). If both cannot be established beyond a reasonable doubt, then the verdict must be not guilty, and the defendant must be released. The effects of mental disorder may sometimes justify the conclusion that no mens rea was present. Even if both actus rea and mens rea can be proven, however, mentally disordered defendants may have their degree of criminal responsibility reduced because of their disorders. Most states provide for findings of not guilty by reason of insanity (NGRI, also called innocent by reason of insanity, not guilty by reason of mental disease or defect, or guilty but for insanity), which absolves a defendant of all criminal liability (but does not prevent subsequent commitment to a mental health facility). Even if the impairment caused by mental disorder does not satisfy the legal criteria for insanity, it may still reduce the severity of the criminal charge, or may play a part in dispositional decisions after conviction. This chapter discusses the various ways in which mental state at the time of the crime may impact on the ultimate disposition of the case against a defendant.

NOT GUILTY BY REASON OF INSANITY The exculpation from criminal liability of mentally disordered persons has been a part of Western jurisprudence for thousands of years. Common law recognized the insanity defense as far back as the Greeks. Aristotle (see Irwin 1985) argued that behavior caused by ignorance or compulsion was less blameworthy than that done voluntarily, and thus should result in reduction or

elimination of punishment. The Jewish law also excused behavior caused by mental impairment: ‘It is an ill thing to knock against the deaf mute, an imbecile or minor. He that wounds them is culpable, but if they wound others, they are not culpable … for with them only the act is of consequence, while the intention is of no consequence’ (Mishna 8A). Early English law permitted exculpation only for those with severe cognitive disorders. In 1265, Bracton, Archdeacon of Barnstable, held that, ‘An insane person is one who does not know what he is doing, is lacking in mind and reason and is not far removed from the brutes’ (see Bromberg 1979). Lord Matthew Hale (1847) in 1671 held that, ‘Such a person is laboring under melancholy distempers hath yet ordinarily as great understanding as ordinarily a child of fourteen years hath, is such a person as may be guilty of treason or felony.’ In the case of Rex v. Arnold (1724), Judge Tracy held that, ‘Not every kind of frantic humor … points him out to be a madman as is exempted from punishment; it must be a man totally deprived of his understanding and memory and doth not know what he is doing, no more than an infant, than a brute, or a wild beast.’ In the nineteenth century, English law began to expand the criteria for exculpation. In the case of Rex v. Hadfield (1800), the defense attorney Erskine argued that,‘By insanity, I mean that state when the mind is under the influence of delusions, where the reasoning proceeds upon something which has no truth … but vainly built upon some morbid image formed in a distempered imagination.’ The trial judge directed a verdict of insanity. The culmination of the cognitive test for insanity came in the 1843 case of Daniel M’Naghten. Medical testimony (from physicians who had only observed M’Naghten during the trial) was unanimous that M’Naghten was insane, the jury so found, and he was hospitalized. Queen Victoria was outraged and convened the Law Lords to answer a series of questions about the insanity defense. The Lords responded that the standard should be, ‘To establish a defense on the ground of insanity, it must be

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clearly proved that at the time of the committing of the act, the party accused was labouring under such defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong.’ The M’Naghten test was adopted by most jurisdictions in the United States, but it was criticized by clinicians, including Isaac Ray (1871), who argued that a psychotic person may appear rational and satisfy a strict cognitive test, and that delusions may affect a person’s ability to apply knowledge in a reasonable fashion. As a result of these criticisms, alternate tests were adopted in several jurisdictions. The New Hampshire Supreme Court held in 1871 that the M’Naghten test was legally unsound, and stated that if an expert testifies that the accused’s mental disease prevented him from telling right from wrong, the decision is a matter of fact for the jury (State v. Jones 1871). In Alabama, the court held that a defendant should be found insane if the crime was the product of a mental disease, and if, as a result of the mental disease, the defendant had either lost the power to distinguish between right and wrong, or had lost the capacity to avoid doing the act (Parsons v. State 1887). The most prominent incarnation of the product test came from the United States Court of Appeals for the District of Columbia Circuit in Durham v. United States (1954); the test was simply, ‘An accused is not criminally responsible if his unlawful act was the product of mental disease or defect.’ Judge Bazelon, who authored the Durham Rule, was soon disenchanted with the conclusory nature of the testimony that resulted from the increased influence of psychiatric experts, and in a series of decisions attempted to limit it, first by narrowing the definition of mental disease or defect to an abnormal condition of the mind that substantially affects mental or emotional processes and substantially impairs behavioral controls (McDonald v. United States 1962). When that appeared insufficient, the Court of Appeals then ruled that expert witnesses should confine themselves to testifying on the evidence relevant to the jury’s decision, but should not draw conclusions from that evidence or provide opinions on the ultimate question of legal sanity (Washington v. United States 1967). When that also proved ineffective, the court finally abandoned Durham altogether, although it retained the McDonald definition of mental disease (United States v. Brawner 1972). Several states responded to criticisms of the cognitiveonly M’Naghten test by adding a volitional component, the so-called ‘irresistible impulse test.’ Perhaps the most famous example of its use was by Clarence Darrow in the Leopold and Loeb case (Weinberg 1957). The main criticism of the test was that it did not go far enough; it did not cover situations in which defendants’ psychoses cause them to lose control over their behaviors over time, rather than suddenly and impulsively. For that reason, many states abandoned the test in favor of the broader

American Law Institute test. Several states continue to have a version of the test on their books, however. Georgia (O.C.G.A. Sec. 16-3-3) states ‘A person shall not be found guilty of a crime when, at the time of the act … the person, because of a mental disease, injury, or congenital deficiency, acted as he did because of a delusional compulsion as to such act which overmastered his will to resist committing the crime. There are three elements to this defense: 1) The defendant was laboring under a delusion. 2) The criminal act was connected with the delusion. 3) The delusion was as to a fact which, if true, would have justified the act.’ The statute has recently been approved in two appeals court cases (Appling v. State 1997; Dutton v. State 1997). The Kentucky statutes [Ky. Rev. Stat. 504.020(1)] have the standard American Law Institute test; but in 1994, a state appeals court (Mattingly v. Commonwealth 1994) restated the test as ‘unable to appreciate the wrongfulness of his conduct or to resist his impulse to commit the illegal deed,’ which could be interpreted as an irresistible impulse test. The Oklahoma statutes continue to contain a version of the irresistible impulse test, although there appears to be an internal conflict within the statute itself: ‘… under these provisions the test of responsibility for committing the crime is mental capacity to distinguish between right and wrong as applied to a particular act, and to understand its nature and consequences, and defendant is not criminally responsible, if by insanity he did not have the will and mental power to refrain from committing the act.’ [Ok. Rev. Stat. Title 22 Sec. 115 (West 1986)]. Notwithstanding the apparent conflict, Professor Robert Richardson of the University of Oklahoma Law School (personal communication, December 14, 2000) stated that there has been no irresistible impulse test in Oklahoma in practice for the past 40 years. While the D.C. Circuit Appeals Court was struggling with Durham, the American Law Institute (ALI) had promulgated another test for insanity, which contains both a cognitive and a volitional prong: ‘A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or mental defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law’ (American Law Institute 1955). When the Appeals Court abandoned Durham, it adopted the American Law Institute (ALI) test, as did the majority of states. With the growing shift to a ‘law-and-order’ social agenda in the 1980s, the insanity defense came under attack across the country. Bills to repeal the insanity defense altogether were introduced in a number of state legislatures, as well as in the U.S. Congress after Hinckley’s attempt to assassinate President Reagan. Abolition had previously been thought to be unconstitutional, although the Supreme Court had never directly addressed the issue. State court decisions in Washington (State v. Strasburg

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1910), Louisiana (State v. Lange 1929), and Mississippi (Sinclair v. State 1931) had held that the opportunity to present an insanity defense was constitutionally protected. Legislation was introduced in New York (New York Criminal Justice Reform Act of 1975) and Pennsylvania (MacKay and Kopelman 1988) to abolish the defense, but was withdrawn because of fears that it was unconstitutional. More recently, however, the defense has been abolished statutorily in Montana (Montana Code 1981), Idaho (Idaho Code 1982), Utah (Utah Code 1986), Nevada (Nev. Rev. Stat. Sec 33, 193.220 1995), and Kansas (Kansas Statutes Annotated Sec. 22-3219 1996). Montana retains the ALI criteria for sentencing. Abolition has been upheld by at least two state supreme courts (State v. Korell 1984; Idaho v. Searcy 1990); and the Supreme Court of Maryland, by judicial fiat, effectively abolished the insanity defense (Pouncy v. State 1983). The Supreme Court of Nevada, however, found the Nevada legislature’s abolition of the insanity defense unconsitutional (Finger v. State 2001). Other states have limited the insanity defense short of abolition. The burden of proof has been shifted from the prosecution to the defense in Indiana (Indiana Code 1981), Pennsylvania (18 Pennsylvania Const. 1983), Alaska (Alaska Stat. 1984), and Arizona (Arizona Rev. Stat. 1984–85), as well as in federal law (Comprehensive Crime Control Act of 1984). A number of critics have argued that the volitional prong, grafted onto M’Naghten by the ALI test, is too broad and less capable of scientific analysis, and critics have called for its elimination (Fingarette and Hasse 1979; American Psychiatric Association 1983; American Bar Association 1984), despite arguments that opinions on cognition are no more reliable than on volition (Rogers 1987). Several states (Interim Hearing 1983; Alaska Stat. 1984) and the federal government (Comprehensive Crime Control Act of 1984) have therefore removed the volitional prong of the test; essentially restoring the M’Naghten standard. Most of the lengthy works on the insanity defense have been critical. The classic treatise, by Goldstein and Katz (1963), argues that neither case law, statutes, nor scholarly articles have provided a compelling rationale for the necessity of an insanity defense providing exculpation for otherwise criminal behavior. They suggest that the political reason for the continuation of the defense is that it permits the state to incarcerate persons whose mental states would otherwise have led to a not guilty finding because of lack of mens rea. Halpern (1977) argues that the success of the defense depends more on political, social, and legal factors than on the mental state of the defendant. He suggests that there is no rationale for exculpation based on mental disorder when other behavioral determinants, such as heredity, poverty, family environment, and cultural deprivation, do not. He also argues that psychiatrists cannot measure the degree of mental disorder with sufficient

accuracy to be of assistance to the courts. Abolition would prevent the practice in some states of forcing the insanity defense on unwilling defendants, and would also stop the practice of lengthy commitment following a ‘successful’ defense. Perr (1985) argues that the practical problems of establishing effective procedures to make reasonable and socially acceptable determinations of responsibility outweigh the theoretical advantages of the insanity defense. Like Halpern, he points to the imprecision of diagnostic systems, and he also discusses the difficulty of demonstrating causal relationships between mental conditions and behavior. He is also concerned about the effect of participating in the process on the public image of psychiatry. He concludes that abolition of the defense would have negligible effects on the practice of criminal justice, but it might focus attention on the plight of mentally disordered prisoners. Morse (1978) had also previously supported abolition of the insanity defense, based on criticisms that psychiatrists lack the ability to diagnose or predict behavior with sufficient accuracy and on the difficulty of distinguishing between an ‘irresistible impulse’ and an impulse not resisted. More recently, however, he has reconsidered his position and concluded that the symbolic value of retaining the defense outweighs the problems in its administration (Morse 1985). Although the American Medical Association (1984) had initially supported an abolitionist position, negotiation with the American Psychiatric Association resulted in a compromise statement (Joint Statement of the AMA and the APA 1985).

Disposition and evaluation Until the civil rights movement in the 1960s and 1970s, most states provided for automatic and indeterminate commitment of persons found not guilty by reason of insanity. After the Supreme Court’s decision in Baxstrom v. Herold (1966), which held that prisoners transferred to a mental health facility could not be kept beyond their maximum criminal sentences unless they met the state’s criteria for civil commitment, several state courts and legislatures applied that reasoning to insanity acquittees. The Michigan Supreme Court, in People v. McQuillan (1974), held that persons found not guilty by reason of insanity could be committed only for a brief evaluation period, and their commitments could not be extended unless they met civil commitment criteria. The New Jersey Supreme Court held that committed insanity acquittees were entitled to a due process hearing within sixty days to justify continued involuntary hospitalization (State v. Krol 1975). The U.S. Supreme Court reversed that trend in Jones v. United States (1983), in which a 5–4 majority distinguished criminal and civil patients in order to justify automatic hospitalization of insanity acquittees and

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commitment beyond the applicable criminal sentence. Some states (e.g., Wisconsin) have returned to automatic commitment whereas others (e.g., Michigan) have not. Some states (e.g., Colorado) continue to permit indefinite commitment. More recently, a 5–4 majority of the Supreme Court reaffirmed its holding in Jones while overturning the lower federal courts by holding that an insanity acquittee must continue to be both mentally ill and dangerous to justify continued commitment (Foucha v. Louisiana 1992). While the dissent in Jones had argued that the majority had gone too far toward governmental power, the dissent in Foucha argued that it had not gone far enough; Justice Thomas would have abolished any practical distinctions between verdicts of guilty and not guilty by reason of insanity. One of the major criticisms of the insanity defense is that it permits defendants to ‘beat the rap’ by obtaining release earlier than they would if convicted. Public fear of the mentally disordered, reinforced by rare but dramatic ‘horror stories’ of acts committed by released insanity acquittees, is often accompanied by the belief that mental health professionals are too ‘soft’ on insanity acquittees and release them prematurely. The available research data do not bear out these perceptions. Slobogin (1985) reports that fewer than 1 per cent of felony prosecutions result in a successful insanity defense, and that 60 per cent of successful defenses are stipulated to without ever going to trial. Available data indicate that the great majority of evaluators concur on both diagnosis and legal opinions (Fukunaga et al. 1981); the apparent prevalence of ‘battles of experts’ is due to the artifact that those cases in which the experts agree are usually settled out of court and do not receive the publicity of contested cases. Finally, the data reveal that most insanity acquittees are not released sooner than prisoners convicted of the same offenses. Studies from Connecticut (Phillips and Pasewark 1980), the District of Columbia (Steadman 1985), and Colorado (Pogrebin, Regoli, and Perry 1986) demonstrated significantly longer stays for insanity acquittees. Studies from Arizona (Kahn and Raifman 1981) and New York (Pantle, Pasewark, and Steadman 1980) revealed comparable lengths of stay. Only one study from New York (Pasewark, Pantle, and Steadman 1982) demonstrated shorter stays for insanity acquittees, and then only when they were transferred from correctional to mental health facilities. One flaw in all these studies is that they compared insanity acquittees with prisoners convicted of the same crimes. Since 90 per cent of defendants plead guilty, often to lesser charges, while those pleading insanity rarely have the opportunity to bargain down their charges, prisoners matched for conviction do not form a good control group. Harris, Rice, and Cormier (1991) from Canada have compared insanity acquittees and prisoners matched for charge at arrest instead of conviction, and have also demonstrated longer stays for the acquittees.

Two reports present the effects of changes in the insanity defense. After a change from the ALI test to M’Naghten in California in 1982 (1981 California Stat. ch. 404, effective January 1, 1982), the number of insanity acquittees dropped from an average of 251 per year over the previous four years to 134 in 1983 (Interim Hearing 1983). One must be cautious, however, about assuming a causal relationship between statutory changes and changes in practice, since the same social forces that led to the statutory change may also have been responsible for the observed changes (Miller 1987). Steadman’s group studied the effects of abolition of the insanity defense in Montana for three years before and after the change went into effect in 1979 (Steadman et al. 1989). Under the revised statute, evidence of insanity is admissible to negate mens rea. The team discovered that while the number of insanity pleas remained stable, the success rate dropped from 32 per cent to 3 per cent. But they also discovered that before 1979, 64 per cent of defendants who were initially found to be incompetent to proceed were ultimately found not guilty by reason of insanity; after 1979, only 5 per cent were found to have been insane, but 75 per cent of them had their cases dismissed. The evaluation of criminal responsibility is one of the most complex facing the forensic psychiatrist. The criteria are varied and vague, and are only marginally related to clinical constructs such as diagnoses (Halleck et al. 1992). The evaluations are retrospective, sometimes dealing with events that occurred ten years or more in the past. Political pressure, particularly in notorious cases, may make it difficult to retain objectivity. Forensic psychiatrists should familiarize themselves with both the relevant statutes on insanity and the applicable commentaries and case law, which interpret, clarify, and define statutory definitions. Although most evaluators continue to rely on clinical experience, efforts are underway to operationalize insanity criteria and to validate instruments for insanity evaluations (Rogers 1986). Although it is unlikely that valid quantitative psychometric instruments will ever be developed because of the inherently subjective nature of the evaluations, standardization of interviews may prove as beneficial as it did in the history of evaluation of competency to stand trial. In rare cases, defendants may be found insane for some crimes and guilty for others, all during the same proceedings. Such defendants are almost always hospitalized initially, and remain hospitalized until their mental disorders are under sufficient control for them to be transferred to prison to serve out their sentences, assuming those sentences are longer than the hospitalization. Such dual commitments are quite problematic for clinicians at forensic hospitals, however. They are typically more restricted in their privileges than patients without concurrent prison sentences, and clinical staff often develop attachments to their patients that make it difficult for them to determine that they are ready to transfer to prison (Miller et al. 1999).

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Bifurcated trials and evaluation When defendants enter insanity defenses, most states provide that the issues of guilt and sanity are to be tried together. This practice raises significant problems for the defense. Most states permit defendants to enter pleas of both not guilty and not guilty by reason of insanity, thus providing two opportunities to avoid a guilty verdict. When the two defenses are joined, however, they may conflict with each other. For example, in Houston v. State (1979), Houston raised defenses of self-defense and insanity. He was examined by a psychiatrist, who concluded that Houston had been insane at the time of the criminal act, but he also concluded that Houston’s self-defense claim was not credible. The defense needed the psychiatrist’s testimony to establish the basis for an insanity defense, but if it called the psychiatrist during the case in chief, he would destroy the self-defense claim. In order to resolve this dilemma, some courts and legislatures have separated the guilt and sanity phases of the trial process. Only Wisconsin (Wisconsin Rev. Stat. 1983–84) requires a bifurcated trial when the insanity defense is interposed. Colorado formerly did so (Colorado Stat. 1990a), but bifurcation was recently abolished (Colorado Revised Statutes 16-8-104.5 1995). Other states have experimented with bifurcated trials. Texas (Townsend v. State 1968), Louisiana (Bruning 1975), Arizona (Shaw v. State 1971), and Florida (R. Swanson, pers. comm., 1991) implemented but subsequently abandoned them because of problems raised by the bifurcation process. Courts in other jurisdictions have ruled that trials should be bifurcated when to try the issues together would prejudice the defendant. In Contee v. United States (1969), the United States Court of Appeals for the District of Columbia Circuit held that, ‘[A] sound exercise of the trial court’s discretion will ordinarily result in bifurcation whenever a defendant shows that he has a substantial insanity defense and a substantial defense on the merits to any element of the charge, either of which would be prejudiced by simultaneous presentation with the other.’ In United States v. Taylor (1975), the court reaffirmed its position, pointing out that the merit defense of self-defense conflicts conceptually with an insanity defense (the situation in Houston). Bifurcation raises problems of its own, however. Those states that try guilt first generally bar psychiatric testimony during that phase, thus preventing the defense from presenting evidence of mental disability short of insanity. That issue has been litigated most thoroughly in Wisconsin. In 1976, the Seventh Circuit Court of Appeals ruled that barring psychiatric testimony on the issue of mens rea in a single trial violated the defendant’s Sixth and Fourteenth Amendment rights (Hughes v. Matthews 1978). However, in a subsequent decision (Steele v. State 1980), the Wisconsin Supreme Court reinstated its bar of psychiatric testimony in the guilt phase of a bifurcated trial.

Even if the defense may not plead diminished capacity, however, there are other situations in which psychiatric testimony would be relevant to the issue of mens rea but cannot be presented. In a forceful article written in opposition to the Steele decision, the example was used of a defendant who commits a criminal act while having a temporal lobe seizure (Note 1981a). Under Wisconsin law, evidence of the seizure could not be introduced during the guilt phase of the trial to support a defense based on unconsciousness, and the issue would have to be tried under an insanity theory. The potential consequences for a defendant of verdicts of not guilty and not guilty by reason of insanity differ significantly, and such cases have occurred (State v. Raaths 1983). Other courts have held that mandatory bifurcation violates defendants’ rights. In Shaw v. State (1970), the Arizona Supreme Court held that mandatory bifurcation violated the defendant’s right to have all relevant evidence of his state of mind introduced during the guilt phase of his trial. While evaluators need to be aware of the trial procedures in their jurisdictions, the presence or absence of bifurcation will generally make little difference in the evaluation of a defendant’s criminal responsibility. It may well affect whether expert opinions will be introduced as evidence bearing on sanity or on mens rea; and it also may well affect whether the evaluator will be ultimately called to testify. It therefore may also affect the information given by the evaluator to the defendant about the potential consequences of cooperating with the evaluation.

GUILTY BUT MENTALLY ILL As a result of growing public perception that the insanity defense exonerates ‘obviously guilty’ defendants (such as John Hinckley) (Woodmansel 1996), and that it permits them to be released prematurely, there has been considerable pressure in many jurisdictions to abolish or otherwise to restrict the use of the insanity defense (Callahan, Mayer, and Steadman 1987). One response has been the creation of a new legal category called variously guilty but mentally ill (GBMI), or guilty but not responsible.

The Michigan experience As the GBMI alternative was established in Michigan in 1975, at least six years before it was adopted by any other state, it is instructive to examine its history in that state, which has been well documented and studied (Smith and Hall 1982; Blunt and Stock 1985; Petrella et al. 1985). Prior to 1960, a large number of criminal defendants found incompetent to stand trial had accumulated in the forensic mental health system, many of them committed for longer periods of time than they

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would have received if convicted. The combination of increased interest in the civil rights of criminal defendants and the Supreme Court’s creation of criteria for competency in Dusky v. United States (1960) resulted in the establishment of a state commission to study the problem. The commission’s recommendations were enacted into a law (Act No. 266, 1966) that changed the criteria for incompetency to stand trial to conform with Dusky, changed release procedures for insanity acquittees, and established a state Center for Forensic Psychiatry to evaluate and treat defendants found incompetent to stand trial or insane. As a result of these changes, large numbers of previously incompetent defendants were brought to trial, and the number of successful insanity defenses rose dramatically, from 12 in 1967 to 203 in 1973 (Blunt and Stock 1985), although retrospective studies showed that only 70 such acquittees out of 350 actually satisfied the criteria of being mentally ill and insane (Robey and Pogany 1974). In Bell v. Wayne County Gen. Hospital (1974), a federal district court imposed imminent dangerousness as a criterion for civil commitment in Michigan; and in People v. McQuillan (1974), the Michigan Supreme Court required that the state prove that insanity acquittees meet those criteria before they could be committed. These evaluations resulted in the release of 214 out of 270 insanity acquittees (Blunt and Stock 1985). When several acquittees released as a result of these changes committed heinous crimes, public outcry caused the legislature to create the GBMI verdict. The statute stated, ‘If the defendant asserts a defense of insanity … (he) may be found “guilty but mentally ill”, if, after trial, the trier of fact finds all of the following beyond a reasonable doubt: (a) the defendant is guilty of an offense; (b) the defendant was mentally ill at the time of that offense; and (c) that the defendant was not legally insane at the time of the commission of that offense’ (70 Michigan Compiled Laws 1975a). After a finding of GBMI, the statute provides that ‘… the defendant … shall undergo further evaluation and be given such treatment as is psychiatrically indicated for his mental illness or retardation’ (70 Michigan Compiled Laws 1975b). Defendants found GBMI may be placed on five years’ probation, regardless of the maximum sentence for the crime charged. As of 1985, there had been at least eightyseven state appellate decisions involving the GBMI verdict (Blunt and Stock 1985). The state court of appeals (People v. Sorna 1979) has rejected arguments that the GBMI verdict denies a defendant’s due process and equal protection rights to an insanity defense because juries may choose the GBMI verdict as a compromise between guilty and insane, although there are some research data to substantiate the claim (Simon 1967). The state Supreme Court has rejected the argument that a finding of GBMI may lead to a denial of the inmate’s right to treatment (People v. McLeod 1980).

Smith and Hall (1982) reported that between 1975 and 1982, the Center for Forensic Psychiatry evaluated 0.5 per cent of all criminal defendants in Michigan; 6.7 per cent of those evaluated were judged by the center to be insane (26/100 000 male arrests) and 3.9 per cent to be guilty but mentally ill (16/100 000). Trial courts concurred with 95 per cent of the center’s findings that defendants were neither insane nor GBMI, and with 84 per cent of recommendations for insanity; of those in which the court rejected the center’s findings, 12 per cent were found guilty but mentally ill, and 4 per cent were found guilty. Smith and Hall (1982) attribute the high concurrence rate to the fact that the center is an arm of the state; Blunt and Stock (1985) (who are faculty at the center) believe that it is because of the high quality of the evaluations produced. Smith and Hall (1982) reported that there had been no change in the number of defendants found insane after the creation of the GBMI alternative, and they found that GBMI defendants resembled those found guilty more than those found insane. There are even data demonstrating that GBMI inmates are incarcerated longer than inmates found guilty of the same charges. Petrella and colleagues (1985) criticize Smith and Hall’s conclusions that the GBMI verdict has been a failure. They point out that at the same time that the GBMI verdict was created, the legislature also changed the insanity criteria from M’Naghten to ALI since the broader criteria for insanity, coupled with the stricter criteria for commitment and the creation of the Center for Forensic Psychiatry, might be expected to have increased the number of successful insanity defenses, the fact that no increase was noted might be at least partially attributable to the GBMI alternative.

The South Carolina experience Morgan and colleagues (1988) have reported on the South Carolina experience with the GBMI verdict. The South Carolina law states that: ‘A defendant is guilty but mentally ill if at the time of the commission of the act constituting the offense he had the capacity to distinguish right from wrong and to recognize his act as being wrong … but because of mental disease of defect he lacks sufficient capacity to confirm his conduct to the requirements of the law’ (S.C. Code Ann. Sec. 17-24-20 (1984). South Carolina has the M’Naghten test, so volition is irrelevant to insanity. The law has been found constitutional (State v. Hornsby 1997). Passage of South Carolina’s GBMI bill was influenced by litigation against the Departments of Corrections and Mental Health and the Hinckley verdict, but not by the numbers of insanity acquittals – there had been only one or two successful insanity defenses per year, out of 24 000 criminal prosecutions. Morgan and colleagues (1988) interviewed GBMI inmates; additional information was

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obtained concerning past criminal records, previous psychiatric evaluations and treatment, the inmate’s understanding of the plea, and the inmate’s recollection of his or her mental state at the time of the crime. Between April 1984 and August 1985, forty-two men and five women were found GBMI; twenty-six men and four women were interviewed for the study, chosen because they were still incarcerated in the Columbia, South Carolina, area. Diagnoses included substance abuse (15), schizophrenia (11), paraphilia (4), mood disorder (3), organic brain syndrome secondary to alcoholism (1), dependent personality disorder (1), and posttraumatic stress disorder, which was felt to have appeared after the crime (1). Crimes for which the subjects had been convicted included murder (1), battery (6), manslaughter (5), armed robbery (2), burglary (2), arson (2), housebreaking (1), sexual assault of a minor (9), contributing to the delinquency of a minor (1), and shoplifting (1). Sentences varied considerably (manslaughter from five to forty years; sexual assault from four to twenty-five years). No defendant had a jury trial; many charges were reduced through plea bargaining. The subjects demonstrated considerable lack of understanding of the plea: two were thought too disordered to respond; twelve did not understand the plea but entered it upon the advice of counsel; seven thought that the plea would reduce their sentences; four thought that they would receive treatment in prison; two thought the plea meant that they were guilty but unaware or mentally disordered; one thought he would go to a hospital instead of prison; one was angry and said, ‘You get the same sentence with mental illness tacked on’; and one said it meant ‘a lunatic in search of understanding.’ As in Michigan, there was no change in the incidence of insanity verdicts following the introduction of the GBMI verdict. No treatment for those found GBMI is required by the South Carolina law, and many (e.g., sex offenders) are placed in the general population soon after their evaluations. Given the lack of understanding of the plea by the study subjects, it is likely that it was used to expedite disposition of their cases by promising treatment. The authors argue that treatment should be provided for those found GBMI. They are highly critical of the South Carolina correctional system’s treatment of mentally ill offenders, and argue that if the correctional system has resources only for severely mentally ill inmates, perhaps the statute should require severe mental illness. LeBlanc-Allman (1998) is also very critical of the South Carolina GBMI law. The author concedes that the law would pass muster under a rational basis analysis; but under a strict scrutiny analysis, the law violates a defendant’s right to a fair trial, because state law prohibits a jury instruction that compares the dispositions of guilty and GBMI verdicts. Kentucky has such a statute [Ky. Rev. Stat. Ann. R 9.55 (1998)]. The author further argues that, even assuming that reducing inappropriate

insanity acquittals is a compelling state interest, GBMI is not narrowly tailored to satisfy that purpose.

The Illinois experience As in Michigan, public outrage over crimes committed by released NGRIs, and frustration over perceived inability to abolish the insanity defense, led to the GBMI law. The framers of the statute had three goals: (i) to protect society; (ii) to hold some mentally ill offenders accountable; and (iii) to make treatment available to mentally ill offenders. The final bill did not require provision of treatment (Illinois Ann. Stat. 1981), and the state appellate court upheld those provisions, holding that a GBMI inmate’s right to treatment was no different than any other inmate’s right (People v. Marshall 1983). Klofas and Weisheit (1986) reviewed court records, surveyed prosecutors, and interviewed public defenders from counties in which prosecutors reported significant numbers of GBMI pleas. State court records provided summary data only, but Cook County records indicated the methods by which a verdict was reached. In Cook County, jury trials were used in only 2 per cent of GBMI cases and 3 per cent of other felony cases, but GBMIs were more likely to have bench trials than other defendants (36 per cent versus 16 per cent). GBMI crimes were mostly either violent or sex crimes. Sex crimes were more likely to be pleaded and also to result in probation (21/44). Some defense attorneys felt that the law was beneficial to their clients, although most of them – and almost all prosecutors – felt that it was to the prosecution’s advantage, since it provided an additional guilty option. Despite selection based on occurrence of GBMI verdicts in their counties, a number of both prosecutors and public defenders were unaware of how the GBMI system operated, with many thinking that treatment was mandatory, or that the defendants would never spend time in prison. Both district attorneys (DAs) and public defenders (PDs) agreed that the availability of GBMI facilitated plea bargaining. Many also said that by letting defendants deny or mitigate personal responsibility, it did not cut them off from family or friends as much as a guilty verdict would have. Cook County PDs said that their clients would rather be seen as criminal than as mentally ill, particularly if they did not have previous hospitalizations. In practice, judges often made decisions based on what attorneys said about psychiatric history, without any expert testimony. The respondents indicated that the GBMI plea provided neither reduction in sentence nor treatment, and defendants receive the additional stigma of mental illness. The authors were critical of PDs who were ignorant of the actual consequences of a GBMI plea, or who adopted a paternalistic posture toward their clients.

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Recently, a state appeals court struck down Illinois’ GBMI law, holding that a compromise verdict that is based on juror misperceptions violates due process (People v. Robles 1997).

The Pennsylvania experience Under the 1983 statutory revision in Pennsylvania (Pennsylvania Cons. Stat. 1983), once an accused pleads insanity, he or she may be found guilty but mentally ill provided it is proved beyond a reasonable doubt that he/she is ‘guilty of an offense, was mentally ill at the time of the commission of the offense and was not legally insane at the time of the commission of the offense.’ The plea can be accepted only after the trial judge has made a finding at a hearing that the defendant was mentally ill at the time. Once a GBMI finding is made, the defendant may receive the same sentence as if simply found guilty, but before imposing sentence, the court shall hear testimony and make a finding on the issue of whether the defendant ‘… is severely mentally disabled and in need of treatment.’ If he is, treatment may be provided in prison or through transfer to a hospital. If treatment is completed prior to release, release is accomplished just as with any other inmate. The definition of mental illness is that of the ALI insanity criteria. Discussions about a GBMI verdict began as early as 1979; it was initially proposed to replace the insanity defense, but that was dropped for fear of unconstitutionality. At the same time that the GBMI law was passed, the common law insanity test was codified, and the burden of proof was shifted to the defense. MacKay and Kopelman (1988) conclude that the statute was passed to: (i) reduce successful insanity pleas; (ii) provide a middle ground between guilty and NGRI, which would provide treatment for mentally ill offenders; and (iii) provide increased community protection. The authors studied effects of the statute from March 1982 through March 1987. During the study period there were eighty-nine NGRIs and ninety-one GBMIs studied. Blacks were over-represented in the NGRI population (41 per cent versus 21 per cent). GBMIs were more likely to have been convicted of murder and sex crimes, while NGRIs were more likely to have assaulted. The average number of NGRIs dropped 38 per cent after GBMI was introduced, but the larger number in the year before the change may have skewed the data. In addition, the shift in the burden of proof in insanity cases to the defense may have reduced such pleas. Unlike Michigan and Illinois, virtually all the sixty-six hospitalized GBMIs had major mental disorders, and 66 per cent of GBMIs had immediate treatment provided. Sentences for GBMIs and those found guilty of comparable crimes appeared to be similar, although some GBMIs were given longer sentences. The GBMI statute was challenged because of the perceived conflict between the M’Naghten criteria for insanity

and the ALI criteria for GBMI, but the state appeals court held that the law did not violate due process rights (Commonwealth v. Trill 1988). The authors conclude that, at least in Philadelphia, the GBMI verdict does appear to have significant impact in reducing the number of insanity pleas, in selecting a severely mentally ill population, and in providing treatment.

Experience in other states Ten other states in addition to Michigan, South Carolina, Illinois, and Pennsylvania created GBMI verdicts between 1982 and 1985. Connecticut replaced the verdict of NGRI with guilty but not criminally responsible in 1982 (Connecticut Public Act 1982). Under the previous insanity defense, an acquittee had to be civilly committed to the state mental health department or released. The new statute provided for commitment of defendants found guilty but not criminally responsible to the state corrections department, under less strict criteria. The statute was repealed the following year, chiefly because of internal conflict in the definitions; the chief state attorney recommended abolition of the verdict in testimony before the legislature because it ‘is a contradiction in terms. The jury on the one hand has the luxury of saying, “You’re guilty, when in fact the word guilty implied the concept of blame, but then they say you have no criminal responsibility … . A society which punishes imbeciles or people who don’t know what they are doing is not enhancing responsibility for behavior, it is diminishing the proper role of punishment’ (Hearing 1983). Nevada replaced its insanity defense with GBMI (Nev. Rev. Stat. Sec 33, 193.220 1995). GBMI statutes currently exist in Alaska (where defendants found guilty but mentally ill are specifically barred from probation or parole) (Alaska Stat. 1983), Delaware (Delaware Code 1982), Georgia (Georgia Code 1983), Indiana (Indiana Code 1982), Kentucky (Kentucky Rev. Stat. 1982), Utah (Utah Code 1983), New Mexico (New Mexico Stat. 1983), and South Dakota (South Dakota Codified Laws 1983). The New Mexico law has been found constitutional (State v. Neely 1991), as has the South Dakota law (Robinson v. Solem 1988). Colorado’s impaired mental condition (IMC) law (Colorado Rev. Stat. 1990) defense was created by the prosecutors to close a loophole which resulted in a mentally disordered defendant being found not guilty because of lack of mens rea and released. In practice, however, its effect was to give the defense ‘two bites at the apple,’ with two different juries. While there are not published reports of a defendant found sane in the first stage being found IMC in the second, bifurcation provided defense attorneys with the threat of two extended trials to use to persuade the prosecution to plea bargain. The prosecutors finally convinced the legislature to coalesce the IMC defense into the definition of insanity and eliminating bifurcation [C.R.S. 16-8-104.5

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(1995)], thus keeping the loophole shut and removing the second bite at the apple. Although similar conceptually to GBMI, IMC results in hospitalization rather than incarceration, and is discussed in the section below on extreme emotional distress. Data from Georgia indicate that (except for an abnormally high number of insanity acquittals in the year before GBMI legislation was passed) there was no significant change in insanity acquittals after NGRI legislation was passed (Dvoskin 1988). Insanity acquittals in Alaska dropped from six per year to one, but at the same time GBMI legislation was passed, the test for insanity was changed to the most restrictive in the country (M’Naghten with only the ‘nature and quality’ part; Keilitz et al. 1984). Despite all the controversy over the verdict, the available data (McGraw, Farthing-Capowich, and Keilitz 1985) indicate that there are even fewer GBMIs in Georgia than NGRIs currently incarcerated. In the eleven states other than Michigan, there were (in 1988) only 75 GBMIs, compared with 449 NGRIs in the same states; three states had no GBMIs at all. Michigan had 253 GBMIs, compared to only 13 NGRIs.

Discussion and evaluation In their 700-page report on the GBMI experience, Keilitz et al. (1984) concluded: ‘Although touted by its proponents as an attractive alternative to the NGRI verdict for juries to consider, most GBMI findings (like NGRI findings) resulted from pleas and bench trials. Contrary to the views held by much of the public, by jurors, and by many members of the mental health and criminal justice systems, GBMI offenders are not guaranteed treatment under law, nor are they more likely to receive treatment than other mentally ill offenders in the general inmate population to whom the GBMI label has not been applied. Indeed, they are given stiffer sentences than their guilty counterparts without any better access to mental health treatment. GBMI offenders appear to be imprisoned for longer periods than insanity acquittees are involuntarily hospitalized. Despite the hopes of its proponents and the fears of its critics, the GBMI option has not spelled the demise of the insanity defense.’ Indeed, it appears not to have appreciably disturbed the frequency of NGRI findings. Slobogin (1985) also provides a detailed analysis of the GBMI verdict, and concludes that it is unnecessary as a remedy to problems with the insanity defense and may actually exacerbate the problem. Most of the data in the literature, with the possible exception of the Philadelphia area, tend to concur with this analysis. Indeed, there are several cases in which defendants pleading GBMI have been given the death sentence (Harris v. State 1986; People v. Crews 1988; State v. Wilson 1992). Ellis (1993) argues that since (in South Carolina) a GBMI verdict indicates inability to control

actions, volitional impairment reduces culpability sufficiently to bar the death penalty, despite the South Carolina Supreme Court’s decision in Wilson. It is not easy to draw firm conclusions as to why GBMI does not seem to have the anticipated effects of reducing insanity acquittals and providing treatment to mentally ill offenders. Several states made substantive changes in their insanity statutes at the same time they created GBMI laws. It is also clear that a significant number of those who must implement these laws are insufficiently knowledgeable about the provisions and effects of GBMI findings. The American Psychiatric Association (1982), the American Bar Association (1983), and the National Mental Health Association (1983) have all been quite critical of the GBMI verdict. No new GBMI statute has been enacted since 1985 except that of Nevada. It appears that in many states that do not require defendants to enter insanity pleas in order to be eligible for a GBMI verdict, the evaluation process is quite informal (indeed at times virtually non-existent), and many GBMI verdicts are rendered without any expert testimony at all. Forensic clinicians in states that have GBMI laws should be aware of those provisions and how they differ from the tests for insanity. Unless specifically instructed to the contrary, they should be prepared to offer opinions on both issues and to thus inform the defendants they evaluate.

DIMINISHED CAPACITY The insanity defense results in complete exculpation on the criminal charge. There are a number of other affirmative defenses based on the defendant’s mental state at the time of the crime that (if successful) still result in a criminal conviction, but with mitigation of the sentence. Historically, the first of these is the diminished capacity defense. The diminished capacity approach is based on the difference between general and specific intent crimes. General intent is required for all except strict liability crimes, most of which are minor, such as parking and health code violations (although some states have strict liability provisions for crimes such as drug dealing and statutory rape). Under a strict liability analysis, the performance of the proscribed act is sufficient to establish liability. General intent is broadly defined by the criminal law to mean the intent to commit a particular act (such as assault). In a crime such as assault with intent to rape, the specific intention to commit rape must be proven in addition to the general intent to assault. A successful diminished capacity defense can reduce a specific intent crime to a general intent crime if the latter is a lesser included offense within the former (e.g., reduction of first-degree homicide to manslaughter). If there are no such lesser offenses, however, a diminished

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capacity defense may result in outright acquittal; such cases are rare in practice.

Legal history The first judicial statement of the diminished capacity defense occurred in Scotland (HM Adv. v. Dingwall 1867). In that case, the defendant’s alcoholism and peculiarities of mental constitution were held to be extenuating circumstances justifying reduction of the charge from murder to culpable homicide. The doctrine did not develop further in Great Britain until after World War II. Early U.S. decisions rejected the concept; the federal district court for the District of Columbia rejected jury instructions on diminished capacity, holding that such innovations were for legislatures to make after intensive studies and data collection that trial courts are ill-equipped to do (Stewart v. United States 1954). In rejecting diminished capacity, the Pennsylvania Supreme Court specifically emphasized the increased danger to ‘law-abiding citizens’ that would follow its use (Commonwealth v. Rightnor 1969). The defense was first introduced in the United States by the California Supreme Court; it held that a trial court should have admitted psychiatric evidence tending to show that the defendant might have thought that he was acting in self-defense when he attacked a prison guard, and thus could not have had the specific intent required for the charge of aggravated assault (People v. Wells 1949). In 1959, the same court permitted expert testimony about a defendant’s capacity to form intent. It interpreted the mens rea requirements of premeditation and deliberation for first-degree murder to require considered reflection (People v. Gorshen 1959). From these cases came the so-called ‘Wells–Gorshen Rule,’ which held that even though a defendant is legally sane, if he or she was suffering from a mental illness that prevented his/her acting with malice aforethought or with premeditation and deliberation, he/she cannot be convicted of murder in the first degree. In 1964, the court formally recognized a diminished responsibility defense. The defendant had been found guilty of a series of carefully planned rapes and murders; despite unanimous psychiatric testimony that he lacked criminal responsibility, he was also found sane. On appeal, the court concluded (based on the psychiatric testimony) that the defendant’s mental abnormality prevented him from realizing the ‘enormity of the evil,’ and found that he was therefore not guilty of first-degree murder People v. Wolff 1964). The English Homicide Act of 1957 held that: Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts

and omissions in doing or being a party to the killing … . A person who but for this section would be liable … to be convicted of murder shall be liable instead to be convicted of manslaughter. Similarly, the American Bar Association’s Model Penal Code (1962) defined manslaughter as ‘homicide which would otherwise be murder [but] is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.’ The Supreme Court has never issued a definitive opinion on the validity or criteria for the defense, and there has been a notable lack of consensus across different jurisdictions on many aspects of the defense. Since the Supreme Court held in In re Winship (1970) that the state must prove each element of the crime charged beyond a reasonable doubt, defense attorneys have argued that when evidence of psychiatric disorder is introduced in specific intent cases, the prosecution has the burden of disproving diminished capacity. The Supreme Court rejected arguments that the defendant has the burden of proving that a mental disorder negates mens rea in Davis v. United States (1895), and reaffirmed that holding in Mullaney v. Wilbur (1975). In Martin v. Ohio (1987), the Supreme Court held that a state may make self-defense an affirmative defense, and place the burden of proof on the defendant; but it emphasized that where there is evidence relevant both to an affirmative defense and to an element of the offense charged (such as mens rea), the jury must be instructed that the defendant’s evidence on the affirmative defense must be considered when determining whether the state has proved all the elements of the offense charged. The New Jersey Supreme Court held that while the burden of establishing the presence of mental disorder could be placed on the defendant, the state was then required to prove that mens rea was present despite the disorder (State v. Breakiron 1987; State v. Zola 1988). Before the acceptance of the diminished capacity defense, psychiatric testimony on the issue of mens rea was frequently barred. In rejecting such testimony, the Nevada Supreme Court relied on the objection that the use of such evidence could result in outright acquittals, decreasing protection for the public (Fox v. State 1957). Subsequently, however, state Supreme Courts in Massachusetts (Commonwealth v. Gould 1980) and New Jersey (State v. Breakiron 1987), federal district courts in California (United States v. Frisbee 1985) and the District of Columbia (United States v. Gold 1987), and the U.S. Supreme Court (Mullaney v. Wilbur 1975) all held that psychiatric testimony should be admitted, although the California Supreme Court emphasized that expert witnesses would be restricted to diagnoses and descriptions of the effects of mental disorders, barring opinions on whether defendants possessed the specific intent in

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question. The Federal Rules of Evidence held that, ‘No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are for the trier of fact alone’ [Fed. R. Evid. 704(b)]. A major exception to the trend in favor of admission of psychiatric testimony on the issue of mens rea exists in some states with bifurcated trials when the insanity defense is raised. The Wisconsin Supreme Court upheld state statutes barring psychiatric testimony in the first (guilt) phase of a bifurcated trial, arguing that to permit evidence of mental disorder to be presented would undermine the bifurcation (Steele v. State 1980). That position was subsequently upheld by the Seventh Circuit, which held that such testimony was competent and relevant on the ‘gross’ issue on insanity, but not on the ‘finetuned’ issue of mens rea (Muensch v. Israel 1983). The Supreme Court let that decision stand by denying certification, although it had previously denied certification in an Arizona decision that arrived at the opposite conclusion, holding in dictum that a bar on psychological testimony in bifurcated trials violated due process (State v. Shaw 1970). Courts in thirty-one states have accepted diminished capacity (Drew 1998). However, in the early 1980s, opposition to the concept of diminished capacity increased, due to the shift from an individual rights to a law-andorder emphasis in social policy, and fueled by unpopular decisions, such as the Dan White case in California (People v. White 1981). The California legislature in effect repealed diminished capacity in 1982 by abolishing the distinction between general and special intent, but permitted evidence of mental abnormality to be introduced to negate all mens rea. It held that, ‘As a matter of public policy, there shall be no defense of diminished capacity, diminished responsibility, or irresistible impulse in a criminal action’ (1988 California Stat., Sec. 25(a),(b)). In the brief period that this legislation was in effect, Morse (1984) could find no cases in which a defendant successfully used it to negate mens rea. The legislature reversed itself partially by restoring the general-special intent distinction, but permitting evidence of mental abnormality to be introduced only to negate specific intent (1982 California Stat.). State courts in Arizona (State v. Laffoon 1980) denoted ‘imperfect self-defense.’ In In re Christian S. (1994) the California Supreme Court held that ‘Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually but unreasonably believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter’ [at 575]. The defendant, a minor, was charged with killing Robert Elliott, a skinhead gang

member; he had been physically and verbally harassed and threatened by Elliott and his friends for over a year. On the day of the crime, Elliott had threatened and taunted the defendant on several occasions while chasing him down the beach. After Elliott challenged the defendant to shoot him, the defendant did. The court held that ‘Unlike diminished capacity, imperfect self-defense is not rooted in any notion of mental capacity or awareness of the need to act lawfully’ [at 581-2]. The defense is narrower than diminished capacity, in that the defendant must have had an actual belief in the need for self-defense, and that belief must relate to the fear of imminent, not future harm. Ohio (State v. Wilcox 1981), and Louisiana (State v. Roussel 1982) also rejected the use of a mental state defense except for insanity. Reacting to similar public pressure, the U.S. Congress passed the Insanity Defense Reform Act in 1984, which stated that, ‘It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense’ (Comprehensive Crime Control Act of 1984). The Legislative Record preserved the Senate Committee’s rationale for this legislation: The Committee also included language in Section 20 explicitly providing that mental disease or defect other than that which renders the defendant unable to appreciate the nature and quality or wrongfulness of his acts does not constitute a defense. This is intended to insure that the insanity defense is not improperly resurrected in the guise of showing some other affirmative defense, such as that the defendant has a ‘diminished responsibility’ or some similarly asserted state of mind which would serve to excuse the offense and open the door, once again, to needlessly confusing psychiatric testimony (S. Rep. 1984). After this statute was enacted, a number of courts interpreted it. In United States v. Pohlot (1987), Pohlot was convicted of murder, despite uncontroverted psychiatric testimony that he had been insane. The trial judge refused, based on his interpretation of the Insanity Defense Reform Act, to instruct the jury that it could consider the evidence of Pohlot’s mental condition in determining whether or not he had the required specific intent for the crimes charged. On appeal, the government argued that defense counsel was permitted to address mens rea in his closing, and that the general instructions given did not prevent the jury from taking that evidence into consideration. The Third Circuit agreed that the most probable effect of the judge’s instructions was to exclude the psychiatric evidence from the jury’s consideration of mens rea. It rejected the government’s claim that the intent of the reform was to place the burden on the defendant, not the

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prosecution; it held that a legally sane person might lack mens rea. The court concluded that the evidence in question did not relate directly to specific intent, but to Pohlot’s understanding of his actions and their consequences. It therefore affirmed the lower court’s refusal to include the requested jury instruction. In United States v. Perry (1999), Ms. Perry pled guilty to embezzlement; at sentencing, she presented testimony from a psychologist who testified that she was clinically depressed and her actions indicated a need for acceptance, a capacity for denial, and had an addictive quality. He opined that the denial and addictive elements caused ‘some diminished capacity,’ which would justify a downward sentencing departure under Federal Sentencing Guideline Sec. 5K2.13. Her gynecologist also testified that she was depressed, and he had treated her with antidepressant medication. The government presented no expert testimony in rebuttal. The trial court accepted the testimony, and granted Ms. Berry’s request for a lower sentence due to diminished capacity. The government appealed and the Fourth Circuit affirmed (without published opinion). In an unpublished opinion, the court held that the district court had not abused its discretion. The court cited the Guidelines statement that diminished capacity is one ground for downward departure ‘not adequately taken into consideration by the Sentencing Commission.’ The Supreme Court has not been so accommodating (Montana v. Egelhoff 1996). Although most states permit voluntary intoxication to diminish a defendant’s capacity, Montana does not. James Egelhoff was charged with two murders; he was so intoxicated when found by police that he claimed that he could not physically have committed the murders. Montana law allowed evidence of intoxication to be presented, but prevented the jury from considering whether voluntary intoxication could have negated the mens rea required for conviction of deliberate homicide. Egelhoff was convicted, and appealed. The Montana Supreme Court reversed, holding that the Due Process Clause guarantees a defendant the right to present all relevant evidence to negate an element of the crime. The U.S. Supreme Court reversed, holding that the proposition that the Due Process Clause guarantees the right to introduce all relevant evidence is simply indefensible. The 5–4 majority listed a number of situations in which relevant evidence may be excluded, including prejudicial, confusing, time-wasting, cumulative, and unreliable evidence. It held that Egelhoff did not meet his ‘heavy burden’ that the Montana law violated due process. It held that dealing with crime is much more the business of the states than the Federal Government. The law in question did not ‘offend some principle of justice so rooted in the traditions of and conscience of our people as to be ranked as fundamental.’ It traced history and found no support in the common law for using voluntary intoxication as a defense. The majority conceded that many courts had created an exception for specific intent crimes.

Citing that 20 per cent of states have not accepted this principle, the majority held that is not so deeply rooted as to be a fundamental right. Justice O’Connor’s dissent argued that the state’s interest in convicting a certain class of offenders is not sufficient to satisfy Due Process. She held that the exceptions mentioned by the majority did not exclude a whole category of evidence.

Discussion and evaluation Dix (1971) argues that diminished capacity represents an attempt to integrate the continuous variability of mental disorder and the discontinuous categories of criminal law. He analyzes the concept using two models: 1 Subjective – emphasizing the character of individual defendants. Under this model, liability can be established only if: (a) the person violated a social prohibition; (b) the offender was aware of the prohibition; (c) the offender acknowledged at the time that the rule ‘should’ have been obeyed; and (d) the offender’s decision to violate the rule was not significantly affected by factors other than his/her philosophical decision to do so. By focusing on the capacity of the defendant, this model emphasizes the deterrent function of the law. 2 Objective – emphasizing the threat that the offender poses to society. Under this model, liability is properly imposed if the person has demonstrated that he or she poses such a threat. The model emphasizes the retributive function of the law, but it may also support the preventive function by educating the public about the rules. Dix discusses four theories under which psychological abnormality might be used in assessing criminal liability: 1 To produce a general mitigating factor (‘diminished responsibility’). The English Homicide Act of 1954 (Dix 1971) takes this approach, although it deals with both the charge and the punishment. Dix concludes that, with the possible exception of homicide, American law does not easily lend itself to such gradations. Also, diminished capacity might fit with the principle that severity of crime correlates with moral responsibility, but not with the principle that punishment correlates with the defendant’s threat to society. 2 To affect mens rea. Problems exist because most offenses (again except homicide) are not graded based on mens rea considerations. Also, mens rea is generally defined in purely cognitive terms that are not compatible with psychological analysis. In particular, psychodynamic experts are likely to confound the influence of unconscious factors with loss of mens rea. 3 There is the potential to use psychological testimony to argue that, even though mens rea existed, the criminal behavior was caused by unconscious factors rather than by the conscious mens rea (State v. Sikora 1965).

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However, the law traditionally has used an all-or-none analysis for the causal relationship between mens rea and actus reus; so again psychological evidence leading to gradations of the balance between conscious and unconscious factors does not fit well within the present legal framework. 4 It might be possible to modify the mens rea concept to make it more compatible with psychological evidence. Chambliss (1967) differentiates between instrumental and expressive criminal acts, and argues that deterrence is more effective for those who have little commitment to crime and whose behavior is expressive rather than instrumental. This distinction does not exist formally in current law, although increased penalties for repeat offenders do address it; and Dix argues that it would be difficult to prove and difficult to integrate into existing law. Dix also argues that attempts should be made to reconcile psychological information and the law governing mental states, both on the basis of fairness and because psychological evidence bears on an offender’s ‘personal turpitude,’ an essential component of society’s desire to impose punishment. Recognition of psychological factors reduces the amount of incarceration that a mentally disordered offender experiences before obtaining treatment. Imposing punishment on those whose mental condition reduces its deterrent effect is inappropriate. Diminished capacity would provide juries with an additional option in cases where mental disorder does not rise to the level of insanity. Morse (1984) divides diminished capacity into a mens rea variant (leading to a finding of not guilty for those crimes without lesser included offenses) and a partial responsibility variant (reducing the level of the charge). He admits, however, that the mens rea variant may exculpate for one crime but not for a lesser included charge, thus making it essentially comparable to partial responsibility. The mens rea variant becomes confusing because of the difficulty of defining the legal distinction between general and specific intent, which Morse says cannot be adequately done. He points out that courts introduced the distinction in order to prevent intoxication, mistake, or diminished capacity from leading to a not guilty verdict; he argues that it would be simpler just to bar those conditions as exonerating factors directly. He explains that experts are often asked not whether the defendant had the requisite intent but whether he had the capacity to have formed the intent, which permits unscientific speculation. Morse argues that the logical and moral basis for the mens rea variant is compelling. Arguments for limiting or rejecting the mens rea variant include: (i) confusion of the two variants of diminished capacity; (ii) fear that intoxication and similar claims will lead to total exculpation; (iii) unwarranted fear for public safety; (iv) unjustified belief that a mens rea variant will undermine the

insanity defense and the bifurcated trial in those jurisdictions that have it; and (v) unjustified fear of cluttering the trial process. Morse rejects each argument. In particular, he argues that there is no significant difference between mental state determinations in the case of mens rea and in insanity, or competency. He states that it makes no legal or policy sense to permit diminished capacity for voluntary intoxication, but to prohibit it for involuntary mental disorder. There is no reason to believe that mental disorder is not as likely to remove general as specific intent. Morse also argues that it makes no sense to limit the defense to homicide. He says that the concept behind partial responsibility in sentencing hearings makes more sense than at trial, but it removes an important expression of community wishes from the province of the jury. Morse accepts that some acts that satisfy criminal definitions should lead to lesser penalties or exculpation, but not through a partial responsibility approach. Given the variability among jurisdictions’ statutes and case law concerning diminished capacity, evaluators must familiarize themselves with the applicable rules. These rules include the legal definition of diminished capacity and whether or not testimony is permitted on the ultimate issue, that is, whether or not the defendant’s capacity was diminished by mental disorder. Once that has been done, and the defendant is fully informed of the purpose of the evaluation and the possible result of any opinions generated as a result of the evaluation, the approach is similar to that discussed previously under the insanity defense. In both cases, the legal question is whether the defendant was suffering from a mental disorder (however defined in that jurisdiction) and how that disorder, if present, affected the defendant’s cognitive abilities at the time of the alleged crime. Because of the recent flux in the availability of diminished capacity as a defense, formal evaluation schedules have not been developed as they have for insanity and competency to stand trial. Evaluators therefore will have to operationalize the jurisdiction’s legal criteria along the same lines and be prepared to explain their reasoning in reports or testimony.

EXTREME EMOTIONAL DISTRESS Anglo-American common law has for centuries recognized that persons under significant psychological stress may bear decreased responsibility for their criminal behavior. Defendants who can demonstrate that their ability to control their behavior was impaired by emotional conditions not rising to the level of legal insanity may have the severity of their charges or sentences reduced, or may even be found not guilty. When the criminal law was codified by many state legislatures, the concept of extreme emotional distress was

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incorporated into the definitions of particular specific intent crimes. The construct is therefore comparable to diminished capacity, in many respects, both in theory and in actual courtroom practice.

Trial and sentencing During the trial phase, extreme emotional distress, heat of passion, or other similar constructs are most often used in connection with homicide charges. All jurisdictions recognize different degrees of homicide that differ only as to the specific intent required. There are two major legal approaches to this differentiation process. In one, homicide is a single class of crime, with various degrees of severity (such as first- and second-degree murder, and voluntary and involuntary manslaughter). Once the act of killing has been proven, determination of the degree of culpability is determined by the intent of the defendant. In the second approach, the different degrees of homicide are treated as distinct crimes. Statutes rarely provide clear definitions of extreme emotional distress; most of them simply use the words themselves (or similar terms, such as heat of passion). For example, the Maine statute examined by the U.S. Supreme Court in Mullaney v. Wilbur (1975) defined manslaughter as ‘Whoever unlawfully kills a human being in the heat of passion, on sudden provocation, without express or implied malice aforethought’ (Maine Rev. Stat. 1964). Courts may further define statutory terms in individual cases. ‘Heat of passion’ in the above Maine statute was explained by a trial judge as, ‘At the time of the act the reason is disturbed or obscured by passion to an extent which might [make] ordinary men of fair, average disposition liable to act irrationally without due deliberation or reflection, and from passion rather than judgment’ (App. 47 1974). Such definitions from trial courts apply only to the particular case in question, but appellate courts may on occasion adopt them, thus applying definitions to their whole jurisdictions. The New York Court of Appeals (the highest state court) pointed out that ‘extreme emotional disturbance’ was substituted for ‘heat of passion’ in the state homicide statute to reflect advances in psychology demonstrating that a ‘significant mental trauma’ resulted in a ‘mental infirmity short of insanity,’ which may be present ‘for a substantial period of time, simmering in the unknowing subconscious and then inexplicably coming to the fore.’ The heat of passion defense is precluded by any period of cooling off before the crime, whereas extreme emotional disturbance is not necessarily precluded. It is not sufficient that the defendant was merely angry or upset (People v. Patterson 1976). Courts have also attempted to define extreme emotional distress as contrasted to other legal constructs; for example, the Illinois Supreme Court held that the level of

mental illness required for a guilty but mentally ill finding does not necessarily rise to the level of extreme emotional disturbance required to mitigate a death sentence (People v. Crews 1988). The major issue in appellate decisions concerning extreme emotional distress has been the burden of proof. The conflict has been over whether extreme emotional distress is an affirmative defense to first-degree murder, which requires the defendant to establish its existence; or whether the prosecution must prove the absence of extreme emotional distress to establish the intent necessary for first-degree murder. In the leading case dealing with this issue (Mullaney v. Wilbur 1975), the U.S. Supreme Court addressed Maine’s homicide statute, which required a defendant charged with murder to prove, by a fair preponderance of the evidence, that he acted ‘in the heat of passion on sudden provocation’ in order to reduce the murder to manslaughter. The prosecution was required to prove that the homicide was unlawful (neither justifiable nor excusable) and that it was intentional. Only if those elements were proven could the jury consider the distinction between murder and manslaughter. On appeal of a murder conviction, the Maine Supreme Court held that the prosecution was entitled to rest on a presumption of implied malice aforethought (required for murder) and could require the defense to prove that a defendant had acted in the heat of passion. The federal district and appeals courts reversed, finding that murder and manslaughter were distinct crimes, and therefore the prosecution was required under In re Winship (1970) to prove each element of the crime beyond a reasonable doubt, including malice (which would be negated by heat of passion.) The Maine Supreme Court had rejected the argument in a different case, and the U.S. Supreme Court accepted this case to resolve the issue. It acknowledged that in English common law, the burden of proving heat of passion rested with the defendant, and that early U.S. cases retained that scheme. However, the Supreme Court had rejected it in Davis v. United States (1895), and most states had abandoned it. The Supreme Court acknowledged that proving lack of heat of passion may be difficult, but that did not justify shifting the burden to the defendant. Subsequently, in People v. Patterson (1976), the New York Court of Appeals held that the New York homicide statute, which required a defendant to prove extreme emotional disturbance to reduce homicide to manslaughter, was not comparable to the Maine statute held unconstitutional by U.S. Supreme Court in Mullaney. The New York law required that intent be proven for homicide, while extreme emotional disturbance could be raised by the defense to reduce the charge to manslaughter. The court therefore held that the New York statute still required the prosecution to prove the elements of the crime and did not permit the jury to infer intent from the crime itself, as the Maine statute did.

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The decision was appealed to the U.S. Supreme Court (Patterson v. New York 1977), which declined to read its decision in Mullaney broadly, and affirmed the conviction: ‘We thus decline to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused … . Proof of the nonexistence of all affirmative defenses has never been constitutionally required; we perceive no reason to fashion such a rule in this case and apply it to the statutory defense at issue here.’ New York’s use of extreme emotional disturbance has been thoroughly discussed by Goldstein (1989). After the Supreme Court struck down most capital sentencing laws in Furman v. Georgia (1972), all states with capital punishment revised their procedures to provide a separate sentencing hearing, at which the state could present aggravating circumstances and the defense could present mitigation. In the list of potentially mitigating circumstances, most states include emotional distress at the time of the crime. The issue of psychiatric evidence in sentencing hearings is considered in detail in Chapter 27.

THE IMPOSITION OF AN INSANITY PLEA ON AN UNWILLING DEFENDANT Previously, our discussion dealt with pleas entered willingly by the defendant. There remains, however, considerable controversy in the law when a defendant who appears to have been insane at the time of the alleged crime refuses to plead insanity. The central conflict is between the autonomy of defendants to choose their own defenses and the dignity of the law. The courts have supported the general position that competent defendants should direct the courses of their defenses, but disagreement remains about what decisions can be made by a defense attorney without his or her client’s consent (Miller et al. 1996). In the case of the insanity plea, there are two separate issues. The first is that of the defendant’s competency to reject such a defense despite evidence that his or her condition and behavior at the time of the alleged crime met the criteria for legal insanity. The second is whether even a competent defendant should be allowed to reject an insanity defense under such circumstances.

Legal issues The major line of cases on the subject has come out of the United States Court of Appeals for the District of Columbia. In Overholser v. Lynch (1961), the trial judge had imposed an insanity defense on Lynch, found him insane, and committed him to St. Elizabeths Hospital. The United States Court of Appeals and the Supreme Court focused on the automatic commitment and did not challenge the trial judge’s authority to impose an insanity

defense. In Whalem v. United States (1965), the Appeals Court held that while an accused may refuse to enter an insanity defense, he may not, in a proper case, prevent the court from imposing it. The majority reasoned that the courts must refuse to permit the conviction of a morally non-responsible defendant. The court reaffirmed its position in United States v. Robertson (1974). Whalem stood until 1979, when the same court in Frendak v. United States (1979) reinterpreted its decision in Whalem. It held that a court may not force an insanity defense on a defendant who intelligently and voluntarily rejects it; but it held that a finding of competency to stand trial does not per se determine competency to reject an insanity defense. It pointed out that the Whalem decision gave little guidance to judges concerning how to decide whether to impose the defense or not, except for a few factors that would support a decision to impose the defense. After Whalem, the case law had encouraged judges to focus on the evidence supporting an insanity defense, rather than on the defendant’s competency to make that decision. Next, the court reviewed the Supreme Court’s decisions in North Carolina v. Alford (1970) and Faretta v. California (1975), both of which stressed the importance of permitting a defendant to make decisions central to the defense, but did not guarantee a defendant the absolute right to control his or her defense. The court held that Whalem was inconsistent with the underlying philosophy of the Supreme Court’s later cases; and it held that there were persuasive reasons why a competent defendant might elect to reject a potentially successful insanity defense, including a desire to avoid a mental commitment potentially longer than the prison term for the crime charged, an objection to the quality of treatment or type of confinement attendant upon an insanity acquittal, a genuine belief that he was not insane, the belief that raising the defense would be equivalent to an admission of guilt, the stigma of insanity, irrational fear of the mentally ill, risk of future discrimination, and avoidance of denigration of political or religious protest. The court held that because the defendant bears the consequences of a decision, if he or she has acted intelligently and voluntarily, a trial court must defer to his/her wishes not to raise an insanity defense. The judge may still interpose the defense against the defendant’s will, however, if the defendant is not competent to reject it (but presumably otherwise competent to stand trial). The court then proceeded to provide guidelines for judges to make that determination. Whenever the evidence raises a substantial question of insanity, the judge must conduct an inquiry designed to ensure that the defendant has been fully informed of the alternatives available, comprehends the consequences of failing to assert the defense, and freely chooses to raise or waive the defense. Because the circumstances involve someone whose mental condition has already been questioned, the examination must not be cursory. If the judge finds that

228 Forensic evaluation and treatment in the criminal justice system

the defendant is capable of making a voluntary and intelligent decision to reject the defense, the judge must respect that decision; but if not, the judge retains the discretion to raise the defense sua sponte. The U.S. Supreme Court has not definitively addressed this issue; in 1895, the Court held that as insanity is not strictly an affirmative defense, it can be raised by either the prosecution or the court (Davis v. United States 1895). In 1966, the Court held that ‘the constitutional right of a defendant [to refuse an insanity defense] cannot be waived by his counsel’ (Brookhart v. Janis 1966). But it did not address whether or not the court could enter such a plea. As a result, both federal and state case law comes down on opposite sides of the issue. State courts in Washington (State v. Dodd 1967; State v. Jones 1983), California (People. v. Redmond 1971; People v. Gauze 1975), Maryland (White v. State 1973; Anderson v. State 1973; Treece v. Maryland 1988), Indiana (Hooks v. State 1977), and Louisiana (State v. Lowenfield 1985) have ruled that the insanity defense cannot be forced. The Fourth Circuit Court of Appeals held that, ‘A prisoner who insists that he did not commit a crime can hardly be forced by his counsel to confess it in order to support a tenuous defense of insanity’ (Snyder v. Cunningham 1961). On the other hand, state courts in Missouri (State v. Hermann 1955), California (People v. Merkouris 1956), Nebraska (State v. Hall 1964), Washington (State v. Kolocotronis 1968), Maine (State v. Fernald 1968), New Jersey (State v. Gadson 1973), Maryland (List v. State 1973; Walker v. State 1974), Minnesota (State v. Pautz 1974), and Colorado (Les v. Meredith 1977) have permitted the imposition of an insanity defense. Several of these states have decisions on both sides of the issue, and the latest decision is not necessarily final. Federal appellate decisions have generally favored the imposition of the defense (Plummer v. United States 1958; United States v. Ashe 1973; United States v. Wright 1980). Both federal (Cross v. United States 1968; Trest v. United States 1968; United States v. Bradley 1972; United States v. Simms 1972; Mendenhall v. Hopper 1978) and state (People v. Gonzales 1967; People v. Baxter 1969; State v. Johnston 1974; United States ex rel. Laudati v. Ternullo 1976) courts have generally held that it is not abuse of discretion for a trial judge to decline to impose an insanity defense. Cohn (1988) points out that since the abolition of the insanity defense itself has been found constitutional in several states, there is little rationale for requiring a judge to impose it. He does not dismiss the need of the law to arrive at a just verdict, but he points out that many methods that are demonstrably more effective to achieve that end (such as eliminating the privilege against selfincrimination) have been ruled to be unconstitutional. Another legal author (Note 1981b) also finds the rationales for imposing the defense on a competent defendant unpersuasive, and concludes that such decisions tilt the balance too far toward state interests. He concludes, however, that judges should have the authority

to impose the insanity defense on incompetent defendants. Resnick (1978) disagrees, arguing that defendants who are incompetent to waive an insanity defense should be treated the same as other incompetent defendants.

Evaluation In United States v. Robertson (1974), the United States Court of Appeals for the District of Columbia Circuit set forth several factors that a trial judge should consider in deciding whether or not to impose an insanity defense, including: (i) the bizarre nature of the crime; (ii) whether defense counsel wishes to raise the defense; (iii) the differing views of experts on the question of insanity; and (iv) the defendant’s behavior at trial. In 1980, the Appellate Division of the New Jersey Superior Court operationalized the standard ‘knowing and intelligent’ test of the validity of waiver of constitutional rights by instructing trial judges to examine the defendant’s ‘awareness of his rights and available alternatives, his comprehension of the consequences of failing to assert the defense and the freeness of the decision to waive the defense.’ The judge should avoid, however, ‘an incursion into the area of mental capacity which might develop into an irreconcilable conflict with the finding of competency to stand trial’ (State v. Khan 1980). Most jurisdictions lack statutory or common law criteria, however, and evaluators will have to operationalize their assessments based on the general ‘knowing and intelligent waiver’ standard. In states that permit – even require – judges to enter an insanity defense on behalf of a defendant in appropriate circumstances (Colorado Stat.), the psychiatrist may be asked to evaluate defendants over their objections, and two distinct issues may need to be addressed: 1 Is the defendant competent to decide which plea to enter? 2 Does the defendant meet the criteria for insanity (even though he or she indicates that they have no desire to enter that plea)? In such a situation, it is even more important than in the usual competency or criminal responsibility evaluation for the evaluator to have a thorough grasp of the jurisdiction’s rules on the subject, and to communicate fully the purpose and potential consequences of the evaluation to the defendant. Evaluators should also be aware of the possibility of political agendas behind forced insanity defenses, where such pleas have been used to discredit political acts by defendants (Resnick 1978).

REFERENCES Act Number 266, Michigan Public Act of 1966. Alaska Stat. Sec. 1245.040 (Cum. Supp. 1983).

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Criminal responsibility 231 Pasewark, R.A., Pantle, M.L., Steadman, H.J. 1982. Detention and rearrest rates of persons found not guilty by reason of insanity and convicted felons. American Journal of Psychiatry 139, 892–7. Patterson v. New York, 432 U.S. 197, 210 (1977). Pennsylvania Cons. Stat. Ann. Title 18, Sec. 314 (Purdon 1983). Pennsylvania Cons. Stat. Ann. Title 18, Sec. 315(a) (Purdon 1983). People v. Baxter, 32 A.D.2d 840, 302 N.Y.S.2d 456 (1969). People v. Crews, 522 N.E.2d 1167 (Ill. 1988). People v. Gauze, 542 P.2d 1365 (Cal. 1975). People v. Gonzales, 229 N.E.2d 538 (N.Y. 1967); cert. denied, 390 U.S. 971 (1968). People v. Gorshen, 336 P.2d 492 (Cal. 1959). People v. Marshall, 448 N.E.2d 969, 980 (Ill. App. 1983). People v. McLeod, 407 Mich. 632, 288 N.W.2d 909, 919 (1980). People v. McQuillan, 392 Mich. 511, 221 N.W.2d 569 (1974). People v. Merkouris, 297 P.2d 999 (Cal. 1956). People v. Patterson, 39 N.Y.2d 288, 302-3 (1976). People v. Redmond, 16 Cal. App. 3d, 94 Cal. Rptr. 542 (1971). People v. Robles, 682 N.E.2d 194 (Ill. App. 1997). People v. Sorna, 88 Mich. App. 351, 362, 276 N.W.2d 892 (1979). People v. Wells, 202 P.2d 53 (Cal. 1949), cert. denied, 337 U.S. 919. People v. White, 117 Cal. App. 2d 270, 172 Cal. Rptr. 612 (1981). People v. Wolff, 394 P.2d 959 (Cal. 1964). Perr, I.N. 1985. The insanity defense: the case for abolition. Hospital and Community Psychiatry 36, 51–5. Petrella, R.C., Benedek, E.P., Bank, S.C., et al. 1985. Examining the application of the guilty but mentally ill verdict in Michigan. Hospital and Community Psychiatry 36, 254–8. Phillips, B.L., Pasewark, R.A. 1980. Insanity plea in Connecticut. Bulletin of the American Academy of Psychiatry and the Law 8, 335–44. Plummer v. United States, 260 F.2d 729 (1958). Pogrebin, M., Regoli, R., Perry, K. 1986. Not guilty by reason of insanity: a research note. International Journal of Law and Psychiatry 8, 237–41. Pouncy v. State, 465 A.2d 475 (Md. 1983). Ray, I. 1871: Treatise on the Medical Jurisprudence of Insanity. Reprinted in 1976. New York: Arno Press. Resnick, P.J. 1978. The political offender: forensic psychiatry considerations. Bulletin of the American Academy of Psychiatry and the Law 6, 388–97. Rex v. Arnold, 16 How. St. Tr. 695 (1724). Rex v. Hadfield, 27 St. Tr. 1281 (1800). Robey, A., Pogany, A. 1974. The N.G.R.I. Commitment and McQuillan. Michigan Department of Mental Health Study (unpublished).

Robinson v. Solem, 432 N.W.2d 246, 249 (S.D. 1988). Rogers, R. 1986: Conducting Insanity Evaluations. New York: Van Nostrand Reinhold. Rogers, R. 1987. APA’s position on the insanity defense: empiricism versus emotionalism. American Psychologist 62, 840–8. Shaw v. State, 471 P.2d 715 (1970); cert. denied (1971). Simon, Paul J. 1967: The Jury and the Defense of Insanity. Boston: Little, Brown. Sinclair v. State, 132 50 58 (Miss. 1931) (per curiam). Slobogin, C. 1985. The guilty but mentally ill verdict: an idea whose time should not have come. George Washington Law Review 53, 494–527. Smith, G.A., Hall, J.A. 1982. Evaluating Michigan’s guilty but mentally ill verdict: an empirical study. University of Michigan Journal of Law Reform 16, 77–114. Snyder v. Cunningham, 292 F.2d 683, 685 (4th Cir. 1961). South Dakota Codified Laws Ann. Sec. 23A-7-2 (Pocket Supp. 1983). State v. Breakiron, 108 N.J. 591, 532 A.2d 199 (1987). State v. Dodd, 424 P.2d 302 (Wash. 1967). State v. Fernald, 248 A.2d 754 (Me. 1968). State v. Gadson, 372 A.2d 1143 (N.J. Super. 1973). State v. Hall, 125 N.W.2d 918 (Neb. 1964). State v. Hermann, 283 S.W.2d 617 (Mo. 1955). State v. Hornsby, 484 S.E.2d 869 (S.C. 1997). State v. Johnston, 527 P.2d 13 10 (Wash. 1974). State v. Jones, 50 N.H. 369 (1871). State v. Jones, 664 P.2d 1216 (Wash. 1983). State v. Khan, 417 A.2d 585, 591 (N.J. Sup. Ct. App. Div. 1980). State v. Kolocotronis, 436 P.2d 774 (Wash. 1968). State v. Korell, 690 P.2d 992 (Mont. Sup. Ct. 1984). State v. Krol, 344 A.2d 289 (1975). State v. Laffoon, 610 P.2d 1045 (Ariz. 1980). State v. Lange, 123 50 639 (La. 1929). State v. Lowenfield, 495 So. 2d 1245 (La. 1985). State v. Neely, 819 P.2d 249 (N.M. 1991). State v. Pautz, 217 N.W.2d 190 (Minn. 1974). State v. Raaths, No. 83-CF-307 (Kenosha Cty., WI, decided December 13, 1983). State v. Roussel, 424 So. 2d 226, 230 (La. 1982). State v. Shaw, 471 P.2d 715 (Ariz. 1970); cert. denied, 39 U.S.L.W. 3313 (Jan. 18, 1971). State v. Sikora, 210 A.2d 193 (N.J. 1965). State v. Strasburg, 110 P.2d 1020 (Wash. 1910). State v. Wilcox, 436 N.E.2d 523 (Ohio 1981). State v. Wilson, 413 S.E.2d 19 (S.C. 1992). State v. Zola, 548 A.2d 1022, 1029-31 (N.J. 1988). Steadman, H.J. 1985. Empirical research on the insanity defense. Annals of the American Academy of Political and Social Science 477, 58–64. Steadman, H.J., Callahan, L.A., Robbins, P.C., et al. 1989. Maintenance of an insanity defense under Montana’s ‘abolition’ of the insanity defense. American Journal of Psychiatry 146, 357–60. Steele v. State, 294 N.W.2d 2 (Wis. 1980).

232 Forensic evaluation and treatment in the criminal justice system Stewart v. United States, 275 F.2d 617, 624 (D.C. Cir. 1954). Treece v. Maryland, 547 A.2d 1054 (Md. App. 1988). Trest v. United States, 350 F.2d 794 (D.C. App. 1968) (per curiam); cert. denied, 382 U.S. 1018 (1966). Townsend v. State, 417 S.W.2d 55 (Tex. Crim. App. 1968). United States ex rel. Laudati v. Ternullo, 423 F. Supp. 1210 (S.D.N.Y. 1976). United States v. Ashe, 478 F.2d 661 (D.C. App. 1973). United States v. Bradley, 463 F.2d 808 (D.C. App. 1972) (per curiam). United States v. Brawner, 471 F.2d 969 (D.C. Cir. 1972). United States v. Frisbee, 623 F. Supp. 1217 (N.D. Cal. 1985). United States v. Gold, 661 F. Supp. 1127 (D.D.C. 1987). United States v. Perry, 173 F.3d 427 (4th Cir. 1999); unpublished opinion, 1999 U.S. App., Lexis 3326. United States v. Pohlot, 827 F.2d 889 (3rd Cir., 1987). United States v. Robertson, 507 F.2d 1148 (D.C. Cir. 1974).

United States v. Simms, 463 F.2d 1273 (D.C. App. 1972). United States v. Taylor, 510 F.2d 1283 (D.C. Cir. 1975). United States v. Wright, 627 F.2d 1300 (D.C. Cir. 1980). Utah Code Ann. See. 77-13-1 (Pocket Supp. 1983). Utah Code Ann. 76-2-305(1) (1986). Walker v. State, 321 A.2d 170 (Md. App. 1974). Washington v. United States, 390 F.2d 444 (D.C. Cir. 1967). Weinberg, A. (ed.). 1957: Attorney for the Damned. University of Chicago Press, 16–88. Whalem v. United States, 346 F.2d 812 (D.C. Cir. 1965), cert. denied, 382 U.S. 862 (1966). White v. State, 299 A.2d 873 (Md. App. 1973). Wisconsin Rev. Stat. 971.165 (1983–84). Woodmansel, M.A. 1996. The guilty but mentally ill verdict: political expediency at the expense of moral principle. Notre Dame Journal of Law, Ethics and Public Policy 10, 341–87.

26 Novel mental disorders1 ROBERT D. MILLER

The traditional use of mental health defenses and claims has been for major mental disorders such as schizophrenia and the major mood disorders (Daniel et al. 1984; Rogers, Bloom and Manson 1984). These authors reported a very high correlation between findings of insanity and the presence of psychotic mental disorders in the acquittees. Together with data from a different jurisdiction, it was found that 70 per cent of insanity acquittees suffered from psychotic mental disorders, and 12 per cent suffered from neurosis, organic brain injuries, or mental retardation. In recent years, attorneys have begun to put forth new mental or social disorders, either to excuse (or mitigate) otherwise criminal behavior, or to lay the foundation for civil litigation.

POSTTRAUMATIC STRESS DISORDER Perhaps the most common condition is posttraumatic stress disorder (PTSD), which initially blossomed when the disorder was officially recognized by the American Psychiatric Association (1980). The initial criteria required that the trauma be ‘outside of normal human experience,’ reflecting its origins in war and single disasters. The current criteria (DSM-IV) are broader, requiring only that the person ‘experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and the person’s response involved intense fear, helplessness, or horror.’ The broadening of the definition came largely from the influence of advocates for victims of child abuse, who argued that serious abuse of vulnerable children over an extended period of time can cause the same symptoms as a few catastrophic events. Initially, the focus of the use of PTSD was on Vietnam veterans, and largely concentrated 1 This chapter is an expansion of material originally published in the Thomas M. Cooley Law Review (Miller 2000) and is used with permission.

in the criminal courts. Forensic clinicians, while acknowledging the validity of PTSD as a clinical disorder, have cautioned against its uncritical acceptance in the courts, in part because the criteria rely so heavily on the patient’s self reports (Sparr and Boehnlein 1990; Stone 1993; Weintraub 1997). On the other hand, legal author Goldklang (1997), argues for the wider acceptance of PTSD as an excuse for otherwise criminal behavior. The defense has met with varying success, due in part to the fact that there are a number of cases in which the defendants do not meet the PTSD criteria, and others in which PTSD is present, but not causally related to the criminal acts in question. One successful use of the defense was in State v. Heads (1980). Heads killed the husband of his wife’s sister after his wife left him. He was found sane and convicted of murder at his first trial, but the conviction was overturned on other grounds. At his second trial (after DSMIII came out listing PTSD), Heads was found insane. Despite the broader criteria, Appelbaum et al. (1993) report that PTSD remains rare as a defense to criminal charges – their data reveal that it was raised as an insanity defense in 28 of 8953 cases (out of 967 209 felony cases) and was successful in only eight cases, comparable to the success rate of insanity defenses in general. One of the main criticisms of PTSD in the forensic arena is the subjective nature of the diagnosis. The DSM criteria are typically operationalized almost entirely from the patient’s subjective report. Detailed structured interviews provide more detail, but can suggest symptoms to malingerers (Pitman and Orr 1993). Psychometric testing has not proved effective in distinguishing genuine from simulated PTSD. Invasive techniques, including lactate or yohimbine, pain tests, and blood epinephrine (adrenaline) levels have also been shown to distinguish between PTSD and simulation, but at this time they are probably unsuitable for forensic investigations. Potential blood tests have been developed but not yet studied in controls and in noncombat PTSD sufferers (Pitman and Orr 1993). More promising at the present time is psychophysiologic testing, to address Criterion D (arousal) of the DSM-IV

234 Forensic evaluation and treatment in the criminal justice system

diagnosis of PTSD. A combination of heart rate, skin conductance, lateral frontalis electromyography (EMG), corrugator EMG, and zygomaticus major EMG was able to correctly classify 18 of 25 genuine PTSD sufferers, 16 of 16 non-PTSD patients, and subsequently 12 of 16 of the nonPTSD patients when they were asked to simulate (Orr and Pitman 1993). These authors stress that the tests cannot stand alone, and must be used as part of a comprehensive evaluation. They discuss the differences in admissibility standards between Frye v. United States (1923) and Daubert v. Merrill Dow Pharmaceuticals (1993), and cite a recent case, Vinal v. New England Telephone (1993) as reported in Pitman, Saunders, and Orr (1994) in which an expert was allowed to testify under the Frye standard in a civil damages case that the plaintiff’s psychophysiologic responses met the PTSD criterion of psychophysiologic reactivity, but was not allowed to testify as to a numerical estimate of the probability that she suffered from PTSD. The broader criteria for PTSD adopted in 1994 have created a much larger class of potential victims, for both criminal and civil litigation, and have spawned a number of ‘me-too’ conditions that are not yet recognized as ‘official’ mental disorders by the American Psychiatric Association, but are increasingly brought up in court.

2 The presumed beliefs that people harbor about the consequences and effects of male violence against women in intimate relationships, i.e., that battered women enjoy or need the violence, and could leave if they chose.

BATTERED WOMAN SYNDROME

•

The oldest of these novel syndromes historically, and the one most commonly put forward in criminal courts, is battered woman syndrome (BWS), which is used in an attempt to explain why women kill their batterers at times when the women are not in immediate danger. While BWS clearly exists as a clinical syndrome, and explains much aggressive behavior against abusers, it is not as clear whether it should excuse that behavior. The courts have become increasingly receptive to the admissibility of expert testimony on BWS, although not necessarily to the excusing power of the syndrome. [The first appellate case to approve the admissibility of the BWS was Ibn-Tamas v. United States (1979); for discussions of subsequent cases and the rationales for and against the use of BWS as a defense to criminal charges, see Copp (1995).] Professor Copp argues for acceptance of BWS as a self-defense concept, because the women in question have been physically abused by the victim, and when they attack, they protect themselves from future violence by their abusers. For a detailed discussion of case law, see Shopp, Sturgis, and Sullivan (1994). Schuller and Vidmar (1992) list obstacles to successful self-defense claims:

•

1 The laws of self-defense, which require that the defendant have a reasonable apprehension of imminent death or grievous bodily harm at the time of the killing, and that the force used was a reasonable and necessary response.

Expert testimony attempts to explain the defendant’s state of mind – why her actions can be seen as reasonable, and why she did not leave. In most cases, however, experts are allowed to testify as to the nature of BWS, but not whether the defendant meets criteria for the syndrome. Courts consider both reliability and validity, using either Frye v. United States (1923) or the Federal Rules of Evidence, #702. The American Psychological Association has supported the validity of the syndrome, but points out that methodological problems remain, including: (i) no control group; and (ii) the non-random selection of subjects. Parrish (1996) argues that there is no such thing as a separate ‘battered women’s syndrome’; the expert testimony is properly used to support a self-defense or duress defense. Parrish analyzed 269 court opinions and twelve state statutes; her data demonstrate that:

•

• • • •

Testimony on battering is admissible in all 51 state jurisdictions. Sixteen of nineteen federal courts that have addressed the issue have admitted the testimony. BWS testimony is most commonly admitted in traditional self-defense cases. Most jurisdictions (76 per cent) permit expert witness testimony to establish that a defendant is battered. Most jurisdictions (70 per cent) permit testimony on a defendant’s mental state. Two-thirds of jurisdictions permit testimony to explain why a battered spouse does not leave the situation. Thirty per cent of state courts (44 per cent of federal) permit expert testimony to prove diminished capacity. Appeals were affirmed in 63 per cent of state cases, although expert testimony was admitted in 71 per cent of those cases; convictions were affirmed in 77 per cent of federal cases.

As societal knowledge and attitudes toward domestic violence change, there may be less need for expert testimony. Jury instructions have been shown to be the most important variable. In some studies, expert testimony did not alter verdicts, but it did influence the way in which jurors perceived the case, whilst in others it did influence decision making. Testimony was influential only if linked to the specific defendant, and the studies were of only mock juries. When expert testimony is countered by the prosecution, its effects disappear. Ewing (1987) reviewed 85 homicide trials of battered women, and the defendant was convicted of some form of murder in 70 per cent of these. In two-thirds of the cases, the killing occurred outside of a direct confrontation. Walker (1990) reported that in 150 cases on BWS in which she has testified, 25 per cent of defendants were acquitted.

Novel mental disorders 235

BATTERED CHILD SYNDROME A logical sequela of the recognition of BWS was the creation of the battered child syndrome (BCS) to explain (and excuse) aggressive behavior of children against their abusers, even when their retaliatory behavior was clearly and carefully planned. The most publicized example of the use of this defense was in the case of the Menendez brothers in California, who were finally found guilty at a second trial, after a hung jury at the first trial (People v. Menendez undated). The defense remains very controversial. Several other courts have held that testimony on BCS is admissible, holding that is a ‘recognized medical diagnosis’ (State v. Wilkinson 1978; State v. Mulder 1981). Commentators are divided on the legitimacy of the diagnosis in court. Sacks (1994) argues that the defense should be accepted in appropriate cases, but one legal author (Note 1994) argues against it.

BLACK RAGE Defense attorneys have now moved from situations in which abuse by the specific victim(s) is put forward as a defense to arguing that defendants should be excused because of generic trauma while growing up. These syndromes are all variants of PTSD, but without the documented research that is now available to support PTSD. One such syndrome is called the black rage syndrome, first proposed by Grier and Cobbs in 1968. These authors argued that because of the pervasive pattern of racism that persists in the United States, blacks develop a ‘cultural paranoia’ which leads them to view whites as the enemy, and thus to react in what they perceive to be self-defense. The first reported use of the defense was in United States v. Robertson (1974), in which a psychiatrist testified in favor of the black rage defense. In Fisher v. United States (1946), the trial court rejected a diminished capacity instruction on black rage, and Fisher was convicted. The appeals court upheld the rejection of diminished capacity; the Supreme Court majority affirmed, since Fisher’s mental state did not amount to insanity. Copp (1995) argues against the defense; while she agrees that discrimination against blacks continues, she argues that it does not rise to the level of insanity. The theory explains the development of intense anger, but does not justify criminal conduct. Copp distinguishes black rage from PTSD because in the latter condition the violence is unanticipated and occurs in response to recurrence of the traumatic event. She distinguishes black rage syndrome from BWS because in the latter, the woman has been physically abused by the victim, and when she attacks, she protects herself from future violence by her abuser. Copp argues that to accept black rage as a defense would harm society in two ways: first, it would open up the floodgates for an

endless stream of discrimination-based defenses; and second, it would insult millions of law-abiding blacks. Goldklang (1997) supports the defense, conceding that it would be problematic to satisfy a cognitive insanity test, but might satisfy an irresistible impulse test or the Model Penal Code Test; it might also satisfy a diminished capacity test – particularly the partial responsibility variant. Falk (1996) also supports the defense. She concedes that courts have not accepted it, but she argues that such a defense (along with ‘Urban Psychosis’ and ‘Television Intoxication’) can be fitted within the existing structure of the criminal law, either to support an insanity defense, to elucidate other mental states such as diminished capacity and provocation, to support self-defense, or to play a mitigating role in sentencing. Falk concludes that these defenses are perhaps most relevant at sentencing, but the rise of determinate sentencing guidelines has limited their use.

ROTTEN SOCIAL BACKGROUND Another sociological background defense that has been put forward in courts is rotten social background (RSB), which posits that exposure to violent, abusive conditions during childhood leads to uncontrollable aggressive behavior. Delgado (1985) argues that RSB defense not only protects individual defendants, but also forces society to confront the social conditions that led to it. Morse (1994) argues that RSB produces neither sufficient external duress nor sufficient internal coercion, to excuse criminal behavior. The defense has not gained acceptance in court. The U.S. Court of Appeals for the District of Columbia Circuit (United States v. Alexander 1972) rejected the defense, although a psychiatrist testified in its favor.

URBAN SURVIVAL A similar new sociological defense is urban survival or urban psychosis syndrome, which proposes that growing up in violent ghettos causes such a distortion of normal human values and expectations that its victims do not develop non-violent responses to adversity, and react to even the smallest slights with lethal force. As to be expected from the previous discussion, Falk supports the defense, at least in some cases, while Copp (1995, p. 207) opposes it. Estrich (1998) also opposes it, expressing concern that the criminal justice system itself may suffer if defendants are not held responsible for their crimes for a variety of social/political reasons. Similar arguments are made by Dershowitz (1994).

TELEVISION INTOXICATION One of the more ingenious attempts to excuse violent behavior was created by attorney Ellis Ruben in the

236 Forensic evaluation and treatment in the criminal justice system

Zamora case (Zamora v. State 1982). Zamora was a Cuban immigrant who learned to speak English from watching television. He and some other adolescent friends were robbing the house of an elderly neighbor when she surprised them. They brutally murdered her. At trial, Ruben tried to argue that Zamora had been so saturated with the violence he had seen on television that he was incapable of behaving any other way. The trial court did not allow testimony on the novel theory, and the denial was upheld on appeal.

RAPE TRAUMA SYNDROME Unlike the syndromes discussed above, rape trauma syndrome (RTS) refers to victims of sexual abuse, and not to the perpetrators. First described by Burgess and Holstrom (1974), the syndrome refers to purported symptoms that are unique to victims of sexual abuse; its use in court is typically to prove that sexual abuse actually occurred, thus providing evidence against a criminal or civil defendant. Such use of expert testimony is controversial. Cohen (1985) reports that testimony may be proffered to explain victim behavior that may appear paradoxical to lay jurors (such as denial or retraction of accusations), or to bolster the credibility of a victim (especially if the victim is very young.) Cohen argues that such testimony lacks the required scientific reliability to be admissible under the Federal Rules of Evidence. Unlike other syndromes (battered child, rape trauma, battering parent), there is often no physical evidence to support child sexual abuse, which makes the expert testimony even more powerful. Cohen does approve of testimony that explains specifically sexual behavior that is not common in young children who have not been sexually abused, as was the case in In re Cheryl H. (1984). Frazier and Borgida (1992) provide a detailed review of appellate decisions on RTS. Courts continue to be divided as to the admissibility of RTS testimony. For example, in State v. Marks (1982), the court held that evidence of rape trauma syndrome was admissible, but in State v. Taylor (1984) the court ruled it inadmissible, whilst in State v. Saldana (1982) the court also ruled it inadmissible because it was not based on a scientific test that accurately determines whether a rape has occurred. Frazier and Borgida report that qualification of experts is rarely a bar to admission. Reliability of RTS evidence was rarely raised, but when it was it was a major factor in the evaluation of the testimony. The most common objection was that the evidence was prejudicial, though courts have divided evenly on this issue. Testimony is more likely to be admitted if it is general, and not specific to the victim in the case. The authors offer several criticisms of RTS testimony, namely that:

•

Since symptoms of rape victims vary widely, a ‘syndrome’ does not accurately describe common features.

• •

Since the symptoms are not unique to RTS, they could be caused by other stressors. Individuals react to being raped in different ways. The authors do acknowledge that recent research has demonstrated that RTS symptoms are relatively circumscribed, and some are specific to rape.

Some courts have held that RTS testimony is not beyond the ken of the average juror, but the research cited by Frazier and Borgida contradicts that assumption. While expert testimony does exert some influence on juries, it does not appear unfairly to prejudice the defendant. Data from appellate decisions indicate that some experts are describing symptoms as consistent with RTS that have not been substantiated by the literature. Courts do not appear to rely on the most recent research in their decisions about admissibility.

CULTURAL DEFENSES In addition to variants of PTSD, defense attorneys have begun to graft cultural factors onto existing defenses such as mistake of fact and diminished responsibility. For example, in People v. Moua (1985) the trial judge reduced charges from rape to false imprisonment because in the Hmong culture, the marriage ritual involves abducting a woman and consummating the relationship despite her protests. In this case, the Hmong defendant mistakenly took the victim’s protests as part of the ritual. In People v. Chen (1989), Chen killed his wife after she confessed her infidelity. The judge found that Chinese cultural beliefs, in which a cuckolded husband’s manhood is lost, and he is expected to kill his wife, diminished Chen’s responsibility to second-degree manslaughter. In People v. Wu (1991), after discovering her husband’s infidelity, Ms. Wu killed her young son and tried to kill herself. The trial judge refused a jury instruction to consider the defendant’s cultural background, but the Appeals Court reversed, holding that evidence of her cultural background could have provided the jury with reasonable doubt that one of the required mental states existed. Gallin (1994) argues that such decisions reinforce domestic violence, as after Chen, there was an increase in domestic violence in Asian communities in New York. Asian women who left their countries to escape the ritual violence are now faced with it in the USA, and feel that the courts will not protect them. By contrast, when Vietnamese men were prosecuted in Los Angeles for battering spouses, the battering subsided.

MISCELLANEOUS NOVEL DEFENSES Estrich (1998), in addition to listing the common syndromes discussed above, lists several others that she has

Novel mental disorders 237

encountered in her practice, including adoptive child syndrome (excusing violent behavior on the basis of a person’s feelings of rejection because of being adopted); and riot syndrome (in which mob mentality takes over and otherwise non-violent individuals become violent). She applies the same criticisms to these as she has to the more familiar syndromes. Dershowitz (1994) lists (and disapproves of) even more syndrome defenses that have been used in courts; relevant to the PTSD group are elderly abuse syndrome, football widow syndrome, holocaust survival syndrome, legal abuse syndrome, meek-mate syndrome, mother lion defense, premenstrual stress syndrome, UFO survivor syndrome, and unhappy gay sailor syndrome. Another recent entry is the reverse of the black rage coin – white racism. In a recent article in the American Psychiatric Association’s newspaper, Harvard psychiatry professor Alvin Poussaint is quoted as stating that ‘extreme racism’ meets the criteria for the DSM-IV diagnosis of delusional disorder, and therefore could support criminal non-responsibility. Allan Tasman, President of the American Psychiatric Association, opposed the idea, expressing concern that such a view ‘could be used to explain away people’s inappropriate beliefs rather than taking responsibility for them.’ (Psychiatric News 1999).

REFERENCES American Psychiatric Association. 1980: Diagnostic and Statistical Manual of Mental Disorders, 3rd edition. Washington, DC: American Psychiatric Press. Appelbaum, P.A., Jick, R.Z., Grisso, T., Givelber, D., Silver, E., Steadman, H.J. 1993. Use of posttraumatic stress disorder to support an insanity defense. American Journal of Psychiatry 150, 229–34. Burgess, A., Holstrom, L. 1974. Rape trauma syndrome. American Journal of Psychiatry 131, 981–6. Cohen, A. 1985. The unreliability of expert testimony on the typical characteristics of sexual abuse victims. Georgetown Law Journal 74, 429–56. Copp, K.M. 1995. Black rage: the illegitimacy of a criminal defense. John Marshall Law Review 29, 207–38. Daniel, A.E., Beck, N.C., Herath, A., et al. 1984. Factors correlated with psychiatric recommendations of incompetency and insanity. Journal of Psychiatry and Law 12, 527–44. Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786 (1993). Delgado, R. 1985. ‘Rotten social background’: should the criminal law recognize a defense of severe environmental deprivation? Law and Inequality 3, 9–90. Dershowitz, A. 1994: The Abuse Excuse and Other Cop-outs, Sob Stories, and Evasions of Responsibility. Boston: Little, Brown and Company.

Estrich, S. 1998: Getting Away with Murder: How Politics is Destroying the Criminal Justice System. Cambridge, MA: Harvard University Press. Ewing, C.P. 1987: Battered Women who Kill: Psychological Self Defense as Legal Justification. Lexington MA: Heath. Falk, P.J. 1996. Novel theories of criminal defense based upon the toxicity of the social environment: urban psychosis, television intoxication, and black rage. North Carolina Law Review 74, 731–811. Fisher v. United States (328 U.S. 463 (1946), affirming 149 F.2d 28 (D.C. Cir. 1945). Frazier, P.A., Borgida, E. 1992. Rape trauma syndrome: a review of case law and psychological research. Law and Human Behavior 16, 293–388. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Gallin, A.J. 1994. The cultural defense: undermining the policies against domestic violence. Boston College Law Review 35, 723–45. Goldklang, D.L. 1997. Post-traumatic stress disorder and black rage: clinical validity, criminal responsibility. Virginia Journal of Social Policy and Law 5, 213–43. Grier, W.H., Cobbs, P.M. 1968: Black Rage. New York: Basic Books. Ibn-Tamas v. United States, 407 A.2d 626 (D.C. App. 1979). In re Cheryl H., 153 Cal. App. 3d 1098, 200 Cal. Rptr. 789 (1984). Miller, R.D. 2000. Patient responsibilities: the other side of the coin. Thomas M. Cooley Law Review 17, 91–123. Morse, S.J. 1994. Culpability and control. University of Pennsylvania Law Review 142, 1587–660. Note. 1994. The battering parent syndrome: inexpert testimony as character evidence. University of Michigan Journal of Law Reform 17, 653–79. Orr, S.P, Pitman, R.K. 1993. Psychophysiologic assessment of attempts to simulate posttraumatic stress disorder. Biological Psychiatry 33, 127–9. Parrish, J. 1996. Trend analysis: expert testimony on battering and its effects in criminal cases. Wisconsin Women’s Law Journal 11, 75–173. People v. Chen, No. 87-7774 (N.Y. Sup. Ct. Mar. 21, 1989). People v. Menendez, unreported, No. SA 002728 (Cal.) People v. Moua, No. 315972 (Fresno Super. Ct. 1985). People v. Wu, 286 Cal. Rptr. 868 (Cal. Ct. App. 1991). Pitman, R.K., Orr, S.P. 1993. Psychophysiologic testing for post-traumatic stress disorder: forensic psychiatric application. Bulletin of the American Academy of Psychiatry and the Law 21, 37–52. Pitman, R.K., Saunders, L.S., Orr, S.P. 1994. Psychophysiologic testing for post-traumatic stress disorder. Trial April. Psychiatric News. Is racism a mental illness? Psychiatric opinion divided. October 1, 1999, 15. Rogers, J.L., Bloom, J.D., Manson, S.M. 1984. Insanity defenses: contested or conceded? American Journal of Psychiatry 141, 885–8. Sacks, J.H. 1994. Comment: a new age of understanding: allowing self defense claims for battered children who

238 Forensic evaluation and treatment in the criminal justice system kill their abusers. Journal of Contemporary Health Law and Policy 10, 349–81. Schuller, R.A., Vidmar, N. 1992. Battered woman syndrome evidence in the courtroom. Law and Human Behavior 16, 273–91. Shopp, R.F., Sturgis B.J., Sullivan, M. 1994. Battered woman syndrome, expert testimony, and the distinction between justification and excuse. University of Illinois Law Review 1994, 45–113. Sparr, L.F., Boehnlein, J.K. 1990. Posttraumatic stress disorder in tort actions: forensic minefield. Bulletin of the American Academy of Psychiatry and the Law 18, 283–302. State v. Heads, 385 So.2d 230 (La. 1980). State v. Marks, 647 P.2d 1292 (Kan. 1982). State v. Mulder, 629 P.2d 462 (Wash. App. 1981).

State v. Saldana, 324 N.W.2d 227 (Minn. 1982). State v. Taylor, 663 S.W.2d 235 (Mo. 1984) (en banc). State v. Wilkinson, 247 S.E.2d 905 (N.C. 1978). Stone, A.A. 1993. Post-Traumatic Stress Disorder and the law: critical review of the new frontier. Bulletin of the American Academy of Psychiatry and the Law 21, 23–36. United States v. Alexander, 471 F.2d 923 (D.C. Cir. 1972). United States v. Robertson, 507 F.2d 1148 (D.C. Cir. 1974). Vinal v. New England Telephone, No. 91-0564 (Mass. Middlesex County Super. Ct., Sept. 22, 1993). Walker, L. 1990: Terrified Love: Why Battered Women Kill, and How Society Responds. New York: Harper & Row. Weintraub, L. 1997. Inner-city post-traumatic stress disorder. Journal of Psychiatry and Law 25, 249–86. Zamora v. State, 422 So.2d 325 (Fla. App. 1982).

27 Post-conviction dispositional evaluations ROBERT D. MILLER

When the Supreme Court struck down a number of capital punishment statutes in 1972 because they were held to be too arbitrary and did not permit individuation in sentencing (Furman v. Georgia 1972), state legislatures enacted statutes calling for a separate sentencing phase for defendants convicted of capital crimes. In such hearings, the fact finder would choose between the death penalty and life imprisonment based on the balance between aggravating factors presented by the prosecution (including prediction of future dangerousness) and mitigating factors presented by the defense (including mental disorder). Since the Supreme Court found that such statutes were constitutional (Gregg v. Georgia 1976; Jurek v. Texas 1976; Profitt v. Florida 1976), mental health professionals have been called on to provide testimony in sentencing hearings. The most controversy has been raised by psychiatrists retained by the prosecution who predict future dangerousness. As Stone (1984) has pointed out, the intensity of much of the criticism against such practice stems from moral opposition to capital punishment, but there have been some significant departures from professional standards as well in the actions of some psychiatrists. First, there is the problem of predicting future dangerousness. For the purpose of capital sentencing, the issue in most states is whether the defendants would be dangerous if released; since that would not happen until they have served lengthy sentences, experts are being asked to predict behavior years in the future. As pointed out in the amicus briefs of the American Psychiatric Association, both in Jurek v. Texas (1976), Estelle v. Smith (1981), and Barefoot v. Estelle (1983), mental health professionals simply do not possess the expertise to make such long-term protections; furthermore, because such testimony is presented by court-qualified experts, it would be accorded greater weight than it deserves. Although the Supreme Court found no problems with such predictions, they raise ethical questions for psychiatrists and psychologists, whose ethical codes prohibit going beyond their expertise (American Psychiatric Association 1998; American Psychological Association 1990).

Another issue raised in Estelle was that of the information given to the person being evaluated. In that case, Dr. Grigson had told Smith only that the judge had asked him to perform a competency evaluation; Smith’s attorney was not even aware of the evaluation. Grigson was not called to testify at the trial, but did testify at the capital sentencing hearing. On appeal of the death sentence, the Supreme Court held that Grigson’s actions violated Smith’s Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to counsel. After Estelle, few defense attorneys in Texas would permit their clients to be examined by Dr. Grigson; the prosecution therefore adopted the tactic of presenting him with hypotheticals based on the facts adduced during the trial. Dr. Grigson continued to opine, with overwhelming confidence, that defendants were sociopaths, and would continue indefinitely to pose a danger to society. These conclusions were challenged in Barefoot v. Estelle (1983), and the American Psychiatric Association again filed an amicus brief arguing against prediction of long-term dangerousness, and arguing that testimony as to diagnosis is not permissible if based on hypotheticals. It also pointed out that Drs. Grigson and Holbrook not only admitted lack of familiarity with the research literature on prediction of dangerousness but that Dr. Grigson [who had testified that he did not accept the DSM-III criteria (American Psychiatric Association 1980) for antisocial personality] diagnosed Barefoot using idiosyncratic criteria that the hypothetical information did not satisfy. The Supreme Court rejected all these arguments and affirmed Barefoot’s death sentence.

INEFFECTIVE ASSISTANCE OF COUNSEL There are a number of cases in which defendants sentenced to death have argued on appeal that their representation by counsel was ineffective because evidence of mental impairment was not raised at the sentencing phase

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of their trials. In order to establish ineffective assistance, appellants must demonstrate that their lawyers’ practice fell below a minimum standard, and that as a result their cases were prejudiced. In the case of capital sentencing hearings, the court must decide that it could not say with confidence that the jury would still have found for the death penalty had the attorney’s performance been acceptable. Appellate courts have overturned death sentences because of ineffective assistance when the evidence shows that the defendant had a significant history of childhood abuse or deprivation and/or a history of psychiatric problems, and the attorney made little or no effort to investigate that history as a mitigating factor (Armstrong v. Dugger 1987; Evans v. Lewis 1988; Middleton v. Dugger 1988; Deutscher v. Whitley 1989; Mathis v. Zant 1989). When the attorney was aware of potential mental evidence in mitigation but chose not to introduce it for tactical reasons (Burger v. Kemp 1987), or a competent defendant himself lucidly barred psychiatric evaluation or testimony for the sentencing phase (Clanton v. Bair 1987; Bundy v. Dugger 1988), courts have held that no ineffective assistance occurred. Courts have listed a number of ways in which emotional distress might mitigate a death sentence. First, the Supreme Court held that, ‘Evidence about a defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse’ (California v. Brown 1987). Second, mental deficiency may mitigate against the death penalty (Mathis v. Zant 1989). Mental illness may also mitigate; the Eighth Circuit held that, ‘… this kind of psychiatric evidence [childhood abuse, mental deficiency, and mental illness], it has been held, has the potential to totally change the evidentiary picture by altering the causal relationship that can exist between mental illness and homicidal behavior. Thus, psychiatric mitigating evidence not only can act in mitigation, it also could significantly weaken the aggravating factors’ (Middleton v. Dugger 1988, at 495). The influence of drugs or alcohol has also been found to be a mitigating factor (Roberts v. Louisiana 1977). Evidence that a defendant would not pose a threat to society may also mitigate against a death sentence. In Skipper v. South Carolina (1986), the Supreme Court held that, ‘Consideration of a defendant’s past conduct as indicative of his probable future behavior is an inevitable and not undesirable element of criminal sentencing … . The Court has therefore held that evidence that a defendant would, in the future pose a danger to the community if he were not executed may be treated as establishing an “aggravating factor” for purposes of capital sentencing. Likewise, evidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating.’

EVALUATION Although the Supreme Court found no legal objection to psychiatrists making diagnoses from hypotheticals with inadequate information, rejecting research data and the current diagnostic criteria, and predicting long-term dangerousness with absolute certainty, such behavior has resulted in sanctions from the American Psychiatric Association and should be scrupulously avoided by ethical forensic psychiatrists. It is incumbent upon forensic professionals to be familiar not only with the relevant law but also with the research data and ethical guidelines of their professional organizations. Under the Supreme Court’s decision in Ake v. Oklahoma (1985), psychiatrists may be called on to serve as consultants to defense attorneys as well as expert evaluators. Given the case law on ineffective assistance of counsel, it would behoove such consulting experts in capital cases to be alert to the possible application of a defendant’s mental impairment to a capital sentencing hearing. Given the reluctance of many psychiatrists to become involved in death penalty cases, particularly for the prosecution, district attorneys in some states have had difficulty finding experts to testify for them in capital sentencing hearings. In Colorado, prosecutors were having such difficulty in finding anyone to testify for them in capital sentencing hearings that they had a law passed that requires a mental health professional who performs any pre-trial evaluation in a capital case must also perform an evaluation for capital sentencing. [C.R.S. 16-8-106(6)(b) (1995): ‘With respect to offenses committed on or after July 1, 1995, the report of examination shall include, but is not limited to, the items described in paragraphs (a) to (c) of subsection (5) of this section [name of examiner, content of examination, and diagnosis and prognosis of defendant’s condition]; and (b) Separate opinions as to whether the defendant was insane, is incompetent to proceed, or is ineligible for release, as these terms are defined in this article, and, in any class 1 felony case [potentially carrying the death penalty], an opinion as to how the mental disease or defect or the condition of mind caused by mental disease or defect affects any mitigating factor’]. Preliminary data indicate that not only has the new law not caused psychiatrists who were previously not willing to perform sentencing evaluations to be willing to perform them; but a number who were previously willing to do pre-trial evaluations have stopped doing them in objection to the requirement to do sentencing evaluations (Miller 2001).

FORCED TESTIMONY BY EXPERT WITNESSES IN CRIMINAL CASES There has been a significant change in the law since the Maine Supreme Court in 1876 characterized the testimony

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of experts as ‘the vain babblings and oppositions of science falsely so called’ (State v. Watson 1876). Although courts are still not entirely comfortable with experts, they have come to recognize their necessity in many cases involving complex issues: ‘One of those realities [of litigation] is that attorneys must often rely on the assistance of [expert consultation] in preparation for trial’ (United States v. Nobles 1975). As a result of the law’s increasing reliance on experts (many legal cases cannot be resolved without expert participation), courts and commentators have looked at the question of whether experts may be compelled to give testimony, just as lay witnesses are. Shuman (1983) examines the general authority of courts to subpoena physicians who have not been retained by attorneys in a particular case; he recognizes that requiring them to spend time in court takes them away from their primary function of healing the sick, but notes that courts need to have access to knowledge that is sometimes possessed by only a few experts in a field, either because of their special expertise or because of their knowledge of a particular case. Arguments against compelling experts to testify include the Fifth Amendment prohibition against the taking of property, but Shuman concludes that it does not prevent compelled testimony, because the property (i.e., the expert’s knowledge) and experience are not diminished by the taking, and because the government is not prohibited from taking property by the Fifth Amendment, so long as it properly compensates the owner. He concludes that physicians’ real resistance in many cases is the fact that the government is unwilling or unable to compensate them at their preferred rates. Courts have divided on whether such experts may be compelled to testify. State courts in Indiana (Buchman v. State 1877), Pennsylvania (Pennsylvania Co. v. Philadelphia 1918), and New Jersey (Staunton v. Rushmore 1934) have held that the state cannot compel experts to testify. A New York court (People ex rel. Kraushaar Bros. & Co. v. Thorpe 1947) held that experts may be compelled to testify to facts, as would a lay witness, but not to provide opinions. Others have permitted courts to compel experts to testify to opinions already formed, but not to conduct new investigations or analyses (Carter-Wallace, Inc. v. Otte 1972). One appellate court not only required an expert to testify but also specified that the court was obligated to compensate him at the same rate as for lay witnesses (Dixon v. People 1897). More directly relevant to forensic psychiatrists is the question of whether an expert who has been retained by the defense attorney in a criminal case, but who is not called to testify by the defense, may be compelled to testify for the prosecution. With the increase in discovery by the defense in criminal cases, prosecutors have called for equal access to defense information (Beckler, Robinson, and Morphew 1990). The Federal Rule of Criminal Procedure (undated) already provide for more extensive discovery

than is provided in many state courts, but they do not explicitly require discovery of non-testifying witnesses. Imwinkelreid (1990) discusses attorney–client privilege and the work-product rule as possible sources for barring prosecution discovery of defense witnesses. He argues that attorney–client privilege attaches only within certain relationships, and only to communications within those relationships. Privilege extends to communications between an attorney and his or her agent or representative. Secretaries and interpreters are clearly such agents; and Imwinkelreid argues that expert consultants should be included as well, and direct communications between client and expert should be privileged. Imwinkelreid acknowledges that the expert’s ultimate opinion may be based in part on communications from the client, and thus by itself may be privileged, but he argues that other sources of data should not be privileged. Unlike an interpreter, an expert creates new knowledge, which should not be entirely privileged. In addition, the courts should not permit the defense to ‘quarantine’ experts merely by consulting them first. Imwinkelreid then goes on to suggest that protection of non-testifying experts’ opinions under the work-product rule might be more appropriate than under attorney– client privilege. The rule was designed to stimulate the acquisition of information for preparation of a case, by granting a qualified privilege for such information. The prosecution might still be able, however, to obtain access to expert opinions and data through arguing a special need exception to the work-product rule. Under the workproduct rule, Imwinkelreid argues that prosecutors could obtain all third-party information used by the psychiatrist, as well as diagnostic conclusions. There are several arguments against prosecution access under the workproduct rule: 1 The difficulty of separating knowledge based on client communication from other sources. 2 The fact that pre-trial discovery may provide the prosecution with leads to develop their own evidence. 3 Compelled testimony from a defense witness would be prejudicial, because a jury might accord it too much weight. Imwinkelreid counters these objections by arguing that one should be able to separate the client communication parts of a report or opinion from the other sources of information; in cases in which the separation cannot be accomplished, the expert could provide a summary that eliminates all client communications. He concedes that discovery may provide leads to the prosecution, but sees no problem with that. The problem of prejudice could be resolved by barring references to the fact that the expert was first consulted by the defense. Friedenthal (1962) also argues in favor of discovery and is cited by Imwinkelreid, but his article is chiefly concerned with civil cases involving corporate clients and does not deal with the issues raised by non-testifying

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defense witnesses in criminal trials, where the law has traditionally provided more protection for defendants than for the prosecution. In an amicus brief before the Supreme Court, the American Psychiatric Association (APA) and the American Academy of Psychiatry and the Law (AAPL) argued forcefully against discovery (APA and AAPL 1985), pointing out that if the consultative function of psychiatric experts established in Ake v. Oklahoma (1985) is to have any meaning, the results of those evaluations must be privileged; the defense attorney must be able to research his or her case with confidentiality. They further argued that the testimony should have been barred under both the Due Process Clause and Fifth Amendment to the Constitution. Although the issue did not arise in the case, they also contended that a non-testifying expert’s opinions should not be discoverable, even if the defendant does assert a mental defense. Under Ake v. Oklahoma, the consultative psychiatrist’s role goes beyond evaluation to advising the defense on trial strategy and tactics, which clearly should not be discoverable by the prosecution even if the expert testifies. They also argued that if the due process argument were not accepted by the Court, then under Estelle v. Smith (1981), the coerced testimony should not have been allowed because the psychiatrist did not warn the defendant of the non-confidential nature of the examination. They pointed out that when the defense does assert a psychiatric defense, the state has ample opportunity to secure its own evaluations, to penalize defendants who refuse to cooperate with prosecution experts, and to cross-examine experts. The amicus brief addressed arguments in favor of discoverability, which include: 1 By the time the state is aware that a psychiatric defense is to be entered, it will be too far away from the crime for an adequate evaluation. 2 Previous examinations by defense psychiatrists will impair the validity of subsequent state examinations. 3 Since the state is empowered to have its own expert examine the defendant once a psychiatric defense is entered, there is no point in barring testimony from defense psychiatrists. APA and AAPL responded to these objections by pointing out that the time and rehearsal factors could be dealt with by requiring defense disclosure of its intent to seek psychiatric examination. Given the dual role of the psychiatrist under Ake, prudent defense counsel may well want to retain two psychiatrists, one to testify and one to consult; the latter may well be someone who can disagree with the defense contention and point out weaknesses. If discovery is permitted, it will force attorneys to seek out only experts likely to agree with the defense position. The American Bar Association (ABA) has also arrived at the same position (ABA 1986). Courts have divided over this issue, although the majority have held against discovery, including state courts in

Maine (State v. Watson 1876), the District of Columbia (Taylor v. United States 1955), New Jersey (State v. Kociolek 1957; State v. Melvins 1978), Michigan (People v. Hilliker 1971), California (People v. Lines 1975), Connecticut (Connecticut v. Toste 1979), Maryland (State v. Pratt 1979), Alaska (Houston v. State 1979), Texas (Burney v. State 1982), and Colorado (Miller v. District Court 1987). In the last case, the Colorado Supreme Court held that, ‘A psychiatrist retained by defense counsel to assist in the preparation of the defense is an agent of defense counsel for purposes of the attorney-client privilege.’ The court also held that the defendant did not waive the privilege by pleading insanity. The federal appeals court for the Third Circuit reached a similar conclusion (United States v. Alvarez 1975). The Washington Supreme Court ruled that a non-testifying expert cannot be called by the prosecution unless the defense raises an insanity defense (State v. Bonds 1982). A state appeals court in Florida also held against discovery, but based its decision on the workproduct rule rather than attorney–client privilege (Pouncy v. State 1977). Several courts have come to the opposite conclusion. State courts in Virginia (Gibson v. Commonwealth 1976) and Missouri (State v. Carter 1982) and Federal Appeals Courts for the Sixth Circuit (Noggle v. Marshall 1983) and Ninth Circuit (United States v. Talley 1986) have permitted discovery. A state court in New York permitted discovery; the court held that: ‘A defendant who seeks to introduce psychiatric testimony in support of his insanity plea may be required to disclose prior to trial the underlying basis of his alleged affliction to a prosecution psychiatrist. Hence, where, as here, a defendant reveals to the prosecution the very facts which would be secreted by the exercise of the privilege, reason does not compel the exclusion of expert testimony based on such facts … . It follows that no harm accrues to the defense from seeking pre-trial psychiatric advice where an insanity plea is actually entered, for in such circumstances, the underlying factual basis will be revealed to the prosecution psychiatrist.’ (People v. Edney 1976). Petition for appeal to the federal courts was dismissed (United States ex rel. Edney v. Smith 1976); the court held that by pleading insanity, Edney had waived any privilege. The Minnesota Supreme Court initially barred discovery (State v. Dodis 1982), but reversed itself five years later (State v. Schneider 1987). The Supreme Court has had several opportunities to address the issue, but has chosen not to do so. It has let stand decisions that bar discovery (United States ex rel. Edney v. Smith 1976) and those that permit it (Gibson v. Commonwealth 1975; State v. Carter 1983; Noggle v. Marshall 1983; United States v. Talley 1986) by denying certiorari. In one case (Smith v. Murray 1986) that it did accept, the majority avoided ruling on the substantive issue by holding that the defendant’s procedural default prevented the court from reviewing the case, even though it conceded that the issue itself had merit. And in the most

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recent case (Smith v. Sielaff 1986), it remanded without a decision. Because of the current uncertainty of the discoverability of expert opinions and data, evaluators retained by the defense should make sure to inform themselves of the governing laws and court decisions in their jurisdictions before evaluating defendants, so that they may provide accurate information about the possible consequences of cooperating with the evaluation.

FORENSIC RELEASE DECISIONS Decisions concerning the release of forensic patients generally center around the prediction and treatment of dangerousness. The treatment of criminally committed patients differs significantly from that of civilly committed patients, whom treating clinicians generally have the authority (and sometimes the obligation) to release when they no longer satisfy the jurisdiction’s commitment criteria. In most states, criminal courts retain jurisdiction over criminally committed patients and make all the release decisions, thus apparently absolving clinicians of that authority (and the attendant responsibility and liability). There is an increasing number of exceptions to this principle, however (Miller et al. 1988). As the social climate has changed from the emphasis on individual civil rights of the 1960s and early 1970s to the prevention of harm and the protection of victims in the 1980s, expectations that clinicians should be able to control their patients have risen significantly. The only way the law has to compensate victims (and thereby to encourage practitioners to conform to evolving social norms) is to provide money damages. The battles are therefore increasingly fought in the civil courts under tort law (Lieberman 1981). The most obvious expression of this trend is the obligation of outpatient therapists to prevent their patients from harming third parties, which was first articulated by the California Supreme Court in Tarasoff v. Regents of the University of California (1976) and its progeny (Felthous 1989). Although this obligation may apply to forensic patients in the community (Cain v. Rijken 1986), it is more likely to apply to those committed to forensic inpatient facilities, where the degree of control is far greater. Although courts or other governmental bodies make most of the release decision for such patients, they must rely on clinicians to provide them with the necessary information to do so reliably. And since judges possess immunity for their decisions, compensation for victims must come from other sources, including treating clinicians and even parole boards (Grimm v. Arizona Board of Pardons and Paroles 1977). While the recent case law on the liability for release decisions of clinicians treating forensic patients is sparse, it can be expected to grow in the future. Clinicians have been held liable for a murder committed by an escaped sex offender (Maroon v. Indiana

1980), and even for failing to go beyond the court’s own request for evaluation of competency to stand trial to predict behavior if released (Hicks v. United States 1975). There have been other changes in policies that have insulated forensic clinicians from liability for release decisions. Virtually all long-term criminal commitments are to state forensic facilities, where – until recently – clinicians had been protected by governmental immunity. Although some courts have held that state employees are still protected by either governmental (Canon v. Thumudo 1988) or judicial (Seible v. Kemble 1981) immunity, most states have removed those protections where they had applied to release decisions (Felthous 1987). Even in states such as Wisconsin, which provides for release evaluations by clinicians independent of the patient’s treatment team (Miller 1987), treating clinicians may be held to have an obligation to provide releasing authorities with information relevant to release decisions (Miller et al. 1988). Although the Supreme Court had appeared in 1966 to require that criminal commitments meet the same requirements as civil commitment (Baxstrom v. Herold 1966), it held in 1983 that persons who have committed crimes are distinguishable from civilly committed persons, may therefore be committed based solely on an insanity finding, and may have their commitments extended beyond the potential criminal sentences for the crimes charged without satisfying the stricter civil commitment criteria (Jones v. United States 1983). As a result of the national trend toward longer incarcerations, for forensic patients as well as for criminals, even some of those jurisdictions that previously provided for a civil commitment process for defendants found not guilty by reason of insanity under the influence of the civil rights movement in the 1970s have reconsidered, and have made it more difficult for forensic patients to be released, by broadening the criteria for release and by restoring criminal court jurisdiction over release decisions (Halpern, Rachlin, and Portnow 1981; Miller, Ionescu-Pioggia, and Fiddleman 1983). In addition, the burden of proof has been effectively shifted for forensic patients; although many statutes require the state to prove continuing dangerousness to extend commitment, judges in practice require patients to prove that they are not dangerous in order to be released. In addition to predictions of dangerousness, clinicians may well be expected to provide effective treatment before forensic patients are released. In a Colorado case (Perreira v. State 1986), a treating psychiatrist was found liable for releasing a patient who subsequently injured a third person; in upholding the judgment, the state Supreme Court noted that the psychiatrist had not petitioned the court for an order authorizing the involuntary administration of psychotropic medication, and released the patient without a treatment that was considered medically indicated by the treating psychiatrist. Because of the development of specialized treatments for aggressive patients (Silver and Yudofsky 1987), the provision of

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such treatment may in the future become expected of psychiatrists working with forensic patients. Some states (Wisconsin Statutes 1989) also place the responsibility for conducting formal release hearings for forensic patients on clinicians, which places further responsibility (and potential liability) on them (Miller 1988). Clinicians called on to make release decisions should be familiar with the criteria for release in their jurisdictions. Because liability is more likely to accrue in the release of forensic than of civil patients (Miller et al. 1988), evaluations should rely on as much corroborating information as possible, in addition to direct observations and evaluations of the patient in question. Documentation of the reasons for the release, and alternatives considered, should be thorough. Clinicians should also stay abreast of the research literature on the prediction of future dangerousness (Monahan 1981). In addition, forensic clinicians should be familiar with the development of specialized techniques for the treatment of aggressive patients, and should make sure to document consideration of such treatment alternatives if they are not employed.

REFERENCES Ake v. Oklahoma, 105 S. Ct. 1087 (1985). American Bar Association. 1986: Criminal Justice Mental Health Standards, Sec. 7-3.3(b)(A) & (B). American Psychiatric Association. 1980: Diagnostic and Statistical Manual of Mental Disorders, 3rd edition. Washington, DC: American Psychiatric Press. American Psychiatric Association. 1998: Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry. Washington, DC: American Psychiatric Press. American Psychiatric Association and American Academy of Psychiatry and the Law. 1985. Amicus curiae brief to Smith v. Sielaff, No. 85-5487 (S. Ct). American Psychological Association. 1990. Ethical principles of psychologists. American Psychologist 45, 390–5. Armstrong v. Dugger, 833 F.2d 1430 (11th Cir. 1987). Barefoot v. Estelle, 463 U.S. 878 (1983). Baxstrom v. Herold, 383 U.S. 107 (1966). Beckler, R.W., Robinson, F., Morphew, W.S. 1990. Protecting defense evidence from prosecutorial discovery. Washington University Law Quarterly 68, 71–86. Buchman v. State, 59 Ind. 1 (1877). Bundy v. Dugger, 850 F.2d 1402 (11th Cir. 1988). Burger v. Kemp, 483 U.S. 776 (11th Cir. 1987). Burney v. State, 642 S.W.2d 765 (Tex. Crim. App. 1982). Cain v. Rijken, 717 P.2d 173 (Or. 1986). California v. Brown, 479 U.S. 538,545 (1987). Canon v. Thumudo, 422 N.W.2d 688 (Mich. 1988). Carter-Wallace, Inc. v. Otte, 474 F.2d 529, 536 (2d Cir. 1972); cert. denied, 412 U.S. 929 (1973). Clanton v. Bair, 826 F.2d 1354 (4th Cir. 1987). Connecticut v. Toste, 424 A.2d 421 (1979).

Deutscher v. Whitley, 884 F.2d 1152 (9th Cir. 1989). Dixon v. People, 48 N.E. 108 (Ill. 1897). Estelle v. Smith, 451 U.S. 454 (1981). Evans v. Lewis, 855 F.2d 631 (9th Cir. 1988). Federal Rule Criminal Procedure 16(c). Felthous, A.R. 1987. Liability of treaters for injuries to others: erosion of three immunities. Bulletin of the American Academy of Psychiatry and the Law 15, 115–25. Felthous, A.R. 1989: The Psychotherapist’s Duty to Warn or Protect. Springfield, IL: Charles C. Thomas. Friedenthal, J.H. 1962. Discovery and use of an adverse party’s expert information. Stanford Law Review 14, 455–88. Furman v. Georgia, 408 U.S. 715 (1972). Gibson v. Commonwealth, 219 S.E.2d 845 (1975); cert. denied, 425 U.S. 994 (1976). Gregg v. Georgia, 428 U.S. 153 (1976). Grimm v. Arizona Board of Pardons and Paroles, 564 P.2d 1227 (Ariz. 1977). Halpern, A.L., Rachlin, S., Portnow, S.L. 1981. New York’s Insanity Defense Reform Act of 1980: a forensic psychiatric perspective. Albany Law Review 45, 661–77. Hicks v. United States, 5 11 F.2d 407 (D.D.C. 1975). Houston v. State, 602 P.2d 784 (Alaska, 1979). Imwinkelreid, E.J. 1990. The applicability of the attorneyclient privilege to non-testifying experts: reestablishing the boundaries between the attorney-client privilege and the work product protection. Washington University Law Quarterly 68, 19–50. Jones v. United States, 103 S. Ct. 3043 (1983). Jurek v. Texas, 428 U.S. 262 (1976). Lieberman, J.K. 1981: The Litigious Society. New York: Basic Books. Maroon v. Indiana, 411 N.E.2d 404 (Ind. App. 1980). Mathis v. Zant, 704 F. Supp. 1062 (N.D. Ga. 1989). Middleton v. Dugger, 849 F.2d 491 (8th Cir. 1988). Miller, R.D. 1987. The treating psychiatrist as forensic evaluator II. release decisions. Journal of Forensic Sciences 32, 481–8. Miller, R.D. 1988. The Terry hearings to determine the release of offenders committed under Wisconsin’s Sex Crimes Law. Wisconsin Bar Bulletin 61, 17–19, 70–1. Miller, R.D. 2001. The D.A. made me do it – compulsory capital sentencing evaluations. Journal of Psychiatry and Law 29, 409–31. Miller, R.D., Ionescu-Pioggia, R.M., Fiddleman, P.B. 1983. Judicial oversight of release of patients committed after being found not competent to stand trial or not guilty by reason of insanity in violent crimes. Journal of Forensic Sciences 18, 39–45. Miller, R.D., Doren, D.N., Van Rybroek, G.J., et al. 1988. Emerging problems for staff associated with the release of potentially dangerous forensic patients. Bulletin of the American Academy of Psychiatry and the Law 16, 309–20. Miller v. District Court, 737 P.2d 834 (Colo. 1987).

Post-conviction dispositional evaluations 245 Monahan, J. 1981: The Clinical Prediction of Violent Behavior. Rockville, MD: Department of Health and Human Services, # ADM-81-921. Noggle v. Marshall, 706 F.2d 1408 (6th Cir. 1983), cert. denied, 465 U.S. 1010 (1983). Pennsylvania Co. v. Philadelphia, 105 A. 630 (Pa. 1918). People ex rel. Kraushaar Bros. & Co. v. Thorpe, 72 N.E.2d 165 (N.Y.1947). People v. Edney, 350 N.E.2d 400, 403 (N.Y. 1976). People v. Hilliker, 185 N.W.2d 831, 833 (Mich. App. 1971). People v. Lines, 531 P.2d 793, 802-803 (Cal. 1975). Perreira v. State, 738 P.2d 4 (Colo. App. 1986). Pouncy v. State, 353 So. 2d 640 (Fla. Dist. Ct. App. 1977). Profitt v. Florida, 428 U.S. 242 (1976). Roberts v. Louisiana, 431 U.S. 633, 637 (1977). Seible v. Kemble, 631 P.2d 173 (1981). Shuman, D.W. 1983. Testimonial compulsion: the involuntary medical expert witness. Journal of Legal Medicine 4, 419–46. Silver, J.M., Yudofsky, S.C. (eds). 1987: Treatment of aggressive disorders. Psychiatric Annals, Volume 17(6). Skipper v. South Carolina, 476 U.S. 1, 5 (1986). Smith v. Murray, 477 U.S. 527 (1986). Smith v. Sielaff, No. 85-5487 (S. Ct. 1986).

State v. Bonds, 653 P.2d 1024 (Wash. 1982). State v. Carter, 641 S.W.2d 54 (Mo. 1982), cert. denied, 461 U.S. 932 (1983). State v. Dodis, 314 N.W.2d 233 (Minn. 1982). State v. Kociolek, 129 A.2d 417 (N.J. 1957). State v. Melvins, 382 A.2d 925 (N.J. 1978). State v. Pratt, 399 A.2d 421 (Md. App. 1979). State v. Schneider, 402 N.W.2d 779 (Minn. 1987). State v. Watson, 65 Me. 74, 76 (1876). Staunton v. Rushmore, 169 A. 721 (N.J. 1934). Stone, A.A. 1984: Law, Psychiatry and Morality: Essays and Analysis. Washington, DC: American Psychiatric Press. Tarasoff v. Regents of the University of California, 551 P.2d 334 (Cal. 1976). Taylor v. United States, 222 F.2d 398 (D.C. App. 1955). United States ex rel. Edney v. Smith, 425 F. Supp. 1038 (E.D.N.Y. 1976); aff’d, 556 F.2d 556 (2d Cir); cert. denied, 431 U.S. 958 (1977). United States v. Alvarez, 519 F.2d 1036, 1045-47 (3rd Cir. 1975). United States v. Nobles, 422 U.S. 225, 238 (1975). United States v. Talley, 790 F.2d 1468 (9th Cir.), cert. denied, 479 U.S. 866 (1986). Wisconsin Statutes Sec. 975.09 (1989).

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28 Specific issues in psychiatric malpractice Robert M. Wettstein

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29 Psychiatric disability determinations and personal injury litigation Jeffrey L. Metzner and James B. Buck

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30 Americans with Disabilities Act evaluations A. Jocelyn Ritchie and Howard V. Zonana

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31 Sexual harassment Liza H. Gold 32 Trauma-induced psychiatric disorders and civil law Stuart B. Kleinman and Susan B. Egan

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33 Neuropsychiatric assessments in toxic exposure litigation Daniel A. Martell

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34 Civil competencies J. Richard Ciccone

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35 Death, dying, and the law Norman L. Cantor

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28 Specific issues in psychiatric malpractice ROBERT M. WETTSTEIN

In this chapter, several of the specific liability issues that concern mental health professionals – especially psychiatrists – will be discussed and reviewed. As space does not permit all of the possible areas of psychiatric negligence that are not covered elsewhere in this volume to be covered, the present review is highly selective. The chapter will focus on negligence liability rather than liability for breach of contract, civil rights, intentional torts, or fraud which can also be brought against the psychiatrist, whether based upon the same conduct or otherwise. The present topics include the law of negligence, psychopharmacology, seclusion and restraints, suicide and attempted suicide, supervision of other healthcare professionals, and disclosure of medical error. The chapter begins with an overview of error in medicine.

ERROR IN MEDICINE Error in medicine has attracted increasing attention from a variety of parties. Physicians and their professional organizations, injured patients, plaintiff and defense attorneys, liability insurance companies, government agencies, researchers, public policy experts, and public health experts each provide an important contribution to this increasingly complex area of public life. Terminology in this field is complex and controversial, with the use of different definitions of error in medicine. Terms such as error, accident, inadvertent injury, complication, medical injury, therapeutic misadventure, iatrogenic injury, adverse drug event, negligent adverse event are used in different accounts or studies of this issue. Errors in medicine are not necessarily equivalent to negligence, and may or may not be necessarily preventable, or harmful to the patient. The epidemiology of medical error is a growing area of interest. No one knows the true incidence of medical errors in general medical populations, because studies have been conducted in a few selected patient groups

such as surgical or intensive care hospitalized patients. Research methods in this area include retrospective record review (Thomas et al. 2000; Hayward and Hofer 2001), computerized detection, physician self-reporting of incidents (O’Neil et al. 1993), or prospective observational studies (Andrews et al. 1997). Available empirical research indicates that medical negligence is not rare, occurring in as many as 4 per cent of hospital admissions, resulting in 44 000 to 98 000 deaths every year in American hospitals (Kohn et al. 2000), in addition to costly necessary additional medical care (Andrews et al. 1997). Operative complications and adverse drug effects are among the most common types of adverse events (Thomas et al. 2000). Despite the considerable incidence of medical error, however, few injured patients actually file a legal complaint (Localio et al. 1991). Fewer than half of patient-plaintiffs receive any payment, and only about 10 per cent of medical malpractice cases proceed to trial (Taragin, Willett, and Wilczek 1992). At trial, about one-fourth of medical malpractice plaintiffs prevail, compared with one-half of plaintiffs in other tort cases, nationwide (Litras et al. 2000). Thus, while many malpractice cases are brought by patients who have not been treated negligently, medical malpractice litigation infrequently compensates patients who have been injured by medical negligence (Localio et al. 1991). In psychiatry, the incidence of malpractice litigation against psychiatrists has ranged from 4 to 8 per cent annually, in the 1980s and 1990s. A public health approach to medical error has been recommended, given contemporary advances in knowledge of human factors and injury prevention (Leape 1994; Kohn et al. 2000). This approach includes such provisions as mandatory reporting of serious patient injuries or deaths due to medical error which is not presently required in the United States. Effort is focused on the systematic identification and prevention of error through the proper design of the medical workplace, recognizing that injuries are often a result of the failure of a complex, interdependent system rather than an individual.

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LAW OF NEGLIGENCE Medical malpractice litigation has been an important legal and medical issue in the United States only in the last 150 years (Mohr 2000). Malpractice litigation has been driven by medical factors such as the promulgation of uniform accepted clinical standards of care, in a social climate of professionalism. Legal factors such as the availability of professional liability insurance, presence of contingent plaintiff attorney fees, use of citizen juries, and pleading of malpractice as a tort rather than a contract also contributed to sustaining malpractice litigation (Mohr 2000). Torts, the law of civil injuries, is defined by state or federal statute, and often case law. By law, a physician has a duty to the patient to use that degree of skill and care which is expected of a reasonably competent physician in the same class to which he or she belongs, acting in the same or similar circumstances as the patient. A patientplaintiff bringing a civil action in tort against the physician has the burden to prove that the physician has a duty to provide appropriate evaluation and treatment for the patient, and that the physician failed to do so. Medical malpractice litigation is therefore fault-based, and deviations in the standard of appropriate care occur by errors of omission or commission. The plaintiff must further prove that the defendant physician’s failure to provide appropriate care and treatment to the patient was the proximate cause of the physical or emotional harm to the patient. Harm to the patient which occurs through causes other than the defendant’s negligence (e.g., the natural course of the underlying disease) is not the responsibility of the defendant. Similarly, liability can be avoided if the defendant made an error in judgment in the assessment and care of the patient-plaintiff, despite the adverse outcome of the case. Standards of medical care are predominantly national in origin, but some jurisdictions apply a local or regional standard of care. The standard of care is not that of the most highly skilled or even the average physician. In the litigation, the plaintiff and defendant attempt to establish the standard of care, and its breach, through the use of authoritative professional literature, practice parameters and guidelines, applicable government regulation, hospital and clinic policy, accreditation standards, and expert witness testimony (Ayers 1994; Hyams et al. 1995; Shuman 1997). However, even practice parameters or guidelines can widely differ in a particular medical specialty area, leading to uncertainty regarding the standard of care (Morreim 1997). Evidence-based medicine has been introduced as a principle to apply empirical knowledge to the practice of medicine and help identify what is appropriate care (Guyatt et al. 2000). Alternate schools of thought, through a reputable minority of practitioners, can also set the applicable standard of care in a given situation. Relevant evidence must pertain to the standard of

care at the time of the alleged negligence, and not at a subsequent time when medical advances may have occurred. Breach of the standard of care is determined by the finder of fact, on a case-by-case basis.

PSYCHOPHARMACOLOGY Prescription of medication constitutes a large proportion of medical error and iatrogenic patient injuries in the United States (Bates et al. 1995; Classen et al. 1997). In non-psychiatric hospitals, errors in medication prescribing, and adverse medication events, are relatively common and often preventable (Leape et al. 1995; Lesar, Briceland, and Stein 1997). Such errors by prescribing physicians, nurses, and pharmacists occur due to inadequate information about the patient, lack of knowledge of the medication, inadequate monitoring, name confusion, faulty interaction with other medical services, incorrect dosage calculation, and packaging mix-ups, among others. Attempts to improve the systems by which medications are ordered, dispensed, and administered have been recommended to reduce adverse drug events (Bates et al. 1999). Computerized prescribing of medication, based upon databases including the patient’s drug and illness history, formulary guideline reference, and scientific drug information enhances prescription efficiency and accuracy (Schiff and Rucker 1998). In particular, prescribing psychotropic medication increases the psychiatrist’s exposure to professional liability claims (Brackins 1985; Wettstein 1985; Dukes and Swartz 1988; Slovenko 2000). It accounts for some of the excess of professional liability claims that psychiatrists face relative to other mental health professionals. For psychiatrists insured with the American Psychiatric Association’s (APA) professional liability insurance program, improper medication was the most common allegation from 1973 to 1984 (Slawson 1989). In addition to risking professional liability civil suits, psychiatrists – like all physicians – may be sanctioned by state and federal prosecutors in criminal actions, or state and federal licensing agencies (e.g., state medical board, U.S. Drug Enforcement Agency). With regard to medications, these actions usually pertain to the physician who inappropriately administers, prescribes, dispenses, or fails to keep proper records for controlled medications such as opioids, benzodiazepines, or amphetamines. Information obtained from one state’s medical board, for example, revealed that inappropriate prescribing, primarily benzodiazepines and opiates, constituted the majority of physician investigations there (Kofoed et al. 1990). Such overprescriptions were motivated by physician beneficence rather than malevolence. It is also important to note that pharmaceutical manufacturers are often sued because of the manufacture, distribution, and marketing of psychotropic medications.

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In general, the law of products liability requires that a manufacturer directly warn the ultimate consumers of the known risks of the use of the product. For most classes of prescription medication, however, the pharmaceutical manufacturers are governed by the ‘learned intermediary rule’ which states that the manufacturer has a duty to inform the prescribing physician, but not the patient, of important information (e.g., indications, contraindications, dosage, administration, warnings, precautions) about the medication (Brackins 1985). In other words, the learned intermediary doctrine relieves manufacturers of tort liability when adequate warning has been provided to the prescribing physician. In addition, while professional (negligence) liability principles apply to prescribing physicians, there is some uncertainty whether negligence or strict liability principles apply to pharmaceutical manufacturers (Brackins 1985; Ausness 1989–90). Nevertheless, plaintiffs, searching for the ‘deep pocket’ of liability, often sue the manufacturer as well as the prescribing physician, healthcare facility, and pharmacist. Psychiatrists risk negligence liability in several general areas when they prescribe psychotropic medication (Wettstein 1983; Wettstein 1988). These include: 1 Failure to take an adequate history prior to prescription. 2 Failure to obtain an adequate physical examination. 3 Failure to obtain an adequate laboratory examination. 4 Lack of indication for a prescription, and off-label use. 5 Contraindication for a prescription. 6 Prescription of an improper dosage. 7 Prescription for an improper duration. 8 Failure to recognize, monitor, and treat side effects. 9 Failure to abate drug–drug or food–drug reactions and interactions. 10 Failure to consult with other physicians. 11 Failure to properly diagnose and treat the patient’s disorder. 12 Failure to obtain informed consent to treatment. 13 Improper record-keeping. The following discussion will present case examples in some of these topic areas. Typically, the plaintiff will allege several areas of negligence in the litigation against each defendant rather than a single cause of action. Litigation has been brought against physicians for prescribing all classes of psychotropic medications, so the following is a selective sample.

Failure to take an adequate history In Leal v. Simon (1989), an institutionalized mentally retarded man had been stabilized on haloperidol (4 mg) for self-abusive behavior. He was transferred to a community facility and began treatment with the defendant psychiatrist. The patient was stable for over a year, and the psychiatrist changed his medication to 2 mg only as

needed. The psychiatrist indicated that the medication withdrawal was necessitated by a state audit regarding medication use in the mentally retarded, as well as the risk of tardive dyskinesia (TD) which was not present. Within a month of the medication discontinuation, the patient deteriorated, requiring hospitalization and larger doses of haloperidol. He was returned to the state developmental center, developed contractures of his extremities, and became wheelchair-confined. The jury found that the psychiatrist was negligent in failing to review the patient’s history, failing to obtain the patient’s complete medical records from the transferring agency, and in reducing the medication so abruptly. Empirical data have been accumulating on the association between the use of psychotropic medication, particularly benzodiazepines, and automobile or other accidents (Barnas et al. 1992; Barbone et al. 1998; Thapa et al. 1998). Though such medication use may only be one of many risk factors for vehicular injuries, these cases have been litigated. In Watkins v. United States (1979), the prescribing physician was found negligent for prescribing a 50-day supply of Valium (diazepam) to a patient without taking an adequate psychiatric history or reviewing the patient’s psychiatric records, which led to a motor vehicle accident.

Lack of indication for a prescription A psychiatrist prescribed fifty 10 mg diazepam tablets for a man who, while driving his car the next day, collided head-on with a motorcycle. It was alleged that the patient was under the influence of beer and diazepam, which he had obtained for non-medical purposes, at the time of the accident. The plaintiff, who sustained serious injuries, also alleged that it was negligent to prescribe diazepam to a person who was likely to abuse drugs. A $410 000 outof-court settlement was reached with the psychiatrist and other parties (Munsell v. Lynk 1983).

Contraindication for a prescription Upon admission to a hospital, a male patient informed the staff that he was allergic to antihistamines because they caused urinary retention. He was nevertheless provided at discharge with hydroxyzine (100 mg, q.i.d.) and trifluoperazine. When urinary retention developed, the hydroxyzine was reduced and later discontinued, but complications developed including a prostatic infection, Foley catheter for four years, and eventual prostatic resection. Expert testimony indicated that the hydroxyzine prescription was negligent given the patient’s history, and that the hydroxyzine caused the bladder damage. A judgment for the plaintiff of $20 000 was awarded (Miller v. U.S. 1976). In Ferrara v. Berlex Laboratories, Inc. (1990), a psychiatrist treated a depressed patient with phenelzine [monoamine oxidase (MAO) inhibitor]. Another physician

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subsequently diagnosed chronic sinusitis and prescribed a decongestant with pseudoephedrine. The patient suffered a hypertensive crisis and a stroke, and was awarded a judgment against the second physician for his negligence. More generally, off-label use of approved psychotropic medications is common, and is a well-accepted form of medical practice, though with liability risk (Weiss et al. 2000). Off-label use consists of prescribing an already Food and Drug Administration (FDA)-approved medication, but for a medical condition not already approved, or prescribing for a different patient population, or in a different dosage, than approved. Off-label use of an approved medication is distinguishable from the use of a non-FDA-approved medication or substance. Off-label use is not per se a deviation from the standard of accepted psychiatric care. In some cases, failure to prescribe a medication for an off-label use could be considered a deviation from the standard of care. Several professional medical associations have adopted specific policies on the use of off-label medications, typically noting that such use is appropriate when based upon sound scientific evidence and medical opinion (Henry 1999). Case law generally has recognized the appropriateness of off-label prescribing (Kuntz 1998). Nevertheless, third-party reimbursement is sometimes not available for off-label medication prescriptions. The FDA Modernization Act (FDAMA) of 1997, with subsequent regulations, has articulated the rules by which pharmaceutical manufacturers are permitted to promote off-label drug sales to prescribing physicians and others (FDAMA 1997).

informed consent prior to the administration of major tranquilizers.’ The parents had not been informed of the risks attendant to the treatment program, and the trial court rejected the defendant’s argument that the parents had implicitly consented. The trial court awarded $385 165 for future medical expenses and $375 000 for past and future pain and suffering. This was subsequently upheld in the Iowa Court of Appeals (Clites v. Iowa 1982). A psychiatrist prescribed and administered monthly injections of fluphenazine decanoate for five years to a woman diagnosed with chronic paranoid schizophrenia (Accardo v. Cenac 1998). In earlier years, she had been treated by the defendant psychiatrist and another psychiatrist with haloperidol, thioridazine, and perphenazine. The defendant testified that he did not observe any signs or symptoms of TD during the five years of medication injections, which ended when he diagnosed her as having TD and tardive dystonia, and discontinued the antipsychotic medication. At trial, there was dispute over the frequency of injections, the onset of TD, and the information given to the patient and family by the psychiatrist about the side effects of treatment. Documentation of the five years of pharmacotherapy consisted of three pages of handwritten notes. During trial, the defendant stipulated to his negligence in causing the patient’s TD, and the jury determined damages, later modified on appeal, including $500 000 for her future medical care.

Failure to recognize, monitor, and treat side effects

In Hedin v. U.S. (1985), the plaintiff was hospitalized for treatment of alcohol abuse, and treated with thioridazine and then chlorpromazine as an outpatient. He continued to take chlorpromazine (600 mg) daily for nearly four years before his physicians detected his TD and withdrew the medication. Though the patient had been aware of the movements involving the face, mouth, trunk, and extremities, he was unaware they were due to the medication. The defendant acknowledged having prescribed excessive amounts of medication over a prolonged period of time without proper supervision. Damages of nearly $2.2 million were awarded because the plaintiff had become functionally disabled from the dyskinesia. A patient with chronic schizophrenia was treated for three years with 500 mg daily of loxapine, which was double the manufacturer’s recommended maximum dose (Edwards v. United States 1990). Treatment with lower doses resulted in exacerbation of delusional thinking. He was also seen for counseling on an outpatient basis. After two brief hospitalizations for anxiety symptoms, the patient was found dead at home; he had died of sudden heart failure. In the subsequent lawsuit, the trial court ruled that the antipsychotic medication did not cause the patient’s heart failure and death. The court rejected the plaintiff ’s allegations that the defendant had failed to

An inpatient at a teaching hospital, treated in a team approach, was given four different neuroleptics, as well as diphenhydramine and anticholinergics, for what was thought to be a schizophreniform disorder. In an anticholinergic crisis, she suffered a cardiopulmonary arrest after five weeks’ hospitalization, with a rectal temperature of 108°F (42°C). The patient survived with severe brain damage and was awarded the statutory maximum of $500 000 (Sibley v. Board of Supervisors 1983, 1985). In Clites v. Iowa (1980), the parents of a mentally retarded male at a state facility sued the state for negligence and failure to obtain informed consent. Several physicians had treated the patient with antipsychotic medication since age 18 for ‘aggressive behavior.’ Medication continued for five years before TD of the face and extremities was diagnosed. The trial court ruled that medication had been inappropriately prescribed, and the patient was improperly monitored over the years. The trial court also ruled that the patient’s parents, his legal guardians, ‘were never informed of the potential side effects of the use, and prolonged use, of major tranquilizers, nor was consent to their use obtained,’ thus violating the ‘standard that requires some form of

Prescription of an improper dose and duration

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properly monitor the patient, should not have prescribed refills for six months at a time, and should have attempted to reduce his medication.

Failure to diagnose and treat with medication In contrast to the above case illustrations of overtreatment with medication, an area of growing concern is that of undertreatment. New psychotropic medications are continually being developed and released for disorders which were previously untreatable with medication, and new uses are being found for existing medications or combinations of medications. Cost-containment strategies in mental healthcare emphasize the need to provide effective treatment at the lowest expense, and somatic treatments can often fill this role. Slawson (1991), citing claims experience with the APA insurance program, reported that patient complaints about the ineffectiveness or inappropriateness of medication far exceeded those about medication side effects. In cases of delayed or no improvement in the patient’s symptoms, liability can include the failure to obtain consultation from a clinician experienced with psychotropic medication and electroconvulsive therapy. A different but related liability concern is the alleged failure to use psychotropic medication; a failure to diagnose a medication-treatable condition may also be alleged. Case law here has apparently been infrequent so far, but one much-publicized case was settled for an undisclosed amount after an arbitration panel awarded the plaintiff $250 000, without establishing a legal precedent (Osheroff v. Chestnut Lodge 1985). A similar allegation of negligent failure to treat with psychotropic medication was brought by a patient who was treated for dysthymic disorder with psychoanalysis for eight years after he had refused treatment with medication (Cobo v. Raba 1998). At trial, the jury found for the plaintiff who was a physician specializing in infectious disease. On appeal, however, the North Carolina Supreme Court reversed and remanded, ruling that the defendant psychiatrist was entitled to a jury instruction on contributory negligence by the plaintiff, a legal doctrine in the state which permits a defendant to prove that the plaintiff ’s injuries were proximately caused by his own negligence. Generally, the ‘respected minority rule’ governs liability for decision making about a particular choice of treatment in medicine; thus, a treatment practice is legally defensible so long as a respected minority of practitioners use it for a particular condition.

Standard of care in psychopharmacology litigation As in all medical negligence litigation, the plaintiff must establish the relevant standard of care in the case at bar

and prove that the defendant deviated from that standard. For several reasons, standards of care in psychopharmacology are often more elusive than they may seem. New psychotropic medications of all types are continually being introduced into the marketplace; for example, atypical antipsychotic medications, with their greater efficacy and lower incidence of movement disorders than conventional antipsychotic medications, raise the possibility of a standard of care which demands their use in some categories of patients and disorders (Chiles et al. 1999; Slovenko 2000; Rabinowitz et al. 2001). The practice of psychopharmacology also has its fads – avoiding polypharmacy in the care of patients in the 1970s and 1980s, but encouraging it in subsequent years. Finally, decisions to treat patients with pharmacotherapy, especially in high-risk clinical situations such as pregnancy, are typically complex, risk–benefit processes dependent upon factors related to the physician, patient, and family members (Wisner et al. 2000). In adverse drug reaction liability cases, the plaintiff may introduce the manufacturer’s labeling (e.g., medication package inserts and the Physicians’ Desk Reference) as evidence of the defendant’s departure from the standard of care. In some jurisdictions, such evidence is considered prima facie evidence of negligence, though expert medical testimony will still be necessary to establish that the patient’s injury resulted from the negligence (Mulder v. Parke Davis & Co. 1970; Haught v. Maceluch 1982). Other jurisdictions, however, have rejected the manufacturer’s labeling as conclusive of negligence, and require expert testimony as well as the relevant medical literature to establish the standard of care (Haven v. Randolph 1972). Thus, compliance with the manufacturer’s published recommendations will not invariably negate liability, and deviation will not necessarily impose liability (Yacura 1984).

SECLUSION AND RESTRAINTS Seclusion and restraints in mental health or nursing home settings are highly regulated practices, usually by state and federal regulations, state statutes, state and federal constitutional provisions, and standards set by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO). Federal regulations were adopted by the Health Care Financing Administration in 1999 for Medicare funded hospitals (HCFA 1999), and a federal statute was enacted in 2000 applicable to public or private general hospitals, nursing facilities, and residential treatment centers for children and youth (Public Law 106-310). Applicable law may include detailed rules about the definitions of seclusion and restraint, indications (e.g., patient age, diagnosis, symptoms), exceptions (e.g., time outs in a non-locked setting to calm a patient), contraindications, role of physician and nursing staff, monitoring practice,

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need for consultation or review, need for patient consent, documentation of pertinent findings and decision making, and reporting of injuries or deaths resulting from the use of seclusion and restraints. Such legal rules may be burdensome to physicians and facilities alike, but are promulgated to protect patients from the emotional and physical harms which can occur from their use (Fisher 1994; Appelbaum 1999). While the use of seclusion and restraints is not a frequent source of litigation for psychiatrists and hospitals, liability can occur (Johnson 1990; Coffin 1999). In Youngberg v. Romeo (1982), a committed, mentally retarded person’s constitutional right to be free from undue bodily restraint was recognized. Psychiatrists incur negligence liability for seclusion and restraints when overuse results in patient injury or death. The physicians in Hopper v. Callahan (1990), in which a female patient died in seclusion, were alleged to have failed to exercise professional judgment in ordering the seclusion and in failing to provide appropriate medical care. In another case, seclusion and restraints were found to have been used for punitive rather than therapeutic reasons (Clark v. Ohio Department of Mental Health 1989). In a case which considered the use of restraints more generically, a female patient suffered a fractured tibia when a 135-kg (300-lb) male attendant knocked her to the ground in preparation for an involuntary medication injection (Kuster v. State of New York 1989). Negligence liability can also occur, perhaps more commonly, for the failure to use appropriate restraints, resulting in injury to staff, other patients, or the patient him/herself. A hospitalized patient in an acute psychotic episode managed to escape from full leather restraints while unmonitored, and fled the hospital (Rohde v. Lawrence General Hospital 1993). He drove off in an unlocked automobile taken from the hospital parking lot, and crashed into a fence, suffering serious injuries. Suit was brought against the hospital, nursing staff, and physician.

SUICIDE AND ATTEMPTED SUICIDE Suicide and attempted suicide are among the most common, and the most expensive, professional liability claims against mental health professionals and facilities (Slawson 1989; Bongar 2002). Damages for the survivor of a suicide attempt can exceed those for a completed suicide, due to the need for continuing medical and rehabilitative expenses for serious, disabling, but non-lethal injuries (e.g., paraplegia, burns, neuropsychological deficits). Income losses for middle- or upper-income individuals who commit suicide can reach into the millions of dollars. Liability may occur for suicides during hospitalization, shortly after release from the hospital, and on an outpatient basis. Each situation presents different clinical and legal issues (Klein and Glover 1983). Liability is more

likely with hospital suicides than the other two categories (Bongar et al. 1993), given the staff’s assumed greater control over the inpatient than the outpatient, though the risk factors for hospital suicide are not empirically known, and may differ from those of outpatient suicide (Proulx, Lesage, and Grunberg 1997; Powell et al. 2000). In Winger v. Franciscan Medical Center (1998), for example, a psychiatric hospital allegedly failed to properly supervise a patient or restrict his access to the bathroom after he hanged himself with his shoelaces from a showerhead. Generally, suicide liability is predicated upon an inadequate assessment of suicide risk, and/or an inadequate response to that risk, which is proximately related to the suicide (Robertson 1988). An assessment of suicide risk, whether inpatient or outpatient, is ideally a comprehensive investigation of cognition, emotion, and behavior with regard to present and past self-destructiveness (Joiner et al. 1999). The clinician examines suicide ideation, suicide intention, suicide plan, availability of weapons, attitudes about suicide, past history of suicide attempts, behavioral impulsivity, in addition to related clinical dimensions such as depression, hopelessness, and psychosis. An underappreciated issue is evaluating the patient’s ability to monitor his or her own suicidality and report it to the clinician (Gutheil, Bursztajn, and Brodsky 1986). Repeated suicide assessments of a patient are typically necessary, especially when treating depressed or severely character disordered hospital patients, and those who are chronically suicidal. Suicide impulses can fluctuate in their presence and severity. In Bates v. Denney (1990), a man who had recently attempted suicide and been hospitalized was sent home from an emergency room after he denied suicide ideation, though his mother had brought him there, believing him to be suicidal. The treating psychiatrist, contacted by the emergency physician, did not see the patient, and scheduled an appointment for him the next day, but he shot himself. The jury found in favor of the defendant-psychiatrist, despite expert testimony for the plaintiff that the patient was suicidal and should have been involuntarily hospitalized. In a similar case, a man was evaluated at a crisis center after having slashed his wrist with a knife and jumped out of a bedroom window (Vasilik v. Federbush 1999). The evaluators informed the patient’s father that the patient was not suicidal but was seeking attention, and they did not offer psychiatric hospitalization. The patient jumped in front of a truck the next day. At trial, the jury found for the plaintiff based upon expert testimony that the patient’s earlier suicide attempts should have been taken more seriously, and hospitalization offered. In this case as in others, the court’s or jury’s judgment of the adequacy of the risk assessment often turns on the nature of its documentation in the psychiatric record. Once the suicide assessment has been completed, the clinician must respond in proportion to the level of risk identified. Both treatment and security/observation measures must be taken to reduce that risk. This often

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requires balancing treatment versus security needs, which may be mutually contradictory (e.g., prescribing higher medication doses with more lethality and potential for response versus lower doses; increasing hospital suicide precautions versus permitting more freedom to pursue treatment opportunities). Yet the courts can be sympathetic to these conflicts. In Topel v. Long Island Jewish Medical Center (1981), an appellate court overturned a plaintiff ’s verdict by jury in a hospital suicide case. The court ruled that professional judgment determined whether a suicidal patient should be monitored continuously or at 15-minute intervals, and that it was proper for the defendant physician to evaluate the expected benefits and risks of constant surveillance. Similarly, in Speer v. United States (1981), the court ruled that prescribing a month’s supply of medication (amitriptyline and perphenazine), to an outpatient who fatally overdosed, did not violate the standard of psychiatric care. Hopefully, suicides by overdose with tricyclic antidepressants such as doxepin, as in Wozniak v. Lipoff (1988), Chauvin v. West Jefferson Mental Health Center (1992), and Hobart v. Shin (1998) will decline with the greater use of the safer serotonin reuptake inhibitors. Suicides which occur upon release from the hospital raise questions about negligent release, either inadequate risk evaluation prior to release, or improper aftercare treatment plans. In one case (Bell v. New York City Health and Hospitals Corporation 1982), the treating psychiatrist had failed to investigate the hospitalized patient’s hallucinations and delusions before releasing him. A week after discharge, the patient set himself on fire by dousing himself with gasoline. The plaintiff ’s verdict by jury was upheld on appeal. Whether the patient who attempts or commits suicide should be held responsible for his or her own behavior has been addressed by a variety of courts through the doctrine of contributory negligence. In Hobart v. Shin (1998), an outpatient with recurrent depression completed suicide by a ten-fold lethal dose of her doxepin, while registered under a fictitious name in a motel room. When she was last seen in the office by the defendant physician 16 days prior to the suicide, she did not display any signs of depression, suicide ideation, or hopelessness. She suffered a relapse two days prior to the suicide, and her mother urged her to contact her treating physicians, which she refused. The jury found for the defendant physician, which was upheld on appeal by the Illinois Supreme Court, ruling that the state code of civil procedure provides that a plaintiff whose contributory negligence exceeds 50 per cent of the proximate cause of the injury is barred from recovering any damages. The state supreme court indicated that this principle also applies to psychiatric patients who attempt or commit suicide. No suicide ‘contracts,’ and decisions to discharge a patient ‘against medical advice,’ are often used by clinicians under the erroneous belief that such practices will protect them from liability. There is no empirical support

that either defensive measure reduces the likelihood of litigation or adverse legal outcome, or even prevents suicide (Devitt, Devitt, and Dewan 2000; Kroll 2000). Rather, contracting for safety can create a barrier to communicating the patient’s intense emotional distress, and interfere with the therapeutic alliance. Staff may inappropriately reduce their attention to the patient’s suicide potential, deluding themselves that the patient is safe, and offering a false sense of security (Miller, Jacobs, and Gutheil 1998). ‘No suicide’ contracts should not substitute for ongoing comprehensive risk assessment and treatment planning (Jacobs 1999; Simon 1999).

NEGLIGENT SUPERVISION AND COLLABORATION The psychiatrist incurs many potential liability risks when he or she supervises or collaborates with other mental health professionals in the care of a patient. The nature and extent of the risk depends upon the roles and responsibilities of the respective clinicians, the type and severity of the patient’s mental disorder, the forms of psychiatric treatment that are provided to the patient, and the administrative system of clinical care in which the patient is seen. For present purposes, we can distinguish among supervision, consultation, and collaborative treatment sometimes called ‘medical back-up,’‘dual treatment,’ ‘shared treatment,’ or ‘split treatment’ (Sederer, Ellison, and Keyes 1998). In a supervisory relationship, the supervisee is expected to comply with the recommendations of the supervisor. In contrast, consultation involves two or more independently licensed or fully credentialed professionals. In a collaborative relationship, two or more licensed or credentialed professionals share the patient’s care, with each of them independently responsible for particular aspects of that care. Psychiatrists who supervise other clinicians bear considerable clinical and legal responsibility for that clinician’s work. In some cases, there is an employer–employee relationship between them, but often both are employed by another agency or facility. According to the legal doctrine of respondeat superior, the supervisor incurs vicarious liability for the supervisee. Thus, the physician in Andrews v. United States (1984) was found to have negligently supervised his assistant’s counseling which eventuated in sexual intercourse. The presence of a supervisory relationship can be suggested by a system of care in which the psychiatrist signs or reviews team treatment plans, or billing claim forms, for a patient, even though the psychiatrist has no formal supervisory role in the team. Similarly, the concept of the physician as ‘captain of the ship’ is still prevalent, despite actual clinical practice to the contrary. On the other hand, courts have held trainees to the same standard of care as fully trained professionals, so the supervisor does not entirely shoulder the liability.

256 Civil law

In contrast, consultants should bear less clinical and legal responsibility for patient care than supervisors, especially if the consultant has not personally examined the patient and billed for the consultation. In that case, a court may rule that there is no physician–patient relationship, which is a predicate for professional liability (Hill by Burston v. Kokosky 1990). Depending upon the clinical context, consultants may have clinical and legal responsibilities to perform adequate assessments of the patient, coordination of care with the attending physician or psychotherapist, and documentation of their findings and decision making. To the extent that consultants participate in activities relating to treatment of the patient, they share the same liability exposure as treating psychiatrists. Malpractice claims against consulting psychiatrists have been litigated and settled out of court (Garrick and Weinstock 1994). Psychiatrists who collaborate with non-medical mental health practitioners in the care of a patient, whether at an agency or in private practice, might in theory have limited liability for patient care given their restricted clinical activities such as infrequent and brief contact with a patient only for prescribing and monitoring psychotropic medication, and responding to emergency situations necessitating hospitalization (MacBeth 1999). In such a practice, the psychiatrist should not in theory have responsibility for the psychotherapist’s errors and omissions. Yet, in practice the legal system may not appreciate the critical distinctions between supervision, consultation, and collaboration, with the result that split treatment arrangements do not minimize liability for collaborating psychiatrists. For instance, a plaintiff’s attorney can attempt to distort a collaborative relationship into a supervisory one. Further, prescribing psychiatrists increase their liability exposure by seeing large numbers of patients, in a briefer period of time, for medication management in contrast to seeing smaller numbers of patients more frequently, and for longer sessions, by providing psychotherapy and pharmacotherapy. Liability exposure is also increased for the psychiatrist in clinical systems of care: (i) in which the psychiatrist is unable to see patients in timely manner to assess a patient’s clinical change; (ii) in which the psychiatrist is given medication responsibility for large numbers of patients; (iii) when the psychotherapists are inadequately trained and supervised; (iv) when mechanisms are inadequate to facilitate genuine collaboration and sharing of information between the psychiatrist and psychotherapist; and (v) when there are multiple therapists and multiple psychiatrists providing care to a single patient. Through the use of ‘joint and several liability,’ split treatment with multiple defendants can result in the well-insured psychiatrist’s having to provide most or all of the legal judgment against the defendants, especially when the non-physician co-defendants are uninsured or underinsured. In collaborative treatment situations, the co-therapists need to clarify the nature of their relationship and their respective roles and responsibilities (Gutheil 1994;

MacBeth 1999). A written contract or letter of agreement between the co-therapists can be useful for this purpose. It should be clear, for example, whether the psychiatrist is responsible in any way for the non-psychiatrist’s psychotherapy, or is only providing pharmacotherapy services. A judge or jury in a malpractice case could otherwise assume that the psychiatrist had supervisory authority over the psychotherapist; such was the practice years ago until psychopharmacology became a subspecialty practiced by many psychiatrists under managed healthcare. The psychotherapist’s responsibility, if any, for monitoring medication response and side effects should also be clearly defined. There should be ample opportunities for interaction and coordination between the psychiatrist and psychotherapist, whether on a regular or crisis basis, to minimize miscommunication, splitting, and inconsistency in the treatment approach. Professional guidelines for such collaboration indicate that the patient should also be informed of each therapist’s responsibilities and consent to the free sharing of information between the physician and non-physician (American Psychiatric Association 1980; Gutheil 1994).

HANDLING MEDICAL ERROR An important dilemma in medical error situations occurs when the physician or associated healthcare professional becomes aware of an error in the patient’s care, especially when the error is harmful to the patient, and the patient and family are unaware of it. One survey of internal medicine house officers revealed that only 54 per cent discussed the mistake with their attending physicians, and only 24 per cent informed the patient or families (Wu et al. 1991). Disclosing a serious error to a patient or family member is typically discouraged by risk management staff and legal counsel at hospitals and clinics, for fear of increasing the likelihood of initiating a lawsuit for the error. The presence of the National Practitioner Data Bank, though limited in its actual impact, also serves as a deterrent to spontaneous reporting of serious error (Baldwin et al. 1999). The ethical theories of consequentialism and deontology each argue for a physician’s duty to disclose significant medical error to patients and families (Wu et al. 1997). Professional medical associations have adopted policies favoring such disclosure for ethical reasons (Wu et al. 1997). The Veterans Administration has adopted a system-wide policy of requiring the disclosure of medical error to patients and family when that error has resulted in loss of a patient’s function, earning capacity, or life, while providing assistance to them in filing a claim against the facility (Kraman and Hamm 1999). Empirical data pursuant to this practice at one facility demonstrated that claim frequency and severity data were moderate, and comparable to those at comparable facilities

Specific issues in psychiatric malpractice 257

(Kraman and Hamm 1999). Surveyed internal medicine patients at an outpatient facility indicated that they desired an acknowledgment from their physicians of even minor errors (Witman, Park, and Hardin 1996). Such ‘extreme honesty’ likely undercuts anger and vengefulness of patients and their families, which can prompt litigation demanding excess or even punitive damages (Hickson et al. 1992; Witman et al. 1996). Beyond being the ‘best defense,’ acknowledgements of medical error, and apology, also promote open communication between physicians and patients (Witman, Park, and Hardin 1996; Shuman 2000), and provides patients with information which they may need to make decisions regarding their subsequent healthcare. Yet, such a practice of disclosing one’s own medical error does not necessarily extend to the situation of a psychiatrist who learns of a medical error made by another physician in the care of their joint patient.

CONCLUSION Though psychiatrists enjoy among the least exposure to professional liability in all of medicine, there are still many practice risks deserving concern, especially in a managed care, split treatment, clinical environment. Psychiatry is practiced in an increasingly regulated and complex legal and financial environment. Systems of care issues which reduce the risk of error in the practice of psychiatric medicine are at the incipient stage of development. This chapter has considered some of the generic psychiatric issues likely to be brought to litigation. Though specific clinical practices may change in future years, similar liability concerns will no doubt be applicable.

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Baldwin, L., Hart, L., Oshel, R., et al. 1999. Hospital peer review and the National Practitioner Data Bank. Journal of the American Medical Association 282, 349–55. Barbone, F., McMahon, A., Davey, P., et al. 1998. Association of road-traffic accidents with benzodiazepine use. Lancet 352, 1331–6. Barnas, C., Miller, C., Sperner, G., et al. 1992. The effects of alcohol and benzodiazepines on the severity of ski accidents. Acta Psychiatrica Scandinavica 86, 296–300. Bates v. Denney, 563 So.2d 298 (La. App. 1990). Bates, D., Boyle D., Vliet, M., et al. 1995. Relationship between medication errors and adverse drug events. Journal of General Internal Medicine 10, 199–205. Bates, D., Miller, E., Cullen, D., et al. 1999. Patient risk factors for adverse drug events in hospitalized patients. Archives of Internal Medicine 159, 2553–60. Bell v. New York City Health and Hospitals Corporation, 456 N.Y.S.2d 787 (N.Y. 1982). Bongar, B. 2002: The Suicidal Patient: Clinical and Legal Standards of Care, 2nd edition. Washington, DC: American Psychological Association. Bongar, B., Maris, R., Berman, A., et al. 1993. Inpatient standards of care and the suicidal patient (part I). Suicide and Life-Threatening Behavior 23, 245–56. Brackins, L.W. 1985. The liability of physicians, pharmacists, and hospitals for adverse drug reactions. Defense Law Journal 34, 273–344. Chauvin v. West Jefferson Mental Health Center, 597 So.2d 134 (La. App. 1992). Chiles, J., Miller, A., Crismon, M., et al. 1999. The Texas Medication Algorithm Project: development and implementation of the schizophrenia algorithm. Psychiatric Services 50, 69–74. Clark v. Ohio Department of Mental Health, 573 N.E.2d 794 (Ohio Ct. Cl. 1989). Classen, D., Pestotnik, S., Evans, R., et al. 1997. Adverse drug events in hospitalized patients. Journal of the American Medical Association 277, 301–6. Clites v. Iowa, Law #46274, Iowa District Court, Pottawattamie County, August 7, 1980. Clites v. Iowa, 322 N.W.2d 917 (Iowa 1982). Cobo v. Raba, 495 S.E.2d 362 (N.C. 1998). Coffin, C. 1999. Case law and clinical considerations involving physical restraint and seclusion for institutionalized persons with mental disabilities. Mental and Physical Disability Law Reporter 23, 597–602. Devitt, P., Devitt, A., Dewan, M. 2000. An examination of whether discharging patients against medical advice protects physicians from malpractice charges. Psychiatric Services 51, 899–902. Dukes, M., Swartz, B. 1988: Responsibility for Drug-induced Injury. Amsterdam: Elsevier. Edwards v. United States, 749 F.Supp. 1070 (D. Kan. 1990). Ferrara v. Berlex Laboratories, Inc., 732 F.Supp. 552 (E.D. Pa. 1990).

258 Civil law Fisher, W. 1994. Restraint and seclusion: a review of the literature. American Journal of Psychiatry 151, 1584–91. Food and Drug Administration Modernization Act. 1997. 21 United States Code section 301. Garrick, T., Weinstock, R. 1994. Liability of psychiatric consultants. Psychosomatics 35, 474–84. Gutheil, T. 1994. Risk management at the margins: less-familiar topics in psychiatric malpractice. Harvard Review of Psychiatry 2, 214–21. Gutheil, T., Bursztajn, H., Brodsky, A. 1986. The multidimensional assessment of dangerousness: competence assessment in patient care and liability prevention. Bulletin of the American Academy of Psychiatry and the Law 14, 123–9. Guyatt, G., Haynes, R., Jaeschke, R., et al. 2000. Users’ guides to the medical literature. Journal of the American Medical Association 284, 1290–6. Haught v. Maceluch, 681 F.2d 291 (5th Cir. 1982). Haven v. Randolph, 342 F.Supp. 538 (D.D.C. 1972). Hayward, R., Hofer, T. 2001. Estimating hospital deaths due to medical errors. Journal of the American Medical Association 286, 415–20. Health Care Financing Administration. 1999. Interim final rule. 42 CFS Part 482. www\HCFA.gov. Hedin v. U.S.A., No. 5-83 CIV 3 (D. Minn. 1985). Henry, V. 1999. Off-label prescribing. Journal of Legal Medicine 20, 365–83. Hickson, G., Clayton, E., Githens, P., Sloan, F. 1992. Factors that prompted families to file medical malpractice claims following perinatal injuries. Journal of the American Medical Association 267, 1359–63. Hill by Burston v. Kokosky, 463 N.W.2d 265 (Mich. App. 1990). Hobart v. Shin, 705 N.E.2d 907 (Ill. 1998). Hopper v. Callahan, 562 N.E.2d 822 (Mass. Sup. Jud. Ct. 1990). Hyams, A., Brandenburg, J., Lipsitz, J., et al. 1995. Practice guidelines and malpractice litigation: a two-way street. Annals of Internal Medicine 122, 450–5. Jacobs, D. (ed.). 1999: The Harvard Medical School Guide to Suicide Assessment and Intervention. San Francisco: Jossey-Bass Publishers. Johnson, S. 1990. The fear of liability and the use of restraints in nursing homes. Law, Medicine, and Health Care 18, 263–73. Joiner, T., Walker, R., Rudd, M., et al. 1999. Scientizing and routinizing the assessment of suicidality in outpatient practice. Professional Psychology: Research and Practice 30, 447–53. Klein, J., Glover, S. 1983. Psychiatric malpractice. International Journal of Law and Psychiatry 6, 131–57. Kofoed, L., Bloom, J., Williams, M., et al. 1990. Physicians investigated for inappropriate prescribing by the Oregon Board of Medical Examiners. Western Journal of Medicine 150, 597–601.

Kohn, L., Corrigan, J., Donaldson, M. (eds). 2000: To Err is Human: Building a Safer Health System. Washington, DC: National Academy Press. Kraman, S., Hamm, G. 1999. Risk management: extreme honesty may be the best policy. Annals of Internal Medicine 131, 963–7. Kroll, J. 2000. Use of no-suicide contracts by psychiatrists in Minnesota. American Journal of Psychiatry 157, 1684–6. Kuntz, R. 1998. Off-label prescribing of antidepressants and anxiolytics: an attorney’s guide to psychoactive drugs. Journal of Psychiatry and Law 26, 519–32. Kuster v. State of New York, 560 N.Y.S.2d 301 (1989). Leal v. Simon, 542 N.Y.S.2d 328 (A.D. 1989). Leape, L. 1994. Error in medicine. Journal of the American Medical Association 272, 1851–7. Leape, J., Bates, D., Cullen, D., et al. 1995. Systems analysis of adverse drug events. Journal of the American Medical Association 274, 35–43. Lesar, T., Briceland, L., Stein, D. 1997. Factors related to errors in medication prescribing. Journal of the American Medical Association 277, 312–17. Litras, M., Gifford, S., DeFrances, C., et al. 2000: Tort Trials and Verdicts in Large Counties, 1996. Bureau of Justice Statistics, US Department of Justice, Washington, DC (NCJ 179769). Localio, A., Lawthers, A., Brennan, T., et al. 1991. Relation between malpractice claims and adverse events due to negligence. New England Journal of Medicine 325, 245–51. MacBeth, J. 1999: Divided treatment: legal implications and risks. In Riba, M., Balon, R. (eds), Psychopharmacology and Psychotherapy: A Collaborative Approach. Washington, DC: American Psychiatric Press, 111–58. Miller v. U.S., 431 F.Supp. 988 (S.D. Miss. 1976). Miller, M., Jacobs, D., Gutheil, T. 1998. Talisman or taboo: the controversy of the suicide-prevention contract. Harvard Review of Psychiatry 6, 78–87. Mohr, J. 2000. American medical malpractice litigation in historical perspective. Journal of the American Medical Association 283, 1731–7. Morreim, E. 1997. Medicine meets resource limits: restructuring the legal standard of care. University of Pittsburgh Law Review 59, 1–95. Mulder v. Parke Davis & Co., 181 N.W.2d 882 (Minn. 1970). Munsell v. Lynk, Genesee County (Mich.) Circuit Court, No. 80-58801-NI, June 1, 1983. O’Neil, A., Petersen, L., Cook, E., et al. 1993. Physician reporting compared with medical-record review to identify adverse medical events. Annals of Internal Medicine 119, 370–6. Osheroff v. Chestnut Lodge, 490 A.2d 720 (Md. App. 1985). Powell, J., Geddes, J., Deeks, J., et al. 2000. Suicide in psychiatric hospital in-patients. British Journal of Psychiatry 174, 264–72.

Specific issues in psychiatric malpractice 259 Proulx, F., Lesage, A., Grunberg, F. 1997. One hundred in-patient suicides. British Journal of Psychiatry 171, 247–50. Public Law 106-310, October 17, 2000. The Children’s Health Act of 2000. Rabinowitz, J., Lichtenberg, P., Kaplan, Z., et al. 2001. Rehospitalization rates of chronically ill schizophrenic patients discharged on a regimen of risperidone, olanzapine, or conventional antipsychotics. American Journal of Psychiatry 158, 266–9. Robertson, J. 1988: Psychiatric Malpractice: Liability of Mental Health Professionals. New York: John Wiley. Rohde v. Lawrence General Hospital, 614 N.E.2d 686 (Mass. App. 1993). Schiff, G., Rucker, T. 1998. Computerized prescribing. Journal of the American Medical Association 279, 1024–9. Sederer, L., Ellison, J., Keyes, C. 1998. Guidelines for prescribing psychiatrists in consultative, collaborative, and supervisory relationships. Psychiatric Services 49, 1197–202 Shuman, D. 1997. The standard of care in medical malpractice claims, clinical practice guidelines, and managed care: towards a therapeutic harmony? California Western Law Review 34, 99–113. Shuman, D. 2000. The role of apology in tort law. Judicature 83, 180–9. Sibley v. Board of Supervisors, 446 So.2d 760 (La.App. 1983); affirmed 462 So.2d 149 (Sup. Ct. La. 1985). Simon, R. 1999. The suicide prevention contract: clinical, legal, and risk management issues. Journal of the American Academy of Psychiatry and the Law 27, 445–50. Slawson, P. 1989. Psychiatric malpractice: ten years’ loss experience. Medicine and Law 8, 415–27. Slawson, P. 1991. Psychiatric malpractice: recent clinical loss experience in the United States. Medicine and Law 10, 129–38. Slovenko, R. 2000. Update on legal issues associated with tardive dyskinesia. Journal of Clinical Psychiatry 61 (Suppl. 4), 45–57. Speer v. United States, 512 F.Supp. 670 (N.D. Texas 1981). Taragin, M., Willett, L., Wilczek, A. 1992. The influence of standard of care and severity of injury on the

resolution of medical malpractice claims. Annals of Internal Medicine 117, 780–4. Thapa, P., Gideon, P., Cost, T., et al. 1998. Antidepressants and the risk of falls among nursing home residents. New England Journal of Medicine 339, 875–82. Thomas, E., Studdert, D., Burstin, H., et al. 2000. Incidence and types of adverse events and negligent care in Utah and Colorado. Medical Care 38, 261–71. Topel v. Long Island Jewish Medical Center, 431 N.E.2d 293 (N.Y. 1981). Vasilik v. Federbush, 742 A.2d 591 (N.J. Super. 1999). Watkins v. United States, 589 F.2d 214 (5th Cir. 1979). Weiss, E., Hummer, M., Koller, D., et al. 2000. Off-label use of antipsychotic drugs. Journal of Clinical Psychopharmacology 20, 695–8. Wettstein, R. 1983. Tardive dyskinesia and malpractice. Behavioral Sciences and the Law 1, 85–107. Wettstein, R. 1985: Legal aspects of neuroleptic-induced movement disorders. In Wecht, C.H. (ed.), Legal Medicine 1985. New York: Praeger. Wettstein, R. 1988. Informed consent and tardive dyskinesia. Journal of Clinical Psychopharmacology 8 (Suppl.), 65S–70S. Winger v. Franciscan Medical Center, 701 N.E.2d 813 (Ill. App. 1998). Wisner, K., Zarin, D., Holmboe, E., et al. 2000. Risk-benefit decisionmaking for treatment of depression during pregnancy. American Journal of Psychiatry 157, 1933–40. Witman, A., Park, D., Hardin, S. 1996. How do patients want physicians to handle mistakes? Archives of Internal Medicine 156, 2565–9. Wozniak v. Lipoff, 750 P.2d 971 (Kan. 1988). Wu, A., Cavanaugh, T., McPhee, S., et al. 1997. To tell the truth: ethical and practice issues in disclosing medical mistakes to patients. Journal of General Internal Medicine 12, 770–5. Wu, A., Folkman, S., McPhee, S., Lo, B. 1991. Do house officers learn from their mistakes? Journal of the American Medical Association 265, 2089–94. Yacura, M. 1984. Inside the PDR. Trial 20, 64–7. Youngberg v. Romeo, 102 S.Ct. 2452 (1982).

29 Psychiatric disability determinations and personal injury litigation JEFFREY L. METZNER AND JAMES B. BUCK

INTRODUCTION Since 1970, the Bureau of the Census has collected data on work disability among U.S. residents. The 1990 census defined work disability as the inability to perform work resulting from a physical, mental, or other health condition of six months’ duration or longer; categories are non-severe (limitation in the type or amount of work a person can perform) and severe (an inability to perform work of any type). In 1990, an estimated 12.8 million persons aged 16–64 years had a work disability: 6.6 million were severe, and 6.2 million non-severe. Rates of work disability varied widely among the states. From 1980 to 1990, the prevalence of work disability declined nationally from 85.2 per 1000 persons to 81.5 per 1000 persons, and rates of severe and non-severe work disability decreased by 3.9 per cent and 4.7 per cent, respectively (LaPlante 1993a; LaPlante 1993b). The Centers for Disease Control and Prevention reported during May 1998 that in the United States an estimated 10 per cent of persons had some recent disability from a diagnosable mental illness and up to 24 per cent have experienced a mental disorder during the preceding year (Centers for Disease Control and Prevention 1998). Different definitions of disability have been developed by various institutions and organizations such as the Veterans Administration, Social Security Administration, private insurers, and workers’ compensation programs. It is essential to know the specific definition being used in order adequately to address pertinent questions concerning the presence or absence of psychiatric disability. Tort law provides other definitions and conceptualizations when mental and emotional damages are alleged in personal injury litigation. Issues relevant to the legal definition of disability under the Americans with Disabilities Act are addressed in Chapter 30. Definitions used for disability are more clearly understood by linking them to a conceptual framework related to the consequences of

disease and injury, such as the International Classification of Impairments, Disability, and Handicaps (ICIDH) (World Health Organization 1993). The World Health Organization (WHO) released the Beta-2 draft full version of the international classification of functioning and disability (ICIDH-2) during July 1999. This was a revision of the ICIDH which was first published in 1980 by the WHO for trial purposes. The acronym ICIDH has been retained for historical purposes. ICIDH-2 systematically groups functional states associated with health conditions (i.e., a disease, disorder, injury or trauma, or other health-related state). Among the aims of ICIDH-2 is to provide a scientific basis for understanding and studying the functional states associated with health conditions and to establish a common language for describing functional states associated with health conditions in order to improve communications between healthcare workers, other sectors, and people with disabilities. The ICIDH-2 classification covers any disturbance in terms of ‘functional states’ associated with health conditions at body, individual and society levels. ‘Functioning’ and ‘disability’ are umbrella terms covering three dimensions: 1 Body functions and structure. 2 Activities at the individual level. 3 Participation in society (ICIDH-2 1999). The Beta-2 full version (July 1999) has been issued for field trial purposes. This classification is undergoing systematic field trials and is subject to further consultation. Reference should be made to the web page for detailed information concerning the ICIDH-2. It is important to understand the cultural, social, biological, and psychological components of the systems that determine decisions to seek employment, change employment, become formally unemployed, or seek or

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be assigned disability status in order to comprehend more adequately disability behaviors (Brodsky 1987a). Learning about these systems will increase knowledge concerning the relationship between social impairments and psychosocial disability (Ruesch and Brodsky 1968). This chapter provides an overview of issues to be addressed by the forensic psychiatrist concerning disability determinations through workers’ compensation systems, the Social Security Administration, and private insurance policies as well as fitness for duty examinations and psychological damage claims in personal injury litigation.

WORKERS’ COMPENSATION Issues Workers’ compensation systems vary in each state due to differences in statutes, case law, and administrative practices. Such systems were developed as a social policy response to the acknowledgment that injured workers were at a legal disadvantage when seeking compensation. Before the advent of the workers’ compensation system, a worker who was injured on the job could recover only by proving the employer was liable in tort, and the employer was liable only for injuries resulting from failure to use reasonable care. Three major defenses were available to the employer under such circumstances:

• • •

The contributory negligence rule found an employer not liable if the worker’s own negligence contributed to the injury. The assumption of risk rule held that the worker assumed the risk of injuries on the job after becoming aware of the possible danger even if the worker continued to work under protest. Under the fellow servant rule, the employer was absolved of any liability for injuries to one worker resulting from the negligence of another worker (Keeton et al. 1984).

It was often difficult for workers to recover under these common law principles. Additionally, employers were subjected to potentially ruinous jury verdicts for injuries to workers, as well as punitive damages claims. Eventually, statutes were passed in one form or another in all fifty states where a finding of fault was not required as a prerequisite to awarding benefits (Mussoff 1981). The worker need only show that the injury was the result of a workrelated accident, although there is a range of definitions concerning this issue. Generally, the injury must arise ‘out of employment,’ which essentially means that the employee was exposed to a risk in the place of employment greater than that encountered in everyday life, and the injury must have occurred in the ‘course of employment,’ which generally means exposure that occurs within the time and place of employment (Warshaw 1988).

The typical statute provides that a worker is to be compensated for loss of earnings and medical expenses resulting from a work-related injury. The worker no longer needs to prove negligence to obtain benefits, but generally only needs to show that the need for such benefits is work-related. This ‘no-fault’ approach left the employers with the cost of occupational injuries and disabilities as a cost of doing business (Lawson 1973). Under this system, the worker is limited to statutorily defined medical and disability benefits, and employers are shielded from often unlimited liability under the civil tort system. Important psychiatric-legal issues involve concepts of impairment, disability, maximum medical improvement, and employability. Familiarity with the American Medical Association’s (AMA) Guides to the Evaluation of Permanent Impairment (Cocchiarella and Andersson 2000) and pertinent state law will provide relevant definitions for the physician involved in workers’ compensation evaluations. For example, the AMA publication defines impairment as ‘a loss, loss of use, or derangement of any body part, organ system, or organ function’ that is assessed by medical means; this is in contrast to disability, which is defined as ‘an alteration of an individual’s capacity to meet personal, social, or occupational demands or statutory or regulatory requirements because of an impairment.’ A disability arises out of the interaction between impairment and external requirements, especially those of a person’s occupation (Doege and Houston 1993, p. 1–2). Kennedy and Gruenberg (1987, p. 7–8) define impairment as a limitation due to a defect in an organ’s functioning, and disability as a limitation of activity produced by an impairment. Using these definitions, an individual who is impaired may not be disabled. Disability can be either partial or total and can be temporary or permanent. Temporary disability benefits commence once the worker is found to have been injured in the course and scope of employment and is disabled temporarily from employment. Permanent disability benefits begin after the worker has reached maximum medical improvement (MMI) and has received an impairment rating, which is an important factor in the disability determination. The definition of MMI varies from state to state, but generally indicates that the worker’s underlying condition causing his or her disability has become stable and further medical treatment will not improve the condition. However, treatment may still be required following attainment of MMI in order to prevent further deterioration. The majority of states for almost the past thirty years have relied on the AMA’s Guide to the Evaluation of Permanent Impairment (Doege and Houston 1993) to assess issues relevant to disability. A survey completed in 1999 indicated that forty states use the Guides in workers’ compensation cases because of statute or regulations, or by administrative/legal practice (Barth and Niss 1999; Cocchiarella and Andersson 2000). The 1985 revision of the Social Security Administration’s ‘Listing of Mental Impairments’ is reflected in the

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fifth edition’s chapter of the AMA publication, which describes mental and behavioral disorders. Specifically, activities of daily living, social functioning, concentration, and adaptation are to be assessed and rated on a fivepoint scale. Unlike other chapters on non-psychiatric impairment, the fifth edition has not provided percentages for estimates of mental impairment because there is no available empirical evidence to support any method for assigning a percentage of impairment of the whole person despite physicians often being required to make such judgments based on clinical impressions (Cocchiarella and Andersson 2000). Over the past twenty years, there has been a significant increase in workers’ compensation claims attributing disability to mental impairment or occupational stress. It was reported by the National Council on Compensation Insurance that about 15 per cent of all occupational diseases nationwide in 1985 were stress-related, which represented a 30 per cent increase from 1984 (Dentzer, McCormick, and Tsurouka 1986). National healthcare costs grew at an average annual rate of about 10 per cent from 1985 to 1992, and workers’ compensation costs grew at an average annual rate of nearly 15 per cent, peaking in 1992. These increased costs served as a precipitant for many of the medical cost-containment initiatives currently in place in workers’ compensation systems (Eccleston and Victor 1998). Mental disorders already rank among the top ten work-related injuries and illnesses in the nation (Matsumoto 1994). It is important to realize that most states’ compensation systems have been haphazardly constructed. Legislative amendments and judicial interpretations have created unique systems in each state (Spieler 1995). Stress claims are not potentially compensable in eight states; eight states allow such claims if the stressor is a sudden, frightening, or shocking event; eleven states require the stress to be in excess of the stress of everyday life or employment to be compensable; seven states allow compensable stress claims even if the stress does not exceed that of everyday life or employment; and fifteen other states do not have adequately established case law to provide guidelines for such issues [Warshaw (1988) reports on only forty-nine states].

Legal criteria There are three categories of work-related injuries involving mental stress. Not all states accept all these categories as compensable work-related injuries. Each has its own variants and specific problems concerning proof of causality. 1 The first category is the ‘physical–mental’ claim where a physical trauma causes a mental injury. An example is a worker who is injured in an explosion and thereafter develops posttraumatic stress disorder. This type of claim is accepted by all jurisdictions.

2 The second category is the ‘mental–physical’ claim in which a mental stimulus causes a physical injury. An example would be an individual who is subjected to work-related stress due, e.g., to a heated argument with a co-worker, or a demotion or termination, and thereafter suffers a physical injury such as a stroke, heart attack, or ulcers. Because heart attacks are relatively common in certain worker populations, and because allegations that a heart attack is work-related is hard to dispute, some states have implemented additional criteria for obtaining benefits in heart attack cases. For example, Colorado denies benefits to workers suffering heart attacks unless the worker proves that the heart attack was caused by an unusual exertion arising out of employment, as opposed to the stress of everyday life (Colo. Rev. Statutes 1991a). 3 The third, and most controversial category, is the ‘mental–mental’ claim, where a mental stimulus results in a mental injury, e.g., a shock at work causes a mental illness. An example would be a claimant who witnesses a co-worker’s hand severed in a machine press and as result develops posttraumatic stress and disabling anxiety. All jurisdictions allow compensation for physical– mental and mental–physical claims; however, eleven states do not recognize mental–mental claims. These states require some type of physical injury (Head 1997). Most jurisdictions have limited psychiatric disability compensation by: (i) narrowly defining accidental injury or occupational disease; (ii) qualifying the definition of an acceptable stimulus causing an injury; (iii) raising the causation threshold for a work-related injury; and/or (iv) defining a more stringent burden of proof for psychiatric injury (London, Zonana, and Loeb 1988). An example of such limitation is the current Colorado law which specifies that mental impairment cannot be based, in whole or in part, on facts and circumstances that are common to all fields of employment. This statute also excludes mental impairment claims which result from disciplinary actions, work evaluations, job transfers, layoffs, terminations, or similar action taken in good faith by the employer (Colo. Rev. Statutes 1991b). Bursten (1986) provides a very useful summary concerning issues related to sexual discrimination and sexual harassment in the workplace. If the worker being discriminated against or harassed has been so affected that he or she is unable to work, then workers’ compensation benefits may be available.

Landmark cases The Michigan Supreme Court holding in Carter v. General Motors Corp. (1960) was the first landmark case to compensate a worker for a mental disorder precipitated solely by a mental stimulus. A lower court decision was sustained for a machine operator who suffered a psychosis alleged

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to have resulted from stress encountered on his job. This finding was unique because there was neither a physical injury nor a specific, definable event that precipitated the psychosis (Parlour and Jones 1980). Beveridge v. Industrial Accident Commission (1959) is a California case that formulated the doctrine of repetitive injury based on a disability claim due to back pain. This concept has been widely used to support claims for disability alleged to result form protracted periods of stressful incidents (Warshaw 1988). Such litigation has contributed to the evolution of an objective standard of causation, as described in McGarrah v. SAIF (1982), that requires the stressful stimulus to be significant enough to cause disability to an average worker as opposed to an individual who may have specific vulnerabilities to the particular stress. This standard is in contrast to a subjective standard that allows for everyday job stress to be compensable for certain individuals even though most workers would not be affected by such stress. Deziel v. Difco Laboratories (1978) allowed a claim to be compensable if the claimant ‘honestly, though perhaps mistakenly, perceives the cause of her disability to be the work-related personal injury.’ Such reasoning has also been described as a subjective standard for establishing causation or an honest perception standard (London, Zonana, and Loeb 1988).

Relevant information Various aspects of workers’ compensation claims are often disputed and litigated, which may result in referral for a psychiatric examination to assess one or more of the following issues (Brodsky 1987b):

• • • • • • •

If the worker has a mental disorder. The duration and symptoms of any mental disorder diagnosed. The etiology of the disorder(s), and, specifically, its relationship to work. Prognosis and treatment recommendations with particular reference to duration of required treatment. Whether and when the worker will be released to return to work with discussion of any work restrictions. Whether vocational evaluation and/or rehabilitation is indicated. If the worker has reached maximum medical improvement (MMI); if not, when it is likely that MMI will be reached.

Enelow (1991) summarized the work of an advisory committee in California that developed a list of eight work functions that could be assessed clinically and through psychological testing. These eight work functions, which can serve as a useful outline for relevant areas to be assessed, include the ability to:

• • •

comprehend and follow instructions; perform simple and repetitive tasks; maintain a work pace appropriate to a given work load;

• • • • •

perform complex or varied tasks; relate to other people beyond giving and receiving instruction; influence people; make generalizations, evaluations, or decisions without immediate supervision; and accept and carry out responsibility for direction, control and planning.

A standard psychiatric examination as described in standard textbooks (Strauss 1995; Nicholi 1999) should be performed with emphasis on issues pertinent to the referral questions. Psychological and neuropsychological testing are often helpful in establishing the presence of a mental disorder and assessing both the presence and consequences of an injury to the brain. Relevant medical and mental health records should be reviewed along with other pertinent documents such as job performance evaluations, legal complaints, depositions, responses to interrogatories, and investigative reports that often include statements from past employers, co-workers, and supervisors. Such a review will help prepare the psychiatrist for examination of the examinee, which should include an assessment of any pre-existing conditions, pre-injury functioning, and the examinee’s credibility. Comparison of the history obtained from the examinee with other sources of information will assist in the credibility assessment. Reference should be made to other chapters in this volume for relevant information concerning issues of double agentry and an outline of the usual forensic principles that apply to these forensic evaluations. The examiner should obtain an occupational history including a detailed work history since the injury, a summary of prior job experiences, and information about the worker’s future plans for work. Emphasis should be placed on learning more about the worker’s experience with the medical care system and the workers’ compensation due to issues related to entitlement and secondary gain. Relevant legal history should summarize any past arrests, prior litigation, and/or workers’ compensation claims. Ash and Goldstein (1995) briefly summarize the literature relevant to predicting whether or not a person, due to psychiatric-related conditions, can or will return to work. They report that much of the research relevant to this issue is from outcome studies in the orthopedic literature of the treatment of lower-back pain. In general, organic factors, such as level of pain and severity of physical injury, have usually not been found to be good outcome predictors. Non-organic factors, which include length of time off work, age, and mixed social factors (e.g., family problems, feelings/attitudes toward work and illness) have been reported as having some significance as predictors of outcome. The worse outcomes were associated with involvement with workers’ compensation system or litigation. Anthony et al. (1995) provide a concise literature review of studies examining the relationship between

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psychiatric symptomatology, diagnosis, and work skills. The studies do not agree on what, if any, relationship exists between these areas. Increases in skill performances have not necessarily corresponded with decrease in symptoms. Other studies have suggested that symptomatology was related to vocational outcomes. These same authors emphasize that the failure to recognize the fact that skills and symptomatology are not highly correlated, and that symptoms cannot be used as a proxy measure of vocational functioning, will lead to inaccurate predictions concerning the vocational capacity of persons with psychiatric disabilities. Their findings suggest that vocational assessment must include both evaluating psychopathology and other measures of vocational functioning and probably other social– environmental factors.

Reasoning processes The credibility of the psychiatrist and the claimant are important issues in any medical–legal psychiatric examination. Credibility is often central to claims in which there is no objective evidence of injury as in posttraumatic stress disorder and closed head injuries (Hoffman and Spiegel 1989). Non-medical investigations, including surveillance, are at times helpful in assessing issues of the claimant’s credibility. As in other forensic evaluations, the issue of malingering should be considered, particularly when the examinee provides an inconsistent history, demonstrates selective memory impairment, withholds relevant information, provides inaccurate information, is very hostile and/or demanding during the examination, or has a past history of antisocial behaviors. The findings of the forensic evaluation should generally be summarized in written form in a manner that is understandable to the fact finder. Clearly written opinions that reflect logical reasoning facilitate resolution of the legal issues prior to court hearings. Reference should be made to relevant chapters and articles for useful discussion and outlines for these medical–legal reports (Hoffman 1986; Brodsky 1987b; London, Zonana, and Loeb 1988; Rappeport et al. 1991). Integrating data with legal criteria relevant to worker’s compensation cases is often a very complicated task. The definitional vagueness of stress often presents problems. Other problems involve the concept of psychiatric injury, which often is narrowly defined by the legislature. Establishing a legal causation is often complicated because of symptomatic pre-existing mental disorders and because the work-related accident is only one factor in the life of the employee. It is more likely that there will be a causal relationship between the industrial accident and the resulting psychiatric injury when the injury is severe and there are few pre-existing psychiatric factors. The key to causation is isolating the event that is the precipitating cause

of the job-related mental disorder (Juge and Shraberg 1984). When a worker has a relevant pre-existing psychological history, then apportionment arises and the issue of causation becomes more difficult to resolve. Difficulties also exist in the determination of whether a person is able to return to work. The psychiatrist needs to organize data from the examination in order to assist in the legal determination of compensability, which is a three-prong test consisting of the following factors (London, Zonana, and Loeb 1988): 1 The existence of a psychiatric disability which prevents work. 2 The disability is caused by psychiatric injuries. 3 The psychiatric injuries are work-related. The biopsychosocial conceptualization of illness is emphasized by Brodsky (1990) to be very pertinent to studying the causes and recovery patterns of persons suffering from work-related injuries. The dynamics of the workplace needs to be assessed when there is confusion concerning the cause of the workplace injury. These dynamics include the worker’s attitudes toward the job, relationship with co-workers and supervisors, the nature of treatment received for the injury, compensation, residual impairment, and future work plans (Brodsky 1990).

FITNESS FOR DUTY EXAMINATIONS Issues It is not uncommon for employers, generally via an employee assistance program or Human Resources department, to refer employees to psychiatrists for a fitness for duty examination when an employee appears to be demonstrating symptoms of a mental disorder that may interfere in the performance of their job. These referrals frequently involve issues of potential dangerousness to others, especially related to public safety issues or workplace violence. Many of these referrals are made with a sense of urgency being conveyed by the referral source who often request an immediate assessment, if not sooner. Triaging on the phone is often helpful to the referral source in determining if the assessment that needs to be immediately performed involves the need for hospitalization. Such an assessment should usually occur in a psychiatric emergency room setting for safety purposes. Under these circumstances, the fitness for duty question will be postponed to a time when it can be performed in less of a crisis atmosphere. Assuming that the fitness for duty examination can proceed, further information will be required from the referral source. This information will include the following:

•

More detailed information concerning the reason for the referral at the present time (e.g., nature of the behavior(s) that precipitated the referral, documentation

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• • • • •

from supervisors, co-workers, customers, etc. regarding such behaviors). The employee’s job description. Copies of past job performance evaluations. Copies of relevant medical/psychiatric records (it is often the employee who will be responsible for supplying these records). The employee’s current job status (e.g., sick leave, suspended, working, in danger of being fired?). The employee’s response to the requested examination.

It may also be helpful for the examiner to talk with the employee’s supervisor in order to obtain more detailed information concerning the examination referral. It is useful to have the referral source provide a written document to the psychiatrist which specifically states the questions that should be answered by the examiner. Many employers do not need – and do not want – a summary of an employee’s background information except to the extent that it is directly related to the specific referral questions. In general, it is also helpful to decide in advance the nature of the information that the examiner will share with the employee at the end of the examination. It is recommended that the employee be told the opinions that will be conveyed to the employer so that he or she can be better prepared for the likely consequences. The examiner should be aware of safety issues involved in many of these examinations related to the fact that an employee’s livelihood is often at risk. It is for this reason that it is often not advisable to do these examinations under a pressured timeframe. It may also be necessary to have more than one interview with the employee as part of the examination process.

Legal criteria Many employees are very unhappy with the fitness for duty process which often is a requirement for them to continue with their employment. In general, the employee handbook will provide the legal basis for the mandatory nature of the fitness for duty examination. The usual disclosure relevant to the nature of the examination and limits of confidentiality should be provided to the employee by the examining psychiatrist.

Relevant information A standard psychiatric examination, as described in the workers’ compensation section, should be performed. Similar to the workers’ compensation examination, this assessment should also focus on work issues (ability to perform pertinent work functions as per the job description) and other relevant referral questions. Such questions often include issues related to diagnosis, treatment recommendations (nature and anticipated duration),

work limitations/suggested modifications, prognosis, and potential for dangerousness.

Reasoning processes The document received from the referral source, which specifies the questions to be addressed by the examiner, will serve as a template for the report to be generated by the examiner. Principles of report writing previously summarized in this chapter remain applicable.

SOCIAL SECURITY DISABILITY BENEFITS Issues The Social Security Disability Insurance (SSDI) Program (title II) and the Supplemental Security Income (SSI) Program (title XVI) are administered by the Social Security Administration (SSA). Title II provides coverage in the form of cash benefit for those disabled workers and their dependents who have contributed to the Social Security trust fund through the Federal Insurance Compensation Act (FICA) tax on their earnings. Title XVI provides for a minimum income level for the needy, aged, blind, and disabled. A financial need, which is statutorily defined, determines a person’s eligibility for SSI benefits. The disability benefits programs administered by the SSA are huge: more than one million applications were processed for SSI during 1998. In 1992, the social security disability insurance program cost $28 billion and the SSI program cost an additional $23 billion (Burtless 1994). The federal expenditures for cash payments under the SSI program during calendar year 1998 totaled $27.7 billion. In January 1999, 6.3 million individuals received federally administered monthly SSI benefits averaging $341. Between 1974 and December 1998, the total number of persons receiving SSI payments more than doubled (from 3.2 million to 6.5 million). The greatest growth was in the disabled caseload, which more than tripled (from 1.3 million to 5.1 million) over the 24-year period (Brooks 1999). By 2023, the federal SSI recipient population is estimated to reach 7.3 million, which will represent roughly 2.2 per cent of the population at that time (Social Security Administration 1999). Some 32 per cent of the 3 919 427 SSI blind and disabled recipients during 1998 were receiving benefits based on psychiatric impairments. The Fifth Circuit and other courts and commentators have labeled the SSA ‘the Mount Everest of bureaucratic structures with the largest system of administrative adjudication in the western world’ (Mashaw 1983; Kane v. Heckler 1984; Dubin 1995). Although the vast majority of claims are adjudicated at the lower levels of the agency, approximately 1000 cases are docketed in the courts of appeals each year rendering social security cases among the most commonly litigated federal appellate cases (Levy 1990).

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The SSA has developed a five-step ‘sequential evaluation process’ for evaluating disability claims. The State Disability Determination Services (DDS) must determine whether a claimant:

• • • • •

is engaged in substantial gainful activity; has a severe impairment or combination of impairments; meets or equals an impairment listed in the appropriate appendix; is prevented by the impairment or combinations of impairments and residual functional capacity from engaging in relevant past employment; or has the ability to engage in other gainful activity considering the claimant’s education, past relevant experience, and residual functional capacity [20 C.F.R. §§ 404.1520, 416.920 (1994)].

Under settled case law on all courts of appeals, the claimant has the burden of proof on the first four steps of the fivestep sequential evaluation process [see Johnson v. Heckler (1985) (collecting cases), vacated on other grounds sub nom., Bowen v. Johnson (1987)]. Initial DDS decisions that are unfavorable to the applicant may be appealed to the DDS for reconsideration of that initial denial. If still not satisfied, the claimant may apply to the Office of Hearings and Appeals (OHA) for a hearing before an Administrative Law Judge (ALJ). The next level of appeals is through a review by the Appeals Council (Social Security Administration 1999). Pursuant to 42 U.S.C. 405(g), federal courts have jurisdiction to review the commissioner’s decisions. Judicial review of those decisions is limited to determining whether the findings are supported by substantial evidence and whether the ALJ has employed the proper legal standards (Gropman 1997). Psychiatrists should be familiar with the SSA medical standards and guidelines for use in determining disability due to mental impairment. The process of determining disability emphasizes medical evidence that includes a signed report by a licensed physician or psychologist concerning the applicant’s medical history relating to the impairment(s) that prevent work. These regulations concerning mental disorders, commonly referred to as ‘the listings,’ were derived from DSM-III (Spitzer and Williams 1980) and promulgated by the SSA during 1985 and may be revised in the near future. This section focuses only on issues related to impairment ratings for adults.

Legal criteria To qualify for benefits under either SSDI or SSI programs, an individual must have a medically determinable impairment that causes disability. The definition for disability is ‘the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or

has lasted or can be expected to last for a continuous period of not less than 12 months… .’ Substantial gainful work activity is any work of a nature generally performed for remuneration or profit, involving the performance of significant physical or mental duties, or a combination of both, which are productive in nature [Code of Federal Regulations, Title 20 C.F.R. 400-499 (1999)]. This definition includes part-time work regardless of pay or similarity to an individual’s former work. Medically determinable impairments are defined in terms of specific symptoms, signs, and laboratory findings. Symptoms, which are defined as the claimant’s own perception of his or her physical or mental impairments, are not by themselves medically determinable impairments. Regarding psychiatric impairments, signs are medically demonstrable abnormalities of behavior, affect, thought, memory, orientation, and reality testing. Laboratory findings include the usual chemical, electrophysiological, and roentgenological tests as well as psychological tests. The SSA has listed eight diagnostic categories of mental disorders that can result in a finding of disability based on a medically determinable impairment. These categories, which were essentially defined by DSM-III-R criteria (Spitzer and Williams 1987), are as follows: 1 2 3 4 5 6 7 8

Organic mental disorders. Schizophrenic, paranoid, and other psychotic disorders. Affective disorders. Mental retardation and autism. Anxiety-related disorders. Somatoform disorders. Personality disorders. Substance addiction disorders.

Each diagnostic group, except mental retardation and autism and substance addiction disorders, consists of a set of clinical findings (paragraph A criteria), one or more of which must be satisfied and which, if satisfied, lead to a test of functional restrictions (paragraph B criteria), two or three of which must be met. There are additional considerations (paragraph C criteria) concerning functional restrictions in the schizophrenic, paranoid, and other psychotic disorders and the anxiety-related disorders (Social Security Administration 1998). The paragraph A criteria determine the presence or absence of a mental disorder (i.e., medically determinable mental impairment). Criteria in paragraphs B and C are based on functional areas thought to be relevant to work and establish the severity of the disorder. A person who is seriously limited in these areas as a result of an impairment identified in paragraph A is generally presumed to be unable to work. Paragraph B of the listings describes the types of functional limitations caused by the various disorders. Paragraph B criteria are as follows (Social Security Administration 1998): 1 Marked restriction of activities of daily living. 2 Marked difficulties in maintaining social functioning.

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3 Deficiencies of concentration, persistence, or pace resulting in frequent failure to complete tasks in a timely fashion in work settings. 4 Repeated episodes of deterioration or decompensation in work or work-like settings that cause the individual to withdraw from the situation or to experience exacerbation of signs and symptoms (which may include deterioration of adapted behaviors). Activities of daily living involve everyday activities including cleaning, shopping, paying bills, and attending to one’s personal hygiene. Social functioning refers to an individual’s ability to interact appropriately with other individuals. Concentration, persistence, and pace refer to a person’s capacity to focus attention long enough to permit timely completion of tasks generally found in the workplace. Deterioration or decompensation in work or work-like settings refers to problems associated with the other three categories caused by stress related to work or similar settings. The examiner should be familiar with the more comprehensive definitions of these four areas that are provided in the Social Security Administration manual (Social Security Administration 1998). The paragraph C criteria, which were added to the schizophrenic, paranoid, and other psychotic disorders and the anxiety-related disorders, essentially recognize the significant impact of impairments related to certain chronic mental illnesses even when such impairments are decreased by the use of medication or certain psychosocial factors such as placement in a structured environment. The SSA recognizes that these eight categories of mental disorders do not embrace all types of clinical findings that may result in impairments severe enough to prevent work. In such circumstances, the evaluating physician or psychologist should use his or her judgment in determining whether an impairment with unlisted symptoms, signs, or laboratory findings restricts a person’s physical or mental capacity to an equivalent degree as would a listed disorder. The state DDS may find such a person disabled based on a report indicating that a person is experiencing medically equivalent impairments comparable to the criteria of the listings for mental disorders. Persons who have an impairment not meeting one listed by the SSA and not equivalent to any listed disorder may, in some instances, be found disabled if the demands of jobs in which the person might be expected to engage, based on age, education, and work experience, exceed the individual’s remaining capacity to perform. This residual functional capacity (RFC) is defined as ‘a multidimensional description of work-related abilities which an individual retains in spite of medical impairments’ (Social Security Administration 1986, p. 62). RFC, which complements the criteria in paragraph B and C of the listings for mental disorders, describes an expanded list of work-related capacities that may be impaired by mental disorder. An assessment of RFC involves addressing

the following four areas that are derivatives of the paragraph B criteria: 1 2 3 4

Understanding and memory. Sustained concentration and persistence. Social interaction. Adaptation.

If a person’s RFC is not sufficient to enable him or her to do their previous work, other factors will be considered in the assessment concerning a person’s ability to perform any other work, considering the claimant’s age, education, work experience, and job availability in the national economy. The Contract with America Advancement Act of 1996 (CWAAA), signed into law on March 29, 1996, included one truly essential amendment to the Social Security Act. The CWAAA abolished substance abuse as a disabling impairment. People who had received disability benefits on the basis of chronic substance abuse automatically had such benefits terminated as of January 1997 if drug addiction or alcoholism was a contributing factor material to a finding of disability unless they reapplied and could prove disability by reason of another impairment without considering the effect of drug or alcohol abuse. Specifically, the key factor to be examined in such cases was whether the individual would be found disabled if he/she stopped using drugs or alcohol. The House of Representatives estimated that nearly 10 000 recipients would be terminated from both disability insurance benefit and supplement security income eligibility rolls due to this amendment (Gropman 1997).

Relevant information Physicians and psychologists are frequently asked by their state DDS to provide a report concerning a patient under the care of the provider in order to assist the DDS in making a disability determination. These reports should contain a summary of the standard psychiatric examination, including mental status examination, diagnosis, prognosis, treatment recommendations, and a description of limitations and remaining functional capacities regarding ability to perform ordinary activities. A statement should be made whether any limitations have lasted or are expected to last for a continuous period of at least twelve months. Information concerning paragraph B criteria should be obtained from both the patient and other sources including community mental health centers, sheltered workshops, family members, and friends. The assessment should also contain an opinion concerning the claimant’s ability to handle his or her own funds. Familiarity and use of the disability examiner basic training program and the mental residual functional capacity assessment form, both available from the SSA, will provide a structured format for the report and enhance the credibility of the medical report (Social Security Administration 1987).

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Reasoning processes Applying the data obtained during a Social Security disability evaluation to the relevant legal SSA criteria will be very straightforward if the examiner structures the report based on the suggested format present in the referral letter from the DDS. It is encouraging that a study by the American Psychiatric Association demonstrated that SSA’s medical standards and guidelines for determining disability due to mental impairment operationalize the statutory definition of disability in a manner consistent with current psychiatric practice (Pincus et al. 1991).

PRIVATE DISABILITY INSURANCE Issues Various insurance companies offer individual disability policies designed to provide a disabled worker with greater financial benefits than are available through either the workers’ compensation system or Social Security Administration. These policies are generally expensive and are usually not selected by employees of large organizations due to the significant payroll deductions to cover the premium expense. These policies are more attractive to self-employed professionals for reasons similar to the justification used for purchasing life insurance. Wall and Appelbaum (1998) relate that disability in the professional workforce has significantly increased among physicians since 1989, and that about 3 million persons, many of them self-employed, were covered by individual disability policies in 1997. They also summarize legal and clinical issues involved in performing medical evaluations. Psychiatrists may be asked to evaluate a policyholder who is claiming disability based on psychiatric reasons. It is important to obtain multiple sources of information during such an examination. Information from surveillance may also be helpful. Psychological testing is often helpful in the functional and diagnostic assessment.

Legal criteria The psychiatrist needs to know the specific policy definition of disability in order to focus on the relevant standard. The better policies will describe disability in terms of the policyholder’s specific occupation. Such policies might define disability as: ‘due to injury or sickness, the policyholder cannot perform each of the material duties of his/her regular occupation.’ Additionally, such policies may define ‘regular occupation’ with particularity. For example, the definition of disability for an attorney might specify that ‘regular occupation’ means the specialty in the practice of law the policyholder was practicing just

prior to the date that the disability started. Policies may define disability in terms of being unable to perform one’s regular occupation on a full-time basis for a particular period of time (usually more than 90 days) or in terms of significantly decreased earning capacity related to injury or sickness.

Relevant information The examination should address issues related to the specific policy definitions of disability. Referral sources vary on whether they want issues concerning treatment and prognosis to be addressed. As in the workers’ compensation examination, the examiner should also obtain a detailed occupational and legal history. In addition to the usual elements of psychiatric assessments and disclosure relevant to the independent medical examination (IME) process, Wall and Appelbaum (1998) recommend that the examiner obtain the following information:

• • • • • • • •

the insured’s current income, disability benefits, and policy terms; current symptoms and stressors; a description of the insured’s typical day before and after the onset of disability; the insured’s functioning prior to disability; contributing factors to disability; efforts at and responses to treatment; efforts at returning to work during or after treatment; and future plans and self-prognosis.

Reasoning process Evaluations addressing issues related to private disability insurance determinations are similar to the workers’ compensation examination. However, such assessments are generally less complicated because causation is usually not an issue. Issues of secondary gain are often more prominent due to the superior benefits offered by most private insurance disability policies.

PERSONAL INJURY Issues Historically, personal injury litigation has involved claims for damages caused by physical injuries. Courts have long recognized that psychological injuries often accompany physical injuries and when a causal connection between the physical and psychological injuries has been shown, damages for both types of injuries are recoverable. Courts (and legislatures) have been more reluctant to compensate plaintiffs for mental suffering alone, since such claims are difficult to prove and it is often hard to

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distinguish between serious emotional injury and feigned or exaggerated claims. However, most states recognize such claims, due in part to increasing sophistication in medical ability to diagnose and document the existence of psychological injuries which are not caused by physical trauma.

Legal criteria When a plaintiff claims psychological injury as the result of another’s tortious conduct, the claim is for infliction of emotional distress, which can be either a deliberate act or a negligent act. Each state has its own case law dealing with such claims. Intentional infliction of emotional distress is sometimes referred to a ‘outrageous conduct,’ i.e., intentional acts which the average member of the community would find atrocious and utterly intolerable and outside the bounds of decency (Keeton et al. 1984). Physical injury is not an element of intentional infliction of emotional distress. Negligent or unintentional conduct is the predominant source of civil litigation involving emotional damages. In order to recover in such litigation, the plaintiff must prove that the defendant should have realized that his or her conduct involved an unreasonable risk of causing emotional distress, and that such negligence caused emotional distress of sufficient severity. A legal duty is a standard imposed by law requiring individuals to conduct themselves in a manner that does not unreasonably interfere with the rights of others. There are three generally accepted standards or theories of legal duty concerning negligent infliction of emotional distress: the impact rule; the zone of danger rule; and the foreseeability test. States differ as to which legal standard should be imposed on defendants in such cases. The impact rule requires physical impact upon the plaintiff, otherwise damages may not be recovered for emotional stress caused by the negligence of another. Victorian Railways Commission v. Coultas (1888) is an early English case in which a woman was denied recovery for mental shock that resulted in almost being hit by a passing train. The impact rule often nets unjust results and some courts have devised legal fictions to thwart its application. The zone of danger rule holds that the plaintiff may recover for emotional distress, even if there has been no impact, where the plaintiff is in the zone of physical danger and experiences emotional distress caused by the negligence of the defendant. A typical scenario is where a negligently operated vehicle nearly strikes the plaintiff. In such an instance, the plaintiff would not suffer physical impact, but the near-miss would be a reliable indication that the plaintiff could have suffered emotional harm. The foreseeability test is the most liberal and complicated of the duty tests. A pure foreseeability test is satisfied by asking the objective question: Is it reasonably

foreseeable that the plaintiff would be harmed given the defendant’s actions? This test can be divided into two categories: (i) claims that seek damages for direct infliction of emotional distress; and (ii) claims that seek damages for indirect infliction of emotional distress. Indirect claims are often known as claims for ‘bystander recovery.’ In order to obtain recovery for direct infliction of emotional distress, the defendant’s negligent conduct must be directed toward the plaintiff, the plaintiff must suffer severe emotional distress, and the emotional distress must be a foreseeable and proximate result of the defendant’s negligent act. The defendant is liable for all of the reasonably foreseeable results of his or her negligence. While recovery for psychological injury is quite restricted for an individual’s direct injury because of artificial legal barriers, even more harsh are the legal hurdles that a bystander must overcome. It was not until 1968 that a court finally lowered the bar against bystander recovery. In Dillon v. Legg (1968), a mother was allowed to recover for her own psychic injury after she watched her infant daughter killed by a negligent driver. Generally speaking, a bystander can recover for negligent infliction of emotional distress when there is foreseeability and there is: 1 Death or serious physical injury of another caused by the negligence of the defendant. 2 A marital or intimate familial relationship between the bystander and the injured person. 3 Observation of the death or injury at the scene of the accident. 4 Severe emotional distress experienced by the bystander. Issues concerning element 3 are highly litigated related to the definition of observation and how contemporaneous with the injury the observation is made. In other words, what must the bystander observe and how soon after the injury? The clear trend concerning these legal theories is toward application of the foreseeability test and toward discarding the more restrictive impact rule and zone of physical danger rule. There is also disagreement among jurisdictions as to what type and how severe the plaintiff’s injuries must be before recovery for emotional distress will be allowed. In impact rule jurisdictions, there is a split of authority as to whether the plaintiff must also suffer a corresponding physical injury or whether mere contact is sufficient indication that the plaintiff could have suffered emotional harm. In both the zone of danger and foreseeability jurisdictions no impact is required, but there is nonetheless often a requirement for physical manifestation of emotional injury, which may be as little as recurrent nausea or headaches. On the other hand, in jurisdictions where there is no requirement of physical manifestations of emotional harm, there may be a required showing of severe emotional distress that is often defined as a disabling emotional or mental condition that may be generally recognized and diagnosed by mental health professionals.

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The issue of a plaintiff’s vulnerability in personal injury cases is considered in states which follow the eggshell or thin skull doctrine (i.e., take the victim as you find him) (Keeton et al. 1984). An eggshell plaintiff is a person who is extremely vulnerable to even a minor trauma but has remained asymptomatic prior to the injury. The person who cracks a plaintiff ’s eggshell skull, even if the trauma is minimal, is legally responsible for the damages that ensue under the eggshell doctrine (Simon 1995). However, the eggshell doctrine is generally rejected by courts in determining awards for emotional injury. In such jurisdictions, recovery is usually restricted for normally constituted individuals who show reasonably predictable reactions to acutely stressful stimuli (Twiford 1985) due to issues related to both cost and problems relevant to causation. For example, the Supreme Judicial Court of Maine opined in Theriaulta v. Swan (1989) that: … in order to recover for either negligence or reckless infliction of emotional distress, a plaintiff must demonstrate that the harm alleged reasonably could have been expected to befall the ordinary sensitive person [citations omitted]. When the harm reasonably could affect only the hurt feelings of the supersensitive plaintiff – the eggshell psyche – there is no entitlement to recovery. If however, the harm reasonably could have been expected to befall the ordinarily sensitive person, the tort feasor must take his victim as he finds her, extraordinarily sensitive or not.

Therefore, pre-existing conditions are an important element to be considered in such litigation. It has been long argued that emotional damages are too speculative to permit recovery for claims of emotional distress without some reliable evidence of the damage such as actual physical harm or physical manifestations of the emotional harm. However, advances in evaluating and diagnosing mental injuries have lessened the need for such artificial standards. Psychiatry can provide sufficiently reliable information concerning the existence and causation of psychic injuries. With such testimony the trier of fact can properly evaluate claims of psychic injury and assess whether a particular claim is concocted and factious or, in fact, real. So stated the Colorado Supreme Court in Towns v. Anderson (1978).

2 Whether a disorder would have occurred at all but for the instant event(s). 3 The significance to the current disorder of proximate, pre-existing, and co-existing factors. 4 The course of a pre-existing disorder with the focus on eventual impairments in the absence of the instant event(s). 5 The role of other factors including malingering, exaggeration, convenient focus, and secondary gain on the current problem(s).

Reasoning processes General forensic principles, which have already been described, apply equally to these evaluations. The medical– legal assessment of a personal injury case generally focuses on identifying the existence of a psychic injury, determining proximate cause, assessing credibility, and assessing prognosis. The nature and degree of impact of the specific event(s) on the life of the plaintiff should be described within the context of a biopsychosocial model (Hoffman and Spiegel 1989). The expert should describe findings and provide diagnostic formulations at a level of probative value that attains the ‘reasonable scientific certainty’ (or equivalent standards, e.g., reasonable degree of medical probability) standard, which is the evidentiary standard in most civil cases (Weissman 1985).

CONCLUSION Proper preparation for the forensic evaluation will increase the forensic psychiatrists’s ability to aid in the resolution of disability and/or personal injury litigation. Proper preparation includes adequate understanding of the specific medical–legal issues to be addressed, with specific knowledge of the relevant legal criteria. The usual forensic principles apply in these evaluations, which should help minimize the issues of double agentry and clarify issues related to confidentiality. A clearly written report summarizing the findings of the evaluation will minimize the need for courtroom testimony by the expert since such reports often facilitate resolution of the legal disputes.

Relevant information REFERENCES The psychiatric examination should address the accuracy and nature of alleged impairments, and whether they are proximately related to the injury or exposure. The assessment, which should be as comprehensive as described in the section on workers’ compensation, needs to address the following issues (Weissman 1985): 1 The extent to which the accident or exposure caused a new disorder or exacerbated a pre-existing disorder.

Anthony, W.A., Rogers, E.S., Cohen, M., Davis, R.R. 1995. Relationships between psychiatric symptomatology, work skills, and future vocational performance. Psychiatric Services 46, 353–8. Ash, P., Goldstein, S.I. 1995. Predictors of returning to work. Bulletin of the American Academy of Psychiatry and the Law 23, 205–10.

Psychiatric disability determinations and personal injury litigation 271 Barth, P.S., Niss, M. 1999: Permanent Partial Disability Benefits: Interstate Differences: Workers Compensation Research Institute. Beveridge v. Industrial Accident Commission, 346 P.2d 545 (Cal. Nov. 25, 1959). Bowen v. Johnson, 482 U.S. 922 (1987). Brodsky, C. 1987a: Factors influencing work related disability. In Meyerson, A.T., Fine, T. (eds), Psychiatric Disability: Clinical, Legal, and Administrative Dimensions. Washington, DC: American Psychiatric Press, 49–65. Brodsky, C. 1987b: The psychiatric evaluation in worker’s compensation. In Meyerson, A.T., Fine, T. (eds), Psychiatric Disability: Clinical, Legal, and Administrative Dimensions. Washington, DC: American Psychiatric Press, 313–32. Brodsky, C.M. 1990. A psychiatrist’s reflections on the workers’ compensation system. Behavioral Sciences and the Law 8, 331–48. Brooks, A.M. 1999: SSI Annual Statistical Report 1998. Baltimore, Maryland: Social Security Administration. Bursten, B. 1986. Psychiatric injury in women’s workplaces. Bulletin of the American Academy of Psychiatry and the Law 14, 245–51. Burtless, G. 1994: Public spending on the poor: historical trends and economic limits. In Danziger, S.H., Sandefur, G.D., Weinberg, D.H. (eds), Confronting Poverty: Prescriptions for Change. Cambridge, MA: Harvard University Press. Carter v. General Motors Corp., 361 Mich. 577, 106 N.W.2d 105 (1960). Centers for Disease Control and Prevention. May 1, 1998. Self-reported frequent mental distress among adults – United States, 1993–1996. Morbidity and Mortality Weekly Report 47, 325–31. Cocchiarella, L., Andersson, G.B.J. 2000: Guides to the Evaluation of Permanent Impairment, 5th edition. Chicago: AMA Press. Colo. Rev. Statutes, 8-41-1081(2.5) 1991a. Colo. Rev. Statutes, 8-41-302(2) (suppl.) 1991b. Dentzer, S.J., McCormick, J., Tsurouka, D. 1986. A cure for job stress. Newsweek June 2, 46–7. Deziel v. Difco Laboratories, 403 Mich. 1, 268 N.W.2d 1 (1978). Dillon v. Legg, 441 P.2d 912 (Cal. 1968). Doege, T.C., Houston, T.P. (eds). 1993: Guides to the Evaluation of Permanent Impairment, 4th edition. Chicago: American Medical Association. Dubin, J.C. 1995. Social security law. 26 Texas Tech. Law Review 763. Eccleston, S.M., Victor, R.A. 1998. Regulatory trends in workers’ compensation managed care. Occupational Medicine: State of the Art Reviews 13, 787–98. Enelow, A.J. 1991. Psychiatric disorders and work function. Psychiatric Annals 21, 27–35. Gropman, L.M. 1997. Social security. Detroit College of Law Review 755.

Head, T.R. 1997. Crochiere v. Board of Education of Enfield: Workers’ compensation for job related mental disease claims – stress reliever or judicial headache? 21 American Journal Trial Advocacy 131, 137. Hoffman, B.F. 1986. How to write a psychiatric report for litigation following a personal injury. American Journal of Psychiatry 143, 164–9. Hoffman, B.F., Spiegel, H. 1989. Legal principles in the psychiatric assessment of personal injury. American Journal of Psychiatry 146, 304–10. ICIDH-2. 1999: International Classification of Function and Disability. Beta-2 draft, full version. Geneva, World Health Organization. Johnson v. Heckler, 769 F.2d 1202, 1210 (7th Cir. 1985). Juge, D.P., Shraberg, D. 1984. Marking out boundaries: the relationship between work and psychological disorders, a legal and medical analysis. Loyola Law Review 30, 249–69. Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir. 1984) (quoting Paul R. Verkuil, the self-legitimating bureaucracy, 93 Yale Law Journal 780, 781 (1984). Keeton, W.P., Dobbs, D., Keeton, R., Owen, D. 1984: Prosser and Keeton on Torts. 5th edition. St. Paul: West Publishing Company. Kennedy, C., Gruenberg, E. 1987: Lexicology for the consequences of mental disorders. In Meyerson, A.T., Fine, T. (eds), Psychiatric Disability: Clinical, Legal, and Administrative Dimensions. Washington, DC: American Psychiatric Press, 3–12. LaPlante, M.P. 1993a: Disability Statistics Report: State Estimates of Disability in America. Washington, DC: U.S. Department of Education, Office of Special Education and Rehabilitative Services/National Institute of Disability and Rehabilitation Research (No. 3). LaPlante, M.P. 1993b. Centers for Disease Control and Prevention. Current trends: prevalence of work disability – United States, 1990. Centers for Disease Control and Prevention Morbidity and Mortality Weekly Report 42(39). Lawson, A. 1973: The Law of Workmen’s Compensation. New York: Matthew-Bender. Levy, R.E.M. 1990. Social security disability determinations: recommendations for reform. Brigham Young University Law Review 480. London, D.B., Zonana, H.V., Loeb, R. 1988: Workers’ compensation and psychiatric disability. In Larsen, R.C., Felton, J.S. (eds), Occupational Medicine (State of the Art Reviews): Psychiatric Injury in the Workplace. Philadelphia: Hanley and Belfus, Inc., 595–609. Mashaw, J.L. 1983: Bureaucratic Justice: Managing Social Security Disability Claims. New Haven: Yale University Press. Matsumoto, A.V. 1994. Comment. Reforming the reform: mental stress claims under California’s Workers’ Compensation System. 27 Loyola Law Review 1327, 1335.

272 Civil law McGarrah v. SAIF, 15 Oregon App. 448, 651 P.2d 153 (1982). Mussof, J. 1981. Determining the compensability of mental disabilities under workers; compensation. Southern California Law Review 55, 193–253. Nicholi, A.M. 1999: History and mental status. In Nicholi, A.M., Jr. (ed.), The Harvard Guide to Psychiatry. Cambridge, MA: The Belknap Press of Harvard University Press, 26–39. Parlour, R.R., Jones, L.R. 1980. Theories of psychiatric defense in workmen’s compensation cases. Bulletin of the American Academy of Psychiatry and the Law 8, 445–55. Pincus, A., Kennedy, C., Simmens, S.J., et al. 1991. Determining disability due to mental impairment: APA’s evaluation of Social Security Administration guidelines. American Journal of Psychiatry 148, 1037–43. Rappeport, J.R., Binder, R., Ciccone, J.R., et al. 1991: The need for mental health professionals in the legal system. In The Mental Health Professional and the Legal System, formulated by the Committee on Psychiatry and Law, Group for the Advancement of Psychiatry, New York: Brunner/Mazel, 18–19. Ruesch, J., Brodsky, C.M. 1968. The concept of social disability. Archives of General Psychiatry 19, 394–403. Simon, R.I. 1995: Posttraumatic Stress Disorder in Litigation: Guidelines for Forensic Assessment. Washington, DC: American Psychiatric Press, Inc. Social Security Administration. 1986: Disability Evaluation Under Social Security (SSA Publication No. 64-039). Washington, DC: U.S. Department of Health and Human Services. Social Security Administration. 1987: Disability Examiner Basic Training Program (Mental Impairments) (SSA Publication No. 25-1198). Washington, DC: U.S. Department of Health and Human Services. Social Security Administration. 1998: Disability Evaluation Under Social Security (SSA Publication No. 64-039).

Social Security Administration. 1999: Annual Report of the Supplemental Security Income Program. Social Security Administration: Baltimore, Maryland. Spieler, E.A. 1995. Assessing fairness and workers’ compensation reform: a commentary on the 1995 West Virginia workers’ compensation legislation. 98 West Virginia Law Review 23. Spitzer, R.L., Williams, J.B.W. (eds). 1980: Diagnostic and Statistical Manual of Mental Disorders. 3rd edition. Washington, DC: American Psychiatric Association. Spitzer, R.L., Williams, J.B.W. (eds). 1987: Diagnostic and Statistical Manual of Mental Disorders. 3rd edition, revised. Washington, DC: American Psychiatric Association. Strauss, G.D. 1995: The psychiatric interview, history, and mental status examination. In Kaplan, H.I., Sadock, B.J. (eds), Comprehensive Textbook of Psychiatry VI. Baltimore: Williams & Wilkins, 521–30. Theriaulta v. Swan, 558 A.2d 369, 372 (ME 1989). Towns v. Anderson, 579 P.2d 1163 (Colo. 1978). Twiford, J.R. 1985. Emotional distress in tort law. Behavioral Sciences and the Law 3, 121–33. Victorian Railways Commission v. Coultas, 13 App. Ca. 22, 57 L.J.P.C. 69 (P.C. 1888). Wall, B.W., Appelbaum, K.L. 1998. Disabled doctors: the insurance industry seeks a second opinion. Journal of the American Academy of Psychiatry and the Law 26, 7–19. Warshaw, L. 1988: Occupational stress. In Larsen, R.C., Felton, J.S. (eds), Occupational Medicine (State of the Art Reviews): Psychiatric Injury in the Workplace. Philadelphia: Hanley and Belfus, Inc., 587–93. Weissman, H.N. 1985. Psycholegal standards in the role of psychological assessment and personal injury litigation. Behavioral Sciences and the Law 3, 135–47. World Health Organization. 1993: International Classification of Impairments, Disabilities, and Handicaps. Geneva: World Health Organization.

30 Americans with Disabilities Act evaluations A. JOCELYN RITCHIE AND HOWARD V. ZONANA

Psychiatrists and other mental health professionals who provide mental health treatment to individuals with mental and physical disabilities come under the Americans with Disabilities Act’s anti-discrimination provisions in their roles as providers in both the public sector and in private practice. In addition, psychiatrists and other mental health providers are uniquely positioned to serve as valuable consultants to business, to governmental agencies, and to individuals with mental illnesses and other cognitive impairments.

HISTORY AND OVERVIEW The Americans with Disabilities Act (ADA) was passed in 1990 and reflected bipartisan efforts by Congress and the George H. W. Bush administration to build on existing federal legislation to extend anti-discrimination protections for individuals with disabilities into a broad range of activities of daily life. In addition to sections outlining Congressional findings regarding disability discrimination, the ADA includes five individual Titles covering private employment (Title I), public services and public transportation operated by state and local government (Title II), private sector public accommodations and commercial facilities (Title III), telecommunications (Title IV), and a variety of miscellaneous provisions, including specific exclusions (Title V). Although there are some common definitions (such as who is ‘an individual with a disability’ covered by the Act), each Title must be considered separately due to differences in how discrimination rights and responsibilities are balanced. Titles I, II, and III are discussed below, as are some of the exclusions found in Title V. Title IV will not be discussed. Its relevance to psychiatry lies primarily in the requirement that telephone companies provide operator relay services to connect deaf or hard-of-hearing individuals who use teletype machines to communicate by phone with individuals who do not use these machines

(including most psychiatrists and other mental health professionals). Enforcement provisions vary from Title to Title, but generally the ADA provides judicial and/or administrative relief including policy changes, accessibility accommodations and, in some cases, money damages. The ADA encourages the use of alternative means of dispute resolution, including settlement negotiations, conciliation, facilitation, mediation, fact-finding, minitrials, and arbitration. In addition, reasonable attorneys fees, including litigation expenses and costs, may be granted to the prevailing party in any judicial or administrative action taken under the Act, at the discretion of the judge or administrative hearing officer. A ‘prevailing party’ must have succeeded on any ‘significant issue’ in the case and obtained at least some of the relief sought. This provision applies to both the plaintiff and the defendant, and is intended to prevent frivolous actions being brought, and to prevent frivolous or uncooperative defenses being waged. Attorneys fees are most likely to be granted in situations where parties have refused to negotiate reasonable accommodations in good faith or have failed to consider reasonable settlement offers in a timely manner, rather than from the existence of an underlying problematic situation in the first place. Most ADA disputes are resolved without going to court, and interestingly, by one estimate, approximately 90 per cent of all ADA employment claims that proceed to court are resolved in favor of the employer (Blanck 1999). Overall, the ADA requires an individualized approach to each situation, governed by a general conceptual framework provided by the Act. Specifically, the analysis must focus on the particular fact pattern, taking into account the individual abilities of the person requesting an accommodation (rather than relying on a diagnosis per se), balanced against the circumstances of the entity from whom the accommodation is requested. A working knowledge of the ADA is increasingly important for mental health providers. More than one type of evaluation may be needed to provide sufficient

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justification for (or defense against) a finding of disability under the ADA. Psychiatrists and psychologists may be asked to render a professional opinion on: 1 Whether the individual in question meets diagnostic criteria for a particular disorder. 2 Whether the disorder results in functional impairments of sufficient intensity and duration (relative to the ability of the average person in the general population to perform one or more major life activities) to qualify as having a ‘disability’ within the scope of the Act. 3 The objective, scientific basis to support their findings of disability or functional impairment. 4 The specific ways that the impairments affect the individual’s ability to function within a specific environment. 5 The types of accommodations that might be appropriate to relieve the impact of the impairment. 6 The specific rationale for each recommended accommodation. For example, mental health professionals who are asked to provide forensic evaluations under the employment provisions of the ADA (discussed below) must determine an individual’s functional limitations (and suggested accommodations) in light of the specific requirements of the essential functions of the job (as defined by the employer) rather than the functions of a general job classification. If the functional requirements of the job are not well defined, the examiner should note those limitations in reporting the results of their assessment. A working knowledge of the ADA is important for other reasons. Mental health providers are themselves ‘covered entities’ under the ADA (as well as related civil rights statutes), and may need to respond to requests for accommodations from patients and employees. For example, psychiatrists provide mental health services to the public, either through private practice (Title III) or through state or local government practice (Title II). In addition, they may employ more than fifteen employees (Title I), and they may be required to meet similar requirements under another federal anti-discrimination provision (i.e., Section 504 of the Rehabilitation Act of 1973) because they accept Medicaid or Medicare payments or accept federal research grants. The purpose of this chapter is to provide some guidance to clinicians when consulting on ADA-related cases, as well as to assist clinicians in reducing their own risk of unintentionally incurring liability under the ADA. The authors caution, however, that one of the core elements of the ADA is an individualized analysis of the circumstances of the various parties under the ADA. Thus, this chapter is offered for general information purposes only, and is not intended to substitute for appropriate legal advice.

DISABILITY The ADA utilizes a three-part definition of disability, which is applied to the Act in its entirety. With respect to an individual, ‘disability’ means:

•

• •

a physical or mental impairment that substantially limits one or more major life activities of such individual (i.e., caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, or working); a record of such an impairment; or being regarded as having such an impairment.

The third prong of the definition is particularly important for individuals with mental disorders due to the stigma historically attached to mental illness. The ADA also extends protections to people associated with an individual with disability. These would include spouses, parents, foster-parents, children, employers, friends, and service providers, if they were discriminated against on the basis of their known association with an individual with a disability. Thus, the ‘association’ provisions of the ADA could be used to protect against discrimination against community mental health service providers in leasing otherwise available office space. Mental impairment includes ‘any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.’ Thus, major depression, bipolar disorder, schizophrenia, personality disorders and anxiety disorders may be impairments under the ADA. However, the ADA takes a functional rather than categorical approach, and a diagnosis is not presumptive evidence of a disability. Rather, the impairment must present a substantial limitation on one or more major life activities, which depends on the severity and permanence of the impairment relative to the average population (see Parry 1994 for an excellent discussion of mental disorders and the ADA). At least hypothetically, ‘mental impairment’ could also include severe personality disorders provided it could be shown that the person experiences substantial limitations in one or more major life activities. For example, a person might be able to demonstrate a pattern of severe selfinjurious behaviors associated with borderline personality disorder that substantially impairs that person’s ability to care for him or herself or to work, relative to the average population. On the other hand, a person with a severe personality disorder would still need to meet the other requirements under the various titles of the ADA (e.g., being able to do the job with or without accommodations) and overcome one or more of the exclusions (e.g., employment regulations which go beyond the Act itself in excluding individuals who pose a danger to themselves; see below). It would be important to analyze the individual circumstances of the question involved. Even if the person in the above example was excluded or

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unable to meet other qualification standards for purposes of a Title I employment case, the ADA association protections might prevent an employer from firing the spouse (or parent) of that person in an attempt to reduce the employer’s health insurance costs associated with the employee’s dependent’s self-injury. Short-term physical impairments such as broken legs, adjustment disorders, or short-term situational depression typically would not be considered disabilities under the Act. Individuals with episodic mental illnesses may be covered if they can be shown to have chronic disabling effects such as seen in many individuals with schizophrenia in remission. Individuals who cannot show chronic disabling effects may still be covered if they are discriminated against due to their history of mental illness or due to stigma, under prongs two and three, respectively. An exception to the functional approach of the ADA is found in Title V of the ADA, which categorically excludes certain individuals who might otherwise be covered, including people who engage in certain sexual behaviors, certain antisocial behaviors, and illegal drug use. Title V of the ADA categorically excludes homosexuality, bisexuality, transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders, compulsive gambling, kleptomania, or pyromania, and, psychoactive substance use disorders resulting from current illegal use of drugs. In addition, the definition of disability does not include an individual who is currently engaging in the illegal use of prescription or illicit drugs. This exclusion does not apply to an individual who:

• • •

has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer using drugs illegally; is participating in a supervised rehabilitation program and is no longer engaging in such use; or is erroneously regarded as engaging in such use, but is not engaging in such use.

Evaluations of mental impairment can include traditional diagnostic techniques regarding the existence of impairment and its functional limitations. Certain mental disorders such as attention deficit hyperactivity disorder (ADHD) or specific learning disorders typically require psychological and neuropsychological testing, in addition to clinical interviews and thorough histories, in order to support a finding that an individual is substantially impaired relative to the general population. Some employers and public accommodations (e.g., many universities, many state bar associations, the National Board of Medical Examiners) go further and require that specific psychological and neuropsychological measures be used as supportive documentation (see discussion below). In addition, evaluations may include a retrospective assessment of whether there was a history of mental impairment and appropriate documentation of substantial limitations in

major life activities, such as through school and medical records. In 1999, the Bazelon Center for Mental Health Law compiled lists of functional limitations that people with mental illnesses may experience in the workplace, either as a result of their illness or due to the effects of medications. According to the Bazelon Center, work-related social or emotional limitations due to mental illness might include difficulties interacting with others, including: asking for feedback on job performance, responding appropriately to negative feedback, initiating corrective action, providing explanations, describing events, responding appropriately to supervision, maintaining relationships with supervisors, responding appropriately to supervisors, maintaining relationships with co-workers, responding appropriately to co-workers, and adapting to a new supervisor. The Bazelon list of potential work-related cognitive limitations due to mental illness include: understanding and carrying out directions, assessing one’s own performance, making decisions, exercising judgment, problem-solving capacity, learning new tasks, adapting to a change in work assignment, focusing on multiple tasks simultaneously, screening out environmental stimuli, processing information, and maintaining boundaries of responsibility. Work-related limitations due to mental illness in the physical domain might include maintaining a fixed work schedule, maintaining work pace, and maintaining stamina throughout the workday, in addition to medication side effects such as blurred vision and changes in motor control which could affect work performance. The complete Bazelon Center list is available through their website at: www.bazelon.org, which also includes links to a myriad of other useful websites offering information about the ADA.

EXCLUSIONS In addition to categorical exclusions, people who pose a ‘direct threat’ to the health and safety of others, that cannot be eliminated or reduced by reasonable accommodations, are excluded from the protections of the ADA, even if they otherwise meet the definition of ‘an individual with a disability.’ The wording of the ADA statute itself states that the exclusion applies to ‘the health and safety of other individuals,’ but regulations interpreting the employment provisions of the ADA state that a ‘direct threat’ is ‘a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.’ In School Board of Nassau County, Florida v. Arline, the United States Supreme Court, held that tuberculosis may be a handicapping condition covered by Section 504 of the federal Rehabilitation Act. In determining whether the individual poses a ‘direct threat,’ the court held that the determination must be based on: (i) reasonable medical judgments that assess the nature, duration, and severity

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of the risk to the individual and other parties; (ii) the probabilities that the disease will be transmitted and will cause harm; and (iii) whether any reasonable accommodation can be made by the employer to ameliorate the risk. The Court held that the determination of ‘direct threat’ must be based on an individualized inquiry, and that normally courts should defer to the reasonable medical judgments of public health officials in making their findings. The Arline standard was expressly adopted in regulations for the various ADA titles, and has been applied to the ADA by the Supreme Court in Bragdon v. Abbott (1998), a case in which an individual with HIV was refused outpatient dental services. In Bragdon, the Supreme Court determined that HIV-seropositivity was a disability from the moment of infection, based on the course of the disease and its impact on reproduction, a major life activity. Generally stated, the ADA and its regulations require that any threat of harm be based on sound medical judgment, and real threats of harm be distinguished from fears based on stereotypes or myths. In addition, exclusion cannot be based on speculative or remote risks, but rather must be ‘significant.’ Assessments must be based on the most current medical knowledge and/or the best available objective evidence, implying a familiarity with modern risk assessment techniques, including corroborating evidence of dangerousness. Scientific evidence and expert testimony must have a traceable, analytic basis in objective fact. Thus, a person with a history of repeated assaultive behavior as a result of his or her mental illness may be excluded if it can be shown that the threat is significant and cannot be eliminated or reduced through reasonable accommodations. However, a person with a mental illness including a prior history of assaultive behaviors only when psychotic would not be excluded if he or she is no longer psychotic and he or she is likely to become psychotic in the near future (e.g. no history of repeated medication non-compliance and return of psychosis under a particular set of circumstances). Threats of harm may include a variety of behaviors that place others in danger. For example, under the Equal Employment Opportunity Commission Title I employment provisions, the cognitive effects of a psychiatric illness that affect an individual’s ability to operate heavy machinery or otherwise perform his or her job properly may constitute a ‘direct threat’ to others, which could justify exclusion. Law enforcement officers, fire fighters, and lifeguards may require greater safety margins than some other jobs, and therefore may have lower thresholds for what constitutes a ‘direct threat’ to others in terms of mental or physical performance in order to meet the essential functions of the job. Although not an ‘exclusion’ per se, the ADA does not come into play unless and until the otherwise qualified individual with a disability requests an accommodation, thereby putting the covered entity on notice. In the typical situation under Titles I, II, or III, if a person chooses not to disclose their disability or chooses not to request

an accommodation, he or she is choosing not to come under the protections of the ADA. However, some individuals with mental illnesses or other cognitive impairments may not recognize that they have impairments that could be accommodated. Alternatively, people who do recognize their impairments and wish to request accommodations may, by reason of their mental illnesses or cognitive impairments, require accommodations to be made in the notification and application process, particularly if the business or public entity has reason to know that a significant percentage of the people it serves have such mental illnesses (e.g., some public housing).

COURT DECISIONS REGARDING ‘DISABILITY’ Recent Supreme Court decisions, including Bragdon noted above, underscore the Court’s strict interpretation of the Act’s reliance on functional impairments when determining eligibility. In Bragdon, the Court ostensibly broadened coverage of the Act by affirming its application to individuals with asymptomatic HIV, citing significant impairments in the major life activity of reproduction due to HIV infection. Approximately one year later in Murphy v. United Parcels, Sutton v. United Airlines, Inc., and Albertson’s v. Kirkingburg, the Court substantially narrowed the number of individuals covered by the ADA in ruling that mitigating measures taken to control the effects of an individual’s impairment – such as eye glasses, medication, or other therapy – may impact whether an individual meets the functional requirements for having a disability under the ADA. Finally, the Court held that having substantial limitations in the major life activity of working is being ‘significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.’ As a result of these recent decisions, advocates such as those at the Bazelon Center foresee that many people who use mitigating measures may be at risk of losing the protections of the ADA. Determining whether an individual who takes medication (or other mitigating measures) has a disability now requires a very careful analysis of what functional limitations the person continues to experience despite medication and/or therapy. The ADA likely protects those whose mitigating measures do not fully control the effects of their impairments or who face intermittent periods of substantial limitations, such as some individuals with bipolar disorder or schizophrenia whose symptoms are only attenuated or remain regardless of compliance with medications. The ADA would likely apply to individuals who experience side effects, such as significant mobility impairments due to medications which otherwise successfully alleviate the delusions caused by schizophrenia. In addition, the substantial limitation may be caused by a combination of the side effects of the

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mitigating measures and the effects of the impairment itself. ADA will continue to protect individuals whose symptoms are under good control but who have a record of substantial limitations in major life activities. However, merely demonstrating a record of prior hospitalization may not be sufficient, as courts may require evidence demonstrating a specific substantial limitation of a major life activity to establish the record of disability under the second prong of the ‘disability’ definition necessary to be eligible for protection under the ADA.

TITLE I: EMPLOYMENT Title I of the ADA applies both to current employees and job applicants to ensure equal opportunity in the application process and enjoy equal benefits and privileges of employment to individuals with disabilities. Title I only applies to employers with fifteen or more employees. As with the Rehabilitation Act before it, ADA Title I protections extend only to qualified individuals with disabilities in employment. A ‘qualified individual with a disability’ is defined in the Act as an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the job that the individual holds or desires. A reasonable accommodation is anything which enables an otherwise qualified person with a disability to perform the essential functions of a particular job, as long as the accommodation would not impose an undue hardship on the employer. Title I of the ADA requires an individualized approach to address the needs and circumstances of both employees and employers when considering what accommodations are reasonable. If several accommodations are available and would provide equivalent benefits, the employer may select the accommodation that is most easily provided or is least expensive. Experts asked to render opinions regarding the functional limitations of an individual and make recommendations for accommodations with respect to a certain job should strive to obtain as much information as possible about the job in question, including requesting the job description (or any available ‘job analysis’) from employers. Job accommodations may include: changing the physical environment to reduce distractions for individuals with limited concentration abilities; individualized flexible schedules; flexible return-to-work plans following an episodic relapse; job restructuring to reassign problematic auxiliary tasks; allowing extra time to learn new tasks; and providing supports for employees during times of stress. Experts also need to be sophisticated in their understanding of the subtle differences between a referral for a disability evaluation under the ADA from a disability evaluation under other statutes such as Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI). In Cleveland v. Policy Management Systems Corp. et al. the Supreme Court held that pursuit and

receipt of SSDI benefits do not automatically bar a person from pursuing an ADA claim or erect a strong presumption against the recipient’s ADA success. However, the person must sufficiently explain why the statements on the SSDI application (that the person is disabled and cannot work) are consistent with the ADA claim that the individual can now perform the essential functions of the job, at least with reasonable accommodation. The ADA protects job applicants with disabilities, but does not require employers to give individuals with disabilities any special preferences. After first determining the essential functions of the job, the employer then determines the qualification standards that are job-related for the particular position (rather than a general class of job) and consistent with business necessity, including education, skills, experience, physical, medical, and safety requirements. Prior to making a job offer, employers may only ask about applicants’ abilities to perform job-related functions, and may not ask whether an individual has a disability nor the nature and extent of any obvious disability. Medical examinations can only be performed after an individual has been given a provisional offer for the position, and then only for the specific purpose of determining whether an individual can perform the essential functions of that particular job. The physician or other health professional is not under a duty to limit the examination and inquiry to ‘job-related functions’ or to domains ‘consistent with business necessity.’ However, if a job offer is withdrawn after such an examination, it is the duty of the employer to show that the reasons for the exclusion are job-related and consistent with business necessity, or that the person poses a direct threat to health or safety.

TITLE II: PUBLIC SERVICES (STATE AND LOCAL GOVERNMENT) Title II of the ADA prohibits discrimination against qualified individuals with disabilities, which would exclude them from participating in, or receiving the benefits of services, programs, or activities of a public entity. A ‘public entity’ includes any State or local government, department, agency, special purpose district, or other instrumentality of a State or States or local government. To be ‘qualified,’ an individual with a disability must, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meet the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. Two federal Department of Justice (DOJ) regulations are of particular significance for public sector psychiatry, as well as institutional services in state psychiatric hospitals, nursing homes and other residential facilities run by state or local governments. First, the ‘integration

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regulation’ requires a ‘public entity [to] administer … programs … in the most integrated setting appropriate to the needs of qualified individuals with disabilities.’ Further, DOJ requires public entities to ‘make reasonable modifications’ to avoid ‘discrimination on the basis of disability,’ but does not require measures that would ‘fundamentally alter’ the nature of the entity’s programs. Title II of the ADA has been used to modify state policies and practices regarding institutional versus community-based care for people with mental disabilities. In Olmstead, et al. v. L.C. (by Zimring, guardian ad litem and next friend), et al. (1999), the Supreme Court held that Title II of the ADA requires states to place persons with mental disabilities in community settings rather than in institutions when the state’s treatment professionals have determined that: (i) community placement is appropriate; (ii) the transfer from institutional care to a less restrictive setting is not opposed by the individual; and (iii) the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. The Court emphasized that nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings. Nor is there any federal requirement that community-based treatment be imposed on patients who do not desire it. Unlike many ADA analyses in which the individual’s requested accommodation is judged against the financial and administrative resources of the governmental entity, the Court in Olmstead held that the state’s responsibility, once it provides community-based treatment to qualified persons with disabilities, is not boundless. States are not required to fundamentally alter services and programs, and states are not required to phase out institutions, placing patients in need of close supervision at risk. Under the ruling, states may show that in the allocation of available resources immediate relief for the individual plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities. The Court recognized states’ responsibilities to maintain a range of facilities, given individuals’ periodic needs for higher levels of inpatient services. The Court gave an example that if a state could demonstrate that it had a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the state’s endeavors to keep its institutions fully populated, the reasonable-modifications standard of Title II would be met. The Olmstead case opens up significant opportunities for expanding community mental health systems and for real and substantial policy changes in the states. It affects not only people in institutions, but also non-institutionalized individuals at risk of unnecessary institutionalization due to lack of appropriate community services. Arguably,

this includes people who frequently cycle in and out of hospitals as a result of a lack of community services, individuals institutionalized through incarceration in jail as a result of failure to provide mental health services, and any other individuals with mental disabilities who are receiving services in an unnecessarily segregated setting, including nursing homes and children’s residential services. At the time this chapter goes to press, many states are likely to have developed comprehensive and effective plans aimed at eliminating unnecessary institutionalization, pursuant to the Olmstead decision. Title II of the ADA continues to apply without limitation to cities, counties and other entities of local government. However, the future application of Title II of the ADA to states (as opposed to local governments) is less clear. On February 21, 2001, the United States Supreme Court held in the case of Board of Directors of the University of Alabama v. Garrett that Congress did not have the constitutional authority to waive the state’s Eleventh Amendment ‘sovereign immunity,’ because Congress did not specifically find discrimination by the states in justifying passage of the Act. Thus, suits in federal court by state employees can no longer recover money damages under Title I of the ADA. (State services are subject to Title II of the ADA, but state employment practices are enforced via Title I, the same regulations that enforce private employment practices under the ADA.) The majority opinion in Garrett makes clear that individuals with disabilities still have federal recourse against state employment discrimination, stating that the ADA still prescribes standards applicable to the states. Those standards can be enforced by the United States in actions for money damages, as well as by private individuals in actions for injunctive relief (such as a court order reinstating a fired employee, requiring a reasonable accommodation; or requiring the employer to change a policy that violates Title I). The Garrett decision concerns only suits by private individuals against state employers. Thus, the United States may still bring enforcement actions against state employers for violations of Title I, and it may still seek money damages (i.e., in suits brought by the Equal Employment Opportunity Commission [EEOC] or the Justice Department). As noted above, the Garrett decision does not bar suits for money damages against local governments or private employers. The Garrett decision does not currently affect the validity of Title II of the ADA, although it is likely that suits for money damages against states under Title II (and other civil rights laws) will be challenged in the near future. Even so, the Olmstead decision was not directly impacted by the Supreme Court’s ruling in Garrett to the extent that it did not involve money damages for individual plaintiffs. Thus, it is likely that advocates will continue to encourage states’ efforts to comply with Olmstead by reducing unnecessary institutionalization and creating appropriate community mental health services, at least in the near future.

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TITLE III: PUBLIC ACCOMMODATIONS AND COMMERCIAL FACILITIES IN PRIVATE SECTOR The ADA prohibits private entities from discriminating against individuals on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation. If the operations of a private entity affects ‘commerce’ (travel, trade, commerce, transportation, or communication among the several States including buying office supplies and other goods or services produced in another state), it is a public accommodation. Thus, the term ‘public accommodation’ includes all privately owned businesses that are open to the public such as restaurants, hotels, theaters, stores, parks, day care centers, social service agencies, gymnasiums, hospitals, physician’s offices, etc. Accessibility is to be achieved through:

• • • •

modification of policies, practices or procedures, unless such modification fundamentally alters the nature of the goods or services offered; the use of auxiliary aids and services (qualified interpreters, taped texts, modification of equipment), unless the business can demonstrate undue hardship; removing existing barriers where such removal is readily achievable (easily accomplishable without much difficulty or expense); and if barrier removal is not readily achievable, then using alternative methods of making goods and services available if such methods are readily achievable.

Title III and the implementing regulations distinguish between physical accessibility requirements for existing buildings and new construction or significant alterations. Title III also prohibits discrimination by private commercial transportation services. Private clubs and religious organizations that are exempt from coverage under the Civil Rights Act are also exempt from coverage under Title III of the ADA.

OTHER ISSUES RELATING TO PSYCHIATRY Title II and/or Title III of the ADA apply to issues involving individuals with disabilities seeking professional licensing, including licenses to practice medicine, law, psychology, and nursing. Licensing authorities have been challenged regarding their inquiries into the mental health histories of applicants. Legal commentators have argued that the professions can best be protected by inquiries into problematic behaviors rather than inquiring directly about mental illness, per se. In addition, educators and national testing services have guidelines for

documenting requests for accommodations during board examinations (e.g., extended time, the use of typewriters or computers, readers, etc.). For example, the National Board of Medical Examiners (NBME) has specific requirements for documentation of ADHD and Learning Disabilities, including diagnostic interviews, history, and academic records, as well as psychoeducational and neuropsychological evaluations of cognitive functioning and scholastic achievement with specific tests recommended (and others specifically excluded). A full description of the requirements for accommodations is available through their website (www.nbme.org). Briefly, documentation must include a current diagnosis and an assessment of the current impact of the individual’s disability on their ability to take the NBME tests. Documentation must include the specific diagnostic criteria and/or diagnostic tests used, including dates of evaluation, test results and a detailed interpretation of the test results. The report must describe in detail the demonstrated impact on the person’s ability to take the medical licensing examination, and a full description of the current functional impact of the person’s physical, perceptual or cognitive abilities on their ability to take the test. Recommended accommodations must be specific with a detailed description of why they are needed and how they will reduce the impact of the identified functional limitation. The report must also establish the professional credentials of the evaluator that qualify him or her to make the particular diagnosis, including information about license or certification and specialization in the area of the diagnosis. If no prior accommodations have been provided to the individual in the past, the qualified professional should include a detailed explanation of why accommodations are needed now and why they were not needed in the past. Detailed requirements similar to those of the National Medical Education Board are also used by many institutions of higher learning as well as other licensing organizations, including state bar associations, in determining whether to grant additional testing time, readers, and other reasonable accommodations to qualified individuals with disabilities (Gordon and Keiser 1998). The ADA allows organizations to make good faith determinations regarding the documentation provided when requesting a reasonable accommodation. By specifying the types of measures used and other aspects of the disability evaluation, these organizations not only avoid spurious claims but also are likely to save time and money, both for themselves by standardizing the myriad applications they must review and for applicants by ensuring that appropriate assessment protocols are used the first time. In addition, these requirements reflect the need to have current documentation of disability in a person applying for reasonable accommodations under the ADA. Some individuals applying for accommodations will not have a history of prior accommodations and thus will be assessed for the

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first time for disability. More often, however, individuals will have documentation from childhood and adolescence regarding their level of functioning at that time and supporting accommodations in other circumstances. These records are not irrelevant as they may provide historical support for current disability, but they are not sufficient to document current functioning. (For example, a developmental disorder such as a learning disability or attention deficit disorder typically originates in childhood although not necessarily diagnosed at that time; any information which demonstrates a history of impaired functioning in childhood would be useful.) In addition, eligibility for special education services in high school may be more lax than the technical requirements of the ADA, in part due to the different policy underlying access to a ‘free, appropriate public education’ under special education laws. For example, a finding of a specific learning disability under special education laws often requires only a significant discrepancy between ability and achievement within the individual. However, a specific learning disability under the ADA must show significant impairment relative to the general population. Thus, a person with an IQ of 130 (superior range) but with a reading achievement of 100 (average range) has a discrepancy of two standard deviations and might meet eligibility for additional services and accommodations under special education laws, but not under the ADA as their average reading achievement is not impaired relative to that of the general population. The technical legal interpretations regarding the ADA are likely to continue to evolve, both through the Courts and legislation (for example, how Title II of the ADA applies to states). Regardless of these changes, the underlying principles of the ADA will likely remain the same. The forensic examiner will not be asked to make the ultimate determination of whether the individual is or is not an ‘individual with a disability’ within the technical limitations of the law. Rather, the examiner’s role is to provide the referring attorney or court with a diagnosis, the basis of that diagnosis, an explanation of the severity of the person’s symptoms, and a detailed opinion regarding the functional limitations of that particular individual in reference to the specific situation involved.

REFERENCES Albertson’s v. Kirkingburg, 527 U.S. 555 (1999). Americans with Disabilities Act, 42 United States Code §§ 12101 et seq. (1990). Bazelon Center for Mental Health Law. 1999: List of Limitations of Major Life Activities [Internet] Judge Bazelon Center for Mental Health Law, Washington, DC. Available from: www.bazelon.org/litslist (accessed May 25, 2001). Board of Directors of the University of Alabama v. Garrett, 531 U.S. (2001); 193 F3rd 1214 reversed, decided February 21, 2001.

Blanck, P.D. 1999. Empirical study of disability, employment policy, and the ADA. Mental and Physical Disabilities Law Reporter Mar-Apr, 275–80. Bragdon v. Abbott, 524 U.S. 624 (1998). Cleveland v. Policy Management Systems Corp. et al., 526 U.S. 795 (1999). Gordon, M., Keiser, S. (eds). 1998: Accommodations in Higher Education under the Americans with Disabilities Act (ADA). New York: GSI Publications and Guilford Press. Murphy v. United Parcels, 527 U.S. 516 (1999). National Board of Medical Examiners Documentation Guidelines. 2001 [Internet]. Available from: http://www.nbme.org/PDF/2001otaguide.pdf (accessed May 25, 2001). Olmstead, et al. v. L.C. (by Zimring, guardian ad litem and next friend), et al., 527 U.S. 581 (1999). Parry, J. (ed.). 1994: Mental Disabilities and the Americans with Disabilities Act. Chicago: American Bar Association. School Board of Nassau County, Florida v. Arline, 480 U.S. 273 (1987). Sutton v. United Airlines, Inc., 527 U.S. 471 (1999).

Resources American Bar Association Commission on Mental and Physical Disability Law. 1998. Study finds employers win most ADA Title I judicial and administrative complaints. Mental and Physical Disabilities Law Reporter May–June, 403–7. Association for Higher Education and Disability. 1997: Guidelines for Documentation of a Learning Disability in Adolescents and Adults. Consortium on ADHD Documentation. 1998: Consortium Guidelines for Documentation of Attention Deficit/ Hyperactivity Disorder in Adolescents and Adults. U.S. Department of Justice, Office of the Attorney General, 28 C.F.R. Part 35, Nondiscrimination on the Basis of Disability in State and Local Government Services; Final Rule. U.S. Department of Justice, Office of the Attorney General, 28 C.F.R. Part 36, Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities; Final Rule. U.S. Department of Justice, Office of the Attorney General. 1992: Technical Assistance Manual: Title II [Internet]. Available at: www.usdoj.gov/crt/ada/adahom1 (accessed May 25, 2001). U.S. Department of Justice, Office of the Attorney General. 1992: Technical Assistance Manual: Title III [Internet]. Available at: www.usdoj.gov/crt/ada/adahom1 (accessed May 25, 2001). U.S. Equal Employment Opportunity Commission, 29 C.F.R. Part 1630, Equal Employment Opportunity for Individuals with Disabilities; Final Rule. (See also: www.eeoc.gov/regs/index)

Americans with Disabilities Act evaluations 281 U.S. Equal Employment Opportunity Commission. 1992: A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act. (See also: www.eeoc.gov/docs and www.eeoc.gov/policy/guidance)

U.S. Equal Employment Opportunity Commission. 1997: Enforcement Guidance on the ADA and Psychiatric Disabilities. (See also: www.eeoc.gov/docs and www.eeoc.gov/policy/guidance) World Health Organization website: www.who.int/icdh

31 Sexual harassment LIZA H. GOLD

INTRODUCTION Sexual harassment has become one of the most controversial issues of our time. The Supreme Court confirmation hearings of Clarence Thomas and the Navy Tailhook scandal propelled the subject of sexual harassment into national consciousness in the early 1990s. Media attention to these controversies and the many highly publicized cases involving sexual harassment since then, including the charges brought by Paula Jones against President Bill Clinton, has resulted in a well-documented increase in workplace sexual harassment charges and lawsuits. In 1991, 6883 charges of sexual harassment were filed with the Equal Employment Opportunity Commission (EEOC). In 2001, 15 475 charges were filed, an increase of over 120 per cent (EEOC web site: http://www.eeoc.gov). The costs and awards associated with sexual harassment cases have also risen dramatically. In Weeks v. Baker & McKenzie (1994), a secretary who was harassed by a partner in a law firm recovered $50 000 in compensatory damages from both the firm and the partner; $225 000 in punitive damages against the partner; and $3.5 million in punitive damages against the firm. In 1998, Mitsubishi paid a record $34 million to settle a class action sexual harassment lawsuit brought by the EEOC, in addition to about $10 million paid in 1997 to settle similar charges brought in a private lawsuit. Although these individual cases reflect unusually high awards, the typical costs of such litigation are also increasing. In 2001, monetary resolutions of EEOC charges, not including those obtained through litigation, totaled $53 million (EEOC web site: http://www.eeoc.gov). Psychiatrists, retained by both defense and plaintiffs attorneys, are frequently called upon to make evaluations of claimants and offer expert witness testimony in sexual harassment litigation (Gold 2003). Our ability to provide expert assessments encompassing issues of proximate cause, psychological damage, work impairment, treatment recommendations and prognosis is an invaluable service in attempting to clarify what are usually very complex allegations. To provide credible evaluations and

expert witness testimony on such issues, forensic psychiatrists must have a familiarity with the issues involved in sexual harassment. In addition, they must also have an understanding of the complicated interface between these issues and the law.

DEFINITION OF SEXUAL HARASSMENT Sexual harassment is a new area of law which arose from the civil rights and women’s movement of the 1960s and 1970s. Title VII of the Civil Rights Act of 1964 prohibited discrimination based on sex, as well as race, color, religion or national origin. This act also established the EEOC, which has the power of enforcing the federal prohibitions against such discrimination and litigating violations of Title VII. Sexual harassment is distinct from flirtation, flattery, requests for a date and other acceptable behaviors which occur in a workplace. Its essential component is that it is ‘unwelcome conduct,’ which lacks the elements of choice and mutuality inherent in a normal relationship. It is a type of coercion that relies on the power of the perpetrator to affect a victim’s economic status and does not necessarily involve physical force. Sexual harassment also encompasses gender discrimination, which may not have sexual motivations but still may have powerful personal and economic effects. A universally accepted definition of every behavior that might be considered sexual harassment does not exist. The legal definition of sexual harassment has evolved through administrative and case law. In 1980, the EEOC published the first specific guidelines defining sexual harassment. The EEOC defined harassment as ‘unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.’ This conduct constitutes illegal sexual harassment when: 1 Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment.

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2 Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual. 3 Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment [EEOC (1980) 29 C.F.R. § 1604.11(a)]. The EEOC delineated two types of sexual harassment. In quid pro quo harassment, work conditions or job benefits are explicitly or implicitly contingent upon or involve the exchange of sexual favors. Hostile environment sexual harassment takes the form of continuous, frequent, or repetitive patterns of offensive and unwelcome behavior which adversely affects the terms or conditions of employment. Such behavior may not affect the employee’s job, salary or benefits, and may not necessarily even be sexual in nature. This category encompasses discrimination on the basis of gender alone, and can include behaviors such as sexually oriented joking or teasing, unwelcome display of sexual images or objects, unwelcome touching or propositions, or hostile treatment on the basis of gender alone.

HISTORY OF SEXUAL HARASSMENT LAW In Williams v. Saxbe (1976), a court found for the first time that quid pro quo sexual harassment was a form of illegal sexual discrimination under Title VII. Meritor Savings Bank, FSB v. Vinson (1986) was the first Supreme Court case to directly consider issues related to sexual harassment, and established that hostile environment sexual harassment was a violation of Title VII. In hostile environment cases, the Court stated that incidents must be so pervasive, repetitive or severe that they alter the conditions of employment and create an abusive working environment. Meritor also established that voluntary participation on the part of the plaintiff did not legally establish that the defendant’s actions were welcome. In Harris v. Forklift Systems, Inc. (1993), the Supreme Court unanimously ruled that a victim is not required to have suffered psychological harm, nor prove that she was psychologically injured to win monetary damages. The presence of psychological harm is relevant to determining whether the victim found the environment abusive, but not necessary in establishing illegal discrimination. The Court also defined some of the circumstances which must be assessed in sexual harassment. These include the frequency and severity of the conduct, whether it was physically threatening or humiliating and whether it unreasonably interfered with an employee’s work performance. In Oncale v. Sundowner Offshore Services (1998), the Court ruled that same sex harassment could constitute an illegal form of sexual harassment under Title VII. The

Court found that harassing conduct did not need to be motivated by sexual desire in order to be discriminatory on the basis of sex. In Burlington Industries, Inc. v. Ellerth (1998) and Faragher v. Boca Raton (1998), the Supreme Court established an affirmative defense against liability for employers under certain circumstances. The Court held that an employer is always liable for a supervisor’s harassment if it culminates in a tangible employment action. However, if no tangible employment action occurred, the employer may be able to avoid liability or limit damages by demonstrating the two elements that comprise an affirmative defense. These elements are that:

• •

the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

Legal action based on sexual harassment may be brought in one or more of four areas: (i) Title VII complaints; (ii) criminal charges; (iii) workers’ compensation claims; and (iv) civil tort actions. Civil complaints can encompass a variety of charges, including battery, wrongful termination, or intentional or negligent infliction of emotional distress. Tort actions are the most common, though multiple causes of action are the rule in sexual harassment cases. Tort cases are often filed in addition to Title VII complaints. Harris established that Title VII claims do not require evidence of harm. Torts such as infliction of emotional distress do require a showing of emotional damage or harm. However, plaintiffs typically offer evidence of emotional harm in both types of action, since proving such harm can significantly affect damage awards.

THE QUALIFIED EXPERT Federal Rule of Evidence 702 describes an expert as a person qualified by knowledge, skill, experience, training or education. In addition, ‘Qualification as an expert witness is not generic but rather issue specific. Licensure as a physician who practices psychiatry, or even a board certification in psychiatry, should not, in and of itself, result in qualification as an expert’ (Shuman 1995). Courts may rule that the opinions of unqualified psychiatrists offering expert testimony in sexual harassment cases are incredible or inadmissible. Sexual harassment evaluations involve a number of complex issues with which the psychiatrist must have familiarity to formulate a credible opinion. These include: 1 2 3 4

Research on sexual harassment. Women’s psychology. Stress and trauma responses. Legal issues in sexual harassment evaluations.

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Sexual harassment research Although early research on sexual harassment had numerous methodological flaws, it did provide a great deal of preliminary information regarding the scope of sexual harassment and other related aspects of the phenomenon. More sophisticated recent studies have addressed many of the flaws of the first-generation research. These studies have confirmed that sexual harassment is a widespread phenomenon. They have verified many of the early findings and have expanded understanding of the causes and outcomes of sexual harassment (Fitzgerald, Swan, and Fisher 1995; Gutek and Koss 1996; Dansky and Kilpatrick 1997; Fitzgerald et al. 1997a; Fitzgerald et al. 1997b; Gruber 1997; Fitzgerald et al. 1998; Fitzgerald, Drasgow, and Magley 1999). The best examples of the early research are the survey studies conducted by the United States Merit Systems Protection Board (USMSPB) in 1980, 1987 and 1994. In a representative sample of more than 20 000 federal employees, the USMSPB (1995) found that 44 per cent of women and 19 per cent of men reported that they had experienced some form of unwanted sexual attention during the preceding two-year period. The 1994 survey also found that the rates of sexual harassment had remained stable since 1980. The majority of people reporting such experiences were women, and the majority of alleged harassers were men. The less severe forms of sexual harassment behaviors are the most prevalent; the most severe behaviors occur the least often. Actual or attempted rape or assault was reported by 4 per cent of women and 2 per cent of men (also see Gruber 1997). Research has indicated that men experience different types of behavior as sexual harassment than do women, and that same sex harassment of men by men is a more significant problem than previously thought (Berdahl, Magley, and Waldo 1996; Waldo, Berdahl, and Fitzgerald 1998; Magley et al. 1999). The employees who appear to be at greatest risk are those who work exclusively or mostly with people of the opposite sex and who are supervised by members of the opposite sex. Women who work in occupations that have been dominated historically by men report higher incidences of sexual harassment. By far the most likely sources of unwanted sexual attention were persons other than supervisors of the victims. In the USMSPB (1995) study, 79 per cent of individuals identified as sources of harassment were co-workers, and 14 per cent were supervisors. Studies also revealed that the most common response to sexual harassment is to ignore or avoid it, and the least common response is to formally report it. Studies consistently find that 15 per cent or less of individuals who report experiencing sexual harassment made formal complaints. The most common reason given by victims for not taking formal action was that they didn’t think the offense was serious enough to warrant this response. However, fears of adverse effects on work situation or

careers, beliefs that nothing would be done, and fears of retaliation following a complaint are other reasons women report not filing formal complaints (Fitzgerald, Swan, and Fisher 1995; USMSPB 1995). Receiving poor work performance evaluations or being transferred or terminated after filing complaints are common experiences. Other difficulties associated with pursuing a complaint include financial costs, stress on family or marital relationships, and career losses. Due to these difficulties, the emotional costs of making a formal complaint can be higher than those which ensue from the original harassment. Many women reported choosing to leave their jobs or apply for transfers rather than go through a formal complaint process (Fitzgerald, Swan, and Fisher 1995; USMSPB 1995; Gutek and Koss 1996; Fitzgerald et al. 1997a; Schneider, Swan and Fitzgerald 1997). Studies also indicate that many women report some degree of physical or psychological distress associated with experiences of sexual harassment. Anger, depressed mood, shame, suspiciousness and mistrust, and impaired concentration, sleep disturbances, and anxiety have been reported. More severe psychological and work related outcomes are correlated with more severe harassment (Hamilton et al. 1987; Charney and Russell 1994; Lenhart 1996; Dansky and Kilpatrick 1997; Fitzgerald et al. 1997a; Schneider, Swan, and Fitzgerald 1997). The most common psychiatric diagnoses reported in association with sexual harassment are posttraumatic stress disorder (PTSD), and any of the adjustment, mood or anxiety disorders (Shrier 1996; Dansky and Kilpatrick 1997). Some evidence that suggests an increased association between experiences of sexual harassment and diagnoses of PTSD and depression does exist (Dansky and Kilpatrick 1997). However, no studies have found that sexual harassment directly results in the development of any specific psychiatric disorder or diagnosis.

Women’s psychology A new understanding of the psychology of women has developed during the past twenty years. A full discussion of this topic is beyond the scope of this chapter. Of note, however, is that these psychological theories have moved away from the traditional Freudian approaches, which contain a variety of hidden gender biases and tend to emphasize intrapsychic factors (Unger and Crawford 1996). Traditional psychiatric theory tends to interpret reports of abuse or victimization as fantasy or evidence of personality disorder. Similarly, in legal practice, reports by women of experiences with which men have no analogous experiences are often deemed to lack credibility or to not be very serious (Schafran 1995). Newer models of the psychology attempt to provide a different framework for understanding the experiences of women. This framework provides corrective features that can minimize the hidden gender biases in traditional

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theory. The cornerstone of the new psychology of women is an appreciation for the power of relationship and connection in women’s lives. The traditionally disadvantaged status of women in our society and women’s difficulties with expressing anger, when framed in the context of the high value of relationships, adds an essential perspective to understanding the impact of sexual harassment on women and their responses to it (Jordan et al. 1991; Unger and Crawford 1996; Jordan 1997; Miller and Stiver 1997).

Stress and trauma responses The diagnosis of PTSD is a preferred plaintiff ’s diagnosis in sexual harassment litigation (Long 1994) because it implies single causation, and because it focuses on the event rather than the individual. Clinicians and forensic evaluators frequently and mistakenly diagnose any stress related response or symptom as PTSD (Rosen 1995). Indeed, most people exposed to various types of trauma do not develop PTSD: studies indicate that the average incidence after exposure to trauma is between 10 and 25 per cent, although this can vary with the type of trauma experienced. The highest risk of PTSD is associated with rape (49 per cent), severe physical assault (31.9 per cent), and sexual assault other than rape (23.7 per cent) (Breslau 1998). However, research consistently indicates that only a small minority of sexual harassment experiences involve rape (see above). Most sexual harassment consists of less severe behaviors, such as gender harassment and certain forms of unwanted sexual attention including sexual teasing, jokes, remarks or questions. Exposure to less severe behaviors can be distressing and stressful, and may result in a variety of psychological symptoms, some of which may meet DSM-IV criteria for various diagnoses. However, such experiences are unlikely to result in the development of PTSD without the presence of some preexisting psychological vulnerability. This is consistent with research findings that indicate that vulnerability factors often play a significant role generally in individuals who develop PTSD (Davidson and Foa 1993; Green 1995; Breslau 1998; Simon 1999). Typically, the misuse or overutilization of the diagnosis of PTSD results from ignoring the DSM-IV criteria. When these criteria are applied appropriately and objectively, the potential for an inaccurate use of the diagnosis is minimized (Simon 1995). Even when a claimant’s symptoms meet the DSM-IV criteria for PTSD, the forensic evaluator must bear in mind that the alleged sexual harassment is not necessarily the proximate cause. Pre-existing or concurrent trauma, as well as other psychosocial stressors, may be significant and must be evaluated. When the stressor experienced is not outside the range of common experience, the evidence often tends to support a finding that it is not the proximate cause of

a PTSD diagnosis. Indeed, a very profound response to what most would consider a minor stressor raises both the issue of malingering and individual susceptibility to psychiatric comorbidity.

Legal issues in sexual harassment evaluations Legal terminology which arises in the forensic evaluation of sexual harassment claims includes the concepts of ‘welcomeness,’ ‘reasonableness,’ and ‘hypersensitivity.’ Psychiatrists are frequently asked to evaluate whether the plaintiff ’s behavior or responses indicated that the alleged conduct was welcome, whether she responded reasonably, or whether the plaintiff overreacted to or misperceived acceptable behaviors as sexual harassment due to unusually heightened sensitivity. Typically, the evaluation of these issues leads to the question of whether the plaintiff had a preexisting personality disorder. Just as plaintiff ’s experts favor a diagnosis of PTSD, defense experts favor diagnoses which often include borderline, narcissistic or histrionic personality disorder (Long 1994). Although the diagnosis of a personality disorder is intended to undermine the credibility of a complainant, the constellation of personality traits and coping responses associated with a personality disorder diagnosis are clearly relevant in the evaluation of sexual harassment. The question of an individual’s tendency to invite, misinterpret, distort or overreact to the behaviors of others is a critical part of a sexual harassment assessment, whether due to borderline personality disorder or any other psychological process, such as an underlying psychosis. Women who have experienced sexual harassment often appear histrionic, angry or unstable on evaluation. Commonly seen workplace responses to sexual harassment include defensive, angry or self-defeating responses, even in women with no evidence of pre-existing psychiatric disorders. Other common responses include denial, which, if the harassment continues, may result in anger and emotional flooding. These in turn can precipitate disorganized behaviors, impulsive withdrawal from the workplace, and disrupted interpersonal relationships. These reactions can result in poor work performance reviews, lack of advancement or termination, and damaged relationships (Lenhart 1996). Such behaviors and their consequences ultimately diminish a claimant’s credibility and are often considered evidence of a pre-existing personality disorder. The association of the personality disorders typically diagnosed in sexual harassment cases with histories of victimization has been well documented (Herman 1992; Simon 1995; Zanarini 1997). Such women also are reported to have an increased vulnerability to all types of revictimization (Kluft 1990; Chu 1992; Messman and Long 1996). Therefore, it is not uncommon for individuals bringing

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complaints of sexual harassment to meet the criteria for a personality disorder. Indeed, women with pre-existing personality disorders can develop PTSD as a result of revictimization, including some forms of sexual harassment. However, individuals with pre-existing personality disorders typically have histories of chaotic lives and problematic interpersonal relationships across all spheres of functioning, including employment. A credible diagnosis of a personality disorder should be based on a history that reveals the sorts of patterns consistent with lifelong, pervasive and inflexible patterns of maladaptive coping. For example, repeated and frequent misinterpretation of comments, reports of prior unsubstantiated claims of inappropriate behavior, and repeated interpersonal conflicts and employment complaints might be evidence which supports a diagnosis of a pre-existing personality disorder. Psychological testing can provide valuable data in making this diagnostic determination.

PSYCHIATRIC ISSUES IN SEXUAL HARASSMENT CLAIMS Psychiatric issues in sexual harassment litigation include: causation; damages; diagnoses; psychological symptoms; and treatment and prognosis. These determinations require special attention to identifying specific disorders, alternate causation, general characteristics of a person’s functioning, and likelihood for recovery. Questions regarding prognosis, with and without treatment, include an assessment of the individual’s motivation for recovery. All these elements are relevant to the determination of the extent of psychological injury and legal damages. Although we cannot assume that the plaintiff ’s reports of harassment are true, we must also avoid assuming that her current emotional state and level of functioning are the cause rather than the result of the workplace situation. Plaintiff ’s experts frequently stop at the alleged trauma, and defense experts often stop at a diagnosis of personality disorder. A credible forensic evaluation must consider that either explanation might be valid and look for evidence which would support one conclusion or the other. The forensic evaluator must consider the totality of the situation by examining the type, degree and duration of the sexual harassment, current disturbances which may have been caused by the harassment, and pre-existing Axis I or II disorders which may have exacerbated the individual’s response. The severity and type of emotional, physical, interpersonal and economic consequences of sexual harassment vary considerably. The outcome of sexual harassment experiences is related to a combination of the characteristics of the harassment, the responses of the institution to the individual or the harassment, and the circumstances of the situation. The availability of support inside

and outside the workplace to the victim is also a highly significant factor in outcome. Finally, the individual’s resources, strengths, vulnerabilities and past history will affect both the perception and the impact of sexual harassment experiences on that individual. A complete assessment of sexual harassment claims requires an examination of these factors as well as the effects of:

• • • • •

litigation, commonly acknowledged to be extremely stressful (Lenhart and Shrier 1996; Strasburger 1999); retaliation, which may be distinct clinically and legally from the harassment; underlying medical conditions or medications which may cause psychological symptoms; previous or concurrent trauma or stress; and the use of drugs and alcohol, frequently found in individuals responding to stress.

The issues of functional impairment, prognosis and potential recovery are integral in damage assessments. Rarely is any individual totally disabled, either mentally or physically. A diagnosis, no matter how ominous, does not imply a given level of impairment or potential for recovery. Current level of impairment is assessed through the claimant’s history, behavior and examination findings. The claimant’s pre- and post-incident functional capacities must be compared. Prognostic opinions must be based on an assessment of functioning, the effects of pre-existing and current psychiatric status, and the effects of treatment. The natural history of the current psychiatric diagnosis and the effects of rehabilitation and treatment form one element of the long-term assessment of impairment. The assessment of the claimant’s motivation for recovery and willingness to enter treatment is another critical element in prognostic assessment. Even minimal impairment may lead to permanent disability when the claimant is not motivated to recover. Motivation for treatment can be particularly problematic in the context of litigation. Although plaintiffs are legally obligated to try to minimize damages, the ongoing presence of more severe symptoms and functional impairment may result in a better legal and financial outcome. Comparison of the claimant’s personality, behavior and functioning before and after the alleged incident is crucial in such determinations (Simon 1995).

GUIDELINES FOR ASSESSMENT IN SEXUAL HARASSMENT CLAIMS Forensic evaluations in sexual harassment cases are subject to many types of bias: personal, social, political, professional, those related to gender and those inherent in participation in the adversarial system of justice (Gold 1998). Adherence to guidelines which promote good principles of forensic practice can help the evaluator

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minimize the effects of these biases and provide credible assessments and testimony which will stand up under cross-examination in fiercely litigated sexual harassment cases (Simon 1996; Simon and Wettstein 1997). Suggested guidelines include: 1 Maintain neutrality. Avoid making assumptions about the facts of a case which can prejudice opinions. In addition, the evaluator should avoid occupying both the role of the treating clinician and the forensic expert (Simon and Wettstein 1997). Sexual harassment cases present difficulties in combining the two roles beyond the usual problems associated with ‘wearing two hats’ (Strasburger, Gutheil, and Brodsky 1997). When a patient alleges sexual harassment, experienced clinicians have recommended adopting an initial treatment stance of assuming that the report of harassment is true (Charney and Russell 1994; Shrier and Hamilton 1996). This recommended clinical stance and the necessarily neutral forensic stance are obviously incompatible. 2 Review all available documents, including medical, psychiatric, legal, and employment records. In cases where civil charges are filed in conjunction with or after the filing of criminal charges such as assault, battery or rape, police records may be available. These records may include the original complaint as well as interviews of the complainant, the alleged perpetrator, and witnesses, and should also be reviewed if available. Attorneys will frequently try to minimize costs by editing the material provided to the forensic consultant for review. This can present credibility problems at the time of testimony, and may well result in overlooking data crucial to the formulation of an informed opinion. 3 Assess mental status, diagnosis and functioning only through personal contact with the individual in question, in combination with record review. Such evaluations may require interviews with significant others, such as family members and friends. 4 Obtain as extensive a personal history from the claimant and the records as possible. This includes review of past and current sources of trauma, such as childhood sexual abuse, domestic violence, and assaults, and review of the claimant’s litigation history, employment history, and history of interpersonal relationships. 5 Decline any case in which the opinions being sought are outside the area of the clinician’s expertise. Attorneys will frequently push an expert into giving opinions beyond the boundaries of his training and experience. This may result in rendering his testimony inadmissible under a Daubert (Daubert v. Merrell Dow Pharmaceuticals, Inc. 1993) challenge (McCandless and Schickman 1989; McDonald and Lees-Haley 1995; McDonald 1998). Sexual harassment cases present many opportunities for the expert to cross this boundary.

6 Formulate opinions based on experience, training and knowledge. The Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) and Kumho Tire Co. v. Carmichael (1999) decisions require that expert testimony based on scientific knowledge be methodologically sound and defensible. This requires familiarity with the knowledge base behind one’s opinions, and its strengths and weaknesses (McDonald and Lees-Haley 1995; McDonald 1998). 7 Assess each case on its own merits, and be prepared to defend opinions with specific facts and data. Daubert also requires that the scientific expertise presented as expert testimony be relevant. Only familiarity with the specific facts of the case and the pertinent data can ensure that the testimony is relevant to the case.

CONCLUSION The behaviors described by the law as illegal employment discrimination are only a subset of the wide variety of behaviors that can be considered sexual harassment. The complex nature of human relationships and behavior defies the development of social or legal formulas defining when conduct is offensive, and when offensive conduct is illegal. In providing expert testimony, psychiatrists are asked to evaluate the effects of many experiences alleged to be sexual harassment. When doing so, we should bear in mind that whether a behavior is ultimately determined to be illegal employment discrimination is the purview of the court. Nevertheless, forensic psychiatrists can offer expert opinions and testimony regarding the various legal and psychological aspects of sexual harassment. Such testimony can assist the court in clarifying the unusually complex issues that arise in this type of employment litigation. Reliable and admissible expert opinions must be grounded in relevant literature and arrived at by employing accepted forensic and diagnostic methodology (Jorgenson and Wahl 2000). Credible opinions, based on such expertise and guided by forensic ethics and methodology, are of value to the legal system and will withstand both Daubert challenges and cross-examination.

REFERENCES Berdahl, J.L., Magley, V.J., Waldo, C.R. 1996. The sexual harassment of men? Exploring the concept with theory and data. Psychology of Women Quarterly 20, 527–47. Breslau, N. 1998: Epidemiology of trauma and posttraumatic stress disorder. In Yehuda, R. (ed.), Psychological trauma. Washington, DC: American Psychiatric Press, Inc., 1–29. Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998). Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e-2(a)(1).

288 Civil law Charney, D.A., Russell, R.C. 1994. An overview of sexual harassment. American Journal of Psychiatry 151, 10–17. Chu, J.A. 1992. The revictimization of adult women with histories of childhood abuse. Journal of Psychotherapy Practice and Research 1, 259–69. Dansky, B.S., Kilpatrick, D.G. 1997: Effects of sexual harassment. In O’Donohue, W. (ed.), Sexual Harassment: Theory, Research and Treatment. Boston: Allyn and Bacon, 152–74. Davidson, J.R.T., Foa, E.B. (eds). 1993: Posttraumatic Stress Disorder: DSM-IV and Beyond. Washington, DC: American Psychiatric Press, Inc. Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993). Equal Employment Opportunity Commission. 1980: The Federal Guidelines on Sexual Harassment. 29 C.F.R. §§ 1604.1-.11. Faragher v. Boca Raton, 118 S.Ct. 2275 (1998). Fitzgerald, L.F., Swan, S., Fisher, K. 1995. Why didn’t she just report him? The psychological and legal implications of women’s responses to sexual harassment. Journal of Social Issues 51, 117–38. Fitzgerald, L.F., Drasgow, F., Hulin, D.L., et al. 1997a. Antecedents and consequences of sexual harassment in organizations: a test of an integrated model. Journal of Applied Psychology 82, 578–89. Fitzgerald, L.F., Swan, S., Magley, V.J. 1997b: But was it really sexual harassment? Legal, behavioral and psychological definitions of the workplace victimization of women. In O’Donohue, W. (ed.), Sexual Harassment: Theory, Research and Treatment. Boston: Allyn and Bacon, 5–28. Fitzgerald, L.F., Shullman, S., Bailey, N., et al. 1998. The incidence and dimensions of sexual harassment in academia and the workplace. Journal of Vocational Behavior 32, 152–75. Fitzgerald, L.F., Drasgow, F., Magley, V.J. 1999. Sexual harassment in the armed forces: a test of an integrated model. Military Psychology 11, 329–43. Gold, L.H. 1998. Addressing bias in the forensic assessment of sexual harassment claims. Journal of the American Academy of Psychiatry and Law 26, 563–77. Gold, L.H. 2003: Sexual Harassment: Psychiatric Assessment in Employment Litigation. Washington, DC: American Psychiatric Press, Inc. Green, B.L. 1995: Recent research findings on the diagnosis of posttraumatic stress disorder: prevalence, course, comorbidity and risk. In Simon, R.I. (ed.), Posttraumatic Stress Disorder in Litigation: Guidelines for Forensic Assessment. Washington, DC: American Psychiatric Press, Inc., 13–29. Gruber, J.E. 1997: An epidemiology of sexual harassment: evidence from North America and Europe. In O’Donohue, W. (ed.), Sexual Harassment: Theory, Research and Treatment. Boston: Allyn and Bacon, 84–98.

Gutek, B.A., Koss, M.P. 1996: How women deal with sexual harassment and how organizations respond to reporting. In Shrier, D.K. (ed.), Sexual Harassment in the Workplace and Academia: Psychiatric Issues. Washington, DC: American Psychiatric Press, Inc., 39–57. Hamilton, J.A., Alagna, S.W., King, L.S., Lloyd, C. 1987. The emotional consequences of gender-based abuse in the workplace: new counseling programs for sex discrimination. Women and Therapy 6, 155–82. Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (1993). Herman, J. 1992: Trauma and recovery. New York: Basic Books. Jordan J.V. (ed.). 1997: Women’s Growth in Diversity: More Writings from the Stone Center. New York: The Guilford Press. Jordan, J.V., Kaplan, A.G., Miller, J.B., et al. 1991: Women’s Growth in Connection. New York: The Guilford Press. Jorgenson, L.M., Wahl, K.M. 2000. Psychiatrists as expert witnesses in sexual harassment cases under Daubert and Kumho. Psychiatric Annals 30, 390–6. Kluft, R.P. 1990: Incest and subsequent revictimization: the case of therapist-patient sexual exploitation, with a description of the sitting duck syndrome. In Kluft, R.P. (ed.), Incest Related Syndromes of Psychopathology. Washington, DC: American Psychiatric Press, Inc., 263–88. Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999). Lenhart, S.A. 1996: Physical and mental health aspects of sexual harassment. In Shrier, D.K. (ed.), Sexual Harassment in the Workplace and Academia: Psychiatric Issues. Washington, DC: American Psychiatric Press, Inc., 21–38. Lenhart, S.A., Shrier, D.K. 1996. Potential costs and benefits of sexual harassment litigation. Psychiatric Annals 26, 132–8. Long, B.L. 1994. Psychiatric diagnoses in sexual harassment cases. Bulletin of the American Academy of Psychiatry and Law 22, 195–203. Magley, V.J., Waldo, C.R., Drasgow, F., Fitzgerald, L.F. 1999. The impact of sexual harassment on military personnel: is it the same for men and women? Military Psychology 11, 283–302. McCandless, S.R., Schickman, M.I. 1989. In sexual harassment cases: examining the psychotherapist at trial. The Brief 18, 41–7. McDonald, J.J. 1998. Daubert in employment litigation: a potent weapon against dubious science. Employee Relations Law Journal 24, 35–56. McDonald, J.J., Lees-Haley, P.R. 1995. Avoiding ‘junk science’ in sexual harassment litigation. Employee Relations Law Journal 21, 51–66. Meritor Savings Bank, FSB v. Vinson, 106 S.Ct. 2399 (1986). Messman, T.L., Long, P.J. 1996. Child sexual abuse and its relationship to revictimization in adult women: a review. Clinical Psychology Review 16, 397–420.

Sexual harassment 289 Miller, J.B., Stiver, I.P. 1997: The Healing Connection: How Women Form Relationships in Therapy and Life. Boston: Beacon Press. Oncale v. Sundowner Offshore Services, 118 S.Ct. 998 (1998). Rosen, G.M. 1995. The Aleutian Enterprise sinking and posttraumatic stress disorder: misdiagnosis in clinical and forensic settings. Professional Psychology Research and Practice 26, 82–7. Schafran, L.H. 1995. Credibility in the courts; why is there a gender gap. Judges’ Journal 34, 5–7. Schneider, K.T., Swan, S., Fitzgerald, L.F. 1997. Job-related and psychological effects of sexual harassment in the workplace: empirical evidence from two organizations. Journal of Applied Psychology 82, 401–15. Shrier, D.K. 1996: Introduction and brief overview. In Shrier, D.K. (ed.), Sexual Harassment in the Workplace and Academia: Psychiatric Issues. Washington, DC: American Psychiatric Press, Inc., 1–20. Shrier, D.K., Hamilton, J.A. 1996: Therapeutic interventions and resources. In Shrier, D.K. (ed.), Sexual Harassment in the Workplace and Academia: Psychiatric Issues. Washington, DC: American Psychiatric Press, Inc., 95–112. Shuman, D.W. 1995: Persistent reexperiences in psychiatry and law: current and future trends in posttraumatic stress disorder litigation. In Simon, R.I. (ed.), Posttraumatic Stress Disorder in Litigation: Guidelines for Forensic Assessment. Washington, DC: American Psychiatric Press, Inc., 1–11. Simon, R.I. 1995: Toward the development of guidelines in the forensic psychiatric examination of posttraumatic stress disorder claimants. In Simon, R.I. (ed.), Posttraumatic Stress Disorder in Litigation:

Guidelines for Forensic Assessment. Washington, DC: American Psychiatric Press, Inc., 31–84. Simon, R.I. 1996. The credible forensic psychiatric evaluation in sexual harassment litigation. Psychiatric Annals 26, 139–48. Simon, R.I. 1999. Chronic posttraumatic stress disorder: a review and checklist of factors influencing prognosis. Harvard Review of Psychiatry 6, 304–12. Simon, R.I., Wettstein, R.M. 1997. Toward the development of guidelines for the conduct of forensic psychiatric examinations. Journal of the American Academy of Psychiatry and Law 25, 17–30. Strasburger, L.H. 1999. The litigant-patient: mental health consequences of civil litigation. Journal of the American Academy of Psychiatry and Law 27, 203–11. Strasburger, L.H., Gutheil, T.G., Brodsky, A. 1997. On wearing two hats: role conflict in serving as both psychotherapist and expert witness. American Journal of Psychiatry 154, 448–56. Unger, R., Crawford, M. (eds). 1996: Women and Gender: A Feminist Psychology. 2nd edition. New York: McGraw-Hill. United States Merit Systems Protection Board. 1995: Sexual Harassment in the Federal Workplace: Trends, Progress, Continuing Challenges. Washington, DC: U.S. Government Printing Office. Waldo, C.R., Berdahl, J.L., Fitzgerald, L.F. 1998. Are men sexually harassed? If so, by whom? Law and Human Behavior 22, 59–79. Weeks v. Baker & McKenzie, 74 Cal. Rptr. 2d 510 (1994). Williams v. Saxbe, 413 F. Supp. 654, D.D.C. (1976). Zanarini, M.C. (ed.). 1997: The Role of Sexual Abuse in the Etiology of Borderline Personality Disorder. Washington, DC: American Psychiatric Press, Inc.

32 Trauma-induced psychiatric disorders and civil law STUART B. KLEINMAN AND SUSAN B. EGAN

INTRODUCTION Negligent behavior that produces harm to a person is termed a ‘tort’ (Slovenko 1973). Society, represented by a judge or jury, may award the injured party money in an effort to make him or her whole. When psychiatric injuries are alleged, the forensic examiner must determine whether the injury claimed is genuine rather than malingered, and specify the nature, extent, and prognosis of any harm suffered. The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) (American Psychiatric Association 1994) specifies only four types of psychiatric disorders as resulting from stressful external events: posttraumatic stress disorder (PTSD); adjustment disorder; acute stress disorder; and brief psychotic disorder (with marked stressors). However, other disorders, for example, panic disorder – if not caused by external events – can at least be triggered or precipitated by them. Moreover, compensable injuries are not limited to the development of a psychiatric disorder, and may also include disturbed occupational or social functioning, for example, inability of a mother who witnessed a murder and suffers from PTSD to take her four-year-old child outside for walks due to anxiety regarding safety. Additionally, trauma may induce fundamental changes in an individual’s experience of him/herself and/or his/her world, leading some to feel anxiously ‘weak’ and/or depressively ‘bad,’ and to perceive the world as frighteningly and/or despairingly ‘cruel.’ Compensation may also be awarded for psychiatric injuries produced by workplace events that violate Federal (or state) law; for example, Title VII of the 1964 Civil Rights Act, or for failure to accommodate disabling psychiatric disorders at the workplace when the Americans with Disabilities Act (ADA) is contravened. Prognostication of the course of psychiatric injuries is often difficult, and includes evaluation of the effect of

anticipated monetary compensation as well as the litigation process itself. The ‘greenback poultice’ or compensation neurosis (Modlin 1986), which refers to the curative effect of a wad of dollar bills upon a plaintiff ’s forehead, remains a controversial issue. Litigation is often driven by hurt, anger, avarice, and/or pride, and may serve, often unwittingly, as a stage for expression of both trauma engendered and displaced wishes and conflicts.

DIAGNOSIS OF PTSD Legal utility Claims of PTSD are particularly popular in personal injury actions. As one legal commentator stated wryly: ‘… if mental disorders were listed on the New York Stock Exchange, PTSD would be a growth stock worth watching.’ (Lees-Haley 1986). Such claims are, in part, popular because diagnosis of this condition indicates that an individual experienced an extreme trauma, and ‘because it [the diagnosis] creates a presumption of causation’ (Brown 1996). Determination of causation of PTSD and responsibility for damages can, nevertheless, be complex, especially when an individual has experienced more than one traumatic event.

Predictors of PTSD Many demographic, social, and psychiatric factors have been associated with development and persistence of PTSD (Simon 1999; Freedman et al. 1999; King et al. 1999; Saigh and Bremner 1999). These include:

• • •

type of trauma; nature of symptoms; prolonged childhood separation;

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• • • • • • •

childhood abuse; age; gender; contemporary stressors; family psychiatric history; social support; and mental health treatment.

PTSD results from a complex interaction between a stressor and a host of influences residing inside and outside an individual. Higher ‘doses’ of a given stressor and prior trauma are associated with a significantly increased risk for development of PTSD, and peritraumatic dissociation (Koopman, Classen, and Spiegel 1994) may herald its onset or foreshadow its continuation (Shalev et al. 1996). Breslau and Davis (1992) found that separation from parents, family history of anxiety, pre-existing anxiety or depression and neuroticism increased the odds for both chronic and non-chronic PTSD, while family history of antisocial behavior and female gender were specifically associated with chronic PTSD. Breslau et al. (1998) also determined that having a psychiatric history in and of itself was a stronger predictor of PTSD than specifically having a history of a mood, anxiety or substance abuse disorder. Green et al. (2000) found that those who had experienced multiple traumas suffered worse outcomes than those who had experienced a single trauma, and that those who had suffered interpersonal traumas were more distressed than those who had suffered only noninterpersonal events. In Green et al.’s study of 1909 college students, 65 per cent had suffered at least one traumatic event and 80–85 per cent of these individuals had experienced at least one other traumatic event. Neurobiological factors may increase the risk for development of PTSD. One study (Gurvits et al. 2000) found greater neurodevelopmental problems, for example, learning problems, motor hyperreactivity, in those who developed PTSD, while another (Resnick et al. 1995) found that those at greater risk by virtue of exposure to prior traumas also had lower cortisol levels shortly after being raped. No one factor, or combination of factors, necessarily leads to PTSD, and little remains understood about how some individuals are able to tolerate even the most overwhelming trauma. Prognosis is ultimately a clinical judgment informed by examination data, records, and relevant research findings. The heterogeneity and complexity of PTSD make it unlikely that, particularly in forensic contexts, a single, reliable and valid biological or psychological prognosticator will soon be developed.

The stressor criteria PTSD and acute stress disorder (ASD) are the only diagnoses in the DSM-IV that are defined as resulting from an ‘[extreme] traumatic’ event. Ever since PTSD was (officially) recognized as a diagnostic entity, efforts have been underway to clarify the meaning of a ‘traumatic event.’

The DSM-III (American Psychiatric Association 1980) described the inciting PTSD stressor as outside the usual range of human experience. That definition, in part because disturbing events are common, was highly problematic. Solomon and Davidson (1997), for example, reported lifetime prevalence rates of trauma from 39 per cent to over 70 per cent. In 1994, the stressor criteria were significantly modified. According to the DSM-IV (American Psychiatric Association 1994), exposure to an ‘extreme traumatic stressor,’ defined as ‘actual or threatened death or serious injury, or a threat to the physical integrity of self or others,’ that induces ‘intense fear, helplessness, or horror’ is necessary to develop PTSD. Examples listed in the DSM-IV of ‘extreme traumatic stressor(s)’ include:

• • • • • • • •

military combat; violent personal assault; being kidnapped; being taken hostage; terrorist attack; torture; incarceration as a prisoner of war or in a concentration camp; and natural or man-made disasters.

Sometimes, individuals develop PTSD-type symptoms after confronting non-extreme stressors, for example, repetitive nasty criticism or lewd language. Because ‘information’ generated by a life event, including events which are not extreme, appears to be commonly processed in a manner which generates oscillations between intrusive/reliving and avoidance/numbing phenomena (Horowitz 1986), and individuals may react intensely to personally meaningful occurrences which objectively are not seriously threatening, the presence of PTSD-type symptoms is not a reliable indicator of the magnitude of a precipitating life event. Many factors determine the impact of an adverse life event, including:

• • • •

nature of the event; perception of the event; an individual’s biological make-up; and response of an individual’s social milieu to the event and the person who experienced the event.

Perception of an event is influenced by such (interrelated) variables as personality and life history. Although significant PTSD-type symptoms can be triggered by nonextreme stressors, generally the more severe the life event, the greater the resultant difficulties. Confronting imminent death and/or sexual penetration, and witnessing grotesque sights, for example, decapitation, mutilation, are particularly likely to produce severe symptoms. Lack of fulfillment of the diagnostic criteria for PTSD is not commensurate with lack of significant distress. The diagnoses of adjustment disorder, and particularly those of

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anxiety disorder not otherwise specified and/or depressive disorder not otherwise specified, may be used to describe meaningful pathology produced by non-extreme stressors. Psychological fragility that creates or significantly compounds a response to a life event does not bar recovery in personal injury cases. According to the ‘eggshell’ or ‘thin skull’ doctrine, which is based in common law, the wrongdoer is obliged to take his or her victims as he/she finds them, however frail they may be, and is liable both for exacerbation of a pre-existing injury and any new injury. Such liability, however, may not apply or be limited in actions for compensatory damages for sexual harassment under Title VII. In such cases, a plaintiff may not be entitled to damages emanating from pre-existing fragility/ hypersensitivity unless the harassment also would have (significantly) distressed the ‘ordinarily sensitive person,’ for example, McKinnon v. Kwong Wah Restaurant (1996). If it is determined that it would have, the plaintiff can recover for all of the damages associated with his or her ‘thin skull.’

Trauma history Assessment of (psychological) causation can be complex. When an individual has suffered past and contemporary trauma, and symptoms comprising PTSD are present, the examiner must determine whether:

• • • •

the PTSD is a new disorder caused by the recent trauma; the PTSD is a previously undiagnosed or undetected condition caused by prior trauma; the recent trauma triggered certain symptoms which emanate from PTSD caused by a prior trauma (more likely if the prior trauma was of greater magnitude than the recent trauma); interaction between the recent and prior traumas caused the PTSD, or each of these traumas independently produced a PTSD.

Because knowledge of prior traumas is necessary for full understanding of an individual’s response to a contemporary event, an examiner should take a complete trauma history. Such a history includes exploration of whether the claimant experienced physical or sexual abuse, or witnessed domestic violence during childhood, and age of onset, duration, frequency, nature and identity of the perpetrator(s) of any such abuse. A neighbor once fondling a child’s buttocks when the child was twelve years old, for example, typically produces a significantly different effect than a father repeatedly raping his daughter from the time she was five to eleven years old. When considering physical abuse, head injuries should be particularly explored. Neurologic status may affect development and prognosis of PTSD, and create diagnostic issues, for example, whether an individual’s irritability originates neurologically, psychologically, or both. Another area of inquiry should be military experiences, especially those of combat. It is important to determine the

nature and duration of combat activities, whether there was involvement in atrocities, and whether friends were killed. Involvement in long-distance reconnaissance, for example, has been found to be associated with severe and enduring PTSD (Wilson and Zigelbaum 1983). A history of criminal victimizations, including how any such events were perceived, should be obtained. The meaning that an individual ascribes to an event mediates its effect. For example, a mugging in which a middleaged woman is robbed by a young male with a knife may be experienced in different ways. One woman may focus upon the trembling hand holding the knife, interpret the youth’s shaking as an indication of inexperience, conclude he is likely to bungle the mugging and panic, stab and kill her, and be filled with terror. Another woman may attribute his shaking to fear, interpret his youth as a sign of lack of maliciousness – that is, ‘he is really just a boy’ – conclude he does not intend to physically harm her, and not be overwhelmed with fear. The extent to which an individual believes that his or her life or physical well-being is threatened (by a genuinely endangering event) correlates with development of PTSD. Other life events that should be investigated include human-made disasters, for example, accidental fires, naturally occurring disasters, and serious automobile accidents. When more than one individual has been involved in a traumatic event, it is important to learn the nature of the relationship of the examinee to the other individuals and the meaning of the others’ injuries (or lack of injuries) to him/her.

Malingering Because of its legal utility, PTSD is particularly likely to be malingered. One commonly used marker for detecting malingering is discordance between affect and content. A smiling, energetic disposition throughout a three-hour interview, for example, suggests an absence of (severe) depression. Because some individuals with genuine PTSD may dissociatively numb their pain, especially while recounting their trauma, a lack of overt distress does not necessarily reflect an absence of distress. The seeming paralysis of affect which may immediately follow a traumatic event and generate the impression that its victim is unaffected was long ago termed ‘frozen fright’ by Symmonds (1982). In 1991, Resick and colleagues found that rape victims with PTSD may be less animated while discussing their assault than rape victims without PTSD. Clinical judgment must be carefully exercised in determining the significance of discrepant affect. Malingering may also be suggested by:

•

recitation of all DSM-IV listed PTSD phenomena – such recitation suggests memorization of the DSM-IV diagnostic criteria;

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•

• • •

lack of nuanced description of PTSD symptoms – certain PTSD symptoms, for example, nightmares, tend to present in characteristic ways. Those malingering PTSD typically do not possess symptom specific knowledge; inability to provide detailed examples of how PTSD symptoms affect everyday activities; absence of spontaneous display of hyperarousal symptoms; and reporting symptoms to be static – PTSD symptoms typically fluctuate.

Nightmares are a prototypical PTSD phenomenon, but are very difficult to verify. Bed partners may report the presence of sleep disturbance and/or that the examinee has complained of nightmares, but are generally not financially disinterested parties, and except in unusual circumstances depend on the examinee for knowledge of the content of his or her dreams. Data suggest that PTSD nightmares, unlike non-PTSD nightmares, may not occur exclusively during rapid eye-movement (REM) sleep (Hartmann 1984; Kramer, Schoen, and Kenney 1984; van der Kolk et al. 1984). A sleep study might help detect such nightmares. Wave tracings, however, cannot illuminate the content of nightmares.

Psychologic testing Psychologic testing may aid in the determination of whether an examinee’s PTSD symptoms are malingered. It may be particularly useful or indicated when:

• • • •

an examinee is highly guarded during face-to-face interviews; malingering is strongly suspected or questioned; diagnosis is unclear; and/or an examinee’s reaction to the litigated event appears to be distorted or exaggerated.

The Minnesota Multiphasic Personality Inventory-2 (MMPI-2) (Butcher et al. 1989) and the Million Clinical Multiaxial Inventory-III (MCMI-III) (Millon, Davis, and Millon 1994) can be very helpful. The Impact of Event Scale (IES) (Horowitz, Wilner, and Alvarez 1979), a selfreport instrument which measures avoidance and intrusive symptomatology, and the Clinician Administered Posttraumatic Stress Scale (CAPS) (Blake et al. 1990), a structured interview for assessing PTSD, are useful research tools, but offer limited assistance in forensic settings. Data generated by psychologic testing should be considered within the context of all available information, and the strengths and weaknesses of each test employed. Of all tests used to evaluate PTSD, the MMPI-II is likely the most widely administered and potentially the most forensically helpful. It should, however, be used with the understanding that its sensitivity and specificity in detecting malingering of PTSD is not entirely clear. One review found that it correctly identified real and

fabricated PTSD over 90 per cent of the time (Lating, Zeichner, and Keane 1995), but another found that it did so in only a little over 40 per cent of subjects (Perconte and Goreczny 1990). Potentially problematic is its dependence upon an examinee’s characterization of an event as traumatic. An event which does not represent an extreme stressor, but which is perceived as such, can erroneously generate a diagnosis of PTSD. The CAPS, unlike the MMPI-II, was explicitly developed to aid diagnosing PTSD (Blake et al. 1995), but its forensic utility is limited. Varying applications of its scoring system have led to wide disparities in its rate of diagnosis of PTSD (Blanchard et al. 1995), and its ability to detect malingering has been inadequately assessed. The IES does not contain a validity scale, can be readily malingered, and does not fully comport with the DSM-IV PTSD diagnostic criteria. The MCMI-III contains a validity scale and may significantly support evaluation of an individual’s mode of perceiving and experiencing events. However, its ability to identify PTSD is not as well studied as that of the MMPI-II and, like the MMPI-II, it relies entirely upon an examinee’s characterization of an event as traumatic.

Psychophysiologic testing Psychophysiologic testing may be a useful adjunctive technique for assessing PTSD, as those with this disorder often suffer prominent physiological disturbances. Long before the introduction of the diagnosis of PTSD in 1980, Kardiner (1941) recognized the hyperarousal experienced by those with this condition, and labeled this entity a physioneurosis. Measurement of heart rate, skin conductance, and muscle contraction in response to a standard or idiosyncratic provocative, usually auditory, stimulus (Saigh and Bremner 1999) has been successfully utilized to detect PTSD in Vietnam War veterans (Pitman et al. 1987), Korean and World War II veterans (Orr et al. 1993), Israeli victims of rape and terrorism, Israeli combat veterans, and Israelis involved in automotive accidents (Orr and Pitman 1991; Shalev, Orr, and Pitman 1993). This methodology, however, is problematic in a forensic setting. Idiosyncratic testing relies upon scripts generated from a subject’s descriptions of (actual) life events. After a script is created, it is played back to the subject and the subject is asked to imagine the life event as vividly as possible (Orr and Pitman 1993). An examinee could manipulate this process, for example, by misrepresenting the source event. Particularly when the nature of an event is disputed, reliance upon inadequately corroborated information may create significant distortion. An examinee could also undetectedly imagine a scene more disturbing than the litigated event or focus on a fictitious trauma and potentially produce a falsely elevated result. Some 25 per cent of subjects (Vietnam combat veterans without PTSD) who were instructed to respond to their scripts as if they had PTSD were misidentified as PTSD physiologic

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responders by Orr and Pitman (1993). Test takers with greater motivation, for example, procurement of freedom or large amounts of money, might simulate PTSD responses even more successfully. Additionally those with antisocial personality disorder might conceivably fake PTSD responses better than those without this condition. However, because those with this disorder (or significant features of this disorder) may respond in a physiologically muted fashion to anxiety inducing stimuli, their ability to fool this test is quite unclear. Orr and Pitman did not differentiate successful deceivers by personality type. Because of the many difficulties associated with it, the admissibility of psychophysiologic testing is unclear.

TRAUMA IN THE WORKPLACE Sexual harassment Injuries caused by sexually harassing conduct may be actionable under Title VII of the Civil Rights Acts of 1964. Until the Civil Rights Act was amended in 1991, the only remedies available under Title VII were equitable, such as back-pay or reinstatement. The 1991 amendment made it possible to also recover compensatory or money damages, including punitive damages. To recover compensatory damages for emotional distress, some courts, to reduce the incidence of fraudulent claims (Sullivan v. Boston Gas Company 1993), have required proof of a physical manifestation of the emotional injury alleged. Physical manifestations might include nausea, body shakes and stomach pain (Bresnahan v. McAuliffe 1999). Most courts, however, require only expert testimony supporting the presence of emotional distress (Roling v. Daily 1999). Due to privacy concerns, courts may limit the data available to the forensic examiner. Rule 412 of the Federal Rules of Evidence, for example, may be used to exclude from evidence information about an individual’s prior sexual behavior. Inadmissibility of such evidence is not intended to preclude its exploration during pre-trial discovery, but may serve to restrict the scope of the forensic psychiatric examination. Courts and psychiatrists sometimes differently understand the relevance of particular information. Title VII prohibits sexual harassment that is so objectively offensive as to alter the conditions of a victim’s employment. The court in Oncale v. Sundowner Offshore Services, Inc. (1998) stated: Title VII does not reach genuine but innocuous differences in the way men and women routinely interact with members of the same sex and of the opposite sex, and the statute’s prohibition of harassment on the basis of sex requires neither asexuality nor androgeny in the workplace, but forbids only

behavior so objectively offensive as to alter the conditions of a victim’s employment.

The stressor giving rise to a sexual harassment claim must be sufficiently severe to be significant to the ‘reasonable person’ (Harris v. Forklift Systems, Inc. 1993). The ‘reasonable person’ is a legal construct used by the courts to identify the consensus of the community in which the event took place regarding what conduct should be actionable. The views of the ‘reasonable person’ are not those of a particular plaintiff. To prevail, a plaintiff must not only prove that she found the sexually harassing conduct to be severe and pervasive, but that the ‘reasonable person’ also would have done so (Ravitch 1995). Those who have idiosyncratically perceived workplace conduct may not be able to recover damages under Title VII, even if they have experienced genuine and severe distress. Some courts, on the theory that the ‘reasonable person’ tends to be biased towards men (Ellison v. Brady 1991), apply a ‘reasonable woman’ rather than a ‘reasonable person’ standard, for example, Brooks v. City of San Mateo (2000). Most, however, do not. The choice of standard for determining conduct deemed sexual harassment may not be of great practical importance. A study by Weiner et al. (1995) found that the use of different standards did not result in significantly different outcomes.

Disability Damages for trauma-induced injuries may also be recoverable under the Americans with Disabilities Act (ADA). The Equal Employment Opportunity Commission (EEOC) Guidance on Psychiatric Disabilities (1997) identifies PTSD, other anxiety disorders and major depression as impairments which may qualify as disabilities under the ADA. Impairments which ‘substantially limit’ a major life activity, such as working, are disabilities under the ADA. Nonetheless, there are significant restrictions upon obtaining relief under the ADA for PTSD and related difficulties. Impairments which only temporarily substantially limit a major life activity are not covered by the ADA. In Hamilton v. Southwestern Bell Telephone Company (1998), for example, the court dismissed the plaintiff ’s ADA claim on the grounds, amongst others, that his PTSD had abated, and that his work impairment was, thus, only temporary (see also Rogers v. International Marine Terminals 1996). Acute traumatic conditions that resolve are not covered by the ADA. Impairments that are rectified are also not actionable under the ADA. In Sutton v. United Airlines (1999), the Supreme Court held that the determination of whether a disability is cognizable under the ADA must take into account any corrective measures undertaken by the disabled person. Consequently, trauma-induced injuries

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that are compensated with medication and/or psychotherapy are likely not covered by the ADA. Even outside these exclusions, claims for PTSD and related entities succeed only rarely under the ADA. The PTSD sufferer, like those with other conditions, is often unable to negotiate the Scylla and Charybdis of demonstrating that his or her disorder is sufficiently severe to impair a major life activity, but not so disabling as to prevent him/her from working with an accommodation. For instance, in one case, a teacher developed PTSD as a result of being assaulted and threatened by students on four separate occasions. The school expelled three of the involved students and suspended another, and the school board fired the teacher after she was hospitalized for PTSD and did not return to work for months. The court which heard her ADA claim (Fields v. St. Bernard Parish School Board 2000) held that she was not entitled to the protections of the ADA because she could not work with or without an accommodation: The School Board claims, and the Court agrees, that the classroom is the workplace for a middle school teacher and that a teacher who cannot come to school is unable to perform any of the essential functions of her job.

In contrast to Fields, the court in Hetreed v. Allstate Insurance Co. (1999) dismissed the claim brought under the ADA by an auditor who developed PTSD and/or major depression as a result of being sexually harassed, ruling that her diagnoses were enough to establish an impairment under the ADA, but not sufficient to establish that she was substantially limited in the major life activity of working. The only proof she offered regarding the extent of her impairment was the diagnosis proffered by her physician. Interpretation of the ADA by the courts is rapidly evolving. The Supreme Court recently ruled in University of Alabama at Birmingham v. Garrett (2001) that there is no cause of action against state defendants for money damages in Federal court under the ADA. In dicta, the court made several statements respecting the nature of disability classifications entitled to equal protection. One of the cases cited by the court in its opinion, Cleburne v. Cleburne Living Center 1986, holds that it is not necessary under the 14th Amendment for states to make special accommodations for those with mental retardation as long as their actions toward these individuals are rational.

IMPACT OF COMPENSATION AND LITIGATION ON PROGNOSIS In his 1961 Milroy lectures, Miller (1961a, 1961b) described fifty individuals who had suffered accidental head injuries and who had ‘gross neurotic symptoms’ which he termed accident neurosis. By two years after

settlement of their legal cases, 41 out of 45 of those previously employed had returned to their own or similar work. This finding spurred Miller to conclude that symptoms and disability are likely to recede with resolution of a claim for compensation, and to formulate five ‘truths’ regarding work-related injuries. Although these ‘truths’ have been largely repudiated [Fontana and Rosenheck (1998); Smith and Freuh (1996); Mendelson (1995); Binder, Trimble, and McNeil (1991a); Tarsh and Royston (1985); Sprehe (1984); Kelly (1981a, 1981b); Kelly (1975)], they continue to influence many examiners. Unlike Miller, Mendelson, for example, found that 75 per cent of 264 litigants who were not working at the time their litigation concluded continued to be disabled an average of twenty-three months later. Sprehe, who examined the effect of monetary settlement on psychiatric disability in workers’ compensation cases, similarly found that ‘There was a high prevalence of cases in which the settlement correlated with no improvement in employment status’ and concluded, ‘It would appear from this preliminary correlational study that the “greenback poultice” concept has little use as a prognostic theory.’ The litigation process itself may affect trauma related symptoms in multiple ways. Adversarial proceedings, particularly when highly antagonistic, can be very stressful and trigger and interfere with resolution of traumatic memories and associated symptoms. The meaning(s) an individual ascribes to litigation may also influence its emotional impact. To some, litigation represents a way of obtaining recognition of (perceived or actual) injustice and/or expressing rage in a socially acceptable manner. Sometimes individuals misdirect, that is, transfer, to the defendant a desire for vengeance originating from past wrongs, and unwittingly attempt to use litigation to assuage old wounds. Binder, Trimble, and McNeil (1991b) provide examples of the import of the litigation process. One woman, for example, stated regarding her settlement, ‘I accomplished what I wanted; the rental company no longer rents chainsaws to the public. There was a TV show about my accident which alerted the public.’ Another individual, in contrast, reported feeling humiliated and becoming more distressed after a judge ruled that his injury was self-inflicted.

MEMORY OF TRAUMA AND LITIGATION AGAINST THERAPISTS Few issues have inspired as much impassioned debate as that of ‘recovered memory.’ One side argues that amnesia for traumatic events is well documented, and invokes dissociation and/or repression to explain preservation of memories of forgotten trauma. Of dissociation, West (1967) wrote, ‘For a period of time, certain information is not associated or integrated with other information as it normally and logically would be,’ and Yates and Nasby

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(1993) explained that it disconnects or separates one part of memory from the other, that it is not ‘normal’ forgetting, and that dissociated information is ‘encoded but cannot be retrieved.’ The other side notes that there is no compelling ‘biological or social evidence’ (Courtois 1999) which indicates that memories of traumatic experiences can be submerged and then recovered after many years, and that there is an abundance of research indicating that events that recur leave a greater rather than lesser memory trace and are more rather than less likely to be remembered. Also noted is the relationship between dissociation, and hypnotizability and suggestibility, and that those with a high dissociative capacity are at particular risk to confabulate (Frankel 1990).

Admissibility of “recovered memory” into evidence Where evidence results from the use of novel scientific theories or processes, it will be admitted in courts under Frye v. United States (1923) only if the processes or theories are generally accepted in the relevant scientific community, and under Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) only if deemed sufficiently supported by “science”, that is, scientific methodology. If the theory which gave rise to the evidence satisfies the applicable standard’s muster, courts are prepared to presume the evidence has some measure of reliability and leave it to the jury to determine how much weight it should be given in reaching a verdict. Because in the relevant scientific community there is not general agreement that memories of past trauma can be lost and later accurately retrieved, and the “scientific” data undergirding this phenomenon are controversial, “recovered memories” are, for the most part, not permitted into evidence to prove allegations of past wrongful behavior. As a result, lawsuits seeking damages for sexual abuse recalled long after it allegedly occurred have been often dismissed. The debate held at the American Psychiatric Association’s annual meeting in May 2000 regarding “recovered memory” reflects the difficulties courts have in determining the admissibility of “recovered memory”. Dr. David Spiegel, a proponent of “recovered memory” for the debate, argued that ‘while “recovering” abuse memories is not an automatic signal that the remembered events actually occurred, or occurred in the way the person recalls them, patients and others routinely repress these memories and later “restructure the meaning of trauma” in part as a form of protection.’ ‘Recovered memories of trauma,’ he contended, ‘can be an important and appropriate part of the psychiatric treatment of trauma patients and should not be dismissed just because a therapist does not find them plausible.’ Dr. Paul McHugh, in contrast, stated that ‘the concept of repressed memory and “recovered memories” [of

abuse] has been a clinical, intellectual, social and moral disaster for our discipline,’ and that the studies supporting their validity have multiple flaws, ‘including inclusion of individuals with neurological insults, children under age five and patients who have particular agendas for claiming they are victims of abuse.’ Such dichotomous views are prone to persuade courts, for example, State v. Quattrocchi (1999) that the theories in support of “recovered memory” have not gained general acceptance. The courts which have allowed “recovered memory” into evidence have used various legal theories to do so. One approach has been to accept as a premise that there is general agreement in the scientific community about the concept of dissociation and widespread disagreement only regarding the manner in which memories are elicited, and submit to the jury the question of the impact upon a memory’s reliability of the way it was ‘recovered.’ Somewhat similarly, one court, Moriarty v. Garden Sanctuary Church of God (1999) acknowledged that there is ‘considerable debate’ within the scientific community about “recovered memory”, but concluded, based upon the inclusion within the DSM-IV of Dissociative Amnesia, that “recovered memory” does, in fact, exist, and left the issue of the reliability of such memories to the jury. In contrast, the court in Logerquist v. McVey (2000) held that when an expert gave his opinion about “recovered memory” developed from inductive reasoning based on experience, ‘observation or research,’ it was ‘pure opinion’ evidence. Such evidence, the court found, was not subject to the same evidentiary rules as opinions respecting new or novel scientific principles, formulae or procedures developed by others. Courts that permit testimony regarding “recovered memory” seem to be concerned that excluding from evidence the testimony of an expert to explain this phenomenon in general and a plaintiff ’s memories in particular ensures that the plaintiff ’s suit will fail for lack of supporting evidence. Proponents of admitting “recovered memory” into evidence argue that it is no more or less reliable than ordinary memory, and that it should be treated like all testimony concerning things remembered, that is tested at trial via cross-examination and evaluation of any corroborative testimony, and review of any evidence that the plaintiff ’s claim is incorrect. The Court in Logerquist v. McVey wrote: We [the Court] believe, however, that the truth of Plaintiff’s testimony that she actually and accurately recalled or remembered the events as distinguished from inventing them or having had them suggested or implanted is for a jury to decide. While Defendant contends the alleged loss of memory and consequent delay in reporting make Plaintiff’s testimony unworthy of belief, in this, as in other cases, Rule 702 allows Plaintiff to call expert witnesses to explain her behavior following the events alleged and to help the

Trauma-induced psychiatric disorders and civil law 297 jury determine whether Plaintiff’s memories are real and accurate or imagined.

Statute of limitations Suits based on “recovered memory” frequently fail because of expiration of the applicable statute of limitations. State and federal laws generally require that suits be instituted within a specific period of time after alleged harm has occurred. If an individual does not recall alleged abuse until many years after its occurrence, a court may dismiss a suit as untimely unless it determines that a discovery exception to the statute of limitations applies, for example, Grace v. Colorito (1999). In such instances, the statute of limitations is tolled until harm has or could have been, with reasonable diligence, discovered, for example, Doe v. Roe (1998). Because it is very difficult to verify when memory of alleged abuse was “recovered” and to determine when an individual in the process of “recovering” memories should be considered on notice for harm she has allegedly suffered, there is widespread disagreement about application of the discovery exception to “recovered memory”.

Lawsuits against therapists Courts generally do not permit suits against therapists by third parties on the grounds that a therapist owes no duty of care to such individuals. A duty of care to third parties – for example, a patient’s parents – potentially arises, however, when harm to third parties is foreseeable and the burden of protecting third parties against false accusations is determined to outweigh society’s interest in detecting, treating and/or reporting child abuse (e.g., Treer v. Sills 1999). Courts also must balance concern regarding harm to third parties with protection of the psychiatrist–patient privilege (e.g., Doe v. McKay 1998). The case brought by Gary Ramona against his daughter’s treaters (Ramona v. Ramona 1994) illustrates how a therapist’s actions might produce liability. In consultation with her therapist, Holly Ramona underwent a sodium amytal interview. This procedure generated material which, in the context of ongoing therapy, led her to believe she had been sexually abused by her father. Subsequently, in a meeting facilitated by her therapist, she confronted her father regarding the abuse she recalled. After he was accused, Mr. Ramona lost his job and marriage, and sued his daughter’s therapists, claiming that he suffered harm as a result of negligent treatment. The court which heard this matter determined that therapists owe a duty to third parties to whom they direct their interventions and ruled that he could proceed with his suit (Appelbaum 2001). This case signals the peril of utilizing certain potentially suggestive treatment tools, for example, amytal interviews, to determine the ‘truth’ regarding historical events, and of relying upon such ‘truth’ when actively involving a third party in a patient’s treatment.

Other courts also have permitted parents to pursue actions against therapists for allegedly having induced their patients to ‘falsely’ recall incidents of abuse. In Montoya v. Bebensee (1998), although the therapist ultimately avoided liability on immunity grounds, the court held that a duty was owed to a father accused of abuse by a therapist when she reported the child’s abuse claim to county officials, urged the child’s mother to restrict visitation by the father, and testified for the mother at a hearing on visitation rights. In Hungerford v. Jones (1998), the therapist used ‘imagery’ or ‘visualization’ as a technique that led the patient to recall experiences of childhood sexual abuse. After these memories surfaced, the therapist directed the patient to cease all contact with her father and to file a criminal complaint against him. The court found that the therapist owed a duty to the father when the therapist took public action and encouraged his patient based on ‘false’ accusations of sex abuse. One court has suggested that there may be a duty to third parties to investigate the ‘truth’ of patients’ claims of abuse. In Caryl S. v. Child and Adolescent Treatment Services (1994, 1997) the Court held: [A] determination must initially be made by the professional that sexual abuse has in fact occurred and this determination is made not only about the child but about the suspected abuser. When, based upon that determination, a course of action is thereafter embarked upon by the professional, it is intended to and necessarily does, affect both the child and his or her abuser, especially where a family relationship is involved. A suspected abuser surely has the right to a reasonable expectation that such a determination, touching him or her as profoundly as it will, will be carefully made and will not be reached in a negligent manner.

Some courts appreciate the difficulty to therapists of potentially having duties to both alleged abused and alleged abuser. In Treer, the court observed: The issue presented by a claim of a duty to the potential ‘third party’ abuser is to what degree therapists necessarily become insurers of the truth of any diagnosis of childhood sexual abuse by a parent. We say ‘insurers’ because a moment’s reflection will demonstrate the perilous position in which any such duty would put the therapist. The therapist risks utter professional failure in his or her duty to the patient if possible childhood sexual abuse is ignored. On the other hand, if the heinous crime of (recently discovered) childhood sexual abuse really is the cause of the patient’s disorders, then it is virtually inevitable that the alleged abuser will suffer ‘harm’.

Under malpractice law, recovery is barred unless a patient can demonstrate that an injury directly resulted from a negligent act. Applying this principle to therapists accused of creating ‘false memories,’ one commentator

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has argued that ‘to meet this burden of proof, the medical record must clearly show a repetitive and sustained scheme of indoctrination coupled with a personality trait making the patient susceptible to this social influence.’ (Scheflin and Brown 1999). Courts, however, have focused on whether a duty is owed and/or the foreseeability of harm to alleged abusers, and have tended to find therapists liable without much discussion of how treatment was negligent. In Hungerford v. Jones (1998) the court seemingly found the use of certain techniques to be negligence per se. It wrote: The duty of care to the accused parent is breached by the therapist when the publicized misdiagnosis results from (1) the use of psychological phenomena or techniques not generally accepted in the mental health community, or (2) lack of professional qualifications.

In March 2000, the American Psychiatric Association issued a new position statement on memories of childhood physical and sexual abuse, making four recommendations to therapists: Regardless of issues of childhood abuse, all patients should receive a complete psychiatric evaluation. Psychiatrists should maintain an empathetic, nonjudgmental, neutral stance toward reported memories of sexual abuse. As in the treatment of all patients, care must be taken to avoid prejudging the cause of the patient’s difficulties or the veracity of the patient’s reports. A strong prior belief that physical or sexual abuse or other factors are or are not the cause of the patient’s problems is likely to interfere with appropriate assessment and treatment. When no corroborating evidence is available to confirm or refute reports of new memories of childhood abuse, treatment may focus on assisting patients in coming to their own conclusions about the accuracy of their memories or in adapting to uncertainty regarding what actually occurred. The therapeutic goal is to help patients understand the impact of the memories/abuse experiences on their lives and to reduce the impact of these experiences. When asked to provide expert opinion involving memories of abuse, psychiatrists should refrain from making public statements about the historical accuracy of individual patients’ reports of new memories based on observations made in psychotherapy. Further research and education regarding memory and childhood abuse are required to enhance psychiatrists’ ability, on the basis of empirical evidence, to assist patients struggling with these profoundly difficult issues.

Therapist immunity Some states provide immunity to psychiatrists and psychologists who perform certain services, including

advocating, fact finding, and testifying, that are integral to a judicial proceeding (Tyner v. State Department of Social and Health Services 1998). Immunity, however, does not generally extend to provision of therapy. A court order directing that therapy be rendered is not generally enough to create immunity for acts engaged in during it.

CONCLUSION The prevalence of traumatic life events, changing attitudes and rules regarding the workplace, legal utility of PTSD, and difficulty sometimes verifying posttraumatic stress symptoms fuel large numbers of claims alleging the presence of PTSD. To conclude that a plaintiff suffers from PTSD, it is necessary to define the initiating stressor, perform a thorough trauma history, and exclude other diagnoses which may more accurately reflect the plaintiff ’s mental state. To fully understand a plaintiff ’s mental state, it is also necessary to consider the influence of the litigation process upon it.

REFERENCES American Psychiatric Association. 1980: Diagnostic and Statistical Manual of Mental Disorders. 3rd edition. Washington, DC. American Psychiatric Association. 1994: Diagnostic and Statistical Manual of Mental Disorders. 4th edition. Washington, DC. American with Disabilities Act, 42 USC § 12102(2). Appelbaum, P. 2001. Third party suits against therapists in recovered memory cases. Psychiatric Services 52, 27–8. Binder, R.L., Trimble, M.R., McNeil, D. 1991a. The course of psychological symptoms after resolution of lawsuits. American Journal of Psychiatry 148, 1073–5. Binder, R.L., Trimble, M.R., McNeil, D. 1991b. Is money a cure? Follow up of litigants in England. Bulletin of the American Academy of Psychiatry and the Law 19, 151–67. Blake D., Weathers, F.W., Nagy, D., et al. 1990. A clinician rating scale for current and lifetime PTSD. Behavior Therapist 13, 187–8. Blake, D, Weathers, F.W., Nagy, L.M., et al. 1995. The development of a clinician-administered PTSD scale. Journal of Traumatic Stress 8, 75–90. Blanchard, E.B., Hickling E.J., Taylor, A.E., et al. 1995. Effects of varying scoring rules of the ClinicianAdministered PTSD Scale (CAPS) for the diagnosis of post-traumatic stress disorder in motor vehicle accident victims. Behavior Research and Therapy 33, 471–5. Breslau, N., Davis, G.C. 1992. Post traumatic stress disorder in an urban population of young adults: risk factors for chronicity. American Journal of Psychiatry 149, 671–5.

Trauma-induced psychiatric disorders and civil law 299 Breslau, N., Kessler, R.C., Chilcoat, H.D., et al. 1998. Trauma and post traumatic stress disorder in the community: The 1996 Detroit Area Survey of Trauma. American Journal of Psychiatry 55, 626–32. Bresnahan v. McAuliffe, 47 Mass. App. Ct. 278, 285, 712 N.E.2d 1173 (1999). Brooks v. City of San Mateo, 214 F.3d 1082, 1090-1 (9th Cir. 2000). Brown, J.T. 1996. Avoiding litigation neurosis: a practitioner’s guide to defending post traumatic stress disorder claims. American Journal of Trial Advocacy 20, 129–68. Butcher, J.N., Dahistron, W.G., Graham, J.R., et al. 1989: Minnesota Multiphasic Personality Inventory-2 (MMPI-2): Manual for Administration and Scoring. Minneapolis, Minnesota: University of Minnesota Press. Caryl S. v. Child and Adolescent Treatment Services, 614 N.Y.S. 2d 563 (Sup. Ct. N.Y. 1994), aff’d 238 A.D.2d 953 661 N.Y.S. 2d 167 (1997). Cleburne v. Cleburne Living Center, 473 U.S. 432 (1986). Courtois, C.A., 1999: Recollections of Child Abuse. New York: W.W. Norton & Co. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592–3 (1993). Doe v. McKay, 183 III.2d 272, 278 (1998). Doe v. Roe, 191 Ariz. 313, 955 P.2d 951 (Sup. Ct. Az. 1998). EEOC Guidance on Psychiatric Disabilities, 8 FEP Manual (BNA) 405:7462 (1997). Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991). Fields v. St. Bernard Parish School Board, 2000 WL 1560012 (E.D. Louisiana). Fontana, A., Rosenheck, R. 1998. Effects of compensationseeking on treatment outcomes among veterans with post traumatic stress disorder. Journal of Nervous and Mental Disease 186, 223–30. Frankel, F.H. 1990. Hypnotizability and dissociation. American Journal of Psychiatry 147, 823–9. Freedman, S.A., Brandes, D., Peri, T., Shalev, A.Y. 1999. Predictors of chronic post traumatic stress disorder: a prospective study. British Journal of Psychiatry 174, 353–9. Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). Grace v. Colorito, 4 S.W.3d 765 (Ct. App. Tx. 1999). Green, B.L., Goodman, L.A., Krupnick, J.L., et al. 2000. Outcomes of single versus multiple trauma exposure in a screening sample. Journal of Traumatic Stress 13, 271–85. Gurvits, T.G., Gilberson, M.W., Lasko, N.B., et al. 2000. Neurologic soft signs in chronic post traumatic stress disorder. Archives of General Psychiatry 57, 181–6. Hamilton v. Southwestern Bell Telephone Company, 136 F.3d 1047 (5th Cir. 1998). Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). Hartmann, E. 1984: The Nightmare: The Psychology and Biology of Terrifying Dreams. New York: Basic Books. Hetreed v. Allstate Insurance Company, 1999 WL 311728 (N.D. III.), aff’d F.3d, 2001 WL 427785 (7th Cir. III.) April 12, 2001.

Horowitz, M. 1986. Stress response syndromes: post traumatic and adjustment disorders. Hospital and Community Psychiatry 37, 241–51. Horowitz, M.J., Wilner, N., Alvarez, W. 1979. Impact of event scale: a measure of subjective stress. Psychosomatic Medicine 41, 209–18. Hungerford v. Jones, 722 A.2d 478 (N.H. Sup. Ct. 1998). Kardiner, A. 1941: The Traumatic Neuroses of War. New York: Harper and Row Publishers, Inc. Kelly, R. 1975. The post traumatic syndrome: an iatrogenic disease. Forensic Science 6, 17–24. Kelly, R. 1981a. The post traumatic syndrome. Journal of the Royal Society of Medicine 74, 242–5. Kelly, R. 1981b. Post traumatic syndrome: another myth discredited. Journal of the Royal Society of Medicine 74, 275–7. King, D.W., King, L.A., Keane, T.M., et al. 1999. Post traumatic stress disorder in a national sample of female and male Vietnam veterans: risk factors, war-zone stressors and resilience-recovery variables. Journal of Abnormal Psychology 108, 164–70. Koopman, C., Classen, C., Spiegel, D. 1994. Predictors of post traumatic stress symptoms among survivors of the Oakland/Berkeley, Calif., firestorm. American Journal of Psychiatry 751, 888–94. Kramer, M., Schoen, L.S., Kenney, L. 1984: The dream experience in dream-disturbed Vietnam veterans. In van der Kolk, B. (ed.), Post Traumatic Stress Disorder: Psychological and Biological Sequelae. Washington, DC: American Psychiatric Press. Lating, J., Zeichner, A., Keane, T. 1995: Psychological assessment of PTSD. In Everly, G.S., Jr., Lating, J.M. (eds), Psychotraumatology. New York: Plenum Press, 103–27. Lees-Haley, P.R. 1986. Pseudo-posttraumatic stress disorder. Trial Diplomacy 9, 17–20. Logerquist v. McVey, 1 P.3d 113 (Sup. Ct. Ariz 2000). McKinnon v. Kwong Wah Restaurant, 83 F.3d 489, 506 (1st Cir. 1996). Mendelson, G. 1995. ‘Compensation neurosis’ revisited: outcome studies of the effects of litigation. Journal of Psychosomatic Research 39, 695–706. Miller, H. 1961a. Accident neurosis, Lecture I. British Medical Journal 5230, 919–25. Miller, H. 1961b. Accident neurosis, Lecture II. British Medical Journal 5231, 992–8. Millon, T., Davis, R., Millon, C. 1994: Millon Clinical Multiaxial Inventory-III (MCMI-III) 2nd edition. Minnetonka, Minnesota: National Computer Systems Assessments. Modlin, H.C. 1986. Compensation neurosis. Bulletin of the American Academy of Psychiatry and the Law 14, 263–70. Montoya v. Bebensee, 761 P.2d 285, 288 (Colo. Ct. App. 1988). Moriarty v. Garden Sanctuary Church of God, 334 S.C. 150, 511 S.E.2d 699, 705 (1999).

300 Civil law Oncale v. Sundowner Offshore Services, Inc., 118 Sup. Ct. 998, 1002–3 (1998). Orr, S.P., Pitman, R.K. 1991. Psychophysiologic responses to trauma related imagery: classification of post traumatic stress disorder across different subject populations. Paper read at the annual meeting of the International Society for Traumatic Stress Studies, October 5, 1991, Washington, DC. Orr, S.P., Pitman, R.K. 1993. Psychophysiologic assessment of veterans attempting to simulate post-traumatic stress disorder during personal combat imagery. Biological Psychiatry 33, 127–9. Orr, S.P., Pitman, R.K., Herz, L.R., et al. 1993. Psychophysiology of PTSD in Korean and World War II veterans. Journal of Abnormal Psychology 102, 152–9. Perconte, S., Goreczny, A. 1990. Failure to detect fabricated post traumatic stress disorder with the use of the MMPI in a clinical population. American Journal of Psychiatry 147, 1057–60. Pitman, R.K., Orr, S.P., Forgue, D.F., et al. 1987. Psychophysiology of PTSD imagery in Vietnam combat veterans. Archives of General Psychiatry 44, 970–5. Ramona v. Ramona, Super. Ct. Napa County No. 61898 (1994). Ravitch, F.S., 1995. Hostile work environment and the objective reasonableness conundrum: deriving a workable framework from tort law for addressing knowing harassment of hypersensitive employees. 36 Boston College Law Review, 257. Resick, F., Churchill, M., Schnicke, M.K., Olevilch, B. 1991. Behavioral correlates of PTSD: a pilot study. Poster presentation, annual meeting of the International Society for Traumatic Stress Studies, October 1991, Washington, DC. Resnick, H.S., Yehuda, R., Pitman, R.K., Foy, D.W. 1995. Effect of previous trauma on acute plasma cortisol level following rape. American Journal of Psychiatry 153, 1675–7. Rogers v. International Marine Terminals, 87 F.3d 755, 759 (5th Cir. 1996). Roling v. Daily, 596 N.W.2d 72, 27 (Sup. Ct. Iowa 1999). Saigh, P.A., Bremner, J.D. (eds). 1999: Post Traumatic Stress Disorder: A Comprehensive Text. Boston: Allyn and Bacon. Scheflin, A.W., Brown, D. 1999. The false litigant syndrome: “Nobody would say that unless it was the truth.” Journal of Psychiatry and Law 27, 649–705. Shalev, A.Y., Orr, S.P., Pitman, R.K. 1993. Psychophysiologic assessment of traumatic imagery in Israeli civilian post-traumatic stress disorder patients. American Journal of Psychiatry 150, 620–4. Shalev, A.Y., Peri, T., Canetti, L., Schreiber, S. 1996. Predictors of PTSD in injured trauma survivors: a

prospective study. American Journal of Psychiatry 153, 219–25. Simon, R.I. 1999. Chronic post traumatic stress disorder: a review and checklist of factors influencing prognosis. Harvard Review of Psychiatry 6, 304–12. Slovenko, R. 1973: Psychiatry and Law. Boston: Little, Brown. Smith, D., Freuh, B. 1996. Compensation seeking, comorbidity, and apparent exaggeration of PTSD symptoms among Vietnam combat veterans. Psychological Assessment 8, 3–6. Solomon, S.D., Davidson, J. 1997. Trauma: prevalence, impairment, service use, and cost. Journal of Clinical Psychiatry 98, 5–11. Sprehe, D.J. 1984. Worker’s compensation, a psychiatric follow up study. International Journal of Law and Psychiatry 7, 165–78. State v. Quattrocchi, 1999 WL 284822 (R.I. Super) aff’d upon motion for reconsideration and clarification, 2001 WL 100378 (R.I. Super). Sullivan v. Boston Gas Company, 605 N.E. 2d 805 (Mass. 1993). Sutton v. United Airlines, 527 U.S. 471 (1999). Symmonds, M. 1982. The “second injury” to victims. Evaluation and Change, special issue, 36–8. Tarsh, M., Royston, C. 1985. A follow-up study of accident neuroses. British Journal of Psychiatry 146, 18–25. Treer v. Sills 82 Cal. App 4th at 288 (1999). Tyner v. State Department of Social and Health Services, 963 P.2d 215, 224 (Wash. Ct. App. 1998) rev’d 1 P.3d 1146 (Wash. 2000). University of Alabama at Birmingham v. Garrett, 531 U.S. 356 (2001). van der Kolk, B., Blitz, R., Burr, W., et al. 1984. Nightmares and trauma: a comparison of nightmares after combat with life long nightmares in veterans. American Journal of Psychiatry 141, 187–90. Weiner, R.L., Watts, B.A., Goldkamp, K.H., Caspar, C. 1995. Social analytic investigation of hostile work environments: a test of the Reasonable Woman Standard. Law and Human Behavior 19(3), 246. West, L. 1967: Dissociative reactions. In Freedman, A.M., Kaplan, H.I. (eds), Comprehensive Textbook of Psychiatry. Baltimore, Maryland: Williams & Wilkins, 885–98. Wilson, J., Zigelbaum, S. 1983. The Vietnam veteran on trial: the relation of traumatic stress disorder to criminal behavior. Behavioral Sciences and the Law 1, 69–83. Yates, J.L., Nasby, W. 1993. Dissociation, affect, and network models of memories: an integrative proposal. Journal of Traumatic Stress 6, 305–26.

33 Neuropsychiatric assessments in toxic exposure litigation DANIEL A. MARTELL

This chapter provides a synopsis of the issues arising in the forensic assessment of neurotoxicity. The perspective provided here is by necessity an overview due to the extensive literature available on the topic of neurotoxicity, the sheer volume of which far exceeds the scope of this chapter. However, the forensic psychiatric evaluation of issues arising from neurotoxic exposure has received relatively little attention in the literature. This chapter is intended to guide the reader who is confronting this issue to relevant resources and materials, and to facilitate a broad understanding of its forensic contours. The topics that will be addressed include the scope of the problem, an introduction to the scientific reference literature, a review of the forensic contexts in which neurotoxicity claims arise, and an interdisciplinary model for forensic psychiatric evaluation in neurotoxin exposure cases.

neuropharmacological and neurodegenerative processes, including: (i) anoxia; (ii) synaptic damage; (iii) cellular damage; and (iv) neurochemical damage. Because various substances affect the body in different ways, there is no single generally accepted hypothesis for the mechanism of action of neurotoxic agents. The link between initial exposure and ultimate psychiatric and behavioral outcomes depends on a complex chain of variables. These include the dose response relationship to the level of exposure, the developmental status of the individual’s nervous system, the vulnerability of different cell types to exogenous influence, and exigencies of the complex network of cerebral interconnections underlying mental processes within the brain that are not fully understood. Damage may occur as a direct result of toxic insult to specific neurons, or as the indirect result of damage to other organ systems that in turn produces lesions within the nervous system (Silbergeld 1990; Hartman 1995).

WHAT IS NEUROTOXICITY? Broadly, neurotoxicity refers to a temporary or permanent change in the function of the nervous system caused by the deleterious effects of neurotoxic agents, either singly or in combination. Of greatest concern to forensic psychiatry are the cognitive, behavioral, and psychopathological outcomes of such exposures as they arise in the law. The notion that substances can have poisonous or toxic effects on the human nervous system dates back over 450 years. Hartman (1995) notes Anglicus Bartholomaeus’ colorful description in 1535 of the neurotoxic effects of mercury: ‘The smoke thereof is most grevous to men that ben therby. For it bredeth the palsey, and quaking, shakynge, neshynge [softening] of the synewes.’ A thorough understanding of human neurotoxic poisoning requires an integration of the toxicological, neurological, and general medical literature. However, the primary causes of damage to the central and peripheral nervous systems can be summarized to encompass both

EXTENT OF THE PROBLEM The Environmental Protection Agency’s register lists more than 65 000 toxic chemicals in use in the United States (Neurotoxicity 1990). People are exposed to these substances in products ranging from pesticides to drugs, food additives, cosmetics, and industrial chemicals. Anger and Johnson (1985) cite 850 toxic chemicals that are known to cause neurobehavioral disorders (see also Chemical Regulation Reporter 1986). Regulatory agencies such as the Occupational Safety and Health Administration (OSHA) and the Environmental Protection Agency have attempted to promulgate standards for ‘safe’ exposure levels in the workplace (for example the NIOSH Pocket Guide 1985), yet only a fraction of potential neurotoxicants have been studied or are well understood. Anger (1990) notes that the National Institute for Occupational Safety and Health (NIOSH) lists 36 chemical agents with known nervous

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system effects at low concentrations. OSHA sets standards for only 588 chemicals, of which only 167 have been regulated for their neurotoxic effects (Hartman 1985).

been described (Perna, Bordini, and Deinzer-Lifrak 2001), and Hartman (1995) reviews the literature on over two dozen other additional neurotoxic substances, ranging from hyperbaric nitrogen to jet fuels.

SOME SPECIFIC TOXIC AGENTS Due to the sheer volume of neurotoxic substances, any summary here is by necessity cursory. However, there are some major categories of substances that are commonly encountered and bear mention as likely candidates in forensic cases. 1 Pesticides: these include organophosphates, chlorinated hydrocarbons (DDT), and chlorinated cyclodienes (‘Agent Orange’). Exposure is common among several groups, including agricultural workers and Vietnam era veterans, and accidental exposure has been reported from misuse of home pesticides, contaminated drinking water, and unwashed contaminated fruits and vegetables. 2 Solvents: exposure to solvents such as toluene, styrene, and acetone is common among workers who may be accidentally or involuntarily exposed at work (World Health Organization 1985; National Institute for Occupational Safety and Health 1987). Still other individuals are known to abuse solvents by sniffing or ‘huffing’ their concentrated vapors for the intendant intoxication they can produce. However, the risk associated with chronic low-level exposure to solvents remains equivocal (Klinken and Arlien-Soborg 1993; Williams and Lees-Haley 1996). 3 Metals: these represent a third major area of interest in neurotoxicology. No single metal has received more attention in this area than lead (Dyer 1998), particularly involving children. Old paint is notoriously dangerous in this regard, with over one-half of the homes in America believed to be contaminated beyond safe levels (United States Department of Health and Human Services 1988). Other metals including mercury (Risher et al. 1999), iron, copper, gold, aluminum, antimony, and arsenic are also relevant here. The route of exposure in adults is most commonly inhalation in the workplace. 4 Gases: many gases such as carbon monoxide, butane, propane, and ozone have well-described neurotoxic effects. Exposure is often attributed to faulty heaters and leaking from storage tanks and chemical plants, such as the tragedy in Bhopal, India in 1984. Intentional inhalation of some gases (e.g., nitrous oxide) is also common as a means of getting ‘high,’ and inhalation of carbon monoxide is well known as a method of attempting suicide. 5 Other neurotoxic substances: finally, there are several additional neurotoxic substances that do not fall neatly into the categories above. For example, impairment from chronic exposure to formaldehyde has recently

NEUROPSYCHIATRIC EFFECTS OF TOXIC EXPOSURE There are several major textbooks that address the neurological and neurobehavioral sequelae of neurotoxic exposure in fine detail. The interested reader is encouraged to consult excellent texts on behavioral toxicology (Wiess 1992), neuropsychological toxicology (Hartman 1995), and neurological neurotoxicology (Bleeker and Hansen 1994). A wide range of impairments arising from neurotoxic exposure has been described, many of which overlap significantly with or mimic more etiologically routine psychiatric disorders. While some nervous system poisons have fairly distinct neuropsychiatric signatures, others remain ill-defined. All that having been said, one can conceptualize neurotoxic pathology along several fundamental dimensions. The first are neurological impairments, including headaches, seizures, encephalopathies (acute and chronic), ataxia, extrapyramidal movement disorders and tremor, myelopathies, cranial neuropathies, optic neuropathies, peripheral neuropathies, and muscle weakness other than neuropathy (Valciukas 1991, as cited by Singer 1994). Some researchers have described a pattern of irreversible neurobehavioral deficits labeled ‘chronic toxic encephalopathy’ resulting from prolonged exposure to organic solvents (Baker 1994), although others dispute the voracity of this finding (Lees-Haley and Williams 1996). Second are major psychiatric impairments, most commonly including symptoms of affective disorders (depression, bipolar disorder), psychosis (hallucinations and delusions), and organic brain disorder. For example, organic delusional disorders are commonly seen in toxicmetabolic processes (Cummings 1985), and generally fall into one of four types: (i) simple persecutory delusions; (ii) complex persecutory delusions; (iii) grandiose delusions; and (iv) those associated with specific neurological defects. A so-called ‘organic affective syndrome’ has been associated with chronic solvent exposure, characterized by fatigue, irritability, depression, anxiety, and apathy (Baker and Fine 1986). Personality and behavioral changes have also been described, including irritability, social withdrawal, and amotivation, sleep disturbances, chronic fatigue, and sexual dysfunction (Singer 1990). Finally, perhaps the greatest body of empirical literature relates to symptoms of dementia and related neuropsychological impairment. Cognitive dysfunction including memory impairment, psychomotor retardation, pure motor

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and visuomotor impairments, as well as impaired arousal, vigilance, attention, concentration, motor speed, and coordination are all common. Impairment is also seen in cognitive efficiency and flexibility; lowered IQ, hyperactivity and retardation in children; and fine motor control (Hartman, Hessl, and Tarcher 1992). It should be noted however, that some of the literature on the effects of exposure to toxic agents, particularly exposure to low doses, is equivocal with self-reports vulnerable to functional and psychosomatic complaints (Dunn et al. 1995; Lees-Haley and Brown 1992; LeesHaley and Williams 1996; Williams and Lees-Haley 1996).

Hartman (1995) divides the psychological explanations for MCS into five areas:

EMERGING RELATED ISSUES

Some patients develop irrational fears of chemicals (chemophobia) or fears that chemicals in their environment will cause them to develop cancer (cancerphobia), both of which can be debilitating psychiatric conditions with forensic ramifications. Yet another controversial new topic is sick building syndrome. This is characterized by several non-specific somatic and psychological complaints, including irritated eyes, nose and/or throat, dermatological reactions, fatigue, headache, and nausea, and can be differentiated from known building-related medical illnesses related to poor indoor air quality, for example legionellosis, asthma, or humidifier mold spore reactions (Welch 1991; Hartman 1995). Similar to MCS, sick building syndrome may reflect some unique admixture of biopsychosocial risk factors in certain vulnerable individuals.

Under this heading are a number of phenomena, including multiple chemical sensitivity, cancerphobia, chemophobia, and sick building syndrome. These conditions, while bearing some putative connection to environmental toxicology, appear to have roots in functional psychopathology and psychosomatics. Multiple chemical sensitivity (MCS) is a fairly controversial topic in this area, with battle lines drawn over whether it is an organic or functional (psychological) disorder. Simon (1998) addresses the forensic psychiatric evaluation of MCS in the greatest detail to date. It was originally described by Cullen (1987) as a disorder characterized by recurrent symptoms affecting multiple organ systems that come and go predictably in reaction to exposure to several unrelated chemical compounds in ultralow doses, with levels significantly below those known to cause harm or symptoms in others. No single test is known that can explain the symptoms. Most patients presenting with MCS have been described as well-educated white females of above average socioeconomic status (Black, Rathe, and Goldstein 1990). They appear to be patients with a profound aversion to psychiatry and extensive medical histories with unsatisfactory outcomes (Gots et al. 1993), who are also highly litigious in seeking workers’ compensation and social security disability payments (Hartman 1995). Gots (1995) argues that this is a highly subjective and psychosomatic disorder – a position supported by research conducted by Witorsch et al. (1995), who found MCS to be best characterized as a manifestation of any one of several psychiatric disorders that involve somatization as the primary psychopathologic mechanism. Still others have attempted to explain MCS as a deficit in immune regulation (Terr 1989). Lees-Haley and Brown (1992) note that reactions to chemical exposures can be colored by multiple factors, including stories in the media, hysterical and hypochondriachal reactions, prior beliefs, influential others, and the forensic context itself, all of which affect their self-reports.

1 Hysterical or somatoform disorders. 2 Posttraumatic stress disorder arising from a threatening near-poisoning experience. 3 Conditioning and generalization of autonomic and/ or neurotoxic abnormalities. 4 An iatrogenic condition arising from new-age ‘treatments’ by clinical ecologists and holistic heath practitioners. 5 Patients who represent a mixed group of psychiatric disorders whose only commonality is a shared belief that they have an environmental illness because someone in the medical community told them so.

FORENSIC ISSUES ARISING FROM NEUROTOXIN EXPOSURE Neurotoxic exposure cases are most likely to present themselves in forensic psychiatric practice in three areas: civil litigation; criminal litigation; and administrative litigation. In civil litigation, such cases have earned the moniker ‘toxic torts,’ reflecting just how common such cases have become in the contemporary legal lexicon (Lees-Haley 1993; Hartman 1999). In toxic tort litigation, like any other tort action, three classic factors must be established:

• • •

that a duty existed between the parties; that the duty was breached due to the negligence of the defendant; and that the damages suffered by the plaintiff arose as a proximate cause of the negligent breach of that duty.

Legal issues in these cases include establishing general causation (i.e., can substance X cause symptom Y), establishing legal liability (i.e., is defendant responsible for exposing the plaintiff to the toxin), and establishing the

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extent of damages to the plaintiff (compensatory and punitive). Forensic psychiatric evaluation is most often sought on issues of causation and the damages to be awarded given the disability incurred. Examples include product liability cases involving adverse reactions from drugs such as thalidomide or benedictin (morning sickness) (Brannigan, Bier, and Berg 1992), wrongful exposure to toxins in the workplace, and ‘mass tort’ cases (injuries caused by a single product or agent or event affecting a large population) involving substances such as lead paint, asbestos, ‘Agent Orange,’ or catastrophic leaks from chemical plants as in Bhopal, India (Gerson 1990). Fetal exposure is also an increasingly relevant issue here (Karrh et al. 1981; Morris and Sonderegger 1986). For example, the liability of an employer for a mother’s or father’s exposure to a neurotoxic substance in the workplace that may have contributed to birth defects or subsequent impairments in their offspring. The second major arena in which neurotoxin exposure becomes an issue for forensic psychiatry is in criminal litigation. Here, neurotoxic impairment forms the basis for a wide range of legal issues including competency to stand trial, diminished capacities or diminished actualities in the capacity to form criminal intent, and the insanity defense. For example, Lemmen, Holden, and Benedek (1996) report on a case of Prozac intoxication leading to murder. In another case, uranium neurotoxicity was linked to murder (Lucas 1989). Carbon monoxide poisoning has also been raised as defense to homicide. A final area where forensic psychiatric expertise in neurotoxic exposure might be sought is workers’ compensation and/or disability determination cases involving administrative courts and disability insurance litigation. Lees-Haley and colleagues have addressed a range of forensic issues from establishing guidelines for judging the quality of forensic evaluations of personal injury claimants in toxic tort litigation (Lees-Haley 1997a), to addressing the manipulation of plaintiffs by nefarious attorneys in mass tort litigation (Lees-Haley 1997b), to establishing base rates of various neurotoxic complaints among personal injury claimants (Lees-Haley 1992; Dunn et al. 1995).

FORENSIC PSYCHIATRIC EVALUATION OF NEUROTOXIC COMPLAINTS Forensic evaluations in this area can be extremely challenging and are often quite difficult. An interdisciplinary approach is often beneficial, as consultation with other professionals almost always bears fruit in reaching one’s own opinions. Forensic psychiatry, forensic neurotoxicology, and forensic neuropsychology each provide important contributions to the evaluation of these cases.

The second edition of the Federal Judicial Center’s Reference Manual on Scientific Evidence (2000) provides very useful guidelines for conceptualizing a legally relevant forensic evaluation. The first step is to establish that the substance in question is a known neurotoxin. Given the plethora of substances that might come to be at issue this will often involve some research, and consultation with a neurotoxicologist is often helpful, if not crucial. The second step is to establish that there was indeed exposure, and if so, that the individual was exposed to the substance in a manner that can lead to absorption into the body. The third step is to establish that the level of exposure was adequate to cause impairment at all. Here again, consultation with a neurotoxicologist would be a primary source of information. In some cases, it may be possible to re-create the conditions of the exposure, and take samples for quantitative analysis. These data can then be compared with the research literature to establish whether the exposure falls below the ‘no observable effect level’ (NOEL), or above a threshold level at which the individual is at risk for toxic effects (Goldstein and Henifin 2000). Toxicologists, epidemiologists, and risk assessors estimate risk of exposure/extent of exposure. However, this evidence is often open to Daubert and Kumho admissibility challenges, given the state of the science (Daubert v. Merrell Dow Pharmaceuticals, Inc. 1993; Kumho Tire Company v. Carmichael 1999; Rodricks and Rieth 1998). Fundamental differences between the criteria of causation in the courts and in science pose significant problems, with the law being deductive and science being probabilistic (Brennan 1987). Methodologies employed to arrive at valid scientific standards for regulatory and public health purposes are often different from those used in the courtroom, and inadequate for that purpose. However, no well-described alternative methodology is currently available. Muscat and Huncharek (1989) propose an epidemiological evidentiary standard. Brannigan, Bier, and Berg (1992) provide a statistical/probabilistic model for establishing proof of injury based on level of exposure. Henderson (1990) offers a definition and explanation of liability with a focus on how expert witnesses should utilize applicable medical and scientific data in order to provide opinions regarding a causal relation between exposure to a toxic substance and disease in an individual case. However, having established a reasonable foundation for believing that a legally relevant toxic exposure has occurred, it is then important to consider the content of the forensic psychiatric examination. The first purpose of the examination is to establish evidence of the presence or absence of impairment, and its consistency with the expected sequelae of the neurotoxic exposure. Do the signs and symptoms obtained comport with the known toxicological effects of the poison? Are the complaints specific, or non-specific? The second purpose of the examination is disability determination (Kennedy 1997). In preparation

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for such an examination, it is critical to understand the expected relationship between a given level of exposure and subsequent neuropsychiatric disease. One needs to be armed with such information in order to know what to look for in the history and clinical presentation of the person alleging the exposure. Exposure, which may be to multiple agents, can have a range of effects (both systemic and progressive) that are quite difficult to tease apart from pre-existing conditions. Also, there is such vast range of potentially hazardous substances that patterns of neuropsychiatric sequelae may not be known for many of them (Wasyliw and Golden 1985). Although animal studies may exist, extrapolation to humans is often difficult. Certain agents or environments may lead to physical disorders such as chronic obstructive pulmonary disease (COPD), which in turn have neurobehavioral implications. During the examination, it is critical to rule out a number of confounding factors that could account for the individual’s clinical presentation and complaints, before reaching the opinion that exposure to the toxic substance is to blame. A very thorough history must be obtained to establish the individual’s level of premorbid functioning. It is obviously crucial to differentiate outcome effects related to toxic exposure from pre-existing conditions. Does the temporal relationship between the exposure and the onset of symptoms support or refute causation? Hartman (1995) cautions that job selection factors may result in workers with innate (low functioning) deficits, rather than recent, exposure-related deficits. Ironically, workers with poor premorbid education and intellectual functioning are often the workers who suffer the most severe neurotoxic exposure due to the types of jobs they are able to obtain. In any forensic context, the issue of malingering must also be addressed. The possibility of symptom exaggeration or fabrication for secondary gain through litigation must be evaluated and ruled out. Finally, possible differential diagnoses should be addressed such as psychosomatic disorders that must be considered and ruled out. Adjunct medical and neurodiagnostic testing, including blood tests, electroencephalography (EEG), magnetic resonance imaging (MRI), computed axial tomography (CAT), or positron emission tomography (PET) may be indicated. However, quite often there will be a lack of corroborating medical evidence from blood tests or brain scans due to the fact that neurotoxic exposure often results in medically subclinical impairments or findings (Singer 1994; Hartman 1995). Nonetheless, there are often significant deficits that are observable neuropsychologically. Hence, consultation with a forensic neuropsychologist is advisable in almost every case. The neuropsychological evaluation of neurotoxicity is discussed most thoroughly in the landmark textbook by Hartman (1995), and has also been addressed at various levels by Kurlychek (1987), Leestma (1991), Valciukas (1995) and Wasyliw and Golden (1985).

CONCLUSIONS Evaluations of neurotoxicity present some of the most challenging cases in forensic practice. They demand a high level of preparation, interdisciplinary collaboration, and clinical expertise in order to arrive at opinions that will be both credible and probative in court. At the same time, it is important to recognize and acknowledge the limitations of current scientific knowledge in this area. Ultimately, forensic psychiatric opinions regarding neurotoxic claims will rise or fall on the quality of the research conducted and the care taken in the examination process.

REFERENCES Anger, W.K. 1990: Human neurobehavioral toxicology testing. In Russell, R.W, et al. (eds), Behavioral Measures of Neurotoxicity: Report of a Symposium. Washington, DC: National Academy Press, 69–85. Anger, W.K., Johnson, B. 1985: Chemicals affecting behavior. In O’Donohue J. (ed.), Neurotoxicity of Industrial and Commercial Chemicals. Volume 1. Boca Raton, FL: CRC Press. Baker, E.L. 1994. A review of recent research on health effects of human occupational exposure to organic solvents: a critical review. Journal of Occupational Medicine 36, 1079–92. Baker, E.L., Fine, L.J. 1986. Solvent neurotoxicity: the current evidence. Journal of Occupational Medicine 28, 987–90. Black, D.W., Rathe, A., Goldstein, R.B. 1990. Environmental illness: a controlled study of 26 subjects with ‘20th century disease’. Journal of the American Medical Association 246, 3166–70. Bleeker, M.L., Hansen, J.A. (eds). 1994: Occupational Neurology and Clinical Neurotoxicology. Baltimore: Williams & Wilkins. Brannigan, V.M., Bier, V.M., Berg, C. 1992. Risk, statistical inference, and the law of evidence: the use of epidemiological data in toxic tort cases. Risk Analysis 12, 343–51. Brennan, T.A. 1987. Untangling causation issues in law and medicine: hazardous substance litigation. Annals of Internal Medicine 107, 741–7. Chemical Regulation Reporter. 1986, March 14: Health hazards, 1598. Cullen, M.R. 1987. The workers with multiple chemical sensitivities. Occupational Medicine 2, 655–61. Cummings, J.L. 1985. Organic delusions: phenomenology, anatomical correlations, and review. British Journal of Psychiatry 146, 184–97. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

306 Civil law Dunn, J.T., Lees-Haley, P.R., Brown, R.S., Williams, C.W., English, L.T. 1995. Neurotoxic complaint base rates personal injury claimants: implications for neuropsychological assessment. Journal of Clinical Psychology 51, 577–84. Dyer, F.J. 1998. Avoiding type-II error in assessing lead toxicity plaintiffs. Behavioral Sciences and the Law 16, 131–45. Gerson, A. 1990. Psychological effects of toxic inhalation. American Journal of Forensic Psychology 8, 3–10. Goldstein, D., Henifin, M.S. 2000: Reference guide on toxicology. In Federal Judicial Center, Reference Manual on Scientific Evidence. 2nd edition. Washington, DC. Gots, R.E. 1995. Multiple chemical sensitivities – public policy. Clinical Toxicology 33, 111–13. Gots, R.E., Hamosh, T.D., Flamm, W.G., Carr, C.J. 1993. Multiple chemical sensitivities: a symposium on the state of the science. Regulatory Toxicology and Pharmacology 18, 61–78. Hartman, D.E. 1995: Neuropsychological Toxicology: Identification and Assessment of Human Neurotoxic Syndromes, 2nd edition. New York: Plenum Press. Hartman, D.E. 1999: Neuropsychology and the (neuro)toxic tort. In Sweet, J.J., et al. (eds), Forensic Neuropsychology: Fundamental and Practice. Lisse, Netherlands: Swets & Zeitlinger, 339–68. Hartman, D.E., Hessl, S., Tarcher, A. 1992: Neurobehavioral evaluation of environmental toxin exposure: rationale and review. In Tarcher, A. (ed.), Principles and Practice of Environmental Medicine. New York: Plenum Press, 241–62. Henderson, T.W. 1990. Toxic tort litigation: medical and scientific principles in causation. American Journal of Epidemiology 132 (1 Suppl.), S69–78. Karrh, B.W., Carmody, T.W., Clyne, R.M., Gouold, K.G., Portela-Cubria, G., Smith, J.M., Freifeld, M. 1981. Guidance for the evaluation, risk assessment and control of chemical embryo-fetotoxins. Journal of Occupational Medicine 23, 397–9. Kennedy, W.A. 1997. Permanent disability: the legacy of tort litigation. Clinical Orthopedics 336, 67–71. Klinken, L., Arlien-Soborg, P. 1993. Brain autopsy in organic solvent syndrome. Acta Neurologica Scandinavica 87, 371–5. Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999). Kurlychek, R.T. 1987. Neuropsychological evaluation of workers exposed to industrial neurotoxins. American Journal of Forensic Psychology 5, 55–66. Lees-Haley, P.R. 1992. Neuropsychological complaint base rates of personal injury claimants. Forensic Reports 5, 385–91. Lees-Haley, P.R. 1993. Toxic exposure claims for emotional distress and brain damage. Trial Diplomacy Journal 16, 219–24. Lees-Haley, P.R. 1997a. Neurobehavioral assessment in toxic injury evaluations. Applied Neuropsychology 4, 180–90.

Lees-Haley, P.R. 1997b. Manipulation of perception in mass tort litigation. Natural Resources and Environment 12, 64–8. Lees-Haley, P.R., Brown, R.S. 1992. Biases in perception and reporting following a perceived toxic exposure. Perceptual and Motor Skills 75, 531–44. Lees-Haley, P.R., Williams, C.R. 1996: Chronic low-dose exposure to organic solvents: a skeptical review. DRIBIS, Boston. Leestma, J.E. 1991: Neuropathology and pathophysiology of trauma and toxicity. In Doerr, H.O., Carlin, A.S. (eds), Forensic Neuropsychology: Legal and Scientific Bases. New York: Guilford Press. Lemmen, C.A., Holden, C.E., Benedek, E.P. 1996: Criminal responsibility and solvent exposure. In Benedek, E.P. (ed.), Emerging Issues in Forensic Psychiatry: From the Clinic to the Courthouse. San Francisco: Jossey-Bass, Inc., 59–66. Lucas, C.A. 1989. ‘Toxin defense’ successful. National Law Journal May 1, p. 9. Morris, R.A., Sonderegger, T.B. 1986. Perinatal toxicology and the law. Neurobehavioral Toxicology and Teratology 8, 363–7. Muscat, J.E., Huncharek, M.S. 1989. Causation and disease: biomedical science in toxic tort litigation. Journal of Occupational Medicine 31, 997–1002. National Institute for Occupational Safety and Health. 1987: Organic Solvent Neurotoxicity. Cincinnati, OH: U.S. Dept. of Health and Human Services, Public Health Service, Centers for Disease Control. Neurotoxicity. Identifying and Controlling Poisons of the Nervous System. 1990: Office of Technology Assessment. OTA-BA-436, GPO No. 052-003-01184-1. NIOSH Pocket Guide to Chemical Hazards. 1985: Cincinnati: DHHS (NIOSH) Publication No. 85-114. Perna, R.B., Bordini, E.J., Deinzer-Lifrak, M. 2001. A case of claimed persistent neuropsychological sequelae of chronic formaldehyde exposure: clinical, psychometric, and functional findings. Archives of Clinical Neuropsychology 16, 33–44. Risher, J.E., Derosa, C.T. Jones, D.E., Murray, H.E. 1999. Summary report for the expert panel review of the toxicological profile for mercury. Toxicology, Industry, and Health 15, 483–516. Rodricks, J.V., Rieth, S.H. 1998. Toxicological risk assessment in the courtroom: are available methodologies suitable for evaluating toxic tort and product liability claims? Regulatory Toxicology and Pharmacology 27 (1 Pt. 1), 21–31. Silbergeld, E. 1990: Developing formal risk assessment methods for neurotoxicants: an evaluation of the state of the art. In Johnson, B. (ed.), Advances in Neurobehavioral Toxicology. Chelsea, MI: Lewis Publishers, 133–48. Simon, R.I. 1998. The credible forensic psychiatric evaluation in multiple chemical sensitivity litigation.

Neuropsychiatric assessments in toxic exposure litigation 307 Journal of the American Academy of Psychiatry and the Law 26, 361–74. Singer, R. 1990: Neurotoxicity Guidebook. New York: Van Nostrand Reinhold. Singer, R. 1994: Evaluation of neurotoxicity. In Rosner, R. (ed.), Principles and Practice of Forensic Psychiatry. New York: Chapman & Hall, 248–51. Terr, A.I. 1989. Clinical ecology. Annals of Internal Medicine 111, 168–78. United States Department of Health and Human Services 1988: The Nature and Extent of Lead Poisoning in Children in the United States: A Report to Congress. Washington, DC: Public Health Service, Agency for Toxic Substances and Disease Registry. Valciukas, J. 1991: Foundations of Environmental and Occupational Neurotoxicology. New York: Van Nostrand Reinhold. Valciukas, J.A. 1995: Neurotoxic agents in the environment and the workplace. In Valciukas, J.A., Forensic Neuropsychology: Conceptual Foundations and Clinical Practice. New York: Haworth Press, 197–207. Wasyliw, O.E., Golden, C.J. 1985. Neuropsychological evaluation in the assessment of personal injury. Behavioral Sciences and the Law 3, 149–64. Weiss, B. 1992: Behavioral Toxicology: A New Agenda for Assessing Risks of Environmental Pollution. Washington, DC: American Psychological Association. Welch, L.S. 1991. Severity of health effects associated with building related illnesses. Environmental Health Perspectives 95, 67–9.

Williams, C.W., Lees-Haley, P.R. 1996. Neurotoxicity of chronic low-level exposure to organic solvents: caveats for applied neuropsychologists. Applied Neuropsychology 3, 104–15. Witorsch, P., Ayesu, K., Balter, N.J., Schwartz, S.L. 1995: Multiple Chemical Sensitivity: Clinical Features and Causal Analysis in 61 Cases. Paper presented at the Annual Meeting of the North American Congress of Clinical Toxicology, Rochester, NY, September. World Health Organization. 1985: Organic Solvents and the Central Nervous System. Copenhagen: WHO.

Suggested reading Goldwater, L.J. 1972: Mercury: A History of Quicksilver. Baltimore: York Press. Hartman, D.E. 1998. Missed diagnoses and misdiagnoses of environmental toxicant exposure: the psychiatry of toxic exposure and multiple chemical sensitivity. Psychiatric Clinics of North America 21, 659–70. Miller, L. 1993. Toxic torts: clinical, neuropsychological, and forensic aspects of chemical and electrical injuries. Journal of Cognitive Rehabilitation 11, 6–18. Singer, R. 1985. Proving damage in toxic torts: nervous system dysfunction. Trial 21, 59–60. Williams, C.W., Lees-Haley, P.R. 1993. Perceived toxic exposure: a review of four cognitive influences on perception of illness. Social Behavior and Personality 8, 498–506.

34 Civil competencies J. RICHARD CICCONE

A fundamental human right is the right to make a choice and to act on that choice. Actions not prohibited by criminal law may be viewed as private rights, and civil law is ‘concerned with civil or private rights and remedies … .’ (Black, Nolan, and Connolly 1991). While generally a person is afforded the right to make a choice and act on that choice, at times the civil courts are involved in restricting such rights based on a person’s competence. Forensic psychiatrists may assist the courts in making such determinations. Competence is specific; an individual may be competent in one area but not competent in another. Therefore, while the general steps necessary for the determination of competence provide a useful template, the specific questions to be answered are contextual – that is, they are related to the particular civil competence under consideration. Since an exploration of the requirements for legal competency to exercise each possible civil right is beyond the scope of this chapter, several civil competence examples are set forth below that are illustrative of the general and specific principles of a forensic evaluation of civil competence.

CONDUCTING A FORENSIC PSYCHIATRIC EVALUATION OF CIVIL COMPETENCE Along with understanding which competence is to be evaluated, it behoves the forensic psychiatrist to consider the following questions: (i) what ability and knowledge is required to competently exercise a decision?; (ii) who is seeking the evaluation?; (iii) for what purpose is the evaluation requested?; (iv) who will receive the report?; and (v) how will the report be used? The forensic psychiatric evaluation may include not only a review of records but also interviews with relevant individuals, such as relatives, friends and caregivers. The complexity of the individual’s potential illness and disabilities may call for the assembly of a multidisciplinary team that has the capacity to adequately explore the individual’s strengths and weaknesses.

The threshold question is whether the individual suffers from a mental disorder. If the person does not suffer from a psychiatric disorder, the expert does not generally proceed further. It may be useful to comment on competence, because if the court decides that he or she suffers from a mental disorder, the court will move to the question of the individual’s competence regarding the issue at hand. If the individual does have a mental disorder, the forensic expert then turns to the question of whether the disorder significantly impairs his or her capacity to carry out the specific civil function at issue. Roth, Meisel, and Lidz (1977) suggested a decisional hierarchy of competency in the context of informed consent to treatment. This hierarchy is useful in a variety of civil competency evaluations. While there is some disagreement about this effort to vary competence with risk, on the whole it is useful to invoke a direct relationship between the level of competence and the magnitude of the risk or consequences of a decision. In clinical settings, the evaluation of a person’s competence may be called a ‘capacity evaluation’ in order to underscore that the clinician is providing an opinion, but only a court can decide a person’s competence. The evaluation of a person’s competence by the forensic examiner ultimately results in an expert opinion which will be considered by the court in arriving at its decision. The evaluator should be familiar with the legal standard for the competence being evaluated in the jurisdiction where the issue is to be adjudicated. The range of potential competence evaluations will strain the knowledge and experience of the forensic examiner or evaluator. Not only must the evaluator understand the elements of the task but conduct an analysis of the reasonableness of the decision. For example, the evaluation of a 63-year-old man, who is suffering from the physical and emotional sequelae of a stroke, and wishes to sell his halfinterest in a motel requires the evaluator to learn, from appropriate sources, the value of the property, the benefits of selling the property at this time, the tax consequences, and other considerations involved in such a sale. The presence of a mental disorder does not automatically translate into incompetence, whether it is general

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incompetence or specific incompetence. The central question is how does the psychopathology – whether a psychotic symptom, an affectively driven behavior or a cognitive impairment (ranging from dementia to a frontal lobe syndrome) – directly affect the decision; that is, the making and carrying out of a plan? If the individual appears subdued, is it the result of apathy secondary to an anterior cingulate frontal lobe syndrome, the hopelessness of depression, or a reflection of an enduring personality trait? In evaluating competence, examiners have supplemented, at times, their interviews with the Mini-Mental State Examination or similar brief measures. Guilmette and Krupp (1999) found that these measures lead to a high misclassification rate when used to assess competence to give informed consent to treatment. Thus, these brief measures should be used with caution when assessing civil competence. After determining whether the examinee suffers from a mental disorder that impairs his or her ability to perform the specific task, it is necessary to assess the stability of the impairment: Is it likely to be responsive to treatment? Can the deficit be overcome by providing support? Responses to these questions are useful components of the expert’s opinion.

TESTAMENTARY CAPACITY An example of a civil competence is testamentary capacity, which refers to an individual’s competence to make a will. A will takes effect after a person’s death and may be changed at any time before their death. The law presumes that an individual has testamentary capacity – that is, he or she is of sound mind when executing or altering a will. To have testamentary capacity, testators must have the ability to know and understand three points: (i) that they are making a will; (ii) the natural objects of their bounty and claims upon them; and (iii) the general nature and extent of their property (Black, Nolan, and Connolly 1991). The forensic psychiatric evaluation of testamentary capacity usually occurs after the testator’s death. Not being able to examine the individual eliminates an important source of information, and calls for a diligent examination of other sources. Despite the evaluator’s best efforts, the unavailability of the testator may result in insufficient data to arrive at a conclusion regarding the individual’s testamentary capacity. If the expert witness is able to arrive at an opinion, it will be important to report that the database does not include examination of the testator. In those instances where the individual’s attorney anticipates that there may be a challenge to the will and, therefore, seeks contemporaneous psychiatric evaluation of the testator, it is useful to videotape the examination. Operational criteria provide a framework for the psychiatric examination, as well as a format for providing the information to the

court. Did the individual suffer from a mental disorder at the time of making a will? Did the disorder cause a significant impairment in the individual’s rational understanding that he or she was making a will? Who would usually inherit? What is it they own? Isaac Ray argued that there was a proper role for a forensic psychiatrist in a will contest (Bromberg 1980). Ray wrote that the psychiatrist had information relevant to the court’s determination of the individual’s competence to make a will and information relevant in entering the will into probate. Others have argued that psychiatric expert witness testimony at will contests is little more than a psychiatric ‘excuse’ to invalidate wills that do not conform to conventional social norms (Szasz 1963). It is further argued that the will contest itself robs a person of the right to exercise one’s will.

History In feudal times, fixed rules governed the inheritance of real property. Ecclesiastical courts dealt with personal property that the church might receive for ‘pious purposes.’ Even when primogeniture, which gave the eldest son the right to inherit his father’s estate, was the rule, there were significant exceptions where local custom prevailed. For example, in Kent, England, there was gravelkind tenure, which gave equal shares to sons (Friedman 1985). By the thirteenth century, wills became more modern-looking instruments (Slovenko 1973). In 1572, the English Statute of Wills provided everyone with the right to make a will, to dispose of real (immovable) and personal (moveable) property. Over time, the law was amended to exclude ‘idiots’ or persons with ‘insane memory’ (Brakel, Parry, and Weiner 1985). Colonial America used a variety of approaches to wills. New England colonies rejected primogeniture, except for Rhode Island, although Massachusetts and Pennsylvania gave a double share to the oldest son. Southern colonies used primogeniture until revolutionary times (Friedman 1985). American probate laws followed the English Statute of Frauds of 1677, which called for a written, witnessed will for real estate. The Wills Act of 1837 covered both real property and personal property. In some states a holographic will – a will written, dated, and signed in the dead person’s handwriting – may be entered into evidence (Natale 1989). As the nineteenth century came to a close, an increasing number of individuals left wills, and this trend continues today, with most individuals having their will written up by an attorney.

Will contest The development of the rules regarding wills can be seen as reflecting the evolution of the view that an individual

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should have the right to determine what is to be done with his or her property. Guidelines for a valid will developed: almost all states require that a person be of sound mind when signing a will (Brakel, Parry, and Weiner 1985); that is, a person must appreciate the legal and binding nature of the will and understand the personal, legal, social, and financial ramifications. Understanding that one is making a will requires comprehension of the overall size and components of one’s estate. While precise knowledge of the value of the estate is not required for testamentary capacity, the individual should have a reasonable approximation of its overall worth. An individual must also know the natural objects of one’s bounty; generally these are blood relatives, though at times they may include close friends, and occasionally a ‘faithful servant.’ The testator’s denial that he or she has children based on symptom of mental disorder, for example, a delusion or loss of memory, may invalidate a will. However, ignorance of the existence of blood relatives does not usually constitute a basis for challenging a will. Likewise, the inability to read or write does not invalidate a will. Less than 3 per cent of wills are contested, and of those that are contested only 15 per cent are successfully overturned (Slovenko 1973). The source of the contest may be a disappointed or disinherited heir who claims unfairness. There are a number of conditions that can invalidate a will, one of these being the person’s mental condition. In a will contest there is the presumption of testamentary capacity, and the burden of proof that the will should not be admitted to probate – that is, found valid – rests with the party alleging deficiency. In most jurisdictions ‘clear and convincing’ arguments must be made before the will is invalidated. A previous adjudication of incompetency, for example, guardianship, does not prevent establishing a valid will; however, the burden of proof is then on the proponent of the will to establish by clear and convincing evidence that the will was made during a lucid interval (In re Will of Coe 1900). The concept of lucid interval is based on the notion that an individual with a major mental disorder may have an interval of remission of symptoms, and during such an interval may have the minimal abilities required by law to fulfill the criteria for testamentary capacity. Lucid intervals may be found in individuals who abuse alcohol or drugs, unless the substance abuse has led to some chronic, significant mental deterioration. At times, the lucid interval doctrine has been extended to the individual who is lucid for a few minutes. However, those few minutes are usually insufficient for the individual to assess and comprehend the factors involved in the distribution of assets. In addition, the individual may be especially susceptible to undue influence during these few minutes of lucidity.

Insane delusion A testator suffering from delusions may appear well to the psychiatrically untrained. The court is interested in what is legally called an insane delusion, that is, a mistaken belief for which there is ‘no basis in reason, cannot be dispelled by reason, and can be accounted for only as the product of mental disorder’ (Am. Jur. 1975). New York’s highest court dealt with the impact of an insane delusion as follows: If a person persistently believes supposed facts, which have no real existence except in his perverted imagination, and against all evidence and probability, and conducts himself, however logically, upon the assumption of their existence, he is, so far as they are concerned, under a morbid delusion; and delusion in that sense is insanity. Such a person is essentially mad or insane on those subjects although he may reason, act and speak like a sensible man. (American Seaman’s Friend Society v. Hopper 1865)

To invalidate a will on the basis of the existence of a delusion, most jurisdictions require proof not only that the testator had delusional beliefs but also that the will was a product of the delusions. Insane delusions often involve demented individuals who think that their spouses are having affairs. The Estate of Coffin is a frequently cited case involving the issue of insane delusion (In re Estate of Coffin 1968). Coffin agreed to marry a woman who claimed that he had fathered her child, although she had been with other men. Shortly thereafter, they divorced and he had nothing to do with this child. Forty-one years later, Coffin met the child, now a man, for the first time. Based on resemblance, Coffin decided that this was indeed his son, but before he could formally change his will, Coffin, Sr., died. His son went to court to challenge the validity of the will, which had been written at a time when Coffin, Sr., did not believe he had a son. The lower court rejected the will on the grounds that Coffin, Sr., wrote its provisions as a result of an insane delusion that this woman’s child was not his son. The appellate court dismissed this argument and found that Coffin, Sr., did not have an insane delusion when he wrote his will. There was information that was sufficient for him to believe that this woman’s child was not his; he was mistaken but not insanely deluded. The court went on to write that the petitioner has the burden to prove, by clear and convincing evidence, that there were not facts to support the testator’s belief. The judgment denying probate was reversed. The following will contest had a different outcome. Estoll’s will left the bulk of her estate to her only child, a daughter. The codicil, executed four years later, left the bulk of her estate to her sister without mention of her daughter (In re Estoll 1968). The daughter opposed probate of the will and presented evidence that her mother had a constant insane delusion that ‘the person who

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would normally be the principal or only object of the testatrix’s concern and bounty’ was trying to poison her. The decedent told a number of people that the daughter was trying to poison her. She also would not accept pills or water from her daughter, but accepted them from her sister. The codicil was set aside.

Undue influence Undue influence is defined as manipulation or deception in engaging the affections of the testator, significantly impairing the ability of the testator to freely decide on the distribution of his or her property. By its nature, undue influence is often the result of concealed actions, and therefore, it is difficult to determine. A noble purpose does not justify or legitimize undue influence. Undue influence must constitute more than friendship or insincere praise. The courts look for evidence of ‘coercion, compulsion or restraint,’ which led to a will that does not reflect the desires of the testator. Some grounds for undue influence include harassment to the point that the testator agrees in order to get relief, threats to never return, and lies that result in negative feelings toward a potential heir (Perr 1981). A fiduciary relationship is one where the law recognizes that an individual relies on and trusts another, for example, attorney–client, doctor–patient, or guardian–ward. The burden of proof is on a fiduciary who has been left an inheritance to prove that no undue influence was exercised. However, if the heir is not a fiduciary, the burden of proof falls to the person challenging the will. Individuals may be vulnerable to undue influence because of a chronic progressive disorder such as cancer, cardiovascular disease including strokes and heart failure, a variety of neurologic disorders, chronic organ failure, massive trauma, or metabolic disorders. These same ailments may be so severe that the individual may also lack testamentary capacity. A less severe physical ailment may result in the individual’s being more vulnerable to undue influence while retaining testamentary capacity. While psychiatrists may not be able to arrive at an opinion as to whether or not there was undue influence, psychiatrists may nonetheless assist the court in understanding if the individual’s character structure – either alone or in combination with a physical or mental condition – made the testator particularly gullible or susceptible to the influence of others. A number of factors may lead to a weakened ability to resist efforts at undue influence. The psychiatrist must consider intellectual functioning, overall health and physical condition, as well as the signs and symptoms of mental disorders that do not reach the level of negating testamentary capacity. When examining a testator, some clues that undue influence may be present include (Redmond 1987): 1 The psychiatrist is assured by the person requesting the examination that a competency statement is routine due to the testator’s age.

2 The appointment is made by someone other than the testator or his/her attorney. 3 The testator is brought to the appointment by someone who answers most of the questions for the testator and is reluctant to allow the testator to be interviewed alone. 4 Specifics about the will are not given, or the testator seems unclear about specific items in the will. 5 There is reluctance to give information about potential heirs and their relationship with the testator.

Psychiatric assessment An understanding of who has requested the assessment and for what purpose provides the psychiatrist with a framework in which to conduct the assessment. The psychiatrist should review all relevant records, which may include medical, psychiatric, counseling, nursing home, work, school, pharmacy details, as well as other materials. An independent accounting of the nature and value of the testator’s estate should be available.

CONTEMPORANEOUS EVALUATION When the testator is available for examination, the customary psychiatric evaluation of an adult is appropriate (American Psychiatric Association 1996). If attorneys are to observe the interview, a one-way mirror allows for observation without undue intrusion. It is useful to record this examination on videotape (Spar and Garb 1992). Indeed, a videotape may present compelling information that may be relevant to a court’s effort, in the future, to determine if the person possessed testamentary capacity at the time of the psychiatric assessment. The nearer in time to the assessment that the will is signed, the more weight the court will give to the videotape. A thorough mental status examination should be carried out. If there are impairments noted in the mental status examination that are difficult to define, then neuropsychological testing should be considered. Upon examining the testator, the psychiatrist should be alert to secrets, anger, and other considerations. Medical problems cannot be ignored; disabilities secondary to medical problems must be factored into the decision-making process. A number of conditions can interfere with any one of the three components of the ‘sound mind’ required to make a valid will. Significant mental disorders such as schizophrenia, bipolar affective disorder, and organic brain syndromes are one such cluster. However, evidence of the existence of one of these conditions does not necessarily lead to the conclusion that the person was incompetent. Likewise, the fact that a testator committed suicide does not automatically invalidate a will. The psychiatrist must demonstrate that signs and symptoms of the illness from which the person was suffering directly affected his or her capacity to make a valid will. The individual with a mild

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dementia may have difficulty recalling new information but may nonetheless know his or her children, the approximate size of his or her estate, and that he or she wishes to reward the child with whom he or she is living with a larger share of the inheritance. Many medical disorders may affect an individual’s testamentary capacity, including cardiovascular, neoplastic and autoimmune diseases. The presence of a medical disorder requires an assessment of its effect on the testator’s decision making, but it does not invariably lead to an opinion of incompetence to make a will. The evaluator can explore the specific components of testamentary capacity by asking individuals what their understanding of a will is, and its purpose. Testators can be asked to describe their property and estimate its value. They can also be asked to describe the division of their estate and to talk about heirs and the reasoning underlying their decision to include or exclude their potential heirs. Since the question of testamentary capacity is often linked with the issue of undue influence, examining for signs of undue influence is usually a part of each phase of the assessment.

RETROSPECTIVE DETERMINATION A psychiatrist usually undertakes an examination of someone’s competence to make a will after the person has died. This retrospective determination requires that the psychiatric expert witness make clear to the court that the testator was not examined. When undertaking a retrospective determination, the psychiatrist’s evaluation must rely on information from friends, relatives, and neighbors and a review of relevant records, for example, school, military, work and medical counseling. It is helpful to review letters and notes written by the deceased. A visit to the home in which the deceased lived, if possible, may be useful (Perr 1981). If the deceased lived in a nursing home, a visit to the nursing home with interviews of the staff and the individual’s physician can provide essential information. The decedent’s medical records may be disclosed, and the physician–patient privilege (where it exists) and confidentiality requirements may be waived when the decedent’s medical condition is put into issue by the executor, surviving spouse, heir at law, next of kin, or any other party in interest. The fact that an individual has had a guardian or committee appointed does not deprive him or her of the power to execute a valid will (Redmond 1987). However, an order appointing a guardian or committee raises the inference, which the proponent of the will must overcome, that the individual lacks testamentary capacity (Bromberg 1980).

Communicating with the legal system The legal system has recognized the utility of the medical expert witness in the legal system’s mission (Clements

and Ciccone 1984). The forensic report – which is a vehicle for communicating with courts and attorneys – should include a statement of who requested the evaluation of testamentary capacity. In addition, the report on an individual’s testamentary capacity should include responses to the following questions: 1 Does the testator or did the testator suffer from a significant psychiatric disorder? 2 As a result of the psychiatric disorder, was there impairment of the testator’s rational understanding that he or she was making a will? 3 Did the psychiatric disorder impair the testator’s ability to understand the nature and extent of the estate? 4 Did the psychiatric disorder impair the testator’s ability to identify close relatives and friends? 5 Were any delusions elicited or implied regarding the testator’s bounty or heirs?

GUARDIANSHIP A guardian is a person to whom the courts have given the power and have charged with the duty of managing the property and the rights of another person. In addition, a guardian may also be charged with the duty to make decisions regarding the physical needs of another person who, ‘for defect of age, understanding, or self control, is considered incapable of administering his own affairs’ (Black, Nolan, and Connolly 1991). A guardian has a fiduciary responsibility to manage the affairs of the person the courts have found incapable of managing his or her own affairs, and may be held accountable for errors in the transaction of business affairs on behalf of the ‘ward.’ A guardian does not have title to property; this remains with the ward. There are different types of guardians. A testamentary guardian is appointed for a child by a will and has responsibility for both the child and the child’s estate until the child reaches the age of maturity. A guardian ad litem is appointed by the court to protect the interests of a minor, an incompetent, or a proposed conservatee in litigation to which he is a party. A special guardian, also known as a limited guardian or a conservator, has limited powers and duties with respect to the ward; that is, managing a ward’s financial affairs. A general guardian has the additional obligation to provide for the ward’s general personal needs including housing, clothing, food, health care, recreation, education, and other needs as appropriate. In the first part of the twentieth century, general guardianship was in favor, but in recent decades there has been a movement toward the establishment of specific guardianships for specific purposes (Brakel, Parry, and Weiner 1985). The evaluation of an individual regarding the need for a guardian follows the general principle of determining if the person suffers from a mental disorder, and describing

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how the symptoms of that disorder impair a person’s functioning. The nature of that assessment can include eliciting a description of a typical day from the individual and conducting a home visit. (Melton et al. 1997).

History Roman law included the procedure to preserve the property of an incompetent individual. This tradition of protecting the property of an incompetent individual continued in English Common Law and in colonial America. These efforts represent an attempt to preserve the estate of the incompetent so that those who have rightful claims against the estate, as well as those who could be expected to be supported by the estate, would be protected from having the estate dissipated by the incompetent. It has been suggested that the parens patriae powers of the state are derived from these property concerns, and only in more modern times have concerns about the care and well-being of the individual been included in the parens patriae doctrine. Others hold that the feudal system placed the lord of the manor not only in the role of watching over the property interest of his charges but also giving him significant responsibility for their overall well-being, which gives the broader parens patriae doctrine a longer history. In most jurisdictions, there is a presumption of competency when adults enter into contractual arrangements or make decisions as they live their lives. It is currently accepted that the state has the authority to protect incompetent individuals and to preserve their property. This may be done by creating either a limited or a general guardianship.

Limited guardian In some jurisdictions the law provides for the creation of a conservatorship, a mechanism to ensure the financial well-being of an individual. A conservatorship does not require that the person be found incompetent, just that the person cannot care for him/herself, as the result of physical and/or mental dysfunction. In New York State, for example, a petition for a guardian of the person and/ or property may be filed by a relative or a friend; the meaning of the word friend includes corporate bodies, public agencies, or social service officials. If the proposed conservatee is in an institution, the officer in charge of the institution may also file a petition. The petition must contain the reasons for concern about the individual’s ability to manage his or her affairs. The facts must demonstrate the need for an appointment of a conservator to ‘insure the preservation, maintenance, and care of the proposed conservatee’s income, assets, and personal well-being, including the provision of necessary personal and social protective services to the conservatee’ (New York State Mental Hygiene Law).

Due process rights require that notice of the petition be served on the proposed conservatee as well as his or her spouse and children. If no immediate family exists, the conservatee’s distributee – a person entitled to a share in the distribution of the estate – must be served. If none exists, then notice must be served on the person/entity with whom the conservatee resides. The conservatee may be present and a guardian ad litem may be appointed to represent the proposed conservatee’s interest. If after the hearing a conservator is appointed, the court must set forth a specific plan as to its duration and the directions for maintenance of assets and social protective services for the conservatee. Many jurisdictions require that when the proposed conservatee is unable to attend the hearing, a guardian ad litem must be appointed unless the court believes that the proposed conservatee’s interests are adequately protected by counsel chosen by the proposed conservatee. Jury trial is available when any party contests the need for appointment of a conservator. Usually, a family member is appointed as conservator, but a non-family member may be appointed, especially when there are family disagreements. An eighty-four-year old quadriplegic woman, who resided in a nursing home, had a trust that could be invaded for her medical care (In re Lyon 1976). At issue was the care that was keeping Mrs. Lyon alive, which was both comprehensive and costly. Her son considered her present care to be ‘squandering’ in view of her condition. However, in the opinion of Mrs. Lyon’s physician, this care had been lifesaving. The court did not appoint her son conservator. Family members may not always have the best interest of the conservatee in mind, especially when they stand to inherit the estate that remains after the expense incurred by the conservatee. Where there is no family member available – a more frequent occurrence than is generally appreciated – the court may appoint a non-profit corporation as conservator. It is possible for a Department of Social Services to act as conservator, even if the conservatee does not receive public assistance. A conservatorship, while charging the conservator with the duty to look after the ward and supplying his or her needs, does not empower the conservator with the legal decision-making capacity regarding consent to treatment; that requires the creation of a general guardianship.

General guardian A general guardianship, which in some jurisdictions is called a committee of the person, involves a finding of incompetence and the appointment of a committee. Since this is a more drastic measure with far-reaching consequences, it is more difficult to accomplish because the courts have been reluctant to take from a person his or her civil rights, particularly the right to manage his/her own affairs. The law requires the person bringing

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the petition to state the facts showing incompetence and to demonstrate why a conservatorship would be inappropriate. When any party disputes the need for a general guardian, a jury trial is available, and the burden of proof falls on the petitioner. For the court to appoint a guardian for an individual requires evidence that the conservatee suffers a substantial impairment of his or her ability to manage his/her property, or has become unable to provide for him/ herself or his/her dependents, due to a specified disability. A showing that a person suffers from a mental disorder alone is insufficient. There must be clear and convincing proof of a substantial impairment of the proposed conservatee’s ability to manage his or her affairs (In re Baily 1974). Expert testimony is not required, but as a practical matter it is usually employed. The physician – usually a psychiatrist – who undertakes a competence evaluation is not assessing competence in the abstract but rather with respect to the ability to make specific informed decisions. The specific criteria used in the creation of a guardianship vary from jurisdiction to jurisdiction. If a specific or general guardianship is to be created on the grounds of the person having a mental disease or defect that impairs his or her capacity to make requisite judgments, then it is incumbent on the psychiatric expert witness to support his or her opinion with appropriate clinical data. However, the expert’s opinion is just that, and it is not binding on the court.

Termination of guardianship A ward who thinks that he or she is able to manage his/her affairs would apply, in most jurisdictions, for a hearing to have his/her competence restored. Some jurisdictions call for a periodic review of incompetence, and other jurisdictions (e.g., California) have provisions for automatic restorations of competence unless the guardian petitions for reappointment. If there is a finding of restoration of competence, the individual regains his or her right to make personal and financial decisions, and the guardian is relieved of his/her duties. As with the creation of a guardianship, the termination of a guardianship requires informing relevant individuals about the hearing. There is wide variation among jurisdictions regarding who should be notified and who must be present at the hearing regarding the termination of competence. This lack of attention to basic due process rights, along with the vague standards of incompetence, has caused some to question the fairness of the guardianship process. With the population of the United States aging and deinstitutionalization a reality in most of the country, guardianship issues will become increasingly important. The psychiatric expert witness evaluating an individual in preparation for a guardianship hearing will want to be mindful of the potential abuses of guardianship. Information about who has raised the issue

of the individual’s need for a guardian, why it is being sought, and what will be the effect of a specific or general guardianship is important to a careful evaluation. As symptoms fluctuate, so too may capacity. The psychiatric examiner should consider whether treatment or the introduction of social support services will allow a person to remain independent. In this way, the psychiatric expert witness is able to provide the court with clinically relevant and legally useful information about an individual’s ability, in varying contexts, to make and communicate decisions regarding one’s self and property.

Contractual capacity Contractual capacity refers to the individual’s capacity to enter into agreements; society places a great deal of importance on the sanctity of the contract. Pettit (1999), in reviewing the evaluation of contractual rights and the mentally ill noted, ‘the most striking change is that the mentally disabled are now allowed to contract at all.’ As with the evaluations of other civil competence, the context of the request is important. The determination of the presence of a mental disorder and the nature of the resulting impairments is essential to arriving at an opinion regarding an individual’s capacity to enter into a contract. Of course, capacity may vary over time. One consideration is the nature and complexity of the contract and the severity of the individual’s illness at the time he or she enters into the agreement. In a 1963 seminal case, Faber v. Suite Style Manufacturing Corporation, Faber contracted for land at White Lake in the Catskills, against the advice of his attorney. Faber planned to use the property to build a 400-room hotel with a marina and a golf course. At the hearing, the expert witnesses agreed that Faber was in the manic phase of his manic depressive illness at the time he entered into the contract. The court found Faber incompetent to enter into the contract because he acted ‘under the compulsion of a mental disease or disorder but for which the contract could not have been made.’ In the Ortelere v. Teachers’ Retirement Board case (1969), the court examined the kinds of mental incompetency which may void the contractual agreement. Ortelere, while under psychiatric care, changed her retirement option to a maximum allowance which extinguished all interests upon her death. Her husband sued claiming she was not mentally competent to enter into this agreement. The court found that Mrs. Ortelere suffered from an involutional psychosis, melancholia type (now called major depressive disorder, severe with psychotic features) on the date she entered into the contract. Determining that the cognitive rules for incompetence were too restrictive, the court expanded the grounds of incompetence to include affectively driven behaviors resulting from a psychosis. The court went on to find the contract void because the individual entering into the contract was laboring under a

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mental defect that prohibited the individual from acting in a reasonable manner and the other party had knowledge of the defect. In this case, the Board of Education knew the impairment because Ortelere’s mental illness led to her leave of absence. As with testamentary capacity, contractual capacity provides a mechanism for society to provide protection to incompetents. A judicial determination of competency speaks to the individual’s incompetence at the time of the hearing and, in many jurisdictions, there is no retroactive effect. Some have argued that the fact that a person has a guardian should mean that, as a matter of law, the ward’s action (e.g., entering into a contract) is of no legal consequence (Meiklejohn 1988). Those holding this view assert that the ward has been found incompetent, and in order for the guardian to protect the ward’s estate, the guardian has to be able to have control over it. The opposing view argues that the order establishing a guardianship creates a rebuttable presumption of incapacity to enter into a contract; the hearing resulting in guardianship may be flawed since many of these hearings are short and summary in character. They further argue that the state has an interest in upholding contracts, and those dealing with the ward may not have had constructive notice of the guardianship and may have acted in good faith. They assert that contractual competency provides the government with another opportunity to interfere with an individual’s decisions. Most jurisdictions take a middle position, providing grounds for an individual to be found incompetent to enter into a contract but requiring the person requesting that the contract be voided to carry the burden of proof. To be found lacking contractual capacity, the court must be convinced that the individual had a significant mental disability that impaired his or her capacity to understand the character of the transaction and act in a reasonable manner. In some jurisdictions, it must be shown that the other party knew of the incompetency or acted in bad faith. At times, the ‘fairness’ of the contract will determine if it will be upheld by the court.

REFERENCES 79 Am. Jur. 2d Wills, 341 (1975). American Psychiatric Association. 1996: Practice Guidelines. Washington, DC: American Psychiatric Association. American Seaman’s Friend Society v. Hopper, 33 N.Y. 619 (1865). Black, H.C., Nolan, J.R., Connolly, M.J. 1991: Law Dictionary. 6th edition. St. Paul, MN: West Publishing Co.

Brakel, S.J., Parry, J., Weiner, B. 1985: The Mentally Disabled and the Law. Chicago: American Bar Association. Bromberg, W. 1980: The Uses of Psychiatry in the Law. New York: Plenum. Clements, C.D., Ciccone, J.R. 1984. Ethics and expert witnesses: the troubled role of psychiatrists in court. Bulletin of the American Academy of Psychiatry and the Law 12, 127–36. Faber v. Suite Style Manufacturing Corporation, 242 N.Y.S.2d 763 (Sup. Ct. 1963). Friedman, L. 1985: A History of American Law, 2nd edition. New York: Simon & Schuster. Guilmette, T.S., Krupp, B.H. 1999. The role of mental status measures in civil competence determinations. Journal of Forensic Neuropsychology 1, 1–16. In re Bailey, 362 N.Y.S.2d 226 (Sup. Ct. 1974). In re Estate of Coffin, 246 A.2d 489 (N.J. App. Div. 1968). In re Estate of Estoll, 291 N.Y.S.2d 411 (App. Div. 1968). In re Lyon, 382 N.Y.S.2d 833 (App. Div. 1976), aff’d, 364 N.E.2d 847 (N.Y. 1977). In re Will of Coe, 62 N.Y.S. 376 (App. Div. 1900). Meiklejohn, A.M. 1988. Contractual and donative capacity. Case Western Reserve Law Review 39, 307–87. Melton, G.B., Petrila, J., Polythress, N.G., Slobogin, C. 1997: Psychological Evaluations for the Court, 2nd edition. New York: Guilford Press, 338–45. Natale, K.R. 1989. A survey, analysis, and evaluation of holographic will statutes. Hofstra Law Review 17, 159–201. New York State Mental Hygiene Law, Article 81. Ortelere v. Teachers’ Retirement Bd., 250 N.E.2d 460 (N.Y. 1969). Perr, I.N. 1981. Wills, testamentary capacity and undue influence. Bulletin of the American Academy of Psychiatry and the Law 9, 15–22. Pettit, M., Jr. 1999. Freedom, freedom of contract and the ‘Rise and Fall’. Boston University Law Review 79, 263–354. Redmond, F.C. 1987. Testamentary capacity. Bulletin of the American Academy of Psychiatry and the Law 15, 247–56. Roth, L., Meisel, A., Lidz, C. 1977. Tests of competency to consent to treatment. American Journal of Psychiatry 134, 279–84. Slovenko, R. 1973: Psychiatry and Law. Boston: Little, Brown and Company. Spar, J.E., Garb, A.S. 1992. Assessing competency to make a will. American Journal of Psychiatry 149, 169–74. Szasz, T. 1963: Law, Liberty and Psychiatry. New York: Macmillan.

35 Death, dying, and the law NORMAN L. CANTOR

Ever since the 1960s, when medical science first became capable of prolonging the dying process beyond bounds that many patients would find acceptable, people have sought ‘death with dignity,’ or ‘a natural death,’ or ‘a good death’ (Webb 1997). Once debilitation from a fatal affliction has reached a personally intolerable point, dying patients have sought to control the manner and timing of death via diverse techniques. Some dying patients have sought disconnection of life-sustaining medical interventions such as respirators and dialysis machines. Beyond freedom from unwelcome interventions, some patients intent on avoiding suffering have sought access to pain relief medication – even in dosage posing some risk (perhaps even certainty) of hastening death. To avoid unbearable suffering, other dying patients have sought access to deep sedation, even knowing that they would never emerge from the resultant unconsciousness. Still other patients have sought to hasten an impending death by voluntarily refusing to eat or drink or to accept artificial nutrition and hydration. Finally, some suffering patients seek the more expeditious route of assisted suicide (via a prescription of lethal medication) or even active euthanasia (via a lethal injection at a physician’s hand). From the outset, a variety of forces have sought to circumscribe the human wish to shape the dying process. Religious sources sometimes opposed a patient’s prerogative to control the timing of death on the ground that only God should have dominion over life and death. Medical practitioners sometimes resisted patient prerogatives because of professional dedication to principles of cure and preservation of human life or a conviction that medical professionals are better suited to make end-oflife decisions than distraught patients or families. Some social observers invoked sanctity of life as a sacrosanct principle and viewed life-shortening measures as inconsistent with that principle. Other observers feared exploitation of vulnerable populations if life and death decisions were allocated either to stricken patients or their surrogates. Advocates for disabled persons resented the distasteful message supposedly broadcast when an

afflicted person ends life support on the basis that the debilitated existence is intolerable. Starting in 1976, with the Quinlan case in New Jersey, courts and legislatures have outlined the legal bounds governing medical conduct in the dying process (In re Quinlan 1976). Certain principles have become hallmarks of death and dying jurisprudence. Competent persons have a broad legal prerogative to decide how to respond to fatal afflictions – how much to struggle, how much to suffer, how much bodily invasion to tolerate, and how much helplessness and indignity to endure. They can resist life-sustaining medical interventions even if that step will precipitate their deaths and even if the personal values underlying the choice seem idiosyncratic or foolish. Suffering patients can have access to palliative interventions, even if such interventions pose a risk of hastening death. Even after competence is lost, conscientious surrogates may exercise end-of-life options on behalf of the formerly competent patient. For example, a conscientious surrogate can seek an end to artificial life support where the now-incompetent patient previously expressed a desire to reject life support in the situation now at hand. In some jurisdictions, a surrogate can seek withdrawal of life support where a judgment can be made that the patient, if competent, would choose this course, or where the burdens of continued existence so outweigh the benefits that death can fairly be deemed to be in the patient’s best interest. Assistance to suicide and active euthanasia are still forbidden. This chapter will describe in detail the contours of permissible medical response to the dying patient’s pursuit of death with dignity. Because a competent patient enjoys considerable decision-making prerogatives, a lot hinges on the determination of competency. The term competency here means mental capacity to make the particular medical decision at hand. (A person is legally incompetent for all purposes and dependent on a legal guardian only after a formal judicial declaration; such a judicial proceeding is undertaken in relatively few instances.) Adult patients are generally presumed capable of making their own medical decisions, though in the context of end-of-life

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care, some patients may be so debilitated that they lack or lose decision-making capacity. When a patient’s capacity is in doubt, attending medical personnel must make an assessment and, if the determination is against capacity, must seek a surrogate decision maker on behalf of the patient. Usually, that surrogate will be a relative or friend of the patient who has shown interest in the patient’s welfare. If the patient previously designated a surrogate decision maker, that choice should be respected unless the surrogate exhibits unfaithfulness to the patient’s wishes or welfare. While psychiatrists or psychologists are often enlisted in making an assessment of a patient’s decision-making capacity, there are no simple formulae or tests for making that assessment. Decision-making capacity means the mental capability to understand and act upon the nature and consequences of the contemplated courses of action. For a decision entailing possible fatal consequences, a patient has to be capable of understanding the nature of the affliction and the meaning of death as well as being able to weigh the alternative treatment or non-treatment courses and their likely consequences. No universal criteria govern assessment of these issues, leaving room for subjectivity and variations in professional determinations of competency. Experts can and do differ in their assessments. Also, the competent patient’s decision does not have to be sound and well considered. A patient is entitled to make a foolish decision and medical personnel are not permitted to find incapacity just because they vigorously disagree with a patient’s determination. A practitioner can withdraw from a case where the patient’s chosen course offends the practitioner’s conscience, but the patient cannot be abandoned without referral to a healthcare provider who can cooperate with the patient. Depression poses a particularly difficult problem in assessing capacity. Dying patients are frequently depressed. The presence of depression does not, by itself, preclude competency. Only when the depression is at a level that significantly distorts the patient’s ability to weigh medical options can incapacity be found.

COMPETENT PATIENTS The legal foundation As noted, Quinlan in 1976 set the pattern for succeeding death and dying jurisprudence. Karen Ann Quinlan was twenty-one years old when a mix of alcohol and drugs caused brain damage that left her in a permanently unconscious state. Her biologic functions were maintained by a respirator and artificial nutrition and hydration (ANH). Her devoted father sought judicial appointment as Karen’s legal guardian with authority to remove the respirator. Opposition to the father’s petition was grounded primarily on claims that detachment of the respirator would constitute murder and that courts should

not interfere with her physician’s professional judgment favoring continued life support. The New Jersey Supreme Court unanimously upheld the father’s petition. That court posited that Karen, if competent, would be constitutionally entitled to resist life-sustaining medical intervention. Her entitlement flowed from the 14th Amendment to the Federal Constitution and its protection of liberty. In light of Karen’s incompetence, her loving father could exercise the liberty right on his daughter’s behalf. The court repudiated any notions of murder or improper interference with medical judgment. According to the court, the implementation of a patient’s constitutional prerogative could not be deemed unlawful homicide. Improper interference with medical judgment would not ensue because medical ethics recognized patients’ entitlement to choose their own course of treatment (and to have a surrogate choose once the patient has become incapacitated). Succeeding courts have accepted the Quinlan premise that a competent patient may reject life-sustaining medical intervention. A number of state courts echoed Quinlan and grounded the patient prerogative in the constitutional protection of liberty. Other courts stressed a non-constitutional basis – the common-law principle that a medical practitioner must secure informed consent before initiating medical treatment. To treat without such consent is a tort, an unconsented touching. Still other courts used both the Constitution and the common law as the legal foundation for the patient’s prerogative. A strong majority of jurisdictions have case law upholding a competent individual’s rejection of artificial life support (Gasner 1990). In 1990, the U.S. Supreme Court reinforced the notion that the Constitution’s protection of liberty encompasses rejection of life-sustaining medical intervention. In the context of a permanently unconscious patient, the Court noted that many state courts had upheld a patient’s prerogative (implemented by a surrogate) to reject treatment and the Court ‘assumed’ for the sake of argument that a competent patient would have a constitutional right to reject treatment (Cruzan v. Director, Missouri Dept. of Health 1990). Further, the Court followed state court precedents in assuming that the patient could resist ANH as well as other forms of medical treatment. Seven years later, the U.S. Supreme Court reaffirmed a patient’s constitutional right to reject life-sustaining medical intervention, but refused to extend the patient’s protected options to include ingestion of a poison, i.e., assisted suicide (Washington v. Glucksberg 1997). That 1997 decision focused on the patient’s liberty interest in bodily integrity, meaning freedom from unwanted bodily invasions, as opposed to a broader prerogative to control the manner and timing of death. State court decisions upholding a competent patient’s liberty to reject life support have relied on both patient autonomy – i.e., self-determination in deciding how and if to respond to a fatal affliction – and bodily integrity. The autonomy interest has prevailed even when the

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prospective bodily invasions have been rather slight, as in the case of refusal of a life-sustaining blood transfusion. Those same decisions have considered and rejected possible governmental interests opposing the patient’s prerogative. The cases acknowledge a legitimate governmental interest in promoting sanctity of human life, but they also tend to find that a patient’s liberty interests (selfdetermination and bodily integrity) simply outweigh the abstract interest in sanctity of life (In re Conroy 1986; Fosmire v. Nicoleau 1990). The courts note that upholding a dying patient’s decision to reject treatment exalts selfdetermination rather than deprecating sanctity of life. Similarly, courts acknowledge a legitimate government interest in preventing suicide, but refuse to equate rejection of treatment with suicide. The main distinction is that suicide involves initiation of a self-destructive course (e.g., ingesting a poison or shooting oneself), while refusal of treatment involves letting a fatal affliction follow its natural course. Sometimes, there is also a state of mind distinction between suicide and rejection of life support. That is, a patient rejecting medical intervention may not desire to die, but only to avoid an offensive bodily invasion. Yet that state of mind distinction does not always hold up, as some patients rejecting treatment find their quality of life intolerable and indeed intend to die. Other conflicting governmental interests have also not curbed the competent patient’s prerogative to refuse treatment. Efforts to assert a countervailing government interest in upholding medical judgment and medical ethics have met the same fate as in Quinlan – a finding that professional ethics recognize a patient’s prerogative to determine his or her medical fate. While the courts acknowledge a healthcare provider’s interest in maintaining personal scruples or conscience, the judicial solution is to allow the conscientious provider to withdraw (while referring the patient to another provider), but not to override the patient’s preference to forgo treatment. Occasionally, government has asserted an interest in protecting the lives and well-being of dependents of the patient rejecting life support. In at least one early case, in 1964, a court used that rationale to help justify its authorization of medical intervention against a patient’s wishes (Georgetown College 1964). More recent cases have gone the other way, upholding the patient’s decision to reject life support so long as the dependents will not be totally abandoned, i.e., so long as there will be a surviving spouse or relative to care for the dependents (Fosmire v. Nicoleau 1990).

Scope of the competent patient’s prerogative TYPES OF MEDICAL INTERVENTIONS AND PROXIMITY OF DEATH Early discussions of a patient’s right to reject life-sustaining medical intervention considered possible limitations on

that prerogative. One notion was that ‘extraordinary,’ but not ‘ordinary,’ medical means could be withdrawn at a patient’s behest. That dichotomy originated in Roman Catholic doctrine defining extraordinary means as particularly complex, invasive, or expensive treatments. Under such a framework, a respirator would be deemed extraordinary and therefore expendable, but a blood transfusion would not. The extraordinary/ordinary distinction has not prevailed in legal doctrine. A patient’s right to resist bodily invasions encompasses all medical techniques from the simplest aspirin tablet to the most elaborate machine. In the early 1980s, some commentators sought to differentiate among medical interventions and to exclude the withholding of ANH as a medical option. Their contention was that provision of ANH constitutes feeding, and that such feeding reflects a basic human obligation and symbolizes the nurturing spirit of medicine. The courts have almost uniformly rejected this effort to differentiate between ANH and other forms of medical intervention. The judicial position has been that the need for ANH is prompted by disease or other pathology, and that the patient is as entitled to control ANH as any other medical response to bodily dysfunction. Some state legislatures, usually in the context of regulating advance medical directives, have been more sympathetic with the effort to distinguish between ANH and other medical means. This sympathy, though, has only generated a requirement in several states that the declarant in an instruction directive specifically mention ANH if the declarant wants to reject such treatment. The vast majority of jurisdictions still allow rejection of ANH, most of them without a requirement of separate mention of ANH. Early cases also hinted that a patient’s prerogative to reject treatment might be confined to end-stage care, i.e., when unavoidable death is near at hand. Those cases suggested that the government interest in preserving life might prevail against the patient’s autonomy interest unless life could only be temporarily sustained – when ‘the issue is not whether, but when, for how long and at what cost to the individual his life may be briefly extended’ (Satz v. Perlmutter 1978 at 162; Superintendent of Belchertown State School v. Saikewicz 1977). More recent cases clarify that the patient’s prerogative to resist medical intervention is not confined to the end-stage of a dying process or even to unavoidably terminal conditions (In re Peter 1987). This means that a patient can refuse treatment even at an early stage of a degenerative disease process and even in situations where the patient is salvageable to a healthful existence. (This last situation occurs primarily when, for religious reasons, a patient declines a potentially life-saving medical intervention.) Note that cardiopulmonary resuscitation (CPR) is governed by principles similar to those applicable to other forms of life-sustaining medical intervention. That is, a competent patient is entitled to dictate that CPR not be performed in the event of cardiac or respiratory arrest. Most hospitals have protocols for obtaining a debilitated

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patient’s (or, where appropriate, a surrogate’s) consent to a do-not-resuscitate (DNR) order that is then entered in the patient’s chart and signaled to medical personnel in some other fashion. Many states have also adopted protocols for honoring DNR orders in out of hospital settings. In addition, medical personnel may refrain from CPR where such intervention is highly unlikely to succeed in restoring continuous cardiorespiratory function.

MEDICAL FUTILITY That a competent patient can accept or reject proffered medical treatment does not mean that the patient is entitled to receive every medical treatment that the patient demands. Medical futility is a term often used to express an ultimate limitation on what services patients can demand. That term has aroused considerable dispute. Some sources assert a general medical prerogative to refuse to offer or supply services that are ‘not medically indicated’ or ‘futile.’ Other sources view the concept of medical futility as an attempt to reassert provider control of medical services and to undermine the patient’s prerogative to shape medical care (Rubin 1998). The issue of medical futility is complex. A healthcare provider may legitimately assert a prerogative to assess the physiological utility of possible treatments. That is, a physician’s professional judgment includes an assessment of the potential effectiveness of treatments, including a conclusion that a treatment modality will not have an impact on the patient. A conclusion of physiological futility permits a physician to withhold the treatment modality, subject only to two constraints. To avoid malpractice, the physician in judging treatment effects must meet professional skill standards. And the physician ought to inform the patient about the judgment of futility, so that the patient can obtain a second opinion. Where the issue is not physiological futility, but rather the appropriateness of sustaining a severely deteriorated life, the scope of professional judgment is limited (Jecker and Schneiderman 1993). Whether the quality of a remaining existence warrants continued medical treatment is largely a value judgment reserved for the competent patient or the patient’s representatives (in conjunction with medical staff) and is not an issue for unilateral medical judgment. A healthcare provider in an institutional context can ask for an ethics consult in the hope of clarifying the medical picture and inducing a patient or representative to alter course. A healthcare provider may also voice conscientious objections to continued medical intervention and may seek to withdraw from the case – with referral to a more cooperative clinician. But the provider cannot unilaterally terminate life support for a deteriorated but preservable patient. Very few cases speak to the concept of medical futility, especially in its qualitative sense involving a judgment that the remaining existence is not worth preserving. In a well-known Minnesota case, a hospital went to court

seeking a change of guardian when a husband insisted on continued respirator support for his permanently unconscious spouse (In re Wanglie 1991). The judge refused to oust the husband as guardian – since the husband purported to be implementing his wife’s wishes – and the life support continued. In a Massachusetts case called Gilgunn, the daughter of an elderly deceased patient sued Massachusetts General Hospital for having disconnected life support from the then-comatose patient, in contravention of the daughter’s instructions (Capron 1995). In that instance, the attending physician had secured an ethics consult and received endorsement, from the head of the hospital ethics committee, for removal of life support. A jury refused to award damages against the hospital. That jury verdict does not represent a general legal acceptance of a medical prerogative to unilaterally determine qualitative futility. Indeed, when a hospital sought judicial authorization to withhold ‘futile’ treatment to an anencephalic infant over the mother’s objections, the court declared that the hospital’s failure to provide the requested life-extending services would violate a federal statute requiring stabilizing treatment for any emergency medical condition (Matter of Baby K 1994). In sum, a healthcare provider can only hope to invoke the futility concept and to overturn a conscientious surrogate’s insistence on continued life support when the surrogate’s course is abusive – i.e., when the patient is being subjected to pointless suffering or when the surrogate’s course seems aberrant in diverging without explanation from what the vast majority of people would want (Cantor 1996a).

PALLIATIVE CARE: FROM RISKY ANALGESICS TO TERMINAL SEDATION Provision of effective pain relief is increasingly viewed as an integral part of medical responsibility to patients. In recent years, the medical profession has moved rapidly to increase education about pain control, to establish guidelines for practitioners engaged in treating intractable pain, and to eliminate perceived barriers to use of opioids as part of palliative care (Rich 2000). This increased sensitivity to palliative care probably comes in reaction to two phenomena: (i) studies showing that a high percentage of dying patients experience significant pain despite major advances in analgesic techniques; and (ii) claims by advocates for physician-assisted suicide (PAS) that unrelieved suffering of some dying patients necessitates resort to PAS. From a legal perspective, there is no question that healthcare providers are allowed to furnish effective analgesic relief, even when the pain medication poses some risk of hastening a patient’s death. The professional imperative to mitigate suffering justifies some risk of hastening death. The matter is analogous to a risky openheart surgery; the prospect of a patient’s major gain in quality of life justifies the risk involved in the surgery.

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Of course, professional guidelines exist for administration of pain relief, and healthcare providers must conform to them in order to avoid malpractice liability or professional discipline. Those guidelines dictate that risky pain relief be necessary – i.e., that the pain be intractable, that no less dangerous analgesic exist, and that dosage be titrated upward in a careful fashion. The conventional wisdom in medico-legal circles says that a healthcare provider can lawfully give a risky dose of analgesics as long as the impetus is a patient’s severe suffering and the provider’s specific intention is to ease suffering rather than to cause death. The New York State Task Force on Life and the Law observes: It is widely recognized that the provision of pain medication is ethically and professionally acceptable even when the treatment may hasten the patient’s death if the medication is intended to alleviate pain and severe discomfort, not to cause death. (N.Y. Task Force 1992)

This focus on the palliative care provider’s intention seeks to transpose the doctrine of double effect to the medico-legal context. Under that doctrine, a proportionately good effect (relief of suffering) may overcome a foreseeable bad effect (causing death) so long as the actor does not intend to accomplish the bad effect. The effort to use the doctrine of double effect, with its focus on a physician’s intention, seems inconsistent with traditional legal doctrine. Traditional doctrine establishes that it is criminal homicide to knowingly cause death, even if the actor’s motive or intention is to relieve suffering. Mercy killing has always been prohibited in the Anglo-American system. The better explanation for the legality of aggressive palliative care is found in criminal law principles of recklessness and justification that allow a measure of medical risk-taking. A physician is justified in incurring some risk of death (but not a certainty of death) in order to relieve a patient’s unbearable suffering (Cantor and Thomas 2000). No criminal responsibility is incurred unless the palliative care provider is reckless and departs grossly from professional standards. Current professional standards authorize risky analgesics where necessary to relieve intractable suffering. ‘The risk of death is justified, not because it is unintended but because there is no alternative approach that makes the risk of death less likely and the alleviation of suffering possible’ (Fleischman 1998 at 261). The fact that the physician administering pain relief is creating a risk of death rather than certainly precipitating death also helps differentiate legitimate pain relief from euthanasia.‘We view the administration of morphine to reduce suffering not really as killing but as an act of risking death to secure pain relief, analogous to risking death by submitting to a potentially life-saving operation’ (Wennberg 1989 at 105). Another form of aggressive pain relief is deep sedation rendering an egregiously suffering, dying patient

unconscious or stuporous during the remainder of a dying process. The medical objective is to relieve a variety of intractable physical or emotional conditions sometimes accompanying the dying process. Refractory physical suffering can be engendered by pain or discomforts such as nausea, vomiting, or dyspnea. Emotional suffering can be associated with respiratory distress, agitation, fatigue, incontinence, or helplessness. In the small percentage of cases in which customary palliative care does not adequately relieve suffering, deep sedation becomes a possible course. This is known as terminal sedation (TS), where the patient is likely to expire while still sedated. Most forms of deep sedation are clearly lawful under the principles of recklessness and justification discussed above. For example, deep sedation is frequently used as an adjunct to withdrawal of life-sustaining medical machinery such as extubation of a ventilator-dependent patient. To avoid any suggestion of criminality, care providers are expected to use sedative dosages commensurate with keeping the patient unconscious, but not killing them. Any modest risk that the sedatives will hasten death is justified by the need to relieve suffering. The same legal rationale applies to TS that is used when an egregiously suffering patient is within hours or days of death. Because the patient is near death, it is impossible to know definitively whether the sedation hastens death. But as long as the sedation is administered in quantity geared to maintaining unconsciousness, the risk that death might be hastened is justified by the palliative necessity. A problematic element sometimes connected with deep sedation is the simultaneous withholding of ANH. Some commentators contend that cessation of ANH serves as a gratuitous means to hasten the sedated patient’s death (via dehydration) – a gratuitous means assertedly akin to euthanasia because the relief of suffering is already accomplished by deep sedation (Orentlicher 1997). Withholding of ANH does not seem to pose a serious legal problem in the typical case, where the deep sedation is instituted only during the last few days of a patient’s dying process. The patient is already gravely debilitated and may well have naturally cut back on food and fluid intake, so it is impossible to establish that withholding of ANH causes death. Moreover, there is often a palliative justification – such as avoidance of pulmonary edema – for withholding ANH as part of end-stage care. The problematic aspect of TS surfaces if withholding of ANH takes place at an earlier point in the dying process, perhaps many weeks before the patient would normally die from the underlying disease. In that instance, death from dehydration might plausibly be shown. There is no real legal precedent, so analysis of this long-term TS accompanied by withholding of ANH must be tentative. One perspective is that once relief of suffering is achieved via deep sedation, withholding of ANH has no palliative function and therefore risking death by dehydration has no legal justification. As the patient may well intend that the rejection of ANH hasten death, overtones of

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suicide are present. If a healthcare provider contemplating administration of long-term deep sedation knows that the patient will reject ANH and therefore knows that the patient will die of dehydration, initiation of deep sedation knowingly sets in motion a fatal chain of events and might arguably be regarded as facilitation of a suicide – a step which raises some ethical, if not legal, qualms. A contrary perspective is that the patient voluntarily choosing longterm TS is exercising legitimate prerogatives that the care provider ought to respect. Certainly, deep sedation is a legitimate palliative step. A patient then resisting ANH is invoking an important interest in bodily integrity – a prerogative to resist bodily invasions long recognized in death and dying jurisprudence. For example, a dying patient is probably entitled to stop eating and drinking even though the result is to hasten death. And a dying patient resisting ANH has an important self-determination interest in avoiding the indignity of lingering indefinitely in a deeply sedated state. In a sense, long-term TS can be regarded as part of a natural dying process; a fatal pathology causes egregious suffering, necessitating deep sedation and that sedation, in turn, shuts down the natural alimentation system. This matter of long-term TS accompanied by withholding of ANH is legally uncharted territory.

PHYSICIAN-ASSISTED SUICIDE (PAS) AND VOLUNTARY ACTIVE EUTHANASIA (VAE) Advocates of death with dignity are not fully satisfied with the options currently available to the dying patient, such as rejection of life-sustaining medical intervention, access to analgesics, stopping of eating and drinking, or terminal sedation (in its clearly lawful forms). Each option usually entails some period of lingering in a highly debilitated or helpless state, and therefore offends the dignity that these advocates are intent on preserving. They therefore push for more expeditious means of hastening death – particularly PAS (giving a competent patient access to a lethal poison). Only Oregon has legalized PAS. Virtually all the remaining states treat assistance to suicide as a crime, either by statute or by common-law. Supporters of PAS have sought to overcome that legal hurdle by popular referendum, by proposed legislation, and by constitutional attack. Except in Oregon, the referendum/legislative route has thus far failed. Indeed, a significant number of states have in the last several years adopted legislation clarifying or reiterating opposition to PAS. Nor has the constitutional route to legalizing PAS succeeded to date. In 1996, two federal courts of appeals upheld constitutional attacks on the Washington and New York bans on PAS as applied to competent, suffering, terminally ill patients. But in 1997, in appeals from these decisions, the U.S. Supreme Court rejected the constitutional challenges to laws punishing assistance to suicide (Washington v. Glucksberg 1997; Vacco v. Quill 1997). State courts have similarly rejected constitutional challenges to laws barring PAS.

Proponents of PAS contend that it – as confined to a suffering, terminally ill patient – is morally and practically indistinguishable from other forms of hastening death that states have accepted. The ‘other forms’ reference is to medical withdrawal of life support at the patient’s behest and to medical use of risky analgesics or sedatives. The proponents’ constitutional attacks have focused on the claimed arbitrariness of state policy in barring PAS while accepting these other forms of hastening death. The Supreme Court in 1997 forcefully repudiated the constitutional challenge to laws banning PAS (Washington v. Glucksberg 1997). Chief Justice Rehnquist’s opinion acknowledged a patient’s 14th Amendment liberty right to choose death by rejecting life-sustaining medical intervention. But he viewed the constitutional liberty interest in rejecting life support as grounded in bodily integrity rather than autonomy to choose how and when to die. He also saw a rational distinction between rejection of medical intervention and ingestion of a poison. The former involves letting a dying process take its natural course while the latter involves a self-initiated precipitation of death. (Although a physician’s withdrawal of life support is in one sense an action precipitating death, it simply removes previously instituted obstacles to a natural dying process.) Chief Justice Rehnquist also referred to medical ethics as providing a plausible basis for distinguishing PAS. Many medical professional groups regard assistance in killing – such as the provision of a poison – as incompatible with the traditional medical role of curing and comforting. Finally, the Rehnquist opinion perceived certain hazards supposedly accompanying PAS as legitimate bases for the prevailing legal ban. The principal hazard cited was abuse of vulnerable populations. Dying patients are notoriously distressed and depressed, subject to influence or manipulation; moreover, elderly or minority patients might be subject to provider prejudice and therefore be particularly prone to manipulation. All these concerns about legalization of PAS are understandable but highly debatable. The Supreme Court made clear that states are free to resolve the public policy debate either by maintaining the status quo or changing direction, as did Oregon. The ultimate direction of public policy is hard to gauge. The killing/letting die distinction that is used to justify the continuing ban on PAS seems quite fragile. The notion that the ban on PAS symbolically reinforces sanctity of life is eroded by the public perception that both medical withdrawal of life support and administration of risky analgesics (in high, probably lethal dosage) are legally accepted forms of killing. Medical ethics also provide a fragile foundation for the ban on PAS. Although major professional organizations declare that assistance to suicide is incompatible with the medical role, goodly numbers of healthcare professionals perceive relief of a dying patient’s unbearable suffering – even by a poison, if necessary – as consistent with a palliative medical role where curative and restorative measures are no longer realistic.

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Fear of abuse of vulnerable populations looms as the most enduring obstacle to legalization of PAS. However, the purveyors of fear will have to explain why comparable abuses of vulnerable populations have not surfaced in other end-of-life contexts such as withdrawal of life support and use of risky analgesics. Hazards associated with depression, prejudice, and financial pressure potentially affect removal of life support just as they would affect PAS; yet no widespread abuse of vulnerable populations has occurred. Experience in Oregon and in The Netherlands will help determine whether the specter of abuse will continue to block legalization of PAS. It is too early to tell about Oregon, though early reports find no abuse there. The data regarding The Netherlands is controversial, with both pro and anti PAS observers finding support for their positions in the Dutch experience (compare Griffiths, Boud, and Wegers 1998 with Gomez 1991).

INCOMPETENT PATIENTS When the Quinlan case was pending in 1976, some commentators issued dire warnings about allowing disconnection of life support from incompetent, helpless persons. The cry was that detachment of Karen Ann Quinlan’s respirator would constitute murder and that its approval would lead to involuntary euthanasia of senile and other debilitated human beings. Yet the New Jersey Supreme Court resisted the in terrorem arguments. The court understood that requiring medical maintenance of all incompetent, dying persons, no matter how hopeless and deteriorated their condition, would impel inhumane and unwanted medical intervention. It ruled that Karen Ann Quinlan, if competent, would have a right to resist continued life support. In light of her incapacity, her right could be exercised by a conscientious guardian such as her loving father. Protection against abuse would be assured by the presence of attending medical personnel and by the scrutiny of a prognosis committee which had to be consulted. Most jurisdictions have followed the pattern fixed by Quinlan. That is, most states allow a conscientious guardian (usually, but not always, a close family member) to make end-of-life medical decisions on behalf of an incompetent, terminally ill patient. As will be explained below, the precise decision-making criteria and procedures vary from state to state. Many of the cases deal with permanently unconscious patients, like Ms. Quinlan, who obviously cannot benefit in any meaningful fashion from continued medical intervention. But a number of cases and statutes authorize withdrawal of life support from some persons still capable of relating to their environment. A small number of jurisdictions, fearing exploitation of helpless persons, exclude surrogate decisions ending life unless the now-incompetent patient has previously given clear indication of desiring such a course (In re Martin 1995; Edna M.F. v. Eisenberg 1997).

The thrust of most statutes and cases relating to dying, incompetent patients is to honor prospective autonomy – that is, they instruct surrogate decision makers to replicate, to the extent possible, what the formerly competent patient would want done in the circumstances at hand. That respect for following the formerly competent patient’s wishes pervades both the legislation governing advance medical directives and the case law and statutes applicable when no advance directive has been issued. The details follow.

Advance medical directives Every state allows a competent person to provide in advance for resolution of future medical issues in a postcompetence dying process. One device is to appoint a healthcare agent who will be responsible for directing medical personnel regarding any post-competence issues. (This agent may be known by diverse titles, such as proxy, surrogate, or conservator.) Having a healthcare agent, especially one who is familiar with the patient’s wishes, has obvious benefits. The agent will be functioning according to up-to-date information about the patient’s condition and prognosis rather than trying to anticipate circumstances months or years in advance of their occurrence. The agent can also act as an advocate and enforcer of the patient’s wishes in the event of resistance from healthcare providers. The relevant statutes instruct the appointed agent to follow the now-incompetent patient’s wishes as reflected in prior expressions or in other indicia of the patient’s values and preferences regarding end-of-life decisions. In the absence of discernible patient preferences, the agent is generally instructed by statute to follow the patient’s best interests. Whether or not a person appoints an agent, he or she can seek to control post-competence medical intervention by issuing advance instructions, sometimes called an advance directive, instruction directive, or living will. In this chapter, the term advance directive will be used (hereinafter AD). Some commentators doubt the utility or efficacy of ADs. At the moment of drafting an AD, a declarant must anticipate a multitude of possible postcompetence medical scenarios. Moreover, the declarant must project how he or she will feel in a variety of inherently unknowable incompetent mental states. Some commentators also argue that the values or preferences of a previously competent declarant do not matter once the patient is gravely debilitated and cannot appreciate the deviation from his or her prior instructions (Dresser and Robertson 1989). These objections do not obviate the importance of an AD. While a declarant may be unable to anticipate the precise scenario to be faced, that person may have welldeveloped and enduring notions of dignity, religion, and consideration for loved ones that the person wants to shape future medical handling. Personal values and preferences

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reflected in an AD can be important even if their violation will not be sensed in the person’s future debilitated state. People care mightily whether their cherished values, including dignity, will ultimately be respected in the dying process. Accordingly, virtually all jurisdictions provide that a person’s articulated wishes contained in an AD should be honored. Note that an AD may accompany the appointment of a healthcare agent and even form a single document both naming and instructing a healthcare agent. The agent is then charged with implementing the AD as part of his or her responsibility to fulfill the declarant’s wishes. Note also that appointment of a healthcare agent and instructions contained in an AD become effective only when a person has lost capacity for medical decision making. While still competent, a patient retains decision-making control though the patient could choose to share decision making with others or even delegate responsibility to others. Certain intrinsic difficulties of ADs preclude their ever being a panacea regarding end-of-life decision making. Perhaps because thinking about the dying process is generally distasteful, only a modest percentage of people (usually estimated at 20 per cent) prepare ADs. Even when an AD is present, physicians sometimes insist on following their own treatment preferences rather than those of the declarant – particularly if the physician perceives that the advance instructions conflict with the current best interests of the now-incompetent patient. Sometimes, a designated healthcare agent or other surrogate becomes distraught or guilt-ridden and unable to implement the advance instructions. Medical uncertainty also poses an unavoidable obstacle to the implementation of ADs. A document may provide for cessation of life support when there is no longer a ‘significant’ or ‘realistic’ chance of ‘recovery’; yet physicians may not be able to say definitively whether the patient will recover or whether any prospective recovery will be accompanied by serious impairments. All these factors impede the effective utilization of ADs. The biggest obstacle, however, is the imprecision or vagueness frequent in ADs. A common model contains one operative sentence instructing a surrogate decision maker: ‘If I [the declarant] should be in an incurable or irreversible mental or physical condition with no reasonable expectation of recovery, I direct my attending physician to withhold or withdraw treatment that merely prolongs my dying.’ Such language is presumably intended to avoid a lingering, undignified demise, but it does not elucidate the particulars of debilitation or indignity that would be intolerable to the declarant. An AD ought to provide more meaningful guidance by focusing on the elements of indignity – such as mental deterioration, immobility, or helplessness – that the declarant deems personally intolerable. Certain ADs allow specification of personally intolerable levels of deterioration (Cantor 1998 at 646–52), but the bulk of ADs continue to be vague and uninformative.

Statutes in some jurisdictions purport to limit the effectiveness of ADs to where the patient is in a ‘terminal condition,’ variously defined. If strictly applied, such statutory provisions would impede implementation of ADs at early stages of degenerative dying processes or where the deteriorated, incompetent patient is maintainable for a substantial period. In most instances, though, the governing statute contains a saving provision saying that the statutory framework does not derogate from the existing common-law prerogatives of the declarant. Those common-law prerogatives probably encompass a right to dictate in advance withholding of life-sustaining treatment even if the now-incompetent patient has not yet reached the end-stage of a dying process or a statutorily defined ‘terminal condition.’

Decision-making standards binding surrogates As noted, most people do not provide advance instructions regarding end-of-life medical treatment. The states vary widely in the judicially or statutorily defined standards or criteria that are then supposed to govern surrogate decisions on behalf of incompetent, dying patients. The following material sketches the divergent legal approaches.

CLEAR AND CONVINCING EVIDENCE Courts in a small number of states, most notably Missouri and New York, have ruled that surrogates (aside from designated healthcare agents) can only end life support where the patient previously left clear and convincing evidence that he or she would want that course followed under the circumstances now at hand (Westchester Medical Center 1988; Cruzan v. Harmon 1989). This position is grounded in the apprehension that helpless patients would otherwise be abused by insensitive quality of life decisions on the part of prejudiced or self-interested decision makers (Fitzgerald 1997). The hesitance about surrogate conduct is not entirely unfounded. There have indeed been some instances when parents and healthcare providers made imprudent terminal decisions resulting in the deaths of disabled infants. Perhaps the most notorious case was Infant Doe in 1982 (Note 1983), when parents ordered withholding of life-sustaining intervention from a Down’s syndrome newborn because they projected that any such handicapped child must have an unhappy life (Filene 1998 at 109–10). Although well-intended, the requirement of clear and convincing evidence of the now-incompetent patient’s wishes to withdraw life support represents a harsh and inhumane constraint on end-of-life decision making. Very few people articulate their prospective wishes with the precision demanded by these few courts. The consequence, under the clear and convincing evidence approach, is that many individuals will be forced to linger in gravely

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debilitated states (such as permanent unconsciousness) that they would almost surely have wished to avoid (had they expressed their preferences). For the nevercompetent patient, the person who has always been severely developmentally disabled, the result is presumably that all possible life-maintenance must be continued, as such a person could not have given clear and convincing evidence of a wish to die. Again, the result is harsh as patients would have to be sustained no matter how much suffering or debilitation was being endured. Though the clear and convincing standard is harsh and imprudent, it is constitutional. In 1990, the U.S. Supreme Court considered a challenge to the Missouri policy precluding withdrawal of life support from a patient absent clear and convincing evidence of previously expressed wishes. The challenge came from parents who sought removal of a nasogastric tube from their adult daughter who had been reduced to a permanently unconscious state by a traumatic injury (Cruzan v. Director, Missouri Dept. Health 1990). A majority of the Supreme Court ruled that Missouri’s approach was constitutionally defensible as a means of protecting helpless, incompetent persons against abuse at the hands of surrogates who might find the patients’ continued existence to be burdensome or inconvenient. Fortunately, the vast majority of jurisdictions trust surrogates, in conjunction with healthcare providers, to make end-of-life medical decisions for incompetent patients in circumstances beyond those of clearly articulated prior wishes. Those alternative approaches follow.

SUBSTITUTED JUDGMENT In the mid-1970s to mid-1980s, when death and dying jurisprudence was largely being shaped, a number of courts proclaimed that an incompetent patient should enjoy ‘the same panoply of rights’ as a competent person (Superintendent of Belchertown State School v. Saikewicz 1977; In re Colyer 1983; John F. Kennedy Hospital v. Bludworth 1984). This would include the competent patient’s right to reject life-sustaining medical intervention. The notion of ‘the same panoply of rights’ honors autonomy by indicating that a person’s personal values and preferences ought to govern medical treatment even after competence is lost. A surrogate can seek to implement the patient’s autonomy right by choosing the course that the patient would choose for himself or herself if able. Substituted judgment is one name for the decisionmaking standard that strives to implement the nowincompetent patient’s previous wishes regarding end-of-life treatment. The surrogate decision maker is instructed to replicate what the now-incompetent patient would choose if that patient were miraculously competent and aware of all the circumstances confronting the patient. A number of jurisdictions explicitly adopt a substituted judgment approach (e.g., Superintendent of Belchertown State School v. Saikewicz 1977; In re Estate of Longeway 1989). Under that approach, the patient’s previously

expressed wishes or preferences – in the form of an AD or otherwise – would govern the surrogate’s decision. The surrogate’s task may be easy enough where an explicit AD exists, where the patient has left oral instructions, or where the patient adhered to religious or philosophical positions that dictate the course that the patient would follow in the circumstances. The problem occurs in the many instances when the now-incompetent patient has not left clear indicia of end-of-life treatment preferences. Some jurisdictions employ a loose substituted judgment approach and expect the surrogate to extrapolate the patient’s likely choice based on whatever knowledge is available about the patient’s previous values and preferences. That approach is especially common where the patient is in a permanently unconscious state (In re Jobes 1987). Some sources are skeptical, however, of a surrogate’s capacity to project the now-incompetent patient’s likely choice where there are no clear-cut prior expressions regarding end-of-life care. They are fearful that the surrogate will project the surrogate’s own values and preferences rather than the patient’s (Wicclair 1993 at 56–60). Many jurisdictions view the subjective or substituted judgment approach – seeking to discern the patient’s actual wishes – as only a starting point in a decisionmaking spectrum (Pollock 1989). In the absence of meaningful indicia of the patient’s preferences regarding end-of-life treatment, the surrogate is expected to shift to a best interests of the patient approach (In re Conroy 1986). That approach acknowledges the possibility that the burdens of continued existence might outweigh the benefits, i.e., that the incompetent patient might be better off dead than alive. That standard has its own difficulties, now to be considered.

BEST INTERESTS OF THE PATIENT While public policy respects autonomous choice, a nowincompetent patient’s actual preferences about end-oflife treatment often cannot be reliably determined. Many jurisdictions – either by statute or case law – then prescribe that the patient’s best interests should guide surrogate decision making on behalf of the incompetent patient. The best interests approach is supposed to be an objective one geared to promotion of the patient’s well-being. Well-being usually means continued existence, yet there may be circumstances where the burdens of continued existence outweigh the benefits, i.e., where the incompetent patient would be better off dead than alive. In those instances, surrogates may, consistent with best interests, seek removal of life support. This approach sounds simple enough, but significant difficulties occur either in defining the relevant burdens or in measuring them vis-à-vis the benefits of continued living. The overall object of the best interests approach helps define the components of best interests – the relevant burdens and benefits to be assessed. The basic object is to treat people the way they would want to be treated and,

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in the absence of definitive indicia of their actual preferences, the assumption is that incapacitated patients want to be treated the way most people would want to be treated in the circumstances. Thus, the components of best interests are formulated according to perceptions of what the average person (sometimes known as the reasonable person) would deem to be critical factors in end-of-life decisions (Wicclair 1993; Strasser 1995 at 778). This means a starting presumption favoring maintenance of life (as most people, even those grievously ill, want to keep living) and an accompanying principle that extreme suffering is intolerable (given people’s common aversion to extreme pain). Again, the hope is to implement the patient’s likely choice by having the surrogate act according to the factors and criteria most people would choose for themselves. (Keep in mind that this approach does not ignore the patient’s personal preferences. Any discernible, competently expressed wishes govern the patient’s medical fate – either because an inquiry into subjective preferences precedes resort to best interests or because a person’s selfdefined best interests count in the best interests calculus.) While severe suffering is a relevant burden in any best interest approach, assessment of that element of burden can be a daunting task. In many instances, the extreme debilitation of the incompetent patient prevents effective communication of feelings and therefore impedes understanding of the patient’s experiential reality. Those surrounding the dying patient then must struggle to interpret cryptic clues – including enigmatic sounds, gestures, facial expressions, and non-verbal behavior (Dresser 1994 at 666–91). Do moans and tugging at tubes reflect unbearable suffering or just reflexive response to an annoyance? Does a smile reflect pleasure or just gratitude for a kind, but futile, gesture by a care provider? To what extent does the patient’s incomprehension increase the anxiety and fear accompanying medical interventions? In short, problems of measurement or assessment plague any surrogate seeking to determine the level of suffering of an incompetent patient, or the relative weights of suffering and satisfaction. ‘The real burdens and benefits of life in extremely debilitating circumstances are often beyond our ability to know confidently or comprehend fully’ (Peters 1989 at 942; Strasser 1995 at 744–5). Some uncertainty about the component elements of best interests also plagues application of that standard. A prime example is the well-being of the incompetent patient’s surrounding loved ones. Can the surrogate decision maker consider the emotional and financial impact on the patient’s loved ones in fixing the medical course to be followed? One perspective is that most people would include loved ones’ emotional and financial well-being in defining their own best interests in end-of-life situations (President’s Commission 1983). Most people do not want to become a burden to their families and therefore want the impact on loved ones to be considered. Accordingly, a few cases mention family interests as a legitimate factor within a best interests approach to surrogate decision

making. A contrary perspective is that injection of nonpatients’ interests entails a balancing of the value of one person’s life against the financial and emotional strains upon others. This kind of utilitarian calculus has always been anathema in the context of individual end-of-life decision making due to the incommensurability of a life contrasted with other people’s burdens and to revulsion toward Nazi efforts to apply a utilitarian calculus to helpless medical patients. An alternative, intermediate approach would allow consideration of family or caregiver interests only if the patient either stipulated that such factors should be considered or if the patient’s consistently expressed values embraced such an altruistic approach. In the meantime, no consensus exists regarding the role of family interests within a best interests formula. Another controversial component of the best interests formula is quality of life. The 1983 President’s Commission listed ‘quality as well as the extent of life sustained’ as a major element of the best interests standard (President’s Commission 1983 at 135). This is fully consistent with the underlying object of identifying factors that a reasonable person would deem to be part of best interests. Most people care mightily about the quality of life, particularly extreme mental deterioration, in a post-competence stage of a dying process (Singer, Martin, and Kelner 1999). Not surprisingly, courts that embrace a best interests standard frequently mention quality of life (in the form of elements such as loss of function, humiliation, dependence, and loss of dignity) as a relevant consideration for a surrogate. The trick, though, is to identify a level of deterioration so demeaning and distasteful for the reasonable person that life becomes worse than non-existence (Arras 1988). Some sources criticize use of quality of life as a factor within best interests. They regard quality of life as an imprecise, value-laden notion lacking a consistent content and subject to exploitation by surrogates indifferent or hostile to the fate of debilitated, vulnerable patients. This concern over abuse of quality of life determinations was in large part responsible for the narrow approach, previously described, prevailing in New York, Missouri, and a few other jurisdictions. That approach excluded surrogate removal of life support absent clear and convincing evidence of actual patient preferences. An alternative approach to surrogate decision making is available – an approach which acknowledges people’s common preoccupation with dignity in end-of-life care and recognizes the difficulty of assessing the current feelings of deeply demented patients, yet precludes arbitrary or abusive quality of life determinations.

CONSTRUCTIVE PREFERENCE AS A GUIDE TO DEATH WITH DIGNITY I suggest a surrogate decision-making standard, called constructive preference, that promotes the central mission of both the substituted judgment and best interests formulae – replication of what the now-incompetent

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patient would want done in the circumstances confronting the dying patient (Cantor 1996b at 1257–72). The premise of constructive preference is that the vast majority of people care about indignity in the dying process, and that common preferences about intolerable levels of indignity can be ascertained and used to guide surrogate decision makers. At least as to certain commonly occurring end-of-life scenarios, strong majority preferences can be objectively determined and used as default presumptions (in the absence of actual, competently expressed preferences) guiding surrogates. The societal importance of avoiding indignity in the dying process is patent. People fear that grave debilitation will entail embarrassment and/or frustration stemming from helplessness, dependence, and incapacity. Even if these distasteful feelings might not materialize, people care about the image and recollections that they will leave behind, images in the minds of loved ones that may be soiled by the patient’s extreme mental and physical deterioration during the dying process. These common preoccupations with indignity in the dying process are readily observable in the context of competent patients contemplating their prospective medical fates – in decisions to reject life-sustaining medical intervention, in advance medical directives, and in attitudinal surveys showing ‘paramount importance [attached to] … functional independence and the maintenance of mental faculties’ (Danis et al. 1988; Moller 1990 at 20). Of course, many commentators express concern about the possible imprecision and subjectivity of the dignity concept in end-of-life decision making. Sanford Kadish remarks: ‘The difficulty is that we have no way to make confident judgments about how far cognitive and physical deterioration must go before life ceases to be worth living, because the value judgments implicit in such a conclusion are in sharp contention in our society’ (Kadish 1992 at 882). To avoid arbitrariness and abuse, then, dignity-based guidelines must be grounded in reliable measures of what most people deem to be intolerable indignity in the dying process. The tools do exist for assessing common attitudes about indignity in the dying process. Two primary sources of data about competent persons’ preferences about their own medical fates are advance medical directives (viewed in bulk) and surveys regarding prospective medical handling. Some advance directives – particularly where the declarant has completed a values profile – communicate patients’ visions of intolerable indignity in the dying process (Cantor 1998). Many surveys scrutinize people’s preferences regarding end-of-life decisions and highlight attitudes toward elements of indignity often encountered in dying patients, such as incapacity to feed or dress oneself, incontinence, and severe dementia. Those sources can provide definitive guidance as to prevailing attitudes toward certain commonly confronted end-of-life scenarios. Some implications of a constructive preference approach to surrogate decision making are apparent. For

example, permanent unconsciousness is an intolerably undignified status under contemporary societal standards. Public surveys, judicial decisions upholding surrogate decisions, and legislative enactments all confirm that indefinite maintenance in a permanently insensate, immobile status is intolerably demeaning to the vast majority of people contemplating their own medical fate. Because of this overwhelming majority sentiment, the presumption under a constructive preference standard would be that a permanently unconscious patient would prefer death to an existence devoid of all sensation or feeling. A surrogate would be expected to seek removal of life support from any such patient unless the surrogate presented significant indication that the particular patient deviated from the strong majority sentiment about permanent unconsciousness. A similar presumption might ultimately be extended to dying persons who are so demented as to be unable to recognize and interact with other people. Many people regard such an existence as intolerably undignified for themselves. Depending on how prevalent that personal preference is – a question to be resolved by ongoing inquiry – a surrogate would either be expected to allow such a patient to expire without further medical intervention (if a strong majority of persons generally desire such a course for themselves) or the surrogate would have the discretion to end life support. Such surrogate discretion would exist if a substantial percentage (but less than a strong majority) of persons find the profoundly demented status to be intolerably undignified. The precise content of constructive preference presumptions would evolve over time as more data becomes available about people’s end-of-life preferences. The approach applies only to previously competent persons who never provided explicit guidance or clear-cut indications about end-of-life treatment preferences. As to such patients, it makes sense to ascertain what most people would want in similar circumstances and to treat the nowincompetent patient accordingly. As long as constructive preference’s default presumptions are anchored in objective data concerning what competent people consider an intolerably undignified existence for themselves, those default principles would effectively restrain surrogates’ arbitrary or subjective visions of what lives are worth preserving.

REFERENCES Application of Georgetown College, 331 F.2d 1000 (D.C. Cir. 1964). Arras, J.D. 1988. The severely demented, minimally functional patient: an ethical analysis. Journal of the American Geriatric Society 36, 938–48. Cantor, N.L. 1996a. Can heath care providers obtain judicial intervention against surrogates who demand

Death, dying, and the law 327 medically inappropriate life support for incompetent patients? Critical Care Medicine 24, 883–7. Cantor, N.L. 1996b. Discarding substituted judgment and best interests: toward a constructive preference standard for dying, previously competent patients without advance instructions. Rutgers Law Review 48, 1193–272. Cantor, N.L. 1998. Making advance directives meaningful. Journal of Psychology, Public Policy and Law 4, 629–52. Cantor, N.L., Thomas, G.C., III. 2000. The legal bounds of physician conduct hastening death. Buffalo Law Review 48, 83–173. Capron, A.M. 1995. Abandoning a waning life. Hastings Center Report 25, 24–6. Cruzan v. Director, Missouri Dept. Health, 497 U.S. 261 (1990). Cruzan v. Harmon, 760 S.W.2d 408 (Mo. 1989). Danis, M., Patrick, D.L., Southerland, L.I., Green, M.L. 1988. Patients and families’ preferences for medical intensive care. Journal of the American Medical Association 260, 797–802. Dresser, R. 1994. Missing persons: legal perceptions of incompetent patients. Rutgers Law Review 46, 609–99. Dresser, R., Robertson, J. 1989. Quality of life and non-treatment decisions for incompetent patients: a critique of the orthodox approach. Law, Medicine and Health Care 17, 234. Edna M.F. v. Eisenberg, N.W.2d (Wis. 1997). Filene, P. 1998: In the Arms of Others: A Cultural History of the Right to Die in America. Chicago, IL: I.R. Dee. Fitzgerald, W.A. 1997. Engineering perfect offspring: devaluing children and childhood. Hastings Constitutional Law Quarterly 24, 833–61. Fleischman, A.R. 1998. Commentary, Ethical issues in pediatric pain management and terminal sedation. Journal of Pain and Symptom Management 15, 260–1. Fosmire v. Nicoleau, 551 N.E.2d 77 (N.Y. 1990). Gasner, M.R. 1990. The unconstitutional treatment of Nancy Cruzan. New York Law School Journal of Human Rights 7, 40–63. Gomez, C.F. 1991: Regulating Death: Euthanasia and the Case of the Netherlands. New York, NY: Maxwell Macmillan International. Griffiths, J., Boud, A., Wegers, H. 1998: Euthanasia and Law in the Netherlands. Amsterdam: Amsterdam University Press. In re Colyer, 660 P.2d 738 (Wash. 1983). In re Conroy, 486 A.2d 1209 (N.J. 1986). In re Estate of Longeway, 549 N.E.2d 292 (Ill. 1989). In re Jobes, 529 A.2d 434 (N.J. 1987). In re Martin, 538 N.W.2d 399 (Mich. 1995). In re Peter, 529 A.2d 419 (N.J. 1987). In re Quinlan, 355 A.2d 647 (N.J. 1976). In re Wanglie, PX-91-283 (4th Judicial Dist. Minnesota Hennepin County, July 1991).

Jecker, N.S., Schneiderman, L.J. 1993. Medical futility: the duty to treat. Cambridge Quarterly of Health Care Ethics 2(2), 151–9. John F. Kennedy Hospital v. Bludworth, 452 So.2d 921 (Fla. 1984). Kadish, S.H. 1992. Letting patients die: legal and moral reflections. California Law Review 80, 857–88. Matter of Baby K., 16 F.3d 590 (4th Cir. 1994), cert. denied 115 S.Ct. 91 (1994). Moller, D.W. 1990: On Death Without Dignity: The Human Impact of Technological Dying. Amityville, NY: Baywood Publishing Company. New York State Task Force of Life and the Law. 1992: When Others Must Choose: Deciding for Patients Without Capacity. Note. 1983. Withholding treatment from defective infants: ‘Infant Doe’ postmortem. 59 Notre Dame Law Review 224, 225–35. Orentlicher, D. 1997. The Supreme Court and terminal sedation: rejecting assisted suicide, embracing euthanasia. Hastings Constitutional Law Quarterly 24, 947. Peters, P.G. 1989. The state’s interest in the preservation of life: from Quinlan to Cruzan. Ohio State Law Journal 50, 891–977. Pollock, S.G. 1989. Life and death decisions: who makes them and by what standards? Rutgers Law Review 41, 505–40. President’s Commission for the Study of Ethical Problems in Medicine. 1983: Deciding to Forgo Life-Sustaining Treatment. Rich, B. 2000. A prescription for the pain: the emerging standards of care for pain management. 26 William Mitchell Law Review 26, 1–00. Rubin, S.B. 1998: When Doctors Say No: The Battleground of Medical Futility. Bloomington, IN: Indiana University Press. Satz v. Perlmutter, 362 So.2d 160 (Fla. Dist. Ct. App. 1978). Singer, P.A., Martin, D.K., Kelner, M. 1999. Quality end-of-life care: patients’ perspectives. Journal of the American Medical Association 281, 163. Strasser, M. 1995. Incompetents and the right to die: in search of meaningful standards. Kentucky Law Journal 83, 733–99. Superintendent of Belchertown State School v. Saikewicz, 370 N.E.2d 417 (Mass. 1977). Vacco v. Quill, 521 U.S. 793 (1997). Washington v. Glucksberg, 521 U.S. 702 (1997). Webb, M. 1997: The Good Death: The New American Search to Reshape the End of Life. New York, NY: Bantam Books. Wennberg, R.N. 1989: Terminal Choices: Euthanasia, Suicide, and the Right to Die. Grand Rapids, MI: W.B. Eerdmans Publishing Company. Westchester Medical Center, 534 N.Y.S. 2d 886, 521 N.E.2d 607 (N.Y. 1988). Wicclair, M.R. 1993: Ethics and the Elderly. New York: Oxford University Press.

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PART

5

Family law and domestic relations

36 Role of the psychiatric evaluator in child custody disputes Stephen B. Billick and Steven J. Ciric

331

37 Termination of parental rights and adoption Shashi Elangovan and Stephen B. Billick

348

38 Childhood attachment, foster care and placement Lisa R. Fortuna and Stephen B. Billick

366

39 Forensic evaluation of physically and sexually abused children Rodrigo Pizarro and Stephen B. Billick

377

40 Juvenile delinquency Roy H. Lubit and Stephen B. Billick

389

41 Posttraumatic stress disorder in children and adolescents: clinical and legal issues James E. Rosenberg and Spencer Eth

396

42 Forensic aspects of suicide and homicide in children and adolescents Peter Ash, Richard J. Gersh and Stephen B. Billick

407

43 The child as a witness Robert Suddath

419

44 Violent adolescent offenders Roy J. O’Shaughnessy

441

45 Adolescent sexual offenders Meg S. Kaplan and Richard B. Krueger

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46 Neuroimaging in child and adolescent psychiatry Stephen B. Billick and Stephen P. Sullivan

463

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36 Role of the psychiatric evaluator in child custody disputes STEPHEN B. BILLICK AND STEVEN J. CIRIC

The role of the psychiatric evaluator in child custody cases continues to be challenging, as both the need for such evaluations remains high, and the decision-making process in determining custody is increasingly more complex. The demand for competent psychiatric evaluators in part has been driven by the rising divorce rate. Levy (1985a) cited an increase of 200 per cent in the divorce rate in the United States from 1960 to 1977. Amato and Keith (1991) stated that 40–50 per cent of children will experience the divorce of their parents. The American Academy of Child and Adolescent Psychiatry (1997) provided a more contemporary estimate, consistent with data from the National Center for Health Statistics (1997), that one in two marriages ends in divorce. This affects about one million children each year, and approximately 10 per cent of divorces involve custody litigation. In addition, the American family continues to change. Consider remarriages, co-habitation, single parent and alternative families, and issues such as reproductive technologies and DNA testing for paternity. This has contributed to the growing number and complexity of child custody disputes.

IMPACT OF DIVORCE ON CHILDREN The psychological impact of divorce on both children and parents can be far-reaching and may further contribute to the need for a psychiatric evaluator, who may be able to diminish future ill effects. The sequelae of the divorce process on children are dependent on many factors and are not automatically pathogenic. Most controlled research (e.g., a comparison non-divorced group, or controlling for degree of pre-divorce psychological problems) finds that children from divorced and married families differ little, and underscores the resilience of most children to ‘bounce back’ from the stress of divorce (Emery and Coiro 1995; Hetherington and Stanley-Hagan 1999). However, other

evidence possibly points to a greater risk for psychological problems among children of divorced families. For instance, Wallerstein, Lewis, and Blakeslee (2000) cited national studies which demonstrate that children from divorced families have more depression, learning and interpersonal problems, and utilize more mental health services into adulthood than their peers from intact families. Re-analyzing three decades of data from the New York Longitudinal Study of Chess et al. (1983), Shaw, Emery, and Tuer (1993) conducted a prospective examination of parental functioning and children’s adjustment before divorce, and found no consistent differences between children from to-be-divorced and always-married families. However, they did find that a consistent predictor of the children’s poor adjustment following divorce was parental conflict prior to divorce. They also found that boys showed more post-divorce behavioral difficulties than girls did, consistent with prior research (e.g., Zaslow 1988; Wallerstein 1991). They suggested that this might involve the boys’ loss of daily contact with the samegender parent, as the non-custodial parent is usually the father. Wallerstein (1991) suggested that the observed gender difference may involve a ‘sleeper effect’ for girls, who go on to experience interpersonal problems in young adulthood. Lahey et al. (1988) reported a significantly higher incidence of parental antisocial personality disorder in divorced families with boys who developed conduct disorder, giving rise to the consideration that a child’s post-divorce psychiatric problems might not be due to the divorce itself. Instead, there may be a genetic component to the dysfunction in some parents and their offspring that variously contributes to both the pre-divorce marital hardship and deficient parenting, as well as the postdivorce maladjustment in the child. This viewpoint has found support in subsequent research (Jocklin, McGue, and Lykken 1996). The adverse effects of divorce on children have been discussed extensively by Wallerstein and Kelly (1980) and

332 Family law and domestic relations

Wallerstein, Lewis, and Blakeslee (2000). In 1971, Wallerstein and her colleagues originally selected 131 children and their parents from sixty middle-class families in Marin County, California who were going through separation and divorce. The subjects were referred by their family law attorneys on the basis of their willingness to participate in the study (neither randomized nor controlled). The children had to be developmentally normal and free of psychiatric problems. Follow-up interviews and studies took place at eighteen months, five years, ten and finally twenty-five years post separation. They report that about half of the children have difficulties during the first year after divorce, and identify factors associated with prolonged post-divorce maladjustment. The most notable factors are high levels of parental discord, parental mental illness, poor pre-divorce parenting, and a custodial parent burdened by emotional, physical, social or economic stresses. Wallerstein and Kelly described that younger children may experience regression, neediness, increased aggression, low self-esteem, and a feeling of responsibility for their parents’ separation. Middle school-aged children may suffer a disrupted sense of identity, multiple somatic complaints, depression, anger, anxiety, or fear. They also may feel responsible for the divorce, or have fantasies of reconciliation. There may be conflicts of loyalty for one parent over the other. Teenage children of divorcing parents may have anxiety about the success of their own future relationships, and they may be disturbed by suddenly changed perceptions of their parents. They may also attempt to cope with the stress of the divorce through social withdrawal or through accelerated individuation and separation from their parents. Wallerstein, Lewis, and Blakeslee (2000) observed that the children from the divorced families in the California study, now adults, have experienced great difficulty and worry in seeking out partners of their own. They described that many of the children demonstrated an apparent resiliency in adjusting to the divorce, in some instances actually taking on increased responsibilities in attempting to care for their distressed parents. However, the adverse impact of the experience is seen over time, on identity and personality, so that by adulthood the ‘children of divorce’ have the most difficulties, with trust, relationships, and coping with change. In another study, further evidence suggests that when a divorce is associated with a move to a less stressful situation, children in divorced families are similar in adjustment to intact families with non-distressed marital relations (Hetherington 1999). Unfortunately, the psychiatric evaluator, in a custody dispute context, is more likely to see high-conflict families. The psychiatric evaluator can be of great help to both children and their parents by educating all involved about the types of stresses that may be experienced by the children. The evaluator should also address the effects of divorce on the separating parents. Parents often feel a sense of loss that can lead to

depression, anger, or a desire for revenge against the other parent. Levy (1985a) has noted that these feelings may play a role in a parent’s motivation for seeking custody. A psychiatric evaluator, who can help clarify these feelings and motives for parents, may have a profound effect on the decision of custody.

HISTORICAL PERSPECTIVE Changes in custody decision-making have been influenced by many factors, including evolving recognition of the rights of children and women, shifting legal emphasis toward individual rights and equal protection, and research in child development and attachment. Derdeyn (1976) wrote that in ancient times ‘the father had absolute control over his children and could will or condemn them to death with impunity.’ For many years in England and in the United States there was little question as to who would have custody of children, since children were considered to be chattels, the property of the father (Sadoff and Billick 1981; Solnit and Schetky 1986). The father assumed custody usually without involvement of the state. In many ways this was in the best interests of the child, since in those times the father was generally best able to provide for the children. Little concern was given, however, to the rights of children, for they had none.

The tender years Following the British Act of 1839 advanced by Thomas Noon Talfourd, the ‘tender years doctrine’ eventually became the primary standard for determining child custody (Kelly 1994). This doctrine is based on the presumption that there is a unique relationship between mothers and infants in their ‘tender,’ early years, that is presumed to foster optimal development of the infant. Sadoff and Billick (1981) have discussed how the ‘tender years doctrine’ introduced the psychiatrist and psychologist into the domestic relations court to present expert testimony regarding parent–child relationships, emotional needs of developing children, and predictions of outcome of various parent–child arrangements. The application of this doctrine led to the change of usual custody resolutions, and mothers gained custody in greater proportion to fathers. Also, the ‘tender years doctrine,’ which originally referred only to infants, was later expanded to include young children (e.g., less than seven years old), and even later to virtually all children. Kelly (1994) notes that by the 1920s, the maternal preference in custody determinations had replaced the earlier paternal preference. The widespread use of this doctrine by the courts in part was made possible by concurrent changes in views espoused by the women’s rights movement of the late nineteenth and early twentieth centuries. As women gained the rights to vote, own property, receive alimony and child support, and as they developed new educational and employment

Role of the psychiatric evaluator in child custody disputes 333

opportunities, they were much better able to assume custody of their children. The ‘tender years doctrine’ also found support in developing psychoanalytic theory, which emphasized the mother’s role as unique, and in earlier infant attachment theory (Kelly 1994).

The best interests of the child The ‘best interests of the child’ standard, which guides most custody decisions today, has grown with the increasing recognition of the rights of children and in the context of changing attitudes of the courts. In the landmark case of Painter v. Bannister (1966), the Iowa Supreme Court held in a custody dispute between a child’s father and maternal grandparents that ‘the primary consideration is the best interest of the child.’ The justices determined that the child, whose Iowa-born mother had died in a car accident, was to remain in the custody of his stable and midWestern grandparents rather than return to his remarried, California-born, and ‘Bohemian’ father. In Watts v. Watts (1973), a New York State Family Court held that maternal preferred custody statutes (embodiments of the ‘tender years doctrine’) violated fathers’ equal protection rights under the Fourteenth Amendment (Kelly 1994). The model Uniform Marriage and Divorce Act, proposed by the American Bar Association in 1970, further established the notion and language of the ‘best interests of the child’ standard that was subsequently adopted by most states. The Act also stated that a court should consider continuity in parenting, the quality of the parent– child relationships, the physical and emotional health of all parties involved, and a child’s wishes if he or she is deemed to be of sufficient age and capacity to form an intelligent preference. Ash and Guyer (1984) have discussed how the ‘best interests’ standard, by focusing more on psychological questions than previous standards, contributes to an increased use of psychiatric evaluators by the court. This focus on the child’s rights, and healthy development was consistent with changes already taking place in the areas of compulsory education, child labor laws, and child abuse protection laws in the twentieth century. The application of this standard was the focus of Goldstein, Freud, and Solnit’s Beyond the Best Interests of the Child (1979). They suggested the less sanguine language of a ‘least detrimental alternative’ as a more realistic standard that appreciates the inevitable harm to a child in any divorce. Other criticism of the ‘best interests’ standard is that it is too vague, and apt to be variably interpreted through the lens of judicial bias. Also, precisely because it theoretically allows for an equal opportunity for both parents to secure custody, it may foster acrimony and the adversarial quality of divorce litigation. Although concern has been raised that the standard may force women to trade off spousal and child support to secure custody, research has not demonstrated this disadvantage (Kelly 1994). The ‘best interests’ standard mandates that custody is granted to the party who is most capable, or least

obstructive, in providing for the ‘best interests’ of the child. This standard places the rights of the child above the rights of parents in custody determinations. Its main purpose is to ensure an optimal environment for the physical and psychological development of the child. The focus on the child’s needs should theoretically also eliminate judicial discrimination on the basis of a proposed custodian’s gender, sexual orientation, and physical or psychiatric disability (to the extent that these factors do not bear on the individual’s relationship to and ability to care for the child). Decisions are less formula-driven and are to be made on a case-by-case basis. They rely even more on psychological factors than previously, taking into account all of the child’s important relationships, the emotional stability of parents, and the child’s developmental needs. As a result, the ‘best interests’ standard allows judges more flexibility. The increased flexibility, however, comes with an increased judicial inclination to consider the psychological impact of custody decisions. Judges today are more likely than before to look to the psychiatric evaluator for information and guidance.

WHEN AND HOW PSYCHIATRY BECOMES INVOLVED IN CUSTODY DISPUTES Sources of requests for evaluations The psychiatric evaluator may be asked to give an opinion related to child custody at various points in the separation/divorce process. The evaluator may also be asked to give an opinion on related issues such as visitation, or the need for psychiatric treatment for either parent or child to help cope with the divorcing process. Sometimes an evaluator may be requested by parents to help with custody decisions before either party has taken any legal action. This is a clinical consultation that is to be distinguished from the legal process of mediation, a form of alternative dispute resolution (see below). According to Levy (1985a), parents who favor the consultation room over the courtroom may be more amenable to reaching a mutual agreement. The courts generally uphold these decisions when both parents are in agreement, rather than investigate further. This supports the legal precedent to protect parental autonomy in child rearing (consider Parham v. J.R. 1979), as opposed to the power of the state to impose its will on the family. According to Despert (1953), courts in general have acquiesced to parental agreement: the parents consent and the state assents. At other times, only one parent in a custody dispute may request a psychiatric evaluator at the recommendation of his or her attorney. Under these conditions, it is always advisable that the evaluator request to interview both parties involved. One should be aware, however, that the other parent might be uncooperative out of fear that the psychiatrist is biased and on the side of the spouse who

334 Family law and domestic relations

first requested the evaluator. The other parent may obtain his or her own psychiatrist to conduct a separate evaluation. The evaluator should be aware of pressures from the requesting party and her/his attorney for a favorable decision. Under these circumstances, the attorney may choose not to use an evaluation in court that does not favor the requesting parent. The opposing attorney, however, may subpoena the psychiatric evalu-ator to present the results of that evaluation in court. When this happens, it is advisable that the evaluator first requests a court order to testify before risking any breach of confidentiality with the original, requesting party. Residency training in child and adolescent psychiatry teaches the child psychiatrist to be ‘child-centered and child-oriented’ rather than parentally driven. The child psychiatrist is uniquely trained and functions in the ‘best interests of the child’ in nearly all of the clinical settings, not just in child custody evaluations. Psychiatrists without specialty training may have difficulty resisting parental or attorney influence. Judges, like attorneys, have been trained in the adversarial system and are client-oriented. It is more difficult for them to adjust to the non-client model where the child is not their client, but the parent is. This is particularly true when so-called child advocates do not take an active role. When the court orders a psychiatric evaluation, or when two opposing attorneys agree to an evaluation by one psychiatrist, the evaluator is faced with new advantages and disadvantages. One of the most consistent disadvantages is that these cases are usually the most difficult, as the parents may be less amenable to a mutual decision than when one or both parents request a psychiatric evaluation on their own. One advantage, however, is that it is easier to maintain parental neutrality when representing the court and not one attorney or the other (see Figure 36.1). In this way one is less pressured by attorneys and the adversarial system of court law and more easily represents the ‘best interests of the child.’ Yet another way that a psychiatric evaluator may become involved in child custody decision making is when he or she is asked by a guardian ad litem, an attorney appointed by the court to represent the child and not one parent or the other. In custody cases the judge often believes that he/she represents the ‘best interests of the child,’ but since he or she only hears from parental attorneys in most instances, he/she might pay more actual

attention to parental concerns. An active guardian ad litem who requests a psychiatric evaluation is in the best position to utilize the psychiatrist’s recommendations in court to truly ensure a decision that is in the child’s ‘best interests.’ There is some evidence that the role of the mental health evaluator is indeed influential. Ash and Guyer (1984, 1986) found a high rate of concordance between the judge’s decision and the psychiatric evaluator’s recommendation for custody: 85–92 per cent for custody, and 89–93 per cent for visitation. An analysis by Kunin, Ebbesen, and Konecni (1992) of 282 court records of disputed child custody cases revealed only two factors that statistically predicted judicial decision: the recommendation of a family courtappointed counselor in the majority of cases, followed by the child’s preference in cases without a recommendation. The evaluator’s role of child advocate is best maintained under these circumstances that take advantage of a guardian ad litem (see Figure 36.2). One of the most difficult situations an evaluator may face is when he or she is asked by a child-care agency to provide a psychiatric evaluation in a custody case. The American Psychiatric Association (1982) task force report on Child Custody Consultation discusses the special problems these cases may pose for the evaluator. Such evaluations are usually court-ordered and often involve accusations of abuse or neglect. Foster parents, as well as natural parents, may be interested in custody. In addition to the usual post-divorce issues, these cases may involve the decision to terminate parental rights or allow for

Judge

Father

Father

Psychiatrist

Children

Figure 36.2 Preferred situation

CourtAppointed Psychiatrist

Mother's Attorney

Father's Attorney

Children

Figure 36.1 Traditional view

Mother's Attorney

Guardian ad Litem

Judge

Psychiatrist

Father's Attorney

Mother

Psychiatrist

Mother

Role of the psychiatric evaluator in child custody disputes 335

adoption of the child by a foster parent or other involved adult, which can further complicate the evaluation.

Mediation Psychiatric evaluators also may be asked to assist with divorce mediation procedures. The psychiatrist often has the same advantages discussed earlier, when he or she is asked by both parents to carry out an evaluation before they have taken legal action. Mediation is a legal process, however, and usually involves one attorney and one psychiatric evaluator. Both are expected to be impartial to the needs of the parents and do not advocate for one parent over the other. The psychiatrist, of course, maintains the position of child advocate. Ruman and Lamm (1985) have described mediation as an alternative forum for parents where all parties are expected to work together to reach a mutual resolution of the legal and emotional issues of divorce, in lieu of the traditional adversarial approach. They also discuss how in recent years mediation has become increasingly utilized and encouraged by the legal community. They cite a California ruling (California Code of Civil Procedure 1984) mandating that all divorces involving custody conflicts first attempt to resolve custody decisions through mediation before going to hearing. As an alternative to litigation, mediation can decrease the burden on the judicial system. Some researchers also feel that mediation is more sensitive to the emotional needs of parents and child than is the adversarial trial. Dillon and Emery (1996) surveyed parents nine years after random assignment to mediation or litigation. The mediated families saw increased visitation, interparental communication, and non-custodial parent involvement. Emery, Matthews, and Kitzmann (1994) followed families for one year after random assignment to mediation or litigation. They found that fathers were more satisfied with mediation, but mothers more satisfied with litigation. Fathers who mediated were more likely to cooperate with child support payments. The authors speculate that men are more likely to use custody litigation as a means to contest an unwanted divorce. The authors also note that over 90 per cent of the litigated custody cases ended in an award of sole maternal custody. This finding, along with the fact that the study was conducted in a jurisdiction without a statutory preference in favor of joint physical custody, might account for why the mothers were more satisfied with litigation. Also, not all mediation programs mediate financial issues of spousal and child support. Another criticism of mediation is that the process is not bound by the ‘best interests’ standard and may therefore be more sensitive and responsive to the parents’ wishes than the needs of the child.

Visitation In addition to making recommendations for custody decisions in court or in mediation procedures, the psychiatric

evaluator also is often asked to make recommendations regarding visitation. When joint custody is not possible, visitation becomes especially important as a means of ensuring that a child has appropriate access to both parents. Visitation can help minimize the child’s sense of loss that comes from divorce and can encourage the natural affectionate bonds of children with both parents. When visitation decisions are complicated by accusations of abuse or neglect, the evaluator has the additional responsibility of assessing the validity of the accusations and the extent of the abuse (discussed later in this chapter). The evaluator may need to consider restriction or denial of visitation when doing so would be in the child’s best interests.

CONDUCTING THE PSYCHIATRIC EVALUATION Training In order to conduct a thorough and competent psychiatric evaluation in child custody disputes, one must first have had adequate training in this specialized area of psychiatry. This training may begin in the general psychiatry residency, where increased exposure to child psychiatry, forensic psychiatry, and family court would be very helpful. Child psychiatry residencies also should devote sufficient time toward training in this area. Though the child psychiatrist is usually the best equipped to conduct the psychiatric evaluation, adequately trained general psychiatrists or forensic and other pertinent subspecialty trained psychiatrists can also do these evaluations. In areas where child psychiatrists are in short supply, this may be essential. In addition to training in residency and fellowship programs, the American Psychiatric Association (APA 1982) has also recommended that future evaluators first sit in on several child custody trials to observe the process thoroughly before beginning one’s own evaluations. The APA (1982) has also recommended that the general psychiatrist consult with a child psychiatrist, when available, to help with the evaluation. The psychiatrist should have knowledge of basic family law, including statutes and court cases in the jurisdiction of the evaluation, and learn if there are any relevant legal standards that may apply in that jurisdiction (e.g., presumption in favor of joint custody) (AACAP 1997). If provided with adequate training, any psychiatrist doing a competent and thorough psychiatric child custody evaluation, regardless of the source of payment, should arrive basically at the same final decision.

Role as evaluator Solnit and Schetky (1986) have described how the psychiatrist must always remember to maintain his or her role as the advocate for the child’s best interests and not slip into the role as therapist for a given party. The evaluator needs to maintain parental neutrality and should be

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aware of pressures by parents to attend to issues of fairness to adults over the best interests of the child. The evaluator should tell both parents and children that he or she is only concerned with what is in the best interests of the child. When acting as child advocate, the evaluator also should remember that he or she does not necessarily support what the child wants, but what the child needs. In this sense, the psychiatrist maintains an objective stance as forensic evaluator, and applies the examination data to the appropriate legal standard (i.e., what is in the best interests of the child). It should be clear that the evaluator makes clinical recommendations based on psychiatric training, not legal decisions of custody, which are always made ultimately by the court. Finally, as child advocate, the evaluator also must try to conduct as prompt an evaluation as possible, as an unnecessarily protracted evaluation can bring further stress on the child. AACAP (1997) estimated that it might take one to three months to complete an evaluation and report, although other delays may exist before the case actually presents before a judge.

The interviews A large part of the psychiatric evaluation in child custody cases consists of a series of interviews, where one takes careful parental histories and the child’s history, gathering as much information from these primary sources as possible. Before beginning the interviews, the evaluator may obtain a signed waiver of confidentiality from all parties to be interviewed. This waiver, which further distinguishes this work from the psychiatrist’s other work of therapy, may be necessary since the evaluator may be making disclosures to opposing attorneys. Disclosure in court before the judge also may be required. Usually, the interviews that need to be conducted include an interview of each parent individually, each child alone, and the child with each parent individually. The interviews also often include the parents together without the child, the child together with both parents, or the child with his or her siblings. Conducting so many interviews can be time consuming, and the use of a team approach has been advocated (Ash and Guyer 1984; Weiner, Simons, and Cavanaugh 1985). This is not always possible, however, and many psychiatrists do successfully conduct the evaluation alone.

The examination According to the American Psychiatric Association (1982), there are three major questions that should be addressed during the course of the evaluation: 1 What is the quality of the reciprocal attachment between parent and child? 2 What are the child’s needs and the adults’ parenting capacities? 3 What are the relevant family dynamics at play?

Levy (1985a) added a fourth primary question to be addressed, which is, ‘What is the child’s preference, if any, for custody?’ These questions can be answered during the interview process, as well as with supplemental information from other sources. When assessing the quality of the reciprocal attachment between parent and child, the evaluator first must inquire about the extent of involvement each adult has with the child. One can also obtain valuable information from direct observation of the interactions of parent with child. It is important to establish who has the major role of ‘psychological parent’ for the child; that is, whom the child considers to be his or her parent, protector, or provider (Goldstein, Freud, and Solnit 1979; APA 1982). This person may or may not be the genetic parent. Indeed, current research in attachment theory suggests that a child’s early ties to a primary caregiver who is not the originating genetic parent result in a superior biological bond between that caregiver and child dyad (see discussion in Chapter 38). Also, the role of the ‘psychological parent’ is usually shared by more than one person. For example, this might be both genetic parents or one genetic parent and another adult, such as a step-parent or grandparent. The evaluator may use projective tests, such as drawings, or pose hypothetical questions to the child, to help determine whom the child relies on most and in what circumstances. One may also ask the child directly if he or she has a preference for custody, though one should do so with great sensitivity. The reliability of the child’s answer is age-related. A younger child may express the preference of a parent that he/she is afraid of alienating, rather than express his/her own preference. Adolescent children are more capable of expressing their true desire for custody arrangements, but they too may fear answering and thereby alienating or hurting the feelings of the parent not chosen. AACAP (1997) wrote that judges may give more weight to a stated preference when the child is 12 years of age or older, and that some states actually require the evaluator to ask about a child’s preference. Billick (1986) indicates that the average 12-year-old has achieved the Piagetian stage of concrete operations and Kohlberg’s stage of conventional morality, levels of functioning compatible with the overwhelming majority of adults in even a literate society. He suggests that juveniles between the ages of 11 and 14 years should be accorded greater latitude in formulating decisions. If asking a child for his or her custody preference, the evaluator may allay some of the child’s anxiety by reminding him/her that the court – not the child – will make the final custody decision. One may also choose not to ask the children directly what their preference is for custody, and instead infer this preference through observations of the children. When assessing the child’s needs and the involved adults’ parenting capacities, one should be concerned particularly with the developmental needs of the child and the parents’ capacity to promote the healthy development

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of the child. Children of various ages and developmental levels have different needs, which one or another parent may be better able to satisfy. One also should assess the parents’ understanding of these developmental needs. During the interview with child and parent, one can assess the parent’s ability to set limits, provide support and nurturing, and allow appropriate separation and individuation. One can assign specific tasks and observe how parent and child work together on these tasks. Often each parent will have a different set of strengths and weaknesses, and there is no clear-cut distinction as to who has the better parenting skills and can best meet the needs of the child. When joint custody is not possible, the evaluator may be forced to make a value judgment as to which parent provides for the most important needs of the child. One must be careful to focus only on what is relevant to the child’s development and avoid being swayed by irrelevant biases from attorneys or from within oneself. Avoiding such biases may be of particular importance when a non-genetic, mentally ill, or homosexual parent is involved. When assessing the family, the psychiatrist also must analyze the family dynamics at play. These dynamics may influence parental motives for seeking custody. Parents may not always be aware of the source of their motives; for example, anger toward the other parent, depression, or a desire for revenge. The evaluator can help parents to separate marital conflicts and divorcing issues from parenting issues. The evaluator can also help the adults to subjugate parental feelings and needs to the superiority of the child’s needs. The evaluator should also assess the potential custodial parent’s ability to promote the relationship of the child with the non-custodial parent, which would favor a positive post-divorce outcome for the child. Knowledge of the personal and family history of the parents is often helpful in fully assessing family dynamics. Finally, the evaluator should be aware of the child’s potential involvement in family dynamics. A child’s wish for the reunion of the parents may lead to manipulation of the parents by the child, influencing the behavior and desire for custody by the parents. In addition to the above considerations, the American Academy of Child and Adolescent Psychiatry (AACAP) approved their ‘Practice Parameters for Child Custody Evaluations’ (1997). According to the parameters, the evaluator should examine for the presence of parental alienation (i.e., where the child has notable negative feelings toward one parent), the sensitivity of each parent to the gender role-model needs of the child, each parent’s parenting and disciplinary styles, and each parent’s handling of conflict resolution. The evaluator should consider each parent’s work schedule and strategy for day care, and each parent’s educational plans for the child. Other areas of inquiry include sibling relationships, each parent’s physical and psychiatric health, finances, social supports and relatives in each household, and differences in cultural, religious and individual beliefs and values between each parent. It also recommends obtaining a history of the

marriage and separation, each parent’s own social and marital history, and family of origin history. How each parent was raised, his or her childhood experiences of divorce, and how those experiences possibly impact the parent’s perception of the relationship with his or her own children may be important. The evaluator should explore any allegations parents make against each other, but also note whether a parent spends most of the session attacking the other parent at the expense of focusing on the child.

Collateral sources of information When conducting the psychiatric evaluation, one may also use a variety of other sources of information, in addition to the previously described interviews. Home visits, where the evaluator can observe the behavior of child and parents in a naturalistic setting, can be very informative. This behavior can differ strikingly from that in the formal office interview setting. The evaluator should also not forget that both attorneys involved in the custody battle might have useful information. Other secondary sources of information include teachers, grandparents, pediatricians, or other mental health professionals working with the child or with the parents. The evaluator, however, should maintain a clear distinction between information from secondary sources and information that is gained from direct observation, as the courts usually place more confidence in primary sources of clinical data.

Confidentiality issues Malmquist (1994) examined the question of how the courts regard the issue of confidentiality in custody disputes where one or both parents (or the child) have been, or are presently, in psychiatric treatment. The answers are myriad and diverse, depending on the jurisdiction. For example, in some jurisdictions, simply entering into a custody dispute essentially puts a party’s mental health at issue and automatically waives privilege. In other instances, the court remains guided by the best interests of the child standard and looks to a guardian ad litem or independent psychiatric expert to assess whether particular treatment records contain material potentially harmful to the child. Still other courts guided by precedent or state statute have chosen to not interfere at all with doctor–patient privilege, to waive that privilege only in cases where there is an allegation of parental unfitness, or to rely on an independent psychiatric examination without delving into private treatment records. In the often-cited case of In re Lifschutz (1970), Malmquist noted that the California Supreme Court held that ‘the psychotherapist could be held to answer questions directly relevant to the subject of the suit (emphasis added).’ If courts move in the direction of automatic waivers, Malmquist wondered if clinicians will be expected to provide informed consent in the form of a quasi-Miranda type of warning before engaging in

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treatment with patients who are, or may become, parents. Malmquist recommended a compromise: in cases where the parties cannot agree on an independent psychiatric evaluator, the disclosure of private treatment records should be limited to instances where not only an allegation of parental unfitness is made, but where the records sought bear directly on such parental competency standards rather than on the best interests of the child standard. The Court of Appeals of Maryland, in the case of Laznovsky v. Laznovsky (2000), upheld a parent’s right to assert doctor–patient privilege in a child custody dispute (Caracansi and Billick 2000). The opinion stated that maintaining this privilege serves public policy by protecting the psychotherapeutic process and respecting a constitutional right of privacy. However, the court left open the possibility for family court judges to make exceptions. The ruling essentially reads that a parent who claims fitness does not automatically waive their doctor–patient privilege ‘without more.’ The language ‘without more’ is not clearly defined in the written opinion, and guidance is not provided as to what standard a court should follow when considering waiver of privilege (e.g., best interests of the child, parental competency, etc.). However, the Laznovsky opinion mentions the usual exceptions to doctor–patient privilege, including the circumstance where a parent voluntarily waives it. Also, the court recognized that in disputes where only one parent waives privilege, the other parent might be at a disadvantage, but indicated that a trial court can order a current, independent evaluation.

Children in therapy When the evaluator finds that the children in the divorcing family are already in therapy, this is a wonderful source of additional material to be utilized and understood. If the therapist is adept, he or she may be willing and able to testify, if needed, on behalf of the child’s best interests. Many therapists, child psychiatrists included, are not comfortable with this, and they should not be forced to testify unless essential. Sometimes one of the divorcing parents may see the therapist as supporting the other parent. The disheartened parent may try to sabotage or discontinue the child’s therapy. Every attempt should be made to avoid the disruption in the child’s psychological support system, including obtaining judicial intervention safeguarding the therapeutic continuation.

Psychological testing The psychiatrist may wish to consult with a psychologist who is experienced and capable in testing procedures in child custody disputes. AACAP (1997) suggested that psychological testing might be most useful when the psychiatric health of a parent or child is a legitimate issue. The MMPI-2 is considered the most commonly used

assessment instrument in the evaluation of child custody litigants (Ackerman and Ackerman 1997; Strong et al. 1999). Medoff (1999) cautioned that while a body of research on the MMPI-2 in this population has shown a pattern of elevations on validity scales L and K, additional studies do not necessarily support the traditional view that such elevations are to be interpreted as normal in the context of child custody examinations. He pointed out that the well-established elevations on these validity scales do not generally reach clinical significance (i.e., a T score of 65 or greater). Therefore, it may be appropriate to attribute clinically significant scores on scales L and K to empir-ically associated personality characteristics (e.g., neurotic defensiveness, an unrealistic self-image, and an excessive reliance upon denial). Although it may be common sense that parents want to present themselves in the best possible light when faced with custody matters, this expectation should not necessarily explain away meaningful test findings that can alert the clinician to possible underlying psychopathology. Consistent with normative data for the MMPI-2 in child custody litigation (e.g., Bathurst, Gottfried, and Gottfried 1997), a study by Strong et al. (1999) on 412 child custody litigants showed a mean test profile that was within normal limits. Only 26 per cent of their sample produced a T score greater than or equal to 65 on any clinical scale. The authors describe a method of data analysis with the MMPI-2 that may help distinguish between deliberate attempts to create a positive social image (Impression Management) and the unintentional concealment of symptoms and areas of maladjustment (Self-Deceptive Positivity). This might assist the psychologist in discerning whether elevations on various underreporting and validity scales represent a situation-specific (and perhaps understandable) desire of the custody litigant to put his or her best foot forward, or an intrinsic and enduring feature of his or her personality. The psychiatric evaluator should be able to critically examine any interpretations arising from psychological testing, and be aware of the limitations of such procedures. Testing data should be used as an adjunct to the comprehensive clin-ical and forensic evaluation, and not be relied upon in a rote fashion when offering opinions about parental fitness and child custody.

Referrals for treatment As part of the psychiatric evaluation in child custody cases, one is also usually obliged to assess the need for psychiatric treatment for any of the parties involved. This is to help assure a favorable adjustment by the child after the divorce is complete. One may wish to refer the child or parents to other therapists, rather than perform ongoing treatment oneself, since it may be difficult to change roles from evaluator to therapist. When recommending further treatment, one must be realistic as to available treatments and approaches, especially if such treatment is considered a requirement for custody or visitation rights. Unrealistic

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expectations that interfere with the parent–child relationship will be detrimental to the child.

MAKING RECOMMENDATIONS The report Usually, the psychiatric evaluator is requested to organize his or her findings and recommendations for custody in a written report. The APA guidelines (1982) recommended that it is always important to remember when writing this report, however, that the content is not confidential and may be used as evidence in court. Early in the report it is recommended that the basic circumstances in which the evaluation has been conducted be mentioned. This would include the means of referral, a description of the interviews and other clinical procedures, as well as any use of secondary sources of information. The focus of the body of the report should be to answer clearly the basic questions addressed in the custody case. As discussed previously, this would be a description of the reciprocal attachment between parent and child, a description of the child’s needs and the adults’ parenting capacities, and a description of the relevant family dynamics. After this description of the findings, the evaluator should clearly state a recommendation for custody and the evidence in the report should decidedly support this recommendation. In those cases where the evaluator finds it impossible to make a firm recommendation, he or she should state this and perhaps explore the advantages and disadvantages of different decisions. When an evaluator cannot make a firm recommendation, however, the report is less useful to the court, and one should try to avoid this situation. An account of the history of any prior custody of the child, when relevant, should be included. When writing the report it is important that it be free of professional jargon and theoretical discourse, which may be irrelevant and confusing to the court. One may need to discuss particular psychiatric diagnoses, however, when they apply to an involved party in the custody battle. Either the relevance or the irrelevance of such diagnoses to the development of the child should be explained. The report should rely on objective and descriptive data from direct observation of parents and child, and direct quotes from either are often useful. It is also important to state the child’s preference, when a preference exists, and explore the reliability of this preference.

Custody recommendation When formulating an opinion on custody, it is recommended that joint custody be the first considered disposition. Several authors (Galper 1978; Ilfeld, Ilfeld, and Alexander 1982; Luepnitz 1982; Ware 1982) have written about the added benefits that joint custody may provide. Wallerstein and Kelly (1980) have emphasized the

importance of a continuing relationship with both parents in helping children recover from post-divorce trauma. They also have written that children cope better with the stress of divorce when there is less anger and conflict between parents after divorce. Thus, when both parents are able to negotiate joint custody, this in many ways is in the best interest of the child. Parents must be agreeable and capable of such negotiation, however. It is debatable whether one can legislate this level of cooperation onto unwilling parents and expect joint custody always to be effective. One can emphasize to parents during the evaluation process that they may divorce legally, but in reality they may be brought together again and again in the future through their children. They may see one another and have to deal with one another at birthdays, graduations, confirmations, bar mitzvahs, or later, similar events with grandchildren. Cooperation from the start with joint custody may be beneficial for all. Joint custody may not be in the best interest of the child, however, when one parent significantly undermines the authority of the other parent, or the child’s relationship with the other parent. The most common alternative to joint custody is single custody by one parent with visitation rights for the other parent. The custodial parent should have the capacity to help the child continue a positive relationship with the non-custodial parent. The evaluator usually considers the best fit between parent and child, but sometimes may be forced to choose the least harmful fit. When custody disputes are between a genetic parent and a non-genetic parental figure, legal precedent has dictated that the genetic parent has the right to custody unless proven unfit. Often the term ‘biological’ is used to support the genetic parent. Research is demonstrating that attachment behavior is also ‘biological,’ leaving the question to chose between two biological parents. The ‘best interests’ standard allows for questioning of this precedent for genetics, and the evaluator may wish to take advantage of this flexibility when it would benefit the child. Custody decisions can become more complicated in disputes between the state and a parent where allegations of abuse or neglect exist. In these cases, the potential conflict between parents’ rights and the state’s responsibility to protect the child may arise. The APA (1982) has cautioned evaluators involved in such cases to remember a number of special problems that may arise. When relatively easy entry into the foster-care system for these children is coupled with the difficulty of terminating parental rights, children may be caught in limbo between the two. In these cases there may be strong impetus for the focus of the trial to be on parental rights. The psychiatric evaluator thus has the greater challenge of directing the focus of custody decision onto the child and his or her rights and needs.

Potential pitfalls When making recommendations, the evaluator should be aware of potential pitfalls that can be avoided. Evaluators

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need to remember that parents’ characters, behaviors, and life-styles are theoretically relevant only insofar as they affect the child. The evaluator may need to be consciously aware of avoiding influences of his or her own personal biases. Also, the evaluator may be faced with the results of an adversarial system that has brought out the worst in parents, for example, encouraged the parents to use the children as a bargaining chip against a house, car, bank accounts, and so forth. In order to achieve the best post-divorce outcome for the child, the evaluator needs to help parents put aside marital conflicts so that they may comply with the recommendations. The evaluator needs to choose the best or least disadvantageous custody option existing at the time of the evaluation, rather than focus on future possibilities. It may not be possible to predict the needs of the child in the future, or the parents’ future capacities to meet these needs. In order to get the best choice for the child, the evaluator should also try to be clinically flexible when regarding alternative living arrangements for custody, for example, with a single parent, gay parent, or father versus mother. Lastly, it is possible in certain cases to make custody recommendations after having interviewed only one parent, though this is not ideal. This situation may arise when one parent refuses to be interviewed. A recommendation can be made if one can assume that the other parent is normal, and there is still compelling reason to recommend sole custody to the parent interviewed based on positive evidence from the child and the evaluation. It is also possible sometimes to infer aspects of the non-participating parent from the children’s descriptions. Particularly with older children, they may be reliable reporters of pathology or destructive parenting in the nonparticipating parent. The American Academy of Psychiatry and the Law (AAPL) has established Ethics Guidelines For the Practice of Forensic Psychiatry (1987, rev. 1995). AAPL recognized that the role of an expert witness, the child custody evaluator, may include making expert opinions from collateral sources alone, requiring of course clear documentation of this aspect.

the different functions of the psychiatric evaluation in child custody cases, have shown that the most frequent use of the evaluation was as a bargaining chip. They report in their sample that in 71 per cent of the cases, after hearing the evaluator’s recommendation, the parties either stopped litigation or negotiated an agreement, using the evaluator’s report as a bargaining beginning point. For example, the party for whom custody is not recommended may concede to this decision in exchange for a concession by the other party in a different area of dispute. During the interpretative interview, the evaluator can help the parents understand the reasons for the recommendation and may help them come to a negotiated agreement on custody. Actual litigation would thus be avoided.

Testifying in court Once the evaluation is complete and the involved parties have been informed of the recommendation for custody, the evaluator may need to prepare to testify in court. This is not necessary in most cases. Ash and Guyer (1984, 1986) found evaluators were asked to testify in court in only 4–5 per cent of the cases. When the evaluator is called to testify in court, he or she should prepare for this by first discussing the recommendation and how it will be presented in court with the guardian ad litem or attorneys. One must prepare for the pressures of cross-examination, avoid being swayed by extraneous information, and attempt to testify only on what is relevant to the child’s best interests. The best preparation for court is to have a firm recommendation and evidence that clearly supports that recommendation. Lawyers are trained and educated to manipulate, distort, confuse, and obfuscate on crossexamination. The psychiatrist needs to clarify, document, and be logical.

SPECIAL ISSUES IN CHILD CUSTODY DISPUTES Joint custody and father custody

Informing the parties involved After making a recommendation and completing the written report, the evaluator must next inform the involved parties. It may be helpful for an evaluator, who has had access to examine both litigants and reached a conclusion, to meet with each parent separately to explain his or her reasoning for the opinion. This may help to diffuse parental disappointment or anger. This can be accomplished in an interpretative interview with the parents where the evaluator reviews the recommendation for custody and the reasons behind the recommendation. The evaluator may also include the involved attorneys in this interview or discuss the recommendations separately with the attorneys. The evaluator should also explain the recommendation to the child. Ash and Guyer (1986), who have studied

Levy (1985b) has advocated that fathers and mothers be considered equally for custody, and has questioned whether sexism exists in child custody decision making. Ploscowe, Foster, and Freed (1973) have estimated that the mother gains sole custody in 80 per cent of cases, the father in 10 per cent, and that joint custody occurs in 10 per cent of cases. Ash and Guyer (1984) have reported recommending custody to mothers in 50 per cent of cases, to fathers in 31 per cent, joint custody in 15 per cent, and to others in 4 per cent. However, they cited in a random sample of cases from the local jurisdiction that father custody is granted in only 5 per cent of cases. Meyer and Garasky (1993) suggested that the figure for father custody might be closer to 15 per cent based on survey and census data. Kelly (1994) reviewed that there

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has been a trend towards joint legal custody, and that the most common arrangement in the United States is joint legal with sole maternal physical custody. In other words, both parents retain rights and powers to make decisions regarding the child’s health, education, and welfare, but only one parent has residential custody of the child, usually with visitation by the other parent. In the atmosphere of equal rights protections in the 1970s and 1980s, the provision of joint physical custody (i.e., where the child resides with each parent for a portion of the year, or even in alternating years) became an increasingly popular family court disposition. This shift also sprang from child development research into the importance of children’s attachment to their fathers. In 1979, California (which followed the nation’s first ‘no-fault’ divorce law in 1970) enacted the first joint custody statute, to be followed by over 40 states by 1991 (Kelly 1994). Some state laws actually specify a presumption for joint custody, not simply that it be considered (Derdeyn and Scott 1984). Joint custody has been regarded as a means to reduce the negative impact of divorce on the child, by maintaining the child’s contact with both parents. However, AACAP (1997) noted that for this arrangement to be successful, it likely requires parents who are psychologically healthy and cooperative. Kelly (1994) noted that some feminist groups have responded to the emphasis on joint custody by advancing the concept of a primary caretaker standard. The primary caretaker is usually the mother, who spends the most time managing the daily needs of the child. This bears similarity to the ‘tender years doctrine.’ Kelly wrote that a primary caretaker standard, however, ignores the quality of the parent–child relationship and emotional attachment, in favor of counting childcare hours and concrete behaviors. Although it is still not usual, granting sole custody to a father has become less uncommon in recent years. There are factors that have made paternal custody more likely. One of these factors is the gender-neutral ‘best interests of the child’ standard. Also, the changing social roles of men and women have distributed parenting roles more equally between the sexes. Many fathers now spend more time as child caretaker at home, and many mothers are now working out of the home as much as fathers are. Also, due to much recent research in the area, it is now known about the importance of both the father and the mother in child development. Lamb (1997) and Fitzgerald and McCread (1981) have discussed evidence that shows infants are strongly attached to both mother and father by the second half of the first year of life. Levy (1985b) also cited multiple other studies that describe the importance of the father throughout a child’s development. A recent APA resource document on child custody issues indicates that the literature provides some evidence that boys tend to do better in father custody and girls in mother custody, all other factors being equal (Binder 1998). When conducting a psychiatric evaluation for child custody, it is important to use the same criteria to evaluate

men and women when assessing parenting capacities. One should recommend custody to a single male if it is clinically indicated, rather than be moved by a sexist bias to recommend something that would not be in the child’s best interests. Individual’s parenting capacities vary, whether they are male or female, and a good clinical evaluation will recommend custody to the person who can best meet the child’s needs.

Gay and lesbian parents It is estimated that between 6 and 14 million children have at least one gay or lesbian parent (Binder 1998). In the past, when gay men and lesbian women were involved in child custody cases, they were generally denied custody based solely on their sexual orientation. In recent decades there have been slow changes in the way society views homosexuals, as well as changes in how psychiatry views gays and lesbians. In 1973, the APA trustees voted to eliminate homosexuality per se as a mental disorder and, after extensive scientific debate, the members of the APA upheld this decision by referendum (APA 1974). Since DSM-III-R (APA 1987), homosexuality has no longer been classified as a psychiatric disorder of any kind. Despite these changes, unfortunately, sexual orientation is still a confounding issue in child custody cases today, and some attorneys may contest custody decisions based solely on this issue. Hutchens and Kirkpatrick (1985) discuss three stereotypes that have led courts to hesitate to grant child custody to gay parents. The first stereotype is that gays are psychologically or sexually maladjusted and not mentally fit to raise children. The second is that children raised by gay men or lesbians will grown up to be gay or have gender identity problems. The third stereotype is that children raised by a gay parent will be stigmatized by the custodial parent’s sexual orientation. The authors, however, cited numerous psychiatric and psychological studies that scientifically refute all three of these stereotypes, demonstrating that being raised by a gay parent does not compromise child development. These studies confirm that gays’ and lesbians’ psychological functioning and parenting skills are not inferior to those of heterosexuals. Freedman (1971) has proposed that gay men and women may actually have better autonomous ego functioning because they were forced to be more independentminded when growing up. The 1998 APA resource document prepared by the Subcommittee on Child Custody Issues further reviewed the relevant literature (Binder 1998). The evidence presented is that there are no significant differences in parenting between divorced lesbian and heterosexual mothers, and that there are no identifiable differences in the emotional and intellectual development and peer relationships between their children. Also, children of lesbian and gay parents show no statistical increase in the incidence of homosexuality, and there have been no

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reported cases of pedophilia committed by gay parents or their partners on their children (dispelling a prejudicial fear expressed by some courts). Because of these and other findings, Hutchens and Kirkpatrick (1985), as well as others (Sadoff and Billick 1981; Herman 1990b), encouraged psychiatrists to evaluate gay and lesbian parents the same as any other parent. One must evaluate the child–parent relationship, the child’s needs, and the parent’s ability to meet these needs, without being biased by unfounded stereotypes. The evaluator should confront these stereotypes when necessary and educate the court about such stereotypes. The evaluator should clearly state the relevance or irrelevance of a parent’s sexual orientation as it applies to the child. In this way one can best ensure that a child custody decision is based on what is in the child’s best interests and is not based on prejudice.

The mentally ill parent When evaluating parents who carry a psychiatric diagnosis, one should be aware that such a diagnosis does not automatically mean incompetence as a custodial parent. There are millions of psychiatric admissions for inpatient treatment every year in the United States. These patients do not have their parental rights abrogated routinely solely by virtue of having a serious mental illness. Herman (1990b) cited examples of psychotic parents who are either capable or incapable custodians. One first evaluates these parents as one would other parents, assessing their capacity to meet the best interests of the child. In addition, one needs to evaluate the parent’s psychiatric condition, for example, insight, adequacy of treatment, and compliance with treatment. Also, it may be necessary to evaluate if the decision for divorce is a product of a psychiatric illness, for example, psychosis or a psychotic depression. In one case example that one of the present authors (S.B.B.) encountered, a mother sought divorce during the course of a psychotic depression. The father, who did not have a psychiatric illness, opposed the divorce. During the course of the custody evaluation, the 14-year-old son told his mother’s lawyer that in a divorce he would prefer custody with the father, but that instead he felt the mother should be hospitalized rather than be divorced. She was hospitalized and had successful inpatient psychiatric treatment. No divorce occurred, and the family remained intact. Herman (1990b) also noted that both true and false allegations of psychiatric illness, for example, alcoholism or depression, are common in child custody disputes. The evaluator always needs to verify these diagnoses for oneself and not take diagnoses from others a priori. One also should be aware of personality disordered parents, or even delusional parents, whose motives for custody may be influenced by their pathology, rather than the best interests of their child.

Grandparents and other third parties Schowalter (2000) observed that there is probably more interaction between grandparents and their grandchildren in our current society than ever before. Contributing to this are increased longevity, air travel, and grandparents assuming a surrogate parenting role as some mothers continue their careers, and as other mothers remain incapable of assuming care for their children, by virtue of AIDS, substance abuse, or being practically children themselves. The U.S. Bureau of the Census (1997) documented that 13.5 per cent of African-American children, 6.5 per cent of Latino, and 4.1 per cent of white children are in the care of relatives. As noted by Schowalter, there exist plenty of studies showing that grandparent custody is usually a quite satisfactory arrangement. The U.S. Supreme Court, in Troxel et vir. v. Granville (2000), affirmed a decision by the Washington State Supreme Court, finding unconstitutional a statute permitting visitation by any non-parental third party ‘at any time’ if a court determines such visitation to be in the best interests of the child. A 6–3 decision written by Justice O’Connor opined that the statute violated the Fourteenth Amendment Due Process rights of a custodial mother, Ms. Granville, to make decisions concerning the care, custody, and control of her daughters. The opinion stated that the Fourteenth Amendment has a substantive component meant to provide heightened protection against government interference with certain fundamental liberty rights and interests, including the right of a parent to make decisions concerning the care, custody, and control of his or her children. The Court cited precedent in a number of cases, including the landmark case Parham v. J.R. (1979), where the U.S. Supreme Court held that parents should ‘retain a substantial, if not dominant, role in the decision [to civilly commit a minor], absent a finding of neglect or abuse.’ The Court also stated that there is a common law tradition to presume parental fitness and that in the case of Ms. Granville, there were no allegations to the contrary, and that she had even agreed to limited visitation by the grandparents (although less than the Troxels wanted). The Court decried that the Washington statute actually weighed the visitation right of the grandparents as more important than ‘perhaps the oldest of the fundamental liberty interests recognized by this Court.’ Some jurisdictions already place the burden on a third party to not only show that visitation would be in the child’s best interest, but to show potential harm to the child were such visitation denied. For instance, grandparents may need to show that they have been heavily involved in the care of the child prior to the controversy, and that they have been actively pursuing continued contact. The U.S. Supreme Court in Troxel declined to explicitly weigh in on such ‘heightened harm to the child’ standards. The Court held only that the Washington State statute in question swept too broadly by permitting any person to petition for visitation, with the only

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requirement that the visitation serve the best interests of the child. Nevertheless, the ruling in effect raises an already high threshold for third parties to seek visitation rights (and by extension custody) and puts other courts and lawmakers on notice. Schowalter agreed with the Troxel ruling, indicating that grandparent visitation forced on an unwilling custodial parent by the court places the child in an acrimonious and untenable situation. However, it is likely that most children can separate obvious vituperative comments made by grandparents against parents as false, and focus on their own relationships with their grandparents, independent of their grandparents’ relationship with the parent. This is of course easier to do for older children than it is for younger ones. The forensic psychiatric expert in custody and visitation disputes may be called upon to also address potential harm to a child, in cases where a third party is seeking rights relative to a parent. The evaluator may need to balance this consideration with the usual assessment of parental competence and the child’s best interests.

Allegations of child sexual abuse Both true and false allegations of child sexual abuse occur in custody battles. The evaluator must be prepared to assess the validity of such allegations and discuss how they affect custody and visitation recommendations. While Guyer and Ash (1986) reported an incidence for allegations of child sexual abuse of 33 per cent in 400 court-ordered custody evaluations, a study of 9000 families in custody/visitation disputes by Thoennes and Tjaden (1990) yielded a figure of about 2 per cent, replicated by McIntosh and Prinz (1993) who examined 603 family court cases. Thoennes and Tjaden found a similar incidence of false allegations in custody dispute and non-custody dispute situations, whereas Green and Schetky (1988) emphasized that false allegations of child sexual abuse more commonly arise in the context of a custody battle. Gardner (1987) stated that the majority of children professing sexual abuse in custody situations are actually brainwashed to believe it, as part of the controversial parental alienation syndrome. Benedek and Schetky (1985), with a sample of eighteen custody dispute cases, found an incidence of 55 per cent for unfounded allegations. However, studies with larger sample sizes yielded more conservative figures. A survey of general child sexual abuse cases reported to a child abuse agency, found that 6 per cent of allegations could not be substantiated (Goodwin, Sahd, and Rada 1978). Although some have found that 8 per cent of allegations were false, Thoennes and Pearson (1988) 14 per cent, and McGraw and Smith (1992) 16.5 per cent. Penfold (1995) remarked that some authors believe that child sexual abuse may actually be more frequent in divorce (e.g., the stress of the divorce triggering vulnerabilities in a parent, or ongoing abuse coming to light for the first time). She also wrote that some jurists believe that virtually all such

allegations in the custody context are false, a ploy on the part of the mother to besmirch the father. Raising an allegation of child sexual abuse (whether true or false) may actually jeopardize the accuser’s chances of securing custody. In a related vein, raising the issue of spousal abuse, Shalansky, Ericksen, and Henderson (1999) provided references documenting that Canadian courts mostly do not recognize domestic abuse of women as having any bearing on child custody disputes or the abuser’s relationship with his children. The psychiatric evaluator needs to remain objective, but also aware of the importance of carefully examining the validity of these allegations. False allegations can have a potentially harmful impact on the child. Green and Schetky (1988) have described how one can evaluate the child in such cases and assess the reliability of the child’s disclosure. One must first assess the child’s ability to separate reality from fantasy and his or her ability to verbally express and recall past events. Both will be a function of the child’s developmental level. In general, according to these authors, false denials by children are relatively common, but false disclosures of sexual abuse by children are relatively rare. False disclosures can occur, however, in a variety of special settings. They may be seen in a child who has been ‘brainwashed’ by a vindictive parent who seeks revenge or desires to end all contact between the child and the other parent. They also may be seen when a delusional parent has influenced a child. Occasionally a child may give a false disclosure based on the child’s sexual fantasies, rather than reality. A child may also falsely accuse a parent for revenge or retaliation. False disclosures tend to be characterized by a variety of features. They may be expressed more readily and without a significant change in affect than are true disclosures. Such children may appear outspoken, non-defensive, and may use adult terms, possibly learned from a coaching parent. True disclosures, however, usually are delayed, conflicted, and slow to be revealed, if revealed at all. They may be stated, retracted, and then restated again. They are usually accompanied by appropriate negative affect. When assessing accusations of child sexual abuse, the evaluator also should observe the interactions of the child with each parent. One can observe whether there is a fearful or a loving relationship when the child is alone with the accused parent. One can also observe whether this relationship changes when the accusing parent joins them. In false allegations one may observe the child looking for approval from the accusing parent while the child displays hostile behavior toward the accused parent. Then after the accusing parent leaves, the child’s behavior may revert to being friendly toward the accused parent. In cases of true allegations the child’s behavior is usually more consistently fearful toward the accused parent. A young sexually abused child who does not understand the deviant nature of the molestation, however, may display learned seductive behavior toward the accused parent, rather than display fearful behavior.

344 Family law and domestic relations

The evaluation of a child who may have been sexually abused can be supplemented with play therapy with dolls or with drawings. Though such techniques can be very informative, they are not 100 per cent reliable. A child may be well educated in adult sexual behavior from watching television, listening to older siblings talk, or observing farm animals and household pets. Such children without a history of sexual abuse can demonstrate explicit sexual play with dolls. When making recommendations for custody and visitation in cases where one is in doubt about allegations of sexual abuse, it is best to be conservative, yet constructive. One may recommend chaperoned visitation and/or further psychiatric evaluation and treatment for the parent or child. Joint therapy may be possible and helpful. One should be careful not to refuse visitation automatically. This could lead to painful sequelae for both the child and the parent, if a well-established bond is severed permanently. It is rarely required to completely block visitation of any kind, without the consideration of further treatment.

Parental kidnapping Parental kidnapping, the abduction or withholding of a child by one parent from the other parent, may occur in a variety of contexts related to divorce. Katz (1981) has described parental kidnapping to occur before a divorce is finalized by a parent who fears losing custody. Katz has also described its occurrence after divorce by the noncustodial parent, who flees to another state with the child to seek a new custody decision, or simply to hide from the custodial parent. Also, after a divorce is finalized, the custodial parent may disappear with the child in an attempt to deny the non-custodial parent visitation (Back and Buxton 1983). Other motives may include an attempt to protect the child from an abusing parent, a desire to blame and punish the left-behind spouse, a desperate effort to effect a reconciliation, or even paranoid delusions, sociopathy, and other mental disorders on the part of the abducting parent (Johnston, Girdner, and SagatunEdwards 1999). Goodman (1976) estimated that between 25 000 and 100 000 cases occur annually. Lewis (1978) estimated that 60–70 per cent of cases occur before custody has been decided and go unreported. A national household survey conducted by Finkelhor, Hotaling, and Sedlak (1991) showed that over 350 000 families in 1988 saw one parent take unilateral action to deprive the other parent of contact with the child. About one-half of these cases involved actual concealing of the child or flight from the state or country. Schetky and Haller (1983) have discussed the traumatic effects that parental kidnapping may have on the child. The child’s trust in the kidnapping parent may be damaged with a detrimental effect on the child’s future

relationship with the parent. The child may blame the other parent for not preventing the kidnapping and may feel angry if that parent cannot rescue him or her. The child may be further traumatized by the kidnapping parent’s irrational behavior. The parent’s disregard for the law may lead the child to feel vulnerable and without protection. Common symptoms that may be seen in these children include difficulty in trusting others, withdrawal, poor peer relations, school problems, regression, anxiety, or depression. Johnston, Girdner, and Sagatun-Edwards (1999) compared fifty families that had experienced a parental kidnapping in the context of a child custody dispute, identified by district attorney case records, to a comparison sample of custody litigating families that also expressed high levels of anger and distrust, but without an abduction event. They described several risk factors for the abduction cases, namely allegations of child abuse, narcissistic/ sociopathic personality traits, unmarried relationship status, low socioeconomic, and minority ethnic status. The latter two factors may be mediated by the reduced likelihood that these families will have the resources or cultural experience to settle their disputes in a legal forum. The authors proposed that the courts need to have policies in place to effect rapid decisions or restrictive measures in high-risk situations. Due to the potential harm to the child, strict criminal sanctions against parental kidnapping should be imposed. The legal system has been taking steps to try to decrease its occurrence, reflected in the prohibition on parental kidnapping in both United States federal law and the Hague Convention (Haller 1987). The National Conference of Commissioners on Uniform State Laws drafted the Uniform Child Custody Jurisdiction Act (UCCJA) in 1968. It has become law in nearly all states. According to Schetky and Haller (1983), this act has been helpful in reducing the likelihood of a kidnapping parent gaining custody of a child through a new custody decree in a different state. Prior to this act, one state was not obligated to honor a custody decision granted in another state. They have also described the addition of further legislation in the 1980s, where an increasing number of states have made child kidnapping a felony, and how this has been useful to some extent as a deterrent. Even with implementation of these laws, however, parental kidnapping continues to be a significant problem.

Harassment of psychiatric evaluators Of final note as a special issue that may be encountered is the harassment of the psychiatric evaluator. The psychiatric evaluator should be warned that attorneys are trained to manipulate, coerce, confuse, intimidate, and distort as part of the adversarial system of the court. An attorney, if losing in court, may attack the evaluator professionally and personally in a vain attempt to discredit the logical

Role of the psychiatric evaluator in child custody disputes 345

or irrefutable facts of testimony. Some marriage/divorce attorneys may take the adversarial system to new extremes. They may attempt character assassination or other discrediting tactics, ignore the merits of the case, lodge ethical complaints, call regulatory agencies, or harass the evaluator in other ways, in order to persuade the evaluator either to come to a decision that favors their party, or to abandon the case entirely. There have even been instances where an attorney has lied over the phone, pretending to be someone else, in order to try to covertly get information from one of our authors who was involved in a custody battle for one of the attorney’s clients. Because of the pressures placed on evaluators, many psychiatrists refuse to perform child custody evaluations, which unfortunately is detrimental to children who need their expertise. Herman (1990a) pointed out that the psychiatrist also may receive personal threats from parents unhappy with the recommendations of the evaluator. Evaluators may be vindictively reported to state licensure boards or professional ethics boards by angry, hostile parents. Issues surrounding child custody elicit deep emotions within parents. Such feelings in a parent for whom custody is not granted may lead to unwarranted attacks on an evaluator, regardless of how well intentioned or reputable the evaluator may be. The evaluator should also be aware of the possibility even of violence when working with bitter, vengeful, dissatisfied parents. It is remarkable and fortunate that competent child psychiatrists subject themselves to this undeserving abuse, in order to guide and protect children from being further victimized by the divorcing process of their adult parents.

SUMMARY Certainly, conducting a psychiatric evaluation in a child custody dispute is difficult, time-consuming, and emotionally draining. The evaluator must carry out extensive interviews and effectively work with the child, parents, attorneys, and other adults significant to the child. The evaluator must make a recommendation that may have a profound effect on the rest of the child’s life, even when there may be no clear-cut best recommendation. When formulating his or her recommendations, the evaluator must strive not to be biased by personal prejudice or the persuasive influence of attorneys. He or she must make a decision that is rooted in the evidence of the evaluation and is based only on what is in the best interests of the child. Throughout this process the evaluator needs to maintain his or her stance as advocate for the child’s needs. The evaluation process may be painful for the child, the family, and the psychiatrist. The emotional and psychological rewards, however, are great. The evaluator may help provide the potential for a happy, healthy environment for the development of the child, a foundation for later life.

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37 Termination of parental rights and adoption SHASHI ELANGOVAN AND STEPHEN B. BILLICK

HISTORICAL AND LEGAL PERSPECTIVES The basic concepts of ‘parental rights’ and the ‘interests of the child’ have gone through evolutionary changes. Until the nineteenth century, the parental rights issue was relatively simple. Under Roman and early English law, the term ‘parent’ referred to the biological (i.e., genetic) father, and children were treated as property of their parents, particularly the father. Because wealth and property was considered an extremely important matter, the rights of inheritance were carefully protected and rigorously addressed in the legal system. This created an extreme imbalance between the rights of the parents and those of their offspring. The term parens patriae had its origin in English Law where the king was considered the father or the parent of the citizens of the land. The United States government and its individual States function as a parent when it exercises its power of guardianship over persons with disability, such as minors, incompetents, and the mentally ill. Such power is not exercised by the States unless the person under disability has been deprived, for whatever reason, of non-governmental protection and support of an adequate degree. The twentieth century was the beginning of a new interest in delineating rights and the interests of the children over the rights and interests of the father, and of both parents. Child labor laws were enacted in the beginning of the twentieth century to further protect children. In re Gault (1967) is a pivotal landmark U.S. Supreme Court case regarding children’s rights. The Supreme Court upheld a need for timely and adequately specific written notice, the right to counsel, the right to confrontation and cross-examination, and protection from self-incrimination. The need for a transcript and the right to appeal were not ruled upon. The majority opinion written by Justice Fortas traced the long history of differences between juvenile and adult cases and offered juveniles many rights similar to that held by adults.

The social movement of the 1960s, with its emphasis on civil rights, influenced the parent–child law. Children were increasingly viewed as real people with specific rights, and society began to take interest in the well-being of minors; hence the ‘best interest of the child’ concept evolved. As the sociopolitical atmosphere changed again during the 1980s, various rights continued to be re-examined. The rights of parents and children were not viewed as equal by the law. The U.S. Supreme Court, in a series of cases, noted that the biological relationship, although not the exclusive consideration, is in fact, unique, and often prevailing. Constitutional law holds that the rights of parents to raise their children in a manner they see fit constitutes ‘family privacy’ (Lochner v. New York 1905). This suggests that the law allows great latitude to parental actions or inaction toward their children. However, parental rights are not infinite. In the U.S. Supreme Court case of Prince v. Commonwealth of Massachusetts (1944), the court stated, ‘the state, as parens patriae, has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare.’ In Roe v. Wade (1973) the court pointed out that, when the state intrudes upon a fundamental protected right (family privacy and parental rights), strict scrutiny must be observed by the court. Such a high level of review is mandated to ensure that fundamental constitutional rights have not been abridged. Parental rights, as recognized by law, include the basic right to custody of their children unless the parents are proven unfit. Parents have authority to control their children until they reach majority, or are being emancipated. The child has no right to leave the parental home for another, although the law recognizes that parental control decreases with the child’s increasing age, especially in later adolescence. In the issue of discipline, the court gives parents wide latitude in the disciplining of children. The parent has the right, authority and power to discipline the child, if it is viewed as being for the child’s benefit. Corporal punishment is included, while abusive punishment is not. In general, if parental discipline is administered with good

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intent and there is no physical injury, the law will not intervene; however, if malice or serious physical injury results, the parental rights may have been exceeded (American Jurisprudence 22 § 22, 1987). Parents have the right to send their children to private, parochial, or the school of their choice. However, this is a limited right, because the schools must conform to guidelines and standards established by the state educational boards (Pierce v. Society of Sisters 1925). Homebased schooling programs following primary school were allowed in the Amish group, as illustrated in the Supreme Court case (Wisconsin v. Yoder 1972). Parents have a limited right to bring up their child in a reasonable religion, though inculcating Satanism and human sacrifice would be unacceptable. Religious practices that may affect a child’s compulsory school attendance must be a part of an established religion to be acceptable, rather than a mere philosophy or a secular belief. Parents have the right to hospitalize their children involuntarily for psychiatric evaluation and treatment. An independent medical authority must concur the need for hospitalization. In many states, the minor child, however, has the right to a judicial review for involuntary hospitalization (Parham v. J.R. 1979). In other areas of medical care, the law gives parents broad discretion with limits. A child may be considered neglected if the parents fail to provide proper and necessary medical care (In re Green 1972). One of the prominent issues in this area has been the refusal by Jehovah’s Witnesses to allow blood transfusion. All states that have ruled in this matter have ordered the blood transfusions if it has a reasonable likelihood of saving the life of the child. The courts have held that adults have the freedom to exercise full religious beliefs for themselves, but cannot exercise unlimited religious beliefs for their child. In the Matter of Faridah W., 1992, a New York case, the court declared a sixteen-year-old female who was born with spina bifida and had a neurogenic bladder to be a medically and emotionally neglected child, because her mother refused to permit her to undergo an enterocystoplasty. The court stated that,‘A parent has a non-delegable affirmative duty to provide a child with adequate medical care, which has been determined to be that degree of care exercised by ordinary, prudent, loving parents who are anxious for the well-being of the child.’ The court further noted that the critical aspects of the parents’ failure to obtain medical assistance must be to the extent that the child’s mental, medical, or emotional health is adversely affected or in imminent danger of being adversely affected. In this case, the mother allegedly refused to comply with the medical expert’s opinion and failed to provide a reasonable alternative to the proposed treatment. She also failed to visit her daughter during most of her lengthy hospitalization. Parents have a right and the authority to determine their child’s social activities and how best to meet their child’s physical, emotional, and relationship needs. In

parent–child relations, after granting custody to one parent, the other parent usually has the vested right to visitation. The Uniform Marriage and Divorce Act (1991) requires clear and convincing evidence that parental contact seriously endangers the child’s physical, mental, or emotional well-being to justify termination of the right to visitation. In many states, it was formerly assumed that an unmarried father had no claim to parental rights and their permission, therefore, was not required for third-party adoption of their biological child. The Supreme Court, in the case of Stanley v. Illinois (1972), addressed a landmark due process case regarding parental rights. It was uncontested that Stanley was an unwed father who was seriously interested in his offspring. He had maintained a relationship, provided support payments, and held himself out as a father. The Illinois state law presumed an unwed father to be an unfit parent per se, with no opportunity to rebut the unfit determination. However, Illinois law required notice, hearing, and proof of unfitness before neglect proceedings could lead to termination of parental rights. Stanley had no hearing. The court found that Stanley’s private interest involved companionship, care, custody, and management of the children he has ‘sired and raised.’ The court concluded, ‘It is cardinal that the custody, care, and nurturance of the child reside first in the parents, whose primary function and freedom include preparation [of the child] for obligations the state can neither supply nor hinder.’ The court went on to state that the integrity of the family unit was protected by the due process, equal protection, and ‘the rights retained by the people’ clauses of the Constitution (Griswold v. Connecticut 1965), and that the law has not refused to recognize family relationships not legitimized by marriage. In Stanley, the court stated that while the state has a duty ‘to protect minor children through a judicial determination of their interest in a neglect proceeding,’ unwed fathers have a due process and equal protection right to have a hearing on fitness when state law declares a married, divorced, or unmarried mother to be presumed fit. Stanley was given a due process hearing and declared unfit to parent his child for other reasons.

TERMINATION OF PARENTAL RIGHTS (TPR) The law does not view parenting as indigenous to the person, but rather something with which the family is vested by the state. The state assumes it is the parent’s responsibility to understand, implement, and perpetuate the values of society. It assumes that a parent has the innate ability to balance rights and responsibilities, to relinquish absolute power for the good of the developing child, and treat progeny in such a manner so as to maximize developmental potential. When a parent abdicates, neglects, or abuses this responsibility, the state engenders the doctrine

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of parens patriae to break into the delicate parent–child relationship, expose it to the legal and psychiatric community, and to ask the court’s determination as to the appropriateness of terminating an assumed inalienable right of the individual – namely to parent one’s own children (Mnookin 1978). Out of the cruelty to animal laws and the child labor laws, emerged early social legislation protecting children’s rights. Then came the concept of ‘the best interest of the child’ (Goldstein, Freud, and Solnit 1973). The best interest standard is a well-established principle of law in areas of child custody and termination of parental rights (American Jurisprudence 2d § 974, 1983). The concept of ‘best interests’ however tends to be vague. Some states have attempted to make the issue of best interest clearer and more specific. The District of Columbia (District of Columbia Code, 1981 § 16-2353) has codified that the best interest of a child includes factors that consider: 1 The child’s need for continuity of care and caretakers, and for timely integration into a stable, permanent home. 2 The relationship of the physical, mental, and emotional health of all persons involved to the welfare of the child and his needs. 3 The quality of relationship of the child with his sibling, caretakers, foster parents, and natural parents. 4 Whether a child has been left unclaimed in the hospital ten days after a medical determination that he could be safely discharged. 5 The child’s opinion of his best interests to the extent he is able to express them. 6 Evidence of continued drug-related activity in the parental home after interventional services have been provided (Armitage 1994). In the state of California (California Civil Code 226(a), 1991), the court must consider the age of the child, the bonding or potential to bond with natural parents or the adoptive parents, and the ability of the parents to provide adequate and proper care and guidance to the child. In the state of Michigan (Child Custody Act, 1970), factors relating to determination of best interests in custody cases include: 1 The love, affection and other ties between the child and the parents competing for custody. 2 Capacity and disposition of competing parents to give the child love, affection, guidance, and education. 3 The capacity to provide necessary or any special medical care or remedial care required for the child. 4 Length of time the child has lived in a satisfactorily stable environment. 5 Permanence as a family unit of the proposed custodial home. 6 The moral fitness of competing parties. 7 The mental and physical health of the competing parties.

8 Home, community, and school record of the child. 9 Reasonable preference of the children if they are of sufficient age. In Connecticut (as In re Bernard Pecor 1992), the court held that a child’s best interest involving termination of parental rights cases must be met by considering:

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the timeliness, nature, and extent of services offered by the state to help parents reunify (the presumption being that parental rights are important); the terms of any court order or agreement between an agency and the parents, and the extent to which the agreements were complied with; feelings or emotional ties between the parent and the child, related to the concept of psychological parent; age of the child; whether mental or behavioral disorders prevent the parents from changing their conduct, behavior, or circumstances that could be injurious to the child in the foreseeable future; and whether any governmental agency or party prevented the parent from developing a relationship or that the lack of a relationship was based purely on economic circumstances.

Congress determined that Native American parents and children were a special class requiring special protections. Federal law gives deference to the parental rights of Native Americans who are members of a recognized Indian tribe. The Indian Child Welfare Act of 1978 requires a finding by evidence ‘beyond a reasonable doubt’ that allowing an Indian child to remain with the parent or parents would be likely to result in serious emotional or physical damage to the child. This law requiring a higher standard of proof was enacted because there was substantial evidence indicating that state social workers and others unfamiliar with Native American tribal child-rearing practices (including leaving the child for prolonged periods with other members of the tribe who are considered as ‘extended family’), inappropriately recommended termination of parental rights. Schetky and Slader (1980) believe that the law must consider termination of parental rights as it relates to infringement of the rights of children: (i) the right to the maintenance of a parent–child relationship – that is, the right to have someone to call ‘parent’; (ii) freedom from physical, sexual, or psychological mistreatment; and (iii) the right to have ‘primary emotional needs for continuity, consistency and identity’ met by being a part of a family.

Definition of TPR Termination of parental rights means the adjudication that a child is free from the custody and control of either or both his/her living genetic parents by means of court order that completely severs and extinguishes the parent–child

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relationship (American Jurisprudence 2 & § 34, 1987, pp. 172–3). It has, therefore, a profound and serious finality.

Standards of termination Constitutional law provides minimal standards that must be met in order to terminate parental rights. In Santosky v. Kramer (1982), the U.S. Supreme Court held that before a state can completely and irrevocably sever parental rights, due process requires that evidence provided by the state be clear and convincing to support its allegation for termination. The minimal constitutional standard must be met but can be exceeded by state law. Some states currently require ‘beyond reasonable doubt’ standards of proof for termination of parental rights. Due process in termination proceedings requires fundamental fairness under the legal and factual circumstances of a case. The U.S. Supreme Court invoked the Mathews v. Eldridge (1976) elements as rules applicable to deciding what due process requires. These elements are: (i) the private interest at stake; (ii) the government’s interest; and (iii) the risk that the procedures used will lead to erroneous decisions. Legal criteria or grounds for termination of parental rights vary among jurisdictions. However, the grounds/ criteria must be supported by competent, relevant, clear, and convincing evidence. Common grounds for termination of parental rights include: 1 Voluntary abandonment: (NY SSL 384-b). A child is abandoned by his or her parent if such a parent evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child or agency, although able to do so and not prevented or discouraged from doing so by the agency. In the absence of evidence to the contrary, such ability to visit and communicate shall be presumed. 2 Permanent neglect: this means a child who is in the care and custody of an authorized agency and whose parent or guardian has failed for a period of more than one year (after foster placement) to substantially and continuously or repeatedly and consistently maintain contact with or plan for the future of the child although physically and financially able to do so, notwithstanding the agency’s diligent efforts to encourage and strengthen the parental relationship when such efforts will not be detrimental to the best interest of the child. It is important to note that a visit or communication by a parent with the child, which is of such character as to overtly demonstrate a lack of affectionate and concerned parenthood, shall not be deemed a substantial contact. 3 Mental illness: this means an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior thinking, feeling or

judgment to a such an extent that if the child were placed in or returned to the custody of the parent, the child would be in danger of becoming a neglected child. 4 Mental deficiency: this means sub-average intellectual functioning, which originates during the developmental period and is associated with the impairment in adaptive behavior to such an extent that if the child were placed or returned to the custody of such parent, the child would be in danger of becoming a neglected child. 5 Physical/sexual abuse. 6 Substance abuse: when the parental substance abuse leads to danger of neglect or abuse of the child. When the state interferes with parental rights as in involuntary termination of rights, it must carefully follow legal procedures and substantive law that reflects the grounds and criteria for termination. These procedures can vary among jurisdictions. In most cases, circumstances that take place in a child’s life warrant interference by state agencies to take temporary custody of the child, as in cases of neglect, abandonment, or abuse by the parents or legal custodians. The child is initially removed on an emergency basis by a state agency such as child protective services. Hearings on this action are required and there must be substantive evidence of neglect or abuse based on preponderance of evidence. The court then mandates the state agencies to make diligent efforts to assist the parent toward reunification with the child unless reunification is not possible, or is not indicated. All jurisdictions allow for waiver of reunification attempts under certain circumstances. When legal criteria and grounds for termination are met, a termination hearing is ordered following a petition by the state. The grounds for parental unfitness and termination must be stated and must be proved by clear and convincing evidence. The next procedural requirement is to prove that termination is in the best interest of the child by clear and convincing evidence. Testimony of a child psychiatrist is frequently used in termination of parental rights cases. In addition to the prominently accepted principle of the ‘best interest of the child,’ the concept of ‘least detrimental alternative’ has been applied in some cases.

Clinical issues related to TPR All clinical issues and evaluation must be viewed within the context of the legal grounds and criteria for termination.

MENTAL DISORDERS AND MENTAL ILLNESSES Psychiatrists and psychologists are called to provide evidence in TPR proceedings when mental illness or deficiency is a proffered ground for termination. In New York, a parent’s right can be terminated on the grounds of mental illness if the suffering parent is rendered incapable

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of caring for the children. The state is not required to make efforts to strengthen the parental relationship, nor is it required to show that efforts to strengthen the parental relationship would be detrimental to the child (In re Demetrius F. et al. 1991). All clinical evaluations must be viewed within the context of the legal grounds for termination. Involuntary hospitalization for the mental disorders, combined with other factors that are offered, as evidence that the hospitalized parent may be dangerous to the child is a frequently recognized ground. A diagnosis of schizophrenia per se may not be accepted as evidence for unfitness. The schizophrenia must have an adverse impact on the ability to parent by interfering with the individual’s thinking, perception, behavior and judgment. Other associated problems such as poor or non-compliance with medication and recommended treatment, refusal to participate in parenting skills training and erratic parent–child interaction during visitation are also important areas of assessment. A borderline personality disorder has been accepted as a diagnosis of ‘mental illness or disorder’ and deemed by the court to be a long-term condition allowing for termination, if termination is in the best interest of the child, because such a parent was not considered capable of performing proper parental duties. The same parent did not comply with a court-ordered rehabilitation plan for reunification, which the court held as an independent reason, in addition to the mental disorder, to terminate parental rights (In re the Interest of B.M. v. L.M. 1991).

PARENTAL INCARCERATION Criminal incarceration of a parent as a factor in TPR varies among jurisdictions. Parental incarceration is a growing problem that needs accommodation in the current timedriven model of permanency planning. Child welfare agencies need to recognize the importance of maintaining parent–child relationships, even when a parent is incarcerated, and to develop creative approaches for dealing with the unique challenges of parental incarceration. Over the past fifteen years, the population of female prisoners has increased by almost 400 per cent, while the male prison population has increased by more than 200 per cent (U.S. Department of Justice 1995). Two-thirds of the female prisoners in the U.S. had one or more children under the age of 18 years. In 1991, 72 per cent of incarcerated mothers had minor children who had lived with them before entering prison. Approximately 50 per cent of the incarcerated fathers had lived with their children prior to imprisonment (Snell 1994). In the survey of 1991, 71 per cent of the children of incarcerated mothers and 13 per cent of the children of incarcerated fathers were with grandparents or other non-parent relatives (Snell 1994). These data show that incarcerated mothers must rely on non-parent caregivers for childcare to a much greater extent than incarcerated fathers. Some 90 per cent of the children of incarcerated fathers were cared for by

their mothers (Johnston 1995), but only 25 per cent of the children of incarcerated mothers were cared for by their fathers (Snell 1994). Parental imprisonment does not change the basic legal requirement governing permanency planning. Agencies have a legal obligation to make ‘reasonable efforts’ to preserve and strengthen the relationship between incarcerated parents and their children. The definition of reasonable efforts varies from jurisdiction to jurisdiction. For example, New York state law defines diligent efforts to incarcerated parents as including: making suitable arrangements with a correctional facility and other appropriate persons for an incarcerated parent to visit the child within the correctional facility, if such visiting is in the best interest of the child. Such arrangements shall include, but shall not be limited to, the transportation of the child to the correctional facility, providing social or rehabilitation service to resolve or rectify problems which can impair the incarcerated parent’s ability to maintain contact with the child other than incarceration itself [NY SSL 384-b (7) (f) (5)]. The most obvious challenge to the agency is the facilitation of a continued parent–child relationship relating to lengths of sentencing and distance. The length of sentencing is likely to increase in the future as legislative efforts to eliminate or seriously limit parole result in more time served. At the same time, mandatory sentencing laws for certain crimes will lead to the imprisonment of even more parents. Distance is the other problematic issue affecting the ability of agencies to provide services to an incarcerated parent. Womens’ prisons are often located in rural areas, and inaccessible by public transportation. Despite these obstacles, the agencies must generally attempt to overcome them and assist the parent and child to maintain a meaningful relationship. Parental rights are not absolute, and in inappropriate cases, where diligent efforts are not in the best interest of the child, the state may go to court to seek TPR. To do so, the state must prove the parent is ‘unfit’ (Stanley v. Illinois 1971; Santosky v. Kramer 1982). The parent’s ‘fitness’ must be measured by the parent’s ability to ‘maintain a place of importance in the child’s life’ (In re Adoption of Sabrina 1984). Recognizing the principle that parental incarceration does not automatically amount to unfitness, New Jersey’s Supreme Court has articulated the factors that must be examined in TPR evaluations of incarcerated parents: 1 Parent’s performance before incarceration. 2 The extent to which children were able to rely on their parent. 3 Parent’s efforts to remain in contact with the children since incarceration. 4 Parent’s ability to communicate and visit with their children. 5 The effect of parental communication and visitation on the children. 6 The ability to provide nurturance and emotional support to their children.

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7 Risks posed to the children by the parent’s criminal actions. 8 The extent of the parent’s rehabilitation during incarceration. 9 The need of the children for permanency and stability and whether continuation of the parent–child relationships will undermine that need. 10 The effect that the continuation of the parent–child relationship will have on the psychological and emotional well-being of the children. The trend toward incarceration of greater numbers of people for longer periods of time shows no signs of abating. As a result, increasing numbers of out-of-home caseloads will involve children of incarcerated parents. Effective family work in cases involving parental incarceration requires significant expenditure of time and resources. The child protective agencies should identify the cases where efforts would be successful in maintaining and strengthening viable parent–child relationships. In such cases, agencies must develop new permanency approaches, consistent with the requirements of the Adoption and Safe Families Act (ASFA 1997), for families in which a parent is incarcerated. For many children of incarcerated parents, the best permanency plan is one in which the parent continues to play a significant role in the child’s life (Genty 1998).

Clinical issues and the role of child psychiatrist in TPR evaluation As numerous studies have documented, many children languish in foster care with little or no efforts being made to make permanent plans for them, in spite of the fact that their biological parents may be failing to progress towards the goal of reintegrating them into the family. Although foster care is thought of as a temporary placement, studies have shown that once a child is in placement, he or she has a fifty per cent chance of remaining there for three years or longer (Wald 1976). In terms of assessing the child’s needs in this situation, there appears to be few clear-cut guidelines, and the available studies usually either relate to divorce (Malmquist 1968; Benedek 1972; Derdeyn 1976; Derdeyn 1978) or concentrate on legal aspects of such decisions (Foster and Freed 1964). Goldstein, Freud, and Solnit (1973) introduced the concept of ‘psychological parent,’ and urged the court to make decisions based on the children’s needs, interests, and the time perspectives. Schetky et al. (1979) directed their study toward a broader group of parents who failed to meet their children’s needs and also had their parental rights terminated by the court. Their study of fifty-one parents whose rights were terminated revealed that the TPR cases were primarily cases of neglect rather than abuse. Most deal with abandonment or neglect. Less than 10 per cent of all court cases involve physical abuse. In most cases, parents’ backgrounds were notable for severe social, economic, and educational disadvantages, leading to family disruptions, problems with parent–child

relationships, and out-of-home placements. Many were victims of neglect, physical, and sexual abuse. These parents were marginally functioning with interpersonal difficulties, unstable marriages, social mobility and isolation and difficulty finding employment. Many displayed low self-esteem, impulsivity, poor judgment, and difficulty planning ahead. The parents had serious deficiency in the capacity for empathy and an inability to put their children’s needs before their own. They viewed their children as existing to satisfy their needs. Parents were deficient in their own role models for parents and had impaired object relations. Emotional illness in mothers often contributed to the neglect of the child. Mental illness in mothers was frequent: some 40 per cent of mothers had psychiatric illnesses, were hospitalized for treatment, or sought outpatient treatment at some point. Fathers were notable for the absence of psychosis, but presence of serious personality disorders, antisocial personality disorder (ASPD) being most frequent. Neglectful parents are harder to reach and help than abusive parents. One possible reason is the fact that neglect is more insidious and more difficult to detect. A study of children languishing in foster care showed that many were experiencing developmental delays, had symptomatic behaviors, problems in response to visitation and delays in academic performance. In spite of the above findings, many children were doing well in long-term foster care and eventual adoptive homes. At the time of termination, all children had formed positive attachments to foster parents. It is important to stress that age, mixed race, presence of minor behavior problems and duration of time in foster care were not barriers to finding adoptive homes for these children. Fanschel (1976) noted that psychiatrists, in their evaluation of parents and children, and all parties pertinent to the case, should search for: (i) covert aggression; (ii) role reversal where the child has inappropriately become the parent of the parent, or is serving so many psychological needs of the parent that it amounts to serving in a parental role; (iii) indications that the child is being drawn into the marital dysfunction; and (iv) the existence of ageinappropriate expectations of the child often combined with little appreciation of the child’s own feelings and needs as separate from the parents, or lack of knowledge of developmental norms. In addition to a variety of factors considered in light of the legal criteria, clinical issues such as the severity and duration of the parent’s abnormal mental or emotional condition or conduct must be evaluated. The likelihood of the parents changing their abnormalities, allowing reintegration of the child into the home within a reasonable period of time consistent with the current ASFA requirements, must be addressed. The issue of whom the child truly views as his or her parent, that is, who is the psychological parent of the child, must be assessed. Finally, the psychiatrist should also consider options for placement of the child and the ‘least detrimental alternative’ when making a recommendation, bearing in mind the problems of children in prolonged foster placements.

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Although the ‘best interest of the child’ is a universally applied principle in most jurisdictions, the concept of ‘psychological parent’ and the ‘least detrimental alternative’ has also been heavily relied upon as important in many jurisdictions.

CLINICAL CRITERIA FOR TPR The information in this kind of evaluation must be weighed for and against termination of parental rights with a precision that exceeds the legal criteria, for the legal criteria in themselves are not very specific and not well defined to make an easy recommendation: 1 Basic aspects of the evaluation should include examination of the child individually with both biological parents and foster parents. All participants should be informed of the limits of confidentiality or lack of confidentiality in the evaluation. 2 Review of all records from ancillary sources such as child’s school, medical records, psychiatric treatment, child protective service, or agency records should be carried out to obtain history and factual information. 3 A thorough evaluation of the child’s stated parental preference must be explored in the context of a child psychiatric evaluation. 4 The child’s perception of the parent’s abuse, neglect, and unavailability should be assessed. 5 Evaluation of the child’s development, including medical examinations, developmental milestones, and psychological testing. 6 Assessment of parental attitudes, knowledge of parenting skills, the parents own development and emotional maturity (development). 7 Determination of how parents coped with stressors/ demands during their child’s development. 8 Evaluation of the parent’s perspective as to their own difficulties and alleged reasons for termination of parental rights. 9 Psychiatric mental status examination of all parents to assess psychopathology. 10 Assessment of child–parent interaction in an unstructured play setting is useful in detecting covert hostility, anger, and detachment. Additional range of criteria or guidelines include: 1 The parental availability to provide continuity and consistency of care. 2 Parental empathy and their ability to recognize the child’s needs as different from their own. 3 Parental affection, warmth, and nurturance toward their children. It may be helpful to explore the parent’s own history of nurturance during their development if relevant, as many neglectful parents have a history of having been neglected or deprived themselves. 4 Parents’ intelligence in terms of their ability to manage daily practical affairs in their own lives and its effects on their parenting availability.

5 Parental ability to utilize help from professional and personal supports, as well as community supports. 6 Parents’ ability to successfully rehabilitate. Has there been parental improvement enough to keep pace with the child’s developmental needs? Is the parent able to apply her/his knowledge of parenting skills to the child? 7 What special needs does the child have? Have they been met in order to foster satisfactory development? 8 The quality and intensity of the child’s attachment to the natural parents as well as surrogate parents. 9 The parental ability to set limits with the child help the child develop internal controls and effectively interact with her/his environment. 10 Long-term or permanent availability of surrogate parents as well as the adoptability of the child. 11 Evaluation of the parental separations or absences with appropriate comments on their implication on the child. 12 Parent’s inability to take care of him/herself either when the child was at home or placed out of the home. 13 The limitations of psychiatric treatment with certain psychiatric disorders (e.g., personality disorders, organic brain syndromes, severe developmental disorders). 14 The parent’s refusal to use treatment that could be beneficial. 15 The gains made by children while living in foster care. In summary, this comprehensive approach to evaluation involves a progression from assessment of the parental conduct or condition, to the parent–child relationship, to the effects of the parent’s conduct on the child, to the child’s relationship with the surrogate parent, and finally, the child’s needs. This may also satisfy the court’s need to protect parental rights and focus on parental fault in terms of the effects on the child and his/her development (Schetky et al. 1979).

Ethical issues and expert testimony in forensic child psychiatry Termination of parental rights evaluation is a sensitive issue, and it is at this delicate interface of societal values, parental rights, and children’s rights that the psychiatrist is asked to render an expert opinion. The role of a psychiatrist in such evaluations is to assume the position of evaluating appropriate parenting skills and behavior rather than to make pure diagnostic and clinical statements. Weighing competing interest poses an ethical dilemma even when guided by the universally applied principle ‘best interest of the child.’ There is a terrible finality to termination of parental rights. Common ethical dilemmas that can potentially arise in TPR evaluations include:

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Will the parent improve with giving him/her one more chance?

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How does termination affect the parent’s mental health? Are there educational and social class biases that may affect our recommendations?; and How do we balance the interest of the child who is thriving well in foster care with the concern for the child’s impoverished mother who has shown minimal improvement?

of parents and other family members, the foster child requires special safeguards, resources, and care. Every foster child has the inherent right:

•

Article of the first: to be cherished by a family of his own, either his family helped by readily available services and supports to reassume his care, or an adoption family, or by plan a continuing foster family. Article of the second: to be nurtured by foster parents who have been selected to meet his individual needs and who are provided services and supports, including specialized education, so that they can grow in their ability to enable the child to reach his potential. Article of the third: to receive sensitive, continuing help in understanding and accepting the reasons for his own family’s inability to take care of him, and in developing confidence in his own self-worth. Article of the fourth: to receive continuing loving care and respect as a unique human being … a child growing in trust in himself and others. Article of the fifth: to grow up in freedom and dignity in a neighborhood of people who accept him with understanding, respect, and friendship. Article of the sixth: to receive help in overcoming deprivation or whatever distortion in his emotional, physical, intellectual, social, and spiritual growth may have resulted from his early experiences. Article of the seventh: to receive education, training, and career guidance to prepare him for a useful and satisfying life. Article of the eighth: to receive preparation for citizenship and parenthood through interaction with foster parents and other adults who are consistent role models. Article of the ninth: to be represented by an attorney-atlaw in administrative or judicial proceedings with access to fair hearings and court review of decisions, so that his best interests are safeguarded. Article of the tenth: to receive a high quality of child welfare services, including involvement of the natural parents and his own involvement in major decisions that affect his life.

Therefore a psychiatrist’s participation in TPR evaluations runs headlong into the basic value system fundamentally ingrained in the teachings of psychiatry – namely professional neutrality, clinical tolerance to a wide range of life styles, the family’s right to privacy, and dependent decision-making, and the belief that intact family is the cornerstone of our social, emotional, and developmental matrix. Finally, the ultimate decision of termination presents not only the parents’ personal failure in adequately providing for their children, but also the failure of society’s ability to rectify through all means, including psychiatric intervention, the basic flawed parenting styles that brought the family to professional attention in the first place. It is imperative that the courts understand the limit of our current expertise in defining appropriate or adequate parenting skills and our limits in facilitating these virtuous qualities in parents who are grossly inadequate or negligent in assuming parental responsibility (Schoettle 1984). Psychiatrist’s testimony on clinical issues of TPR evaluations should also include history of parental absences and separations from their child, the parent’s failure to rehabilitate or change, even with professional assistance, and their inability to utilize help in planning for the return of their children. Limitations of psychiatric treatment for several diagnostic categories such as organic brain syndrome, mental retardation and severe personality disorders must be acknowledged. It is important to document evidence that the child has made clear developmental gains while in foster care and/or any reversal of developmental delays or abnormalities which the child previously revealed while under the parent’s care and custody.

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PERMANENCY AND ADOPTION: FEDERAL REGULATIONS AND LEGAL PERSPECTIVES

June 20, 1972 was an important day for the foster child in New York State. It was the first day that a Section 392 foster care review hearing was held at family court, New York County, with Judge Edith Miller presiding. Prior to the enactment of Section 392 of the social service law, there was no court review of the thousands of children in foster care. It was thought that because of lack of court review many children in foster care remained in foster care needlessly and many more should have been adopted, while others should have returned home to their natural parents. Section 392 of the SSL mandates that once a child has been in foster care for a continuous period of eighteen months, the authorized agency charged with the care of the child must file a petition in family court seeking review

Bill of Rights for foster children This was ratified in Congress Hall, Philadelphia, on April 28, 1973, and comprises the following points:

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Even more than for other children, society has a responsibility along with parents for the well-being of foster children. Citizens are responsible for acting to insure their welfare. Every foster child is endowed with the rights inherently belonging to all children. In addition, because of the temporary or permanent separation from and loss

• • • • • • • •

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of the child’s status. The petition must set forth the disposition sought (that is, return of the child to his or her natural parents, continuing foster care, or initiating the proceedings to free the child for adoption), and the grounds or reasons for such disposition. All interested parties such as the authorized agency, the natural parents and the foster parents are given notice by mail of the hearing. The court has the power to direct the agency to undertake diligent effort to encourage and strengthen the parent–child relationship when it finds such efforts will not be detrimental to the best interest of the child. Finally, the family court that has continuing jurisdiction and may rehear the matter when it is deemed necessary but within twenty-four months [as in Matter of Sheila G (61 N.Y.S 2d 368, 474 N.Y.S 2d 421)]. The family court is vested with continuing jurisdiction over the child until there has been a final disposition of custody. After the child is returned to the natural parent by the Social Service agency the family court loses its jurisdiction [as in Matter of Lucinda G (122 MISC 2d 416, N.Y.S 2d 736 (1983))].

In addition to modifying the reasonable efforts requirement, ASFA also imposes new requirements for expedited filing of termination of the parental rights proceeding. The statute requires a state to file a petition for termination of parental rights for all children who have been in foster care for 15 of the most recent 22 months, including all children already in care. The TPR petition is to be immediately filed for children for whom ‘aggravated circumstances’ (e.g., severe or repeated child abuse) has been found or whose parent or guardian has an enumerated serious criminal conviction (Santosky v. Kramer 1982, at 455). US 745 (1982) requires a higher burden of proof in a termination based on repeated abuse. The statute provides exceptions to the requirement to file termination of parental rights petition where:

• •

The Adoption and Safe Families Act (ASFA) of 1997 The ASFA of 1997 amended the 1980 Adoption Assistance and Child Welfare Act (P.L.96-272), the federal statute that provided for partial federal reimbursement to states for child welfare and out-of-home care expenses. To qualify for reimbursement, state child welfare and out-of-home care plans must comply with the requirements of the 1980 statute, as amended by ASFA. In the provisions of the 1980 act was the requirement that state child welfare agencies make reasonable effort to preserve families by avoiding unnecessary out-of-home care placements and, where out-of-home care placements could not be avoided, by reunifying families as quickly as possible. ASFA modifies this ‘reasonable efforts’ requirement in some respects. First, the statute establishes ‘health and safety of the child’ as the most important consideration in determining what family preservation and reunification efforts are required. ASFA also sets forth three exceptions to the reasonable efforts requirement: 1 If the agency alleges that there are ‘aggravated circumstances’ defined as severe or repeated child abuse, which may include abandonment, torture, or physical and or sexual abuse. 2 If the parent has been convicted of murder or manslaughter of a sibling or half-sibling of the child, or a felony assault resulting in serious physical injury to the child or another child of the parent. 3 If the parental rights of the parent to a sibling have been terminated involuntarily via termination of parental rights proceeding, as opposed to a voluntary surrender [ASFA § 101(a) (15) (D)].

•

The child is in kinship care. The agency documents ‘compelling reasons’ which may include: (i) a lack of sufficient grounds for a petition to terminate parental right; (ii) inappropriateness because the child is in placement as a juvenile delinquent or person in need of supervision (PINS); (iii) has a permanency goal other than adoption; and/or (iv) refusal of a child over the age of fourteen years to consent to adoption. The agency has not provided reasonable efforts to reunify the family, although legally required to do so.

The other significant amendments include criminal background checks for prospective foster and adoptive parents (42 USC 671[a] [20] [A]). The federal statute further provides that a prospective foster or adoptive parent must be denied placement of a child if the background check reveals:

• •

a felony conviction at any time for child abuse or neglect, spousal abuse, or violent crimes, including homicide, sexual assault, or rape; and/or a felony conviction within the past five years for assault, battery, or a drug-related offense.

The federal act additionally provides that the state must hold an initial permanency hearing for foster children within twelve months of the date the child entered foster care (42 USC 675 [5] [c]). The date the child entered foster care is defined as the sixty days after the child was removed from his or her home. At this permanency hearing, the court determines the appropriateness of the child’s permanency plan, including whether and when the child should be returned to the parent, placed for adoption, referred for legal guardianship, or placed in another planned permanent living arrangement. These amendments were made to expeditiously transition foster-care children into suitable permanent homes. It was felt that foster care should serve mainly as a temporary safe haven for children – a secure setting where they can live while suitable permanent homes are being located for them.

Termination of parental rights and adoption 357

The Adoption 2002 Report, a federal government undertaking in response to President Clinton’s initiative on adoption and foster care, has outlined several important assumptions in its memorandum, including: 1 Every child deserves a safe and permanent family. 2 Children’s safety and health is of paramount concern and must guide all child welfare services. 3 Children deserve prompt and timely decision making as to who their permanent care givers will be. 4 Permanency planning begins when a child enters foster care. 5 Adoptive families require support after the child’s adoption is legalized. 6 The diversity and strengths of all communities must be tapped. 7 Quality services must be provided as soon as possible to enable families in crisis to address problems.

DEFINITION OF ADOPTION The Child Welfare League of America defines adoption as the method provided by law to establish the legal relationship of the parent and child between persons who are not related by birth. Adoption is the legal proceeding whereby an adult person takes another adult or minor person into the relation of child and thereby acquires the rights and incurs the responsibilities of parent with respect to said adult or minor (Section 110 of the N.Y. Domestic Relations Law).

LEGAL ASPECTS OF ADOPTION Adoption occurs either through a public agency (which is legal in all states) or through private or independent source (which is legal in all but five states). Adoption can be ‘closed,’ with virtually no contact between biological and adoptive parents; or ‘open,’ with varying degrees of contact between parties. Adoptions today are not restricted to twoparent heterosexual couples. Single parent and other nontraditional family structures such as homosexual couples also adopt children. Regardless of the route or type, the adopted child has the same legal status with respect to his or her adoptive parents, as do any biological children. Once adoption is final, the biological parents no longer possess legal rights to the child. However, statutory laws may vary on the timing and specifics of these legal issues.

Permanency and adoption: an overview FAMILY PRESERVATION BEYOND THE BEST INTEREST OF THE CHILD Family preservation should not compromise the wellbeing of children. When parents cannot be rehabilitated, or when parents’ problems are too complex to be resolved in the short term, children bounce between the biological family and foster care, drifting from foster home

to foster home. In such cases, the best interests of the children are not served. The current foster-care system is overburdened and the number of available, qualified foster parents has steadily diminished since the 1980s. This diminution is partly due to the increased needs of children traumatized by poverty, physical and sexual abuse, drug and alcohol exposure, and emotional maltreatment at the hands of both parents. Because traditional foster care was not designed to meet these special needs, specialized and therapeutic fostercare homes have become available. For many children, foster care remains a viable option for reducing risk. Kinship foster care also works in the interests of family preservation by allowing a relative to become a foster parent. The federal government has funded several projects to examine the practice elements in kinship adoptions. Evidence available suggests that the likelihood of kinship adoption of foster children depends, in great part, on the ethnicity of the children. Evidence also suggests that kinship adoptive families look vastly different than other adoptive families and are poorer, less educated, older, and more likely to be single than non-kinship adopting families (Barth 1994). The foster-care system has provided invaluable assistance to children at risk. It deserves enhanced financial support, especially at a time when so many birth families are struggling to survive and may need to temporarily relinquish their child. Residential care facilities should be seen as positive alternatives for children in need. Residential facilities can fulfill a need for order, discipline, and rootedness in many young lives. They provide non-parental, wellqualified and committed mentors who can turn around the lives of many youngsters who might wrongly be considered as hopeless cases. Residential care can be introduced into a child’s life on a short-term basis at various points according to their needs, and can enhance family preservation, foster care, and adoption services. Young adolescents who can be taught fundamental principles such as ‘do no harm’ and can benefit from the constructive adult guidance can experience the structure of residential care as liberating (Post, Frutig, and Bennett 1997).

RE-ENTRY AFTER REUNIFICATION Terling (1999) described the correlates of re-entry into child protective services for abused and neglected children reunited with their families. The correlates of re-entry included: 1 Type of abuse: neglect cases are the most common type of cases among both the family reunification cases and the re-entry cases. Among fifty-nine cases of children who were examined after returning home, four had been repeatedly and severely physically and/or sexually abused, and previous documentation of risk of repeat abuse was present in those cases. Therefore, the mere presence of the severity of abuse warrants close attention during evaluation.

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2 Previous referrals: the presence of previous referrals to a child protective agency is a strong indicator of the risk of re-entry. Also, inability of the parent to change after prior interactions with child protective services is a good indicator of the risk of re-entry. Of the re-entry cases, approximately 67 per cent had previous referrals, versus 12 per cent of non-re-entry. 3 Substance abuse: some 50 per cent of re-entry cases involved substance-abusing parents, as opposed to 20 per cent for non-re-entry. Two important issues about substance abuse re-entry included: (i) presence of a substance-abusing partner not in treatment; and (ii) time allowed for recovery for the substance-abusing parent. Therefore in evaluating risk, importance should be given to perpetrators, partners, and their treatment and the length of recovery in caregivers needs to be monitored for longer periods of time (months versus years). 4 Parental competence is the presence or absence of parental ability to provide an environment that is safe and healthy for the child to grow and develop. Parental competence can be impaired in: (i) parents with low levels of intellectual functioning, thus possessing a deficit in their ability to process information and make decisions; and (ii) parents who lack insight and do not understand or accept the agency’s identification of their lifestyle and parenting as inappropriate. This lack of understanding interferes with their parenting skills and renders them incapable of changing their lifestyle/parenting to get their children back. 5 Social isolation and negative relationships such as an abusive spouse or a high level of family conflicts are significant predictors of re-entry. There was less correlation of re-entry to parental income, child protective risk assessment by caseworkers, compliance, and family functioning assessment. It is estimated that, despite efforts by Child Protective Services to rehabilitate abusive and neglectful parents/ families and make them suitable for the children, over one-third of these children return to the system due to additional maltreatment. The rate of children returning seems to be excessively high when dealing with the lives and future well-being of the children. Therefore, identifying for re-entry serves as a useful tool for practitioners and policy makers. Future research is needed to better understand the ‘whys’ behind the successes and failures in order to develop policies and practices that do more than help some of these children, some of the time. Research shows that although adopted children can have difficulties after placement, in the long run they progress well through their remaining childhood and into adult life. They tend to fare better than children brought up by their own parents in an abusive or neglectful environment, or in institutions, and are considerably better than children who have remained in long-term foster care. Several studies conducted in different countries to assess

the effects of long-term foster care have all concluded that, ‘Adoption, when available as an option, should be generally pursued rather than long-term foster care’ (Mather 1999).

Mental health issues in adopted children The emotional and behavioral adjustment of adopted children has received a great deal of attention as a result of the alleged over-representation of adopted children in mental health settings. The over-representation of adopted children and adolescents in clinical population research has varied widely. Several researchers have also suggested that the age of the child is an important factor; the older the child when placed in an adoptive home, the more likely the child is to have emotional and behavioral problems. A study conducted by Borders et al. (1998), using a nationally representative sample of children in the United States found no significant differences between adopted and non-adopted children on a range of adjustment variables. Brand and Brinich (1999) also concluded that a vast majority of adopted children showed patterns of behavior similar to those of non-adopted children. The over-representation of adopted children in mental health settings found in earlier studies might be attributable to the presence of small groups of severely troubled adopted children in clinical samples. For the small group of severely troubled children and adolescents who had extensive behavior problems and were seen more frequently at the mental health centers, a better understanding of the factors that make these children vulnerable is an area of future research. Many factors such as: (i) genetic predisposition to emotional and behavioral problems; (ii) prenatal substance abuse by birth mothers; and (iii) pre-adoption experiences such as neglect, abuse, or multiple placements may be contributing factors. This point needs to be emphasized because of the concerns that an error in interpretation could lead to pathologizing a very effective intervention for children. Most adopted children behave much like their non-adopted peers, and adoption remains a valuable and important social response to a complicated set of placement problems for children.

Role of child psychiatrist and medical practitioner in adoption assessment Like all other parents, potential adopters need to have a thorough description of the children’s past medical problems, their current health status, and their likely future needs. A comprehensive assessment of the child should be carried out to include the child’s physical, emotional, developmental, and social status. Medical practitioners and child psychiatrists involved in adoption work assessments should have knowledge of the long-term consequences of child abuse and neglect. They should have an understanding of genetic illnesses that can be inherited from the birth parents, and of the long-term consequences of the

Termination of parental rights and adoption 359

parental life styles that may have involved exposure to alcohol, substance abuse, high-risk behaviors and domestic violence. They should also be able to make recommendations on these children, and most often should be involved in considerable liaison with other health professionals, social services, foster parents and adopters. It is important to recognize that if adoption is a real option for a group of very disturbed or disadvantaged children, then appropriately trained medical advisors with experience and knowledge in pediatrics and child mental health must be available to support this service.

Yet waiting until a child turns seven years old is not recommended because:

Special issues and considerations

The timing and substance of conversations about the child’s adoption are challenging issues for both parents and providers. Most experts agree that open, life-long, and middle ground communication is the key to improving ego identity, smoothing the adaptation process and building a child’s positive self-image. One excellent method is to have a photo album of the child, beginning with the photographs of the adoptive mother and father going to the agency. Another photograph of the parents’ first contact with the child, along with a photograph of the mother carrying the child through the door into the new home. This provides a life-long continuity for the child’s understanding of the adoptive ‘birthing’ process into the adoptive home (Table 37.1).

TELLING A CHILD ABOUT BEING ADOPTED Telling a child about their unique route of entry into the family is a challenging process. In modern times it is recognized that children adapt more easily when they are aware of their birth circumstances. Therefore parents are now advised openly to discuss adoption, not only with the child but also with relatives and friends. Then comes the question of when and how to discuss adoption. A seven- to eight-year-old child who possesses characteristics of logical thinking could more easily absorb and understand the adoption process than a younger child.

• • • •

children ask questions earlier, and the parents would be forced to cover up or lie in some fashion; sometimes children may inadvertently overhear comments about their adopted status from their relatives or friends; children who look different from their parents often generate comments or questions from public; and health care providers ask questions regarding family history frequently in front of children.

Table 37.1 Stages of understanding adoption Child’s adoption-related tasks

Stage

Questions

Goals for parents and child

Infants and toddlers (0–2)

‘How do we begin?’

Adjusting to the transition to a new home Developing secure attachments

To become comfortable discussing adoption with others To use positive adoption language To become familiar with resources, support groups, books

Preschool (3–7)

‘Where do babies come from?’ ‘Where do I come from?’ ‘Why or how did you choose me?’ ‘Why don’t I look like you?’ ‘If you are in an adoptive family, can your birth parents or another family take you away?’

Learning about birth and reproduction Adjusting to initial information about adoption Recognizing physical differences within the family

To recognize child’s egocentric thinking style To begin communicating about different ways children enter families To realize that despite the child’s ability to parrot story, no abstract or conceptual understanding occurs yet To answer every question as faithfully as possible with positive adoption language To recognize physical differences but focus on similarities between child and the family To alleviate fears of losing adoptive parents by reassuring adoption is permanent (continued)

360 Family law and domestic relations Table 37.1 (continued) Child’s adoption-related tasks

Stage

Questions

Goals for parents and child

Middle childhood (7–11)

‘Why was I placed for adoption?’ ‘Why didn’t they keep me – didn’t they like me?’ ‘If you are adopted can you be un-adopted?’ ‘If they didn’t know how to take care of me, why didn’t someone teach them?’ ‘If they were poor why didn’t someone give them money?’ ‘Who do I look like?’

Understanding the meaning and implications of adoption Searching for answers regarding origin and reasons for relinquishment Coping with physical differences with the family Coping with the stigma of adoption Coping with peer reactions to adoption Coping with adoptionrelated losses

To acknowledge sadness, anger and grief associated with loss of biological parents To assure child they are not bad or defective by offering actual reason for adoption To refrain from making negative comments about biological parents To offer factual information without embellishment To reassure that adoption is not a second choice To provide support groups and services for child

Adolescence (12–17)

‘Who am I?’

Exploring the implications and meanings of being adopted Connecting adoption to one’s sense of identity Coping with racial identity Possibly searching for the biological family Coping with adoptionrelated losses

To recognize child’s abstract thinking style To recognize identity difficulties of dealing with biological and adoptive parents To share adoption papers To continue use of support groups and services for child and parents

Young adult (⬎18)

‘I want to meet my birth parents’

Considering searching for biological family Exploring implications of adoption as it relates to development of intimacy Coping with adoptionrelated losses

To help child seek biological family To minimize parent’s feelings of rejection To continue use of support groups and services for child and parents

Adapted from Brodzinsky, Singer, and Braff (1984); Smit (1996).

TRANSRACIAL ADOPTION The definition of ‘transracial’ is changing with an increase in placement of mixed parentage children and in recruitment of mixed parentage substitute families. It then depends on which categorization of race/ethnicity is used to define both parents and grandparents. These questions have significance in practice with regard to finding a matched placement and for research when establishing entry criteria to a transracial sample. In addition to racial/ethnic heritage, whether the child is visibly different from the new parents is likely to be a consideration in trying to achieve a match. Furthermore, a transracial placement may, to varying degrees, involve a transition across social class. Historians of transracial placement in the U.S. generally agree that its occurrence was extremely rare up to World War II (Silverman and Fiegelman 1990; Simon 1994). Initially, it occurred on a moderately large scale as a

form of inter-country adoption from the 1960s to the mid-1970s. First, U.S. military involvement in the Far East was the background to the adoption of Japanese, Chinese, and subsequently Korean and Vietnamese children by Caucasian Americans. The adoption of Hispanic children from Latin America has also been considerable (Feigleman and Silverman 1983). Second, liberal child welfare regulations actively promoted transracial placement as a means of assisting disadvantaged African-American children by finding alternatives to institutionalization. Third, Caucasian families were willing to accept placement of African-American children and were then seen as progressive in being prepared to withstand stigma for the sake of principle, as many were motivated by the ideal of a more racially integrated society. However, opposition arose against transracial placement. Concerns in both Native and African-American communities were based on the view that their culture

Termination of parental rights and adoption 361

was threatened with depletion if their children were placed away from home into Caucasian families. The rise of the civil rights and African-American consciousness movements took child welfare practice into the political arena, and the increasingly confident voice of some African-American professionals was raised in criticism of the adoption establishment. Transracial placement became emblematic of wider historical and political injustices. Such views were understandable in light of the lack of prior involvement and consultation with the African-American professionals and their community about the placement of African-American children in care. Hence, there followed a sharp decline in such placements after 1976. Some reviewers have disputed that this opposition was justified and maintain that ‘transracial placement’ is a viable means of providing stable homes for waiting children. Identity is one of the concepts most used by antitransracialists. It is crucial to child development, but its meaning remains less resolved. Some authors present ‘a positive sense of racial identity’ as a unified achievable goal (Maximé 1986), whereas others stress its fluidity and context dependency (Katz 1995). It has been defined as having overlapping parts such as personal identification and feelings about the self, as well as the degree of identification with various social groupings (Richards 1994). The process of transracial adoption seems to produce children whose self-esteem is at least as high as that of non-adopted children, and whose adjustment appears to be more than satisfactory (Silverman and Feigelman 1990, p. 199). Tatara (1993) reported that thirty-two states provided data for fiscal year 1989 on children being cared for by public agencies. There were about 34 per cent AfricanAmerican children out of the 380 000 children in out-ofhome placement. Other studies and estimates also suggest that African-American children remain in out-of-home placement significantly longer than Caucasian before being adopted (NABSW 1991). Only about 1 per cent of all adoptions were by white families adopting African-American children.

THE BABY BYRON CASE This is a custody case that had considerable media coverage. This case highlights the problems most commonly raised in the transracial adoption debate. Byron, an African-American infant born addicted to heroin and cocaine, had been raised since July 1992 – from the age of six days – by a Caucasian couple. This family had been selected to provide shelter for Byron on an emergency basis because his birth mother was unable to care for him. The foster family had their own biological child and two other adopted children. They were owners of a printing company. Byron’s father was reportedly killed in an automobile accident in 1992. Byron’s mother had four children who were cared for by two other families

because she reportedly had neglected her children in the past. When Byron was a five-month-old, child protective officials tried to remove him from care of the Caucasian family and place him with an African-American foster family. The Caucasian family objected, and the judge left the child with them on a short-term basis. When Byron was eleven months old, the judge once again ruled that Byron should continue to stay with the Caucasian family who expressed desire to adopt him. When Byron was seventeen months old the judge ruled that he should be returned to his biological mother, which in the judge’s opinion was in the best interest of the child. In referring to criticism of his decision, the judge felt it was racist to conclude that an African-American woman was no good, and then to give Byron to the ‘nice, white, suburban couple.’ Byron was then returned to his biological mother who was reported to have undergone treatment for her substance-abuse problems and was living in a residential drug treatment center. The foster family reportedly felt that race was very much an issue in this case. They suggested that if the court had considered only the child’s best interest, had visited Byron, and considered the birth mother’s history of drug addiction, the decision would have been different. Some commentators argued that children are best reared in families where they will be taught coping skills. Others suggested it was important for any baby to be kept with his or her own race. However, in June 1994, the judge removed Byron from his biological mother after she admitted using drugs. It is important to be mindful of the concepts of bonding and psychological parenting in the context of many adoption disputes where there might be considerable bonding or a unique affective connection between the child and the caregiver. Silverman (1993) reviewed transracial adoption research studies published in the past ten years, focusing on outcome in adolescence and adulthood. This included a comparison group; and they had their subjects placed for adoption at an early age. These studies assessed family integration, self-esteem, school performance, racial identity, and overall adjustment of the transracial adoptees. The first of the studies in this group carried out by McRoy et al. (1984) reported that family integration and general adjustment were successful; and their self-esteem and academic performance were satisfactory. Marked differences emerged in the area of racial identity. The in-racial adoptees referred to themselves as black, and 56 per cent of the transracial adoptees referred to themselves as mixed or part white. McRoy and her colleagues saw this racial group orientation among the transracial adoption children as problematic. Simon and Alstein conducted the longest running study between 1971 and 1991 (Simon and Alstein 1981; Simon 1994). There were again no impressive differences among the groups in regard to family integration, academic performance, self-esteem, and general adjustment. Most

362 Family law and domestic relations

children were under the age of three years at the time of adoption in this study. During adolescence and later as adults, the transracial adoptees were aware of, and comfortable with, their racial identity. There was clear variability in their reference group orientation, however, as many of them dated Caucasian and preferred Caucasian friends. It is important, therefore, for forensic experts or evaluators who participate in the transracial adoption context to make clear to the court the limitation of scientific-based data in this area. At the same time, the expert should tell the court what is known about parent– child bonding and the outcome of transracial adopted children. Undoubtedly, there will continue to be considerable disagreement about whether the best way to assure a promising future for an African-American child needing a permanent home is to seek qualified adoptive parents without regard to race. A thoughtful framework needs to be kept in mind as psychiatrists participate in this passionate debate of transracial adoption, which is of national importance.

SUBSIDIZED ADOPTIONS When financial aid is given to adoptive parents after the adoption of a child, it is called subsidized adoption. The intent of such adoptions is to insure permanent homes for children who would otherwise remain in foster care until they were adults. The amount of monthly payments and the length of time the subsidy is granted are left to the discretion of the social services commissioner, and can vary. A voluntary agency that has a child in foster care and wishes to recommend to the local department of social services adoption by the foster parents, with subsidy, may do so. The social services department may accept such recommendations, which include the amount of subsidy to be provided in the first year. After the adoption, the family is like any other family and is independent of the agency, except for annual evaluations of the need for continued subsidy.

OPEN ADOPTION The court has power under the N.Y. Domestic Relations Law, Section 111, not only to grant an adoption but also to grant the natural parents visitation rights even after the adoption, if it is in the best interest of the child. This is referred to as an open adoption. Parental visitation after adoption Visitation with a natural parent after adoption should be considered: 1 If there is a solid parent–child relationship, visitation after adoption should be explored and, if beneficial, implemented with consent of all parties, including the child.

2 The court should not force visitation after adoption without the consent of the adoptive parents and the child. 3 If visitation is provided, the court should retain jurisdiction and modify or vacate visitation where appropriate. Grandparents visitation after adoption The paramount concern of the court in making its final decision as to grandparent’s visitation must be the ‘best interests of the child.’ The child’s rights and wishes can be best considered if counsel represents them, and if the judge interviews the child as to his/her preferences. No petition for grandparent visitation should be dismissed without a hearing where the petition alleges that a relationship existed between the grandparent and the child. Prior to the hearing, a law guardian should be appointed to represent the interests of the child and his/her preferences with the best interests of the child as a controlling factor. Several factors to be considered in the decision making include: 1 The relationship between the grandparent and the child. 2 The age of the child, and his/her wishes. 3 The benefit to the child of a continued relationship with a grandparent. 4 The recommendation of the law guardian. 5 The contention and wishes of the adoptive parents. 6 The extent to which visitation with grandparents could interfere with the new relationship of the child and the adoptive parents. 7 Clinical assessment by a child psychiatrist should be considered in complex cases.

REFERENCES Adoption and Safe Families Act, Public Law 105-89, § 101(b), 42USC, 675 (7). Adoption and Safe Families Act of 1997. 1999. Changing welfare policies without addressing parental substance abuse. Journal of Contemporary Health Law Policy 16, 243–71. American Jurisprudence 2d 24, Generally § 974, 960 (1983). American Jurisprudence 2d 59, Generally § 10, 142 (1987). American Jurisprudence 2d 59, Discipline § 22, 152 (1987). Armitage, D.T. 1994: Parental competence and termination of parental rights. In Rosner, R. (ed.), Principles and Practice of Forensic Psychiatry. London: Chapman & Hall, 282–308. Barth, R.P. 1994. Adoption research: building blocks for the next decade. Child Welfare 73, 625–38. Benedek, E. 1972. Child custody law. American Journal of Psychiatry 129, 326–8.

Termination of parental rights and adoption 363 Borders, X., et al. 1998. Are adopted children at greater risk for negative outcomes? Family Relations 47, 237–41. Brand, A.E., Brinich, P.M. 1999. Behavior problems and mental health contacts in adopted, foster, and non-adopted children. Journal of Child Psychology and Psychiatry 40, 1221–9. California Civil Code § (226(a), as found in West’s annotated California Civil Code (main volume 1982; supplement 1991)). Child Custody Act of 1970, Michigan Comprehensive Law Annotated § 722.23 (west supplement 1976). Derdeyn, A.P. 1976. A consideration of legal issues in child contests. Archives of General Psychiatry 33, 165–71. Derdeyn, A.P. 1978. Child custody conflicts in historical perspective. American Journal of Psychiatry 133, 1369–76. District of Columbia Code 1981 § 16-2353 (1991). Fanschel, D. 1976. Status change of children in foster care. Final results for the Columbia University Longitudinal Study. Child Welfare 55, 143–71. Feigelman, W., Silverman, A.R. 1983: Chosen Children. New York: Praeger. Foster, H., Freed, D. 1964. Child custody. New York Law Review 39, 423–43. Genty, P.M. 1998. Permanency planning in the context of parental incarceration: legal issues and recommendations. Child Welfare 77, 543–59. Goldstein, J., Freud, A., Solnit, A. 1973: Beyond the Best Interests of the Child. New York: Free Press. Griswold v. Connecticut, 381 U.S. 479 (1965). In re Adoption of Sabrina, 325 Pa. Super. 17, 472 A. 2d 624, 627 (Super. Ct. 1984). In re Bernard Pecor, W.L. 10791 (CT 1992). In re Demetrius F. et al., 575 N.Y.S. 2d 552 (1991). In re Gault, 387 U.S. 1 (1967). In re Green, 292 A. 2d 2387 (1972). In re Interest of B.M. v. L.M., 475 N.W. 2d 909 (1991). Johnston, D. 1995: Effects of parental incarceration. In Gabel, K., Johnson, D. (eds), Children of Incarcerated Parents. New York: Lexington Books, 59–88. Katz, I. 1995: Anti-racism and modernism. In Yelloly, M., Henkel, M. (eds), Learning and Teaching in Social Work: Towards Reflective Practice. London: Jessica Kingsley Publishers. Lochner v. New York, 198 U.S. 45 (1905). Malmquist, C. 1968. The role of parental illness in custody proceedings. Family Law Quarterly 360, 364–5. Mather, M. 1999. Adoption: a forgotten pediatric specialty. Archives of Disability in Childhood 81, 492–5. Mathews v. Eldridge, 96 S.Ct. 893 (1976). Maximé, J.E. 1986: Some psychological models of black self-concept. In Ahmed, S., Cheetham, X., Small, J.

(eds), Social Work with Black Children and their Families. London: Batsford/BAAF.F. McRoy, R.G., Zurcher, L.A., Lauderdale, M.L., Anderson, R.E. 1984. The identity of trans-racial adoptees. Social Casework 65, 34–9. Mnookin, R. 1978: Child, Family and State: Problems and Materials on Children and the Law. Boston: Little Brown. National Association of Black Social Workers. 1991: Preserving African American Families: Research and Action Beyond the Rhetoric. Detroit: Michigan. New York Social Services Law § 384-b(7)(f)(5). Parham v. J.R., 99 S.Ct. 2493 (1979). Pierce v. Society of Sisters, 2689 U.S. 510 (1925). Post, S.G., Frutig, P.R., Bennett, J. 1997. The moral challenge of children at risk: protective policies and pediatrics. A report of the Children’s Services, Inc. Task Force of Greater Cleveland. Clinical Pediatrics (Phila.) 36, 625–33. Prince v. Commonwealth of Massachusetts, 46 N.E. 2d 755 affn. 321 U.S. 158 without opinions; Reh. Den. 321 U.S. 804 (1944). Richards, B. 1994: What is identity? In Gaber, I., Aldridge, J. (eds), Culture, Identity and Transracial Adoption. London: Free Association Books. Roe v. Wade, 410 U.S. 113 (1973). Santosky v. Kramer, 102 S.Ct. 1388 (1982). Schetky, D.H., Angell, R., Morrison, C.V., Sack, W.H. 1979. Parents who fail: a study of 51 cases of termination of parental rights. Journal of the American Academy of Child Psychiatry 18, 366–83. Schetky, D., Slader, D. 1980: Termination of parental rights. In Benedek, E., Schetky, D. (eds), Child Psychiatry and the Law. New York: Brunner/Mazel. Schoettle, U.C. 1984. Termination of parental rightsethical issues and role conflicts. Journal of the American Academy of Child and Adolescent Psychiatry 23, 629–32. Silverman, A.R., Feigelman, W. 1990: Adjustment in interracial adoptees: an overview. In Brodzinsky, D.M., Schechter, M.D. (eds), Psychology of Adoption. Oxford: Oxford University Press. Silverman, A.R. 1993. Outcomes of transracial adoption. Future Child 3, 104–18. Simon, R.J. 1994: Transracial adoption: the American experience. In Gaber, I., Aldridge, J. (eds), In the Best Interests of the Child: Culture, Identity and Transracial Adoption. London: Free Association Books. Simon, R.J., Alstein, H. 1981: Transracial Adoption: A Follow Up. Lexington, MA: Lexington Books. Snell, T.L. 1994: Special Report: Women in Prison. Washington, DC: US Department of Justice, Bureau of Justice Statistics. Stanley v. Illinois, 92 S. Ct. 1208 (1972). Tatara, T. 1993. Characteristics of children in substitute and adoptive care: based upon FY 82 through FY 89

364 Family law and domestic relations Data. Washington, DC: American Public Welfare Association. Terling, T. 1999. The efficacy of family reunification practices: re-entry rates and correlates of re-entry for abused and neglected children reunited with their families. Child Abuse and Neglect 23, 1359–70. United States Department of Justice. 1995: Sourcebook of Criminal Justice Statistics 1995. Washington DC: Bureau of Justice Statistics. Uniform Marriage and Divorce Act § 402 H.N. 1991. In Uniform Laws Annotated. St. Paul, MN: West Publishing Co. Wald, M. 1976. State intervention on behalf of neglected children. Stanford Law Review 28, 627–706. Wisconsin v. Yoder, 406 U.S. 205 (1972).

Further reading Alstein, H., Simon, R. 1977. Transracial adoption: an examination of an American phenomenon. Journal of Social Welfare, winter. Barth, R., Berry, M. 1988: Adoption and Disruption: Rates, Risks and Responses. New York: Aldine de Gruyler. Barth, R.P. 1997. Effects of age and race on the odds of adoption versus remaining in long-term out-of-home care. Child Welfare 76, 285–308. Borgman, R. 1981. Antecedents and consequences of parental rights termination for abused and neglected children. Child Welfare 60, 391–400. Brodzkinsky, D.M., Smith D., Brodzkinsky, A. 1998: Children’s Adjustment to Adoption: Developmental and Clinical Perspectives. Newbury Park, CA: Sage Publications. Carrieri, J.R. 1991. The adoption. Child Custody, Foster Care and Adoptions. New York: Lexington Books. Diamond, B.L. 1990: The psychiatric expert witness; honest advocate or ‘hired gun’? In Ethical Practice in Psychiatry and Law. New York: Plenum Press, 75–84. District of Columbia Code 1981 § 16-2351 (1991). Doe v. Roe, 526 N.Y.S.2d 718 (1988). Doe v. Commonwealth’s Attorney, 403 F. Supp. 1199 (1976). Fialkov, M.J. 1998. Fostering permanency of children in out-of-home care: psycho-legal aspects. Bulletin of the American Academy of Psychiatry and the Law 16, 343–57. Griffith, E.E. 1999. Forensic and policy implications of the transracial adoption debate. Bulletin of the American Academy of Psychiatry and the Law 23, 501–12. Hall, J.G., Mitchell, B.H. 1982. The role of law in protecting the child. A critique of the English system. Child Abuse and Neglect 6, 63–9.

Henry, D.L. 1999. Resilience in maltreated children: an implication for special needs adoption. Child Welfare 78, 519–40. Hollingsworth, L.D. 1998. Promoting same-race adoption for children of color. Social Work 43, 10–17. Holloway, J.S. 1997a. Foster and adoptive mothers’ assessment of permanent family placements. Archives of Disability in Childhood 76, 231–5. Holloway, J.S. 1997b. Outcome in placements for adoption or long-term fostering. Archives of Disability in Childhood 76, 227–30. In re Baby M, 525 A. 2d 1128 (NJ 1987). In re Baby M, 537 A. 2d 1227 (NJ 1988). In Matter of Baby M, 538 A. 2d 1227 (1988). In re Carmelata B., 579 P. 2d 518 (1978). Kermani, E.J., Weiss, B.A. 1995. Biological parents regaining their rights: a psycho-legal analysis of a new era in custody disputes. Bulletin of the American Academy of Psychiatry and Law 23, 261–7. Knight, M.R. 1985. Termination visits in closed adoptions. Child Welfare 64, 37–45. Lears, M.K., Guth, K.J., Lewandowski, L. 1998. International adoption: a primer for pediatric nurses. Pediatric Nursing 24, 578–86. Lykken, D.T. 1997. Incompetent parenting: its causes and cures. Child Psychiatry and Human Development 27, 129–37. Maas, H. 1969. Children in long-term foster care. Child Welfare 48, 321–33. McRoy, R.G. 1994. Attachment and racial identity issues: implications for child placement decision-making. Journal of Multicultural Social Work 3, 59–74. McRoy, R.G., Zurcher, L.A., Lauderdale, M.L., Anderson, R.E. 1982. Identity of transracial adoptees. Social Work 27, 522–6. Nordhaus, B.F., Solnit, A.J. 1998. Foster placement. Child and Adolescent Psychiatric Clinics of North America 7, 345–56. O’Flynn, M. 1999. The Adoption and Safe Families Act of 1997: changing child welfare policy without addressing parental substance abuse. Journal of Contemporary Health and Law Policy 16, 243–71. Proch, K., Howard, J. 1984. Parental visiting in foster care: law and practice. Child Welfare 63, 139–47. Ritner, B., Dozier, C.D. 2000. Effects of court-ordered substance abuse treatment in child protective services cases. Social Work 45, 131–40. Rosner, R. 1994: Principles and Practice of Forensic Psychiatry. Chapman & Hall Publications, Family Law Section. Rushton, A. 1994. Principles and practice in the permanent placement of older children. Children and Society 8, 224–5.

Termination of parental rights and adoption 365 Rushton, A., Minnis, H. 1997. Transracial family placements. Journal of Child Psychology and Psychiatry 38, 147–59. Schetky, D.H. 1992. Ethical issues in forensic child and adolescent psychiatry. Journal of the American Academy of Child and Adolescent Psychiatry 31, 403–7.

Stanton, A.M. 1998. Grandparent’s visitation rights and custody. Child and Adolescent Psychiatric Clinics of North America 7, 409–19. Vroegh, K.S. 1992: Transracial Adoption: How is it 17 Years Later? Chicago: Chicago Child Care Society.

38 Childhood attachment, foster care and placement LISA R. FORTUNA AND STEPHEN B. BILLICK

INTRODUCTION: THE ROLE OF THE CHILD PSYCHIATRIST IN PLACEMENT ISSUES During the past decade, child and adolescent forensic psychiatry has emerged as a sub-specialized area of increased activity, complexity, and utilization. This chapter examines the role of the child psychiatrist in foster-care placement in the advent of new legislation supporting more permanent placement for children. Child permanency planning arose through recognition that psychological harm is done to children who drift in and out of care, moving perhaps from their original family to foster parents or to children’s homes (Black and Wolkind 1991). A number of studies conducted during the 1970s, which collectively came to be known as ‘permanency-planning projects,’ showed that goal-oriented case plans and assertive case work, combined with intensive services to a child’s birth parents, could facilitate family reunification and permanent planning for children (Rosenfeld et al. 1997). In 1980, the Federal government passed Public Law 96-272, the Adoption Assistance and Child Welfare Act, which was designed to: end the drift of children in foster care; encourage planning for permanency for each child within a hierarchy of desirable options rather than long-term foster care; provide for oversight to move cases through the child welfare system; and develop preventative services to avoid family breakdown when children are temporarily removed from the home (Fein 1991). Subsequently, Congress passed Public Law 105-89, The Adoption and Safe Families Act of 1997 (ASFA), the first major reform of federal child welfare policy since 1980. Enactment of this new law and the need for requisite changes in State laws and policy have continued to generate significant discussions among policy makers, service providers, child welfare experts, and judicial officers. In addition, year 2000 guidelines were designed by the Federal government as part of the president’s initiative on permanency for children, in order to provide legal options

Table 38.1 Increasing permanency of placement Low permanency

High permanency

Return to genetic parents after temporary kinship foster care Return to genetic parents after temporary non-kinship foster care Extensive contact with genetic parents with foster care with tenure Contact with genetic parents with permanent guardianship to new custodian Contact with genetic parents with new adoptive parents New adoptive parents with no contact with genetic parents

and recommendations for the States (US Department of Health and Human Services Guidelines 1999). These can be used to identify legal questions that need to be addressed and to facilitate clear policy choices to help achieve permanence for children. The guidelines describe specific placement options and take into consideration multiple child and family situations and factors. Options range from temporary kinship foster care to adoption and a potential range of originating parental involvement is delineated (Table 38.1). The child psychiatrist has an essential role as an expert in child development, and brings knowledge of biological and psychosocial understanding critical for the care and planning for children in the foster-care system under these guidelines. The child psychiatrist can evaluate families and parents in the context of placement planning. When children are known to local authority services and are received into care, child psychiatrists are asked to comment upon the suitability of various placement options open to the local authority itself, or to the court already concerned with the child. It is important that the child psychiatrist knows these options and is familiar with recent policy issues regarding children in foster care.

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Ultimately, any clinical assessment of a foster child will require that the psychiatrist understand the child, the genetic parents, the foster parents and the context of the agency. In other words, he or she will become involved in a complex system that has many components. This chapter is a discussion of the developmental issues important in providing appropriate recommendations for children in foster-care placement. This includes a discussion on attachment theory and the latest in biological research regarding attachment. A discussion on the evaluation and definition of parenting is also provided. These are then followed by a discussion of policy issues affecting children in foster care and the role of the child psychiatrist in the complex efforts to provide stability for these youth. The goals of the chapter are to:

• • • •

Increase awareness about the developmental issues important to consider when performing evaluations and providing recommendations for children in the foster-care system. Provide an overview of attachment theory and attachment research and relate it to policy and practice regarding establishing permanency for children. Highlight some of the recent policies regarding child placement, foster care, parental termination and the role of the psychiatrist. Highlight areas of particular concern to child and adolescent psychiatrists within the child welfare system.

DEFINING AND EVALUATING PARENTING A child psychiatrist’s involvement in the foster-care system is important, as he or she presents unique skill to the evaluation of families and children. In addition, the evaluation of both individuals and families must utilize what is available from legal, social, biological, and psychological constructs. This section focuses on a basic understanding of what is the role of parenting and what are the rights of parents who possess a variable degree of competence. There are two important questions to begin with: 1 What is a parent, and what constitutes good parenting? 2 What legal rights does the state give to parents, and how do these relate to parental termination issues? In Smith v. OFFER (1977), the Supreme Court held that the right of genetic parents to custody of their children is a ‘constitutional recognized liberty interest that derives from blood relationships, state law sanction, and basic human right’ (Schetky 1992). The court also noted that the importance of the familial relationship to the individual and society stems from the emotional attachments that derive from the intimacy of daily association. Therefore, the court acknowledges that a deeply loving and interdependent relationship between an adult and child may exist in the absence of a blood relationship. However, the

court usually accepts the family to be the primary blood relation kin involved in the young person’s life. Parenting is the task of raising children, providing them with the necessary material and emotional care to further their physical, emotional, cognitive, and social development. Parental responsibility in law is conferred on both parents if married to each other, and on the mother alone if not. The term ‘parent’ embraces all the powers and duties of parents and guardians of a child’s person and the child’s estate as recognized in common law (Schetky 1992). A father who is not married to the mother may acquire parental responsibility by formal agreement with her or by application to a court. In return, the responsibilities of the parents are to provide for the child his or her basic needs and to maintain the safety and healthy development of that child. Parents of course come with different levels of competency, strengths and disabilities. These disabilities and impairments can range from mental illness to physical illness, to issues of personality disturbance and substance abuse. Of course, the role of the child psychiatrist is to assess to what level these impairments affect a child’s wellbeing either through parental acts or omissions. In addition, it is important to remember that parenting is rarely a function of one individual alone, and wider social supports are also relevant. With greater isolation of the parents and the more the parental responsibility weighs on two individuals alone (without social support), the more likely that parental disabilities will adversely affect the capacity to parent. In addition, there are many instances where the primary parenting responsibilities are taken over by alternative individuals such as grandparents. In some cases a foster-care parent may have been the one consistent adult in a child’s life. The child’s contribution is also important. Thus, at different ages children need different things from their parents. The parenting needs of a mentally or physically handicapped young child are very different from those of a disturbed teenager. A child’s temperament may also play a part in rendering him or her difficult to parent, calling for unusual qualities in the caretaker. In addition, children with insecure attachment behavior may be more vulnerable to separation from parents. It must also be noted that children may have significant attachment to a parent despite a history of abuse on the part of that parent. Children – especially young ones – may blame themselves for any separations and may feel that they are not worthy of a parent’s love, even an abusive parent. They may idealize their parent in this way because the alternative – recognizing that their parents are bad – is a hopeless one. In court, one is often dealing with value judgments held by other people rather than objective information about a person’s ability to be a parent. Thus, terms such as ‘mentally retarded,’ ‘schizophrenic,’ ‘drug addict,’ ‘alcoholic,’ ‘psychopathic,’ ‘personality disordered’ may be used to suggest that a parent is inevitably incompetent or unsuitable. The child psychiatrist’s role often may be to

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translate these value-laden labels into everyday language. The child psychiatrist will need to explain and evaluate issues such as the following:

7 Does the child have special needs or problems that require exceptional parenting skills? 8 Why does the parent want to regain custody?

• • • • • • • • • • • • • • • • • •

Many of the issues, which will follow in this text, discuss the balancing of legal rights of parents, determining family and attachment issues to be considered in determining the best interest of a child. How does one consider attachment as it relates to child development when considering placement issues? Recent research in attachment theory and its biological constructs are worth considering as we attempt to balance the rights and needs of parents, children, and the state.

Physical abuse Sexual abuse Munchausen’s syndrome by proxy Neglect Cruelty Emotional abuse Abandonment Gross emotional or behavioral disturbance in the child Gross developmental delay in the child Failure to thrive/deprivation dwarfism Parental mental illness Parental personality disorder Parental addiction Parental mental handicap Parental lifestyle (e.g., prostitution, multiple caretakers) Parental competence to care and protect Divorce proceedings Placement decisions when the child is already in alternative care.

Parenting capacity in itself is not assessed by one interview or by references from one parent or other individual regarding another parent. It requires a full assessment of the influence of current circumstances and the parent– child relationship. It is important to remember that, given a change for the better, individuals with the most unpromising backgrounds can prove themselves to be ‘good enough parents.’ The alternative to this is in cases where rehabilitation is questionable and a child is already placed with a good foster parent. The stability of this alternative ‘parent–child’ bond must be preserved to the best of the foster-care system’s ability. The standard of ‘the child’s best interest’ has been accepted as a guiding principle in custody decisions and one that takes precedence over parental interests. With the emphasis on permanency, the parental rights may need to be terminated in order that the alternative parent–child bond can become stable and permanent. In assessing a parent the following are considerations: 1 Is the parent currently able to meet the child’s needs? 2 What is the parent’s current level of functioning, and does this represent an arrest in development or regression? 3 Is the parent’s condition treatable and, if so, is the parent motivated to change and willing to accept treatment? 4 What is the parent’s record with respect to following through with recommendations for treatment? 5 If the parent is treatable, will help improve the parent sufficiently in time to meet the child’s needs within the child’s time perspective? 6 What is the impact of the parent’s pathology or conduct on the child? What ameliorating social support factors might be present such as the protection of the child by other parental figures (e.g., a spouse or a grandparent)?

ATTACHMENT Psychiatrists may be asked to comment on or measure the child’s attachment to their family of origin. In evaluating a family situation it is useful to distinguish between secure and insecure attachments. Young or emotionally immature children may be strongly attached to an abusive parent. There will also be a need to evaluate the current circumstances when the child is in a foster home and a need to consider attachments developed to foster parents or step-parents. The child psychiatrist may not only have to describe a child’s current attachment, but may also have to comment on the capacity for developing new attachments. This is a task based on developmental lines looking at the child’s current maturity as well as deficits. In the 1970s, Goldstein and his colleagues Anna Freud and Solnit (1973, 1979) published two highly influential books that asserted forcefully that a child’s relationship to the psychological parent is more important than blood ties. Furthermore, they felt that the parent–child relationship had to be permanent and exclusive to count as psychological parenting. Multiple placements and foster homes that lasted for years without a firm commitment to continuity deprived children of their fundamental need for emotional constancy (Rosenfeld et al. 1997). A great deal of our understanding in regards to infantile attachment comes from the studies of Bowlby (1958, 1969/1982, 1973, 1980). In his work on attachment, Bowlby observed that children experience intense distress when separated from their mothers, even if they were fed and cared for by others. He rejected two widely accepted theories of the time that offered explanations for the child’s ties to his or her mother as being related to secondary drives. Psychoanalytical and social learning theories alike proposed that the infant’s relationship with the mother emerges because she feeds the infant. Bowlby was aware of evidence from animal studies that refute these theories. For example, Bowlby noted the reports by Harlow and Harlow (1935) showing that rhesus monkeys in times of stress preferred not wire-mesh ‘mothers’ that provided food, but cloth-covered mothers that afforded contact comfort. Soon, systematic observations of human infants

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were made, and it became evident that babies also became attached to people who did not feed them. Bowlby incorporated discussions with colleagues from such fields as evolutionary biology, ethnology, developmental psychology and cognitive science and control systems theory. There are several concepts that Bowlby brings to an initial understanding of infantile attachment. 1 There is a biological basis for attachment behavior. Bowlby proposed that selection favored attachment behaviors because they increased the likelihood of child–mother proximity, which in turn increased the likelihood of protection and provided survival advantage. 2 Attachment behavior is part of an organizational system with a variety of attachment behaviors. The behaviors chosen in a specific context are the ones the infant finds most useful at that moment. Thus, a non-mobile child may cry and reach out to contact its mother, but a mobile child may crawl instead. Children will adapt behaviors to different situations. 3 There are two classes of factors that contribute to activation of the attachment system. One relates to conditions of the child (such as illness, fatigue, hunger, pain), whilst the other relates to conditions of the environment such as the presence of threatening stimuli; particularly important are the location and behavior of the mother. 4 Bowlby proposed that the organization of the attachment behavioral system involves cognitive components – specifically, mental representations of the attachment figure, the self and the environment – all of which are largely based on experience and help children make predictions about the future. Lack of a stable mental representation may be destabilizing and result in behavioral problems. 5 Whereas nearly all children become attached, not all are securely attached. Secure attachment occurs when a child has a mental representation of the attachment figure as available and responsive when needed. 6 Infants are thought to form more than one attachment. By the end of the first year an infant has a ‘small hierarchy’ of major caregivers, which may include grandparents, day-care providers, aunts, uncles, etc.; however, they strongly prefer their mother or primary caregiver, usually the mother. 7 It is important to note that an infant does not treat all attachment figures alike. They are not interchangeable; rather, an attachment hierarchy exists. Children have a tendency to ‘choose’ a special caregiver. 8 Perhaps most importantly, according to Bowlby, emotions are strongly associated with attachment. He writes: Many of the most intense emotions arise during the formation, the maintenance, the disruption, and the renewal of attachment relationships. The formation of a bond is described as falling in love, maintaining

a bond as loving someone, and losing a partner as grieving over someone. Similarly, threat of loss arouses anxiety and actual loss gives rise to sorrow; whilst each of these situations is likely to arouse anger. The unchallenged maintenance of a bond is experienced as a source of joy. (Bowlby 1979, p. 81)

In summary, Bowlby describes a complex set of behaviors related to attachment that are perhaps biologically rooted in our species and elegantly incorporated into the normal socialization of the human infant. This socialization and development of self under the guidance and security of a primary attachment figure is essential for a healthy child. Bowlby’s ideas have been further expanded and supported by biological research.

Biological models of attachment and social buffering More than 25 years of research on the antecedents of attachment security now begins to answer the question: Is parental sensitivity, the ability to sense a child’s needs including exploration and support, indeed an important condition for the development of a secure attachment relationship? A meta-analysis by De Wolff (1997) notes that parental sensitivity is not the exclusive or most important factor in the development of attachment. Mutuality and synchrony between child and parent are quite strongly associated with attachment security as are stimulation, positive attitude, and emotional support (De Wolff 1997). Social supports are important for the well-being of an individual. Social psychobiology research, and particularly research on affiliations, has also increased dramatically during the past 25 years. For one, the loss or absence of valued social companionship is a well-known risk factor for depression. Patients with major depression show exaggerated cortisol responses to supraphysiological, maximal and submaximal doses of adrenocorticotropic hormone (ACTH) (Levine and Lyons 1997). Adrenal hyperresponsiveness to ACTH is a state-dependent outcome that subsides with clinical recovery. De Wolff (1997) found that social separations in squirrel monkeys can induce long-lasting increases in cortisol similar to those in human depression, whereas companionship can result in social buffering. These findings are consistent with neuroendocrine interactions hypothesized to occur during major depressive disorders in humans, and point to the importance of affiliations, which are related to human bonding. Gunner and Connors (1998), in their studies of adrenocortical activity and behavioral distress in human newborns, note that stress reactions of the adrenocortical system (persistent increases in cortisol) are triggered by sudden changes in demands on the organism that the organism is not prepared to meet. At the very least, developmental and physical status would influence the experience of increased demand: the coping behavior initiated

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also would be expected to vary with the nature of the demand, among other factors. In studies of psychological and physiological responses to stress, it has been found that trauma and re-experiencing of trauma may be associated with dysfunction of the locus coerulus, amygdala and hippocampal systems, as well as result in dissociation of the hemispheres (Henry 1993; Nachmias and Gunner 1996). Right hemisphericdamaged children lose critical social skills, and in adults the related sense of familiarity critical for bonding is lost. Such loss of social sensibilities may account for the lack of empathy and difficulties with bonding found in sociopathy and borderline personality disorder – conditions now believed to result from repeated trauma during development (Lyons-Ruth 1996). If one considers separation from parents and abuse as trauma, such findings have potentially significant implications. Biological research continues to study how bonding and social affiliation affect the individual, and are mediated. Bowlby initiated an understanding of the importance of attachment and bonding as it relates to normal development. The importance of a secure and supportive environment and social support for a child is indisputable, and yet our understanding of the role of separation and trauma in the future functioning of the individual is still in need of further examination. Clearly, a child who has had a primary caregiver for years other than the biologically originating parent (such as a foster parent) can be expected to have a far stronger and superior attachment with the primary caregiver rather than the originating genetic parent. This means that both the primary caregiver and the originating parent are to be understood as being the biological parents of the child, simply through different mechanisms.

PUBLIC POLICY AND STATE LEGISLATION GOVERNING PERMANENCE FOR CHILDREN An understanding of attachment brings an awareness that America’s foster children spend far too long waiting for, and are deprived of, the permanent and stable homes necessary for their healthy development. The Guidelines for Public Policy and State Legislation Governing Permanence for Children were developed as one of several action steps undertaken by the Federal government in response to Adoption 2002, President Clinton’s Initiative on Adoption and Foster Care. It is a technical assistance document designed to help States review their own laws and develop statutes and policies that reflect the best practices in child welfare today. The Guidelines are intended to assist the States as they focus on critical issues affecting child welfare practice and the courts. The Guidelines particularly focus on the courts and legal processes involved in decisions affecting children and families; they were written for a broad audience of stakeholders in the public policy arena, including State legislators and their staffs,

judges, public child welfare officials, and other Statelevel policy makers and program managers (USDHHS Guidelines 1999). Several important assumptions are articulated in the Adoption 2002 report. The child psychiatrist involved in forensics needs to be aware of these policies and assumptions as he or she will be intimately involved with them when involved in the foster-care system. They are as follows:

• • • • • • • •

Every child deserves a safe and permanent family. Children’s health and safety is a paramount concern that must guide all child welfare services. Children deserve prompt and timely decision-making as to who their permanent caregivers will be. Permanency planning begins when a child enters foster care; foster care is a temporary setting. Adoption is one of the pathways to a permanent family. Adoptive families require supports after the child’s adoption is legalized. The diversity and strengths of all communities must be tapped. Quality services must be provided as quickly as possible to enable families in crisis to address problems.

PERMANENCY FOR CHILDREN ‘Permanency’ means that a child has a safe, stable, custodial environment in which to grow up, and a life-long relationship with a nurturing caregiver. The concept of permanency has assumed a central place in American child welfare law and policy because permanency establishes the foundation for a child’s healthy development. The basic needs of children include safety and protection; a sense of identity; validation of themselves as important and as valued persons; stability and continuity of caregivers; an opportunity to learn and grow cognitively, physically and emotionally; and a protected custodial environment that is legally secure. The literature shows that children do better in a stable family. When their own family cannot be rehabilitated, children do better in stable placement, and do better than children who are returned to an unstable home. Except for certain judicial proceedings, children per se are not afforded any rights under the United States Constitution. However, under case law, in face of abuse, neglect, or abandonment the ‘right of family integrity’ must yield to the State’s interest in protecting children. The rights of a child to his or her psychological home, to some home, or to a home free of abuse are in potential conflict with the rights of the biological originating parent to possess the child. The interest of society is not served when children are mistreated, grossly neglected, or allowed to languish in the limbo of foster care. The Adoption Assistance and Child Welfare Act of 1980, was the first federal statute to discourage excessive reliance on foster-care placement and

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promote greater use of services to assist and rehabilitate families, discouraging out-of-home placements. It introduced the concept of permanency planning and incorporated specified time frames for decision making for children and families. Other legislative initiatives to support or promote permanency include the Family Preservation and Family Support Services Program (FPFS) (P.L. 103-66) established in 1993 and amended in 1997, the Multiethnic Placement Act of 1994 (P.L. 103-382) with its 1996 Interethnic Placement Provisions (P.L. 105-89), and the Adoption and Safe Families Act (P.L. 105-89) enacted in November of 1997. The legislation that established the Family Preservation and Family Support Services Program focused primarily on the front-end of the child welfare system by providing additional funding for preventive services and crisis services for children and families at risk. Implementation required active involvement of the broad community of stakeholders to focus on needs and services for children and families. In response to major concerns about the extended length of stay and poor outcomes for minority children and the prevalence of racial preference in placement, the Congress enacted the Multiethnic Placement Act (MEPA), and the Interethnic Placement Provisions (IEP), enacted in 1994. MEPA outlawed discriminatory practices which will be discussed further later in this text. Ultimately, preventing the breakdown of these families will require a wide array of services. Services need to include housing assistance, securing services of a homemaker, nursing care and respite care as well as traditional social, psychological and psychiatric care. The recently authorized Adoption and Safe Families Act of 1997 (ASFA), enacted as an amendment to titles IV-B and IV-E, comprehensively addresses critical permanency issues in child welfare and the law. Safety is the paramount concern that must guide all child welfare services. ASFA clarifies the reasonable efforts requirements by identifying those circumstances in which States are not required to make reasonable efforts to keep the child with the parents. Cases in which a parent has been convicted of murdering a child have resulted in having their rights to another child involuntarily terminated. Similarly, a parent who has committed a felony assault resulting in serious bodily injury to a child, or when a court has found that the child has been subjected to aggravated circumstances such as abandonment, torture, or chronic abuse, parental rights have been terminated. This requires criminal record checks on the backgrounds of prospective foster and adoptive parents. To ensure that the system respects a child’s developmental needs and sense of time, the law reaffirms reunification as a viable option for children whose families can provide them with a safe, nurturing environment. The law strongly promotes the timely adoption of children who cannot return safely to their own homes, and radically changes the time frames for decision making for children. ASFA requires that if families cannot be reunited, efforts

be made to find families for children who are legally free and waiting for permanent placement. ASFA establishes adoption incentive payments for States to increase the number of children who are adopted, leading to a doubling of the annual number of children adopted by the year 2002. It authorized pre- and post-adoption services to support adoptive families and supported activities to expedite the adoption process. Innovative approaches are needed to achieve the goals of safety, permanency, and well-being. To allow for serious consideration of new ways to serve children and families, the law expands Federal authority to support projects for the examination of issues, and the demonstration and evaluation of program improvements related to child welfare.

Case examples A seven-year-old boy was removed at birth from his physically abusive cocaine-using mother and placed in foster care for seven years with a kinship foster mother. The natural originating mother maintained superficial weekly visits and requested a return of the child when she became drug free. The child adamantly refused to go and asked that the ‘maternal visits’ should cease. Assessment of the child clearly demonstrated that the foster mother was the child’s primary caregiver and primary attachment figure. The biological nature of genetics was thus pitted against the biological nature of maternal attachment. This is an example of how legal reform and updating need to be implemented in order to easily and quickly support a child’s reasonable request.

Clinical issues The child psychiatrist’s role is to keep the foster-care child’s best interest primary in regards to the policy. One of the guiding principles is that the independent evaluator must bring to light what it is like to become a foster-care child. Most children have been placed suddenly for their protection. Frequently, the children cannot be prepared in advance and are confused and traumatized in the earliest hours of separation. Many children who enter foster care have been deprived and abused before this, which makes the toleration of extreme stress even more difficult for them. Many children become anxious, and some regress (e.g., become enuretic). Others with pre-existing psychiatric and emotional problems cannot adjust and are moved to other placements. Children miss their parents – even those that abused them. Parent-like children who have helped care for their younger siblings are often upset because placement interferes with their job/role and attachment. Because foster children are separated from their biological originating parents – often against their will – they very often feel angry and deprived, and long to be

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reunited with their parents. To keep loyalty to the natural parents intact, the child may need to be emotionally distant from and oppositional toward his or her new foster parents, which makes the child less endearing. Children have fantasies of being ‘thrown away’ or ‘bad,’ and at times idealize their abusive parents in retaining their hope in the ‘good parent.’ If adoption is planned or imminent but the child has not agreed emotionally, he or she may act out to disrupt the plans. Children who have experienced repeated placements often become standoffish as a way of protecting themselves from future losses. A history of past and present attachments will often help to differentiate what is a defensive posture from the inability to attach. If a child cannot attach and is placed in a pre-adoptive home, the preadoptive parents are likely to become discouraged and feel as if they have failed. Both children and parents (originating, foster or pre-adoptive), would benefit from concurrent psychotherapy to address these important issues. These and other issues should involve a full evaluation by a child psychiatrist, and should be considered when making recommendations for a child. In addition, the child psychiatrist who interfaces with the system can assist in developing a better understanding of the child’s behaviors and potential barriers to successful placement. The child may require some assistance in adjusting to the discomfort of the foster-care system and potential permanent placement and adoption. Some severely disturbed children may need a period of emotional grooming in therapeutic foster care before they are adoptable. Again, safety is the paramount consideration and if services for parental and family rehabilitation are not successful, then transition to free the child for adoption should be inevitable. Special consideration for permanent placement and adoption needs to be made for a long-term foster-care family for which the child has adjusted to or has been in since infancy.

SPECIAL CONSIDERATION OF MULTIETHNIC AND RACIAL ISSUES Although they comprise only 35 per cent of the general population, children of color account for over 64 per cent of the children in foster care, according to the most recent data available (USDHHS, Children’s Bureau 1997). When a family is reported for suspected child abuse and neglect, minority children, particularly African-American children, are more likely than white children to be placed in foster care rather than receive in-home services – even when the children share the same problems and characteristics (USDHHS, Children’s Bureau 1997). AfricanAmerican and Latino children tend to remain in temporary foster care twice as long as white children and, once legally free for adoption, wait longer to be adopted than do white children. Similarly, despite the Indian Child Welfare Act,

Native American children also are significantly over represented in the foster-care population. Therefore, the overrepresentation of children of color who have been placed in foster care because of suspected child abuse and neglect is a particularly troubling phenomenon. Like race, ethnicity, and culture, socioeconomic status also correlates with entry into foster care. Close to 60 per cent of foster children come from families receiving government support. More than half (at least 52 per cent) of the children in foster care come from families that are title IV-E eligible; that is, these families are at the lowest end of the family income scale (Lindsay 1991). Parents’ inadequate income best predicts foster-care placement rather than the actual severity of abuse. These families with inadequate income were less likely to be provided supportive services. Recent legislation is targeted at providing equal services. Lack of a same-race foster-care placement is no longer an acceptable reason for delay.

Clinical issues Representatives of culturally divergent communities often feel that ‘eurocentric’ prejudice interferes with agencies making serious efforts to engage the original parents so that children can be returned to their care, or so that they can receive services. Family perceptions and frustrations need to be considered. The clinician should ensure that a full and culturally sensitive evaluation of all families occurs. Care should be taken in ensuring that reunification and rehabilitation are not overlooked in certain populations. In order to look into feasible alternative approaches to treatment, one must be aware of psychosocial issues involved in lower socioeconomic status communities. This includes an awareness of limited resources and the risk factors for substance abuse. Strengths should be supported in order to increase the potential for improvement. These strengths may include family networks and support, education and parental motivation for treatment services as appropriate. As always, emphasizing the child’s safety and well-being are the paramount concern.

ADOPTION Adoption remains the placement of choice when a child cannot be returned to his or her birth family. This gives the child a new, permanent, legal family with the same legal standing and protection as a family created through birth. Adoption is the permanent transfer of all parental rights and responsibilities concerning a child to the adoptive parents (see Adoption Guidelines in Table 38.2). Children may be adopted by relatives, step-parents, foster parents, or persons previously unrelated or unknown to them. The Federal government now recommends that

Childhood attachment, foster care and placement 373 Table 38.2 Federal guidelines for adoption a. Adoption is irrevocable, even if the post-adoption contact agreement is violated, modified, or set aside. b. A birth parent’s voluntary relinquishment of parental rights may not be set aside if a post-adoption contact agreement is violated, modified or set aside. c. The court may approve the post-adoption contact agreement only if the parties, including a child over the age of 12 years, agree and the court finds that the agreement is in the best interests of the child. d. The court may approve post-adoption contact ranging from occasional exchanges of cards, photographs and information to regular personal visits in whatever level of detail the parties agree to and the court deems appropriate as supported by the record. e. Any party to the post-adoption contact agreement may petition the court to modify the agreement, order a person to comply with the agreement, or to void the agreement. f. The court may order compliance, modify, or void the contact agreement only if the parties agree or circumstances have changed and it is in the best interests of the child. The court may use its contempt power to enforce compliance as appropriate.

State law authorize a court to terminate parental rights or grant adoption for a child in foster care, to approve an agreement by the adoptive parent or parents to allow post-adoption contact between the child and a birth parent, sibling, grandparent, or other relative or individual who has a significant emotional tie to the child. State law should provide for the legal enforcement of this agreement for post-adoption contact, while maintaining the supremacy of the adoption. In addition, State laws should authorize judicial approval and enforcement of agreements for post-adoption contact in appropriate circumstances. Birth parents, when given a chance, can be tremendous resources in planning for their children, and their participation can have positive outcomes for adoption. For many years, certain adoption agencies have placed children in adoptions where birth parents maintain contact and exchange information. States could encourage birth parents’ involvement in planning for relinquishment of parental rights and adoption of the child (USDHHS Guidelines 1999).

Clinical issues Adoption brings forth the issue of termination of parental rights. There is very little in the literature regarding assessing parents in regards to termination of parental rights, and even less so on issues of maintaining contact when the child is placed outside of the home. In considering maintaining contact, one has to consider the parent–child relationship and the ability of the child to manage issues of loyalty to the biological parent without disturbing the integrity of his or her new family unit. There may be

pitfalls to maintaining ties between birth parents and their children after the children have been placed into new permanent homes. For example, birth parents might only reluctantly accept the new placement and may later try to disrupt or undermine it. The child may be fearful or resistant to continuing contacts. Determining whether an individual child needs a permanent placement with ongoing birth parent–child contacts or contacts with siblings or members of the extended family is a subtle and sophisticated task. Adoption with contact will be most successful when all of the parties to the contact agree: (i) that the contact should occur; (ii) what type of contact should occur; (iii) how or where the contact will occur; and (iv) how frequently the contact will occur. Such agreements should be flexible enough to accommodate the changing needs and abilities of all. Contact should not be allowed if the child is fearful of the parent or fearful that he or she will be removed from the adoptive home and returned to the parent. This is important when the child has had many placements and does not have strong ties to the parent, or if there is evidence that post-adoption contact will undermine the integrity of the adoptive relationship. Attachment and identification issues are critical. New federal policy guidelines state that ‘The court may approve the post-adoption contact agreement only if the parties, including a child over the age of 12, agree.’ Some children may have trouble making the decision to terminate their parents’ rights to them and may feel guilt in doing so. Clinicians need to be sensitive to this and give recommendations to help the child through this process. Capacity for object relations remains a major criterion for placement in an adoptive home. The most difficult children to place are those with severe behavioral problems, including children who are acting out sexually. One must always consider the risk of failed adoption with these children, and the devastating effect of yet another rejection. At times adoption may not be the best choice. The following case example demonstrates this idea: The child psychiatrist and the children’s therapist recommended against placing the children in adoptive homes but were not heard. An adoption worker was assigned to the children and pursued life history books with them. The children’s behavior regressed severely and they became almost unmanageable around the adoption worker’s visits. A team review was held six months later. The consulting child psychiatrist and both therapists reiterated the need for long-term placement of the children in their present foster home. Plans for adoption were dropped; the children were told they would remain with their foster parents, and their behavior improved. The foster parents were willing to keep the children, but were understandably reluctant to adopt, given the extent of the children’s behavior problems.

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For situations like this, the Federal government has provided guidelines for the alternative to adoption – permanent guardianship.

GUIDELINES FOR PERMANENT GUARDIANSHIP The term ‘legal guardianship’ means a judicially created relationship between child and caretaker which is intended to be permanent and self-sustaining, as evidenced by the transfer to the caretaker of the following parental rights with respect to the child: protection; education; care and control of the person; custody of the person; and decision making. The term ‘legal guardian’ means the caretaker in such a relationship (ASFA, Public Law 105-89). Federal guidelines want State courts to award permanent guardianship to an individual or couple who will serve as permanent caregivers of a child without ongoing State supervision. Although this is not full adoption, some transfer is in the child’s best interest. Permanent guardians should have legal custody and control of the child, including the power to make major decisions. Genetic parents may retain some ongoing contacts with the child and may retain the obligation to pay child support. Suitable relatives should be initially preferred for all placements, including placements for permanent guardianship. In a contest for guardianship there should be a presumption that the best interests of the child are served by placement with a relative unless a person competing for permanent guardianship has already an established custodial relationship having had custody of the child for twelve of the past eighteen months. In that case, the court shall evaluate the competing potential guardians on an equal basis with no presumption and should award custody based on the best interests of the child. Because the goal of permanent guardianship is to create a permanent family for the child, guardians should be adult individuals or couples, rather than public or private agencies. Once a permanent guardianship is established, there should be no need for ongoing court review or agency supervision of the guardianship. It should be permanent.

Clinical issues Adoption is a serious step, but missing the opportunity for adoption can be a grave error as it provides the greatest stability. The following should be provided before adoption is overlooked:

• •

Skilled counseling to enable the child to grieve and accept the possibility of adoption is necessary such as when the child is older and/or unwilling to cooperate with adoption. Aggressive efforts should be made to secure an adoptive family including the use of adoption exchanges and other adoption recruitment efforts.

• • • •

All interested inquirers should be considered as possible adoptive parents, regardless of race or geographic location of the inquiring families. Counseling should be provided to potential guardians about the benefits of adoption. The social service agency should engage in efforts to eliminate other possible systemic barriers to adoption such as availability of services to enable independent living for children with developmental disabilities. A limitation to adoption may be seen in the child living with a relative or caregiver who is committed to be a party to a legal guardianship and agrees to raise the child to adulthood but is not willing to support termination of parental rights and expects to secure a voluntary relinquishment.

GUIDELINES FOR STANDBY GUARDIANSHIP It is recommended by Federal guidelines that State statutes provide for the legal option of Standby Guardianship, which allows a chronically or terminally ill parent to authorize another adult person to serve as guardian of a child when the parent dies or becomes temporarily or permanently incapacitated. This is much like a healthcare proxy or advance directive.

Clinical issues The child and family should receive support and guidance in preparation for the loss of the parent. One should also address whether guidance is provided for the selected guardian to offer a reasonable transition and continuity of care. Adequate funds need to be set aside for child support and education. For parents who have sizeable estates, money can be placed in a trust fund. The child should get to know the guardian in the context of the parent in order to facilitate the attachment transition.

GUIDELINES FOR PLANNED LONG-TERM LIVING ARRANGEMENTS WITH A PERMANENT FAMILY The Federal government recommends that the States should authorize courts to approve long-term living arrangements with a specific and identified permanent family for a child who will not return to his or her family of origin. This less-formal arrangement is the Planned Long Term Living Arrangement (PLTA) or the so-called ‘foster care with tenure.’ In this case, adults caring for the child have considerably less authority or decision making, and for this reason it is the least preferred choice among the permanent placement options. It should be permitted only under strictly limited circumstances. State law

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should authorize long-term living arrangements with a specified family only upon a court finding that one of the following two situations exists: 1 Older child, stable foster home, with ties to birth family. That is, there exists a documented, positive, and ongoing relationship between the child and birth relatives or other caregivers. Alternatively, there exists a stable foster-care placement that is predicted to last until the child leaves foster care or reaches majority; and the child has attained the age of fourteen years and agrees to the plan or achieves majority. 2 Child with serious and profound disability. Where the child has serious and profound physical, emotional, or mental disabilities, foster parents may not want guardianship or adoption, i.e., a very permanent situation. Adequate services for these children may vary with time, necessitating a change in placement. Nonetheless, the best results are achieved whenever a longterm stable relationship can be maintained. In these extended long-term living arrangements the court should find by clear and convincing evidence that the usually preferred permanent placement options of adoption and guardianship are not available or appropriate for this child.

Clinical issues Many of these children may not be adoptable or may resist adoption because of loyalty binds or the wish to maintain some contact with the parent. ‘Foster care with tenure’ allows them to experience stability and permanency without fears of having their ties disrupted. Such an arrangement often works well for foster parents who may be reluctant to adopt because of the extent of a child’s medical or emotional problems or because they cannot afford the cost of raising another child. If appropriate, the child may have contact with the birth family. Once again, the child’s experience of the visits and issues of loyalty conflicts, separation and developmental stage must be considered. In addition, the child with developmental and behavioral disability must be ensured adequate services including mental health and should be explicit in recommendations and follow-up.

REFERENCES Adoption and Safe Families Act, Public Law 105-89, § 101(b), 42 U.S.C. 675(7). Black, D., Wolkind, S. 1991: Placement Issues in Child Psychiatry and the Law, 2nd edition. Royal College of Psychiatrists Press, 53–62. Bowlby, J. 1958. The nature of the child’s ties to his mother. International Journal of Psychoanalysis 39, 350–73.

Bowlby, J. 1969/1982: Attachment and Loss: Volume 1. Attachment. New York: Basic Books. Bowlby, J. 1973: Attachment and Loss: Volume 2. Separation. New York: Basic Books. Bowlby, J. 1979: The Making and Breaking of Affectional Bonds. London: Tavistock. Bowlby, J. 1980: Attachment and Loss: Volume 3. Loss. New York: Basic Books. De Wolff, M.S. 1997. Sensitivity and attachment: a meta-analysis on parental antecedents of infant attachment. Child Development 68, 571–91. Fein, E. 1991. Issues in foster care: where do we stand? American Journal of Orthopsychiatry 61, 578–83. Goldstein, J., Freud, A., Solnit, A.J. 1973: Beyond the Best Interests of the Child. New York: The Free Press. Goldstein, J., Freud, A., Solnit, A.J. 1979: Before the Best Interests of the Child. New York: Free Press. Guidelines for Public Policy and State Legislation Governing Permanence for Children, http://www.acf.dhhs.gov/programs/cb/special/ 02prefac.htm Gunner, M.R., Connors, J. 1988. Adrenocortical activity and behavioral distress in human newborns. Developmental Psychobiology 21, 297–310. Harlow, H.F., Harlow, M.K. 1935: The maternal affectional system of rhesus monkeys. In Rheingold, H.R. (ed.), Maternal Behavior in Mammals. New York: Wiley, 254–81. Henry, J.P. 1993. Psychological and physiological responses to stress: the right hemisphere and the hypothalamo-pituitary-adrenal axis: an inquiry into problems of human bonding [Review]. Integrative Physiological and Behavioral Science 28, 369–87; discussion 368. Levine, S., Lyons, D.M. 1997. Psychobiological consequences of social relationships. Annals of the New York Academy of Sciences 807, 210–18. Lindsay, D. 1991. Factors affecting the foster care placement decision: an analysis of national survey data. American Journal of Orthopsychiatry 61, 272–81. Lyons-Ruth, K. 1996. Attachment relationships among children with aggressive behavior problems: the role of disorganized early attachment patterns. Journal of Consulting and Clinical Psychology 64, 64–73. Nachmias, M., Gunner, M. 1996. Behavioral inhibition and stress reactivity: the moderating role of attachment security. Child Development 67, 508–22. Rosenfeld, A.A., Pilowsky, D.J., Fine, P., Thorpe, M., Fein, E., Simms, M.D., Halfon, N., Irwin, M., Alfaro, J., Saletsky, R., Nickman, S. 1997. Foster care: an update [Review]. Journal of the American Academy of Child and Adolescent Psychiatry 36, 448–57.

376 Family law and domestic relations Schetky, D.H. 1992: Termination of parental rights and adoption. In Clinical Handbook of Child Psychiatry and the Law. Maryland: Williams & Wilkins, 162–81. Smith v. OFFER, Organization of Foster Families for Equality and Reform, 431 U.S. 816 (1977). United States Department of Health and Human Services: Adoption 2002: Guidelines for the

President Initiative on Adoption, Foster Care in 1998. Washington, DC: US DHHS, 1999. USDHHS, Children’s Bureau. 1997: National Study of Protective, Preventive and Reunification Services Delivered to Children and Their Families.

39 Forensic evaluation of physically and sexually abused children RODRIGO PIZARRO AND STEPHEN B. BILLICK

Child abuse can present as physical abuse, emotional abuse, sexual abuse, and neglect. There are special forms of abuse, such as Munchausen syndrome by proxy and fetal abuse (Finkelhor 1994). Because so much abuse remains undisclosed, researchers usually use retrospective information from adults to make inferences about the incidence and prevalence of abuse. Authors agree that adult reports are probably underestimates due to a number of methodological problems. Adding confusion to the literature is the fact that the definition of abuse can vary among papers and that in certain cases the report of abuse may be fabricated due to ulterior motives or may later be found unsubstantiated.

•

DEFINITIONS The physical and sexual abuse of children may be categorized as follows:

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Physical abuse: this is the physical injury of a child under 18 years of age by a person who is responsible for the child’s welfare. Emotional abuse: this includes close confinement, verbal or emotional assault and other forms of abuse (US Department of Health and Human Services 1988). Close confinement is the restriction of movements such as tying a child’s arms or legs together or binding a child to a chair, bed, or confining a child to an enclosed area (such as a closet) as a means of punishment. Verbal or emotional assault is the habitual pattern of belittling, denigrating, scapegoating, or other non-physical forms of overtly hostile or rejecting treatment, as well as threats of other forms of maltreatment. Other forms of emotional abuse include overtly punitive, exploitative, or abusive treatment and includes attempted or potential physical or sexual assault, deliberate withholding of food, shelter, sleep, or other necessities, as a form of

•

punishment, economic exploitation, and unspecified abusive reactions. Neglect: this is an act of omission perpetrated by caretakers who fail to fulfill their obligations towards the children they are caring for (Giovannoni 1988). Neglect can be classified as physical neglect, educational neglect and emotional neglect (US Department of Health and Human Services 1988). Physical neglect includes refusal of healthcare, delay in healthcare, abandonment (desertion of a child without arranging for reasonable care and supervision), expulsion (refusal of custody), inadequate supervision, inattention to avoidable hazards in the home, inadequate nutrition, clothing, or hygiene, and other forms of reckless disregard of the child’s safety and welfare. Educational neglect includes permitted chronic truancy, failure to enroll and failure to attend to special education needs. Emotional neglect includes providing inadequate nurturance/affection, exposing a child to chronic or extreme spouse abuse, permitting a child to abuse drugs or alcohol, permitting other maladaptive behavior, or refusing a child psychological care. Child sexual abuse: this is the use of a child under eighteen years of age as an object of gratification for adult sexual needs or desires (Green 1996). A sexual relationship between a child and adult in which there is no coercion is also regarded as abusive because the child lacks the capacity to consent to sexual activity. A parent or a caretaker who allows another person to have sexual contact with a child is also deemed sexually abusive. Incest refers to the sexual exploitation of a child by another family member. The most common forms of sexual abuse encountered by girls are exhibitionism; fondling; genital contact; masturbation; and vaginal, oral or anal intercourse by a male perpetrator. Boys are usually subjected to fondling, mutual masturbation, fellatio, and anal intercourse. Finkelhor has distinguished between contact and non-contact sexual abuse

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•

•

(Loue 1998). Contact sexual abuse is the touching of the sexual portions of the child’s body (genital or anus) or touching the breasts of pubescent females, or the child’s touching the sexual portions of a partner’s body. It can involve penetration (penile, digital and object penetration of the vagina, mouth or anus) or not (fondling, touching or kissing). Non-contact sexual abuse includes exhibitionism, voyeurism, verbal sexual propositions, or harassment. Munchausen syndrome by proxy: this is a disorder in which a person persistently fabricates symptoms of illness on behalf of another, so causing that person to be regarded as ill (Forsyth 1996). In instances involving children, it is almost exclusively their mothers who are fabricating the illness. The term was coined by Meadow in 1977, and it is considered a special form of abuse. Fetal abuse: this is the ingestion of substances during pregnancy that may have serious consequences for the developing fetus. States vary in their approach to this problem, some seeking criminal charges in order to place the woman in a controlled environment for the protection of the fetus. However, some have argued that confinement in prison does not necessarily protect the child.

INCIDENCE The exact incidence of child abuse and neglect in the USA is unknown due to reporting limitations. The 1986 National Incidence and Prevalence Study of the National Center on Child Abuse and Neglect estimated that 22.6 per 1000 children were maltreated that year. Some 64 per cent of the cases involved neglect. The rate of reported physical abuse was 4.9 per 1000 children (Kaplan 1996). Also, the exact incidence and prevalence of sexual abuse are unknown, but community and college surveys indicate that 20 per cent to 40 per cent of adult women, and almost 10 per cent of adult men, were abused as a child (Green 1996). The true prevalence of Munchausen Syndrome by Proxy and fetal abuse remains unknown.

PRESENTATION AND FINDINGS

5 The parent claims that the injury was self-inflicted, or blames it on a sibling or third party. 6 The child had been previously taken to different hospitals for the treatment of injuries. 7 The child accuses the parent or caretaker of injuring him or her. 8 The parent has unrealistic and premature expectations of the child. 9 The parent demonstrates a lack of concern about the injury, or minimizes it. 10 The parent has a prior history of abuse as a child. The usual physical findings are more severe than those that could reasonably be attributed to the alleged cause. Physical signs include bruises and welts on areas that are not easily exposed to natural accidents such as the face, lips, mouth, ears, and eyes. These signs form regular patterns that often resemble the shape of the article used to inflict the injury. For example, cigarette burns can be present on the soles, palms, back, or buttocks. Immersion burns are stocking or glove-like on extremities, but doughnut-shaped on buttocks or genitals. Fractures of the skull, ribs, nose, facial structures, or long bones, frequently present as multiple or spiral fractures in various stages of healing. The examiner can also find lacerations or abrasions, rope burns on wrists, ankles, neck, torso, mouth, lips, eyes, ears, or external genitalia, and bruises of the abdominal wall. In addition, the child may present with intramural hematoma of the duodenum or proximal jejunum, intestinal perforation, ruptured liver, pancreas, or spleen, ruptured blood vessels, kidney, or bladder. Subdural hematoma, retinal hemorrhage, or subarachnoid hemorrhage can also be present. The usual psychiatric/behavioral findings include wariness of adults. The child may appear anxious and frightened in the presence of the abusive parent. He or she may become more anxious closer to the discharge date (if she/he is in the hospital), or may express fears regarding returning home. The psychiatric symptoms include anxiety symptoms (such as sleep difficulties, nightmares, psychosomatic complaints, separation anxiety, self-mutilation); avoidance; mistrust; depressive symptoms (such as low self-esteem, suicidal ideation, suicidal attempts); impaired impulse control (leading to aggression, conduct disorder, attention deficit); substance abuse; speech, learning and cognitive problems; and limited social competence. In addition, the victim of abuse can also present as a perpetrator of abuse.

Physical abuse Green (1994) described the typical history of a case of physical abuse as follows: 1 There is an unexplained delay in bringing the child for treatment following the injury. 2 History is implausible or contradictory. 3 History is incompatible with the physical findings. 4 There is a history of repeated suspicious injuries.

Emotional abuse Even though there are no characteristic physical findings, the child may present with sad or angry expression. The psychiatric/behavioral findings include generalized fearfulness, impaired social competence, conduct problems, separation anxiety, and sleep disturbances.

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Neglect The usual physical findings include malnutrition, pica, limited hygiene, inadequate clothing. In addition, there might be evidence of medical neglect, such as lack of immunizations, absence of dental care, eyeglasses, or hearing aids, and discharge against medical advice. Developmental delays and failure to thrive may also be a result of neglect. The psychiatric/behavioral findings vary according to the child’s developmental stage. Children can be easily irritable, less flexible, present more difficulties in terms of affect regulation and dealing with frustration. They are more dependent, less enthusiastic, have low self-esteem and can present with depression, withdrawal, social isolation and aggressive behaviors. They can also present with anxiety, sleep disturbances, and psychosomatic complaints.

Child sexual abuse The usual physical findings include lacerations, hematomas, petechiae, edema and contusions of genital areas. Signs of penile penetration include hymeneal tears, scar tissue and adhesions that distort the shape of the hymeneal membrane, clefts or bumps in the hymeneal membrane, labial adhesions, widening of the hymeneal orifice and rounding of the hymeneal edge. Signs of anal trauma include hematomas, prolapse of anal tissue, fissures, anal skin tags, pigmentation and scar tissue. Penetration can also produce changes in the tone of the anal sphincter. Different authors have proposed different ways of classifying the findings according to the degree of specificity or certainty (Bays and Chadwick 1993). The findings can be classified as diagnostic findings (e.g., pregnancy); findings consistent with sexual abuse (e.g., presence of Trichomonas); findings sometimes following sexual abuse but also other causes (e.g., bacterial vaginosis); findings unlikely to be due to abuse (e.g., Candida albicans dermatitis). The usual psychiatric/behavioral findings characteristically found in child sexual abuse can be categorized in different ways: 1 No symptoms: not all the children who are victims of abuse present psychiatric symptoms. In addition, if the child has been progressively groomed and seduced into sexual activity that has been pleasurable and nonviolent, the only indication of abuse may be a heightened sexual arousal. 2 Acute symptoms: anxiety symptoms (sleep disturbances, nightmares, insomnia), somatic complaints, phobias (for example to males), and symptoms of posttraumatic disorder (re-experiencing the abuse, avoidance, and autonomic hyper-arousal). 3 Long-term symptoms: avoidance and mistrust of adults, depression, suicidal behavior, anger, guilt,

low self-esteem, aggression and poor impulse control, hysterical and dissociative symptoms, early signs of borderline personality disorder, substance and alcohol abuse, abnormal sexual behavior, disturbances in sexual identity and sexual object choice, inadequate social skills, and difficulties in social relationships. 4 Adult survivors: anxiety symptoms (chronic tension, sleep difficulties), somatic complaints, feelings of detachment, sexual dysfunction, depressive symptoms with suicidal behavior, borderline personality disorder, dissociation and multiple personality disorder, and alcohol and substance abuse. The long-term consequences of sexual abuse can be divided into posttraumatic stress disorder (PTSD), cognitive distortions, emotional pain, avoidance, impaired sense of self and interpersonal difficulties (Briere and Elliot 1994). In PTSD there are intrusive, avoidant and arousal symptoms, including sensory phenomena that are similar to those experienced during the assault. It is also common to find re-enactments or repetition of abusive behavior, repetitive thoughts, intrusive thoughts or memories of the abuse. Thoughts revolving around the themes of danger, humiliation, guilt and badness, and nightmares are also common. Due to cognitive distortions there is an overestimation of danger and adversity in the world, underestimation of their own self-efficacy or self-worth. There are also chronic self-perceptions of helplessness, hopelessness, impaired trust and low self-esteem. It is also common to find hyper-reactivity to real, potential or imagined threats. Emotional distress presents with depression, anxiety, sexual problems and anger. It is also associated with behavioral problems in children, such as aggression, bullying, attacking or molesting other children. Individuals develop an impaired sense of self and an inability to soothe or comfort themselves whenever facing adversity. This explains the overreaction to stress, the separation anxiety, the difficulties understanding others as independent and separate from them, and therefore results in an inability to define appropriate boundaries when interacting with others. Those features can also result in increased suggestibility, inadequate self-protectiveness and greater likelihood of being victimized or exploited by others. Children use avoidance in order to protect themselves from painful memories of abuse. In addition, victims of abuse usually use dysfunctional behaviors as tension-reducing activities. These activities may help transiently to reduce the anxiety but can result in increased psychopathology later. Some of the avoidant behaviors include dissociation, substance abuse and suicidal attempts. Dissociation is a disruption in the usually integrated functions of consciousness, memory, identity and perception of the environment. This disruption seems to serve the purpose of reducing psychological distress and can present as depersonalization, excessive day dreaming, alterations in bodily perception, emotional numbing, amnesia, and multiple personality disorder. Substance

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abuse can be used to numb painful internal states. Suicide attempts can also be interpreted as avoidant behavior. Tension-reducing activities include compulsive and indiscriminate sexual activity, bingeing, and self-mutilation. The difficulties in interpersonal relationships due to decreased social competence and the difficulties managing fear, anger, aggression, and sexual arousal can both result in decreased ability to develop intimate relationships.

Munchausen syndrome by proxy The usual physical findings include the presence of multisystemic illnesses of varying course and symptomatology. The most frequent symptoms are bleeding (from different sites), seizures, apnea, diarrhea, vomiting, and fever. The usual psychiatric/behavioral findings include collusion of children with their mothers in the fabrication of the symptoms, or passively tolerating medical procedures. Mothers who perpetrate this type of abuse usually have some experience with the medical field, are extremely attentive, and spend long periods of time in the hospital but appear less worried about their child’s health than the medical staff. In addition, it is common that the symptoms take place always in the mother’s presence and are nonresponsive to treatment. Infants and toddlers can present feeding disorders, while pre-schoolers can present withdrawn, hyperactive or oppositional behaviors (Forsyth 1996).

LONG-TERM CONSEQUENCES OF ABUSE Despite the fact that adolescents cannot be diagnosed, as per DSM-IV, with a personality disorder, the psychological and behavioral functioning of adolescents with psychiatric disorders and history of abuse resembles that of patients who suffer from borderline personality disorder (Grilo et al. 1999). In addition, persons with documented childhood abuse or neglect were more than four times as likely as those who were not abused or neglected, to be diagnosed with personality disorders during early adulthood. Of the twelve categories of DSM-IV personality disorder symptoms, ten were associated with childhood abuse or neglect (Johnson et al. 1999).

BIOLOGICAL CORRELATES OF ABUSE Despite the definitional issues that make this type of study difficult, more literature is starting to point at biological correlates in children who have history of abuse. Studies of cerebral blood flow show that the recollection of traumatic events was accompanied by increases in regional blood flow in the anterior paralimbic regions. In addition, those with history of trauma and symptoms of PTSD also show increases in blood flow in the orbitofrontal cortex and anterior temporal pole (Shin et al. 1999).

In addition, in children who have been abused and are depressed, there seems to be a dysregulation of the serotoninergic system evidenced by increases in the secretion of prolactin following the injection of L-5-HTP (Kaufman et al. 1998). This serotoninergic dysregulation could be the cause of many of the symptoms previously described.

THEORIES EXPLAINING ABUSE AND FAMILIES AT RISK Various models have been put forth to explain why abuse occurs. Some have proposed an ecological model, whereby typically non-abusive parents could behave abusively under certain circumstances. Others propose that it is necessary to look into parental attitudes, history, personality characteristics and ideology (Jackson et al. 1999). Tomkiewicz states that in order to perpetrate abuse, the abuser has to believe that the victim is subhuman and that society or even the victim will eventually benefit from the abuse. This model is supported by studies that have found cognitive distortions in perpetrators of abuse (Tomkiewicz 1998). One of the models explaining the behaviors of the perpetrators is that of the generational transmission of abuse: between 47 and 70 per cent of mothers with a history of severe physical abuse currently abuse their children. The sexual abuse model is somewhat different, because in the majority of those cases the perpetrator is a male, but 24–42 per cent of mothers who have been sexually abused, end up in relationships where the male partner of the mother abuses her children. Green described that the factors contributing to generational transmission of maltreatment are trauma-induced repetitions, pathological object relationships, impaired mother–child attachments, the use of dissociation and the failure to verbalize one’s own maltreatment (Green 1998). The trauma-induced repetitions explain the reenactment of the perpetrator’s own victimization. One potential explanation for this phenomenon is that the abuse results in stress, which in turn results in increased secretion of glucocorticoids, which in turn damage the hippocampal neurons,finally impairing memory processes. This leads to fragmented memories that are not integrated and are therefore prone to be repeated and reenacted. The pathological object relationships result from the incorporation of a working model of the aggressor– victim dyad. Children may then identify with the aggressor, or with the victim, displaying sadistic behaviors that serve as a defense against helplessness or masochistic behaviors that elicit more victimization. Some children identify with the non-protective parent and go on to allow their children to be a victim of sexual predators. The impaired mother–child attachments are due to the mothers’ history of poor early relationships with their own caretakers. The use of dissociation obliterates the memory link between the parents’ own childhood abuse

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and the maltreatment they inflict upon their children. Also the use of other defenses such as avoidance, distancing, hypervigilance, denial, projection and splitting prevent the mother and child victims from integrating their painful memories and affects, making them more likely to reenact the abuse. In addition mothers who reenact abuse, have been unable to talk about their experience. Crittenden (1996) described the characteristics of each family according to the type of abuse. He stated that families with physical abuse are usually low-income, have young parents with little education, and present larger than usual number of closely spaced children. They tend to have unstable relationships with mothers being unmarried, divorced or separated. They depend on public welfare and most parents were abused or neglected. Abusive families interact less frequently and are more negative, often presenting covered hostility. Members of these families may respond more negatively to aversive communications and attribute negative intent to positive communications. The families with neglect are usually poor, large and structured around the mother and her children. There is little interaction among family members. Children perceive their parents as unavailable, and themselves as powerless. Children are often listless and apathetic and suffer from developmental delays. The families are chaotic with little structure, few rules and occasional outbursts of anger and frustration. Families with sexual abuse result sometimes from blurred interpersonal boundaries, high levels of anxiety, and fear of abandonment. In some cases, sexual abuse is a way of soothing anxiety rather than a pure sexual dysfunction. In other cases it is the result of a sexually deviant form of arousal or a cognitive distortion. In many cases, after admitting to the abuse, the perpetrators claim that the child enjoyed it and invited them. Child physical abuse has been correlated with substance abuse, low self-esteem, poor impulse control, antisocial behavior, and poor knowledge of child development in the parent. Families usually suffer from social isolation and dissatisfaction with social supports, present low use of community resources, and limited involvement in community activities. In addition, there is usually a family history of marital problems and spouse abuse. The children in these families are young and present delayed development, aggression, non-compliance and difficult temperament (Swenson and Spratt 1999). In general, authors have agreed that child abuse is widespread and crosses class barriers. However, others state that the evidence suggests that the prevalence among the poor is higher and that classlessness is just a myth (Drake and Zuravin 1998).

CHARACTERISTICS AND TREATMENT OF SEXUAL OFFENDERS There is no defined offender psychological, class, ethnic or racial profile. There are those who have a normal sexual history but act impulsively or opportunistically to perform

a single deviant act, and those who present a consistent deviant sexual interest. Many or most offenders have more than one category of deviant sexual behavior. In addition, a significant percentage of child abusers start to abuse as juveniles. It is also important to recognize that most of what is known about offenders is based on incarcerated offenders but this knowledge may not apply to undisclosed or unreported abuse. A study of a large sample of interviewed nonincarcerated sexual offenders showed that offenders can engage in both incestuous and non-incestuous molestation and may target children of both genders (Abel et al. 1988). Another study reported that 66 per cent of a sample of male juvenile sex offenders had been victimized either physically (19 per cent) or sexually (49 per cent) (Johnson and Shrier 1985). Juveniles may offend against their peers, against younger children, or against adults. Most of them are male and in the most common scenario they chose as a victim a seven to eight-year-old whom they knew. Usually, these offenders also present interpersonal deficits, learning problems, and poor impulse control. They usually come from unstable homes and have witnessed sexual activity and/or family violence. Finkelhor (1984) stated that four factors are necessary in order to reach the point of child molestation: (i) the adult needs to find emotional satisfaction in relating to children; (ii) the adult needs to experience a physical reaction to the presence of children; (iii) the adult is blocked in his ability to get his needs met by an adult; and (iv) the individual may have poor impulse control or may use substances that lower impulse control. In terms of treatment for offenders, most studies present methodological problems. However, there has been an increase in the number of facilities that provide treatment for sexual offenders, some in residential setting but most in outpatient community-based settings. Treatment goals include lack of recidivism, decreasing deviant sexual arousal, increasing non-deviant sexual arousal, improving interpersonal skills, anger management, stress control and eliminating substance abuse (Becker 1994). In order to be considered amenable to treatment, the offender must recognize the offense, must consider the offending as a problem behavior, and must be willing to participate fully in treatment. The different approaches to treatment include biological therapies, family therapy, cognitive-behavioral therapy and relapse prevention. Medications include antiandrogenic medication to decrease sexual drive and/or antidepressants to increase impulse control. Family therapy is indicated for those cases where there has been incest or intra-familial abuse. Cognitive-behavioral therapies aim at teaching individuals to recognize and change their inaccurate beliefs and to increase impulse control. Relapse prevention aims at identifying the molester’s cognitive and behavioral patterns that are precursors to the sexual abuse. The recidivism rates reported by different studies vary. It is necessary to develop controlled treatment outcome studies with long-term follow-up.

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REPORTING ISSUES IN CHILD ABUSE California enacted the nation’s first child abuse reporting law in 1963. By 1967, every state had followed suit (Pence and Wilson 1994). All states accept calls from anyone with information about suspected child abuse. Many states place a special reporting requirement on selected professionals such as doctors, nurses, teachers and law enforcement agencies. Some of the states have criminal penalty for those mandated professionals who fail to do so (usually a misdemeanor). The report usually triggers an investigation that may result in different outcomes. Potential outcomes include keeping the child at home and closing the case, keeping the child at home but mandating treatment for the family and instituting a monitoring system, removing the child from the house, and at times, pressing criminal charges against the perpetrators. Court proceedings usually result in mandated physical and psychiatric evaluations. Some hospitals or agencies have Child Advocacy Centers where multidisciplinary evaluations are performed (social worker, pediatrician, psychologist or psychiatrist, police officer and district attorney) so that multiple interviewing does not become traumatic per se. Cases can be substantiated (cases that are opened for service after the investigation) or unsubstantiated (cases that are closed). The reasons to fail to substantiate are often insufficient information, inappropriate referral, absence of current risk and false allegations (Zellman and Faller 1996).

INVESTIGATION AND PROSECUTION OF CHILD ABUSE Only 40 per cent of all allegations are ultimately substantiated through investigation. Substantiation is determined by evidentiary standards. Some states require ‘some credible evidence,’ some require ‘credible evidence,’ some require ‘preponderance of evidence,’ and some use the term ‘material and substantial evidence’ (Pence and Wilson 1994). It is always easier to prosecute when there is material evidence of the abuse. It is however important to remember that a normal physical examination in a child that has been sexually abused is not uncommon. Reasons for lack of physical findings are delay in seeking a medical examination, difficulties in finding semen or evidence of ejaculate after 72 hours from the episode, lack of ejaculation or physical damage to tissue, and elasticity of the sphincters and hymen (Zellman and Faller 1996). After a preliminary investigation, if the report appears to have basis, a hearing will be held. This kind of case can be heard both in civil or criminal courts. The civil court or family court attempts to protect the child and to arrange the best living situation for him or her. The criminal proceeding tries to determine whether the

accused is guilty and, if so, to punish him or her. Both courts have different standard of proof (clear and convincing versus beyond reasonable doubt, respectively) (Nurcombe and Partlett 1994). Child abuse is a crime that is difficult to prosecute (Myers 1994) because in the majority of the cases the only witness is the victim. However, before a child is permitted to testify in court, the judge must be convinced that the child is competent to do so. Testimonial competence requires that the child be able to observe and remember events, understand the difference between lie and truth, and appreciate the need to tell the truth in court. However, competence is not the same as credibility, since a competent and accurate witness may not be credible. In addition, concerns about deliberate lying, coaching and indoctrination, and flawed, distorted interviewing are the most important issues facing professionals working to protect children. To make matters more difficult, legal protections in prosecution of criminal acts make testimony more difficult since children are put in the position of describing the abuse a few feet away from the alleged perpetrator. Closing the courtroom is possible, but not always done. Usually after the initial report there is an investigation, often as a joint effort by Child Protective Services and Law Enforcement agencies. As stated above, the child is now frequently taken to a Child Advocacy Center for a multidisciplinary evaluation. The next step is the decision by the prosecutor whether to file formal criminal charges or not. In many cases the strength of the evidence depends on the child’s ability to testify. Pre-school children are often seen as unreliable witnesses. On the other hand, adolescents are often viewed as willing participants in the abuse. Therefore, most successful prosecutions involve children aged seven to twelve years. Charges are also more likely when there is material evidence. Once charges are filed, prosecutors engage in plea bargaining with the defense attorneys. In many cases, the defendants pleas guilty to a less serious offense than originally charged. Most of the charges result in guilty pleas before trial. In some jurisdictions the prosecutors divert selected defendants away from prosecution into treatment. Approximately only 10 per cent of cases are tried in court. Conviction may result in prison or in probation with mandate for treatment for sexual abuse. Certain states now have sexual registration laws that maintain local registries of all the sexual offenders in an area. Other states have also passed laws allowing for involuntary inpatient commitment of offenders who have finished their prison sentences. Minors can be either victims or perpetrators. Minor perpetrators are usually under the jurisdiction of Juvenile Courts. As in criminal litigation, most cases do not proceed to trial but the minor remains under the supervision of the court. Allegations of sexual abuse can also occur in the context of custody and visitation litigation. A number of these cases are fabricated to give advantage to one parent in the litigation.

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THE ROLE OF CHILD ADVOCACY CENTERS These centers permit a multidisciplinary evaluation. Health professionals, workers for child protective agencies and law enforcement officers work together attempting to maximize the amount of information and the quality of the data and to minimize trauma. Usually, a trained professional interviews the child while other professionals watch from a one-way mirror. This type of team approach helps to coordinate the different agencies involved, minimizes fragmentation and neutralizes ‘splitting.’ The final outcome is the facilitation in accomplishing the necessary goals, either the strengthening of the family, pursuing termination of parental rights (Westman 1996) or criminal prosecution.

PSYCHIATRIC EVALUATION OF THE CHILD VICTIM Studies indicate that an alarming number of child victims do not reveal incidents of abuse. Significant reasons for this reticence on the part of the victims are the profound and lasting repercussions that often accompany disclosure (Diaz and Manigat 1999). Although some families respond appropriately to the disclosure of abuse, many do not. As a result, victims face a risk of not being believed, losing support from their own family, being re-victimized, being displaced from their home, or a combination of those. If displacement takes place, their future becomes less certain, as they enter the foster-care system. On the other hand, if the perpetrator is removed, they may fear his/her return. If the perpetrator is the breadwinner of the family, the removal places the family at risk of financial hardship. There are also psychological repercussions that increase the burden on the victims that disclose abuse. For example, if they are female they are at risk of being accused by the mother of having ‘seduced’ the perpetrator or having willingly participated in the abuse. The phenomenon of recanting previously disclosed abuse may be due to all these factors, and therefore makes the interview of the victim more complicated. In addition, the recantation could truly indicate that the abuse did not take place and that the original disclosure was due to other motives, such as parental pressure from one of the spouses. Therefore the interviewer should be careful and mindful that the interview should not contaminate the evaluation and should be performed with an open mind. Courts are placing more importance to the quality of the interview and the training of those who perform the interviews. There are differences between a clinical versus a forensic interview. Clinicians generally assume that their clients are telling the truth. Moreover, because information collected in a clinical setting is not intended specifically for legal purposes, clinical interviewing is often aided by techniques that lack scientific validation (e.g., free drawing) or

that require subjective interpretation. In contrast, the forensic interview is characterized by skeptical neutrality on the part of the interviewer, techniques that are grounded in research on the development of memory and language, concern about the possibility of interviewer influence, and the collection of data that require minimal interpretation (Poole and Lamb 1998). In addition to these concerns about the differences between forensic and clinical interviews, problems in evaluating children include the issues of credibility, suggestibility and accuracy in children. Accuracy refers to the amount of correct versus incorrect information in children’s answers. Suggestibility refers to errors that arise when witnesses are exposed to information that is false, or to social pressures that encourage particular types of answers. Credibility is the believability that one assigns to a witness’s testimony. A judgment about credibility is a subjective reality that is not necessarily based on reliability or consistency but rather on its apparent plausibility. Reports that are highly reliable may be judged as not very credible. Research has shown that younger children are often more vulnerable to suggestion than older children, that children often resist suggestions about significant events that involve their own bodies better than they resist suggestions about other details or events (although pre-schoolers can misreport inappropriate touching). Misinformation is most likely to produce erroneous responses to specific or misleading questions and factors that impair memory (including delays between events and presentation of misinformation) also increase suggestibility (Bruck, Ceci, and Hembrook 1998). It has also been studied that certain conditions can have a damaging effect on the accuracy of children’s testimony. Interviewers who have a bias and use an accusatory tone tend to elicit more false information. On the other side, non-suggestive techniques do not guarantee that children will provide accurate narratives when they have been previously exposed to misinformation. The research on suggestibility and results of evaluations according to the type of questioning has led to considering the need for developing interview protocols.

GUIDELINES FOR FORENSIC EVALUATIONS OF ABUSED CHILDREN Different organizations have published guidelines of the forensic interview of children who may have been sexually abused. The American Academy of Child and Adolescent Psychiatry (Bernet et al. 1997) and other organizations have published guidelines for such evaluations, and also about the use of anatomical dolls. In general, the guidelines require that the professional performing the evaluations is a person in search for unbiased truth rather than a child advocate or therapist. The American Psychological Association also published guidelines for psychological evaluations in child protection matters (Board of Professional

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Affairs, Committee on Professional Practice and Standards 1999). The American Academy of Child and Adolescent Psychiatry recently published practice parameters for the assessment of children and adolescents who are sexually abusive of others (Shaw et al. 1999). All these guidelines share some common recommendations that are summarized below.

The interview setting Usually, authors recommend that interviewers gather information about the case before meeting with the child. Information can be obtained from child protective agencies, police and medical records and from adults involved in the case. The information can also help in building rapport during the interview. It is also helpful to gather information about the quality and number of previous interviews, and the training of prior interviewers. It is also important to know the context and possible motivations for false allegations. Ideally the room will have an adjacent room with a one-way mirror and videotaping capabilities. The rooms should be child-friendly. Most authors agree on the need to interview children alone. If a companion is authorized in the room it is better to delineate his/her role prior to the interview and prevent the person from making any statements. It is generally recommended to use one interviewer, but if there are going to be more than one interviewer it is necessary to appoint one in advance to do most of the questioning and the other to take notes and to suggest additional questions at the end of the interview. Regarding the use of drawings and dolls, they can be used in different ways. Drawings can be used to facilitate rapport, as projective tests and to facilitate the description of a certain event. Anatomically correct drawings are also used to request for details in case of investigation of sexual abuse. The use of drawings to facilitate rapport is a widely used tool that allows children to perform an activity that is familiar to them when being interviewed by a non-familiar person. However, the question of whether drawings provide a significant yield for obtaining information about family interactions and specific events is highly controversial. The same applies to anatomically correct dolls. Authors agree that anatomically correct drawings and dolls should only be used when the child has already made a disclosure, and for clarification purposes only. The use of anatomically correct dolls is controversial because children that do not have a history of abuse may show sexualized behavior when presented with a sexually stimulating object. To date there is no agreement about clear behavioral markers for normal play and exploratory behavior and abnormal sexualized behavior (Poole and Lamb 1998).

Interviewing techniques Given the legal need for truth, the developmental limitations of children in terms of memory, suggestibility and

credibility, the phenomenon of recantation and the serious implications in the lives of children after allegations of abuse take place, there is a clear need for formal ways of assessing these allegations. Different groups have proposed different types of protocols to conduct these interviews. None of these interviews has yet been validated, and there is no universal agreement about the superiority of one model over the other. In general, it is accepted that the protocol should aim at minimizing the probability of retraumatization of the victim and at maximizing the amount of information elicited. Some of the model interviews proposed include the Cognitive interview, the Step-Wise interview, and the NICHD protocol (Poole and Lamb 1998). In addition, others have categorized interviewing styles and questions based on the level of coercion and suggestibility. The cognitive interview was designed to improve the quality of police interviews with adult eyewitness. The structure of the interview consists of five stages including introduction, open-ended narration, the probing stage (during which the interviewer guides the witness to exhaust the contents of memory), the review stage, and the closing. This technique has been modified for the use with children, but the studies on the use of this interviewing technique are not conclusive. The Step-Wise interview was developed by Yuille. The overall format involves rapport building, requesting recall of two specific events, explaining the need to tell the truth, introducing the topic of concern, encouraging a free narrative, asking general questions, asking specific questions, using interview aids (if necessary and only after the child has disclosed an event), and concluding the interview. In addition to the interview, Yuille has developed a procedure to analyze the statements elicited during the interview, as well as a validity checklist that allows the interviewer to arrive at a conclusion regarding the likelihood of abuse actually taking place. The statement analysis takes into consideration factors such as internal coherence, level of detail, contextual embedding, peculiarities of the content, motivation related contents and offense-specific elements. The validity checklist takes into consideration the child’s language, knowledge, affect, gestures, susceptibility to suggestion, drawings, and behaviors. It also takes into consideration the availability of other evidence (Yuille 1987; Yuille 1991). The National Institute of Child Health and Human Development developed a similar interview protocol. As we can see, the protocols have common features that emphasize the need for neutrality and the use of more open-ended questions at the beginning, but with more closed-ended questions and use of ancillary techniques at the end of the interview. Faller (1998) has categorized the type of questions generally used in assessing children in a continuum from open-ended questions to closed-ended questions, with open-ended questions being more reliable. Examples that she has coined about the different types of questions are: 1 General question: Why did you come to see me?

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2 Focused question about people: What kind of guy is your dad? 3 Follow up question: What happened next? 4 Multiple choice question: Did it happen in the daytime or the night-time? 5 Direct question: Did your daddy do something to your pee pee? 6 Leading question: Your mom makes you suck her breasts, doesn’t she? 7 Coercion: You cannot leave until you tell me what happened. The evaluator should make the best attempt to interview the child and determine whether the allegation of abuse is consistent with the available evidence, the statements during the interview, and our knowledge about child development and child normal behaviors. However, the validation of an allegation of abuse may not be possible. The forensic evaluator should remember that he or she is neither the trier of fact nor an unquestioning advocate for the child’s allegations, and should be aware of the limitations of his/her own interview.

SPECIAL TOPICS: FALSE ALLEGATIONS, PARENTAL ALIENATION SYNDROME AND RECOVERED MEMORIES There has been an increase in the number of allegations of sexual abuse in the context of custody disputes. Even though a majority of the allegations of abuse are still true, the number of false allegations is rising. The problem of this type of allegation is that most courts, when facing such allegation, will prevent the alleged perpetrator from seeing his/her child in order to protect the child. This usually gives more time to the custodial parent for developing a stronger relationship with the child, distorting and influencing later the outcome of the custody dispute. The evaluator needs to be aware of this possible situation. Evaluators tend to view abuse as more likely when there are multiple prior reports of abuse rather than a situation in which the allegation of abuse only takes place after the beginning of a custody dispute. Gardner defined parental alienation syndrome (PAS) in 1985 to describe a situation in which one parent attempts to alienate the child from the other parent. The purpose is to force the other parent out of the child’s life, and with time the child adopts that negative view about his/her parent and rejects him/her. Although not in the DSM-IV it is a useful concept to consider in any evaluation. Since allegations of sexual abuse may be the first step in a campaign of brainwashing leading to the PAS, certain authors argue that in those cases the custody of the child should be awarded to the non-alienating parent. However, others argue that the concept of PAS puts children in danger of being placed under the care of truly abusing parents. There are no specific tests, scales or validated protocols to avoid these

pitfalls while performing abuse evaluations. It is imperative to be mindful of the whole picture and one’s own biases (Gould 1998). PAS is less prevalent in children aged nine years and older. Child abuse treatment has led to the highly controversial issue of treatment in adults who claim recovered memories of child abuse. This has led to highly politicized positions, since patients began to take their claim to courts and other settings, with consequent disruption of families and at times significant media involvement. A recovered memory is the emergence of an apparent recollection of childhood sexual abuse of which the individual had no recent previous knowledge. A false memory is the recollection of an event which did not occur but which the individual subsequently strongly believes. If the presence of a false memory becomes the center of a person’s identity and interpersonal relationships, the individual has developed a condition called ‘false memory syndrome.’ The problem is that memory is a reconstructive rather than a reproductive process and is therefore vulnerable to suggestion (Brandon et al. 1997). Because of the high potential for misuse, some researchers recommend that forensic evaluators testifying to these issues have extensive current scientific knowledge on memory when discussing the false memory syndrome (Freyd 1998). In addition, professional organizations should consider the development of guidelines for the treatment of adults who were abused or possibly abused as children. The guidelines should include the obligation to practice within an established code of ethics, develop special knowledge and competence in the area, maintain awareness of transference and counter-transference issues, adopt a stance of supportive neutrality, not automatically assume sexual abuse from a set of symptoms, be open to the possibility of other childhood trauma besides sexual abuse, not recommend family alienation on the basis of recovered memory, contract for no unplanned/impulsive disclosures, confrontations or legal initiatives, not encourage or suggest law suits, and encourage the use of forensic experts when necessary (Courtois 1997).

TREATMENT ISSUES IN CHILD ABUSE As discussed previously, children with a history of abuse and neglect may present with a broad range of symptoms and disorders. One of the problems that arise when trying to evaluate the outcome of treatment in children who have suffered from abuse is that the literature does not use uniform terminology. Abuse is an experience, and not a disorder or syndrome. It can lead to a disorder but it is not in itself a disorder. Children can also be symptomatic or asymptomatic. When symptomatic, the manifestations can be diverse, but in asymptomatic children one issue is whether there are any ‘sleeper effects’ (symptoms that surface years later). Reviews of the literature agree on the fact that certain symptoms are more difficult to treat than

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others (sexualized and aggressive behavior) and that longterm follow-up is necessary (Finkelhor and Berliner 1995). In order to design appropriate treatment programs to address the consequences of sexual abuse, it would be necessary to isolate the specific consequences of sexual abuse and the interaction between sexual abuse and psychopathology. However, abuse occurs many times in the context of other stressors, such as poverty, drug abuse, unemployment, lack of education and pre-existing psychiatric pathology. Sexual abuse may be just one of many traumas to which a child is exposed. Assessing those factors and targeting deficiencies in the support network can be extremely helpful in preventing further victimization, and increasing resilience without necessarily addressing the abuse per se. Once those factors are evaluated it is important to determine the characteristics of the abuse that are usually associated with poor outcome, such as severity of abuse, abuse involving force or violence, and a close and emotional relationship with the offender. Afterwards it is necessary to establish the age of onset of abuse and the duration and type of abuse and also the post-abuse environment, since victims of abuse who encounter a supportive non-abusive network do much better. It is important to address the psychiatric symptoms of the non-offending parent, since the disclosure and the consequent disruption caused by the disclosure of the abuse can lead to symptoms of anxiety and depression in the non-offending parent, more often the mother, that can impair her ability to be supportive. Sexual victimization increases the longterm risk of developing widely different patterns of symptoms and behavioral patterns. Nevertheless, many children are symptom-free at the time of the assessment. There is no single or specific pattern of symptoms or problems that arise from a common history of being sexually abused children. Certain symptoms may develop only gradually over time. Many victims develop somatic complaints rather than classic psychiatric symptoms, such as depression, anxiety and hyperactivity. Unfortunately, most treatment studies reported are naturalistic and lack appropriate controls. Deblinger and her colleagues have reported positive findings with the use of cognitive-behavioral programs for the alleviation of symptoms of posttraumatic stress disorder. Emerging data indicate that the involvement of the non-offending parent may enhance the outcome (Beutler, Williams, and Zetzer 1994). Other authors also support the use of cognitive behavioral therapy for sexually abused pre-schoolers rather than the use of nondirective supportive psychotherapy (Cohen and Mannarino 1997). Others have reported on the use of medication management of the symptoms of hyper-arousal, aggression and insomnia in PTSD with clonidine, a presynaptic alpha 2-adrenergic agonist (Harmon and Riggs 1996). A challenge for the incoming decade will be the implementation of well-designed treatment studies and the use of ecological theories to understand, prevent and treat psychopathology in the victims of maltreatment (Kaplan, Pelcovitz, and Labruna 1999).

CONCLUSIONS The legal structure and the administrative agencies in charge of child services are reactive rather than proactive. Therefore, despite the increasing knowledge about risk factors, there is a failure to provide power to providers and agencies to refer children and families for intervention prior to the detection of the abuse. The legal system focuses on secondary prevention or preventing the recurrence of the abuse that has already taken place. This leads to an emphasis on the need for training of medical and non-medical personnel in the detection of warning signals for abuse. In addition, the phenomenon of recanting, the serious consequences of disclosure of abuse in a child’s life and the difficulties generated by multiple interviewing are also reasons to emphasize the importance of the training of personnel in charge of interviewing children in cases of alleged abuse. Another important issue is the fact that there are no established clear guidelines in terms of what training is necessary to perform a forensic evaluation in cases of alleged abuse, and there is no consensus regarding the superiority of any given interviewing protocol. Issues of suggestibility, accuracy, credibility and re-victimization need to be taken into account when designing any such protocol. It is difficult to accept that even with the best, most complete and well-executed evaluation, it may not be possible to determine whether abuse has occurred, or not. There is also a lack of clarity of when to treat and what type of treatment to provide to children who have been abused. In summary, despite abundant literature being available on child abuse, the basic questions about how to evaluate allegations of abuse and how to treat abused children have still not yet been definitively answered.

REFERENCES Abel, G., Becker, J., Cunningham-Rathner, J., et al. 1988. Multiple paraphilic diagnoses among sex offenders. Bulletin of the American Academy of Psychiatry and the Law 16, 153–68. Bays, J., Chadwick, D. 1993. Medical diagnosis of the sexually abused child. Child Abuse and Neglect 17, 91–110. Becker, J. 1994. Offenders: characteristics and treatment. Sexual Abuse of Children 4, 176–97. Bernet, W., Ayres, W., Dunne, J.E., et al. 1997. Practice parameters for the forensic evaluation of children and adolescents who may have been sexually abused. Journal of the American Academy of Child and Adolescent Psychiatry 36, 423–42. Beutler, L.E., Williams, R.E., Zetzer, H.A. 1994. Efficacy of treatment for victims of child sexual abuse. Sexual Abuse of Children 4, 156–75.

Forensic evaluation of physically and sexually abused children 387 Board of Professional Affairs, Committee on Professional Practice and Standards, American Psychological Association. 1999. Guidelines for psychological evaluations in child protection matters. American Psychologist 54, 585–93. Brandon, S., Boakes, J., Glaser, D., Green, R. 1997. Recovered memories of childhood sexual abuse: implications for clinical practice. British Journal of Psychiatry 172, 296–307. Briere, J.N., Elliot, D.M. 1994. Immediate and long-term impacts of child sexual abuse. Sexual Abuse of Children 4, 54–69. Bruck, M., Ceci, S., Hembrook, H. 1998. Reliability and credibility of young children’s reports. From research to policy and practice. The American Psychologist 53, 136–51. Cohen, J.A., Mannarino, A.P. 1997. A treatment study for sexually abused preschool children: outcome during a one-year follow-up. Journal of the American Academy of Child and Adolescent Psychiatry 36, 1228–35. Courtois, C.A. 1997. Guidelines for the treatment of adults abused or possibly abused as children. American Journal of Psychotherapy 51, 497–510. Crittenden, P. 1996: Research on maltreating families. In Briere, J., Berliner, L., Bulkley, J., Reid, T. (eds), The APSAC Book on Child Maltreatment. Thousand Oaks, London, New Delhi: Sage Publications, 158–71. Deblinger, E., Stauffer, L.B., Steer, R.A. 2001. Comparative efficacies of supportive and cognitive behavioral group therapies for young children who have been sexually abused and their non-offending mothers. Child Maltreatment 6, 332–43. Diaz, A., Manigat, N. 1999. The health care provider’s role in the disclosure of sexual abuse: The medical interview as the gateway to disclosure. Children’s Health Care 28, 141–9. Drake, B., Zuravin, S. 1998. Bias in child maltreatment reporting: revisiting the myth of classlessness. American Journal of Orthopsychiatry 68, 295–304. Faller, K. 1998: Interviewing for Child Sexual Abuse: A Forensic Guide. New York: The Guilford Press. Finkelhor, D. 1984: Child Sexual Abuse: New Theory and Research. New York: Free Press. Finkelhor, D. 1994. Current information on the scope and nature of child sexual abuse. Sexual Abuse of Children 4, 31–53. Finkelhor, D., Berliner, L. 1995. Research on the treatment of sexually abused children: a review and recommendations. Journal of the American Academy of Child and Adolescent Psychiatry 34, 1408–23. Forsyth, B. 1996: Munchausen syndrome by proxy. In Lewis, M. (ed.), Child and Adolescent Psychiatry. A Comprehensive Textbook, 2nd edition. Baltimore, MA: Williams & Wilkins, 1048–54. Freyd, J.J. 1998. Science in the memory debate. Ethics & Behavior 8, 101–13.

Giovannoni, J. 1988: Overview of issues on child neglect. Child Neglect Monograph: Proceedings from a Symposium. Washington, DC: Clearinghouse on Child Abuse and Neglect Information, 1–6. Gould, J.W. 1998: Conducting Scientifically Crafted Child Custody Evaluations. Thousand Oaks, London, New Delhi: Sage Publications, Inc., 158–72. Green, A. 1994: Forensic evaluation of physically and sexually abused children. In Rosner, R. (ed.), Principles and Practice of Forensic Psychiatry. Great Britain: Chapman & Hall, 309–13. Green, A. 1996: Child sexual abuse and incest. In Lewis, M. (ed.), Child and Adolescent Psychiatry. A Comprehensive Textbook, 2nd edition. Baltimore, MA: Williams & Wilkins, 1041–8. Green, A. 1998. Factors contributing to the generational transmission of child maltreatment. Journal of the American Academy of Child and Adolescent psychiatry 37, 1334–6. Grilo, C.M., Sanislow, C., Fehon, D.C., et al. 1999. Psychological and behavioral functioning in adolescent psychiatric inpatients who report histories of childhood abuse. American Journal of Psychiatry 156, 538–43. Harmon, J.R., Riggs, P. 1996. Clonidine for PTSD in preschool children. Journal of the American Academy of Child and Adolescent Psychiatry 35, 1247–9. Jackson, S., Thompson, R.A., Christiansen, E.H., et al. 1999. Predicting abuse-prone parental attitudes and discipline practices in a nationally representative sample. Child Abuse and Neglect 23, 15–21. Johnson, J.G., Cohen, P., Brown, J., et al. 1999. Childhood maltreatment increases risk for personality disorders during early adulthood. Archives of General Psychiatry 56, 600–6. Johnson, R., Shrier, D. 1985. Sexual victimization of boys: experience at an adolescent medicine clinic. Journal of Adolescent Health Care 6, 372–6. Kaplan, S. 1996: Physical abuse and neglect. In: Lewis, M. (ed.), Child and Adolescent Psychiatry. A Comprehensive Textbook, 2nd edition. Baltimore, MA: Williams & Wilkins, 1033–41. Kaplan, S., Pelcovitz, D., Labruna, V. 1999. Child and adolescent abuse and neglect research: a review of the past 10 years. Part I: Physical and emotional abuse and neglect. Journal of the American Academy of Child and Adolescent Psychiatry 38, 1214–22. Kaufman, J., Birmaher, B., Perel, J., et al. 1998. Serotoninergic functioning in depressed abused children: clinical and familial correlates. Biological Psychiatry 44, 973–81. Loue, S. 1998. Legal and epidemiological aspects of child maltreatment. The Journal of Legal Medicine 19, 471–502. Meadow, R. 1977. Munchausen syndrome by proxy: the hinterland of child abuse. Lancet 2, 343–5. Myers, J. 1994. Adjudication of child sexual abuse cases. Sexual Abuse of Children 4, 84–101.

388 Family law and domestic relations Nurcombe, B., Partlett, D.F. 1994: Forensic evaluation in cases of child maltreatment. In Nurcombe, B., Partlett, D.F. (eds), Child Mental Health and the Law. New York: The Free Press, 132–85. Pence, D.M., Wilson, C.A. 1994. Reporting and investigating child sexual abuse. Sexual Abuse of Children 4, 71–83. Poole, D.A., Lamb, M.E. 1998: Investigative Interviews of Children. A Guide for Helping Professionals. Washington, DC: American Psychological Association. Shaw, J.A., Bernet, W., Dunne, J.E., et al. 1999. Practice parameters for the assessment and treatment of children and adolescents who are sexually abusive of others. Journal of the American Academy of Child and Adolescent Psychiatry 38, 55S–75S. Shin, L.M., McNally, R.J., Kosslyn, S.M., et al. 1999. Regional cerebral blood flow during script-driven imagery in childhood sexual abuse related PTSD: a PET investigation. American Journal of Psychiatry 156, 575–84. Swenson, C.C., Spratt, E.G. 1999. Identification and treatment of child physical abuse through medical and mental health collaborations. Children’s Health Care 28, 123–39.

Tomkiewicz, S. 1998. Psychological mechanisms of violent behavior against children. Child Abuse and Neglect 22, 947–57. US Department of Health and Human Services. 1988: Study Findings: Study of the National Incidence and Prevalence of Child Abuse and Neglect. Washington, DC: US Department of Health and Human Services, 5–8. Westman, J. 1996. The child advocacy team in child abuse and neglect matters. Child Psychiatry and Human Development 26, 221–34. Yuille, J.C. 1987. Statement validity analysis: a systematic approach to the assessment of children’s allegations of child sexual abuse. British Columbia Psychologist, 19–27. Yuille, J.C. 1991. The Step-Wise Interview: A Protocol for Interviewing Children. Unpublished manuscript, University of British Columbia. Zellman, G., Faller, K. 1996: Reporting of child maltreatment. In Briere, J., Berliner, L., Bulkley, J., Reid, T. (eds), The APSAC Book on Child Maltreatment. Thousand Oaks, London, New Delhi: Sage Publications, 359–81.

40 Juvenile delinquency ROY H. LUBIT AND STEPHEN B. BILLICK

INTRODUCTION Juvenile delinquency is a serious societal problem for which the cost is enormous in terms of property damage and victims’ lives lost; processing, trying and jailing offenders; and for the delinquents’ lives and futures.1 This chapter will begin by defining juvenile delinquency. It will discuss the magnitude of the problem, theories of juvenile delinquency and the structure and origin of the juvenile justice system. The chapter concludes with the psychiatrist’s role in the system and treatment of juvenile offenders. A juvenile delinquent is someone under eighteen years of age who has committed an act that would be a crime if it had been committed by an adult. This is in contrast to a juvenile who has committed a status offense. Status offenses are crimes only because of the young age of the individual. They would not be crimes for adults, and include truancy, running away, incorrigibility, and alcohol use. In most states, juvenile courts have jurisdiction until an individual reaches eighteen years of age. Children can, however, be waived to adult courts under a variety of circumstances.

RATES AND TRENDS It is estimated that nearly 2.9 million juveniles were arrested in 1997, accounting for 19 per cent of all arrests. One-third of these were released immediately, leaving 1.8 million cases to be handled by the court (Stahl et al. 1999). Approximately 100 000 children were in residential facilities for juvenile delinquency (Moone 1997a; Moone 1997b; Snyder and Sickmund 1999). After rising sharply during the 1980s and early 1990s, juvenile crime significantly decreased during the mid to 1

A good reference site is http://virlib.ncjrs.org/JuvenileJustice.asp

late 1990s. From 1984 until 1993, the number of juvenile homicide offenders increased from 1266 to 4172, a rate increase from 8.5 per 100 000 to 30.2 per 100 000 (FBI 1976–99). In 1999, the number of juvenile homicide offenders had dropped to 1674, a rate of 10.7 per 100 000 (FBI 1976–99). This six-year decline in murders by teenagers brought the 1999 homicide arrest rate for juveniles down 68 per cent from its 1993 peak to the lowest level since 1966. The arrest rate of juveniles for four major violent crimes – murder, rape, robbery, and aggravated assault – declined 36 per cent from its 1994 peak to 1999, reaching the lowest point since 1988. Rape by juveniles was down 31 per cent from 1991 to 1999, to the lowest level since 1980. Robbery was down 53 per cent from 1994, the lowest rate since 1980. Aggravated assault was down 24 per cent from 1994, the lowest since 1989. The juvenile arrest rate for weapons crimes fell by 39 per cent from 1993, to its lowest since 1988. Non-violent crime also decreased: burglary was down 60 per cent from 1980; larceny-theft was down 23 per cent from 1997; and auto theft was down 52 per cent from 1990. Two juvenile arrest rates that had climbed during most of the 1990s began to drop more recently. Drug abuse violations fell 13 per cent, and curfew and loitering violations dropped 17 per cent from 1997 to 1999 (CNN 2000a). A number of reasons have been suggested for the significant decrease in juvenile crime. The demand for crack cocaine abated during the mid-1990s, and the gangs that peddled it either eliminated their competition or made peace with it. The police targeted gang members, traced illegal guns, and aggressively confiscated guns. A booming economy also helped, as this permitted cities to spend greater funds on policing, crime prevention, incarceration, recreation and after-school programs (CNN 2000a). An additional factor fostering the decrease in juvenile crime may be the decline in the adolescent population. There are other reasons for optimism. Most adolescents arrested do not continue to offend into adulthood, and most adolescents arrested for violent offenses do not engage in further violence. Most adolescents diagnosed

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with conduct disorder do not develop antisocial personality disorder.

THEORIES AND ETIOLOGY The etiology of juvenile delinquency is complex, with biological, sociological and psychological factors each playing a role. Attention deficit hyperactivity disorder (ADHD) and learning disabilities (LD) are significant predisposing factors. Between 20 and 60 per cent of adolescents with ADHD engage in antisocial behavior compared with a normal occurrence of 3–4 per cent (Goldstein 1999). In addition, one study showed that 35–65 per cent of juvenile delinquents have a learning disability (Ingalls and Goldstein 1999). The connection between learning disabilities, ADHD and juvenile delinquency are multi-factorial. One factor is impulsivity and poor judgment resulting directly from the disorders. This not only predisposes children into committing offenses, but makes them more susceptible to being caught than peers without these difficulties. Another factor predisposing to delinquent behavior is the poor self-esteem and stress secondary to the disorders that predispose to criminal activity. Moreover, the difficulties of parenting a child with ADHD contribute to parental stress and often to suboptimal parenting behavior. A variety of sociological theories have been posited for the origin of juvenile delinquency. Robert Merton built on Durkheim’s concept of ‘anomie’ and argued that strain arises when an individual’s goals go beyond the institutional means available to the individual for attaining them (Merton 1938). In society, the mass media often promote goals for material wealth, but for children in poor communities, poor schools and poor job availability make it very difficult to achieve the goals fostered by mass media. The emotional distress caused by the mismatch tends to lead adolescents either to ‘retreat’ into drug abuse or to ‘innovate’ and go into crime. Thrasher wrote about the importance of peer behavior, arguing that playgroups turn into gangs as they come into conflict with each other. Gangs lead adolescents into crime unless there are alternative activities to direct their energies toward. He provided a fascinating story of a gang terrorizing a business until it became involved in scouting, and then began to protect it (Thrasher 1936). Edwin Sutherland argues that delinquent behavior is learned, primarily within intimate personal groups. The individual who goes into crime learns not only criminal techniques but also that criminal behavior is acceptable. The family and other close relationships are key to this learning. A higher frequency of association with criminals increases the likelihood that one will engage in criminal activities oneself (Sutherland 1956). George Mead noted the importance of explaining not only why many people become juvenile delinquents, but also why others who

are exposed to the same factors do not. He argued that what role the juvenile decides to accept depends upon how it fits with his self-concept (Mead 1918). Albert Cohen, echoing some of the ideas of Merton, wrote that adolescents who are unable to compete in middle-class society reject its standards; moreover, they find identity validation through gang membership (Cohen 1955). Contributing psychological factors arise from a combination of biological predisposition and the sociological environment to which the individual is exposed. From a classical psychoanalytic point of view, one can note that there are problems with superego development in those who turn to delinquent behavior. Erik Erikson asserted that failure to achieve self-identity played a role (Erikson 1968). Learning theory holds that family role models, and family reaction to the child’s actions, are key to his or her avoiding versus engaging in delinquent activities (Bandura and Walters 1963). McCord, McCord, and Zola (1969) argued that both lax and erratic discipline predisposes to delinquency, whilst Gottfredson and Hirschi (1990) argued that parental attachment and supervision are necessary for an individual to learn self-control. Without self-control, people dislike environments requiring discipline and therefore turn to the streets (Gottfredson and Hirschi 1990). Reiner and Kaufman (1959) suggested that parents with antisocial personality disorders sometimes act out their own unconscious wishes through their children. Juvenile delinquency is a symptom that can arise from a variety of factors including biological, sociological and family ones. It is a common endpoint for a variety of psychological issues. Understanding the etiology is helpful, because the prevention, treatment and prognosis will vary significantly depending upon the etiology.

ORIGINS OF JUVENILE JUSTICE SYSTEM Historically, juveniles were adjudicated by the adult justice system with the same rules as adults. In 1899, the first juvenile justice system was created in Illinois. Other states followed suit, with all but three states having juvenile courts in 1920. Two primary factors drove the change: (i) children were increasingly seen as different from adults; and (ii) juries were letting children go free after committing crimes rather than put them behind bars with adults. As a result of the work of Rousseau and Pestalozzi in Europe and John Dewey in the US, children were increasingly seen not simply as little adults, but as psychologically different. As a result, the English common law concept of parens patriae became applicable to juveniles in legal difficulties. The state had a responsibility to act in a parental role to further the well-being and development of minors in trouble. Juveniles were seen as malleable, in need of treatment not punishment, and not fully accountable for their behavior.

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The juvenile court emphasized guidance, protection and rehabilitation instead of punishment. The child guidance clinic movement arose, and many child psychiatry clinics were established to help meet the needs of the new juvenile justice courts. A new vocabulary was used, i.e., ‘state in the interests of child.’ Children were no longer housed along with adults, and children aged under twelve years could no longer be committed to a jail or to a police station. Because the juvenile judicial proceedings were nonadversarial, and the court was seen as acting in the juvenile’s interests, juveniles were not seen as needing due process protections. Judges were given broad discretion. The loss of due process protections, however, led to serious problems.

CRITICAL LEGAL DECISIONS Over time, concern grew about the result of lack of due process. Increasing criticism arose in the 1950s, both of excessive leniency and harshness. Kent v. US (1966) was the first US Supreme Court case concerning the juvenile court system. A sixteenyear-old was accused of housebreaking, robbery and rape, and his case was waived to adult court without due process. He was convicted on six counts of housebreaking and robbery, and received 30 to 90 years in prison. On appeal, the US Supreme Court ruled that waiver was a critical stage of proceedings requiring representation by counsel, inspection of all records by the defense, and a statement of reason for the court’s decision. The court went on to say ‘We do hold that the leaving must hold up to the essentials of due process and fair treatment.’ Moreover, ‘There may be grounds for concerns that the children receive the worst of both worlds; he gets neither the protection accorded adults, nor the solutions, care, and regenerative treatment postulated for children.’ In re Gault (1967) concerned a fifteen-year-old who was committed until age twenty-one to an industrial school after being found delinquent of making a lewd telephone call. He reportedly called his neighbor and asked if she had ‘big bombers.’ The complainant called the police to complain, but did not appear in court; moreover, no other witnesses were sworn and no transcript was made. The maximum sentence for an adult convicted for this crime would have been two months in jail or a $50 fine. The US Supreme Court ruled that Gault’s rights had been breached by ‘a kangaroo court.’ The court ruled that ‘Neither the Fourteenth Amendment nor the Bill of Rights is for adults only.’ The court upheld the rights of a juvenile to notice of charges, counsel, confrontation and cross-examination of witnesses, and privilege against self-incrimination. The Gault case markedly strengthened safeguards in the juvenile court when liberty is at risk.

Subsequent court cases served to further define the nature of the juvenile court. As a result of In re Winship (1970), ‘beyond a reasonable doubt,’ rather than the civil court’s ‘preponderance of the evidence,’ became the standard of proof in delinquency proceedings. The parens patriae model continues, however, albeit in a weakened form. Specifically, trial by jury was deemed not to be necessary for children as a result of McKeiver v. Pennsylvania (1971). Moreover, the court held in Schall v. Martin (1984) that juveniles could be held without bail for the protection of themselves and society. The logic behind these decisions limiting children’s rights was that children are not free and are always in the custody of their parents, the state, or an appointed guardian. During the 1990s there has been a move toward a more punitive model, and it is now easier to waive juveniles to adult court. In some states there is automatic transfer for homicide. Moreover, although Thompson v. Oklahoma (1988) held that the 8th and 14th Amendments prohibited execution for first-degree murder for defendants aged fifteen years and under, Stanford v. Kentucky (1989) and Wilkins v. Missouri (1989) held that capital punishment of sixteen-year-olds did not violate the constitution. Between 1973 and 2000, seventeen men were executed for crimes committed as juveniles, and 74 offenders were on death row for crimes committed before the age of eighteen years. Twenty-three of the 38 states that have the death penalty permit execution for youthful offenders, but only seven have actually carried out such executions. Only six other nations executed individuals for crimes as minors during the 1990s (CCN 2000b). The US and Somalia are the only UN members who have not ratified the UN’s Convention on the Rights of the Child which forbids execution or life imprisonment without parole for offenses committed as minors.

PROCEDURES IN JUVENILE COURT Unlike adult court, juvenile court has intake, adjudication and disposition rather than pretrial, trial and sentencing. The term ‘adjudicated delinquent’ is used, rather than guilty. At intake, various things can happen including: dismissal; admonishment and dismissal; informal supervision by probation staff; referral to a community agency for mental health services; or continuation in juvenile court. If a juvenile confesses to an act, and it did not involve violence, he or she may be diverted from the court to seek counseling and make restitution. Juvenile court is closed to spectators, and records are not public. Trial is solely before a judge, rather than a jury. If at the adjudication hearing there is a finding of delinquency, a probation officer investigates the juvenile’s environment (school behavior, family support, circumstances of the behavior, parents’ ability to provide supervision and guidance) and presents a report to help the judge in determining disposition.

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WAIVER A crucial issue concerning minors is whether they will be tried in a juvenile court or an adult court. Waiver depends upon the seriousness of the crime and the perceived rehabilitatability of the juvenile. Adult courts, in which juveniles are often first time offenders, sometimes treat them more leniently than juvenile courts where they may be recidivists. There are three types of waivers. The most common is judicial waiver, in which a hearing is held and the juvenile court judge decides whether the adolescent will be dealt with in an adult or juvenile court. In some states, both adult and juvenile courts have jurisdiction for certain crimes committed by juveniles of a given age. As a result, the prosecutor has the discretion to select whether trial will occur in juvenile or adult court. Statutory exclusion – also known as legislative waiver – entails a mandatory waiver for certain crimes committed at certain ages. Half of the states have no minimum age for waiver, but most that do have a minimum age use fifteen years. In the federal system the minimum age for waiver is fifteen years unless a firearm was used in a violent offense, in which case it is thirteen years. Crucial issues concerning waivers include consistency/ fairness of waivers, their deterrent effect, and their effect upon recidivism. A study by Bishop et al. (1966) matched 2738 juveniles prosecuted as adults with an equal number who stayed in the juvenile justice system. They were matched for age, race, gender, current charges, and past criminal record. The study found that within two years of release, 30 per cent of those prosecuted by adult courts were rearrested, while only 19 per cent of those handled by juvenile courts were rearrested. In addition, those handled by the adult system were arrested for more serious offenses.

PSYCHIATRIST’S ROLE IN JUVENILE JUSTICE SYSTEM When working in juvenile court, psychiatrists need to be alert to several issues. All individuals who will be interviewed need to be warned that the normal confidentiality of a psychiatric examination will not apply. The psychiatrist will rely more on collateral sources for background data and verification of interview material than with adults. The specific questions the court wants addressed need to be clear. Denial of psychiatric symptoms by the juvenile is a significant problem, but it can partially be evaluated by the degree of denial of other aspects of his or her history. Most youngsters facing delinquency, however, prefer to appear bad rather than psychiatrically ill. The evaluation should include a description of antisocial activities and a detailed mental status evaluation.

Waiver A psychiatrist could be asked to advise on a potential waiver to adult court. Crucial issues will include treatability and dangerousness. The psychiatrist should address whether the child is amenable to any type of psychiatric intervention and, if so, then specific recommendation for services should be made. Moreover, one should describe the clinical indicators for good or poor prognosis in relationship to treatment and dangerousness. Prediction of violence remains difficult. Factors affecting the likelihood of future violence include the frequency and seriousness of acts; greater variety of situation and types of victims; and early onset of antisocial acts, i.e., before the ages of ten to twelve years. Moreover, one should address cognitive, affective, and situational factors related to violence.

Understanding of Miranda Rights A psychiatrist may be asked to evaluate if a juvenile who waived his or her Miranda Rights understood what he or she was doing, and therefore whether a confession that was given will stand up in court. In People v. Lara (1967) the court established the ‘totality of circumstances doctrine,’ saying that not only age but intelligence, education and comprehension need to be considered when deciding if a suspect competently received their Miranda Rights. To evaluate the juvenile’s ability to understand their Miranda Rights, one can present each of the four parts of the Miranda Rights and ask the juvenile to say what it means in his/her own words. The Rights are: the right to remain silent; anything he/she says can be used against him/her in a court of law; right to an attorney; if an accused cannot afford an attorney, one will be appointed by the court prior to any questioning if he/she so wishes. The ability to understand one’s Miranda Rights is only one step, and the psychiatrist must evaluate a number of other issues (Ackerman 1999): 1 Did the juvenile understand he/she was waiving rights? 2 Did the juvenile have the capacity to understand the options? 3 Was the juvenile, tricked, coerced, unable to say no to authority, or overly suggestible? 4 What was the situation around the waiver? Were the parents present? Was the juvenile hungry or ill or tired? How were the rights presented? What was his or her emotional state? Was he or she intoxicated? Data gathering involves interviews of the juvenile and of others. In the interview of the juvenile, one should ask what is recalled of the interrogation, what choices did the youth feel he or she had, and what did the youth think would happen as a result of signing the waiver? Other sources of data include interviews with the parents, review

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of mental health records, school records, legal records, and the police report. Research has shown that children aged fourteen years and under have much less ability to understand Miranda Rights than older children. Moreover, fifteen- and sixteenyear-olds with IQs below 80 often have impaired understanding of their Miranda Rights. Research showed that many understood ‘the right to remain silent’ to mean that ‘they should remain silent until they were told to talk’ (Grisso 2000).

Competency to stand trial In evaluations for competency to stand trial, Dusky v. US (1960) is generally the standard, as it is with adult defendants. The individual needs to be able to work with a lawyer, and to have a rational and factual understanding of the proceedings. In carrying out evaluations, one should focus on: present ability, and not past ability; capacity not willingness; cognitive functioning not mental illness; and reasonable understanding, not complete comprehension. Moreover, the issue is not pre-existing knowledge, but ability to learn about court process. The juvenile needs to know what the charges are against him or her, be able to describe them in his/her own words, and to know the potential penalties. In terms of court procedures, he or she needs to know the roles of the major court officers (defense attorney, prosecutor, judge and jury), understand the need to behave appropriately in court, understand the meaning of guilty and not guilty, be able to testify on his/her behalf, and be able to work with his/her attorney to challenge witnesses that he/she believes are lying. In terms of working with his or her attorney, he/she needs to be able to trust that the attorney is trying to act in his/her best interests, to describe the circumstances leading to the arrest, to ask his/her attorney questions about things he/she does not understand, to understand the basics of plea bargaining and wish to be acquitted or obtain the lightest penalty possible. Potential questions that one should ask in order to obtain the relevant information include (Ackerman 1999): 1 What do various people do (judge, lawyer, prosecutor, you)? 2 Do you think your attorney is trying to help you? 3 How do you think you will plead? 4 What other choices do you have? 5 Would it matter if there were no witnesses? 6 What will happen if you are found guilty? 7 What does it mean to be placed on probation? 8 Tell me about your last meeting with your attorney. 9 Talk about any prior experiences in court. Of note, one could be competent to stand trial in a juvenile court, but not be able to stand trial in an adult court, which has a more adversarial process.

DISPOSITION AND TREATMENT The treatment of delinquent youths is a major challenge for our profession. The results of treatment programs have generally been poor, as treatment efforts are countered by a strong peer culture that serves to maintain the delinquent behavior. Even programs, which attain some shortterm success, have generally failed to document long-term success in reducing recidivism. In designing treatment for juvenile delinquents one cannot use a ‘one type fits all’ approach. It is crucial to match juveniles not only to an appropriate program but also to tailor the treatment modalities used in the program to the individual’s needs and environment. Specific behavioral goals should be sought, rather than vague objectives and unstructured discussion. One should help the juvenile to develop skills to deal with peer pressure and help parents to develop limit-setting capabilities (Gordon and Arbuthnot 1987; Trojanowicz, Marsh, and Schram 2001). Psychodynamic psychotherapy is only helpful when reserved for carefully selected juveniles. In using this approach, one hopes to achieve beneficial changes in attitudes. The traditional stance of providing a neutral stance and open-ended discussions can be helpful for individuals who internalize their issues, are inhibited and have problems with anxiety and guilt. However, those who externalize their problems and have low levels of inhibitions against impulses are not likely to benefit from resolution of internal unconscious conflicts. On the other hand, the opportunity to internalize the image of a stable, warm adult can be beneficial. This is complicated, however, by the delinquent’s relative lack of ability to trust, and therefore inability to form a bond with the adult figure. The adult is likely to represent an alien middle-class world into which the juvenile will probably never be able to find access and with which he or she may be at war. Moreover, the pull of the gang is likely to be stronger than that of the therapist. In addition, lack of support by the family for the therapy may further hamper it. Nevertheless, therapy can be useful if the therapist can create an atmosphere in which the juvenile can develop trust. The therapist and juvenile can examine destructive patterns of behavior and incorrect perceptions of the world, and explore more adaptive modes of living and having one’s needs met (Aichhorn 1964; Holmes 1964; Trojanowicz, Marsh, and Schram 2001). Reality therapy focuses on the present rather than the past. It states that irresponsible behavior, rather than the past, is the major obstacle to the juvenile feeling positively about him/herself. The therapist provides expectations and defines the limits of acceptable behavior. The therapist expects the juvenile to behave appropriately, and provides considerable support for doing so, but does not reject the juvenile for falling down (Glasser 1965).

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Cognitive therapy focuses on confronting destructive behavior patterns and the irrational beliefs that may underlie them. The therapist can also help the individual to develop decision-making skills, social skills, and the ability to understand others. Juveniles learn to think through the consequences of their action, before they act, and to take responsibility for them. They learn non-aggressive solutions to problems and how others’ behavior is often a reaction to their behavior. Role playing to practice skills may be helpful. This approach has shown considerable promise (Ross and Fabiano 1985; Kazdin et al. 1987; Hains and Hains 1988; Guera and Slaby 1990; Lester and Van Voorhis 1997; Trojanowicz, Marsh, and Schram 2001). Vocational counseling can be helpful in changing a juvenile’s attitudes toward work and helping him or her find work at which he/she can succeed and from which he/she will gain some satisfaction. It is very important that the job opportunities selected should be ones with opportunities for advancement. The juvenile should also seek his General Equivalency Diploma (GED). Status and opportunities for advancement are very important in decreasing recidivism. The juvenile is also likely to benefit from assistance in adjusting to the work world (Trojanowicz, Marsh, and Schram 2001). Group counseling, sharing of concerns, problems and experiences, can be an important addition to individual therapy. Special attention should be given to juveniles who are passive or dependent so that the group does not make them scapegoats. Role-playing can be a useful way to practice skills and to see what it is like to be in someone else’s shoes. Family therapy can be helpful if it focuses on improving communication, development of parental decisionmaking skills, and teaching parents discipline skills (Romig 1978). Project ‘Back on Track’ is an after-school diversion program that uses a multi-modal approach for the treatment of early-career juvenile offenders. The program consists of participation in a four-week cycle of treatment consisting of group and family therapies, parent groups, educational sessions, community service projects, and empathy-building exercises. These youths attend the program for 2 hours per day, four days a week, allowing for 32 hours of contact with the program per cycle. Parents attend the program for 15 hours per cycle. Most youths were referred for violent offenses and met criteria for conduct disorder. The results have been promising, with those who completed the program being significantly less likely than matched controls to have committed subsequent criminal offenses after twelve months. In addition, they had significantly fewer subsequent criminal charges at nine- and twelve-month follow-up intervals than the control group (Myers et al. 2000). Some have argued that no treatment works, one problem having been a failure to separate adolescents into groups. Finding the crucial variables affecting who is

amenable to treatment, and what treatment is most likely to be helpful to a given individual is needed. In general, community-based treatment is better than institutionalization. Structured training is helpful; indeed, the most promising psychosocial treatments for youths with conduct problems include problem-solving skills training, parent management training, functional family therapy, and multi-systemic therapy. Anger replacement training and community-based interventions are examples of other approaches that have demonstrated merit. There is a modest positive effect based on treatment intensity and duration. Finally, certainty of punishment is more important than severity of punishment.

SUMMARY There are many differences between the field of juvenile delinquency and that of adult crime. The juvenile court system, based in the concept of parens patriae, is very different from that of the adult system. There are many roles for the psychiatrist in juvenile delinquency, including evaluating juveniles’ ability to stand trial, whether their Miranda Rights were observed, and whether they are amenable to treatment. There is a need for psychiatrists to provide clinical treatment for juvenile delinquents. Finally, research must be carried out to establish the best treatment and corrective methods for the different causes of juvenile delinquency.

REFERENCES Ackerman, M. 1999: Essentials of Forensic Psychological Assessment. New York: John Wiley & Sons, Inc. Aichhorn, A. 1964: Delinquency and Child Guidance. New York: International Universities Press, Inc. Bandura, A., Walters, R.H. 1963: Social Learning and Personality Development. New York: Hold, Rinehart and Winston, Inc. Bishop, D.M., Frazier, C.E., Lanza-Kaduce, L., Winner, L. 1966. The transfer of juveniles to criminal court: does it make a difference? Crime & Delinquency 42, 171–91. CNN. 2000a: 17 Americans executed for crimes committed as juveniles since 1973. CCN.com December 4. CNN. 2000b: Juvenile murder rate down 68 percent from 1993 to 33-year low. Article provided ideas of James Alan Fox, a Northeastern University criminal justice professor. CNN.com December 15. Cohen, A. 1955: Delinquent Boys, The Culture of the Gang. Glencoe, IL: The Free Press. Dusky v. United States, 362 U.S. 402 (1960). Erikson, E. 1968: Identity, Youth and Crisis. New York: Norton.

Juvenile delinquency 395 FBI. 1976–99: Supplementary Homicide Reports, http://crime.about.com/newsissues/crime/gi/dynamic/ offsite.htm?site⫽http://www.ojp.usdoj.gov/bjs/ homicide/teens.htm Glasser, W. 1965: Reality therapy: a realistic approach to the young offender. In Schasre, R., Wallach, J. (eds), Readings in Delinquency and Treatment. Los Angeles: Delinquency Prevention Training Project, Youth Studies Center, University of Southern California. Goldstein, S. 1999: Attention-deficit/hyperactivity disorder. In Reynolds, S., Reynolds, C.R. (eds), Handbook of Neurodevelopmental and Genetic Disorders in Children. New York: The Guilford Press. Gordon, D.A., Arbuthnot, J. 1987: Individual, group and family interventions. In Quay, H.C. (ed.), Handbook of Juvenile Delinquency. New York: John Wiley & Sons, 290–324. Gottfredson, M.R., Hirschi, T. 1990: A General Theory of Crime. Stanford, CA: Stanford University Press. Grisso, T. 2000: quoted in Margaret Talbot, ‘What’s Become of the Juvenile Justice System’. The New York Times Magazine, September 10. Guera, N.G., Slaby, R.G. 1990. Cognitive mediators of aggression in adolescent offenders. Developmental Psychology 26, 269–77. Hains, A.A., Hains, A.H. 1988. Cognitive-behavioral training of problem-solving and impulse-control with delinquent adolescents. Journal of Offender Counseling, Services and Rehabilitation 12, 95–113. Holmes, D.J. 1964: The Adolescent in Psychotherapy. Boston: Little, Brown and Company. In re Gault, 387 U.S. 1 (1967). In re Winship, 397 U.S. 358 (1970). Ingalls, S., Goldstein, S. 1999: Learning disabilities. In Reynolds, S., Reynolds, C.R. (eds), Handbook of Neurodevelopmental and Genetic Disorders in Children. New York: The Guilford Press. Kazdin, A.E., Esveldt-Dawson, K., French, N., Unis, A.S. 1987. Problem solving skills training and relationship therapy in the treatment of antisocial child behavior. Journal of Consulting and Clinical Psychology 55, 76–85. Kent v. United States, 383 U.S. 541 (1966). Lester, D., Van Voorhis, P. 1997: Cognitive therapies. In Van Voorhis, P., Braswell, M., et al. (eds), Correctional Counseling and Rehabilitation, 3rd edition. Cincinnati, OH: Anderson Publishing Co., 163–85. McCord, W., McCord, J., Zola, I.V. 1969: Origins of Crime: A New Evaluation of the Cambridge-Somerville Youth Study. Montclaire, NJ: Patterson Smith.

McKeiver v. Pennsylvania, 403 U.S. 528 (1971). Mead, G.H. 1918. The psychology of punitive justice. American Journal of Sociology 23, 577–602. Merton, R. 1938: Social structure and anomie. American Sociological Review 3(5). Moone, J. 1997a: Juveniles in Private Facilities, 1991–1995. Washington, DC: U.S. Department of Justice. Moone, J. 1997b: States at a Glance: Juveniles in Public Facilities 1995. Washington, DC: U.S. Department of Justice. Myers, W.C., Burton, P., Sanders, P.D., Donat, K.M., Cheney, J., Fitzpatrick, T., Monaco, L. 2000. Project Back-On-Track at 1 year: a delinquency treatment program for early-career juvenile offenders. Journal of the American Academy of Child and Adolescent Psychiatry 39, 1127–34. People v. Lara, 432 P.2d 202 Cal (1967). Reiner, S.B., Kaufman, I. 1959: Character Disorders in Parents of Delinquents. New York: Family Service Association of America. Romig, D.A. 1978: Justice for Our Children: An Examination of Juvenile Delinquent Rehabilitation Programs. Lexington, MA: Lexington Books, D.C. Health and Company. Ross, R.R., Fabiano, E.A. 1985: Time to Think: A Cognitive Model of Delinquency Prevention and Offender Rehabilitation. Johnson City, TN: Institute of Social Sciences and Arts, Inc. Schall v. Martin, 467 U.S. 253 (1984). Snyder, H.N., Sickmund, M. 1999: Juvenile Offenders and Victims: 1999 National Report. Washington, DC: Office of Juvenile Justice and Delinquency Prevention. Stahl, A.L., Sickmund, M.H., Finnegan, T.A., Snyder, H.N., Pool, R.S., Tierney, N.J. (1999): Juvenile Court Statistics: 1996. Washington, DC: Office of Juvenile Justice and Delinquency Prevention. Stanford v. Kentucky, 492 U.S. 361 (1989). Sutherland, E. 1956: In Cohen, A.K., Lindesmith, A.R., Schuessler, K.F. (eds), The Sutherland Papers. Bloomington: University of Indiana Press, 8–10. Thompson v. Oklahoma, 487 U.S. 815 (1988). Thrasher, F. 1936: The Gang. Chicago: University of Chicago Press. Trojanowicz, R.C., Marsh, M., Schram, P.J. 2001: Juvenile Delinquency Concepts and Control. Upper Saddle River, NJ: Prentice-Hall. Wilkins v. Missouri, decided together with Stanford v. Kentucky, 492 U.S. 361 (1989).

41 Posttraumatic stress disorder in children and adolescents: clinical and legal issues JAMES E. ROSENBERG AND SPENCER ETH

Alan A. Stone, M.D., wrote that, ‘No diagnosis in the history of American psychiatry has had a more dramatic and pervasive impact on law and social justice than posttraumatic stress disorder … ’ (Stone 1993). His thoughts are particularly poignant as we survey the changing landscape of child and adolescent forensic psychiatry. The practitioner must be attuned to the strengths and limitations of his or her own qualifications, ethical obligations, and the current research and controversies that uniquely define the field. Cook (1996) summarizes the issues thus: ‘as new visitors (to the legal system), they must be alerted to old tricks familiar to adult forensic psychiatrists. The art and science of forensic psychiatry is both slowly evolving and rapidly changing. The practitioner must not only be clinically competent, but be wary of the multiple agendas of society, the law, and adversarial lawyers.’ The fundamental approach or focus of the child and adolescent forensic psychiatrist differs from his or her adult counterpart. According to Ash and Derdeyn (1997), ‘The forensic evaluation of an adult generally emphasizes providing data for the court, without any duty of care toward the person evaluated. For the three forensic issues that child psychiatrists most commonly face – child custody in divorce, disposition in abuse/neglect proceedings, and assessment of delinquents for juvenile courts – what is best for the child remains a central concern … quasi-therapeutic orientation.’ As reviewed in this chapter, the skill and knowledge base required to evaluate posttraumatic stress disorder (PTSD) in children and adolescents is highly specialized, and cannot be provided by analogy to adults. There is furthermore an increasing emphasis on the use of quantitative data, properly designed research studies, and standardized evaluation techniques in providing authoritative rather than impressionistic expert opinions in the courtroom (Ash and Derdeyn 1997).

PTSD in children has been an area of psychiatric focus since only the 1970s. Newman’s paper on the Buffalo Creek disaster (1976), and in particular, Terr’s detailed study of the 1976 Chowchilla kidnapping incident (1979) were landmark articles, and set the stage for a new era of inquiry into the psychiatric sequela of emotional trauma from infancy through adolescence. Prior to the Vietnam War, the assessment and formulation of psychic trauma in adults occurred largely within a Freudian framework (Boehnlein 1989). The American Psychiatric Association’s original Diagnostic and Statistical Manual (DSM) in 1952 referred to ‘gross stress reaction,’ while the DSM-II in 1968 employed ‘transient situational disturbance’ (Brett, Spitzer, and Williams 1988). The term ‘posttraumatic stress disorder’ was formally introduced into the psychiatric nomenclature with the publication of DSM-III in 1980. The DSM-III significantly differed from earlier editions by specifying a chronic PTSD syndrome. The United States Department of Veterans Affairs accepted the DSM-III diagnosis of PTSD, delayed type, allowing veterans for the first time since World War I to apply for service-connected disability a year or more after their periods of military service had expired. No specific reference to traumatized children was made until DSM-III-R, which was published in 1987 [American Psychiatric Association (APA) 1987]. In the DSM-IV, acute stress disorder was introduced as a short-term, early-onset disorder in response to emotional trauma, with an emphasis on dissociative symptoms (APA 1994). In 2000, the American Psychiatric Association published the DSM-IV-TR in which the diagnostic criteria of mental disorders, including PTSD and acute stress disorder, remain unchanged while the accompanying text has been updated to reflect changes in the field (APA 2000). A ‘Familial Pattern’ component has been added to the PTSD section to highlight research suggesting a genetic predisposition to the disorder.

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DIAGNOSTIC CRITERIA Despite the cautionary statement at the beginning of the DSM-IV (APA 1994), and now the DSM-IV-TR (APA 2000), regarding the use of the text and its diagnostic criteria in legal proceedings, the DSM remains the virtual standard throughout forensic psychiatry and psychology. The DSM-IV diagnostic criteria for PTSD are independent of the subject’s age, though features particular to children and adolescents are noted in the text and as annotations to the criteria (APA 2000). The diagnosis of PTSD requires that the individual first meet a threshold criterion of having suffered or experienced a traumatic event (Criterion A), followed by a triad of re-experiencing, avoidance and numbing, and hyperarousal symptoms (Criteria B, C, and D, respectively). To qualify as an emotional trauma, ‘the person experienced, witnessed, or was confronted with … actual or threatened death or serious injury, or a threat to the physical integrity of self or others … the person’s response involved intense fear, helplessness, or horror.’ The authors note that, in children, the response to trauma may consist of disorganized or agitated behavior (APA 2000). The nature of the emotional trauma for a child may extend beyond the boundaries of the momentary accident or act of violence, both in its duration and complexity. For example, the child victim may be forced to remain at the side of his or her injured or dead parent until help arrives. The direct impact of the trauma to the child may be extended by fears for the safety of loved ones who are not immediately accessible at the scene. Children may thus feel frightened, overwhelmed, or helpless long after the discrete ‘trauma’ has passed (Pynoos, Steinberg, and Goenjian 1996). Criterion B of the PTSD criteria in DSM-IV requires that the subject re-experience the traumatic event in at least one of several possible ways. Symptoms include intrusive, repetitive recollections; nightmares; re-experiencing the event as happening again in real time, e.g., flashbacks; intense psychological distress in response to traumarelated cues; or intense physiologic activation in response to such triggers or reminders (APA 2000). In children, re-experiencing phenomena can be developmentally quite distinct from those encountered in older teens and adults. Recollections may take the form of joyless, repetitive play that symbolizes some element of the trauma. Within a matter of weeks, nightmares can generalize into frightening dreams about monsters or other generic threats rather than preserve the trauma-specific content. Re-enactments of the traumatic experience, or some component thereof, can take the place of flashbacks (APA 2000). Alternatively, children may suffer intrusive, repetitive daydreams about the trauma during periods of relaxation or calm, such as at bedtime (Terr 1991). Criterion C involves three or more of the avoidance and numbing symptoms of PTSD. Possible symptoms

include cognitive avoidance of thoughts, feelings, or recollections that trigger heightened anxiety or negative, intrusive posttraumatic sequela; physical avoidance of people, places, or things that similarly rekindle some element of the posttraumatic anxiety syndrome; psychogenic amnesia for part or all of the traumatic event; loss of interest or pleasure in previously satisfying activities, i.e., anhedonia; lack of emotional connection or affection to significant others; loss of emotional range, e.g., loving or cheerful feelings; and fears or expectations of a truncated future (APA 2000). Clearly, the avoidance and numbing symptoms of PTSD overlap considerably with those of major depression, a common comorbid condition. In children, many of the elements of Criterion C can be difficult to elicit directly from the younger child, and necessitate an increased reliance on third-party sources of information, such as parents and teachers. As noted in the DSM-IV-TR, the sense of a foreshortened future may take the form of feelings by the child that he or she will never reach adulthood or other major milestones. They may engage in ‘omen formation,’ i.e., magical beliefs in having the ability to predict negative future events. Physical symptoms of anxiety, such as indigestion or headaches, are common in this age group (APA 2000). Criterion D requires the presence of two or more of five symptoms of autonomic hyperarousal: sleep disturbance; irritability or temper outbursts; subjective difficulties with distractibility or reduced concentration; hypervigilance; and increased startle reaction to commonplace sounds, such as the phone or doorbell ringing (APA 2000). In addition to the core features of PTSD in the DSMIV-TR, viz., the threshold criterion of the traumatic event followed by the triad of re-experiencing, avoidance and numbing, and hyperarousal symptoms, the diagnosis entails a number of supplemental and associated features. The symptoms of Criteria B, C, and D must last at least one month, and cause significant distress or impairment in functioning. The available specifiers include an ‘acute’ course of less than three months; a ‘chronic’ condition lasting three months or more; and ‘delayed type’ in which the onset of symptoms is at least six months posttrauma (APA 2000). In a variety of contexts, the subject’s PTSD may be further described as mild, moderate, or severe in duration (e.g., McDermott and Cvitanovich 2000). This specifier appears to be borrowed from the nomenclature for major depression. Strictly speaking, it is not available for PTSD within the DSM-IV-TR. The basic backbone of any mental disorder within the DSM-IV and DSM-IV-TR framework, including PTSD, is a constellation of symptoms that cause marked distress or impairment in one or more major domains of function. This criterion is not required for a diagnosis of PTSD in the tenth revision of the International Classification of Diseases (ICD-10) by the World Health Organization (WHO 1992), which in turn leads to a significantly higher percentage of individuals being diagnosed with PTSD

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under ICD-10 than DSM-IV (Peters, Slade, and Andrews 1999). Interestingly, PTSD is relatively unique among the major mood, anxiety, and psychotic disorders in lacking an exclusion criterion that the disorder has not been caused by a substance or underlying general medical condition. However, the differential diagnosis includes adjustment disorder; attention-deficit hyperactivity disorder (ADHD); acute stress disorder; a variety of mood, anxiety, and psychotic disorders; and conditions referable to a substance or medical condition (APA 2000). Another consideration of particular relevance to the forensic expert is, of course, malingering. In considering diagnostic alternatives, two interesting scenarios arise under DSM in subjects who meet only partial criteria for PTSD (McNally and Saigh 1993). If the subject suffers a stressor of lesser severity than an emotional trauma, as described under Criterion A, but goes on to exhibit re-experiencing, avoidance and numbing, and hyperarousal symptoms, the correct diagnosis would be adjustment disorder or anxiety disorder not otherwise specified (NOS). On the other hand, an individual who suffers a full-blown emotional trauma, but only responds with a partial syndrome of fear and avoidance, would most properly be classified with a specific phobia. With regard to other formulations of PTSD, Terr bifurcates the disorder into Type I and Type II based upon the characteristics of the trauma history. In Type I traumas, the subject experiences a single traumatic event, such as a car accident or violent crime, followed by the classic Criteria of PTSD as outlined above. In contrast, Type II traumas occur on a chronic or repetitive basis, such as years of childhood physical or sexual abuse. The predominant symptoms appear to be more geared towards physical and psychological survival: denial, repression, dissociation, and anger. Some victims may present with a hybrid of Types I and II (Terr 1991). Blank (1993) has described the marked variability in the onset, course, and proportions of symptoms in PTSD. In addition to acute, chronic, and delayed types, Blank has identified intermittent and recurrent forms. The re-experiencing, avoidance and numbing, and hyperarousal symptoms vary with the individual, the trauma, and over time in a particular case. The so-called ‘dose–response’ relationship between severity, proximity, and duration of the emotional trauma only partially correlated with the genesis of PTSD and its natural history (Blank 1993). While the onset and course of the disorder can be quite variable, symptoms resolve in roughly 50 per cent of cases within three months, with the remainder of patients having more chronic or waxing and waning symptoms (APA 2000). Despite these considerations, acute stress disorder must be contemplated as a distinct disorder from PTSD; a significant proportion of individuals who ultimately develop PTSD never qualified for a diagnosis of acute

stress disorder or only had a partial, subsyndromal version. For example, Harvey and Bryant (1999) followed automobile accident victims for two years post-event to ascertain the precursors and frequency of PTSD. Initially, in the early post-accident period, 13 per cent of victims met diagnostic criteria for acute stress disorder, and another 21 per cent had a subsyndromal version. At two years, 63 per cent of the patients with acute stress disorder had progressed to PTSD, whilst 70 per cent of the subjects who had only partially met criteria for acute stress disorder developed full-blown PTSD. An additional 13 per cent met the diagnostic criteria for PTSD without previously having elements of acute stress disorder. Within the differential diagnosis of PTSD, particular attention should be paid to the question of ADHD given the potential overlap in behavioral manifestations and the markedly different treatment approaches required for the two conditions. McLeer and colleagues compared sexually abused to non-abused children who presented to a psychiatric clinic. In both groups, ADHD was the most common diagnostic entity. However, 42.3 per cent of the subjects in the sexually abused group also met criteria for PTSD (McLeer et al. 1994). The impulsivity, hyperactivity, and interpersonal problems encountered in PTSD can be misinterpreted as ADHD (Weinstein, Staffelbach, and Biaggio 2000). The treatment for PTSD and ADHD are substantially different such that a misdiagnosis of one as the other can lead to either ineffective or even deleterious therapy. For example, inadvertently treating PTSD with psychostimulants, the first-line medications for ADHD, would potentially worsen problems with anxiety, irritability, autonomic activation, and insomnia. In children with pre-existing ADHD, a comorbid PTSD can be more severe than otherwise expected given the traumatic event and other factors (Martini et al. 1990).

EPIDEMIOLOGY According to community-based studies, the overall lifetime prevalence of PTSD has been estimated at 8 per cent (APA 2000). Among 8098 respondents who participated in the National Comorbidity Survey, 60.7 per cent of men and 51.2 per cent of women reported having experienced at least one traumatic event in their lifetimes. Most subjects in fact had suffered two or more such incidents. The risk of developing PTSD varied significantly with the type of trauma. Females more commonly experienced all three types of traumas that carried the highest incidence of consequent PTSD – rape, childhood physical abuse, and childhood neglect (Kessler et al. 1999). The National Comorbidity Study has, however, been criticized for artifactually raising the prevalence of PTSD by collecting data only from subpopulations with prior histories of mental illness (Deykin 1999).

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According to epidemiologic studies, PTSD commonly occurs in conjunction with one or more other psychiatric disorders. In adults, the highest comorbidities were observed between PTSD and depressive, substance use, and other anxiety disorders (Brady et al. 2000). Having laid a foundation for epidemiologic data regarding PTSD in adults, the overall prevalence of the disorder in children and adolescents is uncertain. Widely varying estimates have been given, depending upon the nature of the trauma and other risk factors, from 5 per cent to 75 per cent (Dulcan and Martini 1999). While these discrepancies are no doubt in part due to differential risk factors for developing PTSD, the research literature has also been plagued by problems with sampling methods, interview techniques, psychometric instruments, and other methodologic weaknesses and inconsistencies (Eth 1990). Garmezy (1986) has reviewed concerns regarding research issues in childhood PTSD, including generalizability of limited results to other races and communities.

RISK FACTORS In addition to the threshold traumatic event, several other putative risk factors may affect the likelihood that a particular trauma victim will go on to develop PTSD. Those factors include victim characteristics, the specifics of the trauma, environmental factors, and the availability of social and family support systems (Pfefferbaum 1997; Deykin 1999). A meta-analysis of risk factors in adults, including the significant contributions of childhood and adolescent antecedents, has been meticulously reviewed (Brewin, Andrews, and Valentine 2000). According to the DSM-IV-TR, genetics may constitute a risk factor in the genesis of PTSD (APA 2000). For example, in a study of veterans by True and Lyons, heritable elements accounted for about 30 per cent of the risk of developing re-experiencing, avoidance and numbing, and hyperarousal symptoms as compared to environmental factors. The one exception was DSM-IV criterion B(1) – intrusive memories – which was largely environmental in origin, i.e., in the range of 90 per cent (True and Lyons 1999). Physical and emotional proximity factors are significant characteristics of the traumatic event itself. An event that is physically closer to the individual, all else being equal, is more traumatic, as is an event that impacts the subject or a loved one as opposed to a stranger (Pfefferbaum 1997). This phenomenon is eloquently illustrated by the study of the sniper attack on an elementary school playground by Pynoos et al. (1987). Students who were closest to the gunfire were most likely to manifest symptoms of PTSD. Those individuals who were further away but still developed PTSD tended to have additional risk factors. Other students with little or no exposure to the traumatic

event who had close relationships with pupils who were injured or killed, also experienced an increased risk of PTSD. On the other hand, proximity to the danger carries less weight when the perceived threat is vague or intangible, as in the case of Three Mile Island (Handford et al. 1986). Traumas of human origin, such as rape, are considered to be more potent triggers of PTSD than natural disasters, such as a hurricane or earthquake (APA 2000). Simon (1995) suggests that, ‘The injured person usually feels that a man-made stressor is preventable, whereas natural disasters are unavoidable acts of God.’ In her review of the literature, Pfefferbaum found mixed, inconsistent results regarding the effect of gender on the likelihood of developing PTSD. Some studies reported a higher rate in females, others a higher rate in males, and a third group of studies concluded that boys and girls developed PTSD with equal frequency (Pfefferbaum 1997). As noted earlier, the National Comorbidity Survey reported that the types of traumas that were most strongly linked to the development of PTSD occurred more often in females (Kessler et al. 1999). The National Women’s Study was a prospective, multivariate analysis of the risk factors in 3006 women for rape, sexual assault, and for the development of PTSD as a result of sexual or physical assault (Acierno et al. 1999). A set of risk factors was identified for each of the four groups: rape victims; physical assault victims; PTSD secondary to rape; and PTSD due to physical assault. Factors that appeared to increase the rate of PTSD in rape victims included a history of an affective disorder, alcohol abuse, or the presence of bodily injuries inflicted by the perpetrator. In addition to gender, qualitative differences are seen in how various pediatric age groups respond to emotional trauma and express PTSD symptoms. Older children and adolescents are more likely to develop re-experiencing and hyperarousal symptoms, while younger children are more inclined to present with avoidance symptoms (Schwarz and Kowalski 1991). Furthermore, teens may utilize aggressive or other acting-out behaviors to externalize stress and anxiety, which can lead to school, family, substance use, sexual, and legal problems (Luthar and Zigler 1991; Deykin 1999). As addressed above, the text and diagnostic criteria of DSM-IV-TR discuss several ways in which younger children manifest PTSD symptoms differently from older children, adolescents, and adults (APA 2000). The comorbidity of substance use disorders and PTSD in teens has received attention as a problem of increasing importance. For example, Deykin and Buka (1997) studied 297 adolescents in a residential drug treatment program. Roughly 75 per cent endorsed a history of significant emotional trauma, and about 30 per cent qualified for a diagnosis of PTSD. However, striking gender differences emerged. In boys, high-risk substancerelated behaviors led to being victimized in emotionally traumatic events, in turn placing them at risk for PTSD.

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In contrast, adolescent girls were more likely to first suffer the trauma, which then led to later substance abuse or dependence as a means of self-medication or perhaps as part of a pattern of high-risk behaviors secondary to preexisting PTSD. Thus, in civil litigation, drug abuse in a traumatized teen may be a second, distinct and potentially far-reaching injury caused by the event in question. For many years, the issue of whether intelligence served as a protective factor against PTSD remained controversial. More recent studies suggest that cognitive deficits may increase the risk of developing PTSD in at least two ways. Cognitively impaired individuals often manifest poor judgment, which renders them more likely to be exposed to an emotionally traumatic situation. Furthermore, such individuals may have limited resources to process and cope with the trauma and its psychiatric sequela compared with the average victim (Orr and Pitman 1999). Cultural and racial factors may be influential in the genesis and natural history of PTSD in various populations, but have not been adequately studied. For example, Latino children and adolescents are at increased risk for PTSD and other psychiatric disorders due to such adversities as forced immigration from war-torn or impoverished homelands; high rates of economic hardship, gang violence, and pregnancy; problems with school truancy and dropout. Interestingly, the psychosocial impact of immigration and acculturation in Latino youths depended most upon how well their mothers appeared to handle the same stressors (Garrison, Roy, and Azar 1999). In general, the resilience and coping styles of parents in response to emotional trauma dictate to a substantial degree the psychiatric outcomes in their children. In McFarlane’s classic study of the Australian bushfire disaster, he found that parental factors were more predictive of chronicity of PTSD symptoms in the child victims than the degree of exposure (McFarlane 1987). Similarly, psychopathology in the parent, particularly the mother, was found to significantly affect the outcomes of traumatized children in studies of pediatric cancer (Stuber et al. 1997) and automotive accidents (de Vries et al. 1999). In civil litigation, this finding can serve to the advantage of either plaintiff or defendant. On the one hand, the child’s emotional problems may be found to be related more to pre-existing maternal psychopathology rather than the event at issue. On the other hand, concomitant traumatization of both the child and mother may have far-reaching benefits to the plaintiff ’s case if the child’s recovery is slowed or even damaged by the mother’s own symptoms that have rendered her unable to provide essential nurturance and support. As noted earlier, the type and severity of the traumatic event significantly affect the genesis and course of PTSD in children and adolescents. Childhood sexual abuse illustrates this principle; a number of factors influence whether PTSD, or an array of other psychiatric disorders, will emerge in response to this dark trauma. The types of

sexual abuse that are most likely to trigger PTSD include the application of physical force by the perpetrator, genital contact, or if the offender is a male authority figure in the victim’s life, such as the father. In fact, sexual abuse by a significant other, such as a family member, places the child at greater risk than perpetration by a stranger (Browne and Finkelhor 1986). A number of studies have considered whether childhood sexual abuse leads to prostitution. Using a series of logistical models, Brannigan and Gibbs Van Brunschot (1997) examined an array of potential risk factors. Negative home life and sexual precocity increased the likelihood of both prostitution and adolescent run-away behaviors. Sexual abuse was not a separate risk factor. The rate of PTSD is elevated among populations of foster-care children. A recent study compared three groups: victims of physical abuse; sexual abuse; and no history of abuse. The group that had suffered sexual abuse had the highest risk of PTSD, viz. 64 per cent, whilst 42 per cent of children who had experienced physical abuse qualified for a diagnosis of PTSD. Of note, 18 per cent of the non-abused children also had PTSD, presumably due to other types of emotional trauma, such as witnessing gang or domestic violence (Dubner and Motta 1999). With regard to other types of traumatic situations of medico-legal relevance, the risk of childhood PTSD in motor vehicle accidents has been studied. In one report, using a prospective cohort study paradigm, researchers found that 25 per cent of youths qualified for a diagnosis of PTSD, akin to that seen in victims of violent crimes (de Vries et al. 1999). Interestingly, the risk for developing PTSD correlated better with older age or a parent with PTSD rather than such factors as physical injury in the child.

PSYCHOPHYSIOLOGIC STUDIES As Stone observed, part of the appeal of PTSD to the plaintiff ’s attorney is the opportunity to forge, for the sake of jury impact, the impression of a physical disorder from the emotional; medical rather than psychological (Stone 1993). The latest PTSD literature indeed bristles with an array of biologic studies, searching for markers to confirm PTSD or, conversely, to detect malingering with the medical authority of electrophysiologic tests in neurology or structural imaging in orthopedics. In assessing the value of quantitative electroencephalogram (QEEG) or functional imaging studies, for example, the prejudicial value to the jury of brightly colored images and technical jargon must be weighed against concerns of research shortcomings and lack of specificity. In any case, it appears that the future of PTSD-related civil litigation and criminal defenses rest with whoever will find the ‘magic bullet,’ i.e., the truly definitive biochemical, electrophysiologic, or imaging study of high specificity and sensitivity.

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A wide assortment of psychophysiologic research modalities has been utilized. Putative abnormalities have been found in such varied domains as the autonomic nervous system, a variety of event-related potentials, multiple neurotransmitters, the hypothalamic-pituitary-adrenal axis, neuropsychological studies, immune responses, and structural and functional imaging. Of note, findings particular to children with PTSD have also been reported, including possible alterations in neuroendocrine markers, the limbic cortex, and brain electrical activity (van der Kolk 1997; Glaser 2000). One of the most promising areas of research regarding biologic markers for PTSD involves exploiting the increased physiologic responsiveness of the victim to trauma-related cues, i.e., DSM-IV criterion B(5) (APA 2000). However, a number of factors confound its use. Individuals with the appropriate specific phobia or a past history of PTSD, now resolved or in remission, may demonstrate the same reactivity. Responsiveness to the test also varies as a function of symptom severity, losing sensitivity in mildly symptomatic subjects (Orr 1997). Structural and functional imaging studies are available, primarily in the adult literature. For example, Bremner et al. (1997) have reported the results of a preliminary study of magnetic resonance imaging (MRI) findings in adults with histories of PTSD secondary to childhood abuse. Compared to matched controls, subjects with PTSD had reduced volumes in the left hippocampus, which could have particular implications for memory disturbances in PTSD. The significance of past PTSD in producing a falsepositive test has also been encountered in other settings, such as psychophysiologic markers of adult survivors of childhood trauma. Three groups of women who had been sexually abused as youths were compared, using measures of heart rate, skin conductance magnitude, and skin conductance habituation: current PTSD; prior history of PTSD with no current symptoms; and no history of PTSD. Similar derangements were found in the subjects with current and past PTSD, suggesting that the heightened reactivity may either represent a biologic predisposition to PTSD or a permanent physiologic change following the onset of PTSD (Metzger et al. 1999).

ASSESSMENT Standards and guidelines have been published pertaining to the clinical examination of children and adolescents with regard to the issue of PTSD [Newman, Kaloupek, and Keane 1996; American Academy of Child and Adolescent Psychiatry (AACAP) 1998; Perrin, Smith, and Yule 2000]. A wide array of assessment instruments are available to assist the evaluator, including parent and teacher questionnaires, clinician-administered checklists, self-report inventories, and structured personality

assessment, e.g., the MMPI-2 (Newman, Kaloupek, and Keane 1996). The AACAP clearly states that such tools are appropriately used only as adjuncts, and are not substitutes for careful, detailed face-to-face interviews (AACAP 1998). Drake, Bush, and Van Gorp (2001) have recently reviewed the sophisticated use of such instruments, as part of a multimodal evaluation approach. One of the most dramatic ways in which younger children can differ from adult subjects with PTSD is with regard to the pattern of symptom expression. The number and proportion of re-experiencing, avoidance and numbing, and autonomic hyperactivity symptoms in the child can vary substantially (AACAP 1998). Functionally, a partial PTSD syndrome in children may ultimately prove to be indistinguishable from those individuals who meet full DSM-IV criteria. The forensic examiner faces a number of hurdles, including risk of genuine or perceived bias, possessing and maintaining proper qualifications, the scope of the examination, and the availability of sufficient corroborative third-party sources of information. A particular pitfall also faces the treating child psychiatrist who agrees to serve as expert witness, i.e., the issue of double agency (Strasburger, Gutheil, and Brodsky 1997). The psychiatrist who provides clinical evaluation and treatment brings the perspective of advocate who largely accepts the patient’s subjective perceptions and statements at face value. In contrast, the forensic expert, by virtue of education, training, and experience, supposedly brings a more objective, unbiased approach to the courtroom, emphasizing the value of additional sources of information. These databases may include third-party collateral interviews, structured paper-and-pencil testing, extensive records from a number of settings, and even surveillance videotapes. Quinn (1995) has specifically addressed the issue of forensic examination of the child or adolescent regarding PTSD. She emphasizes a number of highly cogent points, such as the array of PTSD features that are unique to younger children; the details of the forensic examination process, particularly the importance of employing a developmental perspective; and the need to possess adequate qualifications and training to properly proceed with such specialized assessments. Quinn also reviews the several ways in which faulty or deficient evaluation procedures can lead to artificially exaggerated or understated rates of detection of emotional trauma, and in turn, PTSD. Factors that reduce the rate of diagnosis include ignorance, denial, or minimization by teachers, parents, and other adults, and the lack of expressiveness in child subjects, especially younger, less verbally sophisticated individuals. In contrast, examples of factors that may lead to over-reporting of emotional trauma and PTSD are poor implementation or standards for state mandatory reporting requirements, and incompetence or bias of some so-called ‘trauma therapists’ (Quinn 1995).

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PTSD AND MEMORY Posttraumatic stress disorder involves two fundamental disturbances in memory. The traumatic event primes the individual to experience repetitive, intrusive memories and other re-experiencing phenomena. In addition, some PTSD patients suffer from psychogenic amnesia in which partial or complete information regarding the trauma is rendered inaccessible to recall, despite an intact memory apparatus (McNally 1997). Ruminative thinking, hyperarousal, and other factors can also lead to non-specific impairments in the attention and concentration required to encode new information presented after the trauma. Quinn reviewed the literature regarding childhood trauma and memory as it pertains to examination by the forensic child psychiatrist. She discusses a number of dysfunctional memory processes seen in the pediatric population, including omission of memory segments about the most traumatic element of the perceived threat; alterations in the details of the traumatic event; the use of omens or premonitions; denial, minimization, and repression; and dissociation (Quinn 1995). The neuroanatomical correlates of intrusive, unpleasant memories of a past emotional trauma have been studied using positron emission tomography (PET) in women with childhood histories of sexual abuse. Matched subjects with and without PTSD were provided with neutral and trauma-related cues during imaging. Compared to the control sample, females with PTSD showed alterations in brain glucose metabolism in several sites in response to triggering stimuli: medial prefrontal cortex, visual association areas, and the hippocampus (Bremner et al. 1999). Ash and Derdeyn (1997) analyzed the mental health literature with regard to the validity of child victim testimony in cases involving allegations of sexual abuse. They conclude that, in general, children are able to adequately recall what happened to them, with the caveat that younger children are particularly susceptible to suggestion and manipulation by adults. The authors also sound a cautionary note that other factors may also lead to distortions in the child’s testimony, such as the conflicting goals and motivations in a child custody dispute or the effects of multiple individual or group interviews in reshaping the victim’s perception of the facts. Indeed, the manner in which the forensic examiner or attorney questions the child while under stress can lead to significant problems with suggestibility or further emotional disturbance for the victim. The child may fall victim, for example, to misleading questions, intimidation, questions involving false premises, or the use of jargon or overly adult vocabulary (Goodman, G.S., et al. 1999). The process of testifying in a civil or criminal case can even be an additional source of emotional trauma for the already suffering or damaged child witness/victim (Eth 1988). The presence of a significant psychiatric disorder, such as PTSD, schizophrenia, or other conditions furthermore

does not per se invalidate the veracity of witness or victim testimony. Goodman, L.A., et al. (1999) studied a variety of adult victims of violent crimes who also had active major mental illness. In general, when proper examination protocols were followed, reliable information regarding the traumatic event could be elicited. Corroboration with additional sources of data, as in any good forensic evaluation, is of course encouraged.

TREATMENT ISSUES In civil litigation, the forensic psychiatrist may be called upon to comment upon a number of treatment-related issues in the child or adolescent with PTSD. They include the role of inadequate or inappropriate treatment of a pre-existing disorder in mitigating damages; the contributory effects of therapist bias, adverse medication side effects, and other treatment complications; and an estimate of future treatment needs, costs, and long-term prognosis. Pfefferbaum (1997) has noted that chronic PTSD in children can have far-reaching effects in disrupting the normal cascade of developmental milestones. Treatment issues can also be an important aspect of expert evaluation and testimony in a criminal case, such as a matter involving an adolescent with PTSD who has been accused of a violent offense. The trier of fact may be receptive to reasonable testimony regarding the role of the defendant’s PTSD that had been left untreated or inadequately treated, particularly in penalty phase. A carefully outlined, comprehensive treatment plan with adequate monitoring and safeguards may lead to better success in obtaining probation instead of incarceration in select cases. A panoply of treatment interventions are available in PTSD, though most are better established in adult populations. First-line modalities that may be used alone or more typically in combination include cognitivebehavior psychotherapy, family and psychosocial interventions, eye movement desensitization and reprocessing (EMD/R), and drug therapies. Preliminary research regarding pharmacotherapy in adults suggests that selective serotonin re-uptake inhibitors (SSRIs) are the preferred medications for PTSD, associated depressions and other comorbid conditions. Other agents include benzodiazepines, monoamine oxidase inhibitors (MAOIs), and clonidine. Unfortunately, the safety and efficacy of medication treatments for children and adolescents with PTSD, particularly in younger children, remain largely unexplored, and are built mainly upon analogies borrowed from the adult literature (Donnelly, Amaya-Jackson, and March 1999).

LEGAL ISSUES A variety of issues pertinent to the legal aspects of PTSD in children and adolescents have already been touched

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upon in the course of explicating the available information regarding the epidemiology, risk factors, phenomenology, evaluation, and treatment of individuals in this unfortunate population. The child forensic psychiatrist must have considered and be familiar with a number of key issues that span the evaluation and opinion process. First, as noted earlier, and discussed by Quinn (1995), particular expertise by virtue of education, training, and experience is required, particularly with prepubertal age children. Knowledge and skill in the subspecialties of clinical and forensic assessment in this population is essential, unless the expert is simply offering opinions about one specific area, such as psychopharmacology, without addressing broader issues. In accepting the case referral for a civil or criminal consultation, a number of other considerations surface in addition to adequate expertise. The expert must assure that there is no conflict or question of bias with regard to prior relationships with the parties involved. The attorney’s expectations, timelines for each step of the process, and expectations regarding fees and payment must also be made explicit. The expert has a responsibility to consider early and discuss with the attorney the need for adequate corroborative third-party records, psychological testing, collateral phone interviews, and other important sources of information that help distinguish the forensic assessment from the clinical–therapeutic evaluation. As discussed previously, the expert must have an appreciation for the variability of the presentations in PTSD in children and adolescents, based upon age, developmental phase, nature of the traumatic event, and other characteristics. A rigid, uncritical application of the DSM-IV criteria for PTSD that fails to address the fluctuations in re-experiencing, avoidance and numbing, and hyperarousal symptoms is a disservice to the subject. A partial PTSD syndrome may lead to the same degree of functional impairment as a complete disorder by DSMIV standards (AACAP 1998), which has implications for civil damages. Moreover, the role of common comorbid depressive, anxiety, substance use and other disorders must be evaluated with regard to the degree of emotional distress, impairment, treatment needs, and prognosis. Plaintiffs can also recover monetary damages for emotional injury that does not meet the criteria for a specific DSM-IV disorder. PTSD can become a central issue in a wide array of criminal, civil, and administrative matters. Although some are less relevant to children and adolescents, they include criminal defenses during guilt phases; penalty phase issues of mitigation; workers’ compensation; fitness for duty in law enforcement; administrative evaluations of lawyers, physicians and other licensed professionals; and of course, civil tort law in psychic personal injury claims. PTSD could also potentially be an issue in civil and criminal competencies, such as the capacity to give a voluntary and honest confession or plea.

In the criminal arena, PTSD can be offered affirmatively as an insanity defense, or as part of heat of passion, imperfect self-defense, or mens rea defense in which a specific element required for the crime may be negated. The use of PTSD in the insanity defense is severely limited, both by the relative paucity of states that allow a volitional component, and the restrictions and limitations imposed by those few states that do with regard to issues of what constitutes a serious mental illness, evidence of planning or preparation for the crime, and other factors (Melton et al. 1997). The retrospective examination of a defendant’s mental state at the time of an alleged criminal offense is always problematic, but can be particularly difficult in the case of PTSD. Such individuals may have relatively few or no mental health treatment records around that time compared to a schizophrenic or bipolar patient. Despite advances in imaging and other studies of biologic markers, the examination remains largely based upon subjective, self-serving statements by the defendant. Psychometric testing is likewise less robust for PTSD than for major mood and psychotic disorders. Intervening periods of substance abuse, other stressors, and malingering further obscure the evaluation process (Melton et al. 1997). In the arena of civil litigation, personal injury suits, including those involving mental health factors, are matters of tort law. A tort is a civil wrong committed by one party towards another, other than breach of contract (Gutheil and Appelbaum 2000). There are four elements to the tort: a duty owed by one party towards another; a breach of that duty; the breach caused injury to the second party; and the breach was a proximate (or similar formulation) cause of that injury. Torts can involve intentional infliction of emotional distress, negligent infliction of emotional distress, or strict liability, for example, in defective product cases (Melton et al. 1997). Stone has reviewed the ways in which the diagnosis of PTSD has revolutionized the psychiatric personal injury litigation for the plaintiff ’s attorney (Stone 1993). As noted earlier, it renders ‘scientific’ and ‘medical’ the previously intangible, unappealing notions of some sort of mental injury or process. Since PTSD is incident-specific, the re-experiencing symptoms can implicitly solve the issue of causation. In cases of intentional infliction of emotional distress, expert testimony can be offered regarding the ‘outrageousness’ of the defendant’s conduct; it had to be outrageous in order to rise to the level of causing an emotional trauma and PTSD. In civil cases alleging negligent infliction of emotional distress, PTSD has been used by plaintiffs’ attorneys in attempts to push back the zone of danger doctrine from physical injury to physical contact to zone of danger to indirect contact with no potential for physical harm. This in fact accords with the broader formulation of what constitutes a trauma in DSM-IV (APA 1994) and DSM-IV-TR (APA 2000), as well as key case studies in the child PTSD literature in

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which loved ones, school peers, and other indirect victims have developed PTSD symptoms. On the other hand, the shift in criteria from DSM-III-R (APA 1987) to DSM-IV (APA 1994) has also had a theoretical negative impact for plaintiff ’s litigation. In the threshold criterion for the traumatic event, the DSMIII-R specified that the event be ‘markedly distressing to almost anyone.’ This potentially solved the issue of foreseeability in claims of intentional infliction of emotional distress, but has been dropped in DSM-IV. Negligent infliction of emotional distress primarily arises in product liability and bystander recovery cases (Melton et al. 1997). In the majority of states, the bystander/plaintiff must be in the ‘zone of danger’ imposed by the defendant, and must be a family member or relative of the victim. However, in some jurisdictions, the plaintiff need not be present at the time of the incident, and in other states, the requirement that the bystander/plaintiff be related to the victim is dropped. An example of the former would be a parent running out into the street to find that his or her child had been struck down by an automobile. States impose limitations on plaintiff recovery, e.g., the resulting psychiatric disorder must be substantial and result in verifiable symptoms, which can be particularly problematic with PTSD (Melton et al. 1997).

CONCLUSION Posttraumatic stress disorder is a fascinating, complex and rapidly changing field of inquiry. It poses both significant rewards and potential pitfalls to the forensic examiner. The expert must be properly qualified, take care at each step to avoid issues of bias or deficiency, and have an adequate appreciation of the clinical and forensic factors that are relevant to PTSD in general and specific to the disorder in youths, especially in prepubertal children.

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Posttraumatic stress disorder in children and adolescents: clinical and legal issues 405 Donnelly, C.L., Amaya-Jackson, L., March, J.S. 1999. Psychopharmacology of pediatric posttraumatic stress disorder. Journal of Child and Adolescent Psychopharmacology 9, 203–20. Drake, E.B., Bush, S.F., van Gorp, W.G. 2001: Evaluation and assessment of PTSD in children and adolescents. In Eth, S. (ed.), PTSD in Children and Adolescents. Review of Psychiatry, Volume 20. Washington, DC: American Psychiatric Publishing, Inc., 1–31. Dubner, A.E., Motta, R.W. 1999. Sexually and physically abused foster care children and posttraumatic stress disorder. Journal of Consulting and Clinical Psychology 67, 367–73. Dulcan, M.K., Martini, D.R. 1999: Concise Guide to Child and Adolescent Psychiatry. Washington, DC: American Psychiatric Press, Inc., 137. Eth, S. 1988. The child victim as witness in sexual abuse proceedings. Psychiatry 51, 221–32. Eth, S. 1990: Post-traumatic stress disorder in childhood. In Hersen, M., Last, C.G. (eds). Handbook of Child and Adult Psychopathology: A Longitudinal Perspective. New York: Pergamon Press, 263–74. Garmezy, N. 1986. Children under severe stress: critique and commentary. Journal of the American Academy of Child Psychiatry 25, 384–92. Garrison, E.G., Roy, I.S., Azar, V. 1999. Responding to the mental health needs of Latino children and families through school-based services. Clinical Psychology Reviews 19, 199–219. Glaser, D. 2000. Child abuse and neglect and the brain – a review. Journal of Child Psychology and Psychiatry 41, 97–116. Goodman, G.S., Redlich, A.D., Qin, J., et al. 1999: Evaluating eyewitness testimony in adults and children. In Hess, A.K., Weiner, I.B. (eds), The Handbook of Forensic Psychology. New York: John Wiley & Sons, 218–72. Goodman, L.A., Thompson, K.M., Weinfurt, K., et al. 1999. Reliability of reports of violent victimization and posttraumatic stress disorder among men and women with serious mental illness. Journal of Traumatic Stress 12, 587–99. Gutheil, T.G., Appelbaum, P.S. 2000: Clinical Handbook of Psychiatry and the Law, 3rd edition. Philadelphia: Lippincott Williams & Wilkins. Handford, H.A., Mayes, S.D., Mattison, R.E., et al. 1986. Child and parent reaction to the Three Mile Island nuclear accident. Journal of the American Academy of Child Psychiatry 25, 346–56. Harvey, A.G., Bryant, R.A. 1999. The relationship between acute stress disorder and posttraumatic stress disorder: a 2-year prospective evaluation. Journal of Consulting and Clinical Psychology 67, 985–8. Kessler, R.C., Sonnega, A., Bromet, E., Hughes, M., Nelson, C.B., Breslau, N. 1999: Epidemiological risk factors for trauma and PTSD. In Yehuda, R. (ed.), Risk Factors for Posttraumatic Stress Disorder. Washington, DC: American Psychiatric Press, Inc., 23–59.

Luthar, S.S., Zigler, E. 1991. Vulnerability and competence: a review of research on resilience in childhood. American Journal of Orthopsychiatry 61, 6–22. Martini, D.R., Ryan, C., Nakayama, D., Ramenofsky, M. 1990. Psychiatric sequelae after traumatic injury: the Pittsburgh Regatta Accident. Journal of the American Academy of Child and Adolescent Psychiatry 29, 70–5. McDermott, B.M., Cvitanovich, A. 2000. Posttraumatic stress disorder and emotional problems in children following motor vehicle accidents: an extended case series. Australian and New Zealand Journal of Psychiatry 34, 446–52. McFarlane, A.C. 1987. Posttraumatic phenomena in a longitudinal study of children following a natural disaster. Journal of the American Academy of Child and Adolescent Psychiatry 26, 764–9. McLeer, S.V., Callaghan, M., Henry, D., et al. 1994. Psychiatric disorders in sexually abused children. Journal of the American Academy of Child and Adolescent Psychiatry 33, 313–19. McNally, R.J. 1997. Implicit and explicit memory for trauma-related information in PTSD. Annals of the New York Academy of Sciences 821, 219–24. McNally, R.J., Saigh, P.A. 1993: On the distinction between traumatic simple phobia and posttraumatic stress disorder. In Davidson, J.R.T., Foa, E.B. (eds), Posttraumatic Stress Disorder: DSM-IV and Beyond. Washington, DC: American Psychiatric Press, Inc., 207–12. Melton, G.B., Petrila, J., Poythress, N.G., Slobogin, C. 1997: Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals, 2nd edition. New York: The Guilford Press. Metzger, L.J., Orr, S.P., Berry, N.J., et al. 1999. Physiologic reactivity to startling tones in women with posttraumatic stress disorder. Journal of Abnormal Psychology 108, 347–52. Newman, C.J. 1976. Children of disaster: clinical observations at Buffalo Creek. American Journal of Psychiatry 133, 306–12. Newman, E., Kaloupek, D.G., Keane, T.M. 1996: Assessment of posttraumatic stress disorder in clinical and research settings. In van der Kolk, B.A., McFarlane, A.C., Weisaeth, L. (eds), Traumatic Stress: The Effects of Overwhelming Experience on Mind, Body, and Society. New York: The Guilford Press, 242–75. Orr, S.P. 1997. Psychophysiologic reactivity to traumarelated imagery in PTSD: Diagnostic and theoretical implications in recent findings. Annals of the New York Academy of Sciences 821, 114–24. Orr, S.P., Pitman, R.K. 1999: Neurocognitive risk factors for PTSD. In Yehuda, R. (ed.), Risk Factors for Posttraumatic Stress Disorder. Washington, DC: American Psychiatric Press, Inc., 125–41. Perrin, S., Smith, P., Yule, W. 2000. Practitioner review: the assessment and treatment of post-traumatic stress disorder in children and adolescents. Journal of Child Psychology and Psychiatry 41, 277–89.

406 Family law and domestic relations Peters, L., Slade, T., Andrews, G. 1999. A comparison of ICD10 and DSM-IV criteria for posttraumatic stress disorder. Journal of Traumatic Stress 12, 335–43. Pfefferbaum, B. 1997. Posttraumatic stress disorder in children: a review of the past 10 years. Journal of the American Academy of Child and Adolescent Psychiatry 36, 1503–11. Pynoos, R.S., Steinberg, A.M., Goenjian, A. 1996: Traumatic stress in childhood and adolescence: recent developments and current controversies. In van der Kolk, B.A., McFarlane, A.C., Weisaeth, L. (eds), Traumatic Stress: The Effects of Overwhelming Experience on Mind, Body, and Society. New York: The Guilford Press, 331–58. Quinn, K.M. 1995: Guidelines for the psychiatric examination of posttraumatic stress disorder in children and adolescents. In Simon, R.I. (ed.), Posttraumatic Stress Disorder in Litigation. Washington, DC: American Psychiatric Press, Inc., 85–98. Schwarz, E.D., Kowalski, J.M. 1991. Malignant memories: PTSD in children and adults after a school shooting. Journal of the American Academy of Child and Adolescent Psychiatry 30, 936–44. Simon, R.I. 1995: Forensic psychiatric examination of PTSD claimants, In Simon, R.I. (ed.), Posttraumatic Stress Disorder in Litigation. Washington, DC: American Psychiatric Press, Inc., 31–84.

Stone, A.A. 1993. Post-traumatic stress disorder and the law: critical review of the new frontier. Bulletin of the American Academy of Psychiatry and the Law 21, 23–36. Strasburger, L.H., Gutheil, T.G., Brodsky, A. 1997. On wearing two hats: role conflict in serving as both psychotherapist and expert witness. American Journal of Psychiatry 154, 448–56. Stuber, M.L., Kazak, A.E., Meeske, K., et al. 1997. Predictors of posttraumatic stress symptoms in childhood cancer survivors. Pediatrics 100, 958–64. Terr, L. 1979. Children of Chowchilla: a study of psychic trauma. Psychoanalytic Study of the Child 34, 552–623. Terr, L.C. 1991. Childhood traumas: an outline and overview. American Journal of Psychiatry 148, 10–20. True, W.R., Lyons, M.J. 1999: Genetic risk factors for PSTD: a twin study. In Yehuda, R. (ed.), Risk Factors for Posttraumatic Stress Disorder. Washington, DC: American Psychiatric Press, Inc., 68–71. van der Kolk, B.A. 1997. The psychobiology of posttraumatic stress disorder. Journal of Clinical Psychiatry 58(suppl.), 16–24. Weinstein, D., Staffelbach, D., Biaggio, M. 2000. Attentiondeficit hyperactivity disorder and posttraumatic stress disorder: differential diagnosis in childhood sexual abuse. Clinical and Psychological Reviews 20, 359–78. World Health Organization. 1992: The ICD-10 Classification of Mental and Behavioral Disorders: Clinical Descriptions and Diagnostic Guidelines. Geneva.

42 Forensic aspects of suicide and homicide in children and adolescents PETER ASH, RICHARD J. GERSH AND STEPHEN B. BILLICK

Homicide and suicide are, respectively, the second and third leading causes of death for adolescents aged fifteen to nineteen years (National Center for Health Statistics 2001). Society often expects psychiatry to be able to accurately predict and effectively prevent suicide and homicide, despite realistic limitations in these areas. In a treatment context, clinicians must recognize the children and adolescents most at risk for violence and take appropriate steps. In a forensic context, cases of homicide and suicide are frequently the focus of court scrutiny, and forensic psychiatrists frequently play a role in the adjudication of such cases.

SUICIDE Epidemiology and demographics During the past few decades, adolescent suicide rates have been quite variable, tripling from 1955 to 1979 (Brent et al. 1988), then increasing slowly to a peak in 1991, before falling back to the rates of the 1980s (National Center for Health Statistics 2000). It is unclear why adolescent suicide rates increased through the early 1990s and then declined, although these changes roughly parallel the directions of changes in youth homicide rates and rates of suicide in the elderly. Data from the National Center for Health Statistics (2001) indicate a 1999 rate of 8.2 per 100 000 for 15- to 19-year-olds, representing 1615 suicides in the United States. Rates for younger adolescents were much lower, averaging about one-seventh of the older adolescent rates, and rates for pre-adolescents are much lower still. Male adolescents are about five times as likely to commit suicide as females. This difference is explained, in part, by the means of suicide employed: teenage males tend to use more lethal methods, such as firearms and hanging, rather than less dangerous

methods often used by females, such as poisoning (e.g., carbon monoxide or pill overdose) or wrist cutting (Trautman and Shaffer 1989; Brent and Kolko 1990). In decreasing prevalence, common methods of suicide include firearms, hanging or suffocation, carbon monoxide poisoning, jumping, and overdose. By contrast, the most common method among unsuccessful attempts is overdose, followed by wrist cutting (Holinger 1990; Low and Andrews 1990). Some 90 per cent of suicide attempts in the young – over 300 000 cases annually – are intentional poisoning (Trautman and Shaffer 1989). Historically, white adolescents have been about twice as likely as African-Americans to commit suicide, but over the past ten years this ratio has been falling. In a study comparing adolescent suicide victims to a control group of non-suicidal adolescents, there was no significant difference found in socioeconomic status (Shaffer and Craft 1999). Some 40 per cent of gay and lesbian youths have been reported to have a history of suicidal ideation (Proctor and Groze 1994), but this appears to be a consequence of increased risk for mood disorder and other mental health problems which are risk factors for suicide (Fergusson, Horwood, and Beautrais 1999), rather than related directly to stressors of stigmatization (Shaffer et al. 1995). Suicidal ideation and attempts are much more frequent than completed suicide. McKeown et al. (1998) found a one-year incidence rate for attempts of 1.3 per cent (approximately 100 times the rate for completed suicide). Estimates of suicidal ideation range from 7 per cent to 60 per cent (Harkavy Friedman et al. 1987; Joffe, Offord, and Boyle 1988; Garrison et al. 1991) and show different demographic patterns from completed suicide. Suicidal ideation is over four times as common in girls, and suicide attempts are three times as common when compared to boys (Joffe, Offord, and Boyle 1988). Although completed suicide is rare in prepubertal children, self-destructive thoughts and behavior are frequent in this

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young age group. Those in this age group, and those that express suicidal ideation are more likely to have symptoms of psychiatric illness and are more likely to evidence suicidal behavior later in adolescence (Pfeffer 1997).

Risk factors and precipitants Predicting suicide in an individual case is clouded by the fact that completed suicide is rare when compared with clinical presentations of suicidal ideation and suicide attempts. Similar to the adult population, there are no studies which demonstrate factors which allow a clinician to accurately predict which adolescents will commit suicide. Research has therefore focused on risk factors, those characteristics which appear at greater frequency in the population of those who have completed suicide when compared to other groups. Since many youths who complete suicide were not previously in treatment, research assessment of those who have committed suicide is most commonly carried out utilizing psychological autopsy. The suicide risk factor literature is complex, reflecting changing rates and patterns of suicide, significant age and sex differences, and different sample populations, comparison groups, and statistical methods. Many different factors have been identified as increasing risk when compared to normal subjects. Risk factors commonly cited in the literature appear in Table 42.1. Clinically, suicidal ideation, especially when coupled with a plan involving lethal means, or a recent attempt,

Table 42.1 Summary of leading risk factors Individual factors Previous suicide attempt High intent/lethality of method Psychopathology Major depression Bipolar disorder Substance abuse comorbid with other psychopathology Schizophrenia Conduct or personality disorder, especially with impulsive characteristics Helplessness and hopelessness Demographic factors Over age 14, risk increases with age Male White Unwed/unwanted pregnancy Family and environmental factors Firearm in the home Family pathology/discord Abuse (physical or sexual) History of violence Recent stressors Separation Arrest/legal problems

are most often the trigger to a judgment of imminent danger requiring hospitalization. In psychological autopsy studies, previous attempts have been found to be the strongest risk factor for boys, increasing the risk about thirty times over the normal population (Shaffer et al. 1996; Brent et al. 1999). Multiple past attempts increase the risk. Individuals who attempt suicide make further attempts at a rate of 6 per cent to 15 per cent per year. The time of greatest risk for another suicide attempt is within the first three months to two years following an initial attempt. Retrospective risk factor studies have consistently found affective disorder to be a potent risk factor for adolescent suicide (Shafii et al. 1985; Rich, Young, and Fowler 1986; Shaffer et al. 1996; Brent et al. 1999). One longitudinal study found that 4.4 per cent of children diagnosed with major depression committed suicide in the following ten years (Rao et al. 1993). Affective disorder appears to pose a risk of over nine times that of the normal population. Two well-controlled studies (Brent et al. 1993b; Shaffer et al. 1996) both found high rates of psychiatric disorder, around 90 per cent, in suicide completers. Major depressive disorder was the most prominent finding, and poses the most risk. Bipolar disorder and conduct disorder were also found to elevate risk. Substance abuse was an especially potent risk factor when comorbid with affective illness, and may account for more attempts (Gould et al. 1998a) and for higher suicide rates in older adolescents (Brent et al. 1999). Substance abuse also significantly raises risk when comorbid with disruptive disorders (Renaud et al. 1999). While the majority of completers had longstanding symptoms, in one study (Brent et al. 1993b) about one-third of the depressed group had developed symptoms in the previous three months. Conduct disorder appears to be a potent risk factor for boys, but not for girls. Patients suffering from schizophrenia are at considerably increased risk for suicide, but schizophrenia has a low incidence in children and adolescents. In the absence of clear psychopathology, suicide is associated with recent legal or discipline problems, interpersonal loss or conflicts, and the presence of firearms (Brent et al. 1993c; Marttunen et al. 1994). Axis II psychopathology is also found in many suicide completers. Cluster B (impulsive-dramatic) and C (avoidant-dependent) were found to be more common in suicide victims than in controls (Brent et al. 1994a). Antisocial personality disorder traits are significant risk factors (Brent and Kolko 1990; Low and Andrews 1990; Marttunen et al. 1991). A history of past violence or aggressivity toward others has been correlated with increased suicidality (Morewitz and Morewitz 1991). In these individuals, violence directed toward themselves may be an expression of vengeance toward others, or may be a method of relieving pent-up tension. Impulsivity is often a characteristic, along with poor frustration tolerance and difficulty delaying gratification. Another common characteristic is a history of interpersonal difficulties.

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Self-poisoning is more common in this group (Brent and Kolko 1990). Females with learning disabilities have been found to have twice the risk for suicidal behavior and violence, in comparison to peers (Svetaz, Ireland, and Blum 2000). Some biological factors have been implicated, including genetic factors through twin studies (Roy, Segal, and Sarchaipone 1995) and preliminary findings of cerebrospinal fluid (CSF) monoamine metabolite abnormalities similar to suicidal adults (Kruesi et al. 1988). Family stressors constitute a second domain of risk factors for suicide. Factors that have been identified include family member suicide attempts (Brent et al. 1996), not living with both parents (Groholt et al. 1998), family history of depression and substance abuse (Brent et al. 1988), intrafamilial abuse (Shaunesey et al. 1993; Brown et al. 1999), and parent–child discord (Brent et al. 1994b; Gould et al. 1996). Parental divorce does not appear to be a potent risk factor (Gould et al. 1998b). A family with psychiatric complications increases the emotional stress in the household and may weaken the child’s support system. Those completing suicide are more likely to have experienced rejection by their fathers, and have often experienced the death of their mother by suicide (Husain 1990). Children and adolescents also react strongly to the suicide of a family member. Pfeffer et al. (1997) found that in 40 per cent of families that had a suicide, a child developed moderate PTSD, and in 31 per cent of families, a child developed suicidal ideation, although none made suicide attempts. Beyond the family, environmental factors can influence suicidality. Personal contact with a suicide victim can lead to increased suicidal behavior, such as a cluster of incidents in a single community. Media coverage of suicide – factual or fictional – has been associated with transient increases, especially among younger adolescents (Holinger 1990). Imitation seems most likely to occur among adolescents with pre-existing risk factors (Shaffer et al. 1990). Widespread societal issues, particularly the economy, war, and population shifts, have also been correlated with changes in suicide rates (Holinger 1990). Many, but by no means all, suicides have a clearly identified precipitant, although a stressor in the absence of pre-existing vulnerability likely does not cause suicide. Marttunen, Aro, and Lonnqvist (1993) identified a precipitant in 70 per cent of a series of cases. Of those, half occurred in the 24 hours preceding the suicide. Interpersonal problems, particularly separations, were the most common stressor. Among those who complete suicide, conflict is most commonly with a parent (Brent et al. 1988). Among those who attempt suicide, other precipitants include physical or sexual abuse, family discord, unwanted pregnancy, and parental psychiatric illness (Brent and Kolko 1990; Morewitz and Morewitz 1991). Nearly 75 per cent of adolescents report feeling angry rather than sad at the time of a suicide attempt (Trautman and Shaffer 1989). Of particular interest to

forensic psychiatrists, arrest is a risk factor as a precipitant for suicide. In one study (Brent et al. 1993a), among that minority of adolescents who did not appear to have a psychiatric disorder, 43 per cent had legal problems or discipline in the prior year. Firearms are the most common method of committing suicide, and firearms, particularly handguns, in the home are associated with a four-fold increase in risk for suicide (Brent et al. 1993c). Between 30 per cent and 50 per cent of adolescent suicide victims have had prior contact with a mental health professional (Blumenthal 1990), but there is a lack of evidence showing that interventions affect statistical suicide rates (Holinger 1990; Shaffer et al. 1990). Few victims were in active treatment at the time of a suicide, and non-compliance with outpatient treatment is correlated with increased risk for a recurrence of suicidality (Greenhill and Waslick 1997).

Assessment Asking about depressive feelings and symptoms, suicidal ideation, and a history of attempts of self harm should be a routine part of the initial evaluation of any adolescent or depressed child. The assessment of suicidality generally focuses on the risk and protective factors identified above, and information from sources such as parents and prior psychiatric records, when available, should be sought. Information from sources other than the identified patient should be considered seriously, as individuals with suicidal ideation may be unlikely to reveal their true feelings (Shaffer et al. 1990). A patient with a constellation of risk factors which does not include moderate to high intent or a recent suicide attempt generally does not require hospitalization on the grounds of suicidality because of the low power of such risk factors to predict in the short-term future (although the youth’s condition may warrant hospitalization on other grounds). The threshold issue is generally the presence of thinking about suicide or a recent attempt. Characteristics of attempts with high intent include lethality of method, gestures of saying ‘goodbye,’ such as giving away belongings, leaving a note, writing a will, and efforts to minimize or prevent discovery and rescue. Pfeffer (1998) has proposed a decision tree for interventions for suicidal tendencies, and the American Academy of Child and Adolescent Psychiatry has developed practice parameters for the assessment and treatment of suicidal behaviors (American Academy of Child and Adolescent Psychiatry 2001). The severity of suicidal ideation needs to be assessed. This involves evaluating the nature of the youngster’s thinking, whether he or she has formulated a plan, the lethality of the plan, access to means, the youth’s level of helplessness and hopelessness, and the details of any recent attempts. Interviews with family members and medical and school records may

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provide useful additional data. Once suicidal thinking has been identified, other risk factors take on added significance. It is important to pay attention to the dynamic factors, including which stressors have precipitated suicidal thinking or past attempts, and to assess the likelihood of such stressors recurring. In evaluating protective factors, the clinician needs to look to the nature of available social support, especially from the family; internal resistances to suicide, such as religious objections; the extent to which stressors in the environment can be ameliorated; and the usefulness of the family in monitoring the youngster’s thinking and behavior.

Treatment Unfortunately, no particular treatment has been shown to be especially effective in suicidal youths, despite a variety of individual, institutional and community programs (Greenhill and Waslick 1997; Shaffer and Craft 1999). Until research on effective treatment becomes available, clinicians will need to rely on accumulated clinical wisdom. Treatment encompasses four major components: protection of the patient; continuing assessment of risk; ameliorating risk factors; and enhancing protective factors. Protection of the patient is the first consideration. In outpatient treatment, it is important to involve the family in monitoring and supporting the patient, making firearms and lethal medications unavailable to the patient, and forging an alliance for supporting continuing treatment. The family must feel comfortable with the outpatient plan and agree to accept some of the responsibility for the patient’s safety. One important method of assessing a patient’s capacity to be treated as an outpatient is to simply ask what he or she would do if stressors recurred. No-suicide contracts are often used in treatment, but whether such a contract provides much protection remains unclear (Reid 1998). If the outpatient plan does not appear likely to manage the suicide risk, the youth is generally hospitalized. Involuntary hospitalization may be required if the parents refuse voluntary admission of their child. While hospitalized, an appropriate level of observation should be maintained. During periods of active suicidal or self-destructive ideation, patients may require continual monitoring until such impulses have resolved. Treatment should include addressing and diminishing those characteristics that constitute dynamic risk factors, including the treatment of underlying psychopathology. Depression in children and adolescents may not present with the classic diagnostic features found in adults. The American Academy of Child and Adolescent Psychiatry has published practice parameters for the assessment and treatment of several conditions which elevate the risk for suicide, including depression (AACAP 1998) and bipolar disorder (AACAP 1997). Medication is frequently

utilized, and the clinician should consider the possibility the patient will overdose and either arrange for parental control of the medication or prescribe non-lethal quantities. Psychotherapy plays an important role in treatment in providing information about continuing risk, delineating how the youth thinks about suicide, addressing underlying psychopathology, helping the adolescent cope with such stressors as may be present, and enhancing protective factors such as more adaptive defenses or coping strategies. Some factors are best dealt with in a family context, including ameliorating disruptive or stressful family patterns and eliminating access to firearms. Unfortunately, parental compliance with a recommendation to remove firearms is fairly low, even when parents are provided with considerable information about the risks and strong recommendations (Brent et al. 2000). Working to increase family support is an important component of enhancing protective factors.

Legal considerations In an outpatient treatment context, when the clinician determines the adolescent is at serious suicide risk, he or she will probably want to hospitalize the patient. In most jurisdictions, the consent of a parent is sufficient for hospitalizing a minor, even over the minor’s objections. State laws vary as to the age at which an adolescent may object, the procedures available to an objecting minor, and whether certain youths, such as ‘mature minors’ are able to give consent as though they were adults. If the parents do not consent to hospitalization or are unavailable, then involuntary hospitalization is available provided that the youth meets the state’s commitment criteria. In treating a child or adolescent depressed patient, one dilemma which can arise is the extent to which the adolescent’s confidentiality should be broken and the parents informed of the patient’s status. It is useful at the outset of treatment to discuss with the minor patient the conditions under which the therapist will communicate information to the parents. When the clinician feels the need to discuss his or her patient’s condition – for example, if a youth becomes more depressed and the therapist wishes to advise the parents to remove firearms from the home – it is preferable, when possible, to raise the need to talk to the adolescent’s parents with the adolescent and obtain his or her assent. If the adolescent objects, but the therapist has significant concerns about the youth’s safety, the therapist generally may discuss these issues with the parents over the adolescent’s objections. This is allowable because in most cases the parents legally speak for the child and control access to information about treatment. In rare instances, such as when the minor is an emancipated minor or has ‘mature minor’ status in a state which recognizes such a status, such a breach may not be possible, and the clinician then has fewer options. If the

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opportunity to involve the adolescent’s support system is limited, the threshold for hospitalization is decreased. Forensic psychiatrists are sometimes involved in determining whether the manner of death was unintended autoerotic asphyxiation (Sheehan and Garfinkel 1988), other accident, or suicide. The techniques employed in such analyses are similar to those utilized for adults. A completed suicide by a patient in treatment may give rise to a malpractice action against the treating psychiatrist. When an outpatient commits suicide, a central question is likely to be whether the suicide was reasonably foreseeable, under the theory that if so, there was a duty to protect the patient, generally by hospitalizing him or her. Other issues which may come into play include whether informed consent was obtained for certain components of the treatment, whether the parents were sufficiently informed and involved in managing the patient, and whether the psychiatrist made available the means for suicide, as when an adolescent overdoses on antidepressant medication (less common now with reduced use of tricyclic antidepressants), or any other defects which rendered the care below the standard of practice. In malpractice litigation involving an adult who committed suicide, the degree to which the adult was responsible for his or her own acts, and thus a contributor to the outcome, is often important. When a minor commits suicide, the presumption that minors are not as competent as adults often reduces the responsibility of the minor for his or her actions. As is typical in malpractice cases, the psychiatrist’s notes in the chart will be carefully scrutinized. When assessing a suicidal youth who is going to be treated as an outpatient, it is therefore very important from a risk management perspective to document carefully the assessment process, noting which risk factors and protective factors were assessed. The assessment process is an ongoing one, and documentation of the continuing assessment of risk is useful. In those cases in which the patient is not hospitalized, it is useful to detail the clinician’s reasoning about how the risk factors were weighed in devising the treatment plan. The most difficult patients from a risk management perspective are those who are at chronic risk for suicide, for whom longterm hospitalization is not a reasonable option, but where the clinician is aware that there is significant risk that at some point an attempt may miscarry and result in a lethal outcome. In cases in which the clinician believes that his or her treatment plan carries significant, but justified, risk, one of the best risk management strategies is ‘when in doubt, shout’ (Rappeport 1984) – have another clinician evaluate the patient and document his or her findings. In the event of an unexpected adverse outcome, the test will be whether the psychiatrist acted reasonably, and having the report of a second reasonable clinician who evaluated the patient can strongly counteract the retrospective analysis of a plaintiff’s expert who was not there. In a malpractice case following an adolescent committing suicide on an inpatient psychiatric unit, the two

most common issues are completeness of the assessment of the patient’s suicidality by the doctor and hospital staff, and the adequacy of the measures to protect the patient. Again, the quality of the continuing assessments and the extent to which they are documented are very important. One common issue is whether the attending psychiatrist was aware of clinical findings by the staff. Managed care has increased the threshold of severity necessary to justify inpatient hospitalization, and an increasing percentage of inpatients are hospitalized because of concerns about their suicidality. Therefore, the presence of some risk factors is quite common among inpatients. Once suicidal risk is noted, a central issue will be the level of monitoring of the patient, and whether decreasing the level of monitoring was justified. Matters of self-destructive and suicidal behavior are likely to heighten the anxiety of the patient’s relatives, opening the door to questioning and scrutinizing the psychiatrist’s treatment. One risk is that the psychiatrist’s own reaction to a patient’s suicidality will lead to neglect of basic good practice (Simon 2000). Psychiatrists need not be intimidated by the complexities and uncertainties of dealing with suicidality. It is helpful to keep in mind that courts, peer reviewers, and managed care agencies ordinarily accept clinical decisions that are in keeping with a community’s general standard of care, based on a rational consideration of the documented facts, and made in the service of the patient’s welfare and well-being (Simon 1987).

HOMICIDE Epidemiology Homicide is currently the second leading cause of death for adolescents after automobile accidents (National Center for Health Statistics 2001). In 1999, the overall rate of homicide for 15- to 19-year-olds was 10.6 per 100 000. Homicide at age fourteen years and below is much less common. Rates for males are much higher than rates for females, and, for black males aged 15–19 years, homicide was the leading cause of death, at a rate approximately triple that of motor vehicle accidents. Death rates from homicide rate for 15- to 19-year-olds were fairly flat at about 10–12 per 100 000 from 1976 until 1987 when, within the next four years, the homicide rate more than doubled to reach a peak of over 20.7 per 100 000 in 1993. The rate then declined significantly through 1999, returning to a rate of about 16.6 per 100 000 (National Center for Health Statistics 2001). A similar pattern is seen in the FBI statistics (2001) pertaining to juvenile homicide offenders. In 1997, juveniles were determined to have committed approximately 1400 murders of the 18 200 murders in the United States. While homicide is the most accurately reported crime, in approximately 38 per cent of murders, the age of the

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offender cannot be determined. In extrapolating, it appears that approximately 2400 murders (or 13 per cent) involved at least one offender who was under the age of 18 years at the time of the crime. This represents a decrease of about 45 per cent from the peak in 1994. Of murders involving a juvenile, 31 per cent also involved an adult, and 13 per cent involved another juvenile. In all, 44 per cent of all murders involving a juvenile involved more than one perpetrator. The vast majority (93 per cent) of the known juvenile homicide offenders were male, and more than half were African-American. It is not clear why the homicide rate accelerated so quickly, nor why it has come back down. What is clear is that the increase was due almost entirely to an increase in firearm use among youth (Snyder and Sickmund 1999). Rates of intrafamilial homicide and homicide with other weapons have stayed flat since the early 1980s. Blumstein and Cork (1996) hypothesized that the increase followed a rapid increase of involvement of adolescents in the drug trade, which in turn led to increased gun carrying by youths. More recent data have provided further support to this hypothesis (Cork 1999), though why the rates subsequently declined, however, remains unclear. What is clear is that these changes in homicide rates mirrored a similar pattern of changes in rates of violent crime in the adult population, although the magnitude of increase was far greater among juveniles, and, interestingly, in youth suicide rates. Snyder and Sickmund’s analysis of FBI data (1999) shows that the likelihood of being a juvenile offender increases through adolescence. Murder victims were more likely to be acquaintances of the juvenile than strangers: in 1997, 56 per cent of juvenile murder victims were acquaintances, 34 per cent were strangers, and approximately 10 per cent were family members. Girls made up only 7 per cent of the known juvenile homicide offenders, and girls were more likely than boys to use a knife or means other than a firearm.

Types of juvenile homicide Homicide is a heterogeneous phenomenon among adolescents: the shooter who has been ‘dissed’ outside a club, the adolescent girl who kills her stepfather because he has been sexually abusing her, and the psychotic adolescent who opens fire on his classmates at school represent very different pictures in terms of offenders, motivations, and victims. Studies of juvenile murderers have tended to be either interview studies of a convenience sample seen by the author (Lewis et al. 1988; Benedek and Cornell 1989; Myers et al. 1995) or analyses of FBI crime statistics. It is difficult to blend together these two different levels of analysis. There is a considerable literature on juvenile violence and its development, and homicide may present as the peak in severity of a violent career. Unlike suicide, it does not appear that juvenile homicide is primarily

caused by mental health problems – although most offenders have psychiatric disorders – and many juvenile killers had not received psychiatric attention prior to offending. Cornell, Benedek, and Benedek (1987) proposed a typology of three types of juvenile homicide: arising out of conflict; a psychotic perpetrator; and homicide committed during the course of another crime. Findings over the past fourteen years suggest it is useful to subdivide the conflict group into street confrontation, intrafamilial, and other, and to consider school shootings with multiple victims as a rare, but separate group. In addition, there are even less common subgroups, such as sexual homicide (Myers 1994), which have their own distinct characteristics.

Street homicides Street violence is the most common form of juvenile homicide. Statistics often do not distinguish very clearly between street homicides occurring during the commission of another felony and street homicides arising out of conflict between youths. Between 1980 and 1997, when juveniles killed other juveniles, firearms (usually handguns) were used 77 per cent of the time (Snyder and Sickmund 1999). Gun-carrying among adolescents is a major risk factor for homicide, as confrontations quickly escalate in lethality when one of the participants is armed. In many instances, the distinction between aggravated assault and homicide turns more on chance factors affecting the path of the bullet than on the intent of the shooter. When adolescents are asked about their reasons for carrying guns, keeping oneself safe is by far the most commonly cited reason (Sheley and Wright 1993; Ash et al. 1996). Although some adolescents report that they derive an enhanced sense of power or self-respect from carrying a gun, few claim that they carry a gun for the purpose of committing a crime. Gun-carrying by adolescents appears to be reactive in nature and is done because they fear harm on the street or at school. Youths, particularly in minority groups, do face a much higher risk of victimization than the population at large. According to data from the FBI’s Uniform Crime Reports (FBI 1999) in 1997, 17-year-old African-American males were murdered at a rate more than seven times higher than their white peers, and ten times higher than the national average for all ages. Adolescents who feel unsafe – especially those who live in inner-city neighborhoods where there is an ‘ecology of danger’ – are more likely to arm themselves for protection. Although the effectiveness of this strategy is debatable, handguns increase the likelihood of a violent confrontation. Whether fatal or nonfatal, street shootings heighten the overall level of fear in a community, which in turn leads to rising levels of fear that encourage even more gun-carrying (Blumstein and Cork 1996). There are three key points in the chain of events that precedes almost every street shooting: first, the decision

Forensic aspects of suicide and homicide in children and adolescents 413

to acquire a handgun; second, the decision to carry it; and finally, the decision to use it. These are also the three key points for intervention. Most adolescents who become involved with guns acquire their first firearm in early adolescence (Ash et al. 1996; Brener et al. 1999). The majority receive their first gun from someone else, whether from a parent giving a child his first hunting rifle as a Christmas gift, or a teenager giving his best friend an illegally acquired handgun for protection. By middle to later adolescence, when delinquent boys are more likely to be arrested, they have begun to actively obtain handguns from a variety of sources, including buying from a drug dealer or an adult ‘straw purchaser,’ borrowing from a friend or acquaintance, or theft. In an altercation between two inner-city youths, at least one of whom is armed, issues of respect and toughness – ‘being the man’ – are very important, and perceived attacks on identity can rapidly escalate to lethal violence. In an analysis of transactions leading to inner city street shootings, Fagan and Wilkinson (1998) emphasize the importance of a drug and alcohol context. Drug use worsens judgment, and the drug trade itself provides fertile ground for disputes over territory and payment. Fagan and Wilkinson emphasize the need to maintain hierarchy and respect in ways which feed into maintaining a violent identity. The threat of gun violence introduces new complexities for development of social identity, resulting in the paradox that creating a ‘safe’ social identity may require the use of extreme forms of violence. In Myers et al.’s (1995) series of juvenile murderers who were seen for mental health evaluation, those juveniles who committed homicide during the course of another crime were found to have very high (⬎95 per cent) rates of family dysfunction, disruptive behavior disorders, previous violence towards others and prior arrests, and high (⬎70 per cent) rates of school failure, family violence, and learning disabilities. Benedek and Cornell (1989) reported consistent findings, but generally lower rates of disorder. In both groups, fewer than 25 per cent had received prior mental health treatment. Fendrich et al. (1995) found that about one-third of juvenile murderers were using substances, primarily alcohol, at the time of the offense – a rate that was lower than all but the oldest group of adult offenders.

Intrafamilial homicide Rates of killing a family member have been holding steady or decreasing over the past twenty years, and in 1997 accounted for 10 per cent of juvenile homicides (Snyder and Sickmund 1999). Parricide – killing a parent – is the most common form, is generally found in the context of abuse (Heide 1995), and is usually committed by older and depressed adolescents (Dutton and Yamini 1995). In many cases, unlike with street homicides, the adolescent does not exhibit a prior history of delinquency. The

criminal defense of these youth often emphasizes the abuse victim status of the killer as a mitigating circumstance of the killing.

Psychotic motive While psychotic motive overlaps the other categories, it is frequently dealt with separately because it has different implications with regard to criminal disposition and treatment. In criminal justice statistics, psychotic motive is not broken out as a separate category, so overall rates are unclear, but even in series referred to mental health professionals psychosis is uncommon, accounting for less than 7 per cent of cases (Benedek and Cornell 1989; Meloy et al. 2001). Myers et al. (1995) found no psychotic youth in their sample, although they found a history of psychotic symptoms in 71 per cent of subjects. Psychotic juvenile defendants may be found not criminally responsible and referred for treatment of their psychosis.

School mass shootings Statistically, schools are a safe place to be, but between 1996 and the school shootings in Littleton, Colorado in 1999, there were eight highly reported cases of multiple shootings at school by students, including two instances in which two students participated in shooting at classmates (for descriptions, see Verlinden, Hersen, and Thomas 2000). These cases have generated enormous amounts of media coverage and grave concerns about school safety. The clustering of the shootings in such a brief period strongly suggests a contagion effect. Such shootings, while fortunately very rare, nevertheless create a climate of fear in schools which has an impact on students’ emotional well-being, their readiness to learn, and the hiring and retention of teaching staff. Detailed psychiatric information about school shooters is difficult to obtain: some of the killers committed suicide immediately after the shootings, and some are protected by the confidentiality of the juvenile court. Therefore, most information about them has been limited to publicly available data. Verlinden, Hersen, and Thomas (2000) identified a number of individual offender commonalities, including prior threats of violence, having a detailed plan, blaming others for problems, having a history of regression, uncontrolled anger, depression, troubled family relationships, poor coping and social skills, alienation from peers, fascination with weapons and explosives, preoccupation with violent media and music, and attack-related behavior such as an interest in targeted violence, and social-environmental factors such as access to firearms. Consistent findings were found by Meloy et al. (2001) in a study of juvenile mass murderers. In all cases, there was a failure of peers to report threats of serious violence to others and to consider the threats seriously.

414 Family law and domestic relations

Legal issues When a therapist is aware that a patient is dangerous to others because of mental illness, he or she will most commonly hospitalize the patient, involuntarily if necessary. In many states, therapists now have a Tarasoff-type duty to protect third parties, though the precise nature of the duty varies from state to state. The laws with respect to civil commitment and protection of third parties embody the same principles for adolescents as for adults. Many states responded to the wave of juvenile violence in the early 1990s by passing laws which make it easier to try an adolescent in adult court, either by enacting discretionary waivers, which give the prosecutor discretion as to whether to waive the adolescent defendant, or mandatory waivers, laws which require that adolescents over a certain age and charged with certain crimes be tried in adult court. Homicide, being the most serious offense, heads the list of crimes for which waivers are invoked. Therefore, many youth arrested for homicide are tried as adults. In adult court, issues of competency to stand trial and insanity defense can be considered. The issue of competency to stand trial, when applied to juveniles, is complex and not well worked out. While many middle to later adolescents make decisions similar to adults, the determination of a younger adolescent’s competency may turn on complex developmental issues. Grisso (1997, 1998) has discussed some of the specifics of assessing these defendants. Adolescents whose competency is seriously diminished will often be remanded to juvenile court. In addition to competency to stand trial, competency to confess may also be at issue. For homicide, in some jurisdictions the death penalty is a possibility. The Supreme Court has held that execution for a crime committed at age fifteen years is unconstitutional (Thompson v. Oklahoma 1988), but is allowable for crimes committed at age sixteen years (Stanford v. Kentucky 1989). If the juvenile is not automatically waived to adult court, the issue of possible judicial waiver to adult court needs to be considered. In some states, competency to stand trial is now required also to be tried in juvenile court. Younger adolescents are more likely to be found incompetent to stand trial on developmental grounds. If a juvenile defendant is found incompetent to stand trial, the question of how their competence is to be ‘restored,’ when what may be needed is time for them to cognitively mature, poses knotty problems for interim disposition.

Prevention Psychiatry is fairly weak at predicting violence towards others, and most of the mental health research carried out has focused on adults, particularly psychiatric inpatients. It is unclear the extent to which the principles developed for adults generalize to adolescents, particularly since psychosis and substance abuse play a smaller

role in adolescent violence. If a patient expresses homicidal intent, a clinician has good grounds to intervene, but in the absence of expressed intent, risk factors such as a prior history of violence are so non-specific as to be of little help in most individual cases. Homicide which occurs impulsively, without prior threats or expressed ideation, is therefore essentially unpredictable. Most threats by adolescents are first heard by peers, and then may be brought to the attention of school or law enforcement personnel, and psychiatrists may be asked to help evaluate their seriousness. Threat research has largely grown out of law enforcement work focused on adults, but there is reason to think similar principles apply to adolescents. Threat evaluation has moved away from profiling the subject towards evaluating pathways that lead to violent action. Put another way, look less at the characteristics of the subject, and more at recent behavior which suggests he or she is moving on a path towards violence (Borum et al. 1999). Threat assessment procedures first developed for the Secret Service are now being implemented by law enforcement (Fein and Vossekuil 1998). These emphasize that attack is the consequence of an understandable and discernable process of thinking and behavior. Attack following threat is targeted, not impulsive or spontaneous. Evaluation emphasizes situational variables, such as the likelihood of interaction between attacker and victim, stress, and the current situation. Recent behaviors such as planning and making preparations (obtaining weapons, etc.) lead to a conclusion of high level threat. The FBI protocol developed for evaluation of threats reported to school personnel (O’Toole 1999) embodies these principles. The widely fluctuating rates of juvenile homicide over the past decade, and the difficulty in identifying prospective murderers, suggest that interventions at the community level are likely to have the most effect in reducing mortality. Juvenile homicide is the tip of the iceberg of youth violence, and reducing youth violence generally is likely to reduce the juvenile homicide rate. The report of the Surgeon General on youth violence reviews the effectiveness of strategies to reduce violence (Satcher 2001). Given that most homicides are firearms-related, reducing the carrying of firearms appears among the most promising strategies targeting juvenile homicide. While a sense of need for protection is the leading factor motivating gun-carrying, fear of being caught with a gun is the strongest deterrent (Ash et al. 1996; Freed et al. 2001). The federal Youth Handgun Safety Act (1996) makes it illegal for juveniles to carry a handgun. Several jurisdictions have implemented promising programs to deter gun-carrying by juveniles (Office of Juvenile Justice and Delinquency Prevention 1999). Some pilot strategies which appear useful are enhanced prosecution of gun offenders (Seattle), directed police patrols aimed at deterring illegal gun carrying (Kansas City, MO), parental consent for police to search a juvenile’s room and confiscate any firearms found there (St. Louis), and holding a

Forensic aspects of suicide and homicide in children and adolescents 415

gang responsible for the actions of individual members (Boston). There is encouraging evidence that gun-carrying by adolescents is on the decline, in tandem with adolescent homicide rates (Ash and Kellermann 2001). There is ample, albeit indirect, evidence that if an area is perceived as safe and well-policed, young people are less apt to bring guns there. Schools are one clear example of this. A recent report from the US Departments of Justice and Education finds that rates of gun-carrying on school property have been falling and that youths feel safer in school than previously (Kaufman et al. 2000). It is unclear whether teenagers decline to carry guns to school because they feel that they are unlikely to encounter an armed rival or because they fear detection by vigilant teachers, classmates, or school security technology and the penalties of ‘zero tolerance’ policies. What is clear, however, is that the collective impact of these interventions has been positive. Unfortunately, a similar level of effort has not been expended to help adolescents feel safe in their community, despite the fact that a teenager is much more likely to be killed on the street than at school.

CONCLUSION Adolescent violence, directed against self or others, exacts an enormous toll on its victims, their families, and society. Forensic psychiatrists are frequently consulted to assess cases involving youth – primarily adolescents – who are either thought to be at risk for killing themselves or others, or have already done so. Because of the high stakes involved, such cases generate great anxiety and concern for evaluators, patients, and families. While a good deal of group data about these juveniles has been developed, our ability to predict accurately which individuals will carry out such violence remains severely limited. Clinical approaches for assessment and intervention have been developed. While psychiatric intervention has no doubt benefited many at-risk patients, rigorous research has so far not demonstrated a consequent significant decrease in death rates. This may in part reflect that many youth who kill themselves or others never see a mental health professional. Family and community interventions may have the most effect in reducing mortality.

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Simon, R.I. 1987: Clinical Psychiatry and the Law. Washington, DC: American Psychiatric Press, Inc. Simon, R.I. 2000. Taking the ‘Sue’ out of suicide: a forensic psychiatrist’s perspective. Psychiatric Annals 30, 399–407. Snyder, H.N., Sickmund, M. 1999: Juvenile Offenders and Victims: 1999 National Report. Washington, DC: Office of Juvenile Justice and Delinquency Prevention. Stanford v. Kentucky, 492 U.S. 361 (1989). Svetaz, M.V., Ireland, M., Blum, R. 2000. Adolescents with learning disabilities: risk and protective factors associated with emotional well-being. Findings from the National Longitudinal Study of Adolescent Health. Journal of Adolescent Health 27, 340–8. Thompson v. Oklahoma, 487 U.S. 815 (1988). Trautman, P.D., Shaffer, D. 1989. Pediatric management of suicidal behavior. Pediatric Annals 18, 134–43. Verlinden, S., Hersen, M., Thomas, J. 2000. Risk factors in school shootings. Clinical Psychology Review 20, 3–56. Youth Handgun Safety Act 996: 18 U.S.C. 922(x).

43 The child as a witness ROBERT SUDDATH

INTRODUCTION A child may be a witness to a wide variety of events, may be a crime victim, or may be accused of committing a crime. In any of these circumstances, the child may be asked to provide eyewitness testimony for a court or other legal procedure. Before providing testimony, the child may be questioned by professional investigators as well as a variety of people with no special training in forensic interviewing including family, school staff, and medical professionals. These interactions, the passage of time, and a wide variety of other factors may affect the accuracy of a child witness. Because children are continuously developing both cognitively and physically, their ability to recall and, at a more basic level, to understand events that they witness changes as they grow older. Further, the response of children to factors that may influence their memory of events changes as a child matures. Younger children, in general, are less reliable witnesses and more susceptible to factors that alter the accuracy of their accounts of events. As children develop, their memory improves and their susceptibility to suggestion lessens. By adolescence, they are difficult to distinguish from adults, and like adults, they continue to exhibit some memory errors and remain susceptible to some degree of suggestion. Psychiatrists may be involved with child witnesses in several ways. Following an event, a psychiatrist may be consulted regarding the most appropriate way to interview a child witness, or may be asked to interview the child to obtain their account of events. Psychiatrists may be asked to offer an opinion regarding a child’s competency to testify or whether the child’s testimony has been distorted in some way. Additionally, psychiatrists may help guide the court regarding the impact of testifying on a child and the most appropriate ways for a child to testify. When a child does provide testimony, psychiatrists may consult with investigators, attorneys, and judges regarding the most appropriate way to interview the child,

particularly the way to obtain the most complete and accurate information possible while minimizing trauma to the child.

HISTORY OF CHILD WITNESSES Early English and American history The most famous cases in early American history that involved child testimony were the Salem witch trials. In these seventeenth century trials, child witnesses, aged five to seventeen years testified to a variety of bizarre events including observing the defendants flying on broomsticks (Starkey 1969). Nineteen defendants were executed and several other defendants confessed to avoid execution (Trask 1975). For some, these events demonstrated the risks of relying on child witnesses, while others have interpreted these events as products of the children’s social or religious environment (Hill 2000). Some authors have described specific modern prosecutions involving child witnesses as ‘witch hunts,’ drawing parallels to the Salem trials; however, there are limits to this analogy because many children have actually been abused and have accurately reported their abuse. Under English common law, children under age seven years were not allowed to take the oath to testify (Goodman 1984). In 1770, an English court held that there was no minimum age for children to be competent to testify (Myers 1993). Some nineteenth century US courts were reluctant or categorically refused to consider the testimony of children; however, in 1895 the US Supreme Court considered the issue of whether a child could testify as a witness (Wheeler v. United States 1895). The court found that an individual evaluation to determine the competency of the child witness was appropriate. Current US court practices, which allow individual determinations regarding the competency of child witnesses, began more than two centuries ago in English common

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law and have been continuously refined and re-evaluated since.

The child sexual abuse pre-school cases of the 1980s

Early research relevant to child testimony

Beginning in the early 1980s there was a series of highly publicized cases of alleged organized sexual abuse of large numbers of pre-school children. The primary witnesses in these cases were the alleged child victims. In many cases testimony was provided by older children who were asked to recall what had happened to them years earlier when they attended a pre-school or day-care center. These cases brought up questions about the credibility of the child witnesses and further questions about the relationship between interviewers, therapists, and children’s suggestibility. Perhaps the most well-known case involving multiple allegations of child sexual abuse was the McMartin PreSchool case. The case began in 1983, when a woman, who eventually developed symptoms of paranoid psychosis, reported that her child had been sexually abused at the McMartin Pre-School in Manhattan Beach, California. The parents of other pre-school children were sent a letter from the police department asking them to interview their children regarding sexual abuse. The District Attorney eventually retained a sexual abuse ‘expert’ who testified before congress that out of hundreds of cases of reported abuse by children, she knew of only two who had incorrectly reported sexual abuse (United States Congress 1985). The children were interviewed repeatedly, and the sexual abuse expert instructed the children’s other interviewers in means of breaking down the children’s resistance to overcome alleged threats by the defendants. The McMartin Pre-School investigation and trials were both expensive and controversial. Allegations against the pre-school’s staff included systematic ritualized sexual abuse of a large number of pre-school children as a part of satanic cult worship. At the time of the initial investigation there was very limited scientific knowledge about children’s memory, suggestibility or the best way to interview them. Ultimately, the juries were unable to convict the defendants in the McMartin case. In part, this may have been due to the jury’s lack of faith in the testimony of the children; however, it was also clear that the children had been interviewed with highly suggestive techniques that might prevent the truth from ever being known. The case consumed years of the defendants’, the victims’ and their families’ lives, and factions of angry parents remain convinced that their children were victims. Additional, similar, well-publicized cases included: Wee Care Day Nursery (1985, Maplewood, NJ), Little Rascals Day Care (1989, Edenton, NC), and Wenatchee WA (multiple prosecutions across the community: 1994). These cases and other cases involving alleged organized ritualized sexual abuse and an increasing frequency of claims of abuse arising in the context of divorce and child custody proceedings led to several studies of children’s eyewitness memory and child interviewing in the 1980s and 1990s.

The beginnings of psychology and psychiatry in the nineteenth century led to research focused on child development and child psychology beginning in the early twentieth century in both Europe and the United States. A major early researcher in child cognitive development was Alfred Binet who pioneered intelligence testing in children. Binet documented both poor comprehension and impaired critical review of information in children as compared with adults; however, he also reported superior memory ‘retention’ in children (Binet, Simon, and Terman 1980). These authors additionally observed the importance of the social context in which children are questioned, noting distortions and attempts by children to conform their opinions to those of adults (Binet 1900). As a student working in Binet’s laboratory, Jean Piaget observed consistencies in the errors children made on intelligence tests. By focusing on children’s reasoning process and its interaction with their perceptions, Piaget was able to describe child cognitive development in an orderly, sequential manner (Piaget 1962). Notably, he described characteristics of the thought process of developing children including several distortions (lack of understanding of causality, egocentrism, animism) that may directly affect their ability to observe, understand, or report events (Piaget 1954). Piaget’s theory of developmental stages may underestimate the abilities of young children, and has been replaced by modern developmental psychologists with a continuum of development. Until recently, there was minimal interaction between the judicial system and child psychological research; however, some early investigators did study children’s abilities as witnesses. Beginning in 1900, William Stern and his wife carefully documented their own children’s cognitive developments, paying particular attention to their recall of events and factors that influenced their recall (Stern, Stern, and Lamiell 1999). The Sterns reported several findings that have been replicated using modern methodologies, including the limited quantity but superior accuracy of free recall and the tendency of children to alter their reports based on their expectations. They additionally reported individual differences in children’s suggestibility and described circumstances that could minimize the risk of suggestibility. Another European psychologist, Varendonck, was an expert witness in a murder trial in which the defendant was identified by a child following suggestive questioning. To provide evidence for the trial, he conducted studies using suggestive questioning of several seven-year-old children. His results demonstrated that all but a few of the children had incorporated some of the suggested information into their accounts of events (Varendonck 1911).

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U.S. SUPREME COURT CASES AND LAWS PERTAINING TO CHILD WITNESSES The first issue to be addressed by the US Supreme Court pertaining to child witnesses was their competency to testify. In the first three cases described below, the standards and procedures for determining competency were clarified. These standards are reflected in the current criminal and evidence codes of most states. Once children were allowed to testify as witnesses, numerous other issues became apparent. The remaining cases discussed below attempted to balance the protection of child witnesses and the optimal means of obtaining testimony with the rights of the accused.

The competency of child witnesses to testify In Wheeler v. United States (1895), the defendant appealed his murder conviction and death sentence on several bases including the fact that the 5 1⁄2-year-old son of the victim was allowed to testify. The court affirmed the conviction, allowing the child’s testimony. The decision indicated that the child had stated he would tell the ‘truth’ and that if he lied a ‘bad man would get him’ or he would ‘go to jail.’ The opinion stated, ‘… the boy was not by reason of his youth, as a matter of law, absolutely disqualified as a witness … there is no precise age which determines the question of competency. This depends on the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former.’ This decision further defined the process of defining competency: ‘The decision … rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence, as well as his understanding of the obligations of an oath.’ The procedure for evaluating competency of child witnesses was the major issue in Kentucky v. Stincer (1987). The defendant was convicted of sodomy with three victims, aged five, seven, and eight years. The seven- and eight-year-old victims testified during the trial after they were found competent in a hearing involving the judge, the prosecutor, and the defense counsel. The questions asked at the competency hearing involved determining whether the children were ‘capable of observing and recollecting facts … narrating those facts to a court or jury, and whether the child has a moral sense of the obligation to tell the truth.’ The defendant appealed his conviction based on his exclusion from this competency hearing, which he stated, violated his Sixth and Fourteenth Amendment rights. The Supreme Court upheld the trial court’s conviction. The court found that the defendant’s right to confront his accuser had not been violated because, during the trial, ‘the two girls were cross-examined in

open court with respondent present and available to assist his counsel.’ Additionally, the court found that the defendant’s due process right to be present at critical stages of a criminal proceeding was not violated because ‘of the particular nature of the competency hearing, whereby questioning was limited to competency issues and neither girl was asked about the substantive testimony she would give at trial.’ The hearsay testimony of a 21⁄2-year-old child was the key issue in Idaho v. Wright (1990). The defendant was convicted of two counts of lewd conduct with her two daughters ages 21⁄2 and 51⁄2 years. She appealed only the conviction involving her 21⁄2-year-old daughter because she believed that the child’s hearsay testimony was not trustworthy or reliable. The younger daughter was excluded from testifying based on a competency evaluation that found her not ‘capable of communicating with the jury’; however, a pediatrician was allowed to testify to her statements under the state’s hearsay exception. The US Supreme Court affirmed a lower court’s reversal of the conviction. The court specifically found that the pediatrician’s interview technique ‘lacked procedural safeguards.’ Possible procedural safeguards discussed by the court included the use of ‘videotape for preservation and perusal by the defense.’ Importantly, the court referenced research findings and concluded that ‘blatantly leading questions were used’ and that the interview ‘was performed by someone with a preconceived idea of what the child should be disclosing.’ This decision is of particular relevance to clinicians who may give testimony in court regarding interviews with child witnesses. Uniform guidelines regarding the competency of child witnesses were established through the Federal Rules of Evidence (1984), which were enacted in 1975. These rules broaden competency standards – ‘every person is competent to be a witness except as otherwise provided in these rules.’ Further, no ‘mental or moral qualifications for testifying as a witness are specified’ and the notes elaborate: ‘a witness wholly without capacity is difficult to imagine. The question is one particularly suited to the jury as one of weight and credibility.’ The majority of US states have adopted these rules of evidence either explicitly or in some modified form in state law. For example, California Evidence Code (California Codes 1995) states: ‘Except as otherwise provided by statute, every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter,’ explicitly allowing child witness testimony. New York Consolidated Laws (1970) prohibit testimony of a child less than twelve years old, ‘unless the court is satisfied that he understands the nature of an oath,’ but allows for ‘unsworn evidence if the court is satisfied that the witness possesses sufficient intelligence and capacity to justify the reception thereof.’ Although the specifics vary, Federal jurisdictions and most state codes allow hearsay evidence of children provided their statements were obtained as a part of medical evaluation or treatment (Myers, pending publication).

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Protection of child witnesses, the best interests of a child and the right to confront your accuser The balance between protecting the privacy of child witnesses and the rights of the media was the key issue addressed in Globe Newspaper Co. v. Superior Court (1982). Massachusetts law provided that for sexual crimes with child victims, ‘the presiding justice shall exclude the general public from the court room, admitting only such persons as may have a direct interest in the case.’ A newspaper publisher challenged this statute asserting that it violated the First Amendment (United States Constitution) by limiting an informed ‘discussion of governmental affairs.’ The US Supreme Court recognized an interest in ‘safeguarding the physical and psychological well-being of a minor’; however, it found that the Massachusetts law was not constitutional because it was a ‘mandatory closure rule’ that applied indiscriminately to all cases. The court’s opinion further stated that the state’s interest in protecting a minor ‘could be served just as well by requiring the trial court to determine on a case-by-case basis whether the State’s legitimate concern for the well-being of the minor victim necessitates closure.’ As in Globe Newspaper Co. v. Superior Court (1982), the protection of child witnesses was a central issue in Coy v. Iowa (1988); however, in this case the US Supreme Court considered the issue of whether protective measures interfered with the defendant’s right to a fair trial. The defendant was convicted of two counts of lascivious acts with a child. During his trial, the victims, two thirteenyear-old girls, testified from behind a screen which shielded the witnesses from the defendant’s sight ‘but allowed him to see them dimly and to hear them.’ The defendant appealed his conviction, asserting that the use of the screen had violated his Sixth Amendment (United States Constitution) right to ‘be confronted with the witnesses against him.’ The court found that the defendant’s ‘constitutional right to face-to-face confrontation was violated,’ reversing and remanding the lower court’s judgment. The court found that there was ‘no merit to the State’s assertion that its statute creates a presumption of trauma to victims of sexual abuse that outweighs appellant’s right to confrontation.’ The court did indicate that there was a possibility for exceptions based on ‘individualized findings that these particular witnesses needed special protection.’ Just two years after the decision in Coy v. Iowa (1988), the US Supreme court again considered the balance between a defendant’s Sixth Amendment rights and the state’s interest in protecting child witnesses. In Maryland v. Craig (1990), the defendant was accused of several counts of sexual abuse of a six-year-old girl who attended the defendant’s kindergarten and pre-kindergarten center. Based on expert testimony that the victim would suffer ‘serious emotional distress such that (they could not) reasonably communicate,’ the victim testified through a ‘one-way’ closed-circuit television. This arrangement

allowed her to be questioned in a separate room and observed from the courtroom during her testimony. The defendant was convicted, but appealed arguing that the closed-circuit procedure violated the Sixth Amendment right to face-to-face confrontation with witnesses (United States Constitution). The US Supreme Court considered an Amicus Curae brief from the American Psychological Association that suggested a ‘case-by-case’ evaluation of the potential trauma to the child and the child’s ability to provide accurate courtroom testimony. The Supreme Court vacated a lower court’s reversal of the defendant’s conviction. The Supreme Court declined ‘to establish, as a matter of federal constitutional law, any such categorical evidentiary prerequisites for the use of the one-way television procedure.’ Additionally the Court’s opinion stated ‘so long as a trial court makes such a case-specific finding of necessity, the Confrontation Clause does not prohibit a State from using a one-way closed-circuit television procedure for the receipt of testimony by a child witness in a child abuse case.’ In this case the Supreme Court effectively allowed trial courts to make a case-by-case determination of the specific need for protective measures like closed-circuit television. The use of closed-circuit technology has been incorporated into the statutes of some states. California (California Codes 1995) allows closed-circuit testimony of children aged thirteen years and younger limited to ‘a recitation of the facts’ of an alleged violent or sexual criminal act. The statute places the burden on the state to show ‘by clear and convincing evidence’ that the minor would be ‘unavailable as a witness unless closed-circuit television is used.’ Texas law places fewer restrictions on the use of closed-circuit testimony from child victims of violent or sexual crimes, allowing a motion for closedcircuit testimony to be initiated by either party (The Texas Statutes 1965). This law provides broad guidelines for the trial courts to use in determining the use of closed-circuit technology: ‘the court may set any other conditions and limitations on the taking of the testimony that it finds just and appropriate, taking into consideration the interests of the child, the rights of the defendant, and any other relevant factors.’ Following Maryland v. Craig, most states have established some mechanism to allow for closed-circuit testimony of child witnesses; however, the use of this technology remains relatively rare.

MODERN RESEARCH ON CHILDREN’S COGNITIVE DEVELOPMENT AND MEMORY A child’s basic ability to be a witness to an event depends on many factors. A simplified view of these factors begins with the child’s perception of the event, and progresses through organization and storage of event information. Finally, the child must retrieve the stored

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information and express it in some manner. Memory is important at almost every stage of these inter-related processes, and has been the subject of several studies. Memory may be the weakest link in this chain of events, with limitations on how much can be remembered, how long information can be remembered, and numerous problems with retrieval of information. A child’s memory of events takes place in the context of the child’s level of development, significantly shaping their report of witnessed events.

Cognitive development Children’s development progresses continuously with development occurring in motor, cognitive, language and other skills in a simultaneous and inter-related manner (Volkmar 1995). An infant or toddler with a very limited vocabulary cannot fully describe what they have witnessed. Even if they were able to express themselves using non-verbal communication, their understanding of the world, including basic concepts such as causality, may not be adequately developed. A very young child’s thought processes differ from an adult’s thought processes in several major ways including distortions and inaccuracies in their perceptions of their environment. Magical thought, egocentrism, animism, and focusing on a single dimension are some characteristics of pre-school age thought (Inhelder and Piaget 1958) that could significantly affect a child’s account of events. For example, a child who equated a person’s size with their height might inaccurately report the size of a perpetrator, focusing on the person’s height alone and ignoring all other dimensions. Importantly, this child may have never encoded complete information about the perpetrator’s dimensions (weight, proportions, etc.), making it impossible for an investigator to learn additional information from the child. Although this example over-simplifies a young child’s cognitive abilities, it illustrates the essential interactions between development, memory, and recall. Many interviews with young children utilize props such as drawings or dolls to assist the child in relating information. The ability of a child to correctly use the props requires the child to have developed the ability to think symbolically. DeLoache tested the ability of 21⁄2and three-year-old children to use pictures or models to represent a room where a toy had been hidden. The younger children were more successful using the pictures (80 per cent) than using a scale model (20 per cent) (DeLoache 1995). Follow-up studies suggested that the younger children found the scale room intrinsically interesting, and had difficulty understanding that it also symbolized a real room. Extending this research to the use of dolls, children were asked to demonstrate where an experimenter had touched them using a doll or using their own body. When using a doll, 21⁄2-year-olds reported only slightly more than half as much accurate information

as when they used their own bodies. Four-year-old children were more accurate than 2 1⁄2-year-olds at using dolls, but still provided considerably more information when asked to demonstrate on their own bodies. These findings cast doubt on the use of intrinsically interesting props such as dolls when interviewing young children who may not have fully developed the ability to use them as symbolic representations of other objects. Concerns about a child’s ability to distinguish imagined events from real events have been expressed both historically and by prominent developmental psychologists (Piaget 1962). A limited number of studies have examined developmental changes in children’s imagination in a forensically relevant way. One approach involved asking younger and older children to imagine both common (a cup) and unreal (a monster) items (Harris et al. 1991). Both four- and six-year-old children were able to distinguish real from imagined items. When questioned afterwards, a proportion of the younger children (aged three to four years) indicated that they were afraid of the imagined monster or believed that the imagined monster could become real, in spite of reassurances from the experimenters that the creatures were not real. Although even young children were able to differentiate imagined events from real events, the authors concluded that some younger children might be ‘tempted to believe in the existence of what they have merely imagined.’ Another process that has been described in developmental terms is moral development. Kohlberg described a progression of children through stages of moral development (Kohlberg, Levine et al. 1983). Although Kohlberg’s theories have been widely criticized and have not been consistently replicated, the moral development that he described may be relevant to children’s courtroom testimony. An important element of a child’s competency to testify is their understanding of the difference between lying and telling the truth. Sometimes, a child is additionally expected to demonstrate a moral obligation to tell the truth. These concepts may be understood by young children only in terms of punishment or other anticipated direct effects on the child; it may not be developmentally appropriate to expect them to demonstrate a more sophisticated understanding. The development of an understanding of truth and lies was investigated in a study of four-, eight- and eleven-year-old children’s abilities to categorize statements as lies or truths (Bussey 1999). The results demonstrated improved ability to categorize truth and lies with increasing age and a similar developmental progression of ability to differentiate antisocial lies from ‘white lies.’

Children’s memory Memory researchers have described the process of memory in sequential stages including encoding, storage, and retrieval. Information can be lost or altered at any stage,

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and each stage is completely dependent on the prior stage. Information that is encoded may be lost during storage, and normally only a subset of the information that is stored is retrieved. Because children have already encoded the information that they have witnessed, research that is relevant to a child’s testimony relates to information storage and retrieval. These components of memory can potentially be enhanced or altered in some way after a child has witnessed an event. A major and consistent finding in memory research for both children and adults is that ‘repetition facilitates performance’ (Brainerd and Ornstein 1991). The improvement in performance observed with repetition assumes that the repeated information is accurate and not influenced by variables such as leading questions. Investigators evaluating ways to improve the storage of information have found that ‘across session repetition generally delays forgetting for subjects of all ages’ (Poole and White 1995). These general findings suggest that a child’s memory for a witnessed event can be improved through some form of practice occurring after the event. Studies have examined specific ways to enhance children’s memory using different types of repetition or practice, typically using follow-up sessions in which they were interviewed or questioned about a previously witnessed event. Studies have demonstrated improvement in recall three to eight weeks after an event for children who were interviewed within the first few days of the event (Dent and Stephenson 1979; Baker-Ward, Hess, and Flanagan 1990). In a related study, investigators re-tested children interviewed at one week or more after an index event and found no improvement in subsequent recall (Goodman et al. 1991a). These results suggest that there may be a critical period following the initial exposure to the information in which repetition may have to take place for there to be a benefit to a child’s memory. The benefits of practice interviews may not be limited to improving recall. Repetition through ‘neutral’ questioning, soon after an event, has even been reported to ‘reduce susceptibility to suggestion for both children and adults’ (Warren and Lane 1995). Both children and adults perform better on memory tasks involving information that they understand and is relevant or interesting to them. A developmental progression has been reported in children’s memory of repeated events that they have participated in. Younger children (age 2 1⁄2 years) rely most on causal relationships, and gradually develop the ability to organize events temporally or hierarchically over the next three years (Price and Goodman 1990). Goodman et al. (1990) evaluated effects of participation in an activity on children’s recall and reported that ‘children are more resistant to suggestions about personally significant actions than one would predict based on previous research.’ In this study, four- and seven-year-old children who participated in a play activity or simply watched the activity demonstrated similar free recall of events; however, the children who participated

were more resistant to suggestive questioning (Rudy and Goodman 1991). When pre-school age children are asked to recall events, using open-ended questions, in general they provide accurate information. Unfortunately, pre-schoolers’ accounts of events typically contain very limited and incomplete information (Fivush et al. 1991). Repeated interviews of children using open-ended questions continue to demonstrate generally accurate accounts of events, but very limited information. Importantly, the information recalled on second or third interviews, while still accurate is often different from the information initially recalled: ‘pre-school children seem to recall different but still accurate information each time they recall an event’ (Fivush and Shukat 1995). These results could suggest that one way to obtain more complete accounts of events using open-ended questions would be to conduct multiple interviews. In spite of this potential advantage of multiple interviews, the children being interviewed would be susceptible to suggestion and other intervening variables during periods between interviews. In practice, these risks outweigh the possible benefits of multiple interviews, with most interviewers attempting to minimize the number of interviews of child witnesses. Due to the very limited information obtained from young children who are asked to recall witnessed events, researchers have studied the use of more directed questioning. The use of directed questions has a greater potential to be leading or suggestive, but may elicit information that a child will not volunteer with free recall (Dent and Stephenson 1979). This research is relevant for court procedures in which attorneys and investigators routinely use directed questions when interviewing child witnesses. Directed questions may simply provide context, or may be much more leading, asking a child to choose from a group of answers or to limit their response to yes or no (Peterson and Biggs 1997). Depending on the type of directed questioning, these techniques have the potential to dramatically increase (more than double) the amount of correct information that children recall. This improvement in recall comes at a significant cost, with most studies demonstrating a simultaneous increase in inaccurate information provided (Poole and Lamb 1998). The accuracy of children’s accounts of events decreases with time, and this finding has been described in many ways including ‘memory fade,’ ‘omission,’ or simply ‘forgetting’ (Brainerd, Kingma, and Howe 1985; Howe and Brainerd 1989; McGough 1994; Fivush and Shukat 1995). Test–re-test designs have demonstrated that the accounts of school age children contain up to 10 per cent inaccurate information when questioned within the first week following a witnessed event. When re-tested at several months, up to two years, the proportion of inaccuracies may double and has been reported at approximately 20 per cent (Flin et al. 1992; Poole and White 1993). This increase in inaccurate information recalled has not been

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reported in adults who maintain a consistent 10 per cent rate of inaccuracies over time. Many of the events that children may be asked to provide eyewitness testimony for may have been stressful or even traumatic experiences. To study the effects of stress on children’s memory, researchers have used designs that incorporate naturally occurring stressful events such as medical or dental examinations and procedures (Peters 1991). The effects of stress caused by blood draws and inoculations on children’s memory were investigated in a series of studies by Goodman et al. (1991b). In these studies, three- to seven-year-old children demonstrated similar recall for stressful and non-stressful events, except for very highly stressed children who demonstrated enhanced recall and reduced suggestibility. Saywitz et al. (1991) compared children’s memories of medical examinations with and without a genital exam. Children who experienced a genital exam failed to report this exam unless they were specifically asked about it. None of the children who did not experience a genital exam falsely reported genital touch, even when using anatomically detailed dolls; however, a small number of the children made incorrect reports in response to direct questions. To study the effects of more invasive, painful, and potentially traumatic events on memory, Goodman et al. (1994) studied children undergoing voiding cystourethrography, a procedure which involves urethral catheterization and infusion of fluid into the bladder. Age effects on the children’s memory of the procedure were prominent, with older children recalling more correct information, making fewer errors, and demonstrating more resistance to suggestion than younger children. These age differences were most prominent when the youngest children, aged three to four years, were compared with the older children, aged up to ten years. Additional interesting findings reported in this study included: none of the children developed amnesia for the procedure; younger children who endured multiple medical procedures had poorer recall; and children who had nightmares about the procedure were more suggestible than the other children. Some researchers have suggested that children’s memories of traumatic events such as physical or sexual abuse interact with emotional factors in a complex but predictable sequence to produce variability in their reports (Summit, Miller, and Veltkamp 1998). Some experimental support for this hypothesis has been reported in studies of abused children in psychotherapy who demonstrated initial denial followed by active disclosure and subsequently recantation of reported abuse (Sorensen and Snow 1991). Other studies have used samples of abused children involved with a child protection agency and reported that most (78 per cent) children simply disclose without going through other stages (Bradley and Wood 1996). Although abused children may not all go through particular stages, some proportion of these children will fail to report and may even deny memory of being abused during certain periods following the abuse.

Children are asked to provide information in a wide variety of contexts. The most visible of these places are courtrooms, which have the potential to be intimidating and stressful. Some jurisdictions have implemented programs to familiarize child witnesses with courtrooms to reduce possible deleterious effects of stress on their testimony (Saywitz 1995). In a study comparing differences in recall of eight- to ten-year-old children in a mock court or a classroom setting, children experienced significantly more stress in the court setting (Saywitz and Nathanson 1993). Children’s recall was impaired in the court setting for open-ended questions, but was similar in both settings for directed questions. Additionally, it was reported that children’s perception of strong social support was correlated with lower anxiety. The effects of a conventional legal interview were compared with a more developmentally appropriate interview in a study of fiveto seven-year-old children (Carter, Bottoms, and Levine 1996). The study demonstrated significantly reduced accuracy when children were questioned in ‘legalese,’ and increased susceptibility to misleading suggestions when children were interviewed in an intimidating manner. These studies suggest that children may be able to provide more complete or more accurate information when they are questioned with developmentally appropriate language in a less stressful environment with social supports.

FACTORS THAT MAY INFLUENCE CHILDREN’S MEMORY The fact that children’s reports of witnessed events may be less accurate and less complete than those of adults does not fully explain other deficits that have been reported in children’s accounts of events. Several studies have reported that children may be more readily misled or susceptible to suggestions of inaccurate information than adults. This susceptibility of children has been reported for a wide variety of interventions, including directly misleading questioning, and more subtly misleading interventions such as simply repeating questions or using forced choice questioning. Numerous studies of children’s memory have added some suggestive or misleading questions into the testing of recall to allow evaluation of the effects of leading questions. In one study, nine-year-old children were found to be significantly more suggestible than adults when questioned about central events in a video they watched (Warren and Lane 1995). In a study comparing four- and seven-year-olds who were questioned about an activity that they had observed or participated in, children were described as relatively resistant (approximately 90 per cent accurate) to suggestions that might be associated with abuse (Rudy and Goodman 1991). Younger children were more suggestible than older children; however, no age differences were found in children’s responses to misleading

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questions that implied sexual abuse. In a study of children receiving inoculations, younger children (aged three to four years) were significantly more suggestible than older children (aged five to seven years) in response to questions about the inoculation (Goodman et al. 1991b). The children were in general less suggestible regarding actions than information about the persons involved, and very few of the children were susceptible to leading questions suggesting sexual abuse. In order to study the effects of multiple leading questions, some studies have randomly assigned children to be interviewed in a consistently leading or non-directive way regarding a witnessed event. In a study of five- to six-year-old children who were either questioned in a neutral manner or ‘interrogated’ using multiple leading questions, the interrogated children ‘uniformly’ changed their accounts of events to match the interviewer’s suggestions (Thompson, Clarke-Stewart, and Lepore 1997). These altered accounts persisted when the children were subsequently interviewed in a non-leading manner. In a study of suggestive interviewing with children aged three to six years, the younger children were described as ‘significantly more vulnerable to suggestion’ than the older children (Ceci and Huffman 1997). The investigators noted that suggestions of false-negative, sexual, or salient information were more difficult to implant in children’s statements; however, once implanted, the children resisted attempts to ‘debrief ’ them. Interestingly, this study presented videotaped interviews to mental health professionals who were unable to distinguish the false, suggested accounts from true accounts. The timing of leading, suggestive or misinformation has been investigated using a variety of designs. In a study of six- and nine-year-old children, misinformation was presented two weeks after the children participated in an activity. Both age groups showed similar interference effects with the misleading information reducing the accuracy of their reports of the event (SchwartzKenney and Goodman 1999). Lindsay et al. (1995) demonstrated that ‘children were especially influenced by suggestions presented immediately before the test rather than two days earlier’ and that ‘children may find it difficult to escape the effects of misleading suggestions, even when the interviewer warns the children against them.’ Ceci et al. (1996) and others have described ‘source misattribution’ as a mechanism explaining the suggestibility of pre-school children. Source misattribution is a process in which children recall being presented with false information but, in retrospect, are unable to determine the source of the information and incorrectly recall this information as a real event. This mechanism was demonstrated in a study of forty children aged three to six years in which younger children were disproportionately more likely ‘to claim that they remember actually experiencing events that they only thought about or were suggested by others’ (Ceci et al. 1994). In a study in which children were presented with false information about a

medical procedure that took place an average of more than three years earlier, almost three-fourths of the younger (three- to five-year-old) and half of the older (six- to eight-year-old) children assented to a medical procedure that had never occurred (Quas et al. 1999). When these assenting children were provided with a detailed description of the false procedure, most of the children subsequently denied experiencing the procedure. Children may provide false accounts of events in response to interviewing techniques that are not apparently suggestive. For example, the use of specific questions to interview children has been demonstrated to significantly reduce the accuracy of children’s reports. In a study of children’s reports of treatment in an emergency room, open-ended questions produced 91 per cent accurate information compared with specific questions, which provided only 45 per cent accuracy (Peterson and Bell 1996; Peterson and Biggs 1997). Simply repeating questions or repeating interviews may have suggestive effects on children. A child who responds to a repeated question may believe that they made an error when they first responded to the question, and may change their response in an attempt to please the interviewer or to guess the correct answer. Effects of repeated questioning were evaluated in a study comparing the accuracy of information elicited from four- to eight-year-old children and adults (Poole and White 1991). Younger children were more likely than older children and adults to change their responses to yes–no questions. In a follow-up study, the same children were asked questions about the event they had witnessed two years earlier (Poole and White 1993). Only 50 per cent of the children’s responses to yes–no questions were the same as their responses two years earlier – a performance that is no better than chance. The role of questions repeated across interview sessions is not clear. Research has demonstrated that repeated neutral interviews can maintain the accuracy of children’s and adult’s memories, but few studies have examined discrepancies in information obtained with repeated interviews. In a study of threeand five-year-old children interviewed about an event they participated in at both three days and one year after the event, information that children produced at both interviews was reliable. Importantly, information that was introduced for the first time at the second interview was almost always inaccurate (Salmon and Pipe 1997). A biased interviewer with inaccurate preconceptions about the events that a child has experienced can influence the accuracy of a child’s report. This may take place as an interviewer inadvertently rewards responses that are consistent with the interviewer’s bias and ignores responses that are inconsistent with their bias. The effects of an exculpatory, an accusatory or a neutral interview on children aged five to six years were evaluated using multiple interviews following a witnessed event in which a janitor handled some dolls. Following a biased initial exculpatory or accusatory interview, most children provided

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inaccurate accounts that were consistent with the interviewer’s bias (Thompson, Clarke-Stewart, and Lepore 1997). The majority of the children, whose second interviewer had a contradicting bias, reversed their accounts and fit them to the interpretation provided by the second interviewer. A similar study used blinded social workers to interview pre-school children about a game they had played a month earlier (Ceci and Bruck 1995). The social worker was provided with a one-page report containing both correct and incorrect information about what might have happened during the game, and was asked to interview the children about the game. For children who were interviewed by a social worker who was inaccurately informed, 34 per cent of the three- to four-year-old and 18 per cent of the five- to six-year-old patients incorporated false events into their accounts. These results were extended by providing the social worker’s interview notes to another interviewer who re-interviewed the children three months later. At this follow-up interview, children continued to incorporate the previously suggested errors into their accounts and became more confident of the incorrect information. Most studies investigating children’s suggestibility have limited the use of suggestive techniques to test the effects of a particular technique. These designs may not accurately mimic forensic interviews in the community in which children may be subject to multiple suggestive influences. In two studies designed to evaluate the effects of multiple suggestive interview techniques on child witnesses, Garven et al. (1998) used techniques drawn from the McMartin Preschool investigation to interview children about a stranger’s visit to their day-care center. Interview techniques used included suggestive questioning, verbal reinforcement and punishment, peer pressure and requests for children to think about their answers or to pretend that something happened. Children who were interviewed with multiple suggestive techniques were less accurate (43 per cent compared with 83 per cent) and made more false accusations (58 per cent compared with 17 per cent) than children who were interviewed using suggestive questions alone. This study was subsequently replicated using a subset of the suggestive techniques, reinforcement and peer pressure (Garven, Wood, and Malpass 2000). The investigators reported a higher rate (35 per cent compared with 12 per cent of controls) of false accusations against a visitor, and a higher rate (52 per cent compared with 5 per cent in controls) of false reports of ‘fantastic’ events (being taken from the school in a helicopter) in the children who were interviewed using reinforcement and peer pressure. In a subsequent nonsuggestive interview, the children who had undergone the brief, ten-minute suggestive interviews continued to make false allegations against the visitor. Some authors have reported that an analysis of the interaction between children and their interviewers can provide a uniform explanation for findings of children’s suggestibility. Meyer (1997) reviewed a variety of research

on suggestibility in children and suggested that an underlying principle is the response of children to authority. This effect was documented in adults in a series of classic experiments by Milgram (Milgram 1963; Milgram 1965) in which experimental subjects gave what they believed were dangerous electrical shocks to other subjects simply because they were told to do so by an authority figure. These results have been partially replicated in children. In a courtroom or other legal interview situation, children may place a higher value on pleasing the authority figure than on the accuracy of their testimony. In a review of literature on children’s memory and suggestibility, Bruck and Ceci (1999) concluded that in spite of selected strengths and individual variability, there are clear age-related differences in children’s suggestibility. Specifically, children’s memory becomes more complete, more accurate, and less susceptible to suggestion as they grow older. Across a variety of studies, the differences are most profound between pre-school and school age children, although differences have been reported across all ages of children. The authors described children’s desire to please adults – a critical skill that they learn from an early age – as a major factor leading to children’s acquiescence to adult’s suggestive interviews. In another review of literature on children’s eyewitness testimony, Goodman and Schaaf (1997) focused on methods of interviewing children. These authors concluded that there is a continuum of questions from open-ended to leading or suggestive questions. Although open-ended questions produce the most accurate information with the lowest risk of suggesting erroneous information, at times it may be best to use carefully formulated leading questions to obtain specific information that children might not otherwise volunteer.

COURT TESTIMONY OF CHILDREN, RISKS, BENEFITS AND THE JURY Child witnesses in court A confrontational cross-examination in which a child victim is asked to recount details of sexual abuse in front of a courtroom full of observers, including a previously trusted family member/perpetrator has abundant potential to be traumatic to the child. This risk to the child, combined with the risk that the child’s testimony will suffer due to stress, has led to proposals to reduce the stress on child witnesses, distance them from the proceedings, or to avoid having children appear in court at all. It may not be possible to study the effects of testifying on a child using a randomized, controlled design; however, a limited number of studies have investigated the psychiatric effects of providing courtroom testimony. In an early study of the effects of court involvement on children involved in sexual abuse investigations and

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litigation, questionnaires were sent to administrative and clinical staff of child protection agencies (Tedesco and Schnell 1987). The survey results indicated that the majority of the involved children found the investigations ‘helpful’ and only 21 per cent found the process harmful. Helpfulness was not related to interventions such as the use of videotape or the presence of a support person. In a more elaborate design, seventy-six children aged six to seventeen years who were involved in child protection proceedings were assessed when referred to the study and then five months later (Runyan et al. 1988). All of the children demonstrated a ‘high degree of distress’ at the initial assessment, with prominent high scores on measures of anxiety and depression. After five months, average scores improved for all subjects; however, the improvement was much greater for children who had been involved in court proceedings compared with children who were still waiting for court proceedings to begin (30 per cent versus 17 per cent improvement). Children who had testified in juvenile court demonstrated an even greater improvement in measures of psychiatric distress (42 per cent). The authors concluded that juvenile court testimony was beneficial to children; however, this conclusion may only apply to the extent that court testimony resolved some of the already high anxiety that the children were experiencing as participants in child protection proceedings. In a recent study of eighty-one children who were sexually abused by a family member, measures of the children’s stress were compared with the social service interventions that they had received (Henry 1997). The number of investigative interviews was positively correlated with stress, while a trusting relationship with a professional was negatively correlated with stress. The investigators found no relationship between stress and testifying in court. Studies that have evaluated children testifying in criminal court have generally described poorer outcomes than studies of children testifying in civil court. In a study of more than 200 children aged four to seventeen years who were referred by prosecutors, the level of behavioral disturbance was evaluated following initiation of prosecution, after disposition and at three and seven months after testifying (Goodman et al. 1992). Children who testified evidenced greater behavioral disturbance seven months after testifying, but significant differences were not found for other intervals. Before testifying, children were most likely to report being fearful of facing the defendant in court. Children who were fearful of facing the defendant had more difficulty responding to questions and were more likely to subsequently report that testifying had been traumatic. Younger children who had been severely abused were the most seriously affected by testifying. In a subsequent multi-site study of 256 child victim witnesses in criminal courts, the psychiatric symptoms in four- to seventeen-year-olds whose cases were referred for prosecution were evaluated (Whitcomb and National Institute of Justice (U.S.) 1994).

Children who had been sexually abused were described as ‘highly distressed’ when initially evaluated, but eight months later the majority had demonstrated improvement in their symptoms. Testifying in court was not significantly related to the severity of symptoms; however, those children who testified multiple times or who ‘experienced a lengthy or harsh cross-examination’ demonstrated significant adverse effects. At the follow-up interviews, an inventory was used to score the stress that the children had experienced from court interventions (Runyan et al. 1994). Testifying in court was ranked as significantly more stressful (score ⫽ 111) than placement in foster care (score ⫽ 100) or interviews with police or social workers (scores ⫽ 50 and 35, respectively). Most studies of children undergoing court proceedings report very high levels of psychiatric symptoms, particularly stress, both for children who testified and those who did not testify. It may be impossible using naturalistic designs to define the precise contribution of court testimony to the already devastating life stress that many of the children were experiencing. It could be argued from available data that courtroom testimony may contribute to the resolution of some stressors and thus may be beneficial. Alternatively, it could be argued that confrontational court testimony has the potential to create long-lasting trauma to child witnesses. The American Academy of Child and Adolescent Psychiatry’s position paper on ‘Protecting Children Undergoing Abuse Investigations and Testimony’ warns of ‘serious stress and potential trauma’ to children involved in court proceedings (AACAP 1989). The document recommends expedited handling of a variety of investigative and court procedures involving children, the use of child psychiatrists to assist in a variety of aspects of investigation and court procedures, special procedures to make the courtroom less stressful, and changes in evidentiary requirements to allow hearsay statements from children.

Jury perception of child witness testimony A decisive factor in many court cases is the jury’s assessment of the witness’s credibility. Studies have failed to demonstrate that children are consistently perceived as either more or less credible than adults. Instead, most studies suggest that jurors evaluate the credibility of a child witness in a larger context. The earliest study designs questioned jurors about mock case ‘transcripts’ or videotaped testimony in which the age of witnesses was experimentally varied. In a series of studies comparing jurors perceptions of six-, ten- and thirty-year-old witnesses, the ten-year-old witness, and to a greater extent the six-year-old witness, were perceived as less credible that the adult witness (Goodman, Goldings, and Haith 1984). In subsequent studies, Goodman et al. (1987) demonstrated that a mock jury’s confidence about the credibility of a child witness was related to the

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child’s age, confidence and attractiveness, but was not related to the accuracy of information conveyed by the child. Interestingly, in some situations, in which the child was considered naive such as sexual abuse, younger children were rated more credible than adults. Using more than 600 simulated jurors who read simulated criminal cases, Leippe and Romanczyk (1989) reported that younger witness age was associated with lower perceived credibility, particularly in cases that required a strong memory. Although most studies of juror perception of child witnesses have demonstrated lower credibility for child witnesses, some studies have demonstrated no relationship between witness credibility and age. In a study in which mock jurors rated the non-scripted testimony of child (ages eight to twelve years) and adult witnesses who had witnessed a staged abduction, Wells, Turtle, and Luus (1989) reported no significant relationship between the age of the witness and their perceived accuracy. The variable most closely related to jurors’ perceptions of accuracy was the confidence of the witness. This finding was replicated in a study by Leippe, Manion, and Romanczyk (1992) that reported an over-reliance on witness confidence by mock jurors attempting to judge the accuracy of children’s testimony. In a series of studies examining jurors’ perceptions of the child witness in sexual assault cases, Bottoms and Goodman (1994) reported that younger witnesses were perceived as more credible than older witnesses. The authors explained these conflicting findings as a result of an interaction between the perceived competence and perceived trustworthiness of the witness. In general, children are regarded trustworthy but not competent, leading jurors to consider their testimony less credible, particularly when the testimony requires complex memory or cognitive skills. In cases in which the witness could be deceptive, children’s lack of cognitive sophistication makes jurors perceive them as less capable of deception and more credible. In cases involving sexual abuse, in which children are presumed to have limited sexual knowledge, the presence of sexual knowledge may be interpreted by jurors as evidence of sexual abuse, enhancing the child’s credibility. Interventions designed to protect a child witness from the stress of providing courtroom testimony may have unintended effects on the credibility of the child’s testimony. Using an elegant and elaborate design involving a simulated abuse of child victims aged five to nine years, the effects of the victims testifying using closedcircuit technology were investigated in simulated jury trials (Goodman et al. 1998). Both advantages and disadvantages of using closed-circuit technology were reported. Children were less anxious and less likely to refuse to testify using closed-circuit technology; however, with some exceptions children’s testimony was more accurate when closed-circuit technology was used. The use of closed-circuit technology did not bias the jury against the defendant as the defendant had argued it

might in Maryland v. Craig (1990); however, the artificial nature of the study and the minor nature of the ‘crime’ could explain this finding. Importantly, closed-circuit testimony did bias the jurors against the child witnesses who perceived them as less credible than child witnesses who testified in the courtroom. The authors concluded that the use of closed-circuit technology ‘may be beneficial for some child witnesses,’ but they warn that it ‘may also limit the impact of children’s testimony on juror’s initial decisions.’

INTERVIEWING CHILD WITNESSES: PRACTICAL CONSIDERATIONS AND SPECIFIC SUGGESTIONS Preparation for interviewing a child witness In many cases, a child witness may disclose information to a medical professional as a part of routine evaluation or treatment, making it impossible to adequately prepare for an interview. Disclosures that take place in this context not only initiate investigations but also may be important evidence for court proceedings. Every state has laws requiring professionals to report suspected child abuse to the state’s child protective agency. When a child discloses abuse, a natural instinct of many professionals is to attempt to further question the child, both to clarify the child’s statements and to attempt to gather information for law enforcement. Attempting to conduct an extensive forensic interview without preparation and immediately after a child makes a disclosure of abuse has numerous risks. The most important of these risks is the failure to preserve an adequate record of the interview, exposing any prosecution related to the child’s allegations to criticisms of bias and suggestive interviewing resulting in false allegations. Unless a medical professional has the experience and the resources necessary to interview a potential child witness, the interview should be limited to determining that the threshold for reporting abuse has been met and that enough information is available to allow the child protective agency to determine what must be done to protect the child. Subsequent interviews should be arranged by a child protection agency. Of course, all of the information that the child provides at any point should be carefully documented, including exact quotes of both the interviewer’s questions and the child’s responses whenever possible. Children’s statements and other behaviors pertaining to abuse, when obtained during a purely investigative interview may be considered hearsay and not admissible as evidence (McGough 1994). Children’s disclosures of abuse, when they occur in the context of medical evaluation or treatment, are hearsay, but may qualify for the ‘medical diagnosis and treatment’ exception to the

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hearsay rule allowing medical professionals to testify to a child’s statements. The probability that a child’s statements will qualify for the hearsay exception is enhanced if the child’s statements are pertinent to their medical evaluation, if the child understands that one purpose of the evaluation is to obtain medical treatment, and if information pertaining to the accuracy of the child’s statements is documented. Statements that do not qualify for the ‘medical evaluation and treatment’ exception to the hearsay rule may still qualify for an ‘excited utterance,’ ‘residual,’ or ‘child’ hearsay exception provided that the statements were spontaneous or if there is other evidence of the reliability of the statements (Myers, pending publication). The American Academy of Child and Adolescent Psychiatry’s Practice Parameters for the Forensic Evaluation of Children and Adolescents Who May Have Been Physically or Sexually Abused suggests that clinical and forensic evaluations must be separate to assure clear role definitions (Bernet 1997). The use of distinct evaluators to some extent may control for the effects of interviewer bias, but may effectively exclude any hearsay testimony from the forensic evaluator, potentially requiring the child to testify and participate in additional interviews. When a child will be interviewed in an investigative interview or in court, it is often possible to prepare for the interview. Perhaps the first concern of an interviewer should be the timing of the interview. The interview should take place as soon as possible to minimize forgetting, and the risk that the child’s testimony will become contaminated in some way (Poole and Lamb 1998). The duration of the interview may need to be adjusted to the child’s endurance, motivation, and capacity to pay attention (Poole and Lamb 1998). Even when a child is given breaks, it may be necessary to conduct multiple interviews to maximize the information the child is able to convey (Walker and Hunt 1998). Although multiple non-leading interviews may strengthen a child’s memory of events through repetition, this process may also introduce errors through strengthening incorrect memories, increasing the risk of intervening suggestions, and increasing the risk that the child will change their responses in an attempt to please the interviewer. The importance of videotaping the investigative interview cannot be over-estimated. This process preserves a record of the child’s testimony and allows the interview to be evaluated by both the prosecution and the defense to protect against allegations that the interviewer influenced the child witness. Standards for videotaping have been proposed and include: the use of unbiased interviewers; no editing; the use of developmentally appropriate language; the use of questions that evaluate a child’s competency and the completeness of the account; and questions that probe whether the child could have been influenced by others (McGough 1994). Although the American Academy of Child and Adolescent Psychiatry’s Practice Parameters for the Forensic Evaluation of

Children and Adolescents Who May Have Been Physically or Sexually Abused simply states ‘if possible, audiotape or videotape the interview’ (Bernet 1997), failing to videotape the interview may fall below community standards of practice for interviewers who have had time to prepare or who are conducting forensic evaluations. Interviewers should be familiar with state laws defining standards for videotaped interviews to assure that the tape will be admissible as evidence. Prior to an interview, reviewing available records to learn about the child’s development and obtain detailed knowledge of the allegations or other information that the child is being questioned about, can help an interviewer to work at the child’s level and guide the interviewer’s questioning (Saywitz and Camparo 1998). Some authors have suggested that interviewers should be blinded to the allegations to avoid bias; however, at this time blind interviewing is not commonly used and will require additional research to determine its role (Saywitz and Camparo 1998). It may be valuable for an interviewer to obtain questions from all interested parties before initiating an interview so that both prosecuting and defense attorneys’ questioning can be accomplished in a single interview. An extension of this practice allows both prosecution and defense personnel to observe the interview and provide the interviewer with follow-up questions during breaks or through some non-intrusive means of communicating with the interviewer (McGough 1994). This approach further minimizes the number of interviews, interviewers (Poole and Lamb 1998) and the risk of distorting the child’s testimony. Children should be interviewed in an appropriate setting to minimize their anxiety and maximize their ability to provide complete and accurate information. An ideal setting would be comfortable, free of distracting stimuli, and may be familiar (Saywitz and Camparo 1998). The presence of intriguing toys or other objects, while inviting, may be distracting, particularly for pre-school children or children with attention deficits. The interviewer’s clothing and other objects such as badges, clipboards, and microphones may increase the perceived authority of an interviewer, making the child more suggestible (Meyer 1997). The presence of an adult support person may reduce a child’s anxiety, and in some cases children may refuse to separate from a family member to speak to an interviewer. Family members may be potential defendants, may be strongly biased, or may even communicate their own anxiety to the child, interfering with an interview. Because of the unpredictable effects that a support person may have on a child witness, it is generally recommended that children be interviewed alone (Poole and Lamb 1998). Although interviewers may be able to control the setting of an investigative interview, very little can be done to control the setting when children give courtroom testimony. Experts may advise the court regarding courtroom interventions such as the presence of a support person or a toy and closed-circuit

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testimony for situations in which a child’s testimony may be seriously impaired due to the courtroom environment.

Questioning a child witness: interview technique The first task that a child interviewer must accomplish is an assessment of the child’s developmental level, including their ability to understand and communicate. Children’s vocabulary, grammar, and ability to comprehend complex or abstract concepts improves as they develop. Child interviewers should use a limited vocabulary (minimize polysyllabic words) with simplified sentence structures that emphasize action and minimize the use of the passive voice. Pre-school children may not understand pronouns, and interviewers should substitute more precise words (Saywitz 1995). Younger children may not have fully developed concepts of time or distance and may be unable to accurately provide information about dates, locations, or measurements (Saywitz and Camparo 1998). These abilities may be evaluated during the initial minutes of the interview to guide the developmental level of the remainder of the interview. Because children are often uncomfortable with strangers and unlikely to disclose personal information, the primary goal of the initial phase of an interview is to build rapport. It is important during the building of rapport to avoid topics that may suggest interviewer bias to the child. To minimize the child’s anticipatory anxiety, the purpose and the structure of the interview should be communicated to the child in general terms, carefully avoiding any suggestion of information that should be disclosed. Topics of conversation used to facilitate rapport should be limited to neutral topics such as the child’s favorite television program or foods (Saywitz and Camparo 1998). The interaction during this initial phase may set the tone for the remaining interview and the interviewer should use open-ended questions and be patient and attentive to the child without evaluating the content of what the child says (Sternberg et al. 1997). Following establishment of rapport between the interviewer and the child, the child’s competency to testify should be informally evaluated. The child’s competency to testify may be formally evaluated before the child testifies in court; however, an evaluation of the child’s competency to testify before an interview will add credibility to any data obtained during the interview. A child’s competency to testify may be evaluated by asking the difference between telling the truth and lying, asking the child for examples, and asking the child what will happen if they lie. This procedure requires young children to define somewhat abstract concepts and may lead an interviewer to erroneously conclude that a young witness was not competent (Poole and Lamb 1998). More appropriate questions for young children ask, using

age-appropriate language, whether simple and concrete statements are lies or the truth (McGough 1994). Lyon and Saywitz (1999) evaluated the competency to testify of ninety-six four- and five-year-old children using an illustrated identification task. Some 69 per cent of the four-year-olds and 80 per cent of the five-year-olds were able to correctly identify which illustrated characters had told the truth or lied, and an even higher proportion of each group of children (73 per cent and 87 per cent, respectively) were able to identify accurately which illustrated characters had done something ‘bad’ or would get ‘in trouble.’ The study also demonstrated that the majority of the children were unable to ‘define’ truth or lie. These data suggest that the majority of five-year-old children are competent to testify, and that the most appropriate way to evaluate their competency is with concrete, identification tasks rather than questions that require children to define terms. After evaluating the competency of the child to testify, several instructions regarding the interview are normally provided. The instructions that are provided to the child regarding the rules of the interview play an important role in preparing the child for the main portion of the interview (Walker and Hunt 1998). The child should be told to describe everything that happened and not to leave out anything. It should be emphasized that the child should only tell the truth, should not guess or lie, and that it is all right to say they do not know. The child should be told to correct the interviewer if he or she says something wrong because the interviewer does not know what happened. Before questioning a child about the event(s) of interest, many researchers suggest (and several interview protocols incorporate) a practice task (Yuille et al. 1993; Fisher and McCauley 1995; Lamb, Sternberg, and Esplin 1998; Poole and Lamb 1998). A commonly suggested practice task would be to ask a child to describe a recent event such as birthday party, holiday celebration, or school outing. The practice task allows the interviewer to evaluate the child’s abilities, and to provide feedback to the child. The child has the opportunity to practice providing complete and detailed responses to openended questions, and also to learn what will be expected later in the interview. Interviewers should refrain from using directive or specific questions during the practice task to maintain the child’s expectation of providing elaborate narrative responses to questions. During the practice task, interviewers should emphasize the accuracy and completeness of the child’s account, praising children for their effort, but carefully avoiding reinforcing specific answers (Saywitz and Camparo 1998). The crucial importance of the introductory minutes of an interview were demonstrated in a study that compared the effects of using either open-ended or direct rapport building styles on the information that alleged child abuse victims provided during an initial forensic interview (Sternberg et al. 1997). The open-ended and

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direct styles consisted of scripted interviews that were used to introduce the interview to the child; each script required approximately 7 minutes to complete. The content of the interviews was similar, but the open-ended script called for predominantly open-ended prompts rather than focused questions. In response to the same initial substantive question, children whose interviews began with the open-ended style produced more than twice as much information as children whose interviews began in the directed style. Children in the open-ended condition continued to provide more information in response to interviewer’s subsequent questions. When entering the substantive portion of the interview, interviewers must continuously monitor themselves because the manner in which children are questioned can significantly alter both the amount of information obtained and the accuracy of the information obtained. The use of questions that contain suggestions, implications of fact, or that are threatening, blaming, or otherwise emotionally laden (separate from the content of the question) should be avoided. The best way to introduce the topic of interest to the interviewer is to allow the child an opportunity to volunteer information. For example, an interviewer may ask if the child has anything they want to tell, may ask the child to tell why they are being interviewed (Poole and Lamb 1998), or may ask if anything has happened to them (Bernet 1997). This approach is often unsuccessful with very young children, requiring interviewers to introduce the topic of interest with some sort of leading question. There is no agreement among experts or researchers regarding the best way to do this; however, there is agreement that the interviewer should not repeat a child’s prior allegation. An interviewer may begin by asking a child to describe some known aspect of the crime, such as the crime scene [National Institute of Justice (U.S.) 1992]. Other approaches include discussing the child’s body parts and any injuries, asking about problems, safety or people that the child does or does not like to be with (Saywitz and Camparo 1998). Once a child begins to describe an event of interest, they should be allowed to continue without interruption, and with the interviewer patiently tolerating the child’s descriptions of peripheral or irrelevant information (Walker and Hunt 1998). Perhaps the most important decisions regarding the method of subsequently questioning children pertain to the use of and timing of open-ended and leading or directed questioning. The inevitable conclusion of a review of current research on questioning children is that a dichotomous view of openended versus directed questioning does not apply. Each technique has strengths, and the best interview technique will incorporate both styles, normally beginning with predominantly open-ended questions and progressing to more direct, but not leading questions. Some questions contain or imply much more information than others, and some questions incorporate greater bias than others. The amount of information implied in an interviewer’s

questions may have to be increased to elicit information; however, the interviewer should not alter their questions to suggest answers to questions or other biasing information, such as the interviewer’s belief that the child was sexually abused. The precise use of this continuum of questioning styles must be applied to the individual child, the interview setting, and the known circumstances of each case (Goodman and Schaaf 1997). Open-ended questions have the advantage of introducing a minimal amount of potentially suggestive or misleading information to the child. Further, a response to an open-ended question may contain more detail or provide a fuller picture of what happened than responses to narrowly phrased questions. When interviewers are restricted to using open-ended questions with young children, less information is obtained than could have been obtained by using a combination of open-ended and directed questions (Lamb, Sternberg, and Esplin 1998). In effect, children tend spontaneously to provide very few details, and pre-school children may have problems even organizing the information that they recall without the context provided by directed questions. Another reported risk of open-ended questioning is failure to provide enough information for the child to correctly place the event of interest. In this situation, the child’s responses may describe events that occurred at a different time, involved different individuals, or places or perhaps had little or nothing to do with the events of interest. Directed questioning of children has been demonstrated to produce much more complete information than open-ended questioning techniques (Poole and Lamb 1998). Careful, directed questioning provides context and directs the child to recall specific information without suggesting an answer. In practice, it is impossible to avoid suggestions with directed questions. For example, the rather neutral question ‘what did the man do?’ clearly suggests that ‘the man’ may have done something (Goodman and Schaaf 1997). Particularly when using more directed questions, it is important for an interviewer to remind children that the interviewer does not know the answer to the questions and that it is alright for children to say that they don’t know, but that they should not guess or provide incorrect information. A logical approach to questioning children is to begin interviews with open-ended questions and progress to increasingly directed questioning. Initial questions should be no more than prompts for the child to elaborate, provide more detail, to describe what happened next, or to clarify information. This approach should be continued as long as it is productive. When more specific information is required, the risk of suggestion may be lessened when the context of the directed questioning can be based on the information the child has already provided. At the end of an interview, it may be beneficial to ask a child to repeat parts of their narrative for clarification. A concluding open-ended question asking if there are other things the child would like to talk about may

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allow a child to disclose further or clarify information (Poole and Lamb 1998). Some investigators have combined techniques and research findings to produce interview protocols. The Step-Wise Interview (Yuille et al. 1993) begins with establishing rapport and practice topics, and progresses from free narrative to increasingly leading questioning followed by the use of interview aids, if necessary. This interview is integrated into the American Academy of Child and Adolescent Psychiatry’s Practice Parameters for the Forensic Evaluation of Children and Adolescents Who May Have Been Physically or Sexually Abused (Bernet 1997). Another protocol, the Cognitive Interview was developed to maximize accurate recall from adult witnesses and has been adapted for and studied with child witnesses [National Institute of Justice (U.S.) 1992]. Features of the Cognitive Interview include creating context, accepting partial information, encouraging varied paths of information retrieval, reducing distractions, and guided imagery. This interview has several conceptual advantages including practice, multiple sensory path retrieval, and the use of a flexible approach in a distraction free environment. In a study comparing children interviewed with the Cognitive Interview or a standard interview, children interviewed with the Cognitive Interview recalled 20–50 per cent more accurate information (Fisher and McCauley 1995). Some investigators warn that some components of the Cognitive Interview, such as guided visual imagery, have not been adequately studied and have the potential to be suggestive (Poole and Lamb 1998). Although the methods of questioning children that are most effective can readily be presented to interviewers or integrated into protocols, it may be difficult for interviewers to integrate them into their practice (Poole and Lamb 1998). Part of the difficulty is the uniqueness of each child who must be interviewed and the imprecise nature of establishing and maintaining rapport with children. Additionally, it is possible that the open-ended techniques that are the most effective for interviewing children are quite different from the techniques that are routinely used in day-to-day communication with children, making it difficult for interviewers to substitute new techniques. In a study that demonstrated significantly improved recall when interviewers asked a child a scripted open-ended question, interviewers shifted their style to more focused questioning immediately following the scripted portion of the interview (Sternberg et al. 1997). In this study, the children’s improved performance on open-ended questions had no effect on the interviewer’s tendency to ask more directed questions.

Special considerations for physical and sexual abuse The majority of the available child witness-related scientific literature pertains to children who are victims or

witnesses in physical or sexual abuse proceedings. Although laboratory research studies cannot simulate abuse, many designs involve suggestions of possible abuse, a medical procedure, or an event that simulates some element of