Principles and Practice of Forensic Psychiatry. ROSNER - Cópia
advertisement
Principles and practice of forensic psychiatry This page intentionally left blank 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 This page intentionally left blank 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 This page intentionally left blank 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 This page intentionally left blank 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 58 History and practice of forensic psychiatry 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 Ethical guidelines 59 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. 60 History and practice of forensic psychiatry 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. Ethical guidelines 61 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 62 History and practice of forensic psychiatry 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 Ethical guidelines 63 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 64 History and practice of forensic psychiatry 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. Ethical guidelines 65 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, 66 History and practice of forensic psychiatry 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. Ethical guidelines 67 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 68 History and practice of forensic psychiatry 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 Ethical guidelines 69 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 70 History and practice of forensic psychiatry 13 14 15 16 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 Ethical guidelines 71 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. Psychological autopsy 91 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, 92 History and practice of forensic psychiatry 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 Legal regulation of psychiatric practice 13 Informed consent and competency Harold I. Schwartz and David M. Mack 97 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 L. Dilts and Douglas A. Sargent 173 This page intentionally left blank 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. 98 Legal regulation of psychiatric practice 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. Informed consent and competency 99 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 100 Legal regulation of psychiatric practice 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 Informed consent and competency 101 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 102 Legal regulation of psychiatric practice 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 Informed consent and competency 103 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 104 Legal regulation of psychiatric practice 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, 108 Legal regulation of psychiatric practice 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 Hospitalization: voluntary and involuntary 109 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 110 Legal regulation of psychiatric practice 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 Hospitalization: voluntary and involuntary 111 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 112 Legal regulation of psychiatric practice 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 Hospitalization: voluntary and involuntary 113 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 114 Legal regulation of psychiatric practice 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. Hospitalization: voluntary and involuntary 115 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 Involuntary civil commitment to outpatient treatment 117 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 118 Legal regulation of psychiatric practice (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 Involuntary civil commitment to outpatient treatment 119 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. 122 Legal regulation of psychiatric practice 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 The right to treatment 127 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, 130 Legal regulation of psychiatric practice 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 Treatment refusal in psychiatric practice 131 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 132 Legal regulation of psychiatric practice 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 Treatment refusal in psychiatric practice 133 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 134 Legal regulation of psychiatric practice 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 Treatment refusal in psychiatric practice 135 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 138 Legal regulation of psychiatric practice 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 Confidentiality and testimonial privilege 139 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.’ 140 Legal regulation of psychiatric practice 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. Confidentiality and testimonial privilege 141 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 Confidentiality and testimonial privilege 143 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). 144 Legal regulation of psychiatric practice 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. Confidentiality and testimonial privilege 145 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). 146 Legal regulation of psychiatric practice 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 148 Legal regulation of psychiatric practice 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. 150 Legal regulation of psychiatric practice 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 Treatment boundaries in psychiatric practice 157 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 158 Legal regulation of psychiatric practice 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 Treatment boundaries in psychiatric practice 159 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 160 Legal regulation of psychiatric practice 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 Treatment boundaries in psychiatric practice 161 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). 162 Legal regulation of psychiatric practice 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 Treatment boundaries in psychiatric practice 163 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. 166 Legal regulation of psychiatric practice 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 Sexual misconduct in the therapist–patient relationship 167 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. 168 Legal regulation of psychiatric practice 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 Sexual misconduct in the therapist–patient relationship 169 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)] 170 Legal regulation of psychiatric practice 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 174 Legal regulation of psychiatric practice 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 176 Legal regulation of psychiatric practice 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. The law and physician illness 177 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 The law and physician illness 179 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. This page intentionally left blank PART 3 Forensic evaluation and treatment in the criminal justice system 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 This page intentionally left blank 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 188 Forensic evaluation and treatment in the criminal justice system 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 Criminal competence 189 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 190 Forensic evaluation and treatment in the criminal justice system 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 Criminal competence 191 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. 192 Forensic evaluation and treatment in the criminal justice system 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 Criminal competence 193 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 194 Forensic evaluation and treatment in the criminal justice system 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 Criminal competence 195 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 196 Forensic evaluation and treatment in the criminal justice system 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. Criminal competence 197 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 198 Forensic evaluation and treatment in the criminal justice system 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, Criminal competence 199 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 200 Forensic evaluation and treatment in the criminal justice system 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 Criminal competence 201 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, 202 Forensic evaluation and treatment in the criminal justice system 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 stru
