Principles and Practice of Forensic Psychiatry, Second Edition

Principles and practice of forensic psychiatry

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Principles and practice of forensic psychiatry Second Edition

Edited by

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

Hodder Arnold A MEMBER OF THE HODDER HEADLINE GROUP

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

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

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

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Contents

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

PART 1

xiii xv xvii

HISTORY AND PRACTICE OF FORENSIC PSYCHIATRY: ROBERT WEINSTOCK

1

1

A conceptual framework for forensic psychiatry Richard Rosner

3

2

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

7

3

History of forensic psychiatry Marvin Prosono

14

4

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

31

5

Guidelines for courtroom testimony Phillip J. Resnick

37

6

Practical issues in forensic psychiatric practice Robert L. Sadoff

45

7

Education and training in forensic psychiatry Rusty Reeves and Richard Rosner

52

8

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

56

9

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

73

10

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

79

11

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

85

12

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

89

PART 2

LEGAL REGULATION OF PSYCHIATRIC PRACTICE: HAROLD I. SCHWARTZ

95

13

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

97

viii Contents 14

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

107

15

Involuntary civil commitment to outpatient treatment Robert D. Miller

116

16

The right to treatment Jeffrey L. Geller

121

17

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

129

18

Confidentiality and testimonial privilege Ralph Slovenko

137

19

The duty to protect Alan R. Felthous and Claudia Kachigian

147

20

Treatment boundaries in psychiatric practice Robert I. Simon

156

21

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

165

22

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

173

PART 3

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

181

23

Introduction Robert D. Miller

183

24

Criminal competence Robert D. Miller

186

25

Criminal responsibility Robert D. Miller

213

26

Novel mental disorders Robert D. Miller

233

27

Post-conviction dispositional evaluations Robert D. Miller

239

PART 4

CIVIL LAW: STEPHEN RACHLIN

247

28

Specific issues in psychiatric malpractice Robert M. Wettstein

249

29

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

260

30

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

273

31

Sexual harassment Liza H. Gold

282

32

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

290

33

Neuropsychiatric assessments in toxic exposure litigation Daniel A. Martell

301

Contents ix 34

Civil competencies J. Richard Ciccone

308

35

Death, dying, and the law Norman L. Cantor

316

PART 5

FAMILY LAW AND DOMESTIC RELATIONS: STEPHEN B. BILLICK

329

36

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

331

37

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

348

38

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

366

39

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

377

40

Juvenile delinquency Roy H. Lubit and Stephen B. Billick

389

41

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

396

42

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

407

43

The child as a witness Robert Suddath

419

44

Violent adolescent offenders Roy J. O’Shaughnessy

441

45

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

455

46

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

463

PART 6

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

473

47

The history of correctional psychiatry Peter N. Barboriak

475

48

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

484

49

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

489

50

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

505

51

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

513

52

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

519

53

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

526

x Contents 54

Psychiatric ethics in the correctional setting Jay E. Kantor

533

PART 7

SPECIAL CLINICAL ISSUES IN FORENSIC PSYCHIATRY: ROBERT WEINSTOCK

541

55

Malingering Phillip J. Resnick

543

56

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

555

57

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

564

58

Violence: causes and non-psychopharmacological treatment Kenneth Tardiff

572

59

Pharmacological treatment of violent behaviors Robert H. Gerner

579

60

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

589

61

Brain disease: forensic neuropsychiatric issues Mace Beckson and George Bartzokis

603

62

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

612

63

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

621

64

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

631

65

Hypnosis and dissociation David Spiegel

638

66

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

643

67

Geriatric psychiatry and the law Daniel J. Sprehe

651

68

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

661

69

Torture and brainwashing Rahn Kennedy Bailey

669

70

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

672

71

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

685

72

Prosecution of assaultive patients Gary J. Maier and Stephen Rachlin

699

73

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

705

74

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

717

Contents xi 75

Brain imaging Rusty Reeves and Stephen B. Billick

724

76

Stalking Mohan Nair

728

77

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

736

78

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

741

79

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

750

80

ERISA, healthcare and the courts J. Richard Ciccone

756

PART 8

BASIC ISSUES IN LAW: ROBERT LLOYD GOLDSTEIN

761

81

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

763

82

The court system and the legislative process Robert Lloyd Goldstein

769

83

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

774

84

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

780

85

An introduction to civil procedure Robert Lloyd Goldstein

789

86

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

796

87

Punishment Russell Stetler and Robert Lloyd Goldstein

804

88

Legal research on the Web Peter Ash

811

PART 9

LANDMARK CASES IN FORENSIC PSYCHIATRY: HOWARD OWENS

817

89

Introduction Howard Owens

819

90

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

820

91

Criminal law and forensic psychiatry Howard Owens

831

92

Legal regulation of psychiatry James W. Hicks

850

Index

877

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Preface to the first edition

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

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

xiv Preface to the first edition

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

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

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

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

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

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

Preface to the second edition

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

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

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

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

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

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

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

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

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

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

List of contributors

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

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

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

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

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

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

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

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

Steven K. Hoge MD Manakin, VA

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

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

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

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

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

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

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

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

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

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

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

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

Stephen Rachlin MD Attending Psychiatrist The Stamford Hospital Stamford, CT

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

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

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

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

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

Douglas A. Sargent MD JD Birmingham, AL

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

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

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

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

PART

1

History and practice of forensic psychiatry

1 A conceptual framework for forensic psychiatry Richard Rosner

3

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

7

3 History of forensic psychiatry Marvin Prosono

14

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

31

5 Guidelines for courtroom testimony Phillip J. Resnick

37

6 Practical issues in forensic psychiatric practice Robert L. Sadoff

45

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

52

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

56

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

73

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

79

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

85

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

89

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1 A conceptual framework for forensic psychiatry RICHARD ROSNER

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

•

•

•

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

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

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

4 History and practice of forensic psychiatry

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

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

A conceptual framework for forensic psychiatry 5

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

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

6 History and practice of forensic psychiatry

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

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

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

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

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

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

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

8 History and practice of forensic psychiatry

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

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

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

Defining forensic psychiatry: roles and responsibilities 9

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

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

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

10 History and practice of forensic psychiatry

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

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

Defining forensic psychiatry: roles and responsibilities 11

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

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

12 History and practice of forensic psychiatry

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

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

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

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

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

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

3 History of forensic psychiatry MARVIN PROSONO

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

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

1

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

2

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

History of forensic psychiatry 15

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

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

3

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

4

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

16 History and practice of forensic psychiatry

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

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

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

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

History of forensic psychiatry 17

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

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

8

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

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

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

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

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

11

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

18 History and practice of forensic psychiatry

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

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

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

12

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

13

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

History of forensic psychiatry 19

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

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

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

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

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

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

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

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

15

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

14

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

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

16

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

17

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

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

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

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

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

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

22 History and practice of forensic psychiatry

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

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

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

18

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

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

History of forensic psychiatry 23

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

20

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

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

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

24 History and practice of forensic psychiatry

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

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

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

History of forensic psychiatry 25

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

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

22

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

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

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

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

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

26 History and practice of forensic psychiatry

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

25

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

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

History of forensic psychiatry 27

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

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

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

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

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

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

Event

3000 BC 1850 BC 1800 BC

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

1200 BC 460 BC 450 BC

AD AD

AD AD

130 528

1256 1272

1292 1302 AD 1487 AD AD

AD

1648

AD

1664 1681

AD

1724 1736 AD 1752 AD AD

AD

1760

1800 1810 AD 1812 AD AD

1838 1840 AD 1843 AD 1844 AD AD

AD AD

1847 1849

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

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

AD

1921

AD

1925

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

1954 1959 AD 1967 AD AD

1969 1972 AD 1976 AD 1982 AD AD

1987 1988 AD 1989 AD 1993 AD AD

AD

1994 1999

AD

2001

AD

2003

AD

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

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

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

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

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

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

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

32 History and practice of forensic psychiatry

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

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

Forensic psychiatric report writing 33

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

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

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

34 History and practice of forensic psychiatry

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

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

Forensic psychiatric report writing 35

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

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

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

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

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

5 Guidelines for courtroom testimony PHILLIP J. RESNICK

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

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

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

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

38 History and practice of forensic psychiatry

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

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

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

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

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

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

Guidelines for courtroom testimony 39

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

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

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

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

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

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

40 History and practice of forensic psychiatry

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

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

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

Guidelines for courtroom testimony 41

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

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

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

42 History and practice of forensic psychiatry

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

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

Suggestions regarding cross-examination

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

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

CONTROL IN THE COURTROOM

Guidelines for courtroom testimony 43

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

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

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

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

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

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

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

6 Practical issues in forensic psychiatric practice ROBERT L. SADOFF

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

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

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

46 History and practice of forensic psychiatry

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

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

1

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

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

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

2

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

3

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

Practical issues in forensic psychiatric practice 47

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

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

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

48 History and practice of forensic psychiatry

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

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

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

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

Practical issues in forensic psychiatric practice 49

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

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

forensic psychiatrists videotape every examination they conduct.

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

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

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

50 History and practice of forensic psychiatry

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

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

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

Practical issues in forensic psychiatric practice 51

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

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

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

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

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

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

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

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

Education and training in forensic psychiatry 53

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

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

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

54 History and practice of forensic psychiatry

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

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

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

Education and training in forensic psychiatry 55

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

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

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

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

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

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

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

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

Ethical guidelines 57

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Principle (Section ) 3

Principle (Section) 7

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

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

Principle (Section) 2

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ETHICAL PRACTICE

REFERENCES

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

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

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

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

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

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

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

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

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

• • • • • • • • •

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

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

74 History and practice of forensic psychiatry

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

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

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

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

Liability of the forensic psychiatrist 75

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

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

76 History and practice of forensic psychiatry

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

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

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

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

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

Liability of the forensic psychiatrist 77

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

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

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

78 History and practice of forensic psychiatry

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

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

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

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

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

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

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

80 History and practice of forensic psychiatry

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

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

MEDICAL ETHICS AND THE DEATH PENALTY

FORENSIC PSYCHIATRIC PARTICIPATION IN THE DEATH PENALTY PROCESS

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

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

The death penalty 81

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

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

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

82 History and practice of forensic psychiatry

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

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

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

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

The death penalty 83

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

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

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

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

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

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

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

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

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

86 History and practice of forensic psychiatry

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

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

Competence assessments 87

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

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

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

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

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

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

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

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

HISTORY

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

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

EVALUATIONS

90 History and practice of forensic psychiatry

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

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

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

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

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

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

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

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

Psychological autopsy 93

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

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

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

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

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

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

PART

2

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

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

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15 Involuntary civil commitment to outpatient treatment Robert D. Miller

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16 The right to treatment Jeffrey L. Geller

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

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18 Confidentiality and testimonial privilege Ralph Slovenko

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

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20 Treatment boundaries in psychiatric practice Robert I. Simon

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

15 Involuntary civil commitment to outpatient treatment ROBERT D. MILLER

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

16 The right to treatment JEFFREY L. GELLER

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

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

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

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

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

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

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

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

Staff member

Wyatt v. Stickney (1972)

U.S. v. Indiana (1984)1

U.S. v. Hawaii (1991)2

U.S. v. Virginia (1999)3

8.3

16

18.25 ⫹ 3 in administrative positions independent of census

Psychiatrist

2

Physician

4

Not discussed

2.5 MDs ⫹ 1.5 NPs

Psychologist (PhD & MA)

3

5.4

12.5

16 ⫹ 1 Director

Social worker (MSW & BA)

7

7.5

16.7

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

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

12

Not discussed

27.8

Specified by functions not numbers

Registered nurse

12

13.8 excluding nights

Licensed practical nurse

6

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

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

Aides

92

Not discussed

153

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

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

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

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

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

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

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

124 Legal regulation of psychiatric practice

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

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

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

The right to treatment 125

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

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

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

126 Legal regulation of psychiatric practice

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

• • •

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

18 Confidentiality and testimonial privilege RALPH SLOVENKO

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Table 19.1 Statutory options for discharging the duty to protect

a b

State

Warn victim

and/or

Report to police

and/or

Hospitalize voluntarily

Attempt involuntary hospitalization

Other

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

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

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

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

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

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

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

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

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

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

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

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

The duty to protect 151

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

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

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

152 Legal regulation of psychiatric practice

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

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

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

The duty to protect 153

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

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

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

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

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

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

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

20 Treatment boundaries in psychiatric practice ROBERT I. SIMON

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

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

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

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

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

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

• • • • • • • • • • •

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• • • • • • • • • •

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sexual misconduct in the therapist–patient relationship 171

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

• • • • •

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The law and physician illness 175

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

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

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

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

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

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

•

Diversion: a benign alternative

•

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

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

•

2

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

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

•

• • • • • • •

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

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

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

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

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

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

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

Guarding against disciplinary excesses 3

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

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

178 Legal regulation of psychiatric practice

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

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

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

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

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

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

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

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

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PART

3

Forensic evaluation and treatment in the criminal justice system

23 Introduction Robert D. Miller

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24 Criminal competence Robert D. Miller

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25 Criminal responsibility Robert D. Miller

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26 Novel mental disorders Robert D. Miller

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27 Post-conviction dispositional evaluations Robert D. Miller

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23 Introduction ROBERT D. MILLER

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

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

184 Forensic evaluation and treatment in the criminal justice system

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

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

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

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

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

24 Criminal competence ROBERT D. MILLER

PRE-TRIAL ISSUES Forensic psychiatrists may be called on to evaluate the capacities of criminal defendants to satisfy minimal criteria for the fulfillment of their roles as defendants. The criminal law is concerned with defendants’ capacities for two reasons. Historically, the first was preservation of the dignity of the law itself; it is unseemly to try, convict, or sentence someone who is unaware of what is happening to him or her or unable to participate in his or her prosecution. More recently, concerns have arisen about the fundamental fairness of criminal prosecutions and the protection of the rights of defendants, although the current trend away from individual rights and toward society’s rights has caused a significant erosion in many protections for defendants. This shift in the balance of power has resulted in an increase in the tension between the two goals, which is explored in more detail in the subsequent sections. Although not first in terms of the process of a criminal prosecution, the general construct of competence to proceed has been the subject of far more analysis by courts and forensic clinicians than any other criminal competence issue, and is discussed first as a model for other evaluations. Many of the techniques discussed in this initial section are equally applicable to the evaluation of other types of competence. Except for competence to waive Miranda rights and to confess, most competence evaluations are contemporaneous and involve determinations of a defendant’s capacity to perform specified tasks. They are therefore in general easier to perform than evaluations of responsibility, which are almost always retrospective, and involve more nebulous and subjective criteria. Competence evaluations may involve two types of capacities: 1 The capacity to understand the relevant legal constructs. 2 The capacity to utilize that information in legally appropriate ways.

Until the Supreme Court’s decision in Godinez v. Moran (1993), discussed below, some courts have held that competence to represent one’s self requires that a defendant possess specific legal knowledge and skills as well as understanding. Unless trained and experienced in the practice of criminal law, forensic evaluators may not be able to offer opinions on these capacities. For this reason, some authors have recommended that evaluations be done by attorney–clinician teams (Gutheil et al. 1987); and some states permit competence evaluations to be performed by attorneys as well as by mental health professionals (Wisc. Stat. Ann. Ch. 1989). Some defense attorneys have argued that they should be the ones doing the evaluations, since they are in the best position to evaluate their clients’ capacities; however, despite their legal knowledge and first-hand experience with the defendant in question, attorneys may not be able to maintain the necessary objectivity concerning their own clients, may desire a higher level of competence than is legally required, and may not be able to see problems stemming from their specific attorney–client relationship, which might not generalize to relationships with other attorneys. The past two centuries have seen a significant expansion of due process rights for criminal defendants, particularly the right to state-provided counsel, and the right to be explicitly informed of one’s rights and to have them respected by the police and the prosecution. Procedures to protect those rights have been promulgated by the federal courts and subsequently applied to the states through the Fourteenth Amendment. As these rights have won their place in criminal procedure, however, their implementation has become an expectation of the criminal justice process, rather than solely rights of defendants. As a result, there has developed the presumption that defendants will avail themselves of all their rights. Thus, the default characteristics of a criminal prosecution are that defendants will assert their privileges against selfincrimination, and rights to decline to talk to the police

Criminal competence 187

until represented by counsel, plead not guilty, request a jury trial with representation by counsel, and appeal any conviction, particularly when the death sentence has been imposed. The law has a strong presumption against waiver of any of these constitutional rights, for two main reasons: (i) it violates the dignity of the law to convict a defendant unless all his or her rights have been scrupulously protected; and (ii) convictions obtained when defendants have waived some of their rights are more vulnerable to appeal. In order to limit the inappropriate waiver of rights, the Supreme Court has held that waiver must be ‘knowing and intelligent’ (Johnson v. Zerbst 1938). Therefore, when defendants waive any of their rights, forensic clinicians may be called in to assist the court in determining the quality of their decision making. Even when defendants assert all their rights, their mental conditions and behavior may require that their competence be evaluated before the prosecution proceeds.

COMPETENCE TO STAND TRIAL The concept of competence to stand trial goes back to the English common law requirement that criminal defendants cannot be tried in absentia (Gobert 1973). Originally interpreted to mean that defendants must be permitted to be physically present at their trials, it was ultimately extended to include mental presence as well as physical. As defendants were increasingly expected to take an active part in their defenses, the law increased its expectations of their capacities and behavior during that process. When defendants could (or would) not conform to those expectations, their competence to fulfill the role of defendant was questioned. While requirements that defendants not be tried unless they were competent had been included in common and statutory law for centuries, the concept was first given specific constitutional support in the United States by a series of Supreme Court decisions beginning in 1960. In Dusky v. United States (1960), the court for the first time provided criteria for competence to stand trial: ‘The test must be whether he [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him.’ Although admittedly vague, these criteria set forth the two main components of competence to stand trial: (i) cognitive – the capacity to comprehend relevant legal concepts and procedures; and (ii) volitional – the capacity to utilize information appropriately in one’s own defense and to function effectively in the legal environment. Courts and scholars have attempted to operationalize these criteria. The federal court for the western district of

Missouri provided the following criteria for competence in the year following Dusky: 1 The defendant has ‘the mental capacity to appreciate his presence in relation to time, place, and things.’ 2 The defendant has ‘sufficient elementary mental processes to apprehend (i.e., to seize and grasp with what mind he has) that he is in a court of justice, charged with a, criminal offense.’ 3 The defendant ‘understands that there is a judge on the bench.’ 4 The defendant ‘understands that a prosecutor is present who will try to convict him of a criminal charge.’ 5 The defendant ‘understands that a lawyer will undertake to defend him against that charge.’ 6 The defendant understands that ‘he is expected to tell his lawyer the circumstances, to the best of his mental ability (whether colored or not by mental aberration) the facts surrounding him at the time and place where the law violation is alleged to have been committed.’ 7 The defendant ‘understands that there will be a jury present to determine guilt or innocence.’ 8 The defendant ‘has memory sufficient to relate those things in his own personal manner’ (Weiter v. Settle 1961). A number of clinicians have attempted to provide checklists or other instruments to guide evaluators in the assessment of competence to stand trial and to provide some uniformity among evaluations. These approaches are discussed in detail in the section on evaluation. The Supreme Court also dealt with procedural issues in a series of decisions. In Pate v. Robinson (1966), the Court reversed the conviction of a mentally disordered defendant because no one had made a formal request for a competence evaluation during the trial, although the defense attorney had brought it up. On appeal, the state argued that counsel’s failure to request a competence evaluation or hearing constituted waiver of that right. The Supreme Court disagreed, pointing out that ‘it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently “waive” his right to have the court determine his capacity to stand trial.’ The Court opined that as seven years had elapsed since the trial, retrospective evaluation of competence would not be productive; it therefore ordered the state either to try Robinson again, or to release him. In Drope v. Missouri (1975), the trial judge had found Drope to be competent to stand trial; however, during the trial, Drope shot himself and had to be hospitalized. The judge ruled that the act was voluntary and was done in order to delay the trial; he therefore directed that the trial proceed without Drope. The Supreme Court held that while the judge had initially ‘jealously guarded’ Drope’s right not to be tried while incompetent, the apparent suicide attempt should have caused the judge to order another competence evaluation. It stated that, ‘Even when a defendant is competent at the commencement of his

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trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial.’ Pate and Drope established the principle that even if the defense does not raise the issue of competence, the prosecutor and/or the judge must raise it if sufficient evidence appears to suggest incompetence. Defense attorneys may not decide, even for valid strategic or tactical reasons, to decline to raise competence in the face of sufficient evidence to call it into question (Evans v. Kropp 1966; Johnson v. State 1986). The dignity of the law must here take precedence over a defendant’s right to devise his or her own defense plan. Prior to reforms in commitment laws in the 1970s, indefinite commitment as incompetent to stand trial frequently amounted to a life sentence without trial, even for minor criminal charges. The Supreme Court finally addressed this issue in Jackson v. Indiana (1972). Jackson had been charged with two robberies, of $5 and $4, for which he could have been sentenced to a maximum of one year in jail if convicted. He was a deaf mute with no ability to communicate with anyone, and was therefore found to be incompetent to stand trial and committed for treatment. After a year, two psychiatrists reported that Jackson’s condition was not treatable; the judge ordered the commitment to continue until Jackson had regained his competence, and his attorney appealed. The Supreme Court ruled that persons charged with crimes were entitled to the same protections as civilly committed persons, according to the decision in Baxstrom v. Herold (1966). The Court held that ‘a person charged by a state with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain the capacity in the foreseeable future.’ It also held more generally that the duration of a mental commitment must bear a reasonable relationship to the purpose of the commitment. This somewhat oracular pronouncement has been interpreted by most states to limit commitment for treatment to competence to stand trial to the maximum sentence provided for the crime(s) charged. Some states have gone even further; for example, Wisconsin limits commitment to the maximum sentence for the crime or twelve months, whichever is less (Wisc. Stat. Rev. Ch. 1989). Limitations on commitment of incompetent defendants charged with serious crimes cause significant problems for the criminal justice system, although the number of defendants found to be permanently incompetent is extremely small. While the charges may remain pending indefinitely in most jurisdictions after a finding of incompetence, the state has limited options after the statutory maximum period of commitment for treatment to competence. It may not confine the defendant in jail indefinitely (often not at all). It may, of course, release him or her, but in the case of serious crimes that is not a politically viable option. In practice, most such defendants are committed under either civil commitment or guardianship statutes;

but they may then be subject to more strict criteria for continued commitment than under criminal commitment. More recently, the Supreme Court has addressed more procedural issues. In Godinez v. Moran (1993), Moran initially pleaded not guilty to three counts of murder. After a suicide attempt, he was evaluated by two psychiatrists and found competent to stand trial under the Dusky standard. He later discharged his lawyers and pleaded guilty, saying that he wanted to prevent mitigating evidence being presented at sentencing. The judge found that Moran’s waiver was intelligent and knowing, and granted his request; he was found guilty and sentenced to death. He appealed, arguing that he had been incompetent to represent himself; the state courts and the federal district court denied his appeal, but the Ninth Circuit reversed, holding that the trial court should have held a hearing to determine if Moran’s waiver was voluntary, knowing and intelligent. It held that waiver of constitutional rights required a higher competency than that required to stand trial, the capacity to make a reasoned choice among alternatives. The Supreme Court took the case to resolve differences among the courts of appeal concerning whether the standard for waiving counsel is higher than the standard for standing trial. It held that the standard for waiving counsel is no higher than to stand trial. The competence involved is that of waiving a right, not the competence to represent oneself. It did hold that the waiver must be knowing (or intelligent) and voluntary. In Cooper v. Oklahoma (1996), Cooper was charged with capital murder. He was found competent to proceed several times under Oklahoma law that presumed a defendant competent unless he established incompetence by clear and convincing evidence (thus allowing a defendant who is more likely than not to be incompetent to be found competent). After being convicted and receiving the death sentence, Cooper appealed, arguing that the law places too great a burden on a defendant. The Oklahoma Court of Appeals affirmed, holding that the state has a great interest in a speedy trial, and that a truly incompetent defendant can easily establish his incompetence. The Supreme Court reversed, holding that, although the burden (by preponderance of the evidence) to prove incompetence can be placed on a defendant (citing Medina v. California 1992) a lengthy review of legal tradition indicates that a burden higher than preponderance violates due process. The assignment of the legal burden indicates society’s determination of the confidence the factfinder should have in the factual accuracy of conclusions for a particular type of adjudication. With competence to proceed, the consequences of an erroneous decision are clearly much greater than the consequences to the state.

Hidden agendas in competence evaluations Prior to Jackson, the indefinite commitment provisions of competence law made the process attractive to both prosecutors and defense attorneys. Prosecutors were often

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able to effect a life sentence without having to prove anything at trial. Overworked defense attorneys rarely actively challenged the commitments, as they were responsible for a large caseload of competent clients and often felt that their incompetent ones were better off in a hospital receiving treatment than they would be in jail or on the streets. In addition, they served to delay the prosecution, usually advantageous to the defense as witnesses forget, move, or die. With the post-Jackson limitations on the duration of commitments for treatment to competence, prosecutors have largely lost interest in the process, other than to ensure that convictions withstand appeal. With effective and rapid treatment available for most incompetent defendants, the delays have been significantly decreased, and defense attorneys have also largely abandoned covert agendas. A recent study (Miller and Kaplan 1992) revealed that in over 95 per cent of cases, the chief reason for questioning competence was serious mental disorder causing significant difficulty in communication between the attorneys and their clients. The forensic evaluators concurred with those assessments in the great majority of cases, demonstrating that the presence of mental disorder was not just being used as a convenient excuse for commitment. Other hidden agendas have surfaced in the past two decades, however. As the criteria for involuntary civil commitment became increasingly stricter because of civil libertarian reforms, and the community psychiatry movement pressed for institutionalization, state hospital censuses dropped 75 per cent from their peak in 1955, and the numbers of mentally disordered persons living in communities rose correspondingly (Miller 1987). When the promised community treatment failed to materialize (Chu and Trotter 1974), a community backlash against discharged but still disordered patients developed, and public pressure to incarcerate them mounted. Since the civil commitment option remained closed, for both legal and economic reasons, the criminal justice system was the only system available, and the numbers of mentally disordered in correctional facilities rose significantly (Stelovich 1979; Lamb and Grant 1982). The situation in Wisconsin was exacerbated by the fact that statutory changes in 1976 incorporated not only strict due process reforms to the civil commitment process but also shifted funding responsibility for hospital admissions to the counties, while continuing state funding for criminal commitments (Miller 1991). There was an immediate 42 per cent rise in commitments for competence evaluation and treatment (Dickey 1980), and the increase has been maintained over the subsequent fifteen years (Miller 1991). Rachlin, Stokman, and Grosman (1986) have described similar problems in New York. Another frequent underlying reason for requests for competence evaluation is the desire of the defense attorney to obtain a criminal responsibility evaluation. Many states provide such evaluations along with competence evaluations in state forensic facilities. Unlike competence evaluations, however, where the law requires evaluation

with the most minimal suggestion of competence, trial court judges have considerable leeway in deciding whether or not to order a sanity evaluation at government expense. As discussed in Chapter 23, when judges are resistant to ordering sanity evaluations, defense attorneys have learned to request competence evaluations, hoping to obtain information that is also useful for an insanity defense.

The characteristics of defendants referred for competence evaluation Descriptive research on defendants referred for competence evaluations is presented and reviewed in three excellent books, by Steadman (1979), Roesch and Golding (1980), and Melton and colleagues (1987). The reader is referred to those sources for more detailed information. Much of the empirical research into competence to stand trial was done more than ten years ago; while the absolute numbers involved have certainly risen due to increases in criminal arrests, there is no reason to believe that comparative or percentage data have changed significantly. In 1978, 6420 defendants were committed to forensic hospitals for treatment to competence (Steadman et al. 1982). Roesch and Golding (1980) found in their review of studies that an average of only 30 per cent of defendants referred for competence evaluation were found to be incompetent, suggesting that as many as 20 000 defendants were referred for competence evaluation in 1978. That number has certainly grown significantly in the intervening twenty years; defendants admitted for evaluation of, or treatment to, competence continue to make up the largest proportion of patients in state forensic hospitals; and the great majority of those defendants are found to be competent (Daniel et al. 1984). Daniel and colleagues (1984) found that a cluster consisting of bizarre behavior at the time of the offense, psychosis, irrational behavior associated with substance abuse, and impaired orientation correctly predicted 90 per cent of competence determinations. Heller et al. (1981) also found that psychosis and mental retardation were highly correlated with findings of incompetence. Bennett and Kish (1990) found that although incompetent defendants were more likely than competent ones to be non-white and unmarried, and to have less education, most studies did not report statistically significant differences.

Evaluation Although competence to stand trial is usually a contemporaneous evaluation, with relatively clear criteria and a significant research literature, the evaluation process is complicated by the sheer numbers of defendants referred and by the various covert agendas that drive the referral system. Evaluators therefore need not only be familiar with the statutes and case law in their jurisdictions relevant to competence but also with the social and political

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climate of the community. If they are not, they run the risk of missing the point of the referral entirely and becoming frustrated and ineffective in dealing with the underlying social and political factors involved. This is not to say that evaluators should ignore the issue of competence itself. There are a number of principles for evaluation that have stood the test of time and research. As with other evaluations, one must first make sure what evaluation is really desired. Beware of preprinted court forms specifying particular evaluations; clerks have been known to grab the wrong form, and attorneys or judges with covert agendas may use such forms to transfer problem patients from jails to forensic hospitals. It is also incumbent upon forensic evaluators to be sensitive to issues of competence, even when the referral was for some other purpose, such as criminal responsibility. If indications that a defendant may be incompetent to stand trial are present, the evaluator should address them specifically and call them to either the attorney’s or the court’s attention. Otherwise, a prosecution may proceed with a functionally incompetent defendant, resulting in a denial of constitutional rights and ultimately in a reversal of conviction that would have been unnecessary had the issue of competence been raised appropriately. While the use of standard psychiatric diagnostic skills is certainly an essential part of a competence evaluation, these skills are not sufficient by themselves (Halleck et al. 1992). There is no simple equation between mental disorder and incompetence; neither psychosis nor organic mental disorder nor mental retardation per se render a defendant incompetent (May v. State 1981), although most defendants found to be incompetent suffer from one of these conditions, and their presence should certainly raise the evaluator’s level of suspicion (Bukatman, Foy, and DeGrazia 1971; Heller et al. 1981). Evaluators should also resist the temptation to support inappropriate use of requests for competence evaluation by setting too high a threshold for competence, or by keeping patients after they have recovered their competence in order to provide more complete psychiatric treatment (Group for the Advancement of Psychiatry 1974; Halpern 1975). There are several other significant differences between standard psychiatric evaluations and forensic evaluations that must be taken into account in evaluating competence. Although many psychiatric patients are less than forthcoming about their problems, criminal defendants have additional reasons to withhold information from evaluators. They may simulate disorder to delay or avoid trial; they may dissimulate in order to avoid hospitalization or to minimize factors that would impact negatively at sentencing; and they may refuse to cooperate altogether (Rogers 1997). Some defendants may not want to be defended at all; although such positions go against the basic assumptions of the criminal justice system, they do not necessarily indicate incompetence (although they almost certainly will result in competence evaluations) (Miller and Germain 1987).

For these reasons, it is essential that evaluators seek as much corroborating information as possible. Past psychiatric and criminal histories provide a context in which current behavior can be assessed. Since it is rare that incapacity exists only with respect to legal comprehension, observation of other behaviors and interviews with those in a position to make such observations (defense attorneys, jailers, etc.) are an essential part of competence evaluation, even with apparently cooperative defendants. External information (particularly court transcripts and interviews with the attorneys and judge) are essential for retrospective competence evaluations (Miller and Germain 1988). Competence to stand trial is not a bimodal construct that a defendant either has or does not have (Bennett and Sullwold 1984). It is the capacity to perform specific tasks as part of a criminal defense, and as such will depend on the tasks to be performed. Defendants may be capable of performing some, but not all, of the possible tasks involved in their defenses. Evaluators should therefore attempt to be specific in addressing potential tasks (pleading guilty, waiving counsel, waiving a jury trial, actively assisting counsel during a trial, testifying, etc.) individually. At times, the evaluator will know precisely what the defense plans are and may be able to prevent unnecessary hospitalization of defendants who are incapable of performing tasks that they will not need to perform (Miller and Germain 1986). Specific discussion of several of these capacities are presented in following chapters.

AMNESIA Amnesia presents a difficult problem for evaluators (Koson and Robey 1973). Defendants referred for competence evaluation frequently claim loss of memory for the times of their alleged crimes. Given the high association between criminal behavior and intoxication with alcohol or other drugs, head injuries, and emotional stress, a substantial incidence of amnesia is to be expected in this population. Defense attorneys point out that an amnestic defendant cannot provide essential information, such as his or her whereabouts, actions, and mental state at the time of the alleged crime, and therefore cannot meet the cooperate-with-counsel prong of the competence criteria (Note 1981). Because of the frequency of allegations of amnesia, and because of the difficulty in determining its validity and resolving it (Koson and Robey 1973), most courts have concluded that amnesia per se does not render a defendant incompetent to proceed (Bradley v. Preston 1968). They reason that in most cases sufficient ancillary information will be available to permit an effective defense to be mounted. One court has suggested that if an amnestic defendant is otherwise competent, the prosecution should proceed, and if the defendant is convicted, the judge will review the case to determine retrospectively whether the defendant’s amnesia denied him or her a fair trial (United States v. Wilson 1966). Recently, a Colorado appeals court

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adopted the Wilson rationale; the Colorado Supreme Court declined to adopt the Wilson test, but acknowledged that the effects of amnesia on competence must be evaluated on a case-by-case basis. (People v. Palmer 2000; People v. Palmer 2001) In practice, the most effective procedure to follow when evaluators feel that the amnesia is genuine and causes a significant impairment in the particular case (especially if an insanity defense seems appropriate and the defendant cannot recall his or her mental state at the time of the crime) is to inform the court of the problem and to suggest a brief trial of memory-enhancing techniques to see if the memories can be recovered. If they can, then competence is clear; if not, at least the court can be assured that available treatment is unlikely to restore them (Melton et al. 1987; Miller and Stava 1997). This procedure has been approved by several courts (Cornell v. Sup. Ct. 1959; People v. McBroom 1968; State v. McClendon 1968; United States v. Borum 1972; Davis v. State 1978; United States v. Adams 1978; State v. Mack 1980; State v. Palmer 1987). Since such techniques, if effective, may reveal information detrimental to the defendant that is likely to be discoverable in court, extreme care should be taken to attempt to obtain informed consent from the defendant, as well as from the defense attorney, before using techniques such as hypnosis or narcotherapy.

OUTPATIENT COMPETENCE EVALUATIONS Because of the deprivation of liberty involved in inpatient competence evaluations, and because the evaluation can often be accomplished effectively without hospitalization, many critics have called for competence evaluations to be carried out on an outpatient basis (i.e., in jail or in the community if the defendant is on bail) (Miller and Germain 1989). A number of jurisdictions have established such community-based evaluations services, either with traveling teams of trained professionals (Herron, Zonana, and Crane 1983) or through training of existing community mental health staff (Melton, Weithorn, and Slobogin 1985). Many larger cities have developed specialized court clinics, often located in the jail itself, to perform competence evaluations efficiently (Sadoff 1967). Community-based evaluation can be very effective in the majority of cases, provided that the evaluators are sufficiently trained. It avoids unnecessary drain on inpatient resources, eliminates transportation problems, facilitates interactions with defense attorneys (Gutheil et al. 1987), and permits local evaluators to develop good working relationships with the court and jail systems. Despite these advantages, however, the majority of states continue to rely on inpatient competence evaluations (Miller and Germain 1989). There are advantages to hospitalization in problematic cases, again assuming appropriate facilities with sufficient, trained staff. Continued observation over time by trained forensic clinicians may be necessary to resolve questions of malingering, and inpatient staff

are in a position to develop expertise with conditions (such as multiple personality disorder) that are disproportionately represented in forensic populations (Miller and Germain 1989). Specialized techniques, such as group interviews to assess a defendant’s capacity to deal with a number of people (as might be necessary during a trial), and the use of lawyer–clinician evaluation teams (Gutheil et al. 1987) are easier to implement in an inpatient facility than in all but the largest community-based evaluation programs. In addition, inpatient staff are often in a better position to make predictions of response to treatment, since they are the ones who will be providing the treatment and have direct experience in doing so. Because of these advantages, inpatient evaluation should continue to remain a referral option for community-based facilities.

ASSESSMENT INSTRUMENTS A number of formalized checklists and structured interviews have been developed to assist evaluators with competence assessments. Creation of the early schemes (Robey 1965; Lipsitt, Lelos, and McGarry 1971) was necessitated by conditions in overburdened forensic facilities with insufficient professional staff to perform the evaluations; they were designed to permit line staff with less training to handle the great majority of evaluations. They were simple in construction and interpretation, and had the virtue of collecting relevant raw data that could be made available to the court, and of imposing some standardization on the process. The next major attempt to structure evaluations came from Harvard’s Laboratory of Community Psychiatry (1973), which developed the Competency Screening Test (CST), designed as a tool for preliminary evaluation, and the more lengthy Competency Assessment Instrument (CAI) for final evaluations. The CST has been heavily criticized by Brakel (1974) and others for its strong bias toward the status quo, resulting in defendants who express negative feelings toward attorneys, judges, or the criminal justice system being found incompetent. The CAI has not been subjected to sufficient research to estimate either its reliability or validity (Melton et al. 1987). The Interdisciplinary Fitness Interview (Golding and Roesch 1984) was developed by two psychologists who were very experienced with competence evaluations. Designed to be used by a lawyer–mental health professional team, it was developed using more sophisticated psychometric approaches than its predecessors, and has been more extensively validated. It leads to a much more detailed examination of both psychopathology and legal knowledge, and also provides explicit scales for rating the impact of each response on the eventual competence determination. Inter-rater reliability has been quite high as to the ultimate opinions (Schreiber, Roesch, and Golding 1987). Grisso’s (1986) book on competence assessment techniques and instruments has become a standard reference work in the field.

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Most recently, the MacArthur work group has developed a field-tested and well-validated instrument, the MacArthur Competency Assessment Tool, Criminal Adjudication (Poythress et al. 1999) which is gaining wide acceptance in the field. In addition to the generic assessment instruments, Everington (1990) has developed an instrument designed specifically for developmentally disabled defendants. This takes into account the particular behaviors and deficits unique to this population, and provides much-needed standardization to their evaluation.

Treatment to restore competence Although outpatient evaluation of competence is becoming increasingly prevalent, virtually all defendants adjudicated incompetent to stand trial are committed to inpatient units for treatment to restore competence (Miller and Germain 1989). While the post-Jackson reforms have limited the duration of commitment in most states, that still permits extended hospitalization for restoration of competence, particularly since most defendants are initially charged with crimes more serious than those to which they will eventually plead. Since the majority of defendants found incompetent to stand trial suffer from psychoses, the treatment modality most relevant to restoration of competence is antipsychotic medication. Courts have struggled with the issue of ‘chemical competence’ achieved through medication. Some early decisions (State v. Murphy 1960) held that defendants must be tried in a ‘natural state,’ that is, off medications. More recently, courts have appeared to recognize that psychotropic medications are restorative of normal functioning, and have permitted even involuntary administration if necessary to restore competence, since the state’s interest in restoration outweighs the defendant’s privacy and other interests in refusing (State v. Laws 1978). Defense attorneys frequently object to their clients being treated with antipsychotic medications, since (they argue) it prevents the jury from seeing the defendant as he or she was at the time of the crime, and even may render him/her apparently indifferent to the proceedings. Several courts have taken notice of this criticism and have ruled that treatment may be imposed until the defendant becomes competent. At that time, he or she may refuse again; but if as a result he/she loses his/her competence, they may be tried anyway, being considered to have (competently) waived their right to be tried while competent by deciding to stop treatment (People v. Parsons 1975; State v. Jojola 1976; State v. Hayes 1978). The issue of the defendant’s appearance to the jury has recently come before the Supreme Court in the context of the death sentence of a defendant whose pre-trial competence was restored through medications. His request to stop the medications during the trial was denied by the judge, apparently based on predictions from examining clinicians that he would

lose his competence without medications. The Court overturned the conviction because no formal hearing was held on the issue of forced medication during trial, suggesting that forced medication might be continued upon a showing at such a hearing that it was necessary to maintain competence. The issue of forcing medication before trial to restore competence was not definitively addressed (Riggins v. Nevada 1992). Other jurisdictions deal with medication refusal by defendants found incompetent for trial through procedures identical to those applied to civilly committed patients (Miller et al. 1989). For defendants whose incompetence is caused by mental retardation, organic brain syndromes, or other factors that do not respond to current medication, various psychoeducational programs have been devised to present the relevant legal material in effective ways (Pittenger 1983; Webster et al. 1985).

COMPETENCE TO WAIVE MIRANDA RIGHTS AND TO CONFESS The first major decision facing a person arrested for a crime is whether to talk to the police. The Fifth Amendment to the federal Constitution provides that a person may not be compelled to be a witness against him/herself; but that privilege has little meaning unless the accused is aware of it. Originally, the English common law privilege against self-incrimination prevented questioning until formal charges had been brought; but at that point, the accused could be forced to undergo interrogation. As part of the reaction against royal abuse of power in the seventeenth century, the right not to be questioned at trial was established. At the same time, the voluntariness doctrine (which had originated more than a century earlier) evolved, virtually barring pre-trial interrogation. That doctrine was concerned with the reliability of confessions, not with any rights of an accused (Benner 1989). An 1848 English statute required that an accused be informed that his statements could be used against him.

Legal issues In Bram v. United States (1897), the U.S. Supreme Court reviewed the English and American common law of confessions, then grafted the voluntariness doctrine onto the Fifth Amendment privilege against self-incrimination, again based on a desire to limit the unreliability of confessions. It held that confessions should ‘be free and voluntary, that is, not produced by inducement engendering either hope or fear.’ It eschewed the subjective approach of attempting to determine the effects of various factors on the accused, choosing rather an objective test under which

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a confession must be deemed involuntary if any degree of influence has been exerted. Bram established a presumption of compulsion, which the state was required to overcome, that was followed by the federal courts until the 1930s. At that point, the criteria for compulsion began to be diluted, and confessions induced by promises became admissible (Benner 1989). The Fifth Amendment privilege against self-incrimination was not applied to the states through the Fourteenth Amendment until Malloy v. Hogan (1964). In that same year, the Supreme Court held that police interrogation was a ‘critical stage of a prosecution,’ and therefore the right to counsel obtained (Escobedo v. Illinois 1964.) Two years later, in Miranda v. Arizona (1966), the Court added the wellknown requirements that police inform a suspect that he or she has the right to remain silent and the right to counsel, and that if he/she chooses to talk with police, anything that he/she says could be used as evidence against them. It limited the application of the right to custodial interrogations. Moreover, it reaffirmed that when a confession is obtained in the absence of counsel, ‘a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.’ The voluntariness doctrine has undergone a series of changes through the second half of the twentieth century. Due process prohibitions against coerced confessions had been applied to the states in Palko v. Connecticut (1937) well before the Fifth Amendment was in Malloy. As far back as 1884, the Supreme Court held that a confession loses its value when pressures operating on the defendant’s fears and hopes deprive ‘him of that freedom of will or self-control essential to make his confession voluntary within the meaning of the law’ (Hopt v. Utah 1884). In a series of cases beginning in 1948, the Court rejected confessions obtained from defendants whose mental capacities were impaired, through immaturity (Haley v. Ohio 1948), mental retardation (Fikes v. Alabama 1957; Payne v. Arkansas 1958; Reck v. Pate 1961; Culombe v. Connecticut 1961), intoxication with drugs (Townsend v. Sain 1963), or mental illness (Fikes v. Alabama 1957; Spano v. New York 1959; Blackburn v. Alabama 1960). In those cases, the Court specifically took into account the defendants’ individual susceptibilities as well as official conduct in determining that their confessions had not been voluntary. In Blackburn (1960), the Court held that a confession is coerced if it is not ‘the product of a rational intellect and a free will,’ and noted that coercion can be mental as well as physical. In Culombe (1961), it held that,‘The ultimate test [for admissibility of confessions] remains that which has been the only clearly established test in AngloAmerican courts for two hundred years, the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker?’ Beginning with the Burger Court, and accelerated with the Rehnquist Court, however, the due process protections inherent in Miranda have been eroded in favor

of facilitation of criminal convictions (Parry 1987; Perlin 1987). The coercion required to invalidate confessions has been progressively limited to conscious police misconduct, and the capacity of a defendant to make a rational choice has become irrelevant. In 1987, the Court held in Colorado v. Spring (1987) that the confession from a defendant who was misled about the purpose of the interrogation was admissible because, ‘The Constitution does not require that a suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege.’ In Illinois v. Perkins (1990), the Court upheld a confession obtained by an undercover policeman placed in Perkins’ cell in order to trick him into confessing to a murder unrelated to the crime for which he had been arrested. The Court majority held that coercion exists only from the interaction of police custody and official (i.e., identifiable) interrogation, and the confession was therefore ‘voluntary.’ Most specifically relevant to the issues of voluntariness and competence is the Court’s decision in Colorado v. Connelly (1986). Connelly had traveled from Massachusetts to Colorado, under the influence of command hallucinations, to confess to a murder. When counsel was appointed the next day, he requested a competence evaluation, and Connelly was found to be psychotic and incompetent to stand trial. After his competence was restored, his attorney moved to strike his confession, arguing that it had been involuntary because Connelly’s psychosis prevented him from making a truly voluntary decision to waive his rights. The state courts agreed, but the Supreme Court majority reversed, reasoning that because there had been no police misconduct and Connelly understood that his admissions might be used against him at trial, the confession was voluntary under their revised legal definition of that concept. Reversing two hundred years of jurisprudence, the Court held that, ‘Notions of “free will” have no place in this area of constitutional law. Respondent’s perception of coercion flowing from the “voice of God” is a matter to which the Federal Constitution does not speak.’

Evaluation Prior to Connelly, it appeared that the evaluation of competence to waive Miranda rights (i.e., to confess to a crime) was conceptually similar to competence to stand trial. Bursten (1979) argues that voluntariness should include: (i) a lack of physical or psychological coercion; (ii) appropriate knowledge; and (iii) impulse control, which includes motivational themes, the capacity to delay action, and the capacity to deliberate and plan. Arguing for a very broad test of voluntariness, Bursten states that ‘the psychological standard for voluntariness may go beyond the element of lack of feeling that one is being coerced, and it goes beyond a narrowly construed knowledge test. Fantasy, fright, despair, internal psychological fact, undue influence, and a product test all widen the scope of relevant data and take it

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beyond the cognitive sphere; they open the doors to emotional and judgmental factors’ (Bursten 1979, p. 354). Under the Supreme Court’s purely objective test of voluntariness, mental health professionals may have little to offer the court, other than to interpret the effects of potentially coercive police behavior on the particular defendant in question. Here, the capacities of individual defendants may be relevant if it can be demonstrated that they might be unusually susceptible to persuasion short of outright coercion. Since, however, individual states retain the power to pass and interpret their statutes and constitutions in a manner more protective of individual rights than required by the federal Constitution (as interpreted by the Supreme Court), it is still possible that some states will choose to retain free will as a necessary part of the definition of voluntariness. In these cases, forensic clinicians will continue to be of great benefit to the courts.

COMPETENCE TO PLEAD GUILTY Plea bargaining accounts for between 87 per cent and 95 per cent of dispositions in criminal cases (American Bar Association 1968). A guilty plea involves three elements. First, it is a waiver of three constitutional rights: (i) the privilege against self-incrimination; (ii) the right to a jury trial; and (iii) the right to confront witnesses. Second, it is the defendant’s consent to the judge’s entering a judgment against him or her and passing sentence. Third, it is an admission of actual guilt (Note 1971). Guilty pleas are entered in return for the guarantee of a disposition that is usually less severe than the maximum sentence for the crime charged. Such pleas are required to be both voluntary and informed (Newman 1966; McClure 1971; Tofie 1971; Davis 1972; Gallagher 1974; Dix 1977; Westen and Westin 1978). Critics of the plea bargaining process argue that it gives prosecutors (Newman 1966; Davis 1972; Alschuler 1976) and judges (Whitman 1967; Newman and NeMoyer 1970; McClure 1971; Ferguson 1972-1973; Gallagher 1974) too much power and leads to overcharging in order to have bargaining room, thereby fostering disrespect for the criminal process (Alschuler 1968; McClure 1971; Gallagher 1974; Westen and Westin 1978). For plea bargaining to operate appropriately, there must be effective assistance of counsel (Alschuler 1975), which is often not provided in practice. Proponents argue that plea bargaining saves considerable court time and is supposed to foster the rehabilitative process, since the defendant usually admits guilt (Newman and NeMoyer 1970; Ferguson 1972–1973). Whitman (1967) points out that defendants benefit from the lesser sentences obtained through plea bargaining; and another author (see Note 1977) argues that if plea bargaining worked as it is supposed to, it would be

preferable to a trial, since the defendants’ direct participation in the process would allow them to feel more satisfied with the outcome.

Legal issues Despite criticisms of both the theory and practice of plea bargaining, it is clearly logistically essential to the operation of the criminal justice system. As a result, there exists a strong pressure not to interfere with the operation of the process, which translates into strong resistance on the part of appellate courts to overturn convictions obtained through plea bargaining. For example, Judge Tuttle of the Fifth Circuit wrote in 1957 that,‘[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e.g., bribes)’ (Shelton v. United States 1957). Before competence-to-stand-trial jurisprudence became established in the 1970s, trial judges were accorded considerable autonomy in accepting defendants’ guilty pleas. Even before that, however, some appellate courts had begun to argue that formal determination of competence might be necessary before such pleas could be accepted. In a series of cases, the Ninth Circuit Court of Appeals reversed convictions obtained through guilty pleas because the trial judge had made no inquiry on the record concerning the defendant’s competence to enter the plea (Jones v. United States 1967; Castro v. United States 1968; United States v. Tweedy 1969; Sieling v. Eyman 1973). The Supreme Court concurred with that reasoning in 1969 in Boykin v. Alabama (1969). Following the rationale of Johnson v. Zerbst (1938) that the law presumes against the waiver of a constitutional right, the Court placed the burden of proof on the state to demonstrate that a plea has been voluntarily and intelligently made. The federal courts have for almost a century required that guilty pleas be voluntary and intelligent (Bram v. United States 1897; Machibroda v. United States 1962; Boykin v. Alabama 1969; McCarthy v. United States 1969), and that a guilty plea may not be accepted from an incompetent defendant (Youtsey v. United States 1899; People v. Maynard 1932; Forthoffer v. Swope 1939); however, they have not effectively operationalized those concepts in the context of guilty pleas. Most courts have followed the traditional approach of examining external coercive factors, rather than the specific characteristics of the defendants themselves (see Note 1984). There has been considerable discussion in the case law as to the standard for competence to plead guilty. It seems clear that a general determination of competence to

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stand trial does not also establish that a defendant is competent to plead guilty (In re Williams 1958; Brookhart v. Janis 1966). Several courts have held that a defendant who pleads guilty without benefit of counsel should be held to a higher standard than one who is represented (Brady v. United States 1970; Heberling 1972). Justice Hufstedler of the Ninth Circuit, in a 1970 dissent, wrote that, ‘To the extent that they differ, the standards of competence to plead guilty are higher than those of competence to stand trial. A defendant is not competent to plead guilty if mental illness has substantially impaired his ability to make a reasoned choice among the alternatives presented to him and to understand the nature of the consequences of his plea’ (Schoeller v. Dunbar 1970). Three years later, the Ninth Circuit adopted that position in Sieling v. Eyman (1973, at 214), holding that a judge must go beyond the usual colloquy with the defendant because that method does not measure the defendant’s capacity by a ‘high enough standard.’ Chernoff and Schaffer (1972) argue, however, that standing trial requires a higher level of competence than does pleading guilty, because more is expected of a defendant during trial.

Evaluation There is little judicial guidance for the evaluator asked to offer opinions on a defendant’s competence to plead guilty. Justice Tuttle’s dissent in Shelton v. United States (1957) was adopted by the Supreme Court in 1970 as criteria for competence to plead guilty (Brady v. United States 1970). The Wisconsin Supreme Court offered more specific guidelines in State v. Burke 1964). It stated that it is feasible for judges seeking to ensure that a guilty plea is valid to do the following: (i) determine the extent of the defendant’s education and general comprehension; (ii) establish the accused’s understanding of the nature of the crime with which he is charged and the range of punishments it carries; (iii) ascertain whether any promises or threats have been made to him in connection with his appearance, his refusal of counsel, and his proposed plea of guilty; (iv) alert the accused to the possibility that a lawyer may discover defenses or mitigating circumstances that would not be apparent to a layperson such as the accused; and (v) make sure the defendant understands that if he cannot afford it, counsel will be provided at no expense to him. Most of these criteria require legal rather than clinical knowledge, and focus on objective factors rather than the defendant’s actual capacities. Evaluators should therefore familiarize themselves with case law in their jurisdictions and make sure to address specific criteria, if any. Beyond that, they should attempt to apply their clinical knowledge to questions concerning how the defendant’s mental disorder (if any) might impair his or her capacity to understand the relevant legal information and apply it in his/her case, and also to any problems that would render him/her unusually susceptible to external coercion.

COMPETENCE TO WAIVE REPRESENTATION BY COUNSEL The second major decision a defendant must make after arrest is whether or not to seek or accept representation by counsel. The right to counsel, after notice and a hearing, is the most central right accorded a defendant in contemporary U.S. criminal jurisprudence. Until Gideon v. Wainwright (1963) and Argersinger v. Hamlin (1972), criminal defendants in state courts were not guaranteed that lawyers would be provided for them. Once counsel had to be provided for indigent defendants, a number of potential difficulties were predictable, indeed inevitable. Could defendants choose their own lawyers and force the state to pay? If not, how would the court provide counsel?

Legal issues Statutory law in the United States has permitted criminal defendants to be represented by attorneys since the founding of the country. Historically, at a time when representation by counsel was prohibited for most defendants, it could be forced on an unwilling defendant in English law in Star Chamber proceedings. In those infamous proceedings, the purpose of counsel was not chiefly to assist the defendant but rather to serve as a guarantor of the validity of the defendant’s plea; if the plea were found to be inaccurate or frivolous, the attorney could be punished along with the defendant (Faretta v. California 1975). The U.S. Congress passed a law in 1789, one day before the Sixth Amendment was even proposed, that has been cited as guaranteeing defendants the right to represent themselves: ‘In all courts of the United States, the parties may plead and manage their own causes personally or by the assistance of such counsel or attorneys at law as by the rules of the said courts respectively shall be permitted to manage and conduct causes therein’ (Judiciary Act 1970). But that statute left room for judicial discretion in determining whether or not to permit defendants to represent themselves in specific cases. There has remained a tension between developing law in the areas of defendants’ rights to counsel and their right to self-representation, with some courts and scholars holding the rights to be mutually exclusive and others holding them to be complementary (see Note 1965; Grano 1970; see Comment 1971; see Comment 1973; see Note 1976; Chused 1977; Berger 1986). The constitutional arguments have been heavily colored by practical considerations. In the days before defendants were held to have the absolute right to representation by counsel, opponents of that right argued that it would delay trials and cost the state too much money, and also that defendants were quite capable of presenting their own defenses. As the right became established, however, critics of self-representation argued that it would delay and disrupt trials for defendants

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to conduct their own defenses, and that departure from representation by counsel would constitute violation of due process. Judges were concerned that they would be placed in an impossible situation if defendants attempted to waive counsel, with an appeal almost guaranteed no matter which choice they made. The U.S. Supreme Court has addressed the issue of waiver of representation in several decisions since Johnson v. Zerbst (1938). There, the Court held that,‘This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court.’ It went further to hold that, ‘courts indulge every reasonable presumption against waiver of fundamental constitutional rights,’ and that ‘We do not presume acquiescence in the loss of fundamental rights.’ (Johnson v. Zerbst 1938, p. 465). In Adams v. United States ex rel. McCann (1942), the Court ruled that the Constitution does not require that a defendant be represented by counsel. The Court did not explicitly address the issue of whether the state could force an attorney on a defendant, although it implied rejection of that power in dicta: ‘When the administration of the criminal law … is hedged about as it is by Constitutional safeguards for the protection of the accused, to deny him in the exercise of his free choice the right to dispense with some of these safeguards … is to imprison a man in his privileges and call it the Constitution.’ In Carter v. Illinois (1946), the Supreme Court held that the right to counsel ‘does not, however, mean that the accused may not make his own defense … neither the historic conception of Due Process nor the vitality it derives from progressive standards of justice denies a person the right to defend himself … . Under appropriate circumstances, the Constitution requires that counsel be tendered; it does not require that under all circumstances counsel be forced upon a defendant.’ In Von Moltke v. Gillies (1947), the Court held that, ‘To be valid such waiver [of counsel] must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.’ The Court has also made it clear that it will not permit defendants to use their right to self-representation to delay trials or to create phantom issues to raise on appeal (United States v. Abbamonte 1966). In Faretta v. California the 6–3 Supreme Court majority held that the right to self-representation exists not only in the federal Constitution but also in federal law, and in the constitutions and laws of the majority of states. It held that the Sixth Amendment grants to the accused personally the right to make his defense, and held that to force unwanted counsel on a defendant ‘can only lead him to believe that

the law contrives against him’ (Faretta v. California 1975, at 834). It reiterated that waiver of counsel must be knowing and intelligent. Trial judges, however, clearly retain discretion in ensuring that trials satisfy due process and fundamental fairness requirements (McKastle v. Wiggins 1984). Thus, although Faretta guaranteed the right to selfrepresentation to competent defendants, it did not operationalize the ‘knowing and intelligent waiver’ requirements, and left considerable authority to state courts and trial judges to force counsel on unwilling defendants. Forensic clinicians who are asked to evaluate the competence of defendants who express a wish to represent themselves must therefore familiarize themselves with case law in their jurisdictions (if any) and consult with practicing attorneys to determine the criteria used for the decision. Although there are no previous published reports that provide quantitative data on the actual incidence of waiver, a 1962 survey of federal district court judges and prosecutors (see Note 1963) reported that the overall rate at which defendants waived counsel was 20 per cent, with some districts reporting that 81–100 per cent of defendants represented themselves. The variation depended in part on the willingness of judges to permit waiver. The respondents also indicated that most defendants who waived counsel pleaded guilty. In another study (Comment 1973), most Illinois trial judges surveyed reported that fewer than 10 per cent of misdemeanants and fewer than 5 per cent of felons waived representation. They reported that fewer than 5 per cent of pro se felony defendants were acquitted, while in some courts more than half of pro se defendants charged with misdemeanors were found not guilty. The judges felt that the defendants’ obvious guilt was the main reason for conviction, rather than lack of representation. They reported that their decisions as to whether to permit waiver were based chiefly on the seriousness of the charges, rather than on the competence of the defendants. One author (see Note 1976) suggests several reasons for waiver: 1 Some defendants have little trust in the fairness of the system, because public defenders are overworked, or because they work for the state. 2 Other defendants have too much trust in the system; many who believe themselves to be innocent feel no need for representation because they assume that they will be found not guilty. 3 Still other defendants wish to get a political agenda into court and believe that assigned counsel will not further that goal. 4 Some defendants believe that they can explain their defenses better than an attorney could. 5 Some defendants desire the opportunity to speak to the jury without undergoing cross-examination. 6 Some defendants believe that they can win the jury’s sympathy if they appear without an attorney. 7 Finally, some defendants who are not indigent wish to avoid paying attorney’s fees.

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Another author (see Note 1965) pointed out that experienced and wily defendants may believe that by refusing counsel they may lay grounds for future appeals should they be convicted, and that other defendants may wish to speed up the process. In the only prospective study in the literature, Miller and Kaplan (1992) studied 100 consecutive defendants admitted for evaluation of, or treatment to regain, competence to stand trial. Data were collected from defendants concerning their understanding of the reason for their commitments, their reasons for wishing to discharge their attorneys and/or to represent themselves (if they did), their opinions of their competence, their views toward attorneys in general and their attorneys in particular. Defense attorneys for each defendant were contacted by telephone; they were asked who raised the question of their clients’ competence and why the issue had been raised. For those defendants without representation, the assistant district attorney responsible for prosecuting the case was contacted. The ultimate outcome of the evaluation was also recorded. Twenty-four defendants had attempted to discharge their appointed attorneys; eleven of those had expressed the desire to waive counsel altogether and to represent themselves. The twenty-four defendants who wished to fire their attorneys were not statistically different from the total sample with respect to age, diagnosis, or type of crimes charged. The eleven defendants who wished to waive counsel and represent themselves chiefly argued that they could represent themselves better than any attorney, or that it was their constitutional right to represent themselves, while the thirteen who merely wished to fire their lawyers criticized their current attorneys because of spending too little time with them, not listening to them, or trying to coerce them into entering guilty or insanity pleas. The attorney respondents reported that the issue of competence had been raised chiefly by defense attorneys in 84 per cent of cases. By far the major reason for raising the issue of competence was the perception that the defendant was too mentally ill or retarded to understand what the attorney was telling him or her (93 per cent); other frequent reasons were a history of mental illness and a need (perceived by the attorney) for treatment. Of the eleven defendants who asserted their privilege to represent themselves, nine were found incompetent to proceed and to represent themselves by the courts. The remaining two were initially felt to be competent to represent themselves, but both subsequently deteriorated without psychotropic medication and were ultimately found to be incompetent to waive representation at some stage of the proceedings, before treatment was reinstated. All these defendants were suffering from major psychiatric disorders, which raised legitimate concerns about their competence apart from any desire to waive counsel, and their desires to represent themselves were clearly related to their psychoses. By contrast, eleven of the thirteen

defendants who indicated a desire to fire their attorneys, but not to represent themselves, were thought to be competent by the clinical evaluators and the courts.

Evaluation Under Faretta v. California (1975), and now Godinez v. Moran (1993), the only issue is a defendant’s capacity to understand that he or she is relinquishing their right to be represented by counsel, and to understand that he or she might as a result be at a disadvantage in court. Justice Black’s opinion in Von Moltke v. Gillies (1947), which has been adopted by some courts, would require that, in addition, a defendant must be aware of more specific legal issues, including ‘all other facts essential to a broad understanding of the whole matter.’ Therefore, clinical evaluators need to be aware of the specific criteria for competence to represent one’s self (if any) in their jurisdictions. The ‘knowing and intelligent’ test for competence to waive counsel is conceptually and operationally similar to the ‘rational as well as factual understanding’ (Dusky v. United States 1960) test for competence to proceed and should pose no greater difficulty to non-legal evaluators. In both situations, evaluators must be careful to determine that defendants are not simply parroting back information without comprehending it, or using accurate information in a psychotic fashion. They must also avoid equating poor judgment or lack of agreement with the evaluator or the attorney as indicating, per se, lack of competence. If, however, competence requires that defendants have the capacity to represent themselves effectively in court, clinical evaluators may not be capable of providing meaningful opinions to the court, and the involvement of an attorney may be necessary (Gutheil et al. 1987). Evaluators also need to be aware of the strong legal presumption (both theoretical and practical) against waiver of any major constitutional right, especially the right to counsel, and need to be prepared to defend opinions that a defendant is competent to waive counsel against strong judicial biases to the contrary.

COMPETENCE TO WAIVE A JURY TRIAL Legal issues Unlike the other choices available to defendants that are discussed in this section on competence, the Supreme Court has held that there is no constitutionally protected right, even for competent defendants, to waive a jury trial and instead be tried before a judge alone: ‘A defendant’s only constitutional right concerning the method of trial is to an impartial trial by jury. We find no constitutional impediment to conditioning a waiver of this right on the consent of the prosecuting attorney and the trial judge when, if either refuses to consent, the result is simply that

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the defendant is subject to an impartial trial by jury – the very thing the Constitution guarantees to him’ (Singer v. United States 1965). Some states have, however, created statutory rights to waive jury trial in certain circumstances; for example, Alaska provides defendants who plead insanity a unilateral right to waive a jury trial (Alaska Stat. 1982). Just as defendants (or their attorneys) may have their reasons for preferring a judge to a jury, so the other participants may prefer that a jury – representatives of the community – bear the decision-making burden. Particularly in notorious crimes, elected officials (such as judges) often prefer not to have to make the final judgment. Nevertheless, although judges retain ultimate authority over the nature of the fact-finder, they are not prohibited from acceding to a competent defendant’s request for a bench trial, and in fact frequently do, since bench trials save the government considerable time and money. When a defendant seeks to waive the right to a jury trial, however, that waiver must be ‘knowing and intelligent,’ (Johnson v. Zerbst 1938), as with any other waiver of a constitutional right.

Evaluation Since the right is not constitutionally protected, courts have not provided explicit criteria for competence to waive a jury trial; nevertheless, by analogy with comparable evaluations, ‘knowing and intelligent waiver’ should include the defendant’s knowing that he or she has the right to be tried by a jury of his/her peers, that he/she is seeking to give up that right, and that he/she might receive a longer sentence, or be convicted rather than found not guilty, by so doing. Clinical evaluators should also seek to analyze the defendant’s reasons for seeking a bench trial (or avoiding a jury trial) as part of the evaluation of the intelligence of the decision.

COMPETENCE TO WAIVE APPEALS Legal issues The right to challenge a conviction, either through direct appeals through state and federal courts or through habeas corpus proceedings, is an established part of Anglo-American law. Indeed, appeals of capital sentences through the state courts have been required by the majority of state supreme courts (People v. Stanworth 1969; People v. Silagy 1984; Hamblen v. State 1988). As with other fundamental rights, a person has the right, under appropriate circumstances, to waive the right and to forego an appeal. As with other competence issues, the questions concern the circumstances under which the right can be waived. The appeals process was developed not just to protect defendants from convictions obtained improperly but

to preserve the dignity of the law by providing review of trial court decisions for propriety, particularly in sentences of death or long-term imprisonment. In practice, the appeals process is usually invoked only for lengthy sentences, since the duration of the appeals process itself may well exceed the length of shorter sentences. Therefore, when defendants decline to pursue appeals of sentences for which state law provides automatic review, or to withdraw appeals already in progress, the interests of the state are also involved, and the courts are not required to accept the prisoner’s choice. Bonnie (1990) argues that the autonomy of a competent defendant should be respected in these areas, despite the acknowledged interests of the state in the reliable administration of justice, particularly when it involves the death penalty. But courts have generally held that mitigating evidence, either at sentencing or on appeal, may be introduced over the defendant’s objection (People v. Deere 1985; State v. Hightower 1986; Hamblen v. State 1988). The controlling standard for evaluating the validity of waiver of appeal is the Supreme Court’s ruling in Johnson v. Zerbst (1938), that waiver is ‘an intentional relinquishment or abandonment of a known right or privilege,’ which must be ‘knowing and intelligent.’ In Fay v. Noia (1963), the Court addressed jurisdictional issues between state and federal courts, and the problem of implied waiver when a prisoner does not file or raise issues on appeal in a timely fashion. It held, ‘… nor does a state court’s finding of [implied] waiver bar independent determination of the question by the federal courts on habeas, for waiver affecting federal rights is a federal question.’ In Rees v. Payton (1966), Rees had been sentenced to death for murder. After his direct appeals had been denied, he filed a habeas petition in federal court, which was rejected by district and appeals courts. The Supreme Court granted certiorari; while the petition was pending, Rees directed his attorney to withdraw it and to forego any further legal action. The attorney advised the court that he had doubts of his client’s competence and arranged for a psychiatric examination. That examiner concluded that Rees was incompetent to withdraw his appeal; Rees refused to cooperate with state psychiatrists. The Supreme Court ruled that it had jurisdiction to determine whether or not to permit Rees to withdraw his petition; but without a formal determination of his competence, it could arrive at no decision. It remanded the case to the federal district court to hold a competence hearing, asking that court to determine whether Rees had the ‘capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.’ Although the Court has not been reluctant to find competent waiver in capital cases (Gilmore v. Utah 1976; Hammet v. Texas 1980), it has noted that the criteria for competence to waive appeal must be especially demanding,

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given the consequences of accepting it (Rees v. Payton 1966; Rumbaugh v. Procunier 1985).

Evaluation Bonnie (1990) has argued that because of the typical ambivalence of deathrow inmates who express a desire to withdraw appeals (White 1987), and because of the severe depression from which many of them suffer, which might cause them to despair despite legitimate issues for appeal, it is crucial that affective factors be considered equally with cognitive ones, and that clinical evaluators be able to persuade the courts to consider them, given the cognitive emphasis in the case law. It is also important to make evaluations over time, reflecting the tendency of such inmates to change their minds. As with other issues associated with the death penalty, evaluators may be expected to have strong positions on the morality of capital punishment and must be careful to minimize the effects of those views on their opinions.

COMPETENCE TO BE EXECUTED Clinician involvement in the evaluation of competence to be executed and in the treatment of incompetent deathrow inmates is clearly the most controversial subject in current forensic psychiatry. As neither the American Psychiatric Association nor the American Academy of Psychiatry and the Law has taken a definitive stand on the ethical issues involved, and neither is likely to do so, this section takes no position on the morality of participation by clinicians. After a discussion of the legal issues involved, it presents a discussion of the ethical arguments that have been presented in the literature and suggests guidelines for practice for those clinicians who do choose to become involved in the process.

Legal issues Anglo-American jurisprudence has prohibited the execution of incompetent (often called ‘insane’ by lawyers) prisoners for over 300 years. Edward Coke (1680) wrote that the execution of a madman ‘can be no example to others.’ Blackstone (1769) linked the prohibition against executing the incompetent to the possibility that,‘Had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution.’ The U.S. Supreme Court first addressed the issue in 1897 in Nobles v. Georgia (1897); it rejected Nobles’ contention that he was due a jury trial on his allegation of incompetence to be executed, reasoning that such a process would give the prisoner too much control over the process. It held that the exemption of the incompetent

from execution was not a right but a privilege under common law; and it therefore permitted the legislature to prescribe the proper procedure for evaluating inmates’ claims of post-sentencing incompetence. In Phyle v. Duffy (1948), the Court avoided constitutional issues by reverting to state remedies. In Solesbee v. Balcom (1950), the Court rejected Solesbee’s arguments that he was entitled to notice and an adversarial hearing at which he could have counsel, cross-examine witnesses, and present evidence on his alleged incompetence for execution. The Court held that the state procedure did not deny due process, and compared it to reprieve or clemency powers usually vested in the executive branch and therefore free from judicial review. Justice Frankfurter dissented, arguing that a reprieve from execution while incompetent was not a matter of executive discretion but was subject to due process safeguards that should at least provide the opportunity for the inmate to be heard. In Caritativo v. California (1958), the Court upheld California law, which vested sole responsibility for raising the issue of competence for execution in the prison warden. Citing Solesbee, the Court majority agreed that the courts lacked jurisdiction to consider an inmate’s competence or to review a warden’s decision unless the warden initiated a competence inquiry. Frankfurter again dissented, suggesting that some review of the warden’s actions was warranted. Finally, in Ford v. Wainwright (1986), in its first opinion after holding that the Eighth Amendment applied to the states, Justice Marshall’s plurality opinion held that Florida’s procedures, under which the governor had sole decision-making authority on competence determinations, and that inmates had no rights to a hearing or other due process protections, was unconstitutional. The opinion stated, ‘… whether [the prohibition’s] aim be to protect the condemned from fear and pain without the comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, the restriction [against executing an incompetent inmate] finds enforcement in the Eighth Amendment’ (Ford v. Wainwright 1986, p. 410). Marshall’s opinion further held that the Florida procedures violated due process and were deficient in protecting information for federal review; it held that an inmate is entitled to an evidentiary hearing in federal court on his competence. The majority opinion did not address criteria for incompetence, leaving state definitions controlling. Justice Powell’s separate opinion mentioned several theories supporting prohibiting the execution of an incompetent inmate: (i) to preserve the inmate’s ability to make arguments on his own behalf; (ii) execution of an incompetent has no deterrent value; (iii) to permit the inmate to make religious preparations (Ford v. Wainwright 1986). It is therefore clear that states may not execute incompetent inmates, and that the determination of competence requires an adversarial hearing with at least some of the

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due process protections available at the trial stage (such as the right to be present, to present witnesses, and to cross-examine adverse witnesses). The opinions do not explicitly require that the inmate be represented by counsel, or that hearings be judicial in nature. According to state attorneys general (Miller 1988), fewer than half of the thirty-eight states with capital punishment had developed specific procedures for disposition of incompetent inmates. Maryland has passed a statute that provides for automatic commutation of the death sentence of an incompetent inmate to life without parole (Ann. Code Maryland 1987), but so far no other state has followed suit. The right of an inmate found incompetent for execution to refuse treatment designed to restore his competence has not been definitively settled. Few states address the issue explicitly, although a number of attorneys general believe that no such right exists because of the state’s interest in carrying out its sentences (Miller 1988). The Supreme Court was presented with that issue in Perry v. Louisiana (1990). Perry had been found competent for execution, but only as long as he received antipsychotic medication. The trial court therefore ordered the medication continued, involuntarily if necessary. The state courts denied review – the Supreme Court initially granted certiorari, but then vacated it, directing the state courts to consider the issue in light of Washington v. Harper (1990). The Louisiana Supreme Court subsequently prohibited the involuntary administration of medication to restore competence for execution, holding that it violated state constitutional prohibitions against cruel and unusual punishment and protection of privacy (State v. Perry 1992). The South Carolina Supreme Court reached a similar conclusion (Singleton v. State 1992). Evans (1991) points out that the purpose of treatment in the Perry situation is clearly for the benefit of the state, not the prisoner, as required by Harper.

Ethical issues The American Medical Association has adopted the position that physicians may not participate in executions, but has not specified what is meant by ‘participate’ (Current Opinions 1986). Some authors have argued that any involvement in capital cases, including pretrial evaluations, is unethical because it legitimizes the death penalty (Foot 1990). Others have countered that if conscientious clinicians refuse to participate, it will abandon the field to those less qualified, and will ultimately harm the prisoners (Brodsky 1986; Ward 1986; Bonnie 1990; Foot 1990). The strong division among practitioners was demonstrated by a survey of forensic psychiatrists in which 39 per cent of respondents felt that treating inmates to restore their competence for execution was ethical (Weinstock 1987). While the American Psychiatric Association has not taken a position on the issues involved, the Section of

Psychiatry and Behavioral Sciences of the National Medical Association has issued a position statement that both evaluation and treatment are ethical (National Medical Association 1986). That position is supported by Brodsky (1986), Ward (1986), Stone (1984), and Wallace (1987). While Resnick (1987) argues that no moral distinctions can be made among participation at various stages of a capital prosecution, some authors have attempted to do so. In a state that at the time did not have capital punishment, the Council of the Medical Society of the State of New York (Rosner et al. 1991) issued a policy statement interpreting the AMA’s prohibition against physician participation in an execution to bar any physician involvement in evaluation for capital sentencing or for competence for execution. It is less clear whether treatment of incompetent inmates is permissible; the statement holds that physicians may ‘relieve acute suffering of a convicted prisoner while he is awaiting execution’ (Rosner et al. 1991, at 18). Radelet and Barnard (1986) and Sargent (1987) also draw the line at the evaluation of competence for execution or the treatment of incompetent inmates. Foot (1990) and Appelbaum (1990) would permit evaluations but not treatment. Appelbaum argues that evaluation does not involve a doctor–patient relationship, while treatment inevitably does. A number of authors (including several who have been directly faced with the responsibility of treating incompetent inmates) argue that if clinicians are to provide treatment, it is essential that treatment be totally separated from assessment (Radelet and Barnard 1986; Ward 1986; Heilbrun and McClaren 1988; Brodsky undated). Several authors recognize the moral dilemma faced by those opposed to capital punishment and suggest that such clinicians be granted a ‘conscientious objector’ status with respect to evaluation and treatment of incompetent deathrow inmates (Bonnie 1990; Brodsky undated; Salguero 1986; see Note 1986). Brodsky (1986) suggests the creation of a classification of ‘death-qualified’ clinicians, comparable to death-qualified jurors. Such clinicians would have to be neither unalterably opposed to, nor strongly in favor of, the death penalty. He acknowledges the problems inherent in such classifications – that (as with death-qualified juries) such clinicians are much more likely to favor than to oppose capital punishment, and therefore are more likely to find inmates competent for execution.

Evaluation Brodsky (undated) discusses three problems with evaluations of competence for execution: 1 Reliability: There are basic problems with diagnostic assessments in general. They are inherently subjective, and when combined with the vague criteria for such

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competence and the emotional context of capital punishment, unreliability is inevitable. 2 Frame of reference: Although no checklists or specific tests have to date been developed for evaluation of competence for execution, it is reasonable to use the model of competence to stand trial; the criteria are comparable, and the professions have considerable experience with such evaluations. 3 The differential impact of findings of competence and incompetence: Even clinicians without strong opposition to capital punishment as a concept may find it very difficult to render opinions that would lead directly to the execution of the evaluated inmate. As discussed above, the Supreme Court has discussed, but not made explicit, criteria for competence for execution. It appears generally clear that competence at least requires that the inmate know he has been sentenced to death and why (Florida Stat. 1935). Some commentators would also require the capacity to assist counsel in ongoing appeals, and several states have made that requirement explicit statutorily (Mo. Rev. Stat. 1978; Utah Code 1982; Miss. Code 1985). Others would require the capacity to make peace within whatever religious system in which the inmate believes. Based on their practical experience, Heilbrun and McClaren (1988) provide a comprehensive outline of procedures to be followed by evaluators:

• • • • • •

Make sure to understand the jurisdiction’s legal criteria. Make sure that the inmate understands the purpose and potential consequences of the evaluation. Attempt to secure minimally adequate surroundings for the evaluation. Obtain as much independent information as possible. Use established instruments, such as the Minnesota Multiphasic Personality Inventory (MMPI) and Wechsler Adult Intelligence Scale (WAIS), to bolster reliability and validity. Document the data base and reasoning for the opinion, to facilitate legal review.

Treatment to competence for execution Perhaps the majority of clinicians would choose not to provide such treatment (which responsibility would generally fall on correctional or state hospital clinicians, many of whom would not consider themselves ‘forensicists’ in Appelbaum’s typology and would decline to use treatment to facilitate an execution). Without any official ethical prohibition against the practice, however, state-employed clinicians might find themselves in trouble with their employers. It should be noted that the Louisiana (State v. Perry 1992) and South Carolina (Singleton v. State 1992) Supreme Courts cited the integrity of the medical profession as another reason to prohibit forced medication to restore competence for execution.

For clinicians who do elect to provide treatment, the issue of informed consent becomes paramount, even if not legally required (Ward 1986; Miller 1988; Brodsky 1990). There are in fact some inmates who, while competent, would prefer to be executed rather than spend the rest of their lives in prison, and clinicians should not place their own beliefs above those of their patients (Ward 1986; Miller 1988).

COMPETENCE TO TESTIFY The issue of capacity to testify in court may be raised with respect to both defendants and factual witnesses. In the case of defendants, potential issues of capacity to testify are usually handled as part of the general construct of competence to stand trial. Challenges to the capacities of factual witnesses are raised most often in the case of child witnesses; as such they are discussed in detail in Part Five. Mental health professionals may also occasionally be called on to provide information to courts about the capacities of adult factual witnesses, though most courts have held that in ordinary circumstances the fact finder is capable of determining the credibility of witnesses without the opinions of experts (Slovenko 1987). A Minnesota appeals court ruled that the testimony of a psychologist concerning an automobile driver’s tendency to admit blame regardless of fault based on a history of childhood physical and sexual abuse was inadmissible. The court held that the jury, through its own knowledge and experience, was capable of assessing the credibility of a witness (Scott v. Johnson 1985). In addition, there is the very real risk that psychiatric examination of witnesses, particularly victims, may serve to intimidate and dissuade them from reporting crimes (Goldstein 1980).

Legal issues Even where expertise would seem to be relevant, it is often barred. In Massachusetts v. Laguer (1991), defense counsel chose not to introduce expert testimony to attack the credibility of the victim, who suffered from schizophrenia. The defendant argued on appeal that such testimony could have informed the jury concerning cognitive deficits common in schizophrenia that would be relevant to the victim’s reliability as a witness. The state high court held that such testimony was ‘at its best speculative,’ and affirmed the conviction. On the other hand, expertise is sometimes found to be probative in specific cases. In a robbery and burglary case, the seventy-two-year-old victim’s personal physician testified that she needed medication for ‘mild mental deterioration’ and ‘memory lapses.’ A defense psychiatrist diagnosed the victim as suffering from ‘Amnesia Confabulatory Syndrome’, characterized by rambling, confusion,

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and ‘a tendency to fabricate forgotten events by filling in the details through some sort of suggestion.’ The jury convicted the defendant; the trial court lacked the authority to set aside the verdict, but noted that it went against the weight of the evidence. The appeals court (which did have the authority) set aside the verdict, citing the expert’s testimony and numerous observations from the trial record indicating the victim’s confusion (New York v. Roberts 1991). Courts have reversed convictions when psychiatric testimony on a witness’s credibility was barred (People v. Rensing 1964; People v. Parks 1976). As with other types of capacities in the criminal justice system, courts are unlikely to craft per se rules concerning witness’s reliability based on their membership in a particular class of persons. As an example, the Georgia Court of Appeals recently affirmed a trial court’s decision to permit a witness with an IQ of 40 to testify (Cook v. Georgia 1991). The appellate court held that the record indicated that the trial judge’s examination of the witness showed that she could conceptualize the truth, and that she could distinguish between right and wrong answers in a series of questions administered by the judge. Other courts have affirmed verdicts in cases in which testimony from mentally retarded witnesses (Bussey v. Kentucky 1990; New York v. Berardicurti 1990; South Dakota v. Warren 1990; Wagner v. Indiana 1990) was essential. Courts are more likely to permit expert testimony on a general topic where significant expertise exists than on the capacity of a particular defendant. Two major areas where such expertise exists are eyewitness testimony and hypnotically enhanced testimony.

EYEWITNESS TESTIMONY There is a significant body of experimental research on the reliability and validity of eyewitness testimony (Hilgard and Loftus 1979). The data indicate that free recall is consistently more accurate but less complete than information obtained through structured interviews. The wording of questions can significantly affect responses; what would be called leading questions in court significantly distort answers. For example, asking ‘Did you see the car?’ produced over three times more positive responses than ‘Did you see a car?’ when no car had been present in the videotape seen by the subjects. Based on the research data, it appears that the most effective method to use in interrogating eyewitnesses is to ask them first for free recall, and then to ask more specific (but as non-leading as possible) questions, documenting the information obtained at each part of the interview.

HYPNOTICALLY ENHANCED TESTIMONY Hypnosis can be an effective technique for recovering memories lost to psychogenic amnesia, but its use presents significant problems in the forensic context. The extensive research literature indicates that the demand characteristics of the hypnotic situation are likely to lead

to confabulation in suggestible subjects, and that ‘memories’ so established are difficult to challenge in court (Miller and Stava 1997). For these reasons, some courts have barred hypnotically enhanced testimony for years (People v. Ebanks 1897). As research provided greater understanding and acceptance of hypnosis as a clinical tool, courts began to hold that hypnosis affects the credibility, but not the admissibility, of witness testimony (Harding v. State 1968; United States v. Miller 1969; State v. McQueen 1978; Clarke v. State 1979; Key v. State 1983; People v. Boudin 1983). In an affidavit submitted to the U.S. Supreme Court, Orne (Quaglino v. California 1978) recommended five criteria for the admissibility of hypnotically enhanced testimony:

• • • • •

That the hypnosis be performed by a specially trained psychiatrist or psychologist who is not otherwise involved in the case. That only the bare minimum of facts should be presented in writing to the clinician to document the prehypnosis database. That the subject should be asked for free recall before hypnosis is attempted. That a videotape of the entire session be made. That no one except the clinician and the subject should be in the room during the session(s).

These criteria were adopted by several other courts (State v. Hurd 1981; State v. Armstrong 1983). Subsequently, however, difficulties in implementing these procedures have caused Orne to call for absolute rejection of hypnotically enhanced testimony (Orne 1983). Reiser (1986), a psychologist who established the hypnosis training program for the Los Angeles Police Department, has argued that confabulation is rare and that the accuracy of recall after hypnosis is 80 per cent. Spiegel and Spiegel (1984) and Beahrs (1989) take an intermediate position, acknowledging the problems with hypnosis but arguing that it does product sufficiently accurate information so that it should be admissible. Currently, courts have taken differing positions on the admissibility of hypnotically enhanced testimony. Courts in Illinois (People v. Harper 1969), Virginia (Greenfield v. Commonwealth 1974), California (People v. Shirley 1982), Florida (Bundy v. State 1986), and the military courts martial system (United States v. Andrews 1976) continue to bar all testimony from witnesses who have been hypnotized. At the other extreme, courts in Wyoming (Chapman v. State 1982), Louisiana (State v. Wren 1983), North Dakota (State v. Brown 1983), and the Ninth Circuit (United States v. Awkward 1979) have held that testimony from witnesses who have been hypnotized may not be barred for that reason. Many courts have adopted intermediate positions. Those in Wisconsin (State v. Armstrong 1983), Idaho (State v. Iwakiri 1984), Colorado (People v. Romero 1987), and the federal Fourth Circuit (McQueen v. Garrison 1987) and Fifth Circuit (Wicker v. McCotter 1986) have

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held that the court must first determine if the proposed testimony is reliable before it may be admitted. Courts in Minnesota (State v. Koehler 1981), Arizona (State ex rel. Collins v. Superior Court 1982), Nebraska (State v. Patterson 1983), New York (People v. Hughes 1983), North Carolina (State v. Peoples 1984), Washington (State v. Martin 1984; Michigan (State v. Nixon 1984), Missouri (Aisbach v. Bader 1985), Massachusetts (Commonwealth v. Kater 1985), Hawaii (State v. Moreno 1985), Kansas (State v. Haislip 1985), Georgia (Walraven v. State 1985), Alaska (Contreras v. State 1986), Delaware (State ex rel. Elliotte v. State 1986), and Illinois (People v. Wilson 1987) have held that witnesses who have been hypnotized may testify only to their recollections prior to the hypnosis. The Supreme Court has not ruled definitively on the admissibility of testimony from hypnotized witnesses, except to hold that to bar the testimony of a defendant who has been hypnotized would violate the defendant’s rights under the Fifth (self-incrimination), Sixth (compulsory process), and Fourteenth (due process) amendments (Rock v. Arkansas 1987).

are questioned and researched less frequently are discussed.

Evaluation

Competence to be evaluated

Psychiatrists who are asked to offer opinions on the capacities of particular witnesses should be aware of the ethical requirement that diagnoses not be made unless the psychiatrist has personally examined the witness, at least in the case of prominent national figures (American Psychiatric Association 1998). It is not clear whether diagnostic opinions may be ethically proffered without a personal examination if sufficient information (medical records, reports by those who have examined the defendant, etc.) is available. Opinions on general topics, such as the reliability or validity of eyewitness testimony or hypnotically enhanced testimony, may of course be given without examining witnesses. Forensic experts should be aware of the numerous research data on the reliability and validity of eyewitness testimony (with and without hypnotic enhancement), and should be able to utilize those data in forming opinions for the court. Evaluators who are retained to hypnotize witnesses should be aware of the jurisdiction’s rules on the admissibility (if any) of hypnotically enhanced testimony, and should make sure that they conform to those rules. If such testimony is admissible, but there are no legal rules governing the process, clinicians would be well advised to follow Orne’s rules, as they appear to have gained the most support, both clinically and legally.

Since a variety of issues related to criminal prosecution involve professional evaluations of defendants (e.g., competence to stand trial, insanity, sentencing, release), questions may arise concerning the capacity of the defendant to participate meaningfully in the evaluation itself, including the capacity to consent to those evaluations that require such consent in a particular jurisdiction. As there are no statutory or case law definitions of competence to be evaluated, and the potential for an infinite regress is obvious (Miller and Musholt 1988), clinicians will have to utilize concepts from informed consent and general competence law to guide their evaluations.

MISCELLANEOUS COMPETENCIES In addition to the competencies previously discussed, defendants’ capacities may be questioned at any stage of the proceedings. In this section, competencies that

Competence to waive extradition Defendants may be arrested at the request of law enforcement officers in other jurisdictions because of outstanding criminal charges in those jurisdictions. Alternately, defendants arrested for a crime in one jurisdiction may have more serious charges in another, resulting in a request for extradition from the latter. Defendants have the legal right to challenge such transfers and are entitled to a formal hearing if they do so. In order to participate competently in such hearings (and, indeed, to initiate the hearing by challenging the extradition proceedings themselves), defendants must be aware that charges are pending in the other jurisdiction(s), the nature of the charges and possible outcome of prosecution, the fact that extradition may be challenged, and the holding jurisdiction’s criteria for granting extradition.

Competence to be sentenced Competence is not a fixed characteristic of defendants but can vary according to individual predispositions and to the stresses faced during a criminal prosecution. Therefore, a determination that a defendant is competent to plead guilty or to stand trial does not foreclose changes in competence during those procedures (Drope v. Missouri 1975). It is possible that a defendant will competently enter a guilty plea, or competently go through a trial, but become disturbed after conviction but before sentence is passed. There is little in statutes or case law to define competence to be sentenced, a procedure that requires relatively little participation by the defendant. Since the issue is raised infrequently, attorneys and judges have little practical experience in dealing with it. Evaluators will therefore have to operationalize criteria for evaluation based on the particulars of the individual case.

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As usual with legal issues, there are two major factors to be considered. First, there are the rights of defendants and their capacities to exercise those rights. The major process that occurs in most cases after conviction but before sentencing is the preparation of a presentence report, usually by the probation and parole department. Agents interview the defendant and other relevant persons, and review past records concerning the defendant. The report is then presented to the trial judge to aid in the determination of sentence; if the defendant is incarcerated, it is also available to the parole board to assist it in making release decision. It is therefore potentially a very important document in jurisdictions with flexible sentencing guidelines. In order for defendants to minimize the adverse consequences of conviction, they must be able to participate in the preparation of the document by providing information to the agent compiling it; and they must also be able to raise appropriate objections to inaccurate information contained in it and to the agent’s conclusions and recommendations based on that information. The other major factor is the dignity of the law. Even if the facts of the case are straightforward and the presentence report is accurate and fair, defendants must be aware that they have been convicted of a crime, the reasons for the conviction, the range of penalties for that crime (if such a range exists), and why the court is justified in imposing a sentence upon them. Without such understanding, it is unseemly for the court to impose sentence. In practice, requests for evaluation of competence to be sentenced arise chiefly when a defendant’s behavior changes significantly after trial, and he or she suddenly appears mentally or behaviorally disordered. Threatened or attempted suicide is a frequent trigger for raising the question of competence. The attorney raising the question is usually more concerned with the client’s mental or emotional health than with the specific legal capacities involved; raising the issue of competence is often the most effective method available to direct clinical attention to those perceived problems. The problem thus often boils down to providing appropriate clinical treatment to a disordered individual, which will both effect a remission in the mental disorder and satisfy the concerns of the legal system that were expressed in terms of competence.

Competence to face revocation of probation or parole Although probation and parole may be revoked without the level of formal hearing required to secure a conviction originally, persons facing such restrictions on their liberty retain due process rights to require the state to prove that they have violated the conditions under which they were released. To take advantage of these rights, they must be aware of the conditions of their probation or parole, that they are alleged to have violated these conditions,

and they must be able to assist their attorneys in preparing a defense to the allegations.

COMPETENCE IN THE JUVENILE JUSTICE SYSTEM Forensic issues in general involving minors are addressed in greater detail in Part Five; specific aspects of mental health evaluations in the criminal justice system applicable to juveniles are summarized in this section. The subject is of increasing importance, as the number of serious crimes committed by juveniles continues to increase, and these crimes are being committed by ever younger juveniles. Courts are trying juveniles as adults with increasing frequency and are even passing death sentences (Penry v. Lynaugh 1989). Until the nineteenth century, the criminal law made few formal distinctions based on age, except for the very youngest children. From its inception, the juvenile justice system was conceived of as rehabilitative, rather than punitive or deterrent. Attorneys appointed to represent juveniles were often guardians ad litem, who did what they felt was best for their clients, rather than adversarial advocates for their clients’ wishes. Proceedings were informal, and juveniles were not provided with many of the due process protections afforded adult defendants – a fact noted explicitly by the Supreme Court in Kent v. United States (1966) in upholding the District of Columbia circuit court’s statutory right to waive a juvenile defendant into adult court after a ‘full investigation,’ but without an adversarial hearing. Shortly after Kent, however, the Court’s thinking underwent a significant change. Critics were increasingly attacking the whole parens patriae concept of state action when it involved loss of liberty for the subject of the state’s beneficence. The Court responded to both the libertarian criticisms and to mounting evidence that many of the supposed treatment facilities were warehouses at best, at least as bad as jails, and prisons at worst. In the landmark case In re Gault (1967), the Court rejected the rehabilitation–punishment distinction, held that the due process clause of the Fourteenth Amendment applied to juveniles, and that juveniles facing criminal charges in juvenile court should be afforded the same procedural protections as were available in adult courts. Three years later, in In re Winship (1970), the Court extended the procedural rights of juvenile defendants to include the right to a jury trial and a requirement of proof beyond a reasonable doubt for conviction. Although the Court backed away somewhat by reversing itself the next year and holding that the right to a jury trial was not constitutionally required (McKeiver v. Pennsylvania 1971), the principle that potential loss of liberty warranted significant procedural protections had been established.

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These changes have impacted on issues of competence in juvenile court. Many courts have adopted an adversarial model parallel to adult criminal procedure (McMillian and McMurtry 1969–70; Institute of Judicial Administration 1980). But many juvenile courts have persisted in using a ‘best interests’ model and have not implemented the Gault reforms in practice (Kay and Segal 1972–73). In some courts, defense attorneys are still expected to report to the judge any admissions of guilt made by their clients (Ferster, Courtless, and Snethen 1970–71).

Competence to stand trial The major problems in discussing competence to stand trial in juvenile court are the major variations in practice among jurisdictions, and even from court to court within jurisdictions; as discussed above, that practice varies from a relatively strict due process model comparable to adult court to persistent parens patriae models in which the judge and attorney for the juvenile make all the important decisions. Only eighteen states, the District of Columbia, and the federal courts explicitly bar proceedings against incompetent juveniles; in those jurisdictions, the Dusky v. United States (1960) criteria are generally used (Grisso, Miller, and Sales 1987). Many of the other jurisdictions utilize diversion to the mental health system for apparently incompetent juveniles; but twelve states bar psychiatric evaluation prior to adjudication, reasoning that to do so would introduce legally irrelevant material into the criminal proceedings. Grisso and colleagues (1987) list four possible reasons to bar prosecution of incompetent juveniles: 1 Constitutional prohibitions. 2 Protection from stress or duress; several courts have held that the vulnerability of juveniles requires additional protection (Haley v. Ohio 1948; Gallegos v. Colorado 1962; Briones v. Juvenile Court of Denver 1975). 3 Diversion into the mental health system; the authors argue that the need for diversion with juveniles is no greater than with adults, so that special diversion procedures are not only unnecessary but have a great potential for misuse. In addition, there are significant jurisdictional and intersystem problems with juveniles because transfer procedures are often not explicit in the statutes (In re Two Minor Children 1979). 4 The need to present an adequate defense. This reason assumes adversarial representation and active participation by the juvenile, which is clearly not true in all jurisdictions. Existing case law has generally not distinguished competence criteria for juveniles from those for adults, although dicta in some decisions suggest that factors such as age, IQ (as a reflection of the juvenile’s functional age) (State

in Interest of Causey 1979), school achievement, mental disorder or emotional disturbance, prior court experience, and demeanor during contacts with counsel may be relevant to competence. Given the lack of uniformity among courts as to how active juveniles are expected to be in their defenses (Grisso, Miller, and Sales 1987), practical application of the Dusky criteria is far from uniform. Stein (1983) has presented a list of specific capacities to consider when evaluating juvenile competence, based on the author’s experience in juvenile court, though this has not been validated. Because of the wide variability among courts as to the expectations of the juvenile, the weight given to the various factors would be expected to vary significantly. All jurisdictions mandate inpatient commitment of incompetent juveniles, as is essentially the case with adults. In half of those jurisdictions, the juvenile court retains jurisdiction, whereas in the other half, a determination of incompetence results in automatic dismissal of the charges (Grisso, Miller, and Sales 1987). Barnum et al. (1989) report on the characteristics of juveniles referred for psychiatric evaluation at a large urban juvenile court clinic. Because of the unusually high level of resources at their clinic, judges feel free to refer anyone they feel should be evaluated; in addition, state law requires evaluation of all juveniles being considered for waiver to adult court. As a result, 1000 of the juvenile court’s annual case load of 1500 were referred. The authors compared eighty referred juveniles with sixty who were not referred, and reported that referral was more likely for younger children, those who had been in special education, those whose fathers fell into the lowest socioeconomic class, those with previous referrals to welfare agencies, those with longer previous arrest records, and those with a history of being abused. There was no significant difference between the groups on the nature of the criminal charge. The authors concluded that since few of the variables correlated with referral are associated with treatment response, it is unlikely that treatment was the major reason for referral. They suggest that a high risk for recidivism was a more likely motivating factor.

Waiver into adult court The two major criteria presented by Barnum et al. (1989) for waiver into adult court in their jurisdiction, high predicted rate of recidivism and unresponsiveness to treatment, are also the major criteria in most jurisdictions (Barnum 1987). It appears that a juvenile’s capacity to participate in the waiver proceedings themselves has received little attention from the courts. In his article on evaluation of juveniles facing waiver, Barnum (1987) concentrates on the determination of treatability, arguing that clinicians are not experts in predicting recidivism. He points out that ‘treatment’ for the

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juvenile justice system includes special education, foster care, and work programs in addition to traditional mental health services. Evaluators therefore need to be familiar with a variety of social and educational support systems in their communities. They must also consider the effects of incarceration itself on the juvenile’s future behavior.

Competence to waive Miranda rights After Gault, courts were faced with the problem of ensuring that juveniles could exercise their new due process rights (Melton 1981). Because younger juveniles have not developed adult cognitive skills, their capacities to make valid decisions about waiving counsel and making confessions is questionable. Studies of cognitive capacity (Inhelder and Piaget 1968; Niemark and Lewis 1968) demonstrate that abstract reasoning, inductive and deductive logical processes, and cognitive complexity begin to take on the form characteristic of adult thinking between ages eleven and thirteen, but there is considerable variability from one child to another that must be taken into consideration in the legal context. Grisso and colleagues (Grisso and Pomicter 1977; Grisso 1980; Grisso and Manoogian 1980; Grisso 1981) have carried out the major studies in the area of competence to waive Miranda rights. In a series of studies of juveniles in the St. Louis area, Grisso’s group investigated the frequency of police interrogation of juveniles, parents’ behavior during interrogation of their children and their attitudes toward their children’s due process rights, differences between juveniles’ and adults’ comprehension of the Miranda warnings and comprehension of the functions of interrogation and representation by counsel, and juveniles’ reasoning about the effects of waiving their Miranda rights (Grisso 1981). Grisso reported that police interrogation of juveniles charged with felonies occurred in over 60 per cent of cases; juveniles usually responded to the questioning. Juveniles under age fifteen virtually never invoked their rights; those aged fifteen and sixteen did so in only 12–14 per cent of cases. These rates were substantially lower than in studies of adult waiver. Juveniles were typically accompanied by their parents, but were not represented by counsel, during police interrogation. Parents were not found to be effective advocates in these situations; in fact, in the majority of cases they appeared to believe that their children should confess. Juveniles under age fifteen, and those aged fifteen and sixteen with IQs below 80, were significantly more likely to be incompetent to understand their Miranda rights than a comparable adult sample. One-third to one-half of the fifteen- and sixteen-year-olds with IQs above 80 were also incompetent, but this is comparable with the adult controls in the study. Comparable results were obtained by Ferguson and Douglas (1970). Contrary to the beliefs of many courts (Fare v. Michael C. 1979), prior experience

with the juvenile justice system was not correlated with greater comprehension. Based on his research, Grisso (1981) has recommended that confessions obtained from juveniles under age fifteen be excluded unless counsel was present during the interview. Courts have not yet, however, made significant use of psychological and developmental research on juveniles in their decisions, focusing instead on police conduct rather than on the individual capacities of juvenile suspects. Given the lower cognitive capacities of juveniles, it is even more important to consider such capacities in determining the admissibility of confessions. Courts have examined, but generally rejected, per se exclusionary rules. Thus, the California Supreme court rejected a per se rule requiring parental consent for juvenile waivers in People v. Lara (1967), and other courts have followed this lead (State v. Melanson 1972; Theriault v. State 1974). Given the lack of advocacy demonstrated by parents in Grisso’s study, parental involvement does not seem to be of much use in any event. A federal court of appeals in West v. United States (1968) expanded on the Lara decision, holding that courts should consider the juvenile’s age, intelligence, and previous court experience as well as the circumstances of the interrogation, such as its length and the care with which due process was applied, in determining the validity of waiver of Miranda rights. The Supreme Court also provided a list of factors to be considered in waiver determinations: ‘The totality approach permits – indeed it mandates – inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile’s age, experience, education, background, and intelligence, and whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights’ (Fare v. Michael C. 1979, at 725). Several courts have examined the possibility of a per se exclusion of confessions from juveniles, and have rejected the concept (Cotton v. United States 1971; United States v. Ramsey 1973; In the Interest of Thompson 1976). Another court refused to base exclusion solely on the IQ of the juvenile (In the Interest of Stiff 1975). Given the dramatic shift away from consideration of the characteristics of defendants in adult waiver cases (Colorado v. Connelly 1986), it is not clear that the Supreme Court would continue to hold to this position if presented with a case today. These decisions came before the availability of research such as Grisso’s; but there have not been subsequent decisions that have cited such research in refining criteria.

Attorneys’ right to be present during psychiatric examinations Defense attorneys have frequently claimed that they have the right to be present at psychiatric examinations of

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their clients, arguing that it is a critical stage of the prosecution. Federal courts have uniformly rejected such claims; in United States v. Albright (1968), the Fourth Circuit held that there is no constitutional right to have an attorney present during a court-ordered psychiatric examination for sanity, since that might defeat the purpose of the examination. The same rationale was given by the Second Circuit (United States v. Baird 1969); the Seventh Circuit (United States v. Bohle 1971); and the Fifth Circuit (United States v. Cohen 1976), The courts in Baird and Cohen also held that a psychiatric examination is not a critical stage of the proceedings. The Supreme Court has not directly addressed the issue, although it let decisions in Cohen and Baird stand by denying certiorari. In Buchanan v. Kentucky (1987) Buchanan argued that exclusion of his counsel from the psychiatric examination requested by both prosecution and defense violated his Sixth Amendment rights. The Court affirmed the conviction without even addressing the issue. Reported state court decisions are fewer, but are consistent with the federal cases. In People v. Galimanis (1989) the defendant has no constitutional right to counsel during a psychiatric examination, citing Cohen.

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Evans v. Kropp, 254 F. Supp. 218 (1966). Everington C. 1990. The Competence Assessment for Standing Trial for Defendants with Mental Retardation (CAST-MR): a validation study. Criminal Justice and Behavior 17, 147–68. Fare v. Michael C., 442 U.S. 707 (1979), rehearing denied, 444 U.S. 887 (1979). Faretta v. California, 422 U.S. 806 (1975). Fay v. Noia, 372 U.S. 391, 439 (1963). Ferguson, A., Douglas, A. 1970. A study of juvenile waivers. San Diego Law Review 7, 39–54. Ferguson, G.A. 1972–1973. The role of the judge in plea bargaining. Criminal Law Quarterly 15, 26–51. Forthoffer v. Swope, 104 F.2d 707 (9th Cir. 1939). Ferster, E., Courtless, T., Snethen, E. 1970–1971. The juvenile justice system: in search of the role of counsel. Fordham Law Review 39, 375–412. Fikes v. Alabama, 352 U.S. 191 (1957). Florida Stat. Sec. 922.07 (1935). Foot, P. 1990: Ethics and the death penalty: participation by forensic psychiatrists in capital trials. In Rosner, R., Weinstock, R. (eds), Ethical Practice in Psychiatry and the Law. New York: Plenum Press, 207–17. Ford v. Wainwright, 477 U.S. 399 (1986). Gallagher, K. 1974. Judicial participation in plea bargaining: a search for new standards. Harvard Civil Rights–Civil Liberties Law Review 9, 29–51. Gallegos v. Colorado, 370 U.S. 49 (1962). Gideon v. Wainwright, 372 U.S. 335 (1963). Gilmore v. Utah, 429 U.S. 1012,1015–1016 nn. 4–5 (1976). Gobert, J.J. 1973. Competency to stand trial: a pre- and post-Jackson analysis. Tennessee Law Review 40, 659–88. Godinez v. Moran, 113 S.Ct. 2680 (1993). Golding, S.L., Roesch, R. 1984. Assessment and conceptualization of competency to stand trial: preliminary data on the Interdisciplinary Fitness Interview. Law and Human Behavior 8, 321–34. Goldstein, R.L. 1980. Credibility and incredibility: the psychiatric examination of the complaining witness. American Journal of Psychiatry 137, 1238–40. Grano, J.D. 1970. The right to counsel: collateral issues affecting due process. Minnesota Law Review 54, 1175–264. Greenfield v. Commonwealth, 204 S.E.2d 415 (Va. 1974). Grisso, T. 1980. Juveniles’ capacities to waive Miranda rights: an empirical analysis. California Law Review 68, 1134–66. Grisso, T. 1981: Juveniles’ Waiver of Rights: Legal and Psychological Competence. New York: Plenum Press. Grisso, T. 1986: Evaluating Competencies: Forensic Assessments and Instruments. New York: Plenum Press. Grisso, T., Manoogian, S. 1980: Juveniles’ comprehension of Miranda warnings. In Lipsitt, P.D., Sales, B.D. (eds), New Directions in Psycholegal Research. New York: Van Nostrand Reinhold, 127–40.

Criminal competence 209 Grisso, T., Pomicter, C. 1977. Interrogation of juveniles: an empirical study of procedures, safeguards, and rights waiver. Law and Human Behavior 1, 321–42. Grisso, T., Miller, M.O., Sales, B. 1987. Competency to stand trial in juvenile court. International Journal of Law and Psychiatry 10, 1–20. Group for the Advancement of Psychiatry. 1974: Misuse of Psychiatry in the Criminal Courts. New York: Group for the Advancement of Psychiatry, Report No. 89. Gutheil, T.G., Bursztajn, H., Kaplan, A.N., et al. 1987. Participation in competency assessment and treatment decisions: the role of a psychiatrist-attorney team. Mental and Physical Disability Law Reporter 11, 466–99. Haley v. Ohio, 332 U.S. 596 (1948). Halleck, S.L., Hoge, S.K., Miller, R.D., et al. 1992: Report of the American Psychiatric Association Task Force on the Use and Misuse of Psychiatric Diagnoses in Court. Task Force Report 32, American Psychiatric Association. Washington, DC: American Psychiatric Press. Halpern, A.L. 1975. Use and misuse of psychiatry in competency examinations of criminal defendants. Psychiatric Annals 5, 123–50. Hamblen v. State, 527 So. 2d 800 (Fla. 1988). Hammett v. Texas, 448 U.S. 725, 726 (1980). Harding v. State, 246 A.2d 302 (Md. 1968); cert. denied, 395 U.S. 949 (1968). Heberling, J.L. 1972. Judicial review of the guilty plea. Lincoln Law Review 7, 137–209. Heilbrun, K.S., McClaren, H.A. 1988. Assessment of competency for execution? A guide for mental health professionals. Bulletin of the American Academy of Psychiatry and the Law 16, 205–16. Heller, M.S., Traylor, W.H., Ehrlich, S.M., et al. 1981. Intelligence, psychosis and competency to stand trial. Bulletin of the American Academy of Psychiatry and the Law 9, 267–74. Herron, D., Zonana, H., Crane, L. 1983. Competence to stand trial in Connecticut. Bulletin of the American Academy of Psychiatry and the Law 11, 261–71. Hilgard, E.R., Loftus, E.F. 1979. Effective interrogation of the eyewitness. International Journal of Clinical and Experimental Hypnosis 27, 342–57. Hopt. v. Utah, 110 U.S. 574, 589 (1884). Illinois v. Perkins, 496 U.S. 292 (1990). Inhelder, B., Piaget, J. 1968: The Growth of Logical Thinking. New York: Basic Books. In re Gault, 387 U.S. 1 (1967). In re Two Minor Children, 592 P.2d 166 (Nev. 1979). In re Williams, 165 F. Supp. 879, 881 (D.D.C. 1958). In re Winship, 397 U.S. 358 (1970). Institute of Judicial Administration-American Bar Association. 1980: Juvenile Justice Standards. Cambridge MA: Ballinger Press. In the Interest of Stiff, 336 N.E.2d 619 (1975). In the Interest of Thompson, 241 N.W.2d 2, 5 (1976). Jackson v. Indiana, 406 U.S. 715, 737-38 (1972). Johnson v. State, 395 N.W.2d 176 (1986).

Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Jones v. United States, 384 F.2d 916 (9th Cir. 1967). Judiciary Act of Sept. 24, 1789, Chapter 20, Sec. 35, 1 Stat. 73, 92 [codified at 28 U.S.C. Par. 1654 (1970)]. Kay, R., Segal, D. 1972–1973. The role of the attorney in juvenile court proceedings: A non-polar approach. Georgetown Law Journal 61, 1401–24. Kent v. United States, 383 U.S. 541 (1966). Key v. State, 480 So. 2d 488 (Fla. 1983). Koson, D., Robey, A. 1973. Amnesia and competency to stand trial. American Journal of Psychiatry 130, 588–91. Laboratory of Community Psychiatry. 1973: Competency to Stand Trial and Mental Illness. New York: Jason Aronson. Lamb, H.R., Grant, R.W. 1982. The mentally ill in an urban county jail. Archives of General Psychiatry 39, 17–22. Lipsitt, P.D., Lelos, D., McGarry, A.L. 1971. Competency for trial: a screening instrument. American Journal of Psychiatry 128, 105–9. Machibroda v. United States, 368 U.S. 487 (1962). Malloy v. Hogan, 378 U.S. 1 (1964). Massachusetts v. Laguer, 571 N.E. 2d 371 (Mass. Sup. Jud. Ct. 1991). May v. State, 398 So. 2d 1331 (Miss. 1981). McCarthy v. United States, 394 U.S. 459 (1969). McClure, R.W. 1971. Plea bargaining: the judicial merrygo-round. Duquesne Law Review 10, 253–69. McKastle v. Wiggins, 465 U.S. 168 (1984). McKeiver v. Pennsylvania, 403 U.S. 528 (1971). McMillian, T., McMurtry, D. 1969–1970. The role of the defense lawyer in juvenile court: advocate or social worker? St. Louis University Law Review 14, 561–603. McQueen v. Garrison, 814 F.2d 951 (4th Cir. 1987). Medina v. California, 505 U.S. 437 (1992). Melton, G.B. 1981. Making room for psychology in Miranda doctrine: juveniles’ waiver of rights. Law and Human Behavior 7, 67–85. Melton, G.B., Weithorn, L., Slobogin, C. 1985: Community Mental Health Centers and the Courts: An Evaluation of Community-Based Forensic Services. Charlottesville, VA: Institute of Law, Psychiatry and Public Policy. Melton, G.B., Petrila, J., Poythress, N.G., et al. 1987: Competency to stand trial. In Psychological Evaluations for the Courts. New York: Guilford Press, 65–92. Miller, R.D. 1987: Involuntary Civil Commitment of the Mentally Ill in the Post-Reform Era. Springfield, IL: Charles C. Thomas. Miller, R.D. 1988. Evaluation of and treatment to competency to be executed: a national survey and an analysis. Journal of Psychiatry and Law 16, 67–90. Miller, R.D. 1991. Economic factors leading to diversion of the mentally disordered from the civil to the criminal commitment systems. International Journal of Law and Psychiatry 15, 1–12. Miller, R.D., Germain, E.J. 1986. The specificity of evaluations for competency to stand trial. Journal of Psychiatry and Law 14, 333–47.

210 Forensic evaluation and treatment in the criminal justice system Miller, R.D., Germain, E.J. 1987. Evaluation of competency to stand trial in defendants who don’t want to be defended against the crimes charged. Bulletin of the American Academy of Psychiatry and the Law 15, 371–9. Miller, R.D., Germain, E.J. 1988. The retrospective evaluation of competency to stand trial. International Journal of Law and Psychiatry 11, 113–25. Miller, R.D., Germain, E.J. 1989. Inpatient evaluation of competency to stand trial. Health Law in Canada 9, 74–8, 92. Miller, R.D., Kaplan, L.V. 1992. Representation by counsel: right or obligation? Behavioral Sciences and the Law 10, 395–406. Miller, R.D., Musholt, E.A. 1988. Competency to be released. Newsletter of the American Academy of Psychiatry and the Law 13, 18–19. Miller, R.D., Stava, L. 1997: Hypnosis and dissimulation. In Rogers, R. (ed.), Clinical Assessment of Malingering and Deception, 2nd edition. New York: Guilford Press, 282–300. Miller, R.D., Bernstein, M.R., Van Rybroek, G.J., et al. 1989. The impact of the right to refuse treatment in a forensic population: six-month review. Bulletin of the American Academy of Psychiatry and the Law 17, 107–19. Miranda v. Arizona, 436,475 (1966). Miss. Code Ann. Sec. 99-19-57(2)(b) (Supp. 1985). Mo. Rev. Stat. Sec. 552.060(1) (1978). National Medical Association, Section on Psychiatry and Behavioral Sciences. 1986. Position statement on the role of the psychiatrist in evaluating and treating ‘death row’ inmates. Chicago. Newman, D.J. 1966: Conviction: The Determination of Guilt or Innocence Without Trial. Boston: Little, Brown. Newman, D.L., NeMoyer, E.C. 1970. Issues of propriety in negotiated justice. Denver Law Journal 47, 367–407. New York v. Berardicurti, 561 N.Y.S.2d 949 (N.Y. App. Div. 1990). New York v. Roberts, 569 N.Y.S.2d 53 (N.Y. App. Div. 1991). Niemark, E., Lewis, N. 1968. Development of logical problem solving: a one-year retest. Child Development 39, 527–36. Nobles v. Georgia, 168 U.S. 398 (1897). Note. 1963. The representation of indigent criminal defendants in the federal district courts. Harvard Law Review 76, 579–618. Note. 1965. The right of an accused to proceed without counsel. Minnesota Law Review 49, 1133–53. Note. 1971. The guilty plea as a waiver of rights and as an admission of guilt. Temple Law Quarterly 44, 640–51. Note. 1976. Faretta v. California and the pro se defense: the constitutional right of self-representation. American University Law Review 25, 897–937. Note. 1977. Plea bargaining and the transformation of the criminal process. Harvard Law Review 90, 564–95.

Note. 1981. Amnesia: the forgotten justification for finding an accused incompetent to stand trial. Washburn Law Journal 20, 289–306. Note. 1984. Competence to plead guilty: a new standard. Duke Law Journal 1984, 149–74. Note. 1986. Medical ethics and competency to be executed. Yale Law Journal 96, 167–86. Orne, M.T. 1983. Forensic hypnosis. Paper read at the 16th Annual Meeting of the American Academy of Psychiatry and the Law, Albuquerque, New Mexico, October 1983. Palko v. Connecticut, 302 U.S. 319 (1937). Parry, J. 1987. Involuntary confessions based on mental impairment. Mental and Physical Disability Law Reporter 11, 2–6. Payne v. Arkansas, 356 U.S. 560 (1958). Pate v. Robinson, 86 S. Ct. 836, 841 (1966). Penry v. Lynaugh, 109 S. Ct. 2934 (1989). People v. Boudin, Ind. No. 81-285 (Sup. Ct. N.Y., filed March 11, 1983). People v. Deere, 710 P.2d 925 (1985). People v. Ebanks, 49 P. 1049 (Cal. 1897). People v. Galimanis, 765 P.2d 644 (Colo. App. Div. 1, 1989). People v. Harper, 250 N.E.2d 5 (Ill. App. 1969). People v. Hughes, 453 N.E.2d 484 (N.Y. 1983). People v. Lara, 432 P.2d 202 (Cal. 1967). People v. Maynard, 179 N.E. 833 (1932). People v. McBroom, 70 Cal. Rptr. 326 (1968). People v. Palmer, 9 P.3d 1156 (Colo. App. 2000). People v. Palmer, 31 P.3d 863 (Colo. 2001). People v. Parks, 41 N.Y.2d 36 (N.Y. Ct. App. 1976). People v. Parsons, 82 Misc. 2d 1090, 371 N.Y.S.2d 840 (Nassau Cty. Ct. 1975). People v. Rensing, 14 N.Y.2d 211 (N.Y. Ct. App. 1964). People v. Romero, 745 P.2d 1003 (Colo. 1987). People v. Shirley, 641 P.2d 775 (Cal. 1982). People v. Silagy, 461 N.E.2d 415 (Ill. 1984). People v. Stanworth, 457 P.2d 891 (Cal. 1969). People v. Wilson, 506 N.E.2d 571 (Ill. 1987). Perlin, M. 1987. The Supreme Court, the mentally disabled criminal defendant, and symbolic values: random decisions, hidden rationales, or doctrinal abyss? Arizona Law Review 29, 291–8. Perry v. Louisiana, 498 U.S. 38 (1990). Phyle v. Duffy, 334 U.S. 431 (1948). Pittenger, R.D. 1983: Manual for Competency Assessment and Treatment. Atascadero, CA: Atascadero State Hospital. Poythress, N., Nicholson, R., Otto, R., et al. 1999: MacArthur Competency Assessment Tool, Criminal Adjudication. Psychological Assessment Resources, Odessa Florida Quaglino v. California, cert. denied, 99 S. Ct. 212, pet. rehearing denied, 99 S. Ct. 599 (1978). Rachlin, S., Stokman, C., Grosman, S. 1986. Incompetent misdemeanants – pseudocivil commitment? Bulletin of the American Academy of Psychiatry and the Law 14, 23–30.

Criminal competence 211 Radelet, M.L., Barnard, G.W. 1986. Ethics and the psychiatric determination of competency to be executed. Bulletin of the American Academy of Psychiatry and the Law 14, 37–53. Reck v. Pate, 367 U.S. 433 (1961). Rees v. Payton, 384 U.S. 312, 314 (1966). Reiser, M. 1986. Admission of hypnosis-induced recollections into evidence. American Journal of Forensic Psychiatry 7, 31–40. Resnick, P.J. 1987: Discussion at the Spring Scientific Meeting of the Midwestern Chapter of the American Academy of Psychiatry and the Law, April 4, Cincinnati, OH. Riggins v. Nevada, 112 S. Ct. 1810 (1992). Robey, A. 1965. Criteria for competency to stand trial: a checklist for psychiatrists. American Journal of Psychiatry 122, 616–23. Rock v. Arkansas, 107 S. Ct. 2704 (1987). Roesch, R., Golding, S. 1980: Competency to Stand Trial. Chicago: University of Illinois Press. Rogers, R. (ed.). 1997: Clinical Assessment of Malingering and Deception, 2nd edition. New York: Guilford Press. Rosner, F., Halpern, A.L., Kark, P.R., et al. 1991. Physician involvement in capital punishment. New York State Journal of Medicine 91, 15–18. Rumbaugh v. Procunier, 753 F.2d 395 (5th Cir.), cert. denied, 473 U.S. 919 (1985). Sadoff, R.L. 1967. The forensic psychiatry clinic: model for a new approach. American Journal of Psychiatry 123, 1402–7. Salguero, R.W. 1986. Medical ethics and competency to be executed. Yale Law Journal 96, 167–86. Sargent, D.A. 1987: Resolved: it is unethical for psychiatrists to diagnose or treat condemned persons in order to determine their competency to be executed. Debate presented at the Annual Scientific Meeting of the American Psychiatric Association, May 13, Chicago, IL. Schoeller v. Dunbar, 423 F.2d 1183, 1194 (9th Cir.), cert. denied, 400 U.S. 834 (1970), Hufstedler, L., dissenting. Schreiber, L., Roesch, R., Golding, S. 1987. An evaluation of procedures for assessing competency to stand trial. Bulletin of the American Academy of Psychiatry and the Law 15, 187–203. Scott v. Johnson, 379 N.W.2d 180 (Minn. App. 1985). Shelton v. United States, 242 F.2d 101, 115 (5th Cir. 1957) Tuttle, L., dissenting. Sieling v. Eyman, 478 F.2d 211 (9th Cir. 1973). Singer v. United States, 380 U.S. 24, 36 (1965). Singleton v. State, 437 S.E.2d 53 (S.C. 1992). Slovenko, R. 1987. The lawyer and the forensic expert: boundaries of ethical practice. Behavioral Sciences and the Law 5, 119–47. Solesbee v. Balcom, 339 U.S. 9 (1950). South Dakota v. Warren, 462 N.W.2d 195 (S.D. Sup. Ct. 1990).

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212 Forensic evaluation and treatment in the criminal justice system United States v. Abbamonte, 348 F.2d 700 (2d Cir. 1965); cert. denied, 382 U.S. 982 (1966). United States v. Adams, 581 F.2d 193 (9th Cir); cert. denied, 439 U.S. 1006 (1978). United States v. Albright, 388 F.2d 719, 726-7 (4th Cir. 1968). United States v. Andrews, General Court-Martial No. 75-14 (N.F. Jud. Cir. Navy-Marine Corps Judiciary, Phila., Pa., Oct. 6, 1976). United States v. Awkward, 597 F.2d 667 (9th Cir.), cert. denied, 444 U.S. 885 (1979). United States v. Baird, 414 F.2d 700, 711 (2d Cir. 1969); cert. denied, 396 U.S. 1005 (1970). United States v. Bohle, 445 F.2d 54, 67 (7th Cir. 1971). United States v. Borum, 464 F.2d 896 (10th Cir. 1972). United States v. Cohen, 530 F.2d 43 (5th Cir. 1976), cert. denied, 429 U.S. 855 (1976). United States v. Miller, 411 F.2d 825 (1969). United States v. Ramsey, 367 F. Supp. 1307 (1973). United States v. Tweedy, 419 F.2d 192 (9th Cir. 1969). United States v. Wilson, 263 F. Supp. 528 (D.C. 1966). Utah Code Ann. Sec. 77-15-2 (1982). Von Moltke v. Gillies, 332 U.S. 708, 724 (1947). Wagner v. Indiana, 562 N.E.2d 421 (Ind. Ct. App. 1990). Wallace, D.W. 1987. Incompetency for execution: the Supreme Court challenges the ethical standards of the mental health professions. Journal of Legal Medicine 8, 265–81.

Walraven v. State, 336 S.E.2d 798 (Ga. 1985). Ward, B.A. 1986. Competency for execution: problems in law and psychiatry. Florida State University Law Review 14, 35–107. Washington v. Harper, 110 S. Ct. 1028 (1990). Webster, C., Jenson, F., Stermac, C., et al. 1985. Psycho-educational assessment programmes for forensic psychiatric patients. Canadian Psychologist 26, 50–3. Weinstock, R. 1987: Controversial ethical issues in forensic psychiatry. Panel presented at the 18th Annual Meeting of the American Academy of Psychiatry and the Law, October 16, Ottawa, Canada. Weiter v. Settle, 193 F. Supp. 318, 321-22 (W.D. Mo. 1961). West v. United States, 399 F.2d 467 (1968). Westen, P., Westin, D. 1978. A constitutional law of remedies for broken plea bargains. Columbia Law Review 66, 471–539. White, W.S. 1987. Defendants who elect execution. University of Pittsburgh Law Review 48, 853–77. Whitman, P.A. 1967. Judicial plea bargaining. Stanford Law Review 19, 1082–92. Wicker v. McCotter, 783 F.2d 487 (5th Cir.), cert. denied, 106 S. Ct. 3310 (1986). Wisc. Stat. Ann. Ch. 971.14 (1989). Wisc. Stat. Rev. Ch. 971.14 (1989). Youtsey v. United States, 97 F. 937 (6th Cir. 1899).

25 Criminal responsibility ROBERT D. MILLER

‘A person is not to be excused for criminally offending simply because he wanted to very, very badly.’ United States v. Lyons, 731 F.2d 243 (5th Cir. 1984)

In order for defendants to be found responsible for crimes, the state must prove, beyond a reasonable doubt, both that they committed an illegal act (actus reus) and that they possessed the necessary intent to commit that crime (mens rea). If both cannot be established beyond a reasonable doubt, then the verdict must be not guilty, and the defendant must be released. The effects of mental disorder may sometimes justify the conclusion that no mens rea was present. Even if both actus rea and mens rea can be proven, however, mentally disordered defendants may have their degree of criminal responsibility reduced because of their disorders. Most states provide for findings of not guilty by reason of insanity (NGRI, also called innocent by reason of insanity, not guilty by reason of mental disease or defect, or guilty but for insanity), which absolves a defendant of all criminal liability (but does not prevent subsequent commitment to a mental health facility). Even if the impairment caused by mental disorder does not satisfy the legal criteria for insanity, it may still reduce the severity of the criminal charge, or may play a part in dispositional decisions after conviction. This chapter discusses the various ways in which mental state at the time of the crime may impact on the ultimate disposition of the case against a defendant.

NOT GUILTY BY REASON OF INSANITY The exculpation from criminal liability of mentally disordered persons has been a part of Western jurisprudence for thousands of years. Common law recognized the insanity defense as far back as the Greeks. Aristotle (see Irwin 1985) argued that behavior caused by ignorance or compulsion was less blameworthy than that done voluntarily, and thus should result in reduction or

elimination of punishment. The Jewish law also excused behavior caused by mental impairment: ‘It is an ill thing to knock against the deaf mute, an imbecile or minor. He that wounds them is culpable, but if they wound others, they are not culpable … for with them only the act is of consequence, while the intention is of no consequence’ (Mishna 8A). Early English law permitted exculpation only for those with severe cognitive disorders. In 1265, Bracton, Archdeacon of Barnstable, held that, ‘An insane person is one who does not know what he is doing, is lacking in mind and reason and is not far removed from the brutes’ (see Bromberg 1979). Lord Matthew Hale (1847) in 1671 held that, ‘Such a person is laboring under melancholy distempers hath yet ordinarily as great understanding as ordinarily a child of fourteen years hath, is such a person as may be guilty of treason or felony.’ In the case of Rex v. Arnold (1724), Judge Tracy held that, ‘Not every kind of frantic humor … points him out to be a madman as is exempted from punishment; it must be a man totally deprived of his understanding and memory and doth not know what he is doing, no more than an infant, than a brute, or a wild beast.’ In the nineteenth century, English law began to expand the criteria for exculpation. In the case of Rex v. Hadfield (1800), the defense attorney Erskine argued that,‘By insanity, I mean that state when the mind is under the influence of delusions, where the reasoning proceeds upon something which has no truth … but vainly built upon some morbid image formed in a distempered imagination.’ The trial judge directed a verdict of insanity. The culmination of the cognitive test for insanity came in the 1843 case of Daniel M’Naghten. Medical testimony (from physicians who had only observed M’Naghten during the trial) was unanimous that M’Naghten was insane, the jury so found, and he was hospitalized. Queen Victoria was outraged and convened the Law Lords to answer a series of questions about the insanity defense. The Lords responded that the standard should be, ‘To establish a defense on the ground of insanity, it must be

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clearly proved that at the time of the committing of the act, the party accused was labouring under such defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong.’ The M’Naghten test was adopted by most jurisdictions in the United States, but it was criticized by clinicians, including Isaac Ray (1871), who argued that a psychotic person may appear rational and satisfy a strict cognitive test, and that delusions may affect a person’s ability to apply knowledge in a reasonable fashion. As a result of these criticisms, alternate tests were adopted in several jurisdictions. The New Hampshire Supreme Court held in 1871 that the M’Naghten test was legally unsound, and stated that if an expert testifies that the accused’s mental disease prevented him from telling right from wrong, the decision is a matter of fact for the jury (State v. Jones 1871). In Alabama, the court held that a defendant should be found insane if the crime was the product of a mental disease, and if, as a result of the mental disease, the defendant had either lost the power to distinguish between right and wrong, or had lost the capacity to avoid doing the act (Parsons v. State 1887). The most prominent incarnation of the product test came from the United States Court of Appeals for the District of Columbia Circuit in Durham v. United States (1954); the test was simply, ‘An accused is not criminally responsible if his unlawful act was the product of mental disease or defect.’ Judge Bazelon, who authored the Durham Rule, was soon disenchanted with the conclusory nature of the testimony that resulted from the increased influence of psychiatric experts, and in a series of decisions attempted to limit it, first by narrowing the definition of mental disease or defect to an abnormal condition of the mind that substantially affects mental or emotional processes and substantially impairs behavioral controls (McDonald v. United States 1962). When that appeared insufficient, the Court of Appeals then ruled that expert witnesses should confine themselves to testifying on the evidence relevant to the jury’s decision, but should not draw conclusions from that evidence or provide opinions on the ultimate question of legal sanity (Washington v. United States 1967). When that also proved ineffective, the court finally abandoned Durham altogether, although it retained the McDonald definition of mental disease (United States v. Brawner 1972). Several states responded to criticisms of the cognitiveonly M’Naghten test by adding a volitional component, the so-called ‘irresistible impulse test.’ Perhaps the most famous example of its use was by Clarence Darrow in the Leopold and Loeb case (Weinberg 1957). The main criticism of the test was that it did not go far enough; it did not cover situations in which defendants’ psychoses cause them to lose control over their behaviors over time, rather than suddenly and impulsively. For that reason, many states abandoned the test in favor of the broader

American Law Institute test. Several states continue to have a version of the test on their books, however. Georgia (O.C.G.A. Sec. 16-3-3) states ‘A person shall not be found guilty of a crime when, at the time of the act … the person, because of a mental disease, injury, or congenital deficiency, acted as he did because of a delusional compulsion as to such act which overmastered his will to resist committing the crime. There are three elements to this defense: 1) The defendant was laboring under a delusion. 2) The criminal act was connected with the delusion. 3) The delusion was as to a fact which, if true, would have justified the act.’ The statute has recently been approved in two appeals court cases (Appling v. State 1997; Dutton v. State 1997). The Kentucky statutes [Ky. Rev. Stat. 504.020(1)] have the standard American Law Institute test; but in 1994, a state appeals court (Mattingly v. Commonwealth 1994) restated the test as ‘unable to appreciate the wrongfulness of his conduct or to resist his impulse to commit the illegal deed,’ which could be interpreted as an irresistible impulse test. The Oklahoma statutes continue to contain a version of the irresistible impulse test, although there appears to be an internal conflict within the statute itself: ‘… under these provisions the test of responsibility for committing the crime is mental capacity to distinguish between right and wrong as applied to a particular act, and to understand its nature and consequences, and defendant is not criminally responsible, if by insanity he did not have the will and mental power to refrain from committing the act.’ [Ok. Rev. Stat. Title 22 Sec. 115 (West 1986)]. Notwithstanding the apparent conflict, Professor Robert Richardson of the University of Oklahoma Law School (personal communication, December 14, 2000) stated that there has been no irresistible impulse test in Oklahoma in practice for the past 40 years. While the D.C. Circuit Appeals Court was struggling with Durham, the American Law Institute (ALI) had promulgated another test for insanity, which contains both a cognitive and a volitional prong: ‘A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or mental defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law’ (American Law Institute 1955). When the Appeals Court abandoned Durham, it adopted the American Law Institute (ALI) test, as did the majority of states. With the growing shift to a ‘law-and-order’ social agenda in the 1980s, the insanity defense came under attack across the country. Bills to repeal the insanity defense altogether were introduced in a number of state legislatures, as well as in the U.S. Congress after Hinckley’s attempt to assassinate President Reagan. Abolition had previously been thought to be unconstitutional, although the Supreme Court had never directly addressed the issue. State court decisions in Washington (State v. Strasburg

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1910), Louisiana (State v. Lange 1929), and Mississippi (Sinclair v. State 1931) had held that the opportunity to present an insanity defense was constitutionally protected. Legislation was introduced in New York (New York Criminal Justice Reform Act of 1975) and Pennsylvania (MacKay and Kopelman 1988) to abolish the defense, but was withdrawn because of fears that it was unconstitutional. More recently, however, the defense has been abolished statutorily in Montana (Montana Code 1981), Idaho (Idaho Code 1982), Utah (Utah Code 1986), Nevada (Nev. Rev. Stat. Sec 33, 193.220 1995), and Kansas (Kansas Statutes Annotated Sec. 22-3219 1996). Montana retains the ALI criteria for sentencing. Abolition has been upheld by at least two state supreme courts (State v. Korell 1984; Idaho v. Searcy 1990); and the Supreme Court of Maryland, by judicial fiat, effectively abolished the insanity defense (Pouncy v. State 1983). The Supreme Court of Nevada, however, found the Nevada legislature’s abolition of the insanity defense unconsitutional (Finger v. State 2001). Other states have limited the insanity defense short of abolition. The burden of proof has been shifted from the prosecution to the defense in Indiana (Indiana Code 1981), Pennsylvania (18 Pennsylvania Const. 1983), Alaska (Alaska Stat. 1984), and Arizona (Arizona Rev. Stat. 1984–85), as well as in federal law (Comprehensive Crime Control Act of 1984). A number of critics have argued that the volitional prong, grafted onto M’Naghten by the ALI test, is too broad and less capable of scientific analysis, and critics have called for its elimination (Fingarette and Hasse 1979; American Psychiatric Association 1983; American Bar Association 1984), despite arguments that opinions on cognition are no more reliable than on volition (Rogers 1987). Several states (Interim Hearing 1983; Alaska Stat. 1984) and the federal government (Comprehensive Crime Control Act of 1984) have therefore removed the volitional prong of the test; essentially restoring the M’Naghten standard. Most of the lengthy works on the insanity defense have been critical. The classic treatise, by Goldstein and Katz (1963), argues that neither case law, statutes, nor scholarly articles have provided a compelling rationale for the necessity of an insanity defense providing exculpation for otherwise criminal behavior. They suggest that the political reason for the continuation of the defense is that it permits the state to incarcerate persons whose mental states would otherwise have led to a not guilty finding because of lack of mens rea. Halpern (1977) argues that the success of the defense depends more on political, social, and legal factors than on the mental state of the defendant. He suggests that there is no rationale for exculpation based on mental disorder when other behavioral determinants, such as heredity, poverty, family environment, and cultural deprivation, do not. He also argues that psychiatrists cannot measure the degree of mental disorder with sufficient

accuracy to be of assistance to the courts. Abolition would prevent the practice in some states of forcing the insanity defense on unwilling defendants, and would also stop the practice of lengthy commitment following a ‘successful’ defense. Perr (1985) argues that the practical problems of establishing effective procedures to make reasonable and socially acceptable determinations of responsibility outweigh the theoretical advantages of the insanity defense. Like Halpern, he points to the imprecision of diagnostic systems, and he also discusses the difficulty of demonstrating causal relationships between mental conditions and behavior. He is also concerned about the effect of participating in the process on the public image of psychiatry. He concludes that abolition of the defense would have negligible effects on the practice of criminal justice, but it might focus attention on the plight of mentally disordered prisoners. Morse (1978) had also previously supported abolition of the insanity defense, based on criticisms that psychiatrists lack the ability to diagnose or predict behavior with sufficient accuracy and on the difficulty of distinguishing between an ‘irresistible impulse’ and an impulse not resisted. More recently, however, he has reconsidered his position and concluded that the symbolic value of retaining the defense outweighs the problems in its administration (Morse 1985). Although the American Medical Association (1984) had initially supported an abolitionist position, negotiation with the American Psychiatric Association resulted in a compromise statement (Joint Statement of the AMA and the APA 1985).

Disposition and evaluation Until the civil rights movement in the 1960s and 1970s, most states provided for automatic and indeterminate commitment of persons found not guilty by reason of insanity. After the Supreme Court’s decision in Baxstrom v. Herold (1966), which held that prisoners transferred to a mental health facility could not be kept beyond their maximum criminal sentences unless they met the state’s criteria for civil commitment, several state courts and legislatures applied that reasoning to insanity acquittees. The Michigan Supreme Court, in People v. McQuillan (1974), held that persons found not guilty by reason of insanity could be committed only for a brief evaluation period, and their commitments could not be extended unless they met civil commitment criteria. The New Jersey Supreme Court held that committed insanity acquittees were entitled to a due process hearing within sixty days to justify continued involuntary hospitalization (State v. Krol 1975). The U.S. Supreme Court reversed that trend in Jones v. United States (1983), in which a 5–4 majority distinguished criminal and civil patients in order to justify automatic hospitalization of insanity acquittees and

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commitment beyond the applicable criminal sentence. Some states (e.g., Wisconsin) have returned to automatic commitment whereas others (e.g., Michigan) have not. Some states (e.g., Colorado) continue to permit indefinite commitment. More recently, a 5–4 majority of the Supreme Court reaffirmed its holding in Jones while overturning the lower federal courts by holding that an insanity acquittee must continue to be both mentally ill and dangerous to justify continued commitment (Foucha v. Louisiana 1992). While the dissent in Jones had argued that the majority had gone too far toward governmental power, the dissent in Foucha argued that it had not gone far enough; Justice Thomas would have abolished any practical distinctions between verdicts of guilty and not guilty by reason of insanity. One of the major criticisms of the insanity defense is that it permits defendants to ‘beat the rap’ by obtaining release earlier than they would if convicted. Public fear of the mentally disordered, reinforced by rare but dramatic ‘horror stories’ of acts committed by released insanity acquittees, is often accompanied by the belief that mental health professionals are too ‘soft’ on insanity acquittees and release them prematurely. The available research data do not bear out these perceptions. Slobogin (1985) reports that fewer than 1 per cent of felony prosecutions result in a successful insanity defense, and that 60 per cent of successful defenses are stipulated to without ever going to trial. Available data indicate that the great majority of evaluators concur on both diagnosis and legal opinions (Fukunaga et al. 1981); the apparent prevalence of ‘battles of experts’ is due to the artifact that those cases in which the experts agree are usually settled out of court and do not receive the publicity of contested cases. Finally, the data reveal that most insanity acquittees are not released sooner than prisoners convicted of the same offenses. Studies from Connecticut (Phillips and Pasewark 1980), the District of Columbia (Steadman 1985), and Colorado (Pogrebin, Regoli, and Perry 1986) demonstrated significantly longer stays for insanity acquittees. Studies from Arizona (Kahn and Raifman 1981) and New York (Pantle, Pasewark, and Steadman 1980) revealed comparable lengths of stay. Only one study from New York (Pasewark, Pantle, and Steadman 1982) demonstrated shorter stays for insanity acquittees, and then only when they were transferred from correctional to mental health facilities. One flaw in all these studies is that they compared insanity acquittees with prisoners convicted of the same crimes. Since 90 per cent of defendants plead guilty, often to lesser charges, while those pleading insanity rarely have the opportunity to bargain down their charges, prisoners matched for conviction do not form a good control group. Harris, Rice, and Cormier (1991) from Canada have compared insanity acquittees and prisoners matched for charge at arrest instead of conviction, and have also demonstrated longer stays for the acquittees.

Two reports present the effects of changes in the insanity defense. After a change from the ALI test to M’Naghten in California in 1982 (1981 California Stat. ch. 404, effective January 1, 1982), the number of insanity acquittees dropped from an average of 251 per year over the previous four years to 134 in 1983 (Interim Hearing 1983). One must be cautious, however, about assuming a causal relationship between statutory changes and changes in practice, since the same social forces that led to the statutory change may also have been responsible for the observed changes (Miller 1987). Steadman’s group studied the effects of abolition of the insanity defense in Montana for three years before and after the change went into effect in 1979 (Steadman et al. 1989). Under the revised statute, evidence of insanity is admissible to negate mens rea. The team discovered that while the number of insanity pleas remained stable, the success rate dropped from 32 per cent to 3 per cent. But they also discovered that before 1979, 64 per cent of defendants who were initially found to be incompetent to proceed were ultimately found not guilty by reason of insanity; after 1979, only 5 per cent were found to have been insane, but 75 per cent of them had their cases dismissed. The evaluation of criminal responsibility is one of the most complex facing the forensic psychiatrist. The criteria are varied and vague, and are only marginally related to clinical constructs such as diagnoses (Halleck et al. 1992). The evaluations are retrospective, sometimes dealing with events that occurred ten years or more in the past. Political pressure, particularly in notorious cases, may make it difficult to retain objectivity. Forensic psychiatrists should familiarize themselves with both the relevant statutes on insanity and the applicable commentaries and case law, which interpret, clarify, and define statutory definitions. Although most evaluators continue to rely on clinical experience, efforts are underway to operationalize insanity criteria and to validate instruments for insanity evaluations (Rogers 1986). Although it is unlikely that valid quantitative psychometric instruments will ever be developed because of the inherently subjective nature of the evaluations, standardization of interviews may prove as beneficial as it did in the history of evaluation of competency to stand trial. In rare cases, defendants may be found insane for some crimes and guilty for others, all during the same proceedings. Such defendants are almost always hospitalized initially, and remain hospitalized until their mental disorders are under sufficient control for them to be transferred to prison to serve out their sentences, assuming those sentences are longer than the hospitalization. Such dual commitments are quite problematic for clinicians at forensic hospitals, however. They are typically more restricted in their privileges than patients without concurrent prison sentences, and clinical staff often develop attachments to their patients that make it difficult for them to determine that they are ready to transfer to prison (Miller et al. 1999).

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Bifurcated trials and evaluation When defendants enter insanity defenses, most states provide that the issues of guilt and sanity are to be tried together. This practice raises significant problems for the defense. Most states permit defendants to enter pleas of both not guilty and not guilty by reason of insanity, thus providing two opportunities to avoid a guilty verdict. When the two defenses are joined, however, they may conflict with each other. For example, in Houston v. State (1979), Houston raised defenses of self-defense and insanity. He was examined by a psychiatrist, who concluded that Houston had been insane at the time of the criminal act, but he also concluded that Houston’s self-defense claim was not credible. The defense needed the psychiatrist’s testimony to establish the basis for an insanity defense, but if it called the psychiatrist during the case in chief, he would destroy the self-defense claim. In order to resolve this dilemma, some courts and legislatures have separated the guilt and sanity phases of the trial process. Only Wisconsin (Wisconsin Rev. Stat. 1983–84) requires a bifurcated trial when the insanity defense is interposed. Colorado formerly did so (Colorado Stat. 1990a), but bifurcation was recently abolished (Colorado Revised Statutes 16-8-104.5 1995). Other states have experimented with bifurcated trials. Texas (Townsend v. State 1968), Louisiana (Bruning 1975), Arizona (Shaw v. State 1971), and Florida (R. Swanson, pers. comm., 1991) implemented but subsequently abandoned them because of problems raised by the bifurcation process. Courts in other jurisdictions have ruled that trials should be bifurcated when to try the issues together would prejudice the defendant. In Contee v. United States (1969), the United States Court of Appeals for the District of Columbia Circuit held that, ‘[A] sound exercise of the trial court’s discretion will ordinarily result in bifurcation whenever a defendant shows that he has a substantial insanity defense and a substantial defense on the merits to any element of the charge, either of which would be prejudiced by simultaneous presentation with the other.’ In United States v. Taylor (1975), the court reaffirmed its position, pointing out that the merit defense of self-defense conflicts conceptually with an insanity defense (the situation in Houston). Bifurcation raises problems of its own, however. Those states that try guilt first generally bar psychiatric testimony during that phase, thus preventing the defense from presenting evidence of mental disability short of insanity. That issue has been litigated most thoroughly in Wisconsin. In 1976, the Seventh Circuit Court of Appeals ruled that barring psychiatric testimony on the issue of mens rea in a single trial violated the defendant’s Sixth and Fourteenth Amendment rights (Hughes v. Matthews 1978). However, in a subsequent decision (Steele v. State 1980), the Wisconsin Supreme Court reinstated its bar of psychiatric testimony in the guilt phase of a bifurcated trial.

Even if the defense may not plead diminished capacity, however, there are other situations in which psychiatric testimony would be relevant to the issue of mens rea but cannot be presented. In a forceful article written in opposition to the Steele decision, the example was used of a defendant who commits a criminal act while having a temporal lobe seizure (Note 1981a). Under Wisconsin law, evidence of the seizure could not be introduced during the guilt phase of the trial to support a defense based on unconsciousness, and the issue would have to be tried under an insanity theory. The potential consequences for a defendant of verdicts of not guilty and not guilty by reason of insanity differ significantly, and such cases have occurred (State v. Raaths 1983). Other courts have held that mandatory bifurcation violates defendants’ rights. In Shaw v. State (1970), the Arizona Supreme Court held that mandatory bifurcation violated the defendant’s right to have all relevant evidence of his state of mind introduced during the guilt phase of his trial. While evaluators need to be aware of the trial procedures in their jurisdictions, the presence or absence of bifurcation will generally make little difference in the evaluation of a defendant’s criminal responsibility. It may well affect whether expert opinions will be introduced as evidence bearing on sanity or on mens rea; and it also may well affect whether the evaluator will be ultimately called to testify. It therefore may also affect the information given by the evaluator to the defendant about the potential consequences of cooperating with the evaluation.

GUILTY BUT MENTALLY ILL As a result of growing public perception that the insanity defense exonerates ‘obviously guilty’ defendants (such as John Hinckley) (Woodmansel 1996), and that it permits them to be released prematurely, there has been considerable pressure in many jurisdictions to abolish or otherwise to restrict the use of the insanity defense (Callahan, Mayer, and Steadman 1987). One response has been the creation of a new legal category called variously guilty but mentally ill (GBMI), or guilty but not responsible.

The Michigan experience As the GBMI alternative was established in Michigan in 1975, at least six years before it was adopted by any other state, it is instructive to examine its history in that state, which has been well documented and studied (Smith and Hall 1982; Blunt and Stock 1985; Petrella et al. 1985). Prior to 1960, a large number of criminal defendants found incompetent to stand trial had accumulated in the forensic mental health system, many of them committed for longer periods of time than they

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would have received if convicted. The combination of increased interest in the civil rights of criminal defendants and the Supreme Court’s creation of criteria for competency in Dusky v. United States (1960) resulted in the establishment of a state commission to study the problem. The commission’s recommendations were enacted into a law (Act No. 266, 1966) that changed the criteria for incompetency to stand trial to conform with Dusky, changed release procedures for insanity acquittees, and established a state Center for Forensic Psychiatry to evaluate and treat defendants found incompetent to stand trial or insane. As a result of these changes, large numbers of previously incompetent defendants were brought to trial, and the number of successful insanity defenses rose dramatically, from 12 in 1967 to 203 in 1973 (Blunt and Stock 1985), although retrospective studies showed that only 70 such acquittees out of 350 actually satisfied the criteria of being mentally ill and insane (Robey and Pogany 1974). In Bell v. Wayne County Gen. Hospital (1974), a federal district court imposed imminent dangerousness as a criterion for civil commitment in Michigan; and in People v. McQuillan (1974), the Michigan Supreme Court required that the state prove that insanity acquittees meet those criteria before they could be committed. These evaluations resulted in the release of 214 out of 270 insanity acquittees (Blunt and Stock 1985). When several acquittees released as a result of these changes committed heinous crimes, public outcry caused the legislature to create the GBMI verdict. The statute stated, ‘If the defendant asserts a defense of insanity … (he) may be found “guilty but mentally ill”, if, after trial, the trier of fact finds all of the following beyond a reasonable doubt: (a) the defendant is guilty of an offense; (b) the defendant was mentally ill at the time of that offense; and (c) that the defendant was not legally insane at the time of the commission of that offense’ (70 Michigan Compiled Laws 1975a). After a finding of GBMI, the statute provides that ‘… the defendant … shall undergo further evaluation and be given such treatment as is psychiatrically indicated for his mental illness or retardation’ (70 Michigan Compiled Laws 1975b). Defendants found GBMI may be placed on five years’ probation, regardless of the maximum sentence for the crime charged. As of 1985, there had been at least eightyseven state appellate decisions involving the GBMI verdict (Blunt and Stock 1985). The state court of appeals (People v. Sorna 1979) has rejected arguments that the GBMI verdict denies a defendant’s due process and equal protection rights to an insanity defense because juries may choose the GBMI verdict as a compromise between guilty and insane, although there are some research data to substantiate the claim (Simon 1967). The state Supreme Court has rejected the argument that a finding of GBMI may lead to a denial of the inmate’s right to treatment (People v. McLeod 1980).

Smith and Hall (1982) reported that between 1975 and 1982, the Center for Forensic Psychiatry evaluated 0.5 per cent of all criminal defendants in Michigan; 6.7 per cent of those evaluated were judged by the center to be insane (26/100 000 male arrests) and 3.9 per cent to be guilty but mentally ill (16/100 000). Trial courts concurred with 95 per cent of the center’s findings that defendants were neither insane nor GBMI, and with 84 per cent of recommendations for insanity; of those in which the court rejected the center’s findings, 12 per cent were found guilty but mentally ill, and 4 per cent were found guilty. Smith and Hall (1982) attribute the high concurrence rate to the fact that the center is an arm of the state; Blunt and Stock (1985) (who are faculty at the center) believe that it is because of the high quality of the evaluations produced. Smith and Hall (1982) reported that there had been no change in the number of defendants found insane after the creation of the GBMI alternative, and they found that GBMI defendants resembled those found guilty more than those found insane. There are even data demonstrating that GBMI inmates are incarcerated longer than inmates found guilty of the same charges. Petrella and colleagues (1985) criticize Smith and Hall’s conclusions that the GBMI verdict has been a failure. They point out that at the same time that the GBMI verdict was created, the legislature also changed the insanity criteria from M’Naghten to ALI since the broader criteria for insanity, coupled with the stricter criteria for commitment and the creation of the Center for Forensic Psychiatry, might be expected to have increased the number of successful insanity defenses, the fact that no increase was noted might be at least partially attributable to the GBMI alternative.

The South Carolina experience Morgan and colleagues (1988) have reported on the South Carolina experience with the GBMI verdict. The South Carolina law states that: ‘A defendant is guilty but mentally ill if at the time of the commission of the act constituting the offense he had the capacity to distinguish right from wrong and to recognize his act as being wrong … but because of mental disease of defect he lacks sufficient capacity to confirm his conduct to the requirements of the law’ (S.C. Code Ann. Sec. 17-24-20 (1984). South Carolina has the M’Naghten test, so volition is irrelevant to insanity. The law has been found constitutional (State v. Hornsby 1997). Passage of South Carolina’s GBMI bill was influenced by litigation against the Departments of Corrections and Mental Health and the Hinckley verdict, but not by the numbers of insanity acquittals – there had been only one or two successful insanity defenses per year, out of 24 000 criminal prosecutions. Morgan and colleagues (1988) interviewed GBMI inmates; additional information was

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obtained concerning past criminal records, previous psychiatric evaluations and treatment, the inmate’s understanding of the plea, and the inmate’s recollection of his or her mental state at the time of the crime. Between April 1984 and August 1985, forty-two men and five women were found GBMI; twenty-six men and four women were interviewed for the study, chosen because they were still incarcerated in the Columbia, South Carolina, area. Diagnoses included substance abuse (15), schizophrenia (11), paraphilia (4), mood disorder (3), organic brain syndrome secondary to alcoholism (1), dependent personality disorder (1), and posttraumatic stress disorder, which was felt to have appeared after the crime (1). Crimes for which the subjects had been convicted included murder (1), battery (6), manslaughter (5), armed robbery (2), burglary (2), arson (2), housebreaking (1), sexual assault of a minor (9), contributing to the delinquency of a minor (1), and shoplifting (1). Sentences varied considerably (manslaughter from five to forty years; sexual assault from four to twenty-five years). No defendant had a jury trial; many charges were reduced through plea bargaining. The subjects demonstrated considerable lack of understanding of the plea: two were thought too disordered to respond; twelve did not understand the plea but entered it upon the advice of counsel; seven thought that the plea would reduce their sentences; four thought that they would receive treatment in prison; two thought the plea meant that they were guilty but unaware or mentally disordered; one thought he would go to a hospital instead of prison; one was angry and said, ‘You get the same sentence with mental illness tacked on’; and one said it meant ‘a lunatic in search of understanding.’ As in Michigan, there was no change in the incidence of insanity verdicts following the introduction of the GBMI verdict. No treatment for those found GBMI is required by the South Carolina law, and many (e.g., sex offenders) are placed in the general population soon after their evaluations. Given the lack of understanding of the plea by the study subjects, it is likely that it was used to expedite disposition of their cases by promising treatment. The authors argue that treatment should be provided for those found GBMI. They are highly critical of the South Carolina correctional system’s treatment of mentally ill offenders, and argue that if the correctional system has resources only for severely mentally ill inmates, perhaps the statute should require severe mental illness. LeBlanc-Allman (1998) is also very critical of the South Carolina GBMI law. The author concedes that the law would pass muster under a rational basis analysis; but under a strict scrutiny analysis, the law violates a defendant’s right to a fair trial, because state law prohibits a jury instruction that compares the dispositions of guilty and GBMI verdicts. Kentucky has such a statute [Ky. Rev. Stat. Ann. R 9.55 (1998)]. The author further argues that, even assuming that reducing inappropriate

insanity acquittals is a compelling state interest, GBMI is not narrowly tailored to satisfy that purpose.

The Illinois experience As in Michigan, public outrage over crimes committed by released NGRIs, and frustration over perceived inability to abolish the insanity defense, led to the GBMI law. The framers of the statute had three goals: (i) to protect society; (ii) to hold some mentally ill offenders accountable; and (iii) to make treatment available to mentally ill offenders. The final bill did not require provision of treatment (Illinois Ann. Stat. 1981), and the state appellate court upheld those provisions, holding that a GBMI inmate’s right to treatment was no different than any other inmate’s right (People v. Marshall 1983). Klofas and Weisheit (1986) reviewed court records, surveyed prosecutors, and interviewed public defenders from counties in which prosecutors reported significant numbers of GBMI pleas. State court records provided summary data only, but Cook County records indicated the methods by which a verdict was reached. In Cook County, jury trials were used in only 2 per cent of GBMI cases and 3 per cent of other felony cases, but GBMIs were more likely to have bench trials than other defendants (36 per cent versus 16 per cent). GBMI crimes were mostly either violent or sex crimes. Sex crimes were more likely to be pleaded and also to result in probation (21/44). Some defense attorneys felt that the law was beneficial to their clients, although most of them – and almost all prosecutors – felt that it was to the prosecution’s advantage, since it provided an additional guilty option. Despite selection based on occurrence of GBMI verdicts in their counties, a number of both prosecutors and public defenders were unaware of how the GBMI system operated, with many thinking that treatment was mandatory, or that the defendants would never spend time in prison. Both district attorneys (DAs) and public defenders (PDs) agreed that the availability of GBMI facilitated plea bargaining. Many also said that by letting defendants deny or mitigate personal responsibility, it did not cut them off from family or friends as much as a guilty verdict would have. Cook County PDs said that their clients would rather be seen as criminal than as mentally ill, particularly if they did not have previous hospitalizations. In practice, judges often made decisions based on what attorneys said about psychiatric history, without any expert testimony. The respondents indicated that the GBMI plea provided neither reduction in sentence nor treatment, and defendants receive the additional stigma of mental illness. The authors were critical of PDs who were ignorant of the actual consequences of a GBMI plea, or who adopted a paternalistic posture toward their clients.

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Recently, a state appeals court struck down Illinois’ GBMI law, holding that a compromise verdict that is based on juror misperceptions violates due process (People v. Robles 1997).

The Pennsylvania experience Under the 1983 statutory revision in Pennsylvania (Pennsylvania Cons. Stat. 1983), once an accused pleads insanity, he or she may be found guilty but mentally ill provided it is proved beyond a reasonable doubt that he/she is ‘guilty of an offense, was mentally ill at the time of the commission of the offense and was not legally insane at the time of the commission of the offense.’ The plea can be accepted only after the trial judge has made a finding at a hearing that the defendant was mentally ill at the time. Once a GBMI finding is made, the defendant may receive the same sentence as if simply found guilty, but before imposing sentence, the court shall hear testimony and make a finding on the issue of whether the defendant ‘… is severely mentally disabled and in need of treatment.’ If he is, treatment may be provided in prison or through transfer to a hospital. If treatment is completed prior to release, release is accomplished just as with any other inmate. The definition of mental illness is that of the ALI insanity criteria. Discussions about a GBMI verdict began as early as 1979; it was initially proposed to replace the insanity defense, but that was dropped for fear of unconstitutionality. At the same time that the GBMI law was passed, the common law insanity test was codified, and the burden of proof was shifted to the defense. MacKay and Kopelman (1988) conclude that the statute was passed to: (i) reduce successful insanity pleas; (ii) provide a middle ground between guilty and NGRI, which would provide treatment for mentally ill offenders; and (iii) provide increased community protection. The authors studied effects of the statute from March 1982 through March 1987. During the study period there were eighty-nine NGRIs and ninety-one GBMIs studied. Blacks were over-represented in the NGRI population (41 per cent versus 21 per cent). GBMIs were more likely to have been convicted of murder and sex crimes, while NGRIs were more likely to have assaulted. The average number of NGRIs dropped 38 per cent after GBMI was introduced, but the larger number in the year before the change may have skewed the data. In addition, the shift in the burden of proof in insanity cases to the defense may have reduced such pleas. Unlike Michigan and Illinois, virtually all the sixty-six hospitalized GBMIs had major mental disorders, and 66 per cent of GBMIs had immediate treatment provided. Sentences for GBMIs and those found guilty of comparable crimes appeared to be similar, although some GBMIs were given longer sentences. The GBMI statute was challenged because of the perceived conflict between the M’Naghten criteria for insanity

and the ALI criteria for GBMI, but the state appeals court held that the law did not violate due process rights (Commonwealth v. Trill 1988). The authors conclude that, at least in Philadelphia, the GBMI verdict does appear to have significant impact in reducing the number of insanity pleas, in selecting a severely mentally ill population, and in providing treatment.

Experience in other states Ten other states in addition to Michigan, South Carolina, Illinois, and Pennsylvania created GBMI verdicts between 1982 and 1985. Connecticut replaced the verdict of NGRI with guilty but not criminally responsible in 1982 (Connecticut Public Act 1982). Under the previous insanity defense, an acquittee had to be civilly committed to the state mental health department or released. The new statute provided for commitment of defendants found guilty but not criminally responsible to the state corrections department, under less strict criteria. The statute was repealed the following year, chiefly because of internal conflict in the definitions; the chief state attorney recommended abolition of the verdict in testimony before the legislature because it ‘is a contradiction in terms. The jury on the one hand has the luxury of saying, “You’re guilty, when in fact the word guilty implied the concept of blame, but then they say you have no criminal responsibility … . A society which punishes imbeciles or people who don’t know what they are doing is not enhancing responsibility for behavior, it is diminishing the proper role of punishment’ (Hearing 1983). Nevada replaced its insanity defense with GBMI (Nev. Rev. Stat. Sec 33, 193.220 1995). GBMI statutes currently exist in Alaska (where defendants found guilty but mentally ill are specifically barred from probation or parole) (Alaska Stat. 1983), Delaware (Delaware Code 1982), Georgia (Georgia Code 1983), Indiana (Indiana Code 1982), Kentucky (Kentucky Rev. Stat. 1982), Utah (Utah Code 1983), New Mexico (New Mexico Stat. 1983), and South Dakota (South Dakota Codified Laws 1983). The New Mexico law has been found constitutional (State v. Neely 1991), as has the South Dakota law (Robinson v. Solem 1988). Colorado’s impaired mental condition (IMC) law (Colorado Rev. Stat. 1990) defense was created by the prosecutors to close a loophole which resulted in a mentally disordered defendant being found not guilty because of lack of mens rea and released. In practice, however, its effect was to give the defense ‘two bites at the apple,’ with two different juries. While there are not published reports of a defendant found sane in the first stage being found IMC in the second, bifurcation provided defense attorneys with the threat of two extended trials to use to persuade the prosecution to plea bargain. The prosecutors finally convinced the legislature to coalesce the IMC defense into the definition of insanity and eliminating bifurcation [C.R.S. 16-8-104.5

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(1995)], thus keeping the loophole shut and removing the second bite at the apple. Although similar conceptually to GBMI, IMC results in hospitalization rather than incarceration, and is discussed in the section below on extreme emotional distress. Data from Georgia indicate that (except for an abnormally high number of insanity acquittals in the year before GBMI legislation was passed) there was no significant change in insanity acquittals after NGRI legislation was passed (Dvoskin 1988). Insanity acquittals in Alaska dropped from six per year to one, but at the same time GBMI legislation was passed, the test for insanity was changed to the most restrictive in the country (M’Naghten with only the ‘nature and quality’ part; Keilitz et al. 1984). Despite all the controversy over the verdict, the available data (McGraw, Farthing-Capowich, and Keilitz 1985) indicate that there are even fewer GBMIs in Georgia than NGRIs currently incarcerated. In the eleven states other than Michigan, there were (in 1988) only 75 GBMIs, compared with 449 NGRIs in the same states; three states had no GBMIs at all. Michigan had 253 GBMIs, compared to only 13 NGRIs.

Discussion and evaluation In their 700-page report on the GBMI experience, Keilitz et al. (1984) concluded: ‘Although touted by its proponents as an attractive alternative to the NGRI verdict for juries to consider, most GBMI findings (like NGRI findings) resulted from pleas and bench trials. Contrary to the views held by much of the public, by jurors, and by many members of the mental health and criminal justice systems, GBMI offenders are not guaranteed treatment under law, nor are they more likely to receive treatment than other mentally ill offenders in the general inmate population to whom the GBMI label has not been applied. Indeed, they are given stiffer sentences than their guilty counterparts without any better access to mental health treatment. GBMI offenders appear to be imprisoned for longer periods than insanity acquittees are involuntarily hospitalized. Despite the hopes of its proponents and the fears of its critics, the GBMI option has not spelled the demise of the insanity defense.’ Indeed, it appears not to have appreciably disturbed the frequency of NGRI findings. Slobogin (1985) also provides a detailed analysis of the GBMI verdict, and concludes that it is unnecessary as a remedy to problems with the insanity defense and may actually exacerbate the problem. Most of the data in the literature, with the possible exception of the Philadelphia area, tend to concur with this analysis. Indeed, there are several cases in which defendants pleading GBMI have been given the death sentence (Harris v. State 1986; People v. Crews 1988; State v. Wilson 1992). Ellis (1993) argues that since (in South Carolina) a GBMI verdict indicates inability to control

actions, volitional impairment reduces culpability sufficiently to bar the death penalty, despite the South Carolina Supreme Court’s decision in Wilson. It is not easy to draw firm conclusions as to why GBMI does not seem to have the anticipated effects of reducing insanity acquittals and providing treatment to mentally ill offenders. Several states made substantive changes in their insanity statutes at the same time they created GBMI laws. It is also clear that a significant number of those who must implement these laws are insufficiently knowledgeable about the provisions and effects of GBMI findings. The American Psychiatric Association (1982), the American Bar Association (1983), and the National Mental Health Association (1983) have all been quite critical of the GBMI verdict. No new GBMI statute has been enacted since 1985 except that of Nevada. It appears that in many states that do not require defendants to enter insanity pleas in order to be eligible for a GBMI verdict, the evaluation process is quite informal (indeed at times virtually non-existent), and many GBMI verdicts are rendered without any expert testimony at all. Forensic clinicians in states that have GBMI laws should be aware of those provisions and how they differ from the tests for insanity. Unless specifically instructed to the contrary, they should be prepared to offer opinions on both issues and to thus inform the defendants they evaluate.

DIMINISHED CAPACITY The insanity defense results in complete exculpation on the criminal charge. There are a number of other affirmative defenses based on the defendant’s mental state at the time of the crime that (if successful) still result in a criminal conviction, but with mitigation of the sentence. Historically, the first of these is the diminished capacity defense. The diminished capacity approach is based on the difference between general and specific intent crimes. General intent is required for all except strict liability crimes, most of which are minor, such as parking and health code violations (although some states have strict liability provisions for crimes such as drug dealing and statutory rape). Under a strict liability analysis, the performance of the proscribed act is sufficient to establish liability. General intent is broadly defined by the criminal law to mean the intent to commit a particular act (such as assault). In a crime such as assault with intent to rape, the specific intention to commit rape must be proven in addition to the general intent to assault. A successful diminished capacity defense can reduce a specific intent crime to a general intent crime if the latter is a lesser included offense within the former (e.g., reduction of first-degree homicide to manslaughter). If there are no such lesser offenses, however, a diminished

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capacity defense may result in outright acquittal; such cases are rare in practice.

Legal history The first judicial statement of the diminished capacity defense occurred in Scotland (HM Adv. v. Dingwall 1867). In that case, the defendant’s alcoholism and peculiarities of mental constitution were held to be extenuating circumstances justifying reduction of the charge from murder to culpable homicide. The doctrine did not develop further in Great Britain until after World War II. Early U.S. decisions rejected the concept; the federal district court for the District of Columbia rejected jury instructions on diminished capacity, holding that such innovations were for legislatures to make after intensive studies and data collection that trial courts are ill-equipped to do (Stewart v. United States 1954). In rejecting diminished capacity, the Pennsylvania Supreme Court specifically emphasized the increased danger to ‘law-abiding citizens’ that would follow its use (Commonwealth v. Rightnor 1969). The defense was first introduced in the United States by the California Supreme Court; it held that a trial court should have admitted psychiatric evidence tending to show that the defendant might have thought that he was acting in self-defense when he attacked a prison guard, and thus could not have had the specific intent required for the charge of aggravated assault (People v. Wells 1949). In 1959, the same court permitted expert testimony about a defendant’s capacity to form intent. It interpreted the mens rea requirements of premeditation and deliberation for first-degree murder to require considered reflection (People v. Gorshen 1959). From these cases came the so-called ‘Wells–Gorshen Rule,’ which held that even though a defendant is legally sane, if he or she was suffering from a mental illness that prevented his/her acting with malice aforethought or with premeditation and deliberation, he/she cannot be convicted of murder in the first degree. In 1964, the court formally recognized a diminished responsibility defense. The defendant had been found guilty of a series of carefully planned rapes and murders; despite unanimous psychiatric testimony that he lacked criminal responsibility, he was also found sane. On appeal, the court concluded (based on the psychiatric testimony) that the defendant’s mental abnormality prevented him from realizing the ‘enormity of the evil,’ and found that he was therefore not guilty of first-degree murder People v. Wolff 1964). The English Homicide Act of 1957 held that: Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts

and omissions in doing or being a party to the killing … . A person who but for this section would be liable … to be convicted of murder shall be liable instead to be convicted of manslaughter. Similarly, the American Bar Association’s Model Penal Code (1962) defined manslaughter as ‘homicide which would otherwise be murder [but] is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.’ The Supreme Court has never issued a definitive opinion on the validity or criteria for the defense, and there has been a notable lack of consensus across different jurisdictions on many aspects of the defense. Since the Supreme Court held in In re Winship (1970) that the state must prove each element of the crime charged beyond a reasonable doubt, defense attorneys have argued that when evidence of psychiatric disorder is introduced in specific intent cases, the prosecution has the burden of disproving diminished capacity. The Supreme Court rejected arguments that the defendant has the burden of proving that a mental disorder negates mens rea in Davis v. United States (1895), and reaffirmed that holding in Mullaney v. Wilbur (1975). In Martin v. Ohio (1987), the Supreme Court held that a state may make self-defense an affirmative defense, and place the burden of proof on the defendant; but it emphasized that where there is evidence relevant both to an affirmative defense and to an element of the offense charged (such as mens rea), the jury must be instructed that the defendant’s evidence on the affirmative defense must be considered when determining whether the state has proved all the elements of the offense charged. The New Jersey Supreme Court held that while the burden of establishing the presence of mental disorder could be placed on the defendant, the state was then required to prove that mens rea was present despite the disorder (State v. Breakiron 1987; State v. Zola 1988). Before the acceptance of the diminished capacity defense, psychiatric testimony on the issue of mens rea was frequently barred. In rejecting such testimony, the Nevada Supreme Court relied on the objection that the use of such evidence could result in outright acquittals, decreasing protection for the public (Fox v. State 1957). Subsequently, however, state Supreme Courts in Massachusetts (Commonwealth v. Gould 1980) and New Jersey (State v. Breakiron 1987), federal district courts in California (United States v. Frisbee 1985) and the District of Columbia (United States v. Gold 1987), and the U.S. Supreme Court (Mullaney v. Wilbur 1975) all held that psychiatric testimony should be admitted, although the California Supreme Court emphasized that expert witnesses would be restricted to diagnoses and descriptions of the effects of mental disorders, barring opinions on whether defendants possessed the specific intent in

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question. The Federal Rules of Evidence held that, ‘No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are for the trier of fact alone’ [Fed. R. Evid. 704(b)]. A major exception to the trend in favor of admission of psychiatric testimony on the issue of mens rea exists in some states with bifurcated trials when the insanity defense is raised. The Wisconsin Supreme Court upheld state statutes barring psychiatric testimony in the first (guilt) phase of a bifurcated trial, arguing that to permit evidence of mental disorder to be presented would undermine the bifurcation (Steele v. State 1980). That position was subsequently upheld by the Seventh Circuit, which held that such testimony was competent and relevant on the ‘gross’ issue on insanity, but not on the ‘finetuned’ issue of mens rea (Muensch v. Israel 1983). The Supreme Court let that decision stand by denying certification, although it had previously denied certification in an Arizona decision that arrived at the opposite conclusion, holding in dictum that a bar on psychological testimony in bifurcated trials violated due process (State v. Shaw 1970). Courts in thirty-one states have accepted diminished capacity (Drew 1998). However, in the early 1980s, opposition to the concept of diminished capacity increased, due to the shift from an individual rights to a law-andorder emphasis in social policy, and fueled by unpopular decisions, such as the Dan White case in California (People v. White 1981). The California legislature in effect repealed diminished capacity in 1982 by abolishing the distinction between general and special intent, but permitted evidence of mental abnormality to be introduced to negate all mens rea. It held that, ‘As a matter of public policy, there shall be no defense of diminished capacity, diminished responsibility, or irresistible impulse in a criminal action’ (1988 California Stat., Sec. 25(a),(b)). In the brief period that this legislation was in effect, Morse (1984) could find no cases in which a defendant successfully used it to negate mens rea. The legislature reversed itself partially by restoring the general-special intent distinction, but permitting evidence of mental abnormality to be introduced only to negate specific intent (1982 California Stat.). State courts in Arizona (State v. Laffoon 1980) denoted ‘imperfect self-defense.’ In In re Christian S. (1994) the California Supreme Court held that ‘Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually but unreasonably believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter’ [at 575]. The defendant, a minor, was charged with killing Robert Elliott, a skinhead gang

member; he had been physically and verbally harassed and threatened by Elliott and his friends for over a year. On the day of the crime, Elliott had threatened and taunted the defendant on several occasions while chasing him down the beach. After Elliott challenged the defendant to shoot him, the defendant did. The court held that ‘Unlike diminished capacity, imperfect self-defense is not rooted in any notion of mental capacity or awareness of the need to act lawfully’ [at 581-2]. The defense is narrower than diminished capacity, in that the defendant must have had an actual belief in the need for self-defense, and that belief must relate to the fear of imminent, not future harm. Ohio (State v. Wilcox 1981), and Louisiana (State v. Roussel 1982) also rejected the use of a mental state defense except for insanity. Reacting to similar public pressure, the U.S. Congress passed the Insanity Defense Reform Act in 1984, which stated that, ‘It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense’ (Comprehensive Crime Control Act of 1984). The Legislative Record preserved the Senate Committee’s rationale for this legislation: The Committee also included language in Section 20 explicitly providing that mental disease or defect other than that which renders the defendant unable to appreciate the nature and quality or wrongfulness of his acts does not constitute a defense. This is intended to insure that the insanity defense is not improperly resurrected in the guise of showing some other affirmative defense, such as that the defendant has a ‘diminished responsibility’ or some similarly asserted state of mind which would serve to excuse the offense and open the door, once again, to needlessly confusing psychiatric testimony (S. Rep. 1984). After this statute was enacted, a number of courts interpreted it. In United States v. Pohlot (1987), Pohlot was convicted of murder, despite uncontroverted psychiatric testimony that he had been insane. The trial judge refused, based on his interpretation of the Insanity Defense Reform Act, to instruct the jury that it could consider the evidence of Pohlot’s mental condition in determining whether or not he had the required specific intent for the crimes charged. On appeal, the government argued that defense counsel was permitted to address mens rea in his closing, and that the general instructions given did not prevent the jury from taking that evidence into consideration. The Third Circuit agreed that the most probable effect of the judge’s instructions was to exclude the psychiatric evidence from the jury’s consideration of mens rea. It rejected the government’s claim that the intent of the reform was to place the burden on the defendant, not the

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prosecution; it held that a legally sane person might lack mens rea. The court concluded that the evidence in question did not relate directly to specific intent, but to Pohlot’s understanding of his actions and their consequences. It therefore affirmed the lower court’s refusal to include the requested jury instruction. In United States v. Perry (1999), Ms. Perry pled guilty to embezzlement; at sentencing, she presented testimony from a psychologist who testified that she was clinically depressed and her actions indicated a need for acceptance, a capacity for denial, and had an addictive quality. He opined that the denial and addictive elements caused ‘some diminished capacity,’ which would justify a downward sentencing departure under Federal Sentencing Guideline Sec. 5K2.13. Her gynecologist also testified that she was depressed, and he had treated her with antidepressant medication. The government presented no expert testimony in rebuttal. The trial court accepted the testimony, and granted Ms. Berry’s request for a lower sentence due to diminished capacity. The government appealed and the Fourth Circuit affirmed (without published opinion). In an unpublished opinion, the court held that the district court had not abused its discretion. The court cited the Guidelines statement that diminished capacity is one ground for downward departure ‘not adequately taken into consideration by the Sentencing Commission.’ The Supreme Court has not been so accommodating (Montana v. Egelhoff 1996). Although most states permit voluntary intoxication to diminish a defendant’s capacity, Montana does not. James Egelhoff was charged with two murders; he was so intoxicated when found by police that he claimed that he could not physically have committed the murders. Montana law allowed evidence of intoxication to be presented, but prevented the jury from considering whether voluntary intoxication could have negated the mens rea required for conviction of deliberate homicide. Egelhoff was convicted, and appealed. The Montana Supreme Court reversed, holding that the Due Process Clause guarantees a defendant the right to present all relevant evidence to negate an element of the crime. The U.S. Supreme Court reversed, holding that the proposition that the Due Process Clause guarantees the right to introduce all relevant evidence is simply indefensible. The 5–4 majority listed a number of situations in which relevant evidence may be excluded, including prejudicial, confusing, time-wasting, cumulative, and unreliable evidence. It held that Egelhoff did not meet his ‘heavy burden’ that the Montana law violated due process. It held that dealing with crime is much more the business of the states than the Federal Government. The law in question did not ‘offend some principle of justice so rooted in the traditions of and conscience of our people as to be ranked as fundamental.’ It traced history and found no support in the common law for using voluntary intoxication as a defense. The majority conceded that many courts had created an exception for specific intent crimes.

Citing that 20 per cent of states have not accepted this principle, the majority held that is not so deeply rooted as to be a fundamental right. Justice O’Connor’s dissent argued that the state’s interest in convicting a certain class of offenders is not sufficient to satisfy Due Process. She held that the exceptions mentioned by the majority did not exclude a whole category of evidence.

Discussion and evaluation Dix (1971) argues that diminished capacity represents an attempt to integrate the continuous variability of mental disorder and the discontinuous categories of criminal law. He analyzes the concept using two models: 1 Subjective – emphasizing the character of individual defendants. Under this model, liability can be established only if: (a) the person violated a social prohibition; (b) the offender was aware of the prohibition; (c) the offender acknowledged at the time that the rule ‘should’ have been obeyed; and (d) the offender’s decision to violate the rule was not significantly affected by factors other than his/her philosophical decision to do so. By focusing on the capacity of the defendant, this model emphasizes the deterrent function of the law. 2 Objective – emphasizing the threat that the offender poses to society. Under this model, liability is properly imposed if the person has demonstrated that he or she poses such a threat. The model emphasizes the retributive function of the law, but it may also support the preventive function by educating the public about the rules. Dix discusses four theories under which psychological abnormality might be used in assessing criminal liability: 1 To produce a general mitigating factor (‘diminished responsibility’). The English Homicide Act of 1954 (Dix 1971) takes this approach, although it deals with both the charge and the punishment. Dix concludes that, with the possible exception of homicide, American law does not easily lend itself to such gradations. Also, diminished capacity might fit with the principle that severity of crime correlates with moral responsibility, but not with the principle that punishment correlates with the defendant’s threat to society. 2 To affect mens rea. Problems exist because most offenses (again except homicide) are not graded based on mens rea considerations. Also, mens rea is generally defined in purely cognitive terms that are not compatible with psychological analysis. In particular, psychodynamic experts are likely to confound the influence of unconscious factors with loss of mens rea. 3 There is the potential to use psychological testimony to argue that, even though mens rea existed, the criminal behavior was caused by unconscious factors rather than by the conscious mens rea (State v. Sikora 1965).

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However, the law traditionally has used an all-or-none analysis for the causal relationship between mens rea and actus reus; so again psychological evidence leading to gradations of the balance between conscious and unconscious factors does not fit well within the present legal framework. 4 It might be possible to modify the mens rea concept to make it more compatible with psychological evidence. Chambliss (1967) differentiates between instrumental and expressive criminal acts, and argues that deterrence is more effective for those who have little commitment to crime and whose behavior is expressive rather than instrumental. This distinction does not exist formally in current law, although increased penalties for repeat offenders do address it; and Dix argues that it would be difficult to prove and difficult to integrate into existing law. Dix also argues that attempts should be made to reconcile psychological information and the law governing mental states, both on the basis of fairness and because psychological evidence bears on an offender’s ‘personal turpitude,’ an essential component of society’s desire to impose punishment. Recognition of psychological factors reduces the amount of incarceration that a mentally disordered offender experiences before obtaining treatment. Imposing punishment on those whose mental condition reduces its deterrent effect is inappropriate. Diminished capacity would provide juries with an additional option in cases where mental disorder does not rise to the level of insanity. Morse (1984) divides diminished capacity into a mens rea variant (leading to a finding of not guilty for those crimes without lesser included offenses) and a partial responsibility variant (reducing the level of the charge). He admits, however, that the mens rea variant may exculpate for one crime but not for a lesser included charge, thus making it essentially comparable to partial responsibility. The mens rea variant becomes confusing because of the difficulty of defining the legal distinction between general and specific intent, which Morse says cannot be adequately done. He points out that courts introduced the distinction in order to prevent intoxication, mistake, or diminished capacity from leading to a not guilty verdict; he argues that it would be simpler just to bar those conditions as exonerating factors directly. He explains that experts are often asked not whether the defendant had the requisite intent but whether he had the capacity to have formed the intent, which permits unscientific speculation. Morse argues that the logical and moral basis for the mens rea variant is compelling. Arguments for limiting or rejecting the mens rea variant include: (i) confusion of the two variants of diminished capacity; (ii) fear that intoxication and similar claims will lead to total exculpation; (iii) unwarranted fear for public safety; (iv) unjustified belief that a mens rea variant will undermine the

insanity defense and the bifurcated trial in those jurisdictions that have it; and (v) unjustified fear of cluttering the trial process. Morse rejects each argument. In particular, he argues that there is no significant difference between mental state determinations in the case of mens rea and in insanity, or competency. He states that it makes no legal or policy sense to permit diminished capacity for voluntary intoxication, but to prohibit it for involuntary mental disorder. There is no reason to believe that mental disorder is not as likely to remove general as specific intent. Morse also argues that it makes no sense to limit the defense to homicide. He says that the concept behind partial responsibility in sentencing hearings makes more sense than at trial, but it removes an important expression of community wishes from the province of the jury. Morse accepts that some acts that satisfy criminal definitions should lead to lesser penalties or exculpation, but not through a partial responsibility approach. Given the variability among jurisdictions’ statutes and case law concerning diminished capacity, evaluators must familiarize themselves with the applicable rules. These rules include the legal definition of diminished capacity and whether or not testimony is permitted on the ultimate issue, that is, whether or not the defendant’s capacity was diminished by mental disorder. Once that has been done, and the defendant is fully informed of the purpose of the evaluation and the possible result of any opinions generated as a result of the evaluation, the approach is similar to that discussed previously under the insanity defense. In both cases, the legal question is whether the defendant was suffering from a mental disorder (however defined in that jurisdiction) and how that disorder, if present, affected the defendant’s cognitive abilities at the time of the alleged crime. Because of the recent flux in the availability of diminished capacity as a defense, formal evaluation schedules have not been developed as they have for insanity and competency to stand trial. Evaluators therefore will have to operationalize the jurisdiction’s legal criteria along the same lines and be prepared to explain their reasoning in reports or testimony.

EXTREME EMOTIONAL DISTRESS Anglo-American common law has for centuries recognized that persons under significant psychological stress may bear decreased responsibility for their criminal behavior. Defendants who can demonstrate that their ability to control their behavior was impaired by emotional conditions not rising to the level of legal insanity may have the severity of their charges or sentences reduced, or may even be found not guilty. When the criminal law was codified by many state legislatures, the concept of extreme emotional distress was

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incorporated into the definitions of particular specific intent crimes. The construct is therefore comparable to diminished capacity, in many respects, both in theory and in actual courtroom practice.

Trial and sentencing During the trial phase, extreme emotional distress, heat of passion, or other similar constructs are most often used in connection with homicide charges. All jurisdictions recognize different degrees of homicide that differ only as to the specific intent required. There are two major legal approaches to this differentiation process. In one, homicide is a single class of crime, with various degrees of severity (such as first- and second-degree murder, and voluntary and involuntary manslaughter). Once the act of killing has been proven, determination of the degree of culpability is determined by the intent of the defendant. In the second approach, the different degrees of homicide are treated as distinct crimes. Statutes rarely provide clear definitions of extreme emotional distress; most of them simply use the words themselves (or similar terms, such as heat of passion). For example, the Maine statute examined by the U.S. Supreme Court in Mullaney v. Wilbur (1975) defined manslaughter as ‘Whoever unlawfully kills a human being in the heat of passion, on sudden provocation, without express or implied malice aforethought’ (Maine Rev. Stat. 1964). Courts may further define statutory terms in individual cases. ‘Heat of passion’ in the above Maine statute was explained by a trial judge as, ‘At the time of the act the reason is disturbed or obscured by passion to an extent which might [make] ordinary men of fair, average disposition liable to act irrationally without due deliberation or reflection, and from passion rather than judgment’ (App. 47 1974). Such definitions from trial courts apply only to the particular case in question, but appellate courts may on occasion adopt them, thus applying definitions to their whole jurisdictions. The New York Court of Appeals (the highest state court) pointed out that ‘extreme emotional disturbance’ was substituted for ‘heat of passion’ in the state homicide statute to reflect advances in psychology demonstrating that a ‘significant mental trauma’ resulted in a ‘mental infirmity short of insanity,’ which may be present ‘for a substantial period of time, simmering in the unknowing subconscious and then inexplicably coming to the fore.’ The heat of passion defense is precluded by any period of cooling off before the crime, whereas extreme emotional disturbance is not necessarily precluded. It is not sufficient that the defendant was merely angry or upset (People v. Patterson 1976). Courts have also attempted to define extreme emotional distress as contrasted to other legal constructs; for example, the Illinois Supreme Court held that the level of

mental illness required for a guilty but mentally ill finding does not necessarily rise to the level of extreme emotional disturbance required to mitigate a death sentence (People v. Crews 1988). The major issue in appellate decisions concerning extreme emotional distress has been the burden of proof. The conflict has been over whether extreme emotional distress is an affirmative defense to first-degree murder, which requires the defendant to establish its existence; or whether the prosecution must prove the absence of extreme emotional distress to establish the intent necessary for first-degree murder. In the leading case dealing with this issue (Mullaney v. Wilbur 1975), the U.S. Supreme Court addressed Maine’s homicide statute, which required a defendant charged with murder to prove, by a fair preponderance of the evidence, that he acted ‘in the heat of passion on sudden provocation’ in order to reduce the murder to manslaughter. The prosecution was required to prove that the homicide was unlawful (neither justifiable nor excusable) and that it was intentional. Only if those elements were proven could the jury consider the distinction between murder and manslaughter. On appeal of a murder conviction, the Maine Supreme Court held that the prosecution was entitled to rest on a presumption of implied malice aforethought (required for murder) and could require the defense to prove that a defendant had acted in the heat of passion. The federal district and appeals courts reversed, finding that murder and manslaughter were distinct crimes, and therefore the prosecution was required under In re Winship (1970) to prove each element of the crime beyond a reasonable doubt, including malice (which would be negated by heat of passion.) The Maine Supreme Court had rejected the argument in a different case, and the U.S. Supreme Court accepted this case to resolve the issue. It acknowledged that in English common law, the burden of proving heat of passion rested with the defendant, and that early U.S. cases retained that scheme. However, the Supreme Court had rejected it in Davis v. United States (1895), and most states had abandoned it. The Supreme Court acknowledged that proving lack of heat of passion may be difficult, but that did not justify shifting the burden to the defendant. Subsequently, in People v. Patterson (1976), the New York Court of Appeals held that the New York homicide statute, which required a defendant to prove extreme emotional disturbance to reduce homicide to manslaughter, was not comparable to the Maine statute held unconstitutional by U.S. Supreme Court in Mullaney. The New York law required that intent be proven for homicide, while extreme emotional disturbance could be raised by the defense to reduce the charge to manslaughter. The court therefore held that the New York statute still required the prosecution to prove the elements of the crime and did not permit the jury to infer intent from the crime itself, as the Maine statute did.

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The decision was appealed to the U.S. Supreme Court (Patterson v. New York 1977), which declined to read its decision in Mullaney broadly, and affirmed the conviction: ‘We thus decline to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused … . Proof of the nonexistence of all affirmative defenses has never been constitutionally required; we perceive no reason to fashion such a rule in this case and apply it to the statutory defense at issue here.’ New York’s use of extreme emotional disturbance has been thoroughly discussed by Goldstein (1989). After the Supreme Court struck down most capital sentencing laws in Furman v. Georgia (1972), all states with capital punishment revised their procedures to provide a separate sentencing hearing, at which the state could present aggravating circumstances and the defense could present mitigation. In the list of potentially mitigating circumstances, most states include emotional distress at the time of the crime. The issue of psychiatric evidence in sentencing hearings is considered in detail in Chapter 27.

THE IMPOSITION OF AN INSANITY PLEA ON AN UNWILLING DEFENDANT Previously, our discussion dealt with pleas entered willingly by the defendant. There remains, however, considerable controversy in the law when a defendant who appears to have been insane at the time of the alleged crime refuses to plead insanity. The central conflict is between the autonomy of defendants to choose their own defenses and the dignity of the law. The courts have supported the general position that competent defendants should direct the courses of their defenses, but disagreement remains about what decisions can be made by a defense attorney without his or her client’s consent (Miller et al. 1996). In the case of the insanity plea, there are two separate issues. The first is that of the defendant’s competency to reject such a defense despite evidence that his or her condition and behavior at the time of the alleged crime met the criteria for legal insanity. The second is whether even a competent defendant should be allowed to reject an insanity defense under such circumstances.

Legal issues The major line of cases on the subject has come out of the United States Court of Appeals for the District of Columbia. In Overholser v. Lynch (1961), the trial judge had imposed an insanity defense on Lynch, found him insane, and committed him to St. Elizabeths Hospital. The United States Court of Appeals and the Supreme Court focused on the automatic commitment and did not challenge the trial judge’s authority to impose an insanity

defense. In Whalem v. United States (1965), the Appeals Court held that while an accused may refuse to enter an insanity defense, he may not, in a proper case, prevent the court from imposing it. The majority reasoned that the courts must refuse to permit the conviction of a morally non-responsible defendant. The court reaffirmed its position in United States v. Robertson (1974). Whalem stood until 1979, when the same court in Frendak v. United States (1979) reinterpreted its decision in Whalem. It held that a court may not force an insanity defense on a defendant who intelligently and voluntarily rejects it; but it held that a finding of competency to stand trial does not per se determine competency to reject an insanity defense. It pointed out that the Whalem decision gave little guidance to judges concerning how to decide whether to impose the defense or not, except for a few factors that would support a decision to impose the defense. After Whalem, the case law had encouraged judges to focus on the evidence supporting an insanity defense, rather than on the defendant’s competency to make that decision. Next, the court reviewed the Supreme Court’s decisions in North Carolina v. Alford (1970) and Faretta v. California (1975), both of which stressed the importance of permitting a defendant to make decisions central to the defense, but did not guarantee a defendant the absolute right to control his or her defense. The court held that Whalem was inconsistent with the underlying philosophy of the Supreme Court’s later cases; and it held that there were persuasive reasons why a competent defendant might elect to reject a potentially successful insanity defense, including a desire to avoid a mental commitment potentially longer than the prison term for the crime charged, an objection to the quality of treatment or type of confinement attendant upon an insanity acquittal, a genuine belief that he was not insane, the belief that raising the defense would be equivalent to an admission of guilt, the stigma of insanity, irrational fear of the mentally ill, risk of future discrimination, and avoidance of denigration of political or religious protest. The court held that because the defendant bears the consequences of a decision, if he or she has acted intelligently and voluntarily, a trial court must defer to his/her wishes not to raise an insanity defense. The judge may still interpose the defense against the defendant’s will, however, if the defendant is not competent to reject it (but presumably otherwise competent to stand trial). The court then proceeded to provide guidelines for judges to make that determination. Whenever the evidence raises a substantial question of insanity, the judge must conduct an inquiry designed to ensure that the defendant has been fully informed of the alternatives available, comprehends the consequences of failing to assert the defense, and freely chooses to raise or waive the defense. Because the circumstances involve someone whose mental condition has already been questioned, the examination must not be cursory. If the judge finds that

228 Forensic evaluation and treatment in the criminal justice system

the defendant is capable of making a voluntary and intelligent decision to reject the defense, the judge must respect that decision; but if not, the judge retains the discretion to raise the defense sua sponte. The U.S. Supreme Court has not definitively addressed this issue; in 1895, the Court held that as insanity is not strictly an affirmative defense, it can be raised by either the prosecution or the court (Davis v. United States 1895). In 1966, the Court held that ‘the constitutional right of a defendant [to refuse an insanity defense] cannot be waived by his counsel’ (Brookhart v. Janis 1966). But it did not address whether or not the court could enter such a plea. As a result, both federal and state case law comes down on opposite sides of the issue. State courts in Washington (State v. Dodd 1967; State v. Jones 1983), California (People. v. Redmond 1971; People v. Gauze 1975), Maryland (White v. State 1973; Anderson v. State 1973; Treece v. Maryland 1988), Indiana (Hooks v. State 1977), and Louisiana (State v. Lowenfield 1985) have ruled that the insanity defense cannot be forced. The Fourth Circuit Court of Appeals held that, ‘A prisoner who insists that he did not commit a crime can hardly be forced by his counsel to confess it in order to support a tenuous defense of insanity’ (Snyder v. Cunningham 1961). On the other hand, state courts in Missouri (State v. Hermann 1955), California (People v. Merkouris 1956), Nebraska (State v. Hall 1964), Washington (State v. Kolocotronis 1968), Maine (State v. Fernald 1968), New Jersey (State v. Gadson 1973), Maryland (List v. State 1973; Walker v. State 1974), Minnesota (State v. Pautz 1974), and Colorado (Les v. Meredith 1977) have permitted the imposition of an insanity defense. Several of these states have decisions on both sides of the issue, and the latest decision is not necessarily final. Federal appellate decisions have generally favored the imposition of the defense (Plummer v. United States 1958; United States v. Ashe 1973; United States v. Wright 1980). Both federal (Cross v. United States 1968; Trest v. United States 1968; United States v. Bradley 1972; United States v. Simms 1972; Mendenhall v. Hopper 1978) and state (People v. Gonzales 1967; People v. Baxter 1969; State v. Johnston 1974; United States ex rel. Laudati v. Ternullo 1976) courts have generally held that it is not abuse of discretion for a trial judge to decline to impose an insanity defense. Cohn (1988) points out that since the abolition of the insanity defense itself has been found constitutional in several states, there is little rationale for requiring a judge to impose it. He does not dismiss the need of the law to arrive at a just verdict, but he points out that many methods that are demonstrably more effective to achieve that end (such as eliminating the privilege against selfincrimination) have been ruled to be unconstitutional. Another legal author (Note 1981b) also finds the rationales for imposing the defense on a competent defendant unpersuasive, and concludes that such decisions tilt the balance too far toward state interests. He concludes, however, that judges should have the authority

to impose the insanity defense on incompetent defendants. Resnick (1978) disagrees, arguing that defendants who are incompetent to waive an insanity defense should be treated the same as other incompetent defendants.

Evaluation In United States v. Robertson (1974), the United States Court of Appeals for the District of Columbia Circuit set forth several factors that a trial judge should consider in deciding whether or not to impose an insanity defense, including: (i) the bizarre nature of the crime; (ii) whether defense counsel wishes to raise the defense; (iii) the differing views of experts on the question of insanity; and (iv) the defendant’s behavior at trial. In 1980, the Appellate Division of the New Jersey Superior Court operationalized the standard ‘knowing and intelligent’ test of the validity of waiver of constitutional rights by instructing trial judges to examine the defendant’s ‘awareness of his rights and available alternatives, his comprehension of the consequences of failing to assert the defense and the freeness of the decision to waive the defense.’ The judge should avoid, however, ‘an incursion into the area of mental capacity which might develop into an irreconcilable conflict with the finding of competency to stand trial’ (State v. Khan 1980). Most jurisdictions lack statutory or common law criteria, however, and evaluators will have to operationalize their assessments based on the general ‘knowing and intelligent waiver’ standard. In states that permit – even require – judges to enter an insanity defense on behalf of a defendant in appropriate circumstances (Colorado Stat.), the psychiatrist may be asked to evaluate defendants over their objections, and two distinct issues may need to be addressed: 1 Is the defendant competent to decide which plea to enter? 2 Does the defendant meet the criteria for insanity (even though he or she indicates that they have no desire to enter that plea)? In such a situation, it is even more important than in the usual competency or criminal responsibility evaluation for the evaluator to have a thorough grasp of the jurisdiction’s rules on the subject, and to communicate fully the purpose and potential consequences of the evaluation to the defendant. Evaluators should also be aware of the possibility of political agendas behind forced insanity defenses, where such pleas have been used to discredit political acts by defendants (Resnick 1978).

REFERENCES Act Number 266, Michigan Public Act of 1966. Alaska Stat. Sec. 1245.040 (Cum. Supp. 1983).

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Criminal responsibility 231 Pasewark, R.A., Pantle, M.L., Steadman, H.J. 1982. Detention and rearrest rates of persons found not guilty by reason of insanity and convicted felons. American Journal of Psychiatry 139, 892–7. Patterson v. New York, 432 U.S. 197, 210 (1977). Pennsylvania Cons. Stat. Ann. Title 18, Sec. 314 (Purdon 1983). Pennsylvania Cons. Stat. Ann. Title 18, Sec. 315(a) (Purdon 1983). People v. Baxter, 32 A.D.2d 840, 302 N.Y.S.2d 456 (1969). People v. Crews, 522 N.E.2d 1167 (Ill. 1988). People v. Gauze, 542 P.2d 1365 (Cal. 1975). People v. Gonzales, 229 N.E.2d 538 (N.Y. 1967); cert. denied, 390 U.S. 971 (1968). People v. Gorshen, 336 P.2d 492 (Cal. 1959). People v. Marshall, 448 N.E.2d 969, 980 (Ill. App. 1983). People v. McLeod, 407 Mich. 632, 288 N.W.2d 909, 919 (1980). People v. McQuillan, 392 Mich. 511, 221 N.W.2d 569 (1974). People v. Merkouris, 297 P.2d 999 (Cal. 1956). People v. Patterson, 39 N.Y.2d 288, 302-3 (1976). People v. Redmond, 16 Cal. App. 3d, 94 Cal. Rptr. 542 (1971). People v. Robles, 682 N.E.2d 194 (Ill. App. 1997). People v. Sorna, 88 Mich. App. 351, 362, 276 N.W.2d 892 (1979). People v. Wells, 202 P.2d 53 (Cal. 1949), cert. denied, 337 U.S. 919. People v. White, 117 Cal. App. 2d 270, 172 Cal. Rptr. 612 (1981). People v. Wolff, 394 P.2d 959 (Cal. 1964). Perr, I.N. 1985. The insanity defense: the case for abolition. Hospital and Community Psychiatry 36, 51–5. Petrella, R.C., Benedek, E.P., Bank, S.C., et al. 1985. Examining the application of the guilty but mentally ill verdict in Michigan. Hospital and Community Psychiatry 36, 254–8. Phillips, B.L., Pasewark, R.A. 1980. Insanity plea in Connecticut. Bulletin of the American Academy of Psychiatry and the Law 8, 335–44. Plummer v. United States, 260 F.2d 729 (1958). Pogrebin, M., Regoli, R., Perry, K. 1986. Not guilty by reason of insanity: a research note. International Journal of Law and Psychiatry 8, 237–41. Pouncy v. State, 465 A.2d 475 (Md. 1983). Ray, I. 1871: Treatise on the Medical Jurisprudence of Insanity. Reprinted in 1976. New York: Arno Press. Resnick, P.J. 1978. The political offender: forensic psychiatry considerations. Bulletin of the American Academy of Psychiatry and the Law 6, 388–97. Rex v. Arnold, 16 How. St. Tr. 695 (1724). Rex v. Hadfield, 27 St. Tr. 1281 (1800). Robey, A., Pogany, A. 1974. The N.G.R.I. Commitment and McQuillan. Michigan Department of Mental Health Study (unpublished).

Robinson v. Solem, 432 N.W.2d 246, 249 (S.D. 1988). Rogers, R. 1986: Conducting Insanity Evaluations. New York: Van Nostrand Reinhold. Rogers, R. 1987. APA’s position on the insanity defense: empiricism versus emotionalism. American Psychologist 62, 840–8. Shaw v. State, 471 P.2d 715 (1970); cert. denied (1971). Simon, Paul J. 1967: The Jury and the Defense of Insanity. Boston: Little, Brown. Sinclair v. State, 132 50 58 (Miss. 1931) (per curiam). Slobogin, C. 1985. The guilty but mentally ill verdict: an idea whose time should not have come. George Washington Law Review 53, 494–527. Smith, G.A., Hall, J.A. 1982. Evaluating Michigan’s guilty but mentally ill verdict: an empirical study. University of Michigan Journal of Law Reform 16, 77–114. Snyder v. Cunningham, 292 F.2d 683, 685 (4th Cir. 1961). South Dakota Codified Laws Ann. Sec. 23A-7-2 (Pocket Supp. 1983). State v. Breakiron, 108 N.J. 591, 532 A.2d 199 (1987). State v. Dodd, 424 P.2d 302 (Wash. 1967). State v. Fernald, 248 A.2d 754 (Me. 1968). State v. Gadson, 372 A.2d 1143 (N.J. Super. 1973). State v. Hall, 125 N.W.2d 918 (Neb. 1964). State v. Hermann, 283 S.W.2d 617 (Mo. 1955). State v. Hornsby, 484 S.E.2d 869 (S.C. 1997). State v. Johnston, 527 P.2d 13 10 (Wash. 1974). State v. Jones, 50 N.H. 369 (1871). State v. Jones, 664 P.2d 1216 (Wash. 1983). State v. Khan, 417 A.2d 585, 591 (N.J. Sup. Ct. App. Div. 1980). State v. Kolocotronis, 436 P.2d 774 (Wash. 1968). State v. Korell, 690 P.2d 992 (Mont. Sup. Ct. 1984). State v. Krol, 344 A.2d 289 (1975). State v. Laffoon, 610 P.2d 1045 (Ariz. 1980). State v. Lange, 123 50 639 (La. 1929). State v. Lowenfield, 495 So. 2d 1245 (La. 1985). State v. Neely, 819 P.2d 249 (N.M. 1991). State v. Pautz, 217 N.W.2d 190 (Minn. 1974). State v. Raaths, No. 83-CF-307 (Kenosha Cty., WI, decided December 13, 1983). State v. Roussel, 424 So. 2d 226, 230 (La. 1982). State v. Shaw, 471 P.2d 715 (Ariz. 1970); cert. denied, 39 U.S.L.W. 3313 (Jan. 18, 1971). State v. Sikora, 210 A.2d 193 (N.J. 1965). State v. Strasburg, 110 P.2d 1020 (Wash. 1910). State v. Wilcox, 436 N.E.2d 523 (Ohio 1981). State v. Wilson, 413 S.E.2d 19 (S.C. 1992). State v. Zola, 548 A.2d 1022, 1029-31 (N.J. 1988). Steadman, H.J. 1985. Empirical research on the insanity defense. Annals of the American Academy of Political and Social Science 477, 58–64. Steadman, H.J., Callahan, L.A., Robbins, P.C., et al. 1989. Maintenance of an insanity defense under Montana’s ‘abolition’ of the insanity defense. American Journal of Psychiatry 146, 357–60. Steele v. State, 294 N.W.2d 2 (Wis. 1980).

232 Forensic evaluation and treatment in the criminal justice system Stewart v. United States, 275 F.2d 617, 624 (D.C. Cir. 1954). Treece v. Maryland, 547 A.2d 1054 (Md. App. 1988). Trest v. United States, 350 F.2d 794 (D.C. App. 1968) (per curiam); cert. denied, 382 U.S. 1018 (1966). Townsend v. State, 417 S.W.2d 55 (Tex. Crim. App. 1968). United States ex rel. Laudati v. Ternullo, 423 F. Supp. 1210 (S.D.N.Y. 1976). United States v. Ashe, 478 F.2d 661 (D.C. App. 1973). United States v. Bradley, 463 F.2d 808 (D.C. App. 1972) (per curiam). United States v. Brawner, 471 F.2d 969 (D.C. Cir. 1972). United States v. Frisbee, 623 F. Supp. 1217 (N.D. Cal. 1985). United States v. Gold, 661 F. Supp. 1127 (D.D.C. 1987). United States v. Perry, 173 F.3d 427 (4th Cir. 1999); unpublished opinion, 1999 U.S. App., Lexis 3326. United States v. Pohlot, 827 F.2d 889 (3rd Cir., 1987). United States v. Robertson, 507 F.2d 1148 (D.C. Cir. 1974).

United States v. Simms, 463 F.2d 1273 (D.C. App. 1972). United States v. Taylor, 510 F.2d 1283 (D.C. Cir. 1975). United States v. Wright, 627 F.2d 1300 (D.C. Cir. 1980). Utah Code Ann. See. 77-13-1 (Pocket Supp. 1983). Utah Code Ann. 76-2-305(1) (1986). Walker v. State, 321 A.2d 170 (Md. App. 1974). Washington v. United States, 390 F.2d 444 (D.C. Cir. 1967). Weinberg, A. (ed.). 1957: Attorney for the Damned. University of Chicago Press, 16–88. Whalem v. United States, 346 F.2d 812 (D.C. Cir. 1965), cert. denied, 382 U.S. 862 (1966). White v. State, 299 A.2d 873 (Md. App. 1973). Wisconsin Rev. Stat. 971.165 (1983–84). Woodmansel, M.A. 1996. The guilty but mentally ill verdict: political expediency at the expense of moral principle. Notre Dame Journal of Law, Ethics and Public Policy 10, 341–87.

26 Novel mental disorders1 ROBERT D. MILLER

The traditional use of mental health defenses and claims has been for major mental disorders such as schizophrenia and the major mood disorders (Daniel et al. 1984; Rogers, Bloom and Manson 1984). These authors reported a very high correlation between findings of insanity and the presence of psychotic mental disorders in the acquittees. Together with data from a different jurisdiction, it was found that 70 per cent of insanity acquittees suffered from psychotic mental disorders, and 12 per cent suffered from neurosis, organic brain injuries, or mental retardation. In recent years, attorneys have begun to put forth new mental or social disorders, either to excuse (or mitigate) otherwise criminal behavior, or to lay the foundation for civil litigation.

POSTTRAUMATIC STRESS DISORDER Perhaps the most common condition is posttraumatic stress disorder (PTSD), which initially blossomed when the disorder was officially recognized by the American Psychiatric Association (1980). The initial criteria required that the trauma be ‘outside of normal human experience,’ reflecting its origins in war and single disasters. The current criteria (DSM-IV) are broader, requiring only that the person ‘experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and the person’s response involved intense fear, helplessness, or horror.’ The broadening of the definition came largely from the influence of advocates for victims of child abuse, who argued that serious abuse of vulnerable children over an extended period of time can cause the same symptoms as a few catastrophic events. Initially, the focus of the use of PTSD was on Vietnam veterans, and largely concentrated 1 This chapter is an expansion of material originally published in the Thomas M. Cooley Law Review (Miller 2000) and is used with permission.

in the criminal courts. Forensic clinicians, while acknowledging the validity of PTSD as a clinical disorder, have cautioned against its uncritical acceptance in the courts, in part because the criteria rely so heavily on the patient’s self reports (Sparr and Boehnlein 1990; Stone 1993; Weintraub 1997). On the other hand, legal author Goldklang (1997), argues for the wider acceptance of PTSD as an excuse for otherwise criminal behavior. The defense has met with varying success, due in part to the fact that there are a number of cases in which the defendants do not meet the PTSD criteria, and others in which PTSD is present, but not causally related to the criminal acts in question. One successful use of the defense was in State v. Heads (1980). Heads killed the husband of his wife’s sister after his wife left him. He was found sane and convicted of murder at his first trial, but the conviction was overturned on other grounds. At his second trial (after DSMIII came out listing PTSD), Heads was found insane. Despite the broader criteria, Appelbaum et al. (1993) report that PTSD remains rare as a defense to criminal charges – their data reveal that it was raised as an insanity defense in 28 of 8953 cases (out of 967 209 felony cases) and was successful in only eight cases, comparable to the success rate of insanity defenses in general. One of the main criticisms of PTSD in the forensic arena is the subjective nature of the diagnosis. The DSM criteria are typically operationalized almost entirely from the patient’s subjective report. Detailed structured interviews provide more detail, but can suggest symptoms to malingerers (Pitman and Orr 1993). Psychometric testing has not proved effective in distinguishing genuine from simulated PTSD. Invasive techniques, including lactate or yohimbine, pain tests, and blood epinephrine (adrenaline) levels have also been shown to distinguish between PTSD and simulation, but at this time they are probably unsuitable for forensic investigations. Potential blood tests have been developed but not yet studied in controls and in noncombat PTSD sufferers (Pitman and Orr 1993). More promising at the present time is psychophysiologic testing, to address Criterion D (arousal) of the DSM-IV

234 Forensic evaluation and treatment in the criminal justice system

diagnosis of PTSD. A combination of heart rate, skin conductance, lateral frontalis electromyography (EMG), corrugator EMG, and zygomaticus major EMG was able to correctly classify 18 of 25 genuine PTSD sufferers, 16 of 16 non-PTSD patients, and subsequently 12 of 16 of the nonPTSD patients when they were asked to simulate (Orr and Pitman 1993). These authors stress that the tests cannot stand alone, and must be used as part of a comprehensive evaluation. They discuss the differences in admissibility standards between Frye v. United States (1923) and Daubert v. Merrill Dow Pharmaceuticals (1993), and cite a recent case, Vinal v. New England Telephone (1993) as reported in Pitman, Saunders, and Orr (1994) in which an expert was allowed to testify under the Frye standard in a civil damages case that the plaintiff’s psychophysiologic responses met the PTSD criterion of psychophysiologic reactivity, but was not allowed to testify as to a numerical estimate of the probability that she suffered from PTSD. The broader criteria for PTSD adopted in 1994 have created a much larger class of potential victims, for both criminal and civil litigation, and have spawned a number of ‘me-too’ conditions that are not yet recognized as ‘official’ mental disorders by the American Psychiatric Association, but are increasingly brought up in court.

2 The presumed beliefs that people harbor about the consequences and effects of male violence against women in intimate relationships, i.e., that battered women enjoy or need the violence, and could leave if they chose.

BATTERED WOMAN SYNDROME

•

The oldest of these novel syndromes historically, and the one most commonly put forward in criminal courts, is battered woman syndrome (BWS), which is used in an attempt to explain why women kill their batterers at times when the women are not in immediate danger. While BWS clearly exists as a clinical syndrome, and explains much aggressive behavior against abusers, it is not as clear whether it should excuse that behavior. The courts have become increasingly receptive to the admissibility of expert testimony on BWS, although not necessarily to the excusing power of the syndrome. [The first appellate case to approve the admissibility of the BWS was Ibn-Tamas v. United States (1979); for discussions of subsequent cases and the rationales for and against the use of BWS as a defense to criminal charges, see Copp (1995).] Professor Copp argues for acceptance of BWS as a self-defense concept, because the women in question have been physically abused by the victim, and when they attack, they protect themselves from future violence by their abusers. For a detailed discussion of case law, see Shopp, Sturgis, and Sullivan (1994). Schuller and Vidmar (1992) list obstacles to successful self-defense claims:

•

1 The laws of self-defense, which require that the defendant have a reasonable apprehension of imminent death or grievous bodily harm at the time of the killing, and that the force used was a reasonable and necessary response.

Expert testimony attempts to explain the defendant’s state of mind – why her actions can be seen as reasonable, and why she did not leave. In most cases, however, experts are allowed to testify as to the nature of BWS, but not whether the defendant meets criteria for the syndrome. Courts consider both reliability and validity, using either Frye v. United States (1923) or the Federal Rules of Evidence, #702. The American Psychological Association has supported the validity of the syndrome, but points out that methodological problems remain, including: (i) no control group; and (ii) the non-random selection of subjects. Parrish (1996) argues that there is no such thing as a separate ‘battered women’s syndrome’; the expert testimony is properly used to support a self-defense or duress defense. Parrish analyzed 269 court opinions and twelve state statutes; her data demonstrate that:

•

• • • •

Testimony on battering is admissible in all 51 state jurisdictions. Sixteen of nineteen federal courts that have addressed the issue have admitted the testimony. BWS testimony is most commonly admitted in traditional self-defense cases. Most jurisdictions (76 per cent) permit expert witness testimony to establish that a defendant is battered. Most jurisdictions (70 per cent) permit testimony on a defendant’s mental state. Two-thirds of jurisdictions permit testimony to explain why a battered spouse does not leave the situation. Thirty per cent of state courts (44 per cent of federal) permit expert testimony to prove diminished capacity. Appeals were affirmed in 63 per cent of state cases, although expert testimony was admitted in 71 per cent of those cases; convictions were affirmed in 77 per cent of federal cases.

As societal knowledge and attitudes toward domestic violence change, there may be less need for expert testimony. Jury instructions have been shown to be the most important variable. In some studies, expert testimony did not alter verdicts, but it did influence the way in which jurors perceived the case, whilst in others it did influence decision making. Testimony was influential only if linked to the specific defendant, and the studies were of only mock juries. When expert testimony is countered by the prosecution, its effects disappear. Ewing (1987) reviewed 85 homicide trials of battered women, and the defendant was convicted of some form of murder in 70 per cent of these. In two-thirds of the cases, the killing occurred outside of a direct confrontation. Walker (1990) reported that in 150 cases on BWS in which she has testified, 25 per cent of defendants were acquitted.

Novel mental disorders 235

BATTERED CHILD SYNDROME A logical sequela of the recognition of BWS was the creation of the battered child syndrome (BCS) to explain (and excuse) aggressive behavior of children against their abusers, even when their retaliatory behavior was clearly and carefully planned. The most publicized example of the use of this defense was in the case of the Menendez brothers in California, who were finally found guilty at a second trial, after a hung jury at the first trial (People v. Menendez undated). The defense remains very controversial. Several other courts have held that testimony on BCS is admissible, holding that is a ‘recognized medical diagnosis’ (State v. Wilkinson 1978; State v. Mulder 1981). Commentators are divided on the legitimacy of the diagnosis in court. Sacks (1994) argues that the defense should be accepted in appropriate cases, but one legal author (Note 1994) argues against it.

BLACK RAGE Defense attorneys have now moved from situations in which abuse by the specific victim(s) is put forward as a defense to arguing that defendants should be excused because of generic trauma while growing up. These syndromes are all variants of PTSD, but without the documented research that is now available to support PTSD. One such syndrome is called the black rage syndrome, first proposed by Grier and Cobbs in 1968. These authors argued that because of the pervasive pattern of racism that persists in the United States, blacks develop a ‘cultural paranoia’ which leads them to view whites as the enemy, and thus to react in what they perceive to be self-defense. The first reported use of the defense was in United States v. Robertson (1974), in which a psychiatrist testified in favor of the black rage defense. In Fisher v. United States (1946), the trial court rejected a diminished capacity instruction on black rage, and Fisher was convicted. The appeals court upheld the rejection of diminished capacity; the Supreme Court majority affirmed, since Fisher’s mental state did not amount to insanity. Copp (1995) argues against the defense; while she agrees that discrimination against blacks continues, she argues that it does not rise to the level of insanity. The theory explains the development of intense anger, but does not justify criminal conduct. Copp distinguishes black rage from PTSD because in the latter condition the violence is unanticipated and occurs in response to recurrence of the traumatic event. She distinguishes black rage syndrome from BWS because in the latter, the woman has been physically abused by the victim, and when she attacks, she protects herself from future violence by her abuser. Copp argues that to accept black rage as a defense would harm society in two ways: first, it would open up the floodgates for an

endless stream of discrimination-based defenses; and second, it would insult millions of law-abiding blacks. Goldklang (1997) supports the defense, conceding that it would be problematic to satisfy a cognitive insanity test, but might satisfy an irresistible impulse test or the Model Penal Code Test; it might also satisfy a diminished capacity test – particularly the partial responsibility variant. Falk (1996) also supports the defense. She concedes that courts have not accepted it, but she argues that such a defense (along with ‘Urban Psychosis’ and ‘Television Intoxication’) can be fitted within the existing structure of the criminal law, either to support an insanity defense, to elucidate other mental states such as diminished capacity and provocation, to support self-defense, or to play a mitigating role in sentencing. Falk concludes that these defenses are perhaps most relevant at sentencing, but the rise of determinate sentencing guidelines has limited their use.

ROTTEN SOCIAL BACKGROUND Another sociological background defense that has been put forward in courts is rotten social background (RSB), which posits that exposure to violent, abusive conditions during childhood leads to uncontrollable aggressive behavior. Delgado (1985) argues that RSB defense not only protects individual defendants, but also forces society to confront the social conditions that led to it. Morse (1994) argues that RSB produces neither sufficient external duress nor sufficient internal coercion, to excuse criminal behavior. The defense has not gained acceptance in court. The U.S. Court of Appeals for the District of Columbia Circuit (United States v. Alexander 1972) rejected the defense, although a psychiatrist testified in its favor.

URBAN SURVIVAL A similar new sociological defense is urban survival or urban psychosis syndrome, which proposes that growing up in violent ghettos causes such a distortion of normal human values and expectations that its victims do not develop non-violent responses to adversity, and react to even the smallest slights with lethal force. As to be expected from the previous discussion, Falk supports the defense, at least in some cases, while Copp (1995, p. 207) opposes it. Estrich (1998) also opposes it, expressing concern that the criminal justice system itself may suffer if defendants are not held responsible for their crimes for a variety of social/political reasons. Similar arguments are made by Dershowitz (1994).

TELEVISION INTOXICATION One of the more ingenious attempts to excuse violent behavior was created by attorney Ellis Ruben in the

236 Forensic evaluation and treatment in the criminal justice system

Zamora case (Zamora v. State 1982). Zamora was a Cuban immigrant who learned to speak English from watching television. He and some other adolescent friends were robbing the house of an elderly neighbor when she surprised them. They brutally murdered her. At trial, Ruben tried to argue that Zamora had been so saturated with the violence he had seen on television that he was incapable of behaving any other way. The trial court did not allow testimony on the novel theory, and the denial was upheld on appeal.

RAPE TRAUMA SYNDROME Unlike the syndromes discussed above, rape trauma syndrome (RTS) refers to victims of sexual abuse, and not to the perpetrators. First described by Burgess and Holstrom (1974), the syndrome refers to purported symptoms that are unique to victims of sexual abuse; its use in court is typically to prove that sexual abuse actually occurred, thus providing evidence against a criminal or civil defendant. Such use of expert testimony is controversial. Cohen (1985) reports that testimony may be proffered to explain victim behavior that may appear paradoxical to lay jurors (such as denial or retraction of accusations), or to bolster the credibility of a victim (especially if the victim is very young.) Cohen argues that such testimony lacks the required scientific reliability to be admissible under the Federal Rules of Evidence. Unlike other syndromes (battered child, rape trauma, battering parent), there is often no physical evidence to support child sexual abuse, which makes the expert testimony even more powerful. Cohen does approve of testimony that explains specifically sexual behavior that is not common in young children who have not been sexually abused, as was the case in In re Cheryl H. (1984). Frazier and Borgida (1992) provide a detailed review of appellate decisions on RTS. Courts continue to be divided as to the admissibility of RTS testimony. For example, in State v. Marks (1982), the court held that evidence of rape trauma syndrome was admissible, but in State v. Taylor (1984) the court ruled it inadmissible, whilst in State v. Saldana (1982) the court also ruled it inadmissible because it was not based on a scientific test that accurately determines whether a rape has occurred. Frazier and Borgida report that qualification of experts is rarely a bar to admission. Reliability of RTS evidence was rarely raised, but when it was it was a major factor in the evaluation of the testimony. The most common objection was that the evidence was prejudicial, though courts have divided evenly on this issue. Testimony is more likely to be admitted if it is general, and not specific to the victim in the case. The authors offer several criticisms of RTS testimony, namely that:

•

Since symptoms of rape victims vary widely, a ‘syndrome’ does not accurately describe common features.

• •

Since the symptoms are not unique to RTS, they could be caused by other stressors. Individuals react to being raped in different ways. The authors do acknowledge that recent research has demonstrated that RTS symptoms are relatively circumscribed, and some are specific to rape.

Some courts have held that RTS testimony is not beyond the ken of the average juror, but the research cited by Frazier and Borgida contradicts that assumption. While expert testimony does exert some influence on juries, it does not appear unfairly to prejudice the defendant. Data from appellate decisions indicate that some experts are describing symptoms as consistent with RTS that have not been substantiated by the literature. Courts do not appear to rely on the most recent research in their decisions about admissibility.

CULTURAL DEFENSES In addition to variants of PTSD, defense attorneys have begun to graft cultural factors onto existing defenses such as mistake of fact and diminished responsibility. For example, in People v. Moua (1985) the trial judge reduced charges from rape to false imprisonment because in the Hmong culture, the marriage ritual involves abducting a woman and consummating the relationship despite her protests. In this case, the Hmong defendant mistakenly took the victim’s protests as part of the ritual. In People v. Chen (1989), Chen killed his wife after she confessed her infidelity. The judge found that Chinese cultural beliefs, in which a cuckolded husband’s manhood is lost, and he is expected to kill his wife, diminished Chen’s responsibility to second-degree manslaughter. In People v. Wu (1991), after discovering her husband’s infidelity, Ms. Wu killed her young son and tried to kill herself. The trial judge refused a jury instruction to consider the defendant’s cultural background, but the Appeals Court reversed, holding that evidence of her cultural background could have provided the jury with reasonable doubt that one of the required mental states existed. Gallin (1994) argues that such decisions reinforce domestic violence, as after Chen, there was an increase in domestic violence in Asian communities in New York. Asian women who left their countries to escape the ritual violence are now faced with it in the USA, and feel that the courts will not protect them. By contrast, when Vietnamese men were prosecuted in Los Angeles for battering spouses, the battering subsided.

MISCELLANEOUS NOVEL DEFENSES Estrich (1998), in addition to listing the common syndromes discussed above, lists several others that she has

Novel mental disorders 237

encountered in her practice, including adoptive child syndrome (excusing violent behavior on the basis of a person’s feelings of rejection because of being adopted); and riot syndrome (in which mob mentality takes over and otherwise non-violent individuals become violent). She applies the same criticisms to these as she has to the more familiar syndromes. Dershowitz (1994) lists (and disapproves of) even more syndrome defenses that have been used in courts; relevant to the PTSD group are elderly abuse syndrome, football widow syndrome, holocaust survival syndrome, legal abuse syndrome, meek-mate syndrome, mother lion defense, premenstrual stress syndrome, UFO survivor syndrome, and unhappy gay sailor syndrome. Another recent entry is the reverse of the black rage coin – white racism. In a recent article in the American Psychiatric Association’s newspaper, Harvard psychiatry professor Alvin Poussaint is quoted as stating that ‘extreme racism’ meets the criteria for the DSM-IV diagnosis of delusional disorder, and therefore could support criminal non-responsibility. Allan Tasman, President of the American Psychiatric Association, opposed the idea, expressing concern that such a view ‘could be used to explain away people’s inappropriate beliefs rather than taking responsibility for them.’ (Psychiatric News 1999).

REFERENCES American Psychiatric Association. 1980: Diagnostic and Statistical Manual of Mental Disorders, 3rd edition. Washington, DC: American Psychiatric Press. Appelbaum, P.A., Jick, R.Z., Grisso, T., Givelber, D., Silver, E., Steadman, H.J. 1993. Use of posttraumatic stress disorder to support an insanity defense. American Journal of Psychiatry 150, 229–34. Burgess, A., Holstrom, L. 1974. Rape trauma syndrome. American Journal of Psychiatry 131, 981–6. Cohen, A. 1985. The unreliability of expert testimony on the typical characteristics of sexual abuse victims. Georgetown Law Journal 74, 429–56. Copp, K.M. 1995. Black rage: the illegitimacy of a criminal defense. John Marshall Law Review 29, 207–38. Daniel, A.E., Beck, N.C., Herath, A., et al. 1984. Factors correlated with psychiatric recommendations of incompetency and insanity. Journal of Psychiatry and Law 12, 527–44. Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786 (1993). Delgado, R. 1985. ‘Rotten social background’: should the criminal law recognize a defense of severe environmental deprivation? Law and Inequality 3, 9–90. Dershowitz, A. 1994: The Abuse Excuse and Other Cop-outs, Sob Stories, and Evasions of Responsibility. Boston: Little, Brown and Company.

Estrich, S. 1998: Getting Away with Murder: How Politics is Destroying the Criminal Justice System. Cambridge, MA: Harvard University Press. Ewing, C.P. 1987: Battered Women who Kill: Psychological Self Defense as Legal Justification. Lexington MA: Heath. Falk, P.J. 1996. Novel theories of criminal defense based upon the toxicity of the social environment: urban psychosis, television intoxication, and black rage. North Carolina Law Review 74, 731–811. Fisher v. United States (328 U.S. 463 (1946), affirming 149 F.2d 28 (D.C. Cir. 1945). Frazier, P.A., Borgida, E. 1992. Rape trauma syndrome: a review of case law and psychological research. Law and Human Behavior 16, 293–388. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Gallin, A.J. 1994. The cultural defense: undermining the policies against domestic violence. Boston College Law Review 35, 723–45. Goldklang, D.L. 1997. Post-traumatic stress disorder and black rage: clinical validity, criminal responsibility. Virginia Journal of Social Policy and Law 5, 213–43. Grier, W.H., Cobbs, P.M. 1968: Black Rage. New York: Basic Books. Ibn-Tamas v. United States, 407 A.2d 626 (D.C. App. 1979). In re Cheryl H., 153 Cal. App. 3d 1098, 200 Cal. Rptr. 789 (1984). Miller, R.D. 2000. Patient responsibilities: the other side of the coin. Thomas M. Cooley Law Review 17, 91–123. Morse, S.J. 1994. Culpability and control. University of Pennsylvania Law Review 142, 1587–660. Note. 1994. The battering parent syndrome: inexpert testimony as character evidence. University of Michigan Journal of Law Reform 17, 653–79. Orr, S.P, Pitman, R.K. 1993. Psychophysiologic assessment of attempts to simulate posttraumatic stress disorder. Biological Psychiatry 33, 127–9. Parrish, J. 1996. Trend analysis: expert testimony on battering and its effects in criminal cases. Wisconsin Women’s Law Journal 11, 75–173. People v. Chen, No. 87-7774 (N.Y. Sup. Ct. Mar. 21, 1989). People v. Menendez, unreported, No. SA 002728 (Cal.) People v. Moua, No. 315972 (Fresno Super. Ct. 1985). People v. Wu, 286 Cal. Rptr. 868 (Cal. Ct. App. 1991). Pitman, R.K., Orr, S.P. 1993. Psychophysiologic testing for post-traumatic stress disorder: forensic psychiatric application. Bulletin of the American Academy of Psychiatry and the Law 21, 37–52. Pitman, R.K., Saunders, L.S., Orr, S.P. 1994. Psychophysiologic testing for post-traumatic stress disorder. Trial April. Psychiatric News. Is racism a mental illness? Psychiatric opinion divided. October 1, 1999, 15. Rogers, J.L., Bloom, J.D., Manson, S.M. 1984. Insanity defenses: contested or conceded? American Journal of Psychiatry 141, 885–8. Sacks, J.H. 1994. Comment: a new age of understanding: allowing self defense claims for battered children who

238 Forensic evaluation and treatment in the criminal justice system kill their abusers. Journal of Contemporary Health Law and Policy 10, 349–81. Schuller, R.A., Vidmar, N. 1992. Battered woman syndrome evidence in the courtroom. Law and Human Behavior 16, 273–91. Shopp, R.F., Sturgis B.J., Sullivan, M. 1994. Battered woman syndrome, expert testimony, and the distinction between justification and excuse. University of Illinois Law Review 1994, 45–113. Sparr, L.F., Boehnlein, J.K. 1990. Posttraumatic stress disorder in tort actions: forensic minefield. Bulletin of the American Academy of Psychiatry and the Law 18, 283–302. State v. Heads, 385 So.2d 230 (La. 1980). State v. Marks, 647 P.2d 1292 (Kan. 1982). State v. Mulder, 629 P.2d 462 (Wash. App. 1981).

State v. Saldana, 324 N.W.2d 227 (Minn. 1982). State v. Taylor, 663 S.W.2d 235 (Mo. 1984) (en banc). State v. Wilkinson, 247 S.E.2d 905 (N.C. 1978). Stone, A.A. 1993. Post-Traumatic Stress Disorder and the law: critical review of the new frontier. Bulletin of the American Academy of Psychiatry and the Law 21, 23–36. United States v. Alexander, 471 F.2d 923 (D.C. Cir. 1972). United States v. Robertson, 507 F.2d 1148 (D.C. Cir. 1974). Vinal v. New England Telephone, No. 91-0564 (Mass. Middlesex County Super. Ct., Sept. 22, 1993). Walker, L. 1990: Terrified Love: Why Battered Women Kill, and How Society Responds. New York: Harper & Row. Weintraub, L. 1997. Inner-city post-traumatic stress disorder. Journal of Psychiatry and Law 25, 249–86. Zamora v. State, 422 So.2d 325 (Fla. App. 1982).

27 Post-conviction dispositional evaluations ROBERT D. MILLER

When the Supreme Court struck down a number of capital punishment statutes in 1972 because they were held to be too arbitrary and did not permit individuation in sentencing (Furman v. Georgia 1972), state legislatures enacted statutes calling for a separate sentencing phase for defendants convicted of capital crimes. In such hearings, the fact finder would choose between the death penalty and life imprisonment based on the balance between aggravating factors presented by the prosecution (including prediction of future dangerousness) and mitigating factors presented by the defense (including mental disorder). Since the Supreme Court found that such statutes were constitutional (Gregg v. Georgia 1976; Jurek v. Texas 1976; Profitt v. Florida 1976), mental health professionals have been called on to provide testimony in sentencing hearings. The most controversy has been raised by psychiatrists retained by the prosecution who predict future dangerousness. As Stone (1984) has pointed out, the intensity of much of the criticism against such practice stems from moral opposition to capital punishment, but there have been some significant departures from professional standards as well in the actions of some psychiatrists. First, there is the problem of predicting future dangerousness. For the purpose of capital sentencing, the issue in most states is whether the defendants would be dangerous if released; since that would not happen until they have served lengthy sentences, experts are being asked to predict behavior years in the future. As pointed out in the amicus briefs of the American Psychiatric Association, both in Jurek v. Texas (1976), Estelle v. Smith (1981), and Barefoot v. Estelle (1983), mental health professionals simply do not possess the expertise to make such long-term protections; furthermore, because such testimony is presented by court-qualified experts, it would be accorded greater weight than it deserves. Although the Supreme Court found no problems with such predictions, they raise ethical questions for psychiatrists and psychologists, whose ethical codes prohibit going beyond their expertise (American Psychiatric Association 1998; American Psychological Association 1990).

Another issue raised in Estelle was that of the information given to the person being evaluated. In that case, Dr. Grigson had told Smith only that the judge had asked him to perform a competency evaluation; Smith’s attorney was not even aware of the evaluation. Grigson was not called to testify at the trial, but did testify at the capital sentencing hearing. On appeal of the death sentence, the Supreme Court held that Grigson’s actions violated Smith’s Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to counsel. After Estelle, few defense attorneys in Texas would permit their clients to be examined by Dr. Grigson; the prosecution therefore adopted the tactic of presenting him with hypotheticals based on the facts adduced during the trial. Dr. Grigson continued to opine, with overwhelming confidence, that defendants were sociopaths, and would continue indefinitely to pose a danger to society. These conclusions were challenged in Barefoot v. Estelle (1983), and the American Psychiatric Association again filed an amicus brief arguing against prediction of long-term dangerousness, and arguing that testimony as to diagnosis is not permissible if based on hypotheticals. It also pointed out that Drs. Grigson and Holbrook not only admitted lack of familiarity with the research literature on prediction of dangerousness but that Dr. Grigson [who had testified that he did not accept the DSM-III criteria (American Psychiatric Association 1980) for antisocial personality] diagnosed Barefoot using idiosyncratic criteria that the hypothetical information did not satisfy. The Supreme Court rejected all these arguments and affirmed Barefoot’s death sentence.

INEFFECTIVE ASSISTANCE OF COUNSEL There are a number of cases in which defendants sentenced to death have argued on appeal that their representation by counsel was ineffective because evidence of mental impairment was not raised at the sentencing phase

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of their trials. In order to establish ineffective assistance, appellants must demonstrate that their lawyers’ practice fell below a minimum standard, and that as a result their cases were prejudiced. In the case of capital sentencing hearings, the court must decide that it could not say with confidence that the jury would still have found for the death penalty had the attorney’s performance been acceptable. Appellate courts have overturned death sentences because of ineffective assistance when the evidence shows that the defendant had a significant history of childhood abuse or deprivation and/or a history of psychiatric problems, and the attorney made little or no effort to investigate that history as a mitigating factor (Armstrong v. Dugger 1987; Evans v. Lewis 1988; Middleton v. Dugger 1988; Deutscher v. Whitley 1989; Mathis v. Zant 1989). When the attorney was aware of potential mental evidence in mitigation but chose not to introduce it for tactical reasons (Burger v. Kemp 1987), or a competent defendant himself lucidly barred psychiatric evaluation or testimony for the sentencing phase (Clanton v. Bair 1987; Bundy v. Dugger 1988), courts have held that no ineffective assistance occurred. Courts have listed a number of ways in which emotional distress might mitigate a death sentence. First, the Supreme Court held that, ‘Evidence about a defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse’ (California v. Brown 1987). Second, mental deficiency may mitigate against the death penalty (Mathis v. Zant 1989). Mental illness may also mitigate; the Eighth Circuit held that, ‘… this kind of psychiatric evidence [childhood abuse, mental deficiency, and mental illness], it has been held, has the potential to totally change the evidentiary picture by altering the causal relationship that can exist between mental illness and homicidal behavior. Thus, psychiatric mitigating evidence not only can act in mitigation, it also could significantly weaken the aggravating factors’ (Middleton v. Dugger 1988, at 495). The influence of drugs or alcohol has also been found to be a mitigating factor (Roberts v. Louisiana 1977). Evidence that a defendant would not pose a threat to society may also mitigate against a death sentence. In Skipper v. South Carolina (1986), the Supreme Court held that, ‘Consideration of a defendant’s past conduct as indicative of his probable future behavior is an inevitable and not undesirable element of criminal sentencing … . The Court has therefore held that evidence that a defendant would, in the future pose a danger to the community if he were not executed may be treated as establishing an “aggravating factor” for purposes of capital sentencing. Likewise, evidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating.’

EVALUATION Although the Supreme Court found no legal objection to psychiatrists making diagnoses from hypotheticals with inadequate information, rejecting research data and the current diagnostic criteria, and predicting long-term dangerousness with absolute certainty, such behavior has resulted in sanctions from the American Psychiatric Association and should be scrupulously avoided by ethical forensic psychiatrists. It is incumbent upon forensic professionals to be familiar not only with the relevant law but also with the research data and ethical guidelines of their professional organizations. Under the Supreme Court’s decision in Ake v. Oklahoma (1985), psychiatrists may be called on to serve as consultants to defense attorneys as well as expert evaluators. Given the case law on ineffective assistance of counsel, it would behoove such consulting experts in capital cases to be alert to the possible application of a defendant’s mental impairment to a capital sentencing hearing. Given the reluctance of many psychiatrists to become involved in death penalty cases, particularly for the prosecution, district attorneys in some states have had difficulty finding experts to testify for them in capital sentencing hearings. In Colorado, prosecutors were having such difficulty in finding anyone to testify for them in capital sentencing hearings that they had a law passed that requires a mental health professional who performs any pre-trial evaluation in a capital case must also perform an evaluation for capital sentencing. [C.R.S. 16-8-106(6)(b) (1995): ‘With respect to offenses committed on or after July 1, 1995, the report of examination shall include, but is not limited to, the items described in paragraphs (a) to (c) of subsection (5) of this section [name of examiner, content of examination, and diagnosis and prognosis of defendant’s condition]; and (b) Separate opinions as to whether the defendant was insane, is incompetent to proceed, or is ineligible for release, as these terms are defined in this article, and, in any class 1 felony case [potentially carrying the death penalty], an opinion as to how the mental disease or defect or the condition of mind caused by mental disease or defect affects any mitigating factor’]. Preliminary data indicate that not only has the new law not caused psychiatrists who were previously not willing to perform sentencing evaluations to be willing to perform them; but a number who were previously willing to do pre-trial evaluations have stopped doing them in objection to the requirement to do sentencing evaluations (Miller 2001).

FORCED TESTIMONY BY EXPERT WITNESSES IN CRIMINAL CASES There has been a significant change in the law since the Maine Supreme Court in 1876 characterized the testimony

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of experts as ‘the vain babblings and oppositions of science falsely so called’ (State v. Watson 1876). Although courts are still not entirely comfortable with experts, they have come to recognize their necessity in many cases involving complex issues: ‘One of those realities [of litigation] is that attorneys must often rely on the assistance of [expert consultation] in preparation for trial’ (United States v. Nobles 1975). As a result of the law’s increasing reliance on experts (many legal cases cannot be resolved without expert participation), courts and commentators have looked at the question of whether experts may be compelled to give testimony, just as lay witnesses are. Shuman (1983) examines the general authority of courts to subpoena physicians who have not been retained by attorneys in a particular case; he recognizes that requiring them to spend time in court takes them away from their primary function of healing the sick, but notes that courts need to have access to knowledge that is sometimes possessed by only a few experts in a field, either because of their special expertise or because of their knowledge of a particular case. Arguments against compelling experts to testify include the Fifth Amendment prohibition against the taking of property, but Shuman concludes that it does not prevent compelled testimony, because the property (i.e., the expert’s knowledge) and experience are not diminished by the taking, and because the government is not prohibited from taking property by the Fifth Amendment, so long as it properly compensates the owner. He concludes that physicians’ real resistance in many cases is the fact that the government is unwilling or unable to compensate them at their preferred rates. Courts have divided on whether such experts may be compelled to testify. State courts in Indiana (Buchman v. State 1877), Pennsylvania (Pennsylvania Co. v. Philadelphia 1918), and New Jersey (Staunton v. Rushmore 1934) have held that the state cannot compel experts to testify. A New York court (People ex rel. Kraushaar Bros. & Co. v. Thorpe 1947) held that experts may be compelled to testify to facts, as would a lay witness, but not to provide opinions. Others have permitted courts to compel experts to testify to opinions already formed, but not to conduct new investigations or analyses (Carter-Wallace, Inc. v. Otte 1972). One appellate court not only required an expert to testify but also specified that the court was obligated to compensate him at the same rate as for lay witnesses (Dixon v. People 1897). More directly relevant to forensic psychiatrists is the question of whether an expert who has been retained by the defense attorney in a criminal case, but who is not called to testify by the defense, may be compelled to testify for the prosecution. With the increase in discovery by the defense in criminal cases, prosecutors have called for equal access to defense information (Beckler, Robinson, and Morphew 1990). The Federal Rule of Criminal Procedure (undated) already provide for more extensive discovery

than is provided in many state courts, but they do not explicitly require discovery of non-testifying witnesses. Imwinkelreid (1990) discusses attorney–client privilege and the work-product rule as possible sources for barring prosecution discovery of defense witnesses. He argues that attorney–client privilege attaches only within certain relationships, and only to communications within those relationships. Privilege extends to communications between an attorney and his or her agent or representative. Secretaries and interpreters are clearly such agents; and Imwinkelreid argues that expert consultants should be included as well, and direct communications between client and expert should be privileged. Imwinkelreid acknowledges that the expert’s ultimate opinion may be based in part on communications from the client, and thus by itself may be privileged, but he argues that other sources of data should not be privileged. Unlike an interpreter, an expert creates new knowledge, which should not be entirely privileged. In addition, the courts should not permit the defense to ‘quarantine’ experts merely by consulting them first. Imwinkelreid then goes on to suggest that protection of non-testifying experts’ opinions under the work-product rule might be more appropriate than under attorney– client privilege. The rule was designed to stimulate the acquisition of information for preparation of a case, by granting a qualified privilege for such information. The prosecution might still be able, however, to obtain access to expert opinions and data through arguing a special need exception to the work-product rule. Under the workproduct rule, Imwinkelreid argues that prosecutors could obtain all third-party information used by the psychiatrist, as well as diagnostic conclusions. There are several arguments against prosecution access under the workproduct rule: 1 The difficulty of separating knowledge based on client communication from other sources. 2 The fact that pre-trial discovery may provide the prosecution with leads to develop their own evidence. 3 Compelled testimony from a defense witness would be prejudicial, because a jury might accord it too much weight. Imwinkelreid counters these objections by arguing that one should be able to separate the client communication parts of a report or opinion from the other sources of information; in cases in which the separation cannot be accomplished, the expert could provide a summary that eliminates all client communications. He concedes that discovery may provide leads to the prosecution, but sees no problem with that. The problem of prejudice could be resolved by barring references to the fact that the expert was first consulted by the defense. Friedenthal (1962) also argues in favor of discovery and is cited by Imwinkelreid, but his article is chiefly concerned with civil cases involving corporate clients and does not deal with the issues raised by non-testifying

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defense witnesses in criminal trials, where the law has traditionally provided more protection for defendants than for the prosecution. In an amicus brief before the Supreme Court, the American Psychiatric Association (APA) and the American Academy of Psychiatry and the Law (AAPL) argued forcefully against discovery (APA and AAPL 1985), pointing out that if the consultative function of psychiatric experts established in Ake v. Oklahoma (1985) is to have any meaning, the results of those evaluations must be privileged; the defense attorney must be able to research his or her case with confidentiality. They further argued that the testimony should have been barred under both the Due Process Clause and Fifth Amendment to the Constitution. Although the issue did not arise in the case, they also contended that a non-testifying expert’s opinions should not be discoverable, even if the defendant does assert a mental defense. Under Ake v. Oklahoma, the consultative psychiatrist’s role goes beyond evaluation to advising the defense on trial strategy and tactics, which clearly should not be discoverable by the prosecution even if the expert testifies. They also argued that if the due process argument were not accepted by the Court, then under Estelle v. Smith (1981), the coerced testimony should not have been allowed because the psychiatrist did not warn the defendant of the non-confidential nature of the examination. They pointed out that when the defense does assert a psychiatric defense, the state has ample opportunity to secure its own evaluations, to penalize defendants who refuse to cooperate with prosecution experts, and to cross-examine experts. The amicus brief addressed arguments in favor of discoverability, which include: 1 By the time the state is aware that a psychiatric defense is to be entered, it will be too far away from the crime for an adequate evaluation. 2 Previous examinations by defense psychiatrists will impair the validity of subsequent state examinations. 3 Since the state is empowered to have its own expert examine the defendant once a psychiatric defense is entered, there is no point in barring testimony from defense psychiatrists. APA and AAPL responded to these objections by pointing out that the time and rehearsal factors could be dealt with by requiring defense disclosure of its intent to seek psychiatric examination. Given the dual role of the psychiatrist under Ake, prudent defense counsel may well want to retain two psychiatrists, one to testify and one to consult; the latter may well be someone who can disagree with the defense contention and point out weaknesses. If discovery is permitted, it will force attorneys to seek out only experts likely to agree with the defense position. The American Bar Association (ABA) has also arrived at the same position (ABA 1986). Courts have divided over this issue, although the majority have held against discovery, including state courts in

Maine (State v. Watson 1876), the District of Columbia (Taylor v. United States 1955), New Jersey (State v. Kociolek 1957; State v. Melvins 1978), Michigan (People v. Hilliker 1971), California (People v. Lines 1975), Connecticut (Connecticut v. Toste 1979), Maryland (State v. Pratt 1979), Alaska (Houston v. State 1979), Texas (Burney v. State 1982), and Colorado (Miller v. District Court 1987). In the last case, the Colorado Supreme Court held that, ‘A psychiatrist retained by defense counsel to assist in the preparation of the defense is an agent of defense counsel for purposes of the attorney-client privilege.’ The court also held that the defendant did not waive the privilege by pleading insanity. The federal appeals court for the Third Circuit reached a similar conclusion (United States v. Alvarez 1975). The Washington Supreme Court ruled that a non-testifying expert cannot be called by the prosecution unless the defense raises an insanity defense (State v. Bonds 1982). A state appeals court in Florida also held against discovery, but based its decision on the workproduct rule rather than attorney–client privilege (Pouncy v. State 1977). Several courts have come to the opposite conclusion. State courts in Virginia (Gibson v. Commonwealth 1976) and Missouri (State v. Carter 1982) and Federal Appeals Courts for the Sixth Circuit (Noggle v. Marshall 1983) and Ninth Circuit (United States v. Talley 1986) have permitted discovery. A state court in New York permitted discovery; the court held that: ‘A defendant who seeks to introduce psychiatric testimony in support of his insanity plea may be required to disclose prior to trial the underlying basis of his alleged affliction to a prosecution psychiatrist. Hence, where, as here, a defendant reveals to the prosecution the very facts which would be secreted by the exercise of the privilege, reason does not compel the exclusion of expert testimony based on such facts … . It follows that no harm accrues to the defense from seeking pre-trial psychiatric advice where an insanity plea is actually entered, for in such circumstances, the underlying factual basis will be revealed to the prosecution psychiatrist.’ (People v. Edney 1976). Petition for appeal to the federal courts was dismissed (United States ex rel. Edney v. Smith 1976); the court held that by pleading insanity, Edney had waived any privilege. The Minnesota Supreme Court initially barred discovery (State v. Dodis 1982), but reversed itself five years later (State v. Schneider 1987). The Supreme Court has had several opportunities to address the issue, but has chosen not to do so. It has let stand decisions that bar discovery (United States ex rel. Edney v. Smith 1976) and those that permit it (Gibson v. Commonwealth 1975; State v. Carter 1983; Noggle v. Marshall 1983; United States v. Talley 1986) by denying certiorari. In one case (Smith v. Murray 1986) that it did accept, the majority avoided ruling on the substantive issue by holding that the defendant’s procedural default prevented the court from reviewing the case, even though it conceded that the issue itself had merit. And in the most

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recent case (Smith v. Sielaff 1986), it remanded without a decision. Because of the current uncertainty of the discoverability of expert opinions and data, evaluators retained by the defense should make sure to inform themselves of the governing laws and court decisions in their jurisdictions before evaluating defendants, so that they may provide accurate information about the possible consequences of cooperating with the evaluation.

FORENSIC RELEASE DECISIONS Decisions concerning the release of forensic patients generally center around the prediction and treatment of dangerousness. The treatment of criminally committed patients differs significantly from that of civilly committed patients, whom treating clinicians generally have the authority (and sometimes the obligation) to release when they no longer satisfy the jurisdiction’s commitment criteria. In most states, criminal courts retain jurisdiction over criminally committed patients and make all the release decisions, thus apparently absolving clinicians of that authority (and the attendant responsibility and liability). There is an increasing number of exceptions to this principle, however (Miller et al. 1988). As the social climate has changed from the emphasis on individual civil rights of the 1960s and early 1970s to the prevention of harm and the protection of victims in the 1980s, expectations that clinicians should be able to control their patients have risen significantly. The only way the law has to compensate victims (and thereby to encourage practitioners to conform to evolving social norms) is to provide money damages. The battles are therefore increasingly fought in the civil courts under tort law (Lieberman 1981). The most obvious expression of this trend is the obligation of outpatient therapists to prevent their patients from harming third parties, which was first articulated by the California Supreme Court in Tarasoff v. Regents of the University of California (1976) and its progeny (Felthous 1989). Although this obligation may apply to forensic patients in the community (Cain v. Rijken 1986), it is more likely to apply to those committed to forensic inpatient facilities, where the degree of control is far greater. Although courts or other governmental bodies make most of the release decision for such patients, they must rely on clinicians to provide them with the necessary information to do so reliably. And since judges possess immunity for their decisions, compensation for victims must come from other sources, including treating clinicians and even parole boards (Grimm v. Arizona Board of Pardons and Paroles 1977). While the recent case law on the liability for release decisions of clinicians treating forensic patients is sparse, it can be expected to grow in the future. Clinicians have been held liable for a murder committed by an escaped sex offender (Maroon v. Indiana

1980), and even for failing to go beyond the court’s own request for evaluation of competency to stand trial to predict behavior if released (Hicks v. United States 1975). There have been other changes in policies that have insulated forensic clinicians from liability for release decisions. Virtually all long-term criminal commitments are to state forensic facilities, where – until recently – clinicians had been protected by governmental immunity. Although some courts have held that state employees are still protected by either governmental (Canon v. Thumudo 1988) or judicial (Seible v. Kemble 1981) immunity, most states have removed those protections where they had applied to release decisions (Felthous 1987). Even in states such as Wisconsin, which provides for release evaluations by clinicians independent of the patient’s treatment team (Miller 1987), treating clinicians may be held to have an obligation to provide releasing authorities with information relevant to release decisions (Miller et al. 1988). Although the Supreme Court had appeared in 1966 to require that criminal commitments meet the same requirements as civil commitment (Baxstrom v. Herold 1966), it held in 1983 that persons who have committed crimes are distinguishable from civilly committed persons, may therefore be committed based solely on an insanity finding, and may have their commitments extended beyond the potential criminal sentences for the crimes charged without satisfying the stricter civil commitment criteria (Jones v. United States 1983). As a result of the national trend toward longer incarcerations, for forensic patients as well as for criminals, even some of those jurisdictions that previously provided for a civil commitment process for defendants found not guilty by reason of insanity under the influence of the civil rights movement in the 1970s have reconsidered, and have made it more difficult for forensic patients to be released, by broadening the criteria for release and by restoring criminal court jurisdiction over release decisions (Halpern, Rachlin, and Portnow 1981; Miller, Ionescu-Pioggia, and Fiddleman 1983). In addition, the burden of proof has been effectively shifted for forensic patients; although many statutes require the state to prove continuing dangerousness to extend commitment, judges in practice require patients to prove that they are not dangerous in order to be released. In addition to predictions of dangerousness, clinicians may well be expected to provide effective treatment before forensic patients are released. In a Colorado case (Perreira v. State 1986), a treating psychiatrist was found liable for releasing a patient who subsequently injured a third person; in upholding the judgment, the state Supreme Court noted that the psychiatrist had not petitioned the court for an order authorizing the involuntary administration of psychotropic medication, and released the patient without a treatment that was considered medically indicated by the treating psychiatrist. Because of the development of specialized treatments for aggressive patients (Silver and Yudofsky 1987), the provision of

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such treatment may in the future become expected of psychiatrists working with forensic patients. Some states (Wisconsin Statutes 1989) also place the responsibility for conducting formal release hearings for forensic patients on clinicians, which places further responsibility (and potential liability) on them (Miller 1988). Clinicians called on to make release decisions should be familiar with the criteria for release in their jurisdictions. Because liability is more likely to accrue in the release of forensic than of civil patients (Miller et al. 1988), evaluations should rely on as much corroborating information as possible, in addition to direct observations and evaluations of the patient in question. Documentation of the reasons for the release, and alternatives considered, should be thorough. Clinicians should also stay abreast of the research literature on the prediction of future dangerousness (Monahan 1981). In addition, forensic clinicians should be familiar with the development of specialized techniques for the treatment of aggressive patients, and should make sure to document consideration of such treatment alternatives if they are not employed.

REFERENCES Ake v. Oklahoma, 105 S. Ct. 1087 (1985). American Bar Association. 1986: Criminal Justice Mental Health Standards, Sec. 7-3.3(b)(A) & (B). American Psychiatric Association. 1980: Diagnostic and Statistical Manual of Mental Disorders, 3rd edition. Washington, DC: American Psychiatric Press. American Psychiatric Association. 1998: Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry. Washington, DC: American Psychiatric Press. American Psychiatric Association and American Academy of Psychiatry and the Law. 1985. Amicus curiae brief to Smith v. Sielaff, No. 85-5487 (S. Ct). American Psychological Association. 1990. Ethical principles of psychologists. American Psychologist 45, 390–5. Armstrong v. Dugger, 833 F.2d 1430 (11th Cir. 1987). Barefoot v. Estelle, 463 U.S. 878 (1983). Baxstrom v. Herold, 383 U.S. 107 (1966). Beckler, R.W., Robinson, F., Morphew, W.S. 1990. Protecting defense evidence from prosecutorial discovery. Washington University Law Quarterly 68, 71–86. Buchman v. State, 59 Ind. 1 (1877). Bundy v. Dugger, 850 F.2d 1402 (11th Cir. 1988). Burger v. Kemp, 483 U.S. 776 (11th Cir. 1987). Burney v. State, 642 S.W.2d 765 (Tex. Crim. App. 1982). Cain v. Rijken, 717 P.2d 173 (Or. 1986). California v. Brown, 479 U.S. 538,545 (1987). Canon v. Thumudo, 422 N.W.2d 688 (Mich. 1988). Carter-Wallace, Inc. v. Otte, 474 F.2d 529, 536 (2d Cir. 1972); cert. denied, 412 U.S. 929 (1973). Clanton v. Bair, 826 F.2d 1354 (4th Cir. 1987). Connecticut v. Toste, 424 A.2d 421 (1979).

Deutscher v. Whitley, 884 F.2d 1152 (9th Cir. 1989). Dixon v. People, 48 N.E. 108 (Ill. 1897). Estelle v. Smith, 451 U.S. 454 (1981). Evans v. Lewis, 855 F.2d 631 (9th Cir. 1988). Federal Rule Criminal Procedure 16(c). Felthous, A.R. 1987. Liability of treaters for injuries to others: erosion of three immunities. Bulletin of the American Academy of Psychiatry and the Law 15, 115–25. Felthous, A.R. 1989: The Psychotherapist’s Duty to Warn or Protect. Springfield, IL: Charles C. Thomas. Friedenthal, J.H. 1962. Discovery and use of an adverse party’s expert information. Stanford Law Review 14, 455–88. Furman v. Georgia, 408 U.S. 715 (1972). Gibson v. Commonwealth, 219 S.E.2d 845 (1975); cert. denied, 425 U.S. 994 (1976). Gregg v. Georgia, 428 U.S. 153 (1976). Grimm v. Arizona Board of Pardons and Paroles, 564 P.2d 1227 (Ariz. 1977). Halpern, A.L., Rachlin, S., Portnow, S.L. 1981. New York’s Insanity Defense Reform Act of 1980: a forensic psychiatric perspective. Albany Law Review 45, 661–77. Hicks v. United States, 5 11 F.2d 407 (D.D.C. 1975). Houston v. State, 602 P.2d 784 (Alaska, 1979). Imwinkelreid, E.J. 1990. The applicability of the attorneyclient privilege to non-testifying experts: reestablishing the boundaries between the attorney-client privilege and the work product protection. Washington University Law Quarterly 68, 19–50. Jones v. United States, 103 S. Ct. 3043 (1983). Jurek v. Texas, 428 U.S. 262 (1976). Lieberman, J.K. 1981: The Litigious Society. New York: Basic Books. Maroon v. Indiana, 411 N.E.2d 404 (Ind. App. 1980). Mathis v. Zant, 704 F. Supp. 1062 (N.D. Ga. 1989). Middleton v. Dugger, 849 F.2d 491 (8th Cir. 1988). Miller, R.D. 1987. The treating psychiatrist as forensic evaluator II. release decisions. Journal of Forensic Sciences 32, 481–8. Miller, R.D. 1988. The Terry hearings to determine the release of offenders committed under Wisconsin’s Sex Crimes Law. Wisconsin Bar Bulletin 61, 17–19, 70–1. Miller, R.D. 2001. The D.A. made me do it – compulsory capital sentencing evaluations. Journal of Psychiatry and Law 29, 409–31. Miller, R.D., Ionescu-Pioggia, R.M., Fiddleman, P.B. 1983. Judicial oversight of release of patients committed after being found not competent to stand trial or not guilty by reason of insanity in violent crimes. Journal of Forensic Sciences 18, 39–45. Miller, R.D., Doren, D.N., Van Rybroek, G.J., et al. 1988. Emerging problems for staff associated with the release of potentially dangerous forensic patients. Bulletin of the American Academy of Psychiatry and the Law 16, 309–20. Miller v. District Court, 737 P.2d 834 (Colo. 1987).

Post-conviction dispositional evaluations 245 Monahan, J. 1981: The Clinical Prediction of Violent Behavior. Rockville, MD: Department of Health and Human Services, # ADM-81-921. Noggle v. Marshall, 706 F.2d 1408 (6th Cir. 1983), cert. denied, 465 U.S. 1010 (1983). Pennsylvania Co. v. Philadelphia, 105 A. 630 (Pa. 1918). People ex rel. Kraushaar Bros. & Co. v. Thorpe, 72 N.E.2d 165 (N.Y.1947). People v. Edney, 350 N.E.2d 400, 403 (N.Y. 1976). People v. Hilliker, 185 N.W.2d 831, 833 (Mich. App. 1971). People v. Lines, 531 P.2d 793, 802-803 (Cal. 1975). Perreira v. State, 738 P.2d 4 (Colo. App. 1986). Pouncy v. State, 353 So. 2d 640 (Fla. Dist. Ct. App. 1977). Profitt v. Florida, 428 U.S. 242 (1976). Roberts v. Louisiana, 431 U.S. 633, 637 (1977). Seible v. Kemble, 631 P.2d 173 (1981). Shuman, D.W. 1983. Testimonial compulsion: the involuntary medical expert witness. Journal of Legal Medicine 4, 419–46. Silver, J.M., Yudofsky, S.C. (eds). 1987: Treatment of aggressive disorders. Psychiatric Annals, Volume 17(6). Skipper v. South Carolina, 476 U.S. 1, 5 (1986). Smith v. Murray, 477 U.S. 527 (1986). Smith v. Sielaff, No. 85-5487 (S. Ct. 1986).

State v. Bonds, 653 P.2d 1024 (Wash. 1982). State v. Carter, 641 S.W.2d 54 (Mo. 1982), cert. denied, 461 U.S. 932 (1983). State v. Dodis, 314 N.W.2d 233 (Minn. 1982). State v. Kociolek, 129 A.2d 417 (N.J. 1957). State v. Melvins, 382 A.2d 925 (N.J. 1978). State v. Pratt, 399 A.2d 421 (Md. App. 1979). State v. Schneider, 402 N.W.2d 779 (Minn. 1987). State v. Watson, 65 Me. 74, 76 (1876). Staunton v. Rushmore, 169 A. 721 (N.J. 1934). Stone, A.A. 1984: Law, Psychiatry and Morality: Essays and Analysis. Washington, DC: American Psychiatric Press. Tarasoff v. Regents of the University of California, 551 P.2d 334 (Cal. 1976). Taylor v. United States, 222 F.2d 398 (D.C. App. 1955). United States ex rel. Edney v. Smith, 425 F. Supp. 1038 (E.D.N.Y. 1976); aff’d, 556 F.2d 556 (2d Cir); cert. denied, 431 U.S. 958 (1977). United States v. Alvarez, 519 F.2d 1036, 1045-47 (3rd Cir. 1975). United States v. Nobles, 422 U.S. 225, 238 (1975). United States v. Talley, 790 F.2d 1468 (9th Cir.), cert. denied, 479 U.S. 866 (1986). Wisconsin Statutes Sec. 975.09 (1989).

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28 Specific issues in psychiatric malpractice Robert M. Wettstein

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29 Psychiatric disability determinations and personal injury litigation Jeffrey L. Metzner and James B. Buck

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30 Americans with Disabilities Act evaluations A. Jocelyn Ritchie and Howard V. Zonana

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31 Sexual harassment Liza H. Gold 32 Trauma-induced psychiatric disorders and civil law Stuart B. Kleinman and Susan B. Egan

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33 Neuropsychiatric assessments in toxic exposure litigation Daniel A. Martell

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34 Civil competencies J. Richard Ciccone

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35 Death, dying, and the law Norman L. Cantor

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28 Specific issues in psychiatric malpractice ROBERT M. WETTSTEIN

In this chapter, several of the specific liability issues that concern mental health professionals – especially psychiatrists – will be discussed and reviewed. As space does not permit all of the possible areas of psychiatric negligence that are not covered elsewhere in this volume to be covered, the present review is highly selective. The chapter will focus on negligence liability rather than liability for breach of contract, civil rights, intentional torts, or fraud which can also be brought against the psychiatrist, whether based upon the same conduct or otherwise. The present topics include the law of negligence, psychopharmacology, seclusion and restraints, suicide and attempted suicide, supervision of other healthcare professionals, and disclosure of medical error. The chapter begins with an overview of error in medicine.

ERROR IN MEDICINE Error in medicine has attracted increasing attention from a variety of parties. Physicians and their professional organizations, injured patients, plaintiff and defense attorneys, liability insurance companies, government agencies, researchers, public policy experts, and public health experts each provide an important contribution to this increasingly complex area of public life. Terminology in this field is complex and controversial, with the use of different definitions of error in medicine. Terms such as error, accident, inadvertent injury, complication, medical injury, therapeutic misadventure, iatrogenic injury, adverse drug event, negligent adverse event are used in different accounts or studies of this issue. Errors in medicine are not necessarily equivalent to negligence, and may or may not be necessarily preventable, or harmful to the patient. The epidemiology of medical error is a growing area of interest. No one knows the true incidence of medical errors in general medical populations, because studies have been conducted in a few selected patient groups

such as surgical or intensive care hospitalized patients. Research methods in this area include retrospective record review (Thomas et al. 2000; Hayward and Hofer 2001), computerized detection, physician self-reporting of incidents (O’Neil et al. 1993), or prospective observational studies (Andrews et al. 1997). Available empirical research indicates that medical negligence is not rare, occurring in as many as 4 per cent of hospital admissions, resulting in 44 000 to 98 000 deaths every year in American hospitals (Kohn et al. 2000), in addition to costly necessary additional medical care (Andrews et al. 1997). Operative complications and adverse drug effects are among the most common types of adverse events (Thomas et al. 2000). Despite the considerable incidence of medical error, however, few injured patients actually file a legal complaint (Localio et al. 1991). Fewer than half of patient-plaintiffs receive any payment, and only about 10 per cent of medical malpractice cases proceed to trial (Taragin, Willett, and Wilczek 1992). At trial, about one-fourth of medical malpractice plaintiffs prevail, compared with one-half of plaintiffs in other tort cases, nationwide (Litras et al. 2000). Thus, while many malpractice cases are brought by patients who have not been treated negligently, medical malpractice litigation infrequently compensates patients who have been injured by medical negligence (Localio et al. 1991). In psychiatry, the incidence of malpractice litigation against psychiatrists has ranged from 4 to 8 per cent annually, in the 1980s and 1990s. A public health approach to medical error has been recommended, given contemporary advances in knowledge of human factors and injury prevention (Leape 1994; Kohn et al. 2000). This approach includes such provisions as mandatory reporting of serious patient injuries or deaths due to medical error which is not presently required in the United States. Effort is focused on the systematic identification and prevention of error through the proper design of the medical workplace, recognizing that injuries are often a result of the failure of a complex, interdependent system rather than an individual.

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LAW OF NEGLIGENCE Medical malpractice litigation has been an important legal and medical issue in the United States only in the last 150 years (Mohr 2000). Malpractice litigation has been driven by medical factors such as the promulgation of uniform accepted clinical standards of care, in a social climate of professionalism. Legal factors such as the availability of professional liability insurance, presence of contingent plaintiff attorney fees, use of citizen juries, and pleading of malpractice as a tort rather than a contract also contributed to sustaining malpractice litigation (Mohr 2000). Torts, the law of civil injuries, is defined by state or federal statute, and often case law. By law, a physician has a duty to the patient to use that degree of skill and care which is expected of a reasonably competent physician in the same class to which he or she belongs, acting in the same or similar circumstances as the patient. A patientplaintiff bringing a civil action in tort against the physician has the burden to prove that the physician has a duty to provide appropriate evaluation and treatment for the patient, and that the physician failed to do so. Medical malpractice litigation is therefore fault-based, and deviations in the standard of appropriate care occur by errors of omission or commission. The plaintiff must further prove that the defendant physician’s failure to provide appropriate care and treatment to the patient was the proximate cause of the physical or emotional harm to the patient. Harm to the patient which occurs through causes other than the defendant’s negligence (e.g., the natural course of the underlying disease) is not the responsibility of the defendant. Similarly, liability can be avoided if the defendant made an error in judgment in the assessment and care of the patient-plaintiff, despite the adverse outcome of the case. Standards of medical care are predominantly national in origin, but some jurisdictions apply a local or regional standard of care. The standard of care is not that of the most highly skilled or even the average physician. In the litigation, the plaintiff and defendant attempt to establish the standard of care, and its breach, through the use of authoritative professional literature, practice parameters and guidelines, applicable government regulation, hospital and clinic policy, accreditation standards, and expert witness testimony (Ayers 1994; Hyams et al. 1995; Shuman 1997). However, even practice parameters or guidelines can widely differ in a particular medical specialty area, leading to uncertainty regarding the standard of care (Morreim 1997). Evidence-based medicine has been introduced as a principle to apply empirical knowledge to the practice of medicine and help identify what is appropriate care (Guyatt et al. 2000). Alternate schools of thought, through a reputable minority of practitioners, can also set the applicable standard of care in a given situation. Relevant evidence must pertain to the standard of

care at the time of the alleged negligence, and not at a subsequent time when medical advances may have occurred. Breach of the standard of care is determined by the finder of fact, on a case-by-case basis.

PSYCHOPHARMACOLOGY Prescription of medication constitutes a large proportion of medical error and iatrogenic patient injuries in the United States (Bates et al. 1995; Classen et al. 1997). In non-psychiatric hospitals, errors in medication prescribing, and adverse medication events, are relatively common and often preventable (Leape et al. 1995; Lesar, Briceland, and Stein 1997). Such errors by prescribing physicians, nurses, and pharmacists occur due to inadequate information about the patient, lack of knowledge of the medication, inadequate monitoring, name confusion, faulty interaction with other medical services, incorrect dosage calculation, and packaging mix-ups, among others. Attempts to improve the systems by which medications are ordered, dispensed, and administered have been recommended to reduce adverse drug events (Bates et al. 1999). Computerized prescribing of medication, based upon databases including the patient’s drug and illness history, formulary guideline reference, and scientific drug information enhances prescription efficiency and accuracy (Schiff and Rucker 1998). In particular, prescribing psychotropic medication increases the psychiatrist’s exposure to professional liability claims (Brackins 1985; Wettstein 1985; Dukes and Swartz 1988; Slovenko 2000). It accounts for some of the excess of professional liability claims that psychiatrists face relative to other mental health professionals. For psychiatrists insured with the American Psychiatric Association’s (APA) professional liability insurance program, improper medication was the most common allegation from 1973 to 1984 (Slawson 1989). In addition to risking professional liability civil suits, psychiatrists – like all physicians – may be sanctioned by state and federal prosecutors in criminal actions, or state and federal licensing agencies (e.g., state medical board, U.S. Drug Enforcement Agency). With regard to medications, these actions usually pertain to the physician who inappropriately administers, prescribes, dispenses, or fails to keep proper records for controlled medications such as opioids, benzodiazepines, or amphetamines. Information obtained from one state’s medical board, for example, revealed that inappropriate prescribing, primarily benzodiazepines and opiates, constituted the majority of physician investigations there (Kofoed et al. 1990). Such overprescriptions were motivated by physician beneficence rather than malevolence. It is also important to note that pharmaceutical manufacturers are often sued because of the manufacture, distribution, and marketing of psychotropic medications.

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In general, the law of products liability requires that a manufacturer directly warn the ultimate consumers of the known risks of the use of the product. For most classes of prescription medication, however, the pharmaceutical manufacturers are governed by the ‘learned intermediary rule’ which states that the manufacturer has a duty to inform the prescribing physician, but not the patient, of important information (e.g., indications, contraindications, dosage, administration, warnings, precautions) about the medication (Brackins 1985). In other words, the learned intermediary doctrine relieves manufacturers of tort liability when adequate warning has been provided to the prescribing physician. In addition, while professional (negligence) liability principles apply to prescribing physicians, there is some uncertainty whether negligence or strict liability principles apply to pharmaceutical manufacturers (Brackins 1985; Ausness 1989–90). Nevertheless, plaintiffs, searching for the ‘deep pocket’ of liability, often sue the manufacturer as well as the prescribing physician, healthcare facility, and pharmacist. Psychiatrists risk negligence liability in several general areas when they prescribe psychotropic medication (Wettstein 1983; Wettstein 1988). These include: 1 Failure to take an adequate history prior to prescription. 2 Failure to obtain an adequate physical examination. 3 Failure to obtain an adequate laboratory examination. 4 Lack of indication for a prescription, and off-label use. 5 Contraindication for a prescription. 6 Prescription of an improper dosage. 7 Prescription for an improper duration. 8 Failure to recognize, monitor, and treat side effects. 9 Failure to abate drug–drug or food–drug reactions and interactions. 10 Failure to consult with other physicians. 11 Failure to properly diagnose and treat the patient’s disorder. 12 Failure to obtain informed consent to treatment. 13 Improper record-keeping. The following discussion will present case examples in some of these topic areas. Typically, the plaintiff will allege several areas of negligence in the litigation against each defendant rather than a single cause of action. Litigation has been brought against physicians for prescribing all classes of psychotropic medications, so the following is a selective sample.

Failure to take an adequate history In Leal v. Simon (1989), an institutionalized mentally retarded man had been stabilized on haloperidol (4 mg) for self-abusive behavior. He was transferred to a community facility and began treatment with the defendant psychiatrist. The patient was stable for over a year, and the psychiatrist changed his medication to 2 mg only as

needed. The psychiatrist indicated that the medication withdrawal was necessitated by a state audit regarding medication use in the mentally retarded, as well as the risk of tardive dyskinesia (TD) which was not present. Within a month of the medication discontinuation, the patient deteriorated, requiring hospitalization and larger doses of haloperidol. He was returned to the state developmental center, developed contractures of his extremities, and became wheelchair-confined. The jury found that the psychiatrist was negligent in failing to review the patient’s history, failing to obtain the patient’s complete medical records from the transferring agency, and in reducing the medication so abruptly. Empirical data have been accumulating on the association between the use of psychotropic medication, particularly benzodiazepines, and automobile or other accidents (Barnas et al. 1992; Barbone et al. 1998; Thapa et al. 1998). Though such medication use may only be one of many risk factors for vehicular injuries, these cases have been litigated. In Watkins v. United States (1979), the prescribing physician was found negligent for prescribing a 50-day supply of Valium (diazepam) to a patient without taking an adequate psychiatric history or reviewing the patient’s psychiatric records, which led to a motor vehicle accident.

Lack of indication for a prescription A psychiatrist prescribed fifty 10 mg diazepam tablets for a man who, while driving his car the next day, collided head-on with a motorcycle. It was alleged that the patient was under the influence of beer and diazepam, which he had obtained for non-medical purposes, at the time of the accident. The plaintiff, who sustained serious injuries, also alleged that it was negligent to prescribe diazepam to a person who was likely to abuse drugs. A $410 000 outof-court settlement was reached with the psychiatrist and other parties (Munsell v. Lynk 1983).

Contraindication for a prescription Upon admission to a hospital, a male patient informed the staff that he was allergic to antihistamines because they caused urinary retention. He was nevertheless provided at discharge with hydroxyzine (100 mg, q.i.d.) and trifluoperazine. When urinary retention developed, the hydroxyzine was reduced and later discontinued, but complications developed including a prostatic infection, Foley catheter for four years, and eventual prostatic resection. Expert testimony indicated that the hydroxyzine prescription was negligent given the patient’s history, and that the hydroxyzine caused the bladder damage. A judgment for the plaintiff of $20 000 was awarded (Miller v. U.S. 1976). In Ferrara v. Berlex Laboratories, Inc. (1990), a psychiatrist treated a depressed patient with phenelzine [monoamine oxidase (MAO) inhibitor]. Another physician

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subsequently diagnosed chronic sinusitis and prescribed a decongestant with pseudoephedrine. The patient suffered a hypertensive crisis and a stroke, and was awarded a judgment against the second physician for his negligence. More generally, off-label use of approved psychotropic medications is common, and is a well-accepted form of medical practice, though with liability risk (Weiss et al. 2000). Off-label use consists of prescribing an already Food and Drug Administration (FDA)-approved medication, but for a medical condition not already approved, or prescribing for a different patient population, or in a different dosage, than approved. Off-label use of an approved medication is distinguishable from the use of a non-FDA-approved medication or substance. Off-label use is not per se a deviation from the standard of accepted psychiatric care. In some cases, failure to prescribe a medication for an off-label use could be considered a deviation from the standard of care. Several professional medical associations have adopted specific policies on the use of off-label medications, typically noting that such use is appropriate when based upon sound scientific evidence and medical opinion (Henry 1999). Case law generally has recognized the appropriateness of off-label prescribing (Kuntz 1998). Nevertheless, third-party reimbursement is sometimes not available for off-label medication prescriptions. The FDA Modernization Act (FDAMA) of 1997, with subsequent regulations, has articulated the rules by which pharmaceutical manufacturers are permitted to promote off-label drug sales to prescribing physicians and others (FDAMA 1997).

informed consent prior to the administration of major tranquilizers.’ The parents had not been informed of the risks attendant to the treatment program, and the trial court rejected the defendant’s argument that the parents had implicitly consented. The trial court awarded $385 165 for future medical expenses and $375 000 for past and future pain and suffering. This was subsequently upheld in the Iowa Court of Appeals (Clites v. Iowa 1982). A psychiatrist prescribed and administered monthly injections of fluphenazine decanoate for five years to a woman diagnosed with chronic paranoid schizophrenia (Accardo v. Cenac 1998). In earlier years, she had been treated by the defendant psychiatrist and another psychiatrist with haloperidol, thioridazine, and perphenazine. The defendant testified that he did not observe any signs or symptoms of TD during the five years of medication injections, which ended when he diagnosed her as having TD and tardive dystonia, and discontinued the antipsychotic medication. At trial, there was dispute over the frequency of injections, the onset of TD, and the information given to the patient and family by the psychiatrist about the side effects of treatment. Documentation of the five years of pharmacotherapy consisted of three pages of handwritten notes. During trial, the defendant stipulated to his negligence in causing the patient’s TD, and the jury determined damages, later modified on appeal, including $500 000 for her future medical care.

Failure to recognize, monitor, and treat side effects

In Hedin v. U.S. (1985), the plaintiff was hospitalized for treatment of alcohol abuse, and treated with thioridazine and then chlorpromazine as an outpatient. He continued to take chlorpromazine (600 mg) daily for nearly four years before his physicians detected his TD and withdrew the medication. Though the patient had been aware of the movements involving the face, mouth, trunk, and extremities, he was unaware they were due to the medication. The defendant acknowledged having prescribed excessive amounts of medication over a prolonged period of time without proper supervision. Damages of nearly $2.2 million were awarded because the plaintiff had become functionally disabled from the dyskinesia. A patient with chronic schizophrenia was treated for three years with 500 mg daily of loxapine, which was double the manufacturer’s recommended maximum dose (Edwards v. United States 1990). Treatment with lower doses resulted in exacerbation of delusional thinking. He was also seen for counseling on an outpatient basis. After two brief hospitalizations for anxiety symptoms, the patient was found dead at home; he had died of sudden heart failure. In the subsequent lawsuit, the trial court ruled that the antipsychotic medication did not cause the patient’s heart failure and death. The court rejected the plaintiff ’s allegations that the defendant had failed to

An inpatient at a teaching hospital, treated in a team approach, was given four different neuroleptics, as well as diphenhydramine and anticholinergics, for what was thought to be a schizophreniform disorder. In an anticholinergic crisis, she suffered a cardiopulmonary arrest after five weeks’ hospitalization, with a rectal temperature of 108°F (42°C). The patient survived with severe brain damage and was awarded the statutory maximum of $500 000 (Sibley v. Board of Supervisors 1983, 1985). In Clites v. Iowa (1980), the parents of a mentally retarded male at a state facility sued the state for negligence and failure to obtain informed consent. Several physicians had treated the patient with antipsychotic medication since age 18 for ‘aggressive behavior.’ Medication continued for five years before TD of the face and extremities was diagnosed. The trial court ruled that medication had been inappropriately prescribed, and the patient was improperly monitored over the years. The trial court also ruled that the patient’s parents, his legal guardians, ‘were never informed of the potential side effects of the use, and prolonged use, of major tranquilizers, nor was consent to their use obtained,’ thus violating the ‘standard that requires some form of

Prescription of an improper dose and duration

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properly monitor the patient, should not have prescribed refills for six months at a time, and should have attempted to reduce his medication.

Failure to diagnose and treat with medication In contrast to the above case illustrations of overtreatment with medication, an area of growing concern is that of undertreatment. New psychotropic medications are continually being developed and released for disorders which were previously untreatable with medication, and new uses are being found for existing medications or combinations of medications. Cost-containment strategies in mental healthcare emphasize the need to provide effective treatment at the lowest expense, and somatic treatments can often fill this role. Slawson (1991), citing claims experience with the APA insurance program, reported that patient complaints about the ineffectiveness or inappropriateness of medication far exceeded those about medication side effects. In cases of delayed or no improvement in the patient’s symptoms, liability can include the failure to obtain consultation from a clinician experienced with psychotropic medication and electroconvulsive therapy. A different but related liability concern is the alleged failure to use psychotropic medication; a failure to diagnose a medication-treatable condition may also be alleged. Case law here has apparently been infrequent so far, but one much-publicized case was settled for an undisclosed amount after an arbitration panel awarded the plaintiff $250 000, without establishing a legal precedent (Osheroff v. Chestnut Lodge 1985). A similar allegation of negligent failure to treat with psychotropic medication was brought by a patient who was treated for dysthymic disorder with psychoanalysis for eight years after he had refused treatment with medication (Cobo v. Raba 1998). At trial, the jury found for the plaintiff who was a physician specializing in infectious disease. On appeal, however, the North Carolina Supreme Court reversed and remanded, ruling that the defendant psychiatrist was entitled to a jury instruction on contributory negligence by the plaintiff, a legal doctrine in the state which permits a defendant to prove that the plaintiff ’s injuries were proximately caused by his own negligence. Generally, the ‘respected minority rule’ governs liability for decision making about a particular choice of treatment in medicine; thus, a treatment practice is legally defensible so long as a respected minority of practitioners use it for a particular condition.

Standard of care in psychopharmacology litigation As in all medical negligence litigation, the plaintiff must establish the relevant standard of care in the case at bar

and prove that the defendant deviated from that standard. For several reasons, standards of care in psychopharmacology are often more elusive than they may seem. New psychotropic medications of all types are continually being introduced into the marketplace; for example, atypical antipsychotic medications, with their greater efficacy and lower incidence of movement disorders than conventional antipsychotic medications, raise the possibility of a standard of care which demands their use in some categories of patients and disorders (Chiles et al. 1999; Slovenko 2000; Rabinowitz et al. 2001). The practice of psychopharmacology also has its fads – avoiding polypharmacy in the care of patients in the 1970s and 1980s, but encouraging it in subsequent years. Finally, decisions to treat patients with pharmacotherapy, especially in high-risk clinical situations such as pregnancy, are typically complex, risk–benefit processes dependent upon factors related to the physician, patient, and family members (Wisner et al. 2000). In adverse drug reaction liability cases, the plaintiff may introduce the manufacturer’s labeling (e.g., medication package inserts and the Physicians’ Desk Reference) as evidence of the defendant’s departure from the standard of care. In some jurisdictions, such evidence is considered prima facie evidence of negligence, though expert medical testimony will still be necessary to establish that the patient’s injury resulted from the negligence (Mulder v. Parke Davis & Co. 1970; Haught v. Maceluch 1982). Other jurisdictions, however, have rejected the manufacturer’s labeling as conclusive of negligence, and require expert testimony as well as the relevant medical literature to establish the standard of care (Haven v. Randolph 1972). Thus, compliance with the manufacturer’s published recommendations will not invariably negate liability, and deviation will not necessarily impose liability (Yacura 1984).

SECLUSION AND RESTRAINTS Seclusion and restraints in mental health or nursing home settings are highly regulated practices, usually by state and federal regulations, state statutes, state and federal constitutional provisions, and standards set by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO). Federal regulations were adopted by the Health Care Financing Administration in 1999 for Medicare funded hospitals (HCFA 1999), and a federal statute was enacted in 2000 applicable to public or private general hospitals, nursing facilities, and residential treatment centers for children and youth (Public Law 106-310). Applicable law may include detailed rules about the definitions of seclusion and restraint, indications (e.g., patient age, diagnosis, symptoms), exceptions (e.g., time outs in a non-locked setting to calm a patient), contraindications, role of physician and nursing staff, monitoring practice,

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need for consultation or review, need for patient consent, documentation of pertinent findings and decision making, and reporting of injuries or deaths resulting from the use of seclusion and restraints. Such legal rules may be burdensome to physicians and facilities alike, but are promulgated to protect patients from the emotional and physical harms which can occur from their use (Fisher 1994; Appelbaum 1999). While the use of seclusion and restraints is not a frequent source of litigation for psychiatrists and hospitals, liability can occur (Johnson 1990; Coffin 1999). In Youngberg v. Romeo (1982), a committed, mentally retarded person’s constitutional right to be free from undue bodily restraint was recognized. Psychiatrists incur negligence liability for seclusion and restraints when overuse results in patient injury or death. The physicians in Hopper v. Callahan (1990), in which a female patient died in seclusion, were alleged to have failed to exercise professional judgment in ordering the seclusion and in failing to provide appropriate medical care. In another case, seclusion and restraints were found to have been used for punitive rather than therapeutic reasons (Clark v. Ohio Department of Mental Health 1989). In a case which considered the use of restraints more generically, a female patient suffered a fractured tibia when a 135-kg (300-lb) male attendant knocked her to the ground in preparation for an involuntary medication injection (Kuster v. State of New York 1989). Negligence liability can also occur, perhaps more commonly, for the failure to use appropriate restraints, resulting in injury to staff, other patients, or the patient him/herself. A hospitalized patient in an acute psychotic episode managed to escape from full leather restraints while unmonitored, and fled the hospital (Rohde v. Lawrence General Hospital 1993). He drove off in an unlocked automobile taken from the hospital parking lot, and crashed into a fence, suffering serious injuries. Suit was brought against the hospital, nursing staff, and physician.

SUICIDE AND ATTEMPTED SUICIDE Suicide and attempted suicide are among the most common, and the most expensive, professional liability claims against mental health professionals and facilities (Slawson 1989; Bongar 2002). Damages for the survivor of a suicide attempt can exceed those for a completed suicide, due to the need for continuing medical and rehabilitative expenses for serious, disabling, but non-lethal injuries (e.g., paraplegia, burns, neuropsychological deficits). Income losses for middle- or upper-income individuals who commit suicide can reach into the millions of dollars. Liability may occur for suicides during hospitalization, shortly after release from the hospital, and on an outpatient basis. Each situation presents different clinical and legal issues (Klein and Glover 1983). Liability is more

likely with hospital suicides than the other two categories (Bongar et al. 1993), given the staff’s assumed greater control over the inpatient than the outpatient, though the risk factors for hospital suicide are not empirically known, and may differ from those of outpatient suicide (Proulx, Lesage, and Grunberg 1997; Powell et al. 2000). In Winger v. Franciscan Medical Center (1998), for example, a psychiatric hospital allegedly failed to properly supervise a patient or restrict his access to the bathroom after he hanged himself with his shoelaces from a showerhead. Generally, suicide liability is predicated upon an inadequate assessment of suicide risk, and/or an inadequate response to that risk, which is proximately related to the suicide (Robertson 1988). An assessment of suicide risk, whether inpatient or outpatient, is ideally a comprehensive investigation of cognition, emotion, and behavior with regard to present and past self-destructiveness (Joiner et al. 1999). The clinician examines suicide ideation, suicide intention, suicide plan, availability of weapons, attitudes about suicide, past history of suicide attempts, behavioral impulsivity, in addition to related clinical dimensions such as depression, hopelessness, and psychosis. An underappreciated issue is evaluating the patient’s ability to monitor his or her own suicidality and report it to the clinician (Gutheil, Bursztajn, and Brodsky 1986). Repeated suicide assessments of a patient are typically necessary, especially when treating depressed or severely character disordered hospital patients, and those who are chronically suicidal. Suicide impulses can fluctuate in their presence and severity. In Bates v. Denney (1990), a man who had recently attempted suicide and been hospitalized was sent home from an emergency room after he denied suicide ideation, though his mother had brought him there, believing him to be suicidal. The treating psychiatrist, contacted by the emergency physician, did not see the patient, and scheduled an appointment for him the next day, but he shot himself. The jury found in favor of the defendant-psychiatrist, despite expert testimony for the plaintiff that the patient was suicidal and should have been involuntarily hospitalized. In a similar case, a man was evaluated at a crisis center after having slashed his wrist with a knife and jumped out of a bedroom window (Vasilik v. Federbush 1999). The evaluators informed the patient’s father that the patient was not suicidal but was seeking attention, and they did not offer psychiatric hospitalization. The patient jumped in front of a truck the next day. At trial, the jury found for the plaintiff based upon expert testimony that the patient’s earlier suicide attempts should have been taken more seriously, and hospitalization offered. In this case as in others, the court’s or jury’s judgment of the adequacy of the risk assessment often turns on the nature of its documentation in the psychiatric record. Once the suicide assessment has been completed, the clinician must respond in proportion to the level of risk identified. Both treatment and security/observation measures must be taken to reduce that risk. This often

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requires balancing treatment versus security needs, which may be mutually contradictory (e.g., prescribing higher medication doses with more lethality and potential for response versus lower doses; increasing hospital suicide precautions versus permitting more freedom to pursue treatment opportunities). Yet the courts can be sympathetic to these conflicts. In Topel v. Long Island Jewish Medical Center (1981), an appellate court overturned a plaintiff ’s verdict by jury in a hospital suicide case. The court ruled that professional judgment determined whether a suicidal patient should be monitored continuously or at 15-minute intervals, and that it was proper for the defendant physician to evaluate the expected benefits and risks of constant surveillance. Similarly, in Speer v. United States (1981), the court ruled that prescribing a month’s supply of medication (amitriptyline and perphenazine), to an outpatient who fatally overdosed, did not violate the standard of psychiatric care. Hopefully, suicides by overdose with tricyclic antidepressants such as doxepin, as in Wozniak v. Lipoff (1988), Chauvin v. West Jefferson Mental Health Center (1992), and Hobart v. Shin (1998) will decline with the greater use of the safer serotonin reuptake inhibitors. Suicides which occur upon release from the hospital raise questions about negligent release, either inadequate risk evaluation prior to release, or improper aftercare treatment plans. In one case (Bell v. New York City Health and Hospitals Corporation 1982), the treating psychiatrist had failed to investigate the hospitalized patient’s hallucinations and delusions before releasing him. A week after discharge, the patient set himself on fire by dousing himself with gasoline. The plaintiff ’s verdict by jury was upheld on appeal. Whether the patient who attempts or commits suicide should be held responsible for his or her own behavior has been addressed by a variety of courts through the doctrine of contributory negligence. In Hobart v. Shin (1998), an outpatient with recurrent depression completed suicide by a ten-fold lethal dose of her doxepin, while registered under a fictitious name in a motel room. When she was last seen in the office by the defendant physician 16 days prior to the suicide, she did not display any signs of depression, suicide ideation, or hopelessness. She suffered a relapse two days prior to the suicide, and her mother urged her to contact her treating physicians, which she refused. The jury found for the defendant physician, which was upheld on appeal by the Illinois Supreme Court, ruling that the state code of civil procedure provides that a plaintiff whose contributory negligence exceeds 50 per cent of the proximate cause of the injury is barred from recovering any damages. The state supreme court indicated that this principle also applies to psychiatric patients who attempt or commit suicide. No suicide ‘contracts,’ and decisions to discharge a patient ‘against medical advice,’ are often used by clinicians under the erroneous belief that such practices will protect them from liability. There is no empirical support

that either defensive measure reduces the likelihood of litigation or adverse legal outcome, or even prevents suicide (Devitt, Devitt, and Dewan 2000; Kroll 2000). Rather, contracting for safety can create a barrier to communicating the patient’s intense emotional distress, and interfere with the therapeutic alliance. Staff may inappropriately reduce their attention to the patient’s suicide potential, deluding themselves that the patient is safe, and offering a false sense of security (Miller, Jacobs, and Gutheil 1998). ‘No suicide’ contracts should not substitute for ongoing comprehensive risk assessment and treatment planning (Jacobs 1999; Simon 1999).

NEGLIGENT SUPERVISION AND COLLABORATION The psychiatrist incurs many potential liability risks when he or she supervises or collaborates with other mental health professionals in the care of a patient. The nature and extent of the risk depends upon the roles and responsibilities of the respective clinicians, the type and severity of the patient’s mental disorder, the forms of psychiatric treatment that are provided to the patient, and the administrative system of clinical care in which the patient is seen. For present purposes, we can distinguish among supervision, consultation, and collaborative treatment sometimes called ‘medical back-up,’‘dual treatment,’ ‘shared treatment,’ or ‘split treatment’ (Sederer, Ellison, and Keyes 1998). In a supervisory relationship, the supervisee is expected to comply with the recommendations of the supervisor. In contrast, consultation involves two or more independently licensed or fully credentialed professionals. In a collaborative relationship, two or more licensed or credentialed professionals share the patient’s care, with each of them independently responsible for particular aspects of that care. Psychiatrists who supervise other clinicians bear considerable clinical and legal responsibility for that clinician’s work. In some cases, there is an employer–employee relationship between them, but often both are employed by another agency or facility. According to the legal doctrine of respondeat superior, the supervisor incurs vicarious liability for the supervisee. Thus, the physician in Andrews v. United States (1984) was found to have negligently supervised his assistant’s counseling which eventuated in sexual intercourse. The presence of a supervisory relationship can be suggested by a system of care in which the psychiatrist signs or reviews team treatment plans, or billing claim forms, for a patient, even though the psychiatrist has no formal supervisory role in the team. Similarly, the concept of the physician as ‘captain of the ship’ is still prevalent, despite actual clinical practice to the contrary. On the other hand, courts have held trainees to the same standard of care as fully trained professionals, so the supervisor does not entirely shoulder the liability.

256 Civil law

In contrast, consultants should bear less clinical and legal responsibility for patient care than supervisors, especially if the consultant has not personally examined the patient and billed for the consultation. In that case, a court may rule that there is no physician–patient relationship, which is a predicate for professional liability (Hill by Burston v. Kokosky 1990). Depending upon the clinical context, consultants may have clinical and legal responsibilities to perform adequate assessments of the patient, coordination of care with the attending physician or psychotherapist, and documentation of their findings and decision making. To the extent that consultants participate in activities relating to treatment of the patient, they share the same liability exposure as treating psychiatrists. Malpractice claims against consulting psychiatrists have been litigated and settled out of court (Garrick and Weinstock 1994). Psychiatrists who collaborate with non-medical mental health practitioners in the care of a patient, whether at an agency or in private practice, might in theory have limited liability for patient care given their restricted clinical activities such as infrequent and brief contact with a patient only for prescribing and monitoring psychotropic medication, and responding to emergency situations necessitating hospitalization (MacBeth 1999). In such a practice, the psychiatrist should not in theory have responsibility for the psychotherapist’s errors and omissions. Yet, in practice the legal system may not appreciate the critical distinctions between supervision, consultation, and collaboration, with the result that split treatment arrangements do not minimize liability for collaborating psychiatrists. For instance, a plaintiff’s attorney can attempt to distort a collaborative relationship into a supervisory one. Further, prescribing psychiatrists increase their liability exposure by seeing large numbers of patients, in a briefer period of time, for medication management in contrast to seeing smaller numbers of patients more frequently, and for longer sessions, by providing psychotherapy and pharmacotherapy. Liability exposure is also increased for the psychiatrist in clinical systems of care: (i) in which the psychiatrist is unable to see patients in timely manner to assess a patient’s clinical change; (ii) in which the psychiatrist is given medication responsibility for large numbers of patients; (iii) when the psychotherapists are inadequately trained and supervised; (iv) when mechanisms are inadequate to facilitate genuine collaboration and sharing of information between the psychiatrist and psychotherapist; and (v) when there are multiple therapists and multiple psychiatrists providing care to a single patient. Through the use of ‘joint and several liability,’ split treatment with multiple defendants can result in the well-insured psychiatrist’s having to provide most or all of the legal judgment against the defendants, especially when the non-physician co-defendants are uninsured or underinsured. In collaborative treatment situations, the co-therapists need to clarify the nature of their relationship and their respective roles and responsibilities (Gutheil 1994;

MacBeth 1999). A written contract or letter of agreement between the co-therapists can be useful for this purpose. It should be clear, for example, whether the psychiatrist is responsible in any way for the non-psychiatrist’s psychotherapy, or is only providing pharmacotherapy services. A judge or jury in a malpractice case could otherwise assume that the psychiatrist had supervisory authority over the psychotherapist; such was the practice years ago until psychopharmacology became a subspecialty practiced by many psychiatrists under managed healthcare. The psychotherapist’s responsibility, if any, for monitoring medication response and side effects should also be clearly defined. There should be ample opportunities for interaction and coordination between the psychiatrist and psychotherapist, whether on a regular or crisis basis, to minimize miscommunication, splitting, and inconsistency in the treatment approach. Professional guidelines for such collaboration indicate that the patient should also be informed of each therapist’s responsibilities and consent to the free sharing of information between the physician and non-physician (American Psychiatric Association 1980; Gutheil 1994).

HANDLING MEDICAL ERROR An important dilemma in medical error situations occurs when the physician or associated healthcare professional becomes aware of an error in the patient’s care, especially when the error is harmful to the patient, and the patient and family are unaware of it. One survey of internal medicine house officers revealed that only 54 per cent discussed the mistake with their attending physicians, and only 24 per cent informed the patient or families (Wu et al. 1991). Disclosing a serious error to a patient or family member is typically discouraged by risk management staff and legal counsel at hospitals and clinics, for fear of increasing the likelihood of initiating a lawsuit for the error. The presence of the National Practitioner Data Bank, though limited in its actual impact, also serves as a deterrent to spontaneous reporting of serious error (Baldwin et al. 1999). The ethical theories of consequentialism and deontology each argue for a physician’s duty to disclose significant medical error to patients and families (Wu et al. 1997). Professional medical associations have adopted policies favoring such disclosure for ethical reasons (Wu et al. 1997). The Veterans Administration has adopted a system-wide policy of requiring the disclosure of medical error to patients and family when that error has resulted in loss of a patient’s function, earning capacity, or life, while providing assistance to them in filing a claim against the facility (Kraman and Hamm 1999). Empirical data pursuant to this practice at one facility demonstrated that claim frequency and severity data were moderate, and comparable to those at comparable facilities

Specific issues in psychiatric malpractice 257

(Kraman and Hamm 1999). Surveyed internal medicine patients at an outpatient facility indicated that they desired an acknowledgment from their physicians of even minor errors (Witman, Park, and Hardin 1996). Such ‘extreme honesty’ likely undercuts anger and vengefulness of patients and their families, which can prompt litigation demanding excess or even punitive damages (Hickson et al. 1992; Witman et al. 1996). Beyond being the ‘best defense,’ acknowledgements of medical error, and apology, also promote open communication between physicians and patients (Witman, Park, and Hardin 1996; Shuman 2000), and provides patients with information which they may need to make decisions regarding their subsequent healthcare. Yet, such a practice of disclosing one’s own medical error does not necessarily extend to the situation of a psychiatrist who learns of a medical error made by another physician in the care of their joint patient.

CONCLUSION Though psychiatrists enjoy among the least exposure to professional liability in all of medicine, there are still many practice risks deserving concern, especially in a managed care, split treatment, clinical environment. Psychiatry is practiced in an increasingly regulated and complex legal and financial environment. Systems of care issues which reduce the risk of error in the practice of psychiatric medicine are at the incipient stage of development. This chapter has considered some of the generic psychiatric issues likely to be brought to litigation. Though specific clinical practices may change in future years, similar liability concerns will no doubt be applicable.

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Baldwin, L., Hart, L., Oshel, R., et al. 1999. Hospital peer review and the National Practitioner Data Bank. Journal of the American Medical Association 282, 349–55. Barbone, F., McMahon, A., Davey, P., et al. 1998. Association of road-traffic accidents with benzodiazepine use. Lancet 352, 1331–6. Barnas, C., Miller, C., Sperner, G., et al. 1992. The effects of alcohol and benzodiazepines on the severity of ski accidents. Acta Psychiatrica Scandinavica 86, 296–300. Bates v. Denney, 563 So.2d 298 (La. App. 1990). Bates, D., Boyle D., Vliet, M., et al. 1995. Relationship between medication errors and adverse drug events. Journal of General Internal Medicine 10, 199–205. Bates, D., Miller, E., Cullen, D., et al. 1999. Patient risk factors for adverse drug events in hospitalized patients. Archives of Internal Medicine 159, 2553–60. Bell v. New York City Health and Hospitals Corporation, 456 N.Y.S.2d 787 (N.Y. 1982). Bongar, B. 2002: The Suicidal Patient: Clinical and Legal Standards of Care, 2nd edition. Washington, DC: American Psychological Association. Bongar, B., Maris, R., Berman, A., et al. 1993. Inpatient standards of care and the suicidal patient (part I). Suicide and Life-Threatening Behavior 23, 245–56. Brackins, L.W. 1985. The liability of physicians, pharmacists, and hospitals for adverse drug reactions. Defense Law Journal 34, 273–344. Chauvin v. West Jefferson Mental Health Center, 597 So.2d 134 (La. App. 1992). Chiles, J., Miller, A., Crismon, M., et al. 1999. The Texas Medication Algorithm Project: development and implementation of the schizophrenia algorithm. Psychiatric Services 50, 69–74. Clark v. Ohio Department of Mental Health, 573 N.E.2d 794 (Ohio Ct. Cl. 1989). Classen, D., Pestotnik, S., Evans, R., et al. 1997. Adverse drug events in hospitalized patients. Journal of the American Medical Association 277, 301–6. Clites v. Iowa, Law #46274, Iowa District Court, Pottawattamie County, August 7, 1980. Clites v. Iowa, 322 N.W.2d 917 (Iowa 1982). Cobo v. Raba, 495 S.E.2d 362 (N.C. 1998). Coffin, C. 1999. Case law and clinical considerations involving physical restraint and seclusion for institutionalized persons with mental disabilities. Mental and Physical Disability Law Reporter 23, 597–602. Devitt, P., Devitt, A., Dewan, M. 2000. An examination of whether discharging patients against medical advice protects physicians from malpractice charges. Psychiatric Services 51, 899–902. Dukes, M., Swartz, B. 1988: Responsibility for Drug-induced Injury. Amsterdam: Elsevier. Edwards v. United States, 749 F.Supp. 1070 (D. Kan. 1990). Ferrara v. Berlex Laboratories, Inc., 732 F.Supp. 552 (E.D. Pa. 1990).

258 Civil law Fisher, W. 1994. Restraint and seclusion: a review of the literature. American Journal of Psychiatry 151, 1584–91. Food and Drug Administration Modernization Act. 1997. 21 United States Code section 301. Garrick, T., Weinstock, R. 1994. Liability of psychiatric consultants. Psychosomatics 35, 474–84. Gutheil, T. 1994. Risk management at the margins: less-familiar topics in psychiatric malpractice. Harvard Review of Psychiatry 2, 214–21. Gutheil, T., Bursztajn, H., Brodsky, A. 1986. The multidimensional assessment of dangerousness: competence assessment in patient care and liability prevention. Bulletin of the American Academy of Psychiatry and the Law 14, 123–9. Guyatt, G., Haynes, R., Jaeschke, R., et al. 2000. Users’ guides to the medical literature. Journal of the American Medical Association 284, 1290–6. Haught v. Maceluch, 681 F.2d 291 (5th Cir. 1982). Haven v. Randolph, 342 F.Supp. 538 (D.D.C. 1972). Hayward, R., Hofer, T. 2001. Estimating hospital deaths due to medical errors. Journal of the American Medical Association 286, 415–20. Health Care Financing Administration. 1999. Interim final rule. 42 CFS Part 482. www\HCFA.gov. Hedin v. U.S.A., No. 5-83 CIV 3 (D. Minn. 1985). Henry, V. 1999. Off-label prescribing. Journal of Legal Medicine 20, 365–83. Hickson, G., Clayton, E., Githens, P., Sloan, F. 1992. Factors that prompted families to file medical malpractice claims following perinatal injuries. Journal of the American Medical Association 267, 1359–63. Hill by Burston v. Kokosky, 463 N.W.2d 265 (Mich. App. 1990). Hobart v. Shin, 705 N.E.2d 907 (Ill. 1998). Hopper v. Callahan, 562 N.E.2d 822 (Mass. Sup. Jud. Ct. 1990). Hyams, A., Brandenburg, J., Lipsitz, J., et al. 1995. Practice guidelines and malpractice litigation: a two-way street. Annals of Internal Medicine 122, 450–5. Jacobs, D. (ed.). 1999: The Harvard Medical School Guide to Suicide Assessment and Intervention. San Francisco: Jossey-Bass Publishers. Johnson, S. 1990. The fear of liability and the use of restraints in nursing homes. Law, Medicine, and Health Care 18, 263–73. Joiner, T., Walker, R., Rudd, M., et al. 1999. Scientizing and routinizing the assessment of suicidality in outpatient practice. Professional Psychology: Research and Practice 30, 447–53. Klein, J., Glover, S. 1983. Psychiatric malpractice. International Journal of Law and Psychiatry 6, 131–57. Kofoed, L., Bloom, J., Williams, M., et al. 1990. Physicians investigated for inappropriate prescribing by the Oregon Board of Medical Examiners. Western Journal of Medicine 150, 597–601.

Kohn, L., Corrigan, J., Donaldson, M. (eds). 2000: To Err is Human: Building a Safer Health System. Washington, DC: National Academy Press. Kraman, S., Hamm, G. 1999. Risk management: extreme honesty may be the best policy. Annals of Internal Medicine 131, 963–7. Kroll, J. 2000. Use of no-suicide contracts by psychiatrists in Minnesota. American Journal of Psychiatry 157, 1684–6. Kuntz, R. 1998. Off-label prescribing of antidepressants and anxiolytics: an attorney’s guide to psychoactive drugs. Journal of Psychiatry and Law 26, 519–32. Kuster v. State of New York, 560 N.Y.S.2d 301 (1989). Leal v. Simon, 542 N.Y.S.2d 328 (A.D. 1989). Leape, L. 1994. Error in medicine. Journal of the American Medical Association 272, 1851–7. Leape, J., Bates, D., Cullen, D., et al. 1995. Systems analysis of adverse drug events. Journal of the American Medical Association 274, 35–43. Lesar, T., Briceland, L., Stein, D. 1997. Factors related to errors in medication prescribing. Journal of the American Medical Association 277, 312–17. Litras, M., Gifford, S., DeFrances, C., et al. 2000: Tort Trials and Verdicts in Large Counties, 1996. Bureau of Justice Statistics, US Department of Justice, Washington, DC (NCJ 179769). Localio, A., Lawthers, A., Brennan, T., et al. 1991. Relation between malpractice claims and adverse events due to negligence. New England Journal of Medicine 325, 245–51. MacBeth, J. 1999: Divided treatment: legal implications and risks. In Riba, M., Balon, R. (eds), Psychopharmacology and Psychotherapy: A Collaborative Approach. Washington, DC: American Psychiatric Press, 111–58. Miller v. U.S., 431 F.Supp. 988 (S.D. Miss. 1976). Miller, M., Jacobs, D., Gutheil, T. 1998. Talisman or taboo: the controversy of the suicide-prevention contract. Harvard Review of Psychiatry 6, 78–87. Mohr, J. 2000. American medical malpractice litigation in historical perspective. Journal of the American Medical Association 283, 1731–7. Morreim, E. 1997. Medicine meets resource limits: restructuring the legal standard of care. University of Pittsburgh Law Review 59, 1–95. Mulder v. Parke Davis & Co., 181 N.W.2d 882 (Minn. 1970). Munsell v. Lynk, Genesee County (Mich.) Circuit Court, No. 80-58801-NI, June 1, 1983. O’Neil, A., Petersen, L., Cook, E., et al. 1993. Physician reporting compared with medical-record review to identify adverse medical events. Annals of Internal Medicine 119, 370–6. Osheroff v. Chestnut Lodge, 490 A.2d 720 (Md. App. 1985). Powell, J., Geddes, J., Deeks, J., et al. 2000. Suicide in psychiatric hospital in-patients. British Journal of Psychiatry 174, 264–72.

Specific issues in psychiatric malpractice 259 Proulx, F., Lesage, A., Grunberg, F. 1997. One hundred in-patient suicides. British Journal of Psychiatry 171, 247–50. Public Law 106-310, October 17, 2000. The Children’s Health Act of 2000. Rabinowitz, J., Lichtenberg, P., Kaplan, Z., et al. 2001. Rehospitalization rates of chronically ill schizophrenic patients discharged on a regimen of risperidone, olanzapine, or conventional antipsychotics. American Journal of Psychiatry 158, 266–9. Robertson, J. 1988: Psychiatric Malpractice: Liability of Mental Health Professionals. New York: John Wiley. Rohde v. Lawrence General Hospital, 614 N.E.2d 686 (Mass. App. 1993). Schiff, G., Rucker, T. 1998. Computerized prescribing. Journal of the American Medical Association 279, 1024–9. Sederer, L., Ellison, J., Keyes, C. 1998. Guidelines for prescribing psychiatrists in consultative, collaborative, and supervisory relationships. Psychiatric Services 49, 1197–202 Shuman, D. 1997. The standard of care in medical malpractice claims, clinical practice guidelines, and managed care: towards a therapeutic harmony? California Western Law Review 34, 99–113. Shuman, D. 2000. The role of apology in tort law. Judicature 83, 180–9. Sibley v. Board of Supervisors, 446 So.2d 760 (La.App. 1983); affirmed 462 So.2d 149 (Sup. Ct. La. 1985). Simon, R. 1999. The suicide prevention contract: clinical, legal, and risk management issues. Journal of the American Academy of Psychiatry and the Law 27, 445–50. Slawson, P. 1989. Psychiatric malpractice: ten years’ loss experience. Medicine and Law 8, 415–27. Slawson, P. 1991. Psychiatric malpractice: recent clinical loss experience in the United States. Medicine and Law 10, 129–38. Slovenko, R. 2000. Update on legal issues associated with tardive dyskinesia. Journal of Clinical Psychiatry 61 (Suppl. 4), 45–57. Speer v. United States, 512 F.Supp. 670 (N.D. Texas 1981). Taragin, M., Willett, L., Wilczek, A. 1992. The influence of standard of care and severity of injury on the

resolution of medical malpractice claims. Annals of Internal Medicine 117, 780–4. Thapa, P., Gideon, P., Cost, T., et al. 1998. Antidepressants and the risk of falls among nursing home residents. New England Journal of Medicine 339, 875–82. Thomas, E., Studdert, D., Burstin, H., et al. 2000. Incidence and types of adverse events and negligent care in Utah and Colorado. Medical Care 38, 261–71. Topel v. Long Island Jewish Medical Center, 431 N.E.2d 293 (N.Y. 1981). Vasilik v. Federbush, 742 A.2d 591 (N.J. Super. 1999). Watkins v. United States, 589 F.2d 214 (5th Cir. 1979). Weiss, E., Hummer, M., Koller, D., et al. 2000. Off-label use of antipsychotic drugs. Journal of Clinical Psychopharmacology 20, 695–8. Wettstein, R. 1983. Tardive dyskinesia and malpractice. Behavioral Sciences and the Law 1, 85–107. Wettstein, R. 1985: Legal aspects of neuroleptic-induced movement disorders. In Wecht, C.H. (ed.), Legal Medicine 1985. New York: Praeger. Wettstein, R. 1988. Informed consent and tardive dyskinesia. Journal of Clinical Psychopharmacology 8 (Suppl.), 65S–70S. Winger v. Franciscan Medical Center, 701 N.E.2d 813 (Ill. App. 1998). Wisner, K., Zarin, D., Holmboe, E., et al. 2000. Risk-benefit decisionmaking for treatment of depression during pregnancy. American Journal of Psychiatry 157, 1933–40. Witman, A., Park, D., Hardin, S. 1996. How do patients want physicians to handle mistakes? Archives of Internal Medicine 156, 2565–9. Wozniak v. Lipoff, 750 P.2d 971 (Kan. 1988). Wu, A., Cavanaugh, T., McPhee, S., et al. 1997. To tell the truth: ethical and practice issues in disclosing medical mistakes to patients. Journal of General Internal Medicine 12, 770–5. Wu, A., Folkman, S., McPhee, S., Lo, B. 1991. Do house officers learn from their mistakes? Journal of the American Medical Association 265, 2089–94. Yacura, M. 1984. Inside the PDR. Trial 20, 64–7. Youngberg v. Romeo, 102 S.Ct. 2452 (1982).

29 Psychiatric disability determinations and personal injury litigation JEFFREY L. METZNER AND JAMES B. BUCK

INTRODUCTION Since 1970, the Bureau of the Census has collected data on work disability among U.S. residents. The 1990 census defined work disability as the inability to perform work resulting from a physical, mental, or other health condition of six months’ duration or longer; categories are non-severe (limitation in the type or amount of work a person can perform) and severe (an inability to perform work of any type). In 1990, an estimated 12.8 million persons aged 16–64 years had a work disability: 6.6 million were severe, and 6.2 million non-severe. Rates of work disability varied widely among the states. From 1980 to 1990, the prevalence of work disability declined nationally from 85.2 per 1000 persons to 81.5 per 1000 persons, and rates of severe and non-severe work disability decreased by 3.9 per cent and 4.7 per cent, respectively (LaPlante 1993a; LaPlante 1993b). The Centers for Disease Control and Prevention reported during May 1998 that in the United States an estimated 10 per cent of persons had some recent disability from a diagnosable mental illness and up to 24 per cent have experienced a mental disorder during the preceding year (Centers for Disease Control and Prevention 1998). Different definitions of disability have been developed by various institutions and organizations such as the Veterans Administration, Social Security Administration, private insurers, and workers’ compensation programs. It is essential to know the specific definition being used in order adequately to address pertinent questions concerning the presence or absence of psychiatric disability. Tort law provides other definitions and conceptualizations when mental and emotional damages are alleged in personal injury litigation. Issues relevant to the legal definition of disability under the Americans with Disabilities Act are addressed in Chapter 30. Definitions used for disability are more clearly understood by linking them to a conceptual framework related to the consequences of

disease and injury, such as the International Classification of Impairments, Disability, and Handicaps (ICIDH) (World Health Organization 1993). The World Health Organization (WHO) released the Beta-2 draft full version of the international classification of functioning and disability (ICIDH-2) during July 1999. This was a revision of the ICIDH which was first published in 1980 by the WHO for trial purposes. The acronym ICIDH has been retained for historical purposes. ICIDH-2 systematically groups functional states associated with health conditions (i.e., a disease, disorder, injury or trauma, or other health-related state). Among the aims of ICIDH-2 is to provide a scientific basis for understanding and studying the functional states associated with health conditions and to establish a common language for describing functional states associated with health conditions in order to improve communications between healthcare workers, other sectors, and people with disabilities. The ICIDH-2 classification covers any disturbance in terms of ‘functional states’ associated with health conditions at body, individual and society levels. ‘Functioning’ and ‘disability’ are umbrella terms covering three dimensions: 1 Body functions and structure. 2 Activities at the individual level. 3 Participation in society (ICIDH-2 1999). The Beta-2 full version (July 1999) has been issued for field trial purposes. This classification is undergoing systematic field trials and is subject to further consultation. Reference should be made to the web page for detailed information concerning the ICIDH-2. It is important to understand the cultural, social, biological, and psychological components of the systems that determine decisions to seek employment, change employment, become formally unemployed, or seek or

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be assigned disability status in order to comprehend more adequately disability behaviors (Brodsky 1987a). Learning about these systems will increase knowledge concerning the relationship between social impairments and psychosocial disability (Ruesch and Brodsky 1968). This chapter provides an overview of issues to be addressed by the forensic psychiatrist concerning disability determinations through workers’ compensation systems, the Social Security Administration, and private insurance policies as well as fitness for duty examinations and psychological damage claims in personal injury litigation.

WORKERS’ COMPENSATION Issues Workers’ compensation systems vary in each state due to differences in statutes, case law, and administrative practices. Such systems were developed as a social policy response to the acknowledgment that injured workers were at a legal disadvantage when seeking compensation. Before the advent of the workers’ compensation system, a worker who was injured on the job could recover only by proving the employer was liable in tort, and the employer was liable only for injuries resulting from failure to use reasonable care. Three major defenses were available to the employer under such circumstances:

• • •

The contributory negligence rule found an employer not liable if the worker’s own negligence contributed to the injury. The assumption of risk rule held that the worker assumed the risk of injuries on the job after becoming aware of the possible danger even if the worker continued to work under protest. Under the fellow servant rule, the employer was absolved of any liability for injuries to one worker resulting from the negligence of another worker (Keeton et al. 1984).

It was often difficult for workers to recover under these common law principles. Additionally, employers were subjected to potentially ruinous jury verdicts for injuries to workers, as well as punitive damages claims. Eventually, statutes were passed in one form or another in all fifty states where a finding of fault was not required as a prerequisite to awarding benefits (Mussoff 1981). The worker need only show that the injury was the result of a workrelated accident, although there is a range of definitions concerning this issue. Generally, the injury must arise ‘out of employment,’ which essentially means that the employee was exposed to a risk in the place of employment greater than that encountered in everyday life, and the injury must have occurred in the ‘course of employment,’ which generally means exposure that occurs within the time and place of employment (Warshaw 1988).

The typical statute provides that a worker is to be compensated for loss of earnings and medical expenses resulting from a work-related injury. The worker no longer needs to prove negligence to obtain benefits, but generally only needs to show that the need for such benefits is work-related. This ‘no-fault’ approach left the employers with the cost of occupational injuries and disabilities as a cost of doing business (Lawson 1973). Under this system, the worker is limited to statutorily defined medical and disability benefits, and employers are shielded from often unlimited liability under the civil tort system. Important psychiatric-legal issues involve concepts of impairment, disability, maximum medical improvement, and employability. Familiarity with the American Medical Association’s (AMA) Guides to the Evaluation of Permanent Impairment (Cocchiarella and Andersson 2000) and pertinent state law will provide relevant definitions for the physician involved in workers’ compensation evaluations. For example, the AMA publication defines impairment as ‘a loss, loss of use, or derangement of any body part, organ system, or organ function’ that is assessed by medical means; this is in contrast to disability, which is defined as ‘an alteration of an individual’s capacity to meet personal, social, or occupational demands or statutory or regulatory requirements because of an impairment.’ A disability arises out of the interaction between impairment and external requirements, especially those of a person’s occupation (Doege and Houston 1993, p. 1–2). Kennedy and Gruenberg (1987, p. 7–8) define impairment as a limitation due to a defect in an organ’s functioning, and disability as a limitation of activity produced by an impairment. Using these definitions, an individual who is impaired may not be disabled. Disability can be either partial or total and can be temporary or permanent. Temporary disability benefits commence once the worker is found to have been injured in the course and scope of employment and is disabled temporarily from employment. Permanent disability benefits begin after the worker has reached maximum medical improvement (MMI) and has received an impairment rating, which is an important factor in the disability determination. The definition of MMI varies from state to state, but generally indicates that the worker’s underlying condition causing his or her disability has become stable and further medical treatment will not improve the condition. However, treatment may still be required following attainment of MMI in order to prevent further deterioration. The majority of states for almost the past thirty years have relied on the AMA’s Guide to the Evaluation of Permanent Impairment (Doege and Houston 1993) to assess issues relevant to disability. A survey completed in 1999 indicated that forty states use the Guides in workers’ compensation cases because of statute or regulations, or by administrative/legal practice (Barth and Niss 1999; Cocchiarella and Andersson 2000). The 1985 revision of the Social Security Administration’s ‘Listing of Mental Impairments’ is reflected in the

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fifth edition’s chapter of the AMA publication, which describes mental and behavioral disorders. Specifically, activities of daily living, social functioning, concentration, and adaptation are to be assessed and rated on a fivepoint scale. Unlike other chapters on non-psychiatric impairment, the fifth edition has not provided percentages for estimates of mental impairment because there is no available empirical evidence to support any method for assigning a percentage of impairment of the whole person despite physicians often being required to make such judgments based on clinical impressions (Cocchiarella and Andersson 2000). Over the past twenty years, there has been a significant increase in workers’ compensation claims attributing disability to mental impairment or occupational stress. It was reported by the National Council on Compensation Insurance that about 15 per cent of all occupational diseases nationwide in 1985 were stress-related, which represented a 30 per cent increase from 1984 (Dentzer, McCormick, and Tsurouka 1986). National healthcare costs grew at an average annual rate of about 10 per cent from 1985 to 1992, and workers’ compensation costs grew at an average annual rate of nearly 15 per cent, peaking in 1992. These increased costs served as a precipitant for many of the medical cost-containment initiatives currently in place in workers’ compensation systems (Eccleston and Victor 1998). Mental disorders already rank among the top ten work-related injuries and illnesses in the nation (Matsumoto 1994). It is important to realize that most states’ compensation systems have been haphazardly constructed. Legislative amendments and judicial interpretations have created unique systems in each state (Spieler 1995). Stress claims are not potentially compensable in eight states; eight states allow such claims if the stressor is a sudden, frightening, or shocking event; eleven states require the stress to be in excess of the stress of everyday life or employment to be compensable; seven states allow compensable stress claims even if the stress does not exceed that of everyday life or employment; and fifteen other states do not have adequately established case law to provide guidelines for such issues [Warshaw (1988) reports on only forty-nine states].

Legal criteria There are three categories of work-related injuries involving mental stress. Not all states accept all these categories as compensable work-related injuries. Each has its own variants and specific problems concerning proof of causality. 1 The first category is the ‘physical–mental’ claim where a physical trauma causes a mental injury. An example is a worker who is injured in an explosion and thereafter develops posttraumatic stress disorder. This type of claim is accepted by all jurisdictions.

2 The second category is the ‘mental–physical’ claim in which a mental stimulus causes a physical injury. An example would be an individual who is subjected to work-related stress due, e.g., to a heated argument with a co-worker, or a demotion or termination, and thereafter suffers a physical injury such as a stroke, heart attack, or ulcers. Because heart attacks are relatively common in certain worker populations, and because allegations that a heart attack is work-related is hard to dispute, some states have implemented additional criteria for obtaining benefits in heart attack cases. For example, Colorado denies benefits to workers suffering heart attacks unless the worker proves that the heart attack was caused by an unusual exertion arising out of employment, as opposed to the stress of everyday life (Colo. Rev. Statutes 1991a). 3 The third, and most controversial category, is the ‘mental–mental’ claim, where a mental stimulus results in a mental injury, e.g., a shock at work causes a mental illness. An example would be a claimant who witnesses a co-worker’s hand severed in a machine press and as result develops posttraumatic stress and disabling anxiety. All jurisdictions allow compensation for physical– mental and mental–physical claims; however, eleven states do not recognize mental–mental claims. These states require some type of physical injury (Head 1997). Most jurisdictions have limited psychiatric disability compensation by: (i) narrowly defining accidental injury or occupational disease; (ii) qualifying the definition of an acceptable stimulus causing an injury; (iii) raising the causation threshold for a work-related injury; and/or (iv) defining a more stringent burden of proof for psychiatric injury (London, Zonana, and Loeb 1988). An example of such limitation is the current Colorado law which specifies that mental impairment cannot be based, in whole or in part, on facts and circumstances that are common to all fields of employment. This statute also excludes mental impairment claims which result from disciplinary actions, work evaluations, job transfers, layoffs, terminations, or similar action taken in good faith by the employer (Colo. Rev. Statutes 1991b). Bursten (1986) provides a very useful summary concerning issues related to sexual discrimination and sexual harassment in the workplace. If the worker being discriminated against or harassed has been so affected that he or she is unable to work, then workers’ compensation benefits may be available.

Landmark cases The Michigan Supreme Court holding in Carter v. General Motors Corp. (1960) was the first landmark case to compensate a worker for a mental disorder precipitated solely by a mental stimulus. A lower court decision was sustained for a machine operator who suffered a psychosis alleged

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to have resulted from stress encountered on his job. This finding was unique because there was neither a physical injury nor a specific, definable event that precipitated the psychosis (Parlour and Jones 1980). Beveridge v. Industrial Accident Commission (1959) is a California case that formulated the doctrine of repetitive injury based on a disability claim due to back pain. This concept has been widely used to support claims for disability alleged to result form protracted periods of stressful incidents (Warshaw 1988). Such litigation has contributed to the evolution of an objective standard of causation, as described in McGarrah v. SAIF (1982), that requires the stressful stimulus to be significant enough to cause disability to an average worker as opposed to an individual who may have specific vulnerabilities to the particular stress. This standard is in contrast to a subjective standard that allows for everyday job stress to be compensable for certain individuals even though most workers would not be affected by such stress. Deziel v. Difco Laboratories (1978) allowed a claim to be compensable if the claimant ‘honestly, though perhaps mistakenly, perceives the cause of her disability to be the work-related personal injury.’ Such reasoning has also been described as a subjective standard for establishing causation or an honest perception standard (London, Zonana, and Loeb 1988).

Relevant information Various aspects of workers’ compensation claims are often disputed and litigated, which may result in referral for a psychiatric examination to assess one or more of the following issues (Brodsky 1987b):

• • • • • • •

If the worker has a mental disorder. The duration and symptoms of any mental disorder diagnosed. The etiology of the disorder(s), and, specifically, its relationship to work. Prognosis and treatment recommendations with particular reference to duration of required treatment. Whether and when the worker will be released to return to work with discussion of any work restrictions. Whether vocational evaluation and/or rehabilitation is indicated. If the worker has reached maximum medical improvement (MMI); if not, when it is likely that MMI will be reached.

Enelow (1991) summarized the work of an advisory committee in California that developed a list of eight work functions that could be assessed clinically and through psychological testing. These eight work functions, which can serve as a useful outline for relevant areas to be assessed, include the ability to:

• • •

comprehend and follow instructions; perform simple and repetitive tasks; maintain a work pace appropriate to a given work load;

• • • • •

perform complex or varied tasks; relate to other people beyond giving and receiving instruction; influence people; make generalizations, evaluations, or decisions without immediate supervision; and accept and carry out responsibility for direction, control and planning.

A standard psychiatric examination as described in standard textbooks (Strauss 1995; Nicholi 1999) should be performed with emphasis on issues pertinent to the referral questions. Psychological and neuropsychological testing are often helpful in establishing the presence of a mental disorder and assessing both the presence and consequences of an injury to the brain. Relevant medical and mental health records should be reviewed along with other pertinent documents such as job performance evaluations, legal complaints, depositions, responses to interrogatories, and investigative reports that often include statements from past employers, co-workers, and supervisors. Such a review will help prepare the psychiatrist for examination of the examinee, which should include an assessment of any pre-existing conditions, pre-injury functioning, and the examinee’s credibility. Comparison of the history obtained from the examinee with other sources of information will assist in the credibility assessment. Reference should be made to other chapters in this volume for relevant information concerning issues of double agentry and an outline of the usual forensic principles that apply to these forensic evaluations. The examiner should obtain an occupational history including a detailed work history since the injury, a summary of prior job experiences, and information about the worker’s future plans for work. Emphasis should be placed on learning more about the worker’s experience with the medical care system and the workers’ compensation due to issues related to entitlement and secondary gain. Relevant legal history should summarize any past arrests, prior litigation, and/or workers’ compensation claims. Ash and Goldstein (1995) briefly summarize the literature relevant to predicting whether or not a person, due to psychiatric-related conditions, can or will return to work. They report that much of the research relevant to this issue is from outcome studies in the orthopedic literature of the treatment of lower-back pain. In general, organic factors, such as level of pain and severity of physical injury, have usually not been found to be good outcome predictors. Non-organic factors, which include length of time off work, age, and mixed social factors (e.g., family problems, feelings/attitudes toward work and illness) have been reported as having some significance as predictors of outcome. The worse outcomes were associated with involvement with workers’ compensation system or litigation. Anthony et al. (1995) provide a concise literature review of studies examining the relationship between

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psychiatric symptomatology, diagnosis, and work skills. The studies do not agree on what, if any, relationship exists between these areas. Increases in skill performances have not necessarily corresponded with decrease in symptoms. Other studies have suggested that symptomatology was related to vocational outcomes. These same authors emphasize that the failure to recognize the fact that skills and symptomatology are not highly correlated, and that symptoms cannot be used as a proxy measure of vocational functioning, will lead to inaccurate predictions concerning the vocational capacity of persons with psychiatric disabilities. Their findings suggest that vocational assessment must include both evaluating psychopathology and other measures of vocational functioning and probably other social– environmental factors.

Reasoning processes The credibility of the psychiatrist and the claimant are important issues in any medical–legal psychiatric examination. Credibility is often central to claims in which there is no objective evidence of injury as in posttraumatic stress disorder and closed head injuries (Hoffman and Spiegel 1989). Non-medical investigations, including surveillance, are at times helpful in assessing issues of the claimant’s credibility. As in other forensic evaluations, the issue of malingering should be considered, particularly when the examinee provides an inconsistent history, demonstrates selective memory impairment, withholds relevant information, provides inaccurate information, is very hostile and/or demanding during the examination, or has a past history of antisocial behaviors. The findings of the forensic evaluation should generally be summarized in written form in a manner that is understandable to the fact finder. Clearly written opinions that reflect logical reasoning facilitate resolution of the legal issues prior to court hearings. Reference should be made to relevant chapters and articles for useful discussion and outlines for these medical–legal reports (Hoffman 1986; Brodsky 1987b; London, Zonana, and Loeb 1988; Rappeport et al. 1991). Integrating data with legal criteria relevant to worker’s compensation cases is often a very complicated task. The definitional vagueness of stress often presents problems. Other problems involve the concept of psychiatric injury, which often is narrowly defined by the legislature. Establishing a legal causation is often complicated because of symptomatic pre-existing mental disorders and because the work-related accident is only one factor in the life of the employee. It is more likely that there will be a causal relationship between the industrial accident and the resulting psychiatric injury when the injury is severe and there are few pre-existing psychiatric factors. The key to causation is isolating the event that is the precipitating cause

of the job-related mental disorder (Juge and Shraberg 1984). When a worker has a relevant pre-existing psychological history, then apportionment arises and the issue of causation becomes more difficult to resolve. Difficulties also exist in the determination of whether a person is able to return to work. The psychiatrist needs to organize data from the examination in order to assist in the legal determination of compensability, which is a three-prong test consisting of the following factors (London, Zonana, and Loeb 1988): 1 The existence of a psychiatric disability which prevents work. 2 The disability is caused by psychiatric injuries. 3 The psychiatric injuries are work-related. The biopsychosocial conceptualization of illness is emphasized by Brodsky (1990) to be very pertinent to studying the causes and recovery patterns of persons suffering from work-related injuries. The dynamics of the workplace needs to be assessed when there is confusion concerning the cause of the workplace injury. These dynamics include the worker’s attitudes toward the job, relationship with co-workers and supervisors, the nature of treatment received for the injury, compensation, residual impairment, and future work plans (Brodsky 1990).

FITNESS FOR DUTY EXAMINATIONS Issues It is not uncommon for employers, generally via an employee assistance program or Human Resources department, to refer employees to psychiatrists for a fitness for duty examination when an employee appears to be demonstrating symptoms of a mental disorder that may interfere in the performance of their job. These referrals frequently involve issues of potential dangerousness to others, especially related to public safety issues or workplace violence. Many of these referrals are made with a sense of urgency being conveyed by the referral source who often request an immediate assessment, if not sooner. Triaging on the phone is often helpful to the referral source in determining if the assessment that needs to be immediately performed involves the need for hospitalization. Such an assessment should usually occur in a psychiatric emergency room setting for safety purposes. Under these circumstances, the fitness for duty question will be postponed to a time when it can be performed in less of a crisis atmosphere. Assuming that the fitness for duty examination can proceed, further information will be required from the referral source. This information will include the following:

•

More detailed information concerning the reason for the referral at the present time (e.g., nature of the behavior(s) that precipitated the referral, documentation

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• • • • •

from supervisors, co-workers, customers, etc. regarding such behaviors). The employee’s job description. Copies of past job performance evaluations. Copies of relevant medical/psychiatric records (it is often the employee who will be responsible for supplying these records). The employee’s current job status (e.g., sick leave, suspended, working, in danger of being fired?). The employee’s response to the requested examination.

It may also be helpful for the examiner to talk with the employee’s supervisor in order to obtain more detailed information concerning the examination referral. It is useful to have the referral source provide a written document to the psychiatrist which specifically states the questions that should be answered by the examiner. Many employers do not need – and do not want – a summary of an employee’s background information except to the extent that it is directly related to the specific referral questions. In general, it is also helpful to decide in advance the nature of the information that the examiner will share with the employee at the end of the examination. It is recommended that the employee be told the opinions that will be conveyed to the employer so that he or she can be better prepared for the likely consequences. The examiner should be aware of safety issues involved in many of these examinations related to the fact that an employee’s livelihood is often at risk. It is for this reason that it is often not advisable to do these examinations under a pressured timeframe. It may also be necessary to have more than one interview with the employee as part of the examination process.

Legal criteria Many employees are very unhappy with the fitness for duty process which often is a requirement for them to continue with their employment. In general, the employee handbook will provide the legal basis for the mandatory nature of the fitness for duty examination. The usual disclosure relevant to the nature of the examination and limits of confidentiality should be provided to the employee by the examining psychiatrist.

Relevant information A standard psychiatric examination, as described in the workers’ compensation section, should be performed. Similar to the workers’ compensation examination, this assessment should also focus on work issues (ability to perform pertinent work functions as per the job description) and other relevant referral questions. Such questions often include issues related to diagnosis, treatment recommendations (nature and anticipated duration),

work limitations/suggested modifications, prognosis, and potential for dangerousness.

Reasoning processes The document received from the referral source, which specifies the questions to be addressed by the examiner, will serve as a template for the report to be generated by the examiner. Principles of report writing previously summarized in this chapter remain applicable.

SOCIAL SECURITY DISABILITY BENEFITS Issues The Social Security Disability Insurance (SSDI) Program (title II) and the Supplemental Security Income (SSI) Program (title XVI) are administered by the Social Security Administration (SSA). Title II provides coverage in the form of cash benefit for those disabled workers and their dependents who have contributed to the Social Security trust fund through the Federal Insurance Compensation Act (FICA) tax on their earnings. Title XVI provides for a minimum income level for the needy, aged, blind, and disabled. A financial need, which is statutorily defined, determines a person’s eligibility for SSI benefits. The disability benefits programs administered by the SSA are huge: more than one million applications were processed for SSI during 1998. In 1992, the social security disability insurance program cost $28 billion and the SSI program cost an additional $23 billion (Burtless 1994). The federal expenditures for cash payments under the SSI program during calendar year 1998 totaled $27.7 billion. In January 1999, 6.3 million individuals received federally administered monthly SSI benefits averaging $341. Between 1974 and December 1998, the total number of persons receiving SSI payments more than doubled (from 3.2 million to 6.5 million). The greatest growth was in the disabled caseload, which more than tripled (from 1.3 million to 5.1 million) over the 24-year period (Brooks 1999). By 2023, the federal SSI recipient population is estimated to reach 7.3 million, which will represent roughly 2.2 per cent of the population at that time (Social Security Administration 1999). Some 32 per cent of the 3 919 427 SSI blind and disabled recipients during 1998 were receiving benefits based on psychiatric impairments. The Fifth Circuit and other courts and commentators have labeled the SSA ‘the Mount Everest of bureaucratic structures with the largest system of administrative adjudication in the western world’ (Mashaw 1983; Kane v. Heckler 1984; Dubin 1995). Although the vast majority of claims are adjudicated at the lower levels of the agency, approximately 1000 cases are docketed in the courts of appeals each year rendering social security cases among the most commonly litigated federal appellate cases (Levy 1990).

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The SSA has developed a five-step ‘sequential evaluation process’ for evaluating disability claims. The State Disability Determination Services (DDS) must determine whether a claimant:

• • • • •

is engaged in substantial gainful activity; has a severe impairment or combination of impairments; meets or equals an impairment listed in the appropriate appendix; is prevented by the impairment or combinations of impairments and residual functional capacity from engaging in relevant past employment; or has the ability to engage in other gainful activity considering the claimant’s education, past relevant experience, and residual functional capacity [20 C.F.R. §§ 404.1520, 416.920 (1994)].

Under settled case law on all courts of appeals, the claimant has the burden of proof on the first four steps of the fivestep sequential evaluation process [see Johnson v. Heckler (1985) (collecting cases), vacated on other grounds sub nom., Bowen v. Johnson (1987)]. Initial DDS decisions that are unfavorable to the applicant may be appealed to the DDS for reconsideration of that initial denial. If still not satisfied, the claimant may apply to the Office of Hearings and Appeals (OHA) for a hearing before an Administrative Law Judge (ALJ). The next level of appeals is through a review by the Appeals Council (Social Security Administration 1999). Pursuant to 42 U.S.C. 405(g), federal courts have jurisdiction to review the commissioner’s decisions. Judicial review of those decisions is limited to determining whether the findings are supported by substantial evidence and whether the ALJ has employed the proper legal standards (Gropman 1997). Psychiatrists should be familiar with the SSA medical standards and guidelines for use in determining disability due to mental impairment. The process of determining disability emphasizes medical evidence that includes a signed report by a licensed physician or psychologist concerning the applicant’s medical history relating to the impairment(s) that prevent work. These regulations concerning mental disorders, commonly referred to as ‘the listings,’ were derived from DSM-III (Spitzer and Williams 1980) and promulgated by the SSA during 1985 and may be revised in the near future. This section focuses only on issues related to impairment ratings for adults.

Legal criteria To qualify for benefits under either SSDI or SSI programs, an individual must have a medically determinable impairment that causes disability. The definition for disability is ‘the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or

has lasted or can be expected to last for a continuous period of not less than 12 months… .’ Substantial gainful work activity is any work of a nature generally performed for remuneration or profit, involving the performance of significant physical or mental duties, or a combination of both, which are productive in nature [Code of Federal Regulations, Title 20 C.F.R. 400-499 (1999)]. This definition includes part-time work regardless of pay or similarity to an individual’s former work. Medically determinable impairments are defined in terms of specific symptoms, signs, and laboratory findings. Symptoms, which are defined as the claimant’s own perception of his or her physical or mental impairments, are not by themselves medically determinable impairments. Regarding psychiatric impairments, signs are medically demonstrable abnormalities of behavior, affect, thought, memory, orientation, and reality testing. Laboratory findings include the usual chemical, electrophysiological, and roentgenological tests as well as psychological tests. The SSA has listed eight diagnostic categories of mental disorders that can result in a finding of disability based on a medically determinable impairment. These categories, which were essentially defined by DSM-III-R criteria (Spitzer and Williams 1987), are as follows: 1 2 3 4 5 6 7 8

Organic mental disorders. Schizophrenic, paranoid, and other psychotic disorders. Affective disorders. Mental retardation and autism. Anxiety-related disorders. Somatoform disorders. Personality disorders. Substance addiction disorders.

Each diagnostic group, except mental retardation and autism and substance addiction disorders, consists of a set of clinical findings (paragraph A criteria), one or more of which must be satisfied and which, if satisfied, lead to a test of functional restrictions (paragraph B criteria), two or three of which must be met. There are additional considerations (paragraph C criteria) concerning functional restrictions in the schizophrenic, paranoid, and other psychotic disorders and the anxiety-related disorders (Social Security Administration 1998). The paragraph A criteria determine the presence or absence of a mental disorder (i.e., medically determinable mental impairment). Criteria in paragraphs B and C are based on functional areas thought to be relevant to work and establish the severity of the disorder. A person who is seriously limited in these areas as a result of an impairment identified in paragraph A is generally presumed to be unable to work. Paragraph B of the listings describes the types of functional limitations caused by the various disorders. Paragraph B criteria are as follows (Social Security Administration 1998): 1 Marked restriction of activities of daily living. 2 Marked difficulties in maintaining social functioning.

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3 Deficiencies of concentration, persistence, or pace resulting in frequent failure to complete tasks in a timely fashion in work settings. 4 Repeated episodes of deterioration or decompensation in work or work-like settings that cause the individual to withdraw from the situation or to experience exacerbation of signs and symptoms (which may include deterioration of adapted behaviors). Activities of daily living involve everyday activities including cleaning, shopping, paying bills, and attending to one’s personal hygiene. Social functioning refers to an individual’s ability to interact appropriately with other individuals. Concentration, persistence, and pace refer to a person’s capacity to focus attention long enough to permit timely completion of tasks generally found in the workplace. Deterioration or decompensation in work or work-like settings refers to problems associated with the other three categories caused by stress related to work or similar settings. The examiner should be familiar with the more comprehensive definitions of these four areas that are provided in the Social Security Administration manual (Social Security Administration 1998). The paragraph C criteria, which were added to the schizophrenic, paranoid, and other psychotic disorders and the anxiety-related disorders, essentially recognize the significant impact of impairments related to certain chronic mental illnesses even when such impairments are decreased by the use of medication or certain psychosocial factors such as placement in a structured environment. The SSA recognizes that these eight categories of mental disorders do not embrace all types of clinical findings that may result in impairments severe enough to prevent work. In such circumstances, the evaluating physician or psychologist should use his or her judgment in determining whether an impairment with unlisted symptoms, signs, or laboratory findings restricts a person’s physical or mental capacity to an equivalent degree as would a listed disorder. The state DDS may find such a person disabled based on a report indicating that a person is experiencing medically equivalent impairments comparable to the criteria of the listings for mental disorders. Persons who have an impairment not meeting one listed by the SSA and not equivalent to any listed disorder may, in some instances, be found disabled if the demands of jobs in which the person might be expected to engage, based on age, education, and work experience, exceed the individual’s remaining capacity to perform. This residual functional capacity (RFC) is defined as ‘a multidimensional description of work-related abilities which an individual retains in spite of medical impairments’ (Social Security Administration 1986, p. 62). RFC, which complements the criteria in paragraph B and C of the listings for mental disorders, describes an expanded list of work-related capacities that may be impaired by mental disorder. An assessment of RFC involves addressing

the following four areas that are derivatives of the paragraph B criteria: 1 2 3 4

Understanding and memory. Sustained concentration and persistence. Social interaction. Adaptation.

If a person’s RFC is not sufficient to enable him or her to do their previous work, other factors will be considered in the assessment concerning a person’s ability to perform any other work, considering the claimant’s age, education, work experience, and job availability in the national economy. The Contract with America Advancement Act of 1996 (CWAAA), signed into law on March 29, 1996, included one truly essential amendment to the Social Security Act. The CWAAA abolished substance abuse as a disabling impairment. People who had received disability benefits on the basis of chronic substance abuse automatically had such benefits terminated as of January 1997 if drug addiction or alcoholism was a contributing factor material to a finding of disability unless they reapplied and could prove disability by reason of another impairment without considering the effect of drug or alcohol abuse. Specifically, the key factor to be examined in such cases was whether the individual would be found disabled if he/she stopped using drugs or alcohol. The House of Representatives estimated that nearly 10 000 recipients would be terminated from both disability insurance benefit and supplement security income eligibility rolls due to this amendment (Gropman 1997).

Relevant information Physicians and psychologists are frequently asked by their state DDS to provide a report concerning a patient under the care of the provider in order to assist the DDS in making a disability determination. These reports should contain a summary of the standard psychiatric examination, including mental status examination, diagnosis, prognosis, treatment recommendations, and a description of limitations and remaining functional capacities regarding ability to perform ordinary activities. A statement should be made whether any limitations have lasted or are expected to last for a continuous period of at least twelve months. Information concerning paragraph B criteria should be obtained from both the patient and other sources including community mental health centers, sheltered workshops, family members, and friends. The assessment should also contain an opinion concerning the claimant’s ability to handle his or her own funds. Familiarity and use of the disability examiner basic training program and the mental residual functional capacity assessment form, both available from the SSA, will provide a structured format for the report and enhance the credibility of the medical report (Social Security Administration 1987).

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Reasoning processes Applying the data obtained during a Social Security disability evaluation to the relevant legal SSA criteria will be very straightforward if the examiner structures the report based on the suggested format present in the referral letter from the DDS. It is encouraging that a study by the American Psychiatric Association demonstrated that SSA’s medical standards and guidelines for determining disability due to mental impairment operationalize the statutory definition of disability in a manner consistent with current psychiatric practice (Pincus et al. 1991).

PRIVATE DISABILITY INSURANCE Issues Various insurance companies offer individual disability policies designed to provide a disabled worker with greater financial benefits than are available through either the workers’ compensation system or Social Security Administration. These policies are generally expensive and are usually not selected by employees of large organizations due to the significant payroll deductions to cover the premium expense. These policies are more attractive to self-employed professionals for reasons similar to the justification used for purchasing life insurance. Wall and Appelbaum (1998) relate that disability in the professional workforce has significantly increased among physicians since 1989, and that about 3 million persons, many of them self-employed, were covered by individual disability policies in 1997. They also summarize legal and clinical issues involved in performing medical evaluations. Psychiatrists may be asked to evaluate a policyholder who is claiming disability based on psychiatric reasons. It is important to obtain multiple sources of information during such an examination. Information from surveillance may also be helpful. Psychological testing is often helpful in the functional and diagnostic assessment.

Legal criteria The psychiatrist needs to know the specific policy definition of disability in order to focus on the relevant standard. The better policies will describe disability in terms of the policyholder’s specific occupation. Such policies might define disability as: ‘due to injury or sickness, the policyholder cannot perform each of the material duties of his/her regular occupation.’ Additionally, such policies may define ‘regular occupation’ with particularity. For example, the definition of disability for an attorney might specify that ‘regular occupation’ means the specialty in the practice of law the policyholder was practicing just

prior to the date that the disability started. Policies may define disability in terms of being unable to perform one’s regular occupation on a full-time basis for a particular period of time (usually more than 90 days) or in terms of significantly decreased earning capacity related to injury or sickness.

Relevant information The examination should address issues related to the specific policy definitions of disability. Referral sources vary on whether they want issues concerning treatment and prognosis to be addressed. As in the workers’ compensation examination, the examiner should also obtain a detailed occupational and legal history. In addition to the usual elements of psychiatric assessments and disclosure relevant to the independent medical examination (IME) process, Wall and Appelbaum (1998) recommend that the examiner obtain the following information:

• • • • • • • •

the insured’s current income, disability benefits, and policy terms; current symptoms and stressors; a description of the insured’s typical day before and after the onset of disability; the insured’s functioning prior to disability; contributing factors to disability; efforts at and responses to treatment; efforts at returning to work during or after treatment; and future plans and self-prognosis.

Reasoning process Evaluations addressing issues related to private disability insurance determinations are similar to the workers’ compensation examination. However, such assessments are generally less complicated because causation is usually not an issue. Issues of secondary gain are often more prominent due to the superior benefits offered by most private insurance disability policies.

PERSONAL INJURY Issues Historically, personal injury litigation has involved claims for damages caused by physical injuries. Courts have long recognized that psychological injuries often accompany physical injuries and when a causal connection between the physical and psychological injuries has been shown, damages for both types of injuries are recoverable. Courts (and legislatures) have been more reluctant to compensate plaintiffs for mental suffering alone, since such claims are difficult to prove and it is often hard to

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distinguish between serious emotional injury and feigned or exaggerated claims. However, most states recognize such claims, due in part to increasing sophistication in medical ability to diagnose and document the existence of psychological injuries which are not caused by physical trauma.

Legal criteria When a plaintiff claims psychological injury as the result of another’s tortious conduct, the claim is for infliction of emotional distress, which can be either a deliberate act or a negligent act. Each state has its own case law dealing with such claims. Intentional infliction of emotional distress is sometimes referred to a ‘outrageous conduct,’ i.e., intentional acts which the average member of the community would find atrocious and utterly intolerable and outside the bounds of decency (Keeton et al. 1984). Physical injury is not an element of intentional infliction of emotional distress. Negligent or unintentional conduct is the predominant source of civil litigation involving emotional damages. In order to recover in such litigation, the plaintiff must prove that the defendant should have realized that his or her conduct involved an unreasonable risk of causing emotional distress, and that such negligence caused emotional distress of sufficient severity. A legal duty is a standard imposed by law requiring individuals to conduct themselves in a manner that does not unreasonably interfere with the rights of others. There are three generally accepted standards or theories of legal duty concerning negligent infliction of emotional distress: the impact rule; the zone of danger rule; and the foreseeability test. States differ as to which legal standard should be imposed on defendants in such cases. The impact rule requires physical impact upon the plaintiff, otherwise damages may not be recovered for emotional stress caused by the negligence of another. Victorian Railways Commission v. Coultas (1888) is an early English case in which a woman was denied recovery for mental shock that resulted in almost being hit by a passing train. The impact rule often nets unjust results and some courts have devised legal fictions to thwart its application. The zone of danger rule holds that the plaintiff may recover for emotional distress, even if there has been no impact, where the plaintiff is in the zone of physical danger and experiences emotional distress caused by the negligence of the defendant. A typical scenario is where a negligently operated vehicle nearly strikes the plaintiff. In such an instance, the plaintiff would not suffer physical impact, but the near-miss would be a reliable indication that the plaintiff could have suffered emotional harm. The foreseeability test is the most liberal and complicated of the duty tests. A pure foreseeability test is satisfied by asking the objective question: Is it reasonably

foreseeable that the plaintiff would be harmed given the defendant’s actions? This test can be divided into two categories: (i) claims that seek damages for direct infliction of emotional distress; and (ii) claims that seek damages for indirect infliction of emotional distress. Indirect claims are often known as claims for ‘bystander recovery.’ In order to obtain recovery for direct infliction of emotional distress, the defendant’s negligent conduct must be directed toward the plaintiff, the plaintiff must suffer severe emotional distress, and the emotional distress must be a foreseeable and proximate result of the defendant’s negligent act. The defendant is liable for all of the reasonably foreseeable results of his or her negligence. While recovery for psychological injury is quite restricted for an individual’s direct injury because of artificial legal barriers, even more harsh are the legal hurdles that a bystander must overcome. It was not until 1968 that a court finally lowered the bar against bystander recovery. In Dillon v. Legg (1968), a mother was allowed to recover for her own psychic injury after she watched her infant daughter killed by a negligent driver. Generally speaking, a bystander can recover for negligent infliction of emotional distress when there is foreseeability and there is: 1 Death or serious physical injury of another caused by the negligence of the defendant. 2 A marital or intimate familial relationship between the bystander and the injured person. 3 Observation of the death or injury at the scene of the accident. 4 Severe emotional distress experienced by the bystander. Issues concerning element 3 are highly litigated related to the definition of observation and how contemporaneous with the injury the observation is made. In other words, what must the bystander observe and how soon after the injury? The clear trend concerning these legal theories is toward application of the foreseeability test and toward discarding the more restrictive impact rule and zone of physical danger rule. There is also disagreement among jurisdictions as to what type and how severe the plaintiff’s injuries must be before recovery for emotional distress will be allowed. In impact rule jurisdictions, there is a split of authority as to whether the plaintiff must also suffer a corresponding physical injury or whether mere contact is sufficient indication that the plaintiff could have suffered emotional harm. In both the zone of danger and foreseeability jurisdictions no impact is required, but there is nonetheless often a requirement for physical manifestation of emotional injury, which may be as little as recurrent nausea or headaches. On the other hand, in jurisdictions where there is no requirement of physical manifestations of emotional harm, there may be a required showing of severe emotional distress that is often defined as a disabling emotional or mental condition that may be generally recognized and diagnosed by mental health professionals.

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The issue of a plaintiff’s vulnerability in personal injury cases is considered in states which follow the eggshell or thin skull doctrine (i.e., take the victim as you find him) (Keeton et al. 1984). An eggshell plaintiff is a person who is extremely vulnerable to even a minor trauma but has remained asymptomatic prior to the injury. The person who cracks a plaintiff ’s eggshell skull, even if the trauma is minimal, is legally responsible for the damages that ensue under the eggshell doctrine (Simon 1995). However, the eggshell doctrine is generally rejected by courts in determining awards for emotional injury. In such jurisdictions, recovery is usually restricted for normally constituted individuals who show reasonably predictable reactions to acutely stressful stimuli (Twiford 1985) due to issues related to both cost and problems relevant to causation. For example, the Supreme Judicial Court of Maine opined in Theriaulta v. Swan (1989) that: … in order to recover for either negligence or reckless infliction of emotional distress, a plaintiff must demonstrate that the harm alleged reasonably could have been expected to befall the ordinary sensitive person [citations omitted]. When the harm reasonably could affect only the hurt feelings of the supersensitive plaintiff – the eggshell psyche – there is no entitlement to recovery. If however, the harm reasonably could have been expected to befall the ordinarily sensitive person, the tort feasor must take his victim as he finds her, extraordinarily sensitive or not.

Therefore, pre-existing conditions are an important element to be considered in such litigation. It has been long argued that emotional damages are too speculative to permit recovery for claims of emotional distress without some reliable evidence of the damage such as actual physical harm or physical manifestations of the emotional harm. However, advances in evaluating and diagnosing mental injuries have lessened the need for such artificial standards. Psychiatry can provide sufficiently reliable information concerning the existence and causation of psychic injuries. With such testimony the trier of fact can properly evaluate claims of psychic injury and assess whether a particular claim is concocted and factious or, in fact, real. So stated the Colorado Supreme Court in Towns v. Anderson (1978).

2 Whether a disorder would have occurred at all but for the instant event(s). 3 The significance to the current disorder of proximate, pre-existing, and co-existing factors. 4 The course of a pre-existing disorder with the focus on eventual impairments in the absence of the instant event(s). 5 The role of other factors including malingering, exaggeration, convenient focus, and secondary gain on the current problem(s).

Reasoning processes General forensic principles, which have already been described, apply equally to these evaluations. The medical– legal assessment of a personal injury case generally focuses on identifying the existence of a psychic injury, determining proximate cause, assessing credibility, and assessing prognosis. The nature and degree of impact of the specific event(s) on the life of the plaintiff should be described within the context of a biopsychosocial model (Hoffman and Spiegel 1989). The expert should describe findings and provide diagnostic formulations at a level of probative value that attains the ‘reasonable scientific certainty’ (or equivalent standards, e.g., reasonable degree of medical probability) standard, which is the evidentiary standard in most civil cases (Weissman 1985).

CONCLUSION Proper preparation for the forensic evaluation will increase the forensic psychiatrists’s ability to aid in the resolution of disability and/or personal injury litigation. Proper preparation includes adequate understanding of the specific medical–legal issues to be addressed, with specific knowledge of the relevant legal criteria. The usual forensic principles apply in these evaluations, which should help minimize the issues of double agentry and clarify issues related to confidentiality. A clearly written report summarizing the findings of the evaluation will minimize the need for courtroom testimony by the expert since such reports often facilitate resolution of the legal disputes.

Relevant information REFERENCES The psychiatric examination should address the accuracy and nature of alleged impairments, and whether they are proximately related to the injury or exposure. The assessment, which should be as comprehensive as described in the section on workers’ compensation, needs to address the following issues (Weissman 1985): 1 The extent to which the accident or exposure caused a new disorder or exacerbated a pre-existing disorder.

Anthony, W.A., Rogers, E.S., Cohen, M., Davis, R.R. 1995. Relationships between psychiatric symptomatology, work skills, and future vocational performance. Psychiatric Services 46, 353–8. Ash, P., Goldstein, S.I. 1995. Predictors of returning to work. Bulletin of the American Academy of Psychiatry and the Law 23, 205–10.

Psychiatric disability determinations and personal injury litigation 271 Barth, P.S., Niss, M. 1999: Permanent Partial Disability Benefits: Interstate Differences: Workers Compensation Research Institute. Beveridge v. Industrial Accident Commission, 346 P.2d 545 (Cal. Nov. 25, 1959). Bowen v. Johnson, 482 U.S. 922 (1987). Brodsky, C. 1987a: Factors influencing work related disability. In Meyerson, A.T., Fine, T. (eds), Psychiatric Disability: Clinical, Legal, and Administrative Dimensions. Washington, DC: American Psychiatric Press, 49–65. Brodsky, C. 1987b: The psychiatric evaluation in worker’s compensation. In Meyerson, A.T., Fine, T. (eds), Psychiatric Disability: Clinical, Legal, and Administrative Dimensions. Washington, DC: American Psychiatric Press, 313–32. Brodsky, C.M. 1990. A psychiatrist’s reflections on the workers’ compensation system. Behavioral Sciences and the Law 8, 331–48. Brooks, A.M. 1999: SSI Annual Statistical Report 1998. Baltimore, Maryland: Social Security Administration. Bursten, B. 1986. Psychiatric injury in women’s workplaces. Bulletin of the American Academy of Psychiatry and the Law 14, 245–51. Burtless, G. 1994: Public spending on the poor: historical trends and economic limits. In Danziger, S.H., Sandefur, G.D., Weinberg, D.H. (eds), Confronting Poverty: Prescriptions for Change. Cambridge, MA: Harvard University Press. Carter v. General Motors Corp., 361 Mich. 577, 106 N.W.2d 105 (1960). Centers for Disease Control and Prevention. May 1, 1998. Self-reported frequent mental distress among adults – United States, 1993–1996. Morbidity and Mortality Weekly Report 47, 325–31. Cocchiarella, L., Andersson, G.B.J. 2000: Guides to the Evaluation of Permanent Impairment, 5th edition. Chicago: AMA Press. Colo. Rev. Statutes, 8-41-1081(2.5) 1991a. Colo. Rev. Statutes, 8-41-302(2) (suppl.) 1991b. Dentzer, S.J., McCormick, J., Tsurouka, D. 1986. A cure for job stress. Newsweek June 2, 46–7. Deziel v. Difco Laboratories, 403 Mich. 1, 268 N.W.2d 1 (1978). Dillon v. Legg, 441 P.2d 912 (Cal. 1968). Doege, T.C., Houston, T.P. (eds). 1993: Guides to the Evaluation of Permanent Impairment, 4th edition. Chicago: American Medical Association. Dubin, J.C. 1995. Social security law. 26 Texas Tech. Law Review 763. Eccleston, S.M., Victor, R.A. 1998. Regulatory trends in workers’ compensation managed care. Occupational Medicine: State of the Art Reviews 13, 787–98. Enelow, A.J. 1991. Psychiatric disorders and work function. Psychiatric Annals 21, 27–35. Gropman, L.M. 1997. Social security. Detroit College of Law Review 755.

Head, T.R. 1997. Crochiere v. Board of Education of Enfield: Workers’ compensation for job related mental disease claims – stress reliever or judicial headache? 21 American Journal Trial Advocacy 131, 137. Hoffman, B.F. 1986. How to write a psychiatric report for litigation following a personal injury. American Journal of Psychiatry 143, 164–9. Hoffman, B.F., Spiegel, H. 1989. Legal principles in the psychiatric assessment of personal injury. American Journal of Psychiatry 146, 304–10. ICIDH-2. 1999: International Classification of Function and Disability. Beta-2 draft, full version. Geneva, World Health Organization. Johnson v. Heckler, 769 F.2d 1202, 1210 (7th Cir. 1985). Juge, D.P., Shraberg, D. 1984. Marking out boundaries: the relationship between work and psychological disorders, a legal and medical analysis. Loyola Law Review 30, 249–69. Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir. 1984) (quoting Paul R. Verkuil, the self-legitimating bureaucracy, 93 Yale Law Journal 780, 781 (1984). Keeton, W.P., Dobbs, D., Keeton, R., Owen, D. 1984: Prosser and Keeton on Torts. 5th edition. St. Paul: West Publishing Company. Kennedy, C., Gruenberg, E. 1987: Lexicology for the consequences of mental disorders. In Meyerson, A.T., Fine, T. (eds), Psychiatric Disability: Clinical, Legal, and Administrative Dimensions. Washington, DC: American Psychiatric Press, 3–12. LaPlante, M.P. 1993a: Disability Statistics Report: State Estimates of Disability in America. Washington, DC: U.S. Department of Education, Office of Special Education and Rehabilitative Services/National Institute of Disability and Rehabilitation Research (No. 3). LaPlante, M.P. 1993b. Centers for Disease Control and Prevention. Current trends: prevalence of work disability – United States, 1990. Centers for Disease Control and Prevention Morbidity and Mortality Weekly Report 42(39). Lawson, A. 1973: The Law of Workmen’s Compensation. New York: Matthew-Bender. Levy, R.E.M. 1990. Social security disability determinations: recommendations for reform. Brigham Young University Law Review 480. London, D.B., Zonana, H.V., Loeb, R. 1988: Workers’ compensation and psychiatric disability. In Larsen, R.C., Felton, J.S. (eds), Occupational Medicine (State of the Art Reviews): Psychiatric Injury in the Workplace. Philadelphia: Hanley and Belfus, Inc., 595–609. Mashaw, J.L. 1983: Bureaucratic Justice: Managing Social Security Disability Claims. New Haven: Yale University Press. Matsumoto, A.V. 1994. Comment. Reforming the reform: mental stress claims under California’s Workers’ Compensation System. 27 Loyola Law Review 1327, 1335.

272 Civil law McGarrah v. SAIF, 15 Oregon App. 448, 651 P.2d 153 (1982). Mussof, J. 1981. Determining the compensability of mental disabilities under workers; compensation. Southern California Law Review 55, 193–253. Nicholi, A.M. 1999: History and mental status. In Nicholi, A.M., Jr. (ed.), The Harvard Guide to Psychiatry. Cambridge, MA: The Belknap Press of Harvard University Press, 26–39. Parlour, R.R., Jones, L.R. 1980. Theories of psychiatric defense in workmen’s compensation cases. Bulletin of the American Academy of Psychiatry and the Law 8, 445–55. Pincus, A., Kennedy, C., Simmens, S.J., et al. 1991. Determining disability due to mental impairment: APA’s evaluation of Social Security Administration guidelines. American Journal of Psychiatry 148, 1037–43. Rappeport, J.R., Binder, R., Ciccone, J.R., et al. 1991: The need for mental health professionals in the legal system. In The Mental Health Professional and the Legal System, formulated by the Committee on Psychiatry and Law, Group for the Advancement of Psychiatry, New York: Brunner/Mazel, 18–19. Ruesch, J., Brodsky, C.M. 1968. The concept of social disability. Archives of General Psychiatry 19, 394–403. Simon, R.I. 1995: Posttraumatic Stress Disorder in Litigation: Guidelines for Forensic Assessment. Washington, DC: American Psychiatric Press, Inc. Social Security Administration. 1986: Disability Evaluation Under Social Security (SSA Publication No. 64-039). Washington, DC: U.S. Department of Health and Human Services. Social Security Administration. 1987: Disability Examiner Basic Training Program (Mental Impairments) (SSA Publication No. 25-1198). Washington, DC: U.S. Department of Health and Human Services. Social Security Administration. 1998: Disability Evaluation Under Social Security (SSA Publication No. 64-039).

Social Security Administration. 1999: Annual Report of the Supplemental Security Income Program. Social Security Administration: Baltimore, Maryland. Spieler, E.A. 1995. Assessing fairness and workers’ compensation reform: a commentary on the 1995 West Virginia workers’ compensation legislation. 98 West Virginia Law Review 23. Spitzer, R.L., Williams, J.B.W. (eds). 1980: Diagnostic and Statistical Manual of Mental Disorders. 3rd edition. Washington, DC: American Psychiatric Association. Spitzer, R.L., Williams, J.B.W. (eds). 1987: Diagnostic and Statistical Manual of Mental Disorders. 3rd edition, revised. Washington, DC: American Psychiatric Association. Strauss, G.D. 1995: The psychiatric interview, history, and mental status examination. In Kaplan, H.I., Sadock, B.J. (eds), Comprehensive Textbook of Psychiatry VI. Baltimore: Williams & Wilkins, 521–30. Theriaulta v. Swan, 558 A.2d 369, 372 (ME 1989). Towns v. Anderson, 579 P.2d 1163 (Colo. 1978). Twiford, J.R. 1985. Emotional distress in tort law. Behavioral Sciences and the Law 3, 121–33. Victorian Railways Commission v. Coultas, 13 App. Ca. 22, 57 L.J.P.C. 69 (P.C. 1888). Wall, B.W., Appelbaum, K.L. 1998. Disabled doctors: the insurance industry seeks a second opinion. Journal of the American Academy of Psychiatry and the Law 26, 7–19. Warshaw, L. 1988: Occupational stress. In Larsen, R.C., Felton, J.S. (eds), Occupational Medicine (State of the Art Reviews): Psychiatric Injury in the Workplace. Philadelphia: Hanley and Belfus, Inc., 587–93. Weissman, H.N. 1985. Psycholegal standards in the role of psychological assessment and personal injury litigation. Behavioral Sciences and the Law 3, 135–47. World Health Organization. 1993: International Classification of Impairments, Disabilities, and Handicaps. Geneva: World Health Organization.

30 Americans with Disabilities Act evaluations A. JOCELYN RITCHIE AND HOWARD V. ZONANA

Psychiatrists and other mental health professionals who provide mental health treatment to individuals with mental and physical disabilities come under the Americans with Disabilities Act’s anti-discrimination provisions in their roles as providers in both the public sector and in private practice. In addition, psychiatrists and other mental health providers are uniquely positioned to serve as valuable consultants to business, to governmental agencies, and to individuals with mental illnesses and other cognitive impairments.

HISTORY AND OVERVIEW The Americans with Disabilities Act (ADA) was passed in 1990 and reflected bipartisan efforts by Congress and the George H. W. Bush administration to build on existing federal legislation to extend anti-discrimination protections for individuals with disabilities into a broad range of activities of daily life. In addition to sections outlining Congressional findings regarding disability discrimination, the ADA includes five individual Titles covering private employment (Title I), public services and public transportation operated by state and local government (Title II), private sector public accommodations and commercial facilities (Title III), telecommunications (Title IV), and a variety of miscellaneous provisions, including specific exclusions (Title V). Although there are some common definitions (such as who is ‘an individual with a disability’ covered by the Act), each Title must be considered separately due to differences in how discrimination rights and responsibilities are balanced. Titles I, II, and III are discussed below, as are some of the exclusions found in Title V. Title IV will not be discussed. Its relevance to psychiatry lies primarily in the requirement that telephone companies provide operator relay services to connect deaf or hard-of-hearing individuals who use teletype machines to communicate by phone with individuals who do not use these machines

(including most psychiatrists and other mental health professionals). Enforcement provisions vary from Title to Title, but generally the ADA provides judicial and/or administrative relief including policy changes, accessibility accommodations and, in some cases, money damages. The ADA encourages the use of alternative means of dispute resolution, including settlement negotiations, conciliation, facilitation, mediation, fact-finding, minitrials, and arbitration. In addition, reasonable attorneys fees, including litigation expenses and costs, may be granted to the prevailing party in any judicial or administrative action taken under the Act, at the discretion of the judge or administrative hearing officer. A ‘prevailing party’ must have succeeded on any ‘significant issue’ in the case and obtained at least some of the relief sought. This provision applies to both the plaintiff and the defendant, and is intended to prevent frivolous actions being brought, and to prevent frivolous or uncooperative defenses being waged. Attorneys fees are most likely to be granted in situations where parties have refused to negotiate reasonable accommodations in good faith or have failed to consider reasonable settlement offers in a timely manner, rather than from the existence of an underlying problematic situation in the first place. Most ADA disputes are resolved without going to court, and interestingly, by one estimate, approximately 90 per cent of all ADA employment claims that proceed to court are resolved in favor of the employer (Blanck 1999). Overall, the ADA requires an individualized approach to each situation, governed by a general conceptual framework provided by the Act. Specifically, the analysis must focus on the particular fact pattern, taking into account the individual abilities of the person requesting an accommodation (rather than relying on a diagnosis per se), balanced against the circumstances of the entity from whom the accommodation is requested. A working knowledge of the ADA is increasingly important for mental health providers. More than one type of evaluation may be needed to provide sufficient

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justification for (or defense against) a finding of disability under the ADA. Psychiatrists and psychologists may be asked to render a professional opinion on: 1 Whether the individual in question meets diagnostic criteria for a particular disorder. 2 Whether the disorder results in functional impairments of sufficient intensity and duration (relative to the ability of the average person in the general population to perform one or more major life activities) to qualify as having a ‘disability’ within the scope of the Act. 3 The objective, scientific basis to support their findings of disability or functional impairment. 4 The specific ways that the impairments affect the individual’s ability to function within a specific environment. 5 The types of accommodations that might be appropriate to relieve the impact of the impairment. 6 The specific rationale for each recommended accommodation. For example, mental health professionals who are asked to provide forensic evaluations under the employment provisions of the ADA (discussed below) must determine an individual’s functional limitations (and suggested accommodations) in light of the specific requirements of the essential functions of the job (as defined by the employer) rather than the functions of a general job classification. If the functional requirements of the job are not well defined, the examiner should note those limitations in reporting the results of their assessment. A working knowledge of the ADA is important for other reasons. Mental health providers are themselves ‘covered entities’ under the ADA (as well as related civil rights statutes), and may need to respond to requests for accommodations from patients and employees. For example, psychiatrists provide mental health services to the public, either through private practice (Title III) or through state or local government practice (Title II). In addition, they may employ more than fifteen employees (Title I), and they may be required to meet similar requirements under another federal anti-discrimination provision (i.e., Section 504 of the Rehabilitation Act of 1973) because they accept Medicaid or Medicare payments or accept federal research grants. The purpose of this chapter is to provide some guidance to clinicians when consulting on ADA-related cases, as well as to assist clinicians in reducing their own risk of unintentionally incurring liability under the ADA. The authors caution, however, that one of the core elements of the ADA is an individualized analysis of the circumstances of the various parties under the ADA. Thus, this chapter is offered for general information purposes only, and is not intended to substitute for appropriate legal advice.

DISABILITY The ADA utilizes a three-part definition of disability, which is applied to the Act in its entirety. With respect to an individual, ‘disability’ means:

•

• •

a physical or mental impairment that substantially limits one or more major life activities of such individual (i.e., caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, or working); a record of such an impairment; or being regarded as having such an impairment.

The third prong of the definition is particularly important for individuals with mental disorders due to the stigma historically attached to mental illness. The ADA also extends protections to people associated with an individual with disability. These would include spouses, parents, foster-parents, children, employers, friends, and service providers, if they were discriminated against on the basis of their known association with an individual with a disability. Thus, the ‘association’ provisions of the ADA could be used to protect against discrimination against community mental health service providers in leasing otherwise available office space. Mental impairment includes ‘any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.’ Thus, major depression, bipolar disorder, schizophrenia, personality disorders and anxiety disorders may be impairments under the ADA. However, the ADA takes a functional rather than categorical approach, and a diagnosis is not presumptive evidence of a disability. Rather, the impairment must present a substantial limitation on one or more major life activities, which depends on the severity and permanence of the impairment relative to the average population (see Parry 1994 for an excellent discussion of mental disorders and the ADA). At least hypothetically, ‘mental impairment’ could also include severe personality disorders provided it could be shown that the person experiences substantial limitations in one or more major life activities. For example, a person might be able to demonstrate a pattern of severe selfinjurious behaviors associated with borderline personality disorder that substantially impairs that person’s ability to care for him or herself or to work, relative to the average population. On the other hand, a person with a severe personality disorder would still need to meet the other requirements under the various titles of the ADA (e.g., being able to do the job with or without accommodations) and overcome one or more of the exclusions (e.g., employment regulations which go beyond the Act itself in excluding individuals who pose a danger to themselves; see below). It would be important to analyze the individual circumstances of the question involved. Even if the person in the above example was excluded or

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unable to meet other qualification standards for purposes of a Title I employment case, the ADA association protections might prevent an employer from firing the spouse (or parent) of that person in an attempt to reduce the employer’s health insurance costs associated with the employee’s dependent’s self-injury. Short-term physical impairments such as broken legs, adjustment disorders, or short-term situational depression typically would not be considered disabilities under the Act. Individuals with episodic mental illnesses may be covered if they can be shown to have chronic disabling effects such as seen in many individuals with schizophrenia in remission. Individuals who cannot show chronic disabling effects may still be covered if they are discriminated against due to their history of mental illness or due to stigma, under prongs two and three, respectively. An exception to the functional approach of the ADA is found in Title V of the ADA, which categorically excludes certain individuals who might otherwise be covered, including people who engage in certain sexual behaviors, certain antisocial behaviors, and illegal drug use. Title V of the ADA categorically excludes homosexuality, bisexuality, transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders, compulsive gambling, kleptomania, or pyromania, and, psychoactive substance use disorders resulting from current illegal use of drugs. In addition, the definition of disability does not include an individual who is currently engaging in the illegal use of prescription or illicit drugs. This exclusion does not apply to an individual who:

• • •

has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer using drugs illegally; is participating in a supervised rehabilitation program and is no longer engaging in such use; or is erroneously regarded as engaging in such use, but is not engaging in such use.

Evaluations of mental impairment can include traditional diagnostic techniques regarding the existence of impairment and its functional limitations. Certain mental disorders such as attention deficit hyperactivity disorder (ADHD) or specific learning disorders typically require psychological and neuropsychological testing, in addition to clinical interviews and thorough histories, in order to support a finding that an individual is substantially impaired relative to the general population. Some employers and public accommodations (e.g., many universities, many state bar associations, the National Board of Medical Examiners) go further and require that specific psychological and neuropsychological measures be used as supportive documentation (see discussion below). In addition, evaluations may include a retrospective assessment of whether there was a history of mental impairment and appropriate documentation of substantial limitations in

major life activities, such as through school and medical records. In 1999, the Bazelon Center for Mental Health Law compiled lists of functional limitations that people with mental illnesses may experience in the workplace, either as a result of their illness or due to the effects of medications. According to the Bazelon Center, work-related social or emotional limitations due to mental illness might include difficulties interacting with others, including: asking for feedback on job performance, responding appropriately to negative feedback, initiating corrective action, providing explanations, describing events, responding appropriately to supervision, maintaining relationships with supervisors, responding appropriately to supervisors, maintaining relationships with co-workers, responding appropriately to co-workers, and adapting to a new supervisor. The Bazelon list of potential work-related cognitive limitations due to mental illness include: understanding and carrying out directions, assessing one’s own performance, making decisions, exercising judgment, problem-solving capacity, learning new tasks, adapting to a change in work assignment, focusing on multiple tasks simultaneously, screening out environmental stimuli, processing information, and maintaining boundaries of responsibility. Work-related limitations due to mental illness in the physical domain might include maintaining a fixed work schedule, maintaining work pace, and maintaining stamina throughout the workday, in addition to medication side effects such as blurred vision and changes in motor control which could affect work performance. The complete Bazelon Center list is available through their website at: www.bazelon.org, which also includes links to a myriad of other useful websites offering information about the ADA.

EXCLUSIONS In addition to categorical exclusions, people who pose a ‘direct threat’ to the health and safety of others, that cannot be eliminated or reduced by reasonable accommodations, are excluded from the protections of the ADA, even if they otherwise meet the definition of ‘an individual with a disability.’ The wording of the ADA statute itself states that the exclusion applies to ‘the health and safety of other individuals,’ but regulations interpreting the employment provisions of the ADA state that a ‘direct threat’ is ‘a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.’ In School Board of Nassau County, Florida v. Arline, the United States Supreme Court, held that tuberculosis may be a handicapping condition covered by Section 504 of the federal Rehabilitation Act. In determining whether the individual poses a ‘direct threat,’ the court held that the determination must be based on: (i) reasonable medical judgments that assess the nature, duration, and severity

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of the risk to the individual and other parties; (ii) the probabilities that the disease will be transmitted and will cause harm; and (iii) whether any reasonable accommodation can be made by the employer to ameliorate the risk. The Court held that the determination of ‘direct threat’ must be based on an individualized inquiry, and that normally courts should defer to the reasonable medical judgments of public health officials in making their findings. The Arline standard was expressly adopted in regulations for the various ADA titles, and has been applied to the ADA by the Supreme Court in Bragdon v. Abbott (1998), a case in which an individual with HIV was refused outpatient dental services. In Bragdon, the Supreme Court determined that HIV-seropositivity was a disability from the moment of infection, based on the course of the disease and its impact on reproduction, a major life activity. Generally stated, the ADA and its regulations require that any threat of harm be based on sound medical judgment, and real threats of harm be distinguished from fears based on stereotypes or myths. In addition, exclusion cannot be based on speculative or remote risks, but rather must be ‘significant.’ Assessments must be based on the most current medical knowledge and/or the best available objective evidence, implying a familiarity with modern risk assessment techniques, including corroborating evidence of dangerousness. Scientific evidence and expert testimony must have a traceable, analytic basis in objective fact. Thus, a person with a history of repeated assaultive behavior as a result of his or her mental illness may be excluded if it can be shown that the threat is significant and cannot be eliminated or reduced through reasonable accommodations. However, a person with a mental illness including a prior history of assaultive behaviors only when psychotic would not be excluded if he or she is no longer psychotic and he or she is likely to become psychotic in the near future (e.g. no history of repeated medication non-compliance and return of psychosis under a particular set of circumstances). Threats of harm may include a variety of behaviors that place others in danger. For example, under the Equal Employment Opportunity Commission Title I employment provisions, the cognitive effects of a psychiatric illness that affect an individual’s ability to operate heavy machinery or otherwise perform his or her job properly may constitute a ‘direct threat’ to others, which could justify exclusion. Law enforcement officers, fire fighters, and lifeguards may require greater safety margins than some other jobs, and therefore may have lower thresholds for what constitutes a ‘direct threat’ to others in terms of mental or physical performance in order to meet the essential functions of the job. Although not an ‘exclusion’ per se, the ADA does not come into play unless and until the otherwise qualified individual with a disability requests an accommodation, thereby putting the covered entity on notice. In the typical situation under Titles I, II, or III, if a person chooses not to disclose their disability or chooses not to request

an accommodation, he or she is choosing not to come under the protections of the ADA. However, some individuals with mental illnesses or other cognitive impairments may not recognize that they have impairments that could be accommodated. Alternatively, people who do recognize their impairments and wish to request accommodations may, by reason of their mental illnesses or cognitive impairments, require accommodations to be made in the notification and application process, particularly if the business or public entity has reason to know that a significant percentage of the people it serves have such mental illnesses (e.g., some public housing).

COURT DECISIONS REGARDING ‘DISABILITY’ Recent Supreme Court decisions, including Bragdon noted above, underscore the Court’s strict interpretation of the Act’s reliance on functional impairments when determining eligibility. In Bragdon, the Court ostensibly broadened coverage of the Act by affirming its application to individuals with asymptomatic HIV, citing significant impairments in the major life activity of reproduction due to HIV infection. Approximately one year later in Murphy v. United Parcels, Sutton v. United Airlines, Inc., and Albertson’s v. Kirkingburg, the Court substantially narrowed the number of individuals covered by the ADA in ruling that mitigating measures taken to control the effects of an individual’s impairment – such as eye glasses, medication, or other therapy – may impact whether an individual meets the functional requirements for having a disability under the ADA. Finally, the Court held that having substantial limitations in the major life activity of working is being ‘significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.’ As a result of these recent decisions, advocates such as those at the Bazelon Center foresee that many people who use mitigating measures may be at risk of losing the protections of the ADA. Determining whether an individual who takes medication (or other mitigating measures) has a disability now requires a very careful analysis of what functional limitations the person continues to experience despite medication and/or therapy. The ADA likely protects those whose mitigating measures do not fully control the effects of their impairments or who face intermittent periods of substantial limitations, such as some individuals with bipolar disorder or schizophrenia whose symptoms are only attenuated or remain regardless of compliance with medications. The ADA would likely apply to individuals who experience side effects, such as significant mobility impairments due to medications which otherwise successfully alleviate the delusions caused by schizophrenia. In addition, the substantial limitation may be caused by a combination of the side effects of the

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mitigating measures and the effects of the impairment itself. ADA will continue to protect individuals whose symptoms are under good control but who have a record of substantial limitations in major life activities. However, merely demonstrating a record of prior hospitalization may not be sufficient, as courts may require evidence demonstrating a specific substantial limitation of a major life activity to establish the record of disability under the second prong of the ‘disability’ definition necessary to be eligible for protection under the ADA.

TITLE I: EMPLOYMENT Title I of the ADA applies both to current employees and job applicants to ensure equal opportunity in the application process and enjoy equal benefits and privileges of employment to individuals with disabilities. Title I only applies to employers with fifteen or more employees. As with the Rehabilitation Act before it, ADA Title I protections extend only to qualified individuals with disabilities in employment. A ‘qualified individual with a disability’ is defined in the Act as an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the job that the individual holds or desires. A reasonable accommodation is anything which enables an otherwise qualified person with a disability to perform the essential functions of a particular job, as long as the accommodation would not impose an undue hardship on the employer. Title I of the ADA requires an individualized approach to address the needs and circumstances of both employees and employers when considering what accommodations are reasonable. If several accommodations are available and would provide equivalent benefits, the employer may select the accommodation that is most easily provided or is least expensive. Experts asked to render opinions regarding the functional limitations of an individual and make recommendations for accommodations with respect to a certain job should strive to obtain as much information as possible about the job in question, including requesting the job description (or any available ‘job analysis’) from employers. Job accommodations may include: changing the physical environment to reduce distractions for individuals with limited concentration abilities; individualized flexible schedules; flexible return-to-work plans following an episodic relapse; job restructuring to reassign problematic auxiliary tasks; allowing extra time to learn new tasks; and providing supports for employees during times of stress. Experts also need to be sophisticated in their understanding of the subtle differences between a referral for a disability evaluation under the ADA from a disability evaluation under other statutes such as Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI). In Cleveland v. Policy Management Systems Corp. et al. the Supreme Court held that pursuit and

receipt of SSDI benefits do not automatically bar a person from pursuing an ADA claim or erect a strong presumption against the recipient’s ADA success. However, the person must sufficiently explain why the statements on the SSDI application (that the person is disabled and cannot work) are consistent with the ADA claim that the individual can now perform the essential functions of the job, at least with reasonable accommodation. The ADA protects job applicants with disabilities, but does not require employers to give individuals with disabilities any special preferences. After first determining the essential functions of the job, the employer then determines the qualification standards that are job-related for the particular position (rather than a general class of job) and consistent with business necessity, including education, skills, experience, physical, medical, and safety requirements. Prior to making a job offer, employers may only ask about applicants’ abilities to perform job-related functions, and may not ask whether an individual has a disability nor the nature and extent of any obvious disability. Medical examinations can only be performed after an individual has been given a provisional offer for the position, and then only for the specific purpose of determining whether an individual can perform the essential functions of that particular job. The physician or other health professional is not under a duty to limit the examination and inquiry to ‘job-related functions’ or to domains ‘consistent with business necessity.’ However, if a job offer is withdrawn after such an examination, it is the duty of the employer to show that the reasons for the exclusion are job-related and consistent with business necessity, or that the person poses a direct threat to health or safety.

TITLE II: PUBLIC SERVICES (STATE AND LOCAL GOVERNMENT) Title II of the ADA prohibits discrimination against qualified individuals with disabilities, which would exclude them from participating in, or receiving the benefits of services, programs, or activities of a public entity. A ‘public entity’ includes any State or local government, department, agency, special purpose district, or other instrumentality of a State or States or local government. To be ‘qualified,’ an individual with a disability must, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meet the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. Two federal Department of Justice (DOJ) regulations are of particular significance for public sector psychiatry, as well as institutional services in state psychiatric hospitals, nursing homes and other residential facilities run by state or local governments. First, the ‘integration

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regulation’ requires a ‘public entity [to] administer … programs … in the most integrated setting appropriate to the needs of qualified individuals with disabilities.’ Further, DOJ requires public entities to ‘make reasonable modifications’ to avoid ‘discrimination on the basis of disability,’ but does not require measures that would ‘fundamentally alter’ the nature of the entity’s programs. Title II of the ADA has been used to modify state policies and practices regarding institutional versus community-based care for people with mental disabilities. In Olmstead, et al. v. L.C. (by Zimring, guardian ad litem and next friend), et al. (1999), the Supreme Court held that Title II of the ADA requires states to place persons with mental disabilities in community settings rather than in institutions when the state’s treatment professionals have determined that: (i) community placement is appropriate; (ii) the transfer from institutional care to a less restrictive setting is not opposed by the individual; and (iii) the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. The Court emphasized that nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings. Nor is there any federal requirement that community-based treatment be imposed on patients who do not desire it. Unlike many ADA analyses in which the individual’s requested accommodation is judged against the financial and administrative resources of the governmental entity, the Court in Olmstead held that the state’s responsibility, once it provides community-based treatment to qualified persons with disabilities, is not boundless. States are not required to fundamentally alter services and programs, and states are not required to phase out institutions, placing patients in need of close supervision at risk. Under the ruling, states may show that in the allocation of available resources immediate relief for the individual plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities. The Court recognized states’ responsibilities to maintain a range of facilities, given individuals’ periodic needs for higher levels of inpatient services. The Court gave an example that if a state could demonstrate that it had a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the state’s endeavors to keep its institutions fully populated, the reasonable-modifications standard of Title II would be met. The Olmstead case opens up significant opportunities for expanding community mental health systems and for real and substantial policy changes in the states. It affects not only people in institutions, but also non-institutionalized individuals at risk of unnecessary institutionalization due to lack of appropriate community services. Arguably,

this includes people who frequently cycle in and out of hospitals as a result of a lack of community services, individuals institutionalized through incarceration in jail as a result of failure to provide mental health services, and any other individuals with mental disabilities who are receiving services in an unnecessarily segregated setting, including nursing homes and children’s residential services. At the time this chapter goes to press, many states are likely to have developed comprehensive and effective plans aimed at eliminating unnecessary institutionalization, pursuant to the Olmstead decision. Title II of the ADA continues to apply without limitation to cities, counties and other entities of local government. However, the future application of Title II of the ADA to states (as opposed to local governments) is less clear. On February 21, 2001, the United States Supreme Court held in the case of Board of Directors of the University of Alabama v. Garrett that Congress did not have the constitutional authority to waive the state’s Eleventh Amendment ‘sovereign immunity,’ because Congress did not specifically find discrimination by the states in justifying passage of the Act. Thus, suits in federal court by state employees can no longer recover money damages under Title I of the ADA. (State services are subject to Title II of the ADA, but state employment practices are enforced via Title I, the same regulations that enforce private employment practices under the ADA.) The majority opinion in Garrett makes clear that individuals with disabilities still have federal recourse against state employment discrimination, stating that the ADA still prescribes standards applicable to the states. Those standards can be enforced by the United States in actions for money damages, as well as by private individuals in actions for injunctive relief (such as a court order reinstating a fired employee, requiring a reasonable accommodation; or requiring the employer to change a policy that violates Title I). The Garrett decision concerns only suits by private individuals against state employers. Thus, the United States may still bring enforcement actions against state employers for violations of Title I, and it may still seek money damages (i.e., in suits brought by the Equal Employment Opportunity Commission [EEOC] or the Justice Department). As noted above, the Garrett decision does not bar suits for money damages against local governments or private employers. The Garrett decision does not currently affect the validity of Title II of the ADA, although it is likely that suits for money damages against states under Title II (and other civil rights laws) will be challenged in the near future. Even so, the Olmstead decision was not directly impacted by the Supreme Court’s ruling in Garrett to the extent that it did not involve money damages for individual plaintiffs. Thus, it is likely that advocates will continue to encourage states’ efforts to comply with Olmstead by reducing unnecessary institutionalization and creating appropriate community mental health services, at least in the near future.

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TITLE III: PUBLIC ACCOMMODATIONS AND COMMERCIAL FACILITIES IN PRIVATE SECTOR The ADA prohibits private entities from discriminating against individuals on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation. If the operations of a private entity affects ‘commerce’ (travel, trade, commerce, transportation, or communication among the several States including buying office supplies and other goods or services produced in another state), it is a public accommodation. Thus, the term ‘public accommodation’ includes all privately owned businesses that are open to the public such as restaurants, hotels, theaters, stores, parks, day care centers, social service agencies, gymnasiums, hospitals, physician’s offices, etc. Accessibility is to be achieved through:

• • • •

modification of policies, practices or procedures, unless such modification fundamentally alters the nature of the goods or services offered; the use of auxiliary aids and services (qualified interpreters, taped texts, modification of equipment), unless the business can demonstrate undue hardship; removing existing barriers where such removal is readily achievable (easily accomplishable without much difficulty or expense); and if barrier removal is not readily achievable, then using alternative methods of making goods and services available if such methods are readily achievable.

Title III and the implementing regulations distinguish between physical accessibility requirements for existing buildings and new construction or significant alterations. Title III also prohibits discrimination by private commercial transportation services. Private clubs and religious organizations that are exempt from coverage under the Civil Rights Act are also exempt from coverage under Title III of the ADA.

OTHER ISSUES RELATING TO PSYCHIATRY Title II and/or Title III of the ADA apply to issues involving individuals with disabilities seeking professional licensing, including licenses to practice medicine, law, psychology, and nursing. Licensing authorities have been challenged regarding their inquiries into the mental health histories of applicants. Legal commentators have argued that the professions can best be protected by inquiries into problematic behaviors rather than inquiring directly about mental illness, per se. In addition, educators and national testing services have guidelines for

documenting requests for accommodations during board examinations (e.g., extended time, the use of typewriters or computers, readers, etc.). For example, the National Board of Medical Examiners (NBME) has specific requirements for documentation of ADHD and Learning Disabilities, including diagnostic interviews, history, and academic records, as well as psychoeducational and neuropsychological evaluations of cognitive functioning and scholastic achievement with specific tests recommended (and others specifically excluded). A full description of the requirements for accommodations is available through their website (www.nbme.org). Briefly, documentation must include a current diagnosis and an assessment of the current impact of the individual’s disability on their ability to take the NBME tests. Documentation must include the specific diagnostic criteria and/or diagnostic tests used, including dates of evaluation, test results and a detailed interpretation of the test results. The report must describe in detail the demonstrated impact on the person’s ability to take the medical licensing examination, and a full description of the current functional impact of the person’s physical, perceptual or cognitive abilities on their ability to take the test. Recommended accommodations must be specific with a detailed description of why they are needed and how they will reduce the impact of the identified functional limitation. The report must also establish the professional credentials of the evaluator that qualify him or her to make the particular diagnosis, including information about license or certification and specialization in the area of the diagnosis. If no prior accommodations have been provided to the individual in the past, the qualified professional should include a detailed explanation of why accommodations are needed now and why they were not needed in the past. Detailed requirements similar to those of the National Medical Education Board are also used by many institutions of higher learning as well as other licensing organizations, including state bar associations, in determining whether to grant additional testing time, readers, and other reasonable accommodations to qualified individuals with disabilities (Gordon and Keiser 1998). The ADA allows organizations to make good faith determinations regarding the documentation provided when requesting a reasonable accommodation. By specifying the types of measures used and other aspects of the disability evaluation, these organizations not only avoid spurious claims but also are likely to save time and money, both for themselves by standardizing the myriad applications they must review and for applicants by ensuring that appropriate assessment protocols are used the first time. In addition, these requirements reflect the need to have current documentation of disability in a person applying for reasonable accommodations under the ADA. Some individuals applying for accommodations will not have a history of prior accommodations and thus will be assessed for the

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first time for disability. More often, however, individuals will have documentation from childhood and adolescence regarding their level of functioning at that time and supporting accommodations in other circumstances. These records are not irrelevant as they may provide historical support for current disability, but they are not sufficient to document current functioning. (For example, a developmental disorder such as a learning disability or attention deficit disorder typically originates in childhood although not necessarily diagnosed at that time; any information which demonstrates a history of impaired functioning in childhood would be useful.) In addition, eligibility for special education services in high school may be more lax than the technical requirements of the ADA, in part due to the different policy underlying access to a ‘free, appropriate public education’ under special education laws. For example, a finding of a specific learning disability under special education laws often requires only a significant discrepancy between ability and achievement within the individual. However, a specific learning disability under the ADA must show significant impairment relative to the general population. Thus, a person with an IQ of 130 (superior range) but with a reading achievement of 100 (average range) has a discrepancy of two standard deviations and might meet eligibility for additional services and accommodations under special education laws, but not under the ADA as their average reading achievement is not impaired relative to that of the general population. The technical legal interpretations regarding the ADA are likely to continue to evolve, both through the Courts and legislation (for example, how Title II of the ADA applies to states). Regardless of these changes, the underlying principles of the ADA will likely remain the same. The forensic examiner will not be asked to make the ultimate determination of whether the individual is or is not an ‘individual with a disability’ within the technical limitations of the law. Rather, the examiner’s role is to provide the referring attorney or court with a diagnosis, the basis of that diagnosis, an explanation of the severity of the person’s symptoms, and a detailed opinion regarding the functional limitations of that particular individual in reference to the specific situation involved.

REFERENCES Albertson’s v. Kirkingburg, 527 U.S. 555 (1999). Americans with Disabilities Act, 42 United States Code §§ 12101 et seq. (1990). Bazelon Center for Mental Health Law. 1999: List of Limitations of Major Life Activities [Internet] Judge Bazelon Center for Mental Health Law, Washington, DC. Available from: www.bazelon.org/litslist (accessed May 25, 2001). Board of Directors of the University of Alabama v. Garrett, 531 U.S. (2001); 193 F3rd 1214 reversed, decided February 21, 2001.

Blanck, P.D. 1999. Empirical study of disability, employment policy, and the ADA. Mental and Physical Disabilities Law Reporter Mar-Apr, 275–80. Bragdon v. Abbott, 524 U.S. 624 (1998). Cleveland v. Policy Management Systems Corp. et al., 526 U.S. 795 (1999). Gordon, M., Keiser, S. (eds). 1998: Accommodations in Higher Education under the Americans with Disabilities Act (ADA). New York: GSI Publications and Guilford Press. Murphy v. United Parcels, 527 U.S. 516 (1999). National Board of Medical Examiners Documentation Guidelines. 2001 [Internet]. Available from: http://www.nbme.org/PDF/2001otaguide.pdf (accessed May 25, 2001). Olmstead, et al. v. L.C. (by Zimring, guardian ad litem and next friend), et al., 527 U.S. 581 (1999). Parry, J. (ed.). 1994: Mental Disabilities and the Americans with Disabilities Act. Chicago: American Bar Association. School Board of Nassau County, Florida v. Arline, 480 U.S. 273 (1987). Sutton v. United Airlines, Inc., 527 U.S. 471 (1999).

Resources American Bar Association Commission on Mental and Physical Disability Law. 1998. Study finds employers win most ADA Title I judicial and administrative complaints. Mental and Physical Disabilities Law Reporter May–June, 403–7. Association for Higher Education and Disability. 1997: Guidelines for Documentation of a Learning Disability in Adolescents and Adults. Consortium on ADHD Documentation. 1998: Consortium Guidelines for Documentation of Attention Deficit/ Hyperactivity Disorder in Adolescents and Adults. U.S. Department of Justice, Office of the Attorney General, 28 C.F.R. Part 35, Nondiscrimination on the Basis of Disability in State and Local Government Services; Final Rule. U.S. Department of Justice, Office of the Attorney General, 28 C.F.R. Part 36, Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities; Final Rule. U.S. Department of Justice, Office of the Attorney General. 1992: Technical Assistance Manual: Title II [Internet]. Available at: www.usdoj.gov/crt/ada/adahom1 (accessed May 25, 2001). U.S. Department of Justice, Office of the Attorney General. 1992: Technical Assistance Manual: Title III [Internet]. Available at: www.usdoj.gov/crt/ada/adahom1 (accessed May 25, 2001). U.S. Equal Employment Opportunity Commission, 29 C.F.R. Part 1630, Equal Employment Opportunity for Individuals with Disabilities; Final Rule. (See also: www.eeoc.gov/regs/index)

Americans with Disabilities Act evaluations 281 U.S. Equal Employment Opportunity Commission. 1992: A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act. (See also: www.eeoc.gov/docs and www.eeoc.gov/policy/guidance)

U.S. Equal Employment Opportunity Commission. 1997: Enforcement Guidance on the ADA and Psychiatric Disabilities. (See also: www.eeoc.gov/docs and www.eeoc.gov/policy/guidance) World Health Organization website: www.who.int/icdh

31 Sexual harassment LIZA H. GOLD

INTRODUCTION Sexual harassment has become one of the most controversial issues of our time. The Supreme Court confirmation hearings of Clarence Thomas and the Navy Tailhook scandal propelled the subject of sexual harassment into national consciousness in the early 1990s. Media attention to these controversies and the many highly publicized cases involving sexual harassment since then, including the charges brought by Paula Jones against President Bill Clinton, has resulted in a well-documented increase in workplace sexual harassment charges and lawsuits. In 1991, 6883 charges of sexual harassment were filed with the Equal Employment Opportunity Commission (EEOC). In 2001, 15 475 charges were filed, an increase of over 120 per cent (EEOC web site: http://www.eeoc.gov). The costs and awards associated with sexual harassment cases have also risen dramatically. In Weeks v. Baker & McKenzie (1994), a secretary who was harassed by a partner in a law firm recovered $50 000 in compensatory damages from both the firm and the partner; $225 000 in punitive damages against the partner; and $3.5 million in punitive damages against the firm. In 1998, Mitsubishi paid a record $34 million to settle a class action sexual harassment lawsuit brought by the EEOC, in addition to about $10 million paid in 1997 to settle similar charges brought in a private lawsuit. Although these individual cases reflect unusually high awards, the typical costs of such litigation are also increasing. In 2001, monetary resolutions of EEOC charges, not including those obtained through litigation, totaled $53 million (EEOC web site: http://www.eeoc.gov). Psychiatrists, retained by both defense and plaintiffs attorneys, are frequently called upon to make evaluations of claimants and offer expert witness testimony in sexual harassment litigation (Gold 2003). Our ability to provide expert assessments encompassing issues of proximate cause, psychological damage, work impairment, treatment recommendations and prognosis is an invaluable service in attempting to clarify what are usually very complex allegations. To provide credible evaluations and

expert witness testimony on such issues, forensic psychiatrists must have a familiarity with the issues involved in sexual harassment. In addition, they must also have an understanding of the complicated interface between these issues and the law.

DEFINITION OF SEXUAL HARASSMENT Sexual harassment is a new area of law which arose from the civil rights and women’s movement of the 1960s and 1970s. Title VII of the Civil Rights Act of 1964 prohibited discrimination based on sex, as well as race, color, religion or national origin. This act also established the EEOC, which has the power of enforcing the federal prohibitions against such discrimination and litigating violations of Title VII. Sexual harassment is distinct from flirtation, flattery, requests for a date and other acceptable behaviors which occur in a workplace. Its essential component is that it is ‘unwelcome conduct,’ which lacks the elements of choice and mutuality inherent in a normal relationship. It is a type of coercion that relies on the power of the perpetrator to affect a victim’s economic status and does not necessarily involve physical force. Sexual harassment also encompasses gender discrimination, which may not have sexual motivations but still may have powerful personal and economic effects. A universally accepted definition of every behavior that might be considered sexual harassment does not exist. The legal definition of sexual harassment has evolved through administrative and case law. In 1980, the EEOC published the first specific guidelines defining sexual harassment. The EEOC defined harassment as ‘unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.’ This conduct constitutes illegal sexual harassment when: 1 Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment.

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2 Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual. 3 Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment [EEOC (1980) 29 C.F.R. § 1604.11(a)]. The EEOC delineated two types of sexual harassment. In quid pro quo harassment, work conditions or job benefits are explicitly or implicitly contingent upon or involve the exchange of sexual favors. Hostile environment sexual harassment takes the form of continuous, frequent, or repetitive patterns of offensive and unwelcome behavior which adversely affects the terms or conditions of employment. Such behavior may not affect the employee’s job, salary or benefits, and may not necessarily even be sexual in nature. This category encompasses discrimination on the basis of gender alone, and can include behaviors such as sexually oriented joking or teasing, unwelcome display of sexual images or objects, unwelcome touching or propositions, or hostile treatment on the basis of gender alone.

HISTORY OF SEXUAL HARASSMENT LAW In Williams v. Saxbe (1976), a court found for the first time that quid pro quo sexual harassment was a form of illegal sexual discrimination under Title VII. Meritor Savings Bank, FSB v. Vinson (1986) was the first Supreme Court case to directly consider issues related to sexual harassment, and established that hostile environment sexual harassment was a violation of Title VII. In hostile environment cases, the Court stated that incidents must be so pervasive, repetitive or severe that they alter the conditions of employment and create an abusive working environment. Meritor also established that voluntary participation on the part of the plaintiff did not legally establish that the defendant’s actions were welcome. In Harris v. Forklift Systems, Inc. (1993), the Supreme Court unanimously ruled that a victim is not required to have suffered psychological harm, nor prove that she was psychologically injured to win monetary damages. The presence of psychological harm is relevant to determining whether the victim found the environment abusive, but not necessary in establishing illegal discrimination. The Court also defined some of the circumstances which must be assessed in sexual harassment. These include the frequency and severity of the conduct, whether it was physically threatening or humiliating and whether it unreasonably interfered with an employee’s work performance. In Oncale v. Sundowner Offshore Services (1998), the Court ruled that same sex harassment could constitute an illegal form of sexual harassment under Title VII. The

Court found that harassing conduct did not need to be motivated by sexual desire in order to be discriminatory on the basis of sex. In Burlington Industries, Inc. v. Ellerth (1998) and Faragher v. Boca Raton (1998), the Supreme Court established an affirmative defense against liability for employers under certain circumstances. The Court held that an employer is always liable for a supervisor’s harassment if it culminates in a tangible employment action. However, if no tangible employment action occurred, the employer may be able to avoid liability or limit damages by demonstrating the two elements that comprise an affirmative defense. These elements are that:

• •

the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

Legal action based on sexual harassment may be brought in one or more of four areas: (i) Title VII complaints; (ii) criminal charges; (iii) workers’ compensation claims; and (iv) civil tort actions. Civil complaints can encompass a variety of charges, including battery, wrongful termination, or intentional or negligent infliction of emotional distress. Tort actions are the most common, though multiple causes of action are the rule in sexual harassment cases. Tort cases are often filed in addition to Title VII complaints. Harris established that Title VII claims do not require evidence of harm. Torts such as infliction of emotional distress do require a showing of emotional damage or harm. However, plaintiffs typically offer evidence of emotional harm in both types of action, since proving such harm can significantly affect damage awards.

THE QUALIFIED EXPERT Federal Rule of Evidence 702 describes an expert as a person qualified by knowledge, skill, experience, training or education. In addition, ‘Qualification as an expert witness is not generic but rather issue specific. Licensure as a physician who practices psychiatry, or even a board certification in psychiatry, should not, in and of itself, result in qualification as an expert’ (Shuman 1995). Courts may rule that the opinions of unqualified psychiatrists offering expert testimony in sexual harassment cases are incredible or inadmissible. Sexual harassment evaluations involve a number of complex issues with which the psychiatrist must have familiarity to formulate a credible opinion. These include: 1 2 3 4

Research on sexual harassment. Women’s psychology. Stress and trauma responses. Legal issues in sexual harassment evaluations.

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Sexual harassment research Although early research on sexual harassment had numerous methodological flaws, it did provide a great deal of preliminary information regarding the scope of sexual harassment and other related aspects of the phenomenon. More sophisticated recent studies have addressed many of the flaws of the first-generation research. These studies have confirmed that sexual harassment is a widespread phenomenon. They have verified many of the early findings and have expanded understanding of the causes and outcomes of sexual harassment (Fitzgerald, Swan, and Fisher 1995; Gutek and Koss 1996; Dansky and Kilpatrick 1997; Fitzgerald et al. 1997a; Fitzgerald et al. 1997b; Gruber 1997; Fitzgerald et al. 1998; Fitzgerald, Drasgow, and Magley 1999). The best examples of the early research are the survey studies conducted by the United States Merit Systems Protection Board (USMSPB) in 1980, 1987 and 1994. In a representative sample of more than 20 000 federal employees, the USMSPB (1995) found that 44 per cent of women and 19 per cent of men reported that they had experienced some form of unwanted sexual attention during the preceding two-year period. The 1994 survey also found that the rates of sexual harassment had remained stable since 1980. The majority of people reporting such experiences were women, and the majority of alleged harassers were men. The less severe forms of sexual harassment behaviors are the most prevalent; the most severe behaviors occur the least often. Actual or attempted rape or assault was reported by 4 per cent of women and 2 per cent of men (also see Gruber 1997). Research has indicated that men experience different types of behavior as sexual harassment than do women, and that same sex harassment of men by men is a more significant problem than previously thought (Berdahl, Magley, and Waldo 1996; Waldo, Berdahl, and Fitzgerald 1998; Magley et al. 1999). The employees who appear to be at greatest risk are those who work exclusively or mostly with people of the opposite sex and who are supervised by members of the opposite sex. Women who work in occupations that have been dominated historically by men report higher incidences of sexual harassment. By far the most likely sources of unwanted sexual attention were persons other than supervisors of the victims. In the USMSPB (1995) study, 79 per cent of individuals identified as sources of harassment were co-workers, and 14 per cent were supervisors. Studies also revealed that the most common response to sexual harassment is to ignore or avoid it, and the least common response is to formally report it. Studies consistently find that 15 per cent or less of individuals who report experiencing sexual harassment made formal complaints. The most common reason given by victims for not taking formal action was that they didn’t think the offense was serious enough to warrant this response. However, fears of adverse effects on work situation or

careers, beliefs that nothing would be done, and fears of retaliation following a complaint are other reasons women report not filing formal complaints (Fitzgerald, Swan, and Fisher 1995; USMSPB 1995). Receiving poor work performance evaluations or being transferred or terminated after filing complaints are common experiences. Other difficulties associated with pursuing a complaint include financial costs, stress on family or marital relationships, and career losses. Due to these difficulties, the emotional costs of making a formal complaint can be higher than those which ensue from the original harassment. Many women reported choosing to leave their jobs or apply for transfers rather than go through a formal complaint process (Fitzgerald, Swan, and Fisher 1995; USMSPB 1995; Gutek and Koss 1996; Fitzgerald et al. 1997a; Schneider, Swan and Fitzgerald 1997). Studies also indicate that many women report some degree of physical or psychological distress associated with experiences of sexual harassment. Anger, depressed mood, shame, suspiciousness and mistrust, and impaired concentration, sleep disturbances, and anxiety have been reported. More severe psychological and work related outcomes are correlated with more severe harassment (Hamilton et al. 1987; Charney and Russell 1994; Lenhart 1996; Dansky and Kilpatrick 1997; Fitzgerald et al. 1997a; Schneider, Swan, and Fitzgerald 1997). The most common psychiatric diagnoses reported in association with sexual harassment are posttraumatic stress disorder (PTSD), and any of the adjustment, mood or anxiety disorders (Shrier 1996; Dansky and Kilpatrick 1997). Some evidence that suggests an increased association between experiences of sexual harassment and diagnoses of PTSD and depression does exist (Dansky and Kilpatrick 1997). However, no studies have found that sexual harassment directly results in the development of any specific psychiatric disorder or diagnosis.

Women’s psychology A new understanding of the psychology of women has developed during the past twenty years. A full discussion of this topic is beyond the scope of this chapter. Of note, however, is that these psychological theories have moved away from the traditional Freudian approaches, which contain a variety of hidden gender biases and tend to emphasize intrapsychic factors (Unger and Crawford 1996). Traditional psychiatric theory tends to interpret reports of abuse or victimization as fantasy or evidence of personality disorder. Similarly, in legal practice, reports by women of experiences with which men have no analogous experiences are often deemed to lack credibility or to not be very serious (Schafran 1995). Newer models of the psychology attempt to provide a different framework for understanding the experiences of women. This framework provides corrective features that can minimize the hidden gender biases in traditional

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theory. The cornerstone of the new psychology of women is an appreciation for the power of relationship and connection in women’s lives. The traditionally disadvantaged status of women in our society and women’s difficulties with expressing anger, when framed in the context of the high value of relationships, adds an essential perspective to understanding the impact of sexual harassment on women and their responses to it (Jordan et al. 1991; Unger and Crawford 1996; Jordan 1997; Miller and Stiver 1997).

Stress and trauma responses The diagnosis of PTSD is a preferred plaintiff ’s diagnosis in sexual harassment litigation (Long 1994) because it implies single causation, and because it focuses on the event rather than the individual. Clinicians and forensic evaluators frequently and mistakenly diagnose any stress related response or symptom as PTSD (Rosen 1995). Indeed, most people exposed to various types of trauma do not develop PTSD: studies indicate that the average incidence after exposure to trauma is between 10 and 25 per cent, although this can vary with the type of trauma experienced. The highest risk of PTSD is associated with rape (49 per cent), severe physical assault (31.9 per cent), and sexual assault other than rape (23.7 per cent) (Breslau 1998). However, research consistently indicates that only a small minority of sexual harassment experiences involve rape (see above). Most sexual harassment consists of less severe behaviors, such as gender harassment and certain forms of unwanted sexual attention including sexual teasing, jokes, remarks or questions. Exposure to less severe behaviors can be distressing and stressful, and may result in a variety of psychological symptoms, some of which may meet DSM-IV criteria for various diagnoses. However, such experiences are unlikely to result in the development of PTSD without the presence of some preexisting psychological vulnerability. This is consistent with research findings that indicate that vulnerability factors often play a significant role generally in individuals who develop PTSD (Davidson and Foa 1993; Green 1995; Breslau 1998; Simon 1999). Typically, the misuse or overutilization of the diagnosis of PTSD results from ignoring the DSM-IV criteria. When these criteria are applied appropriately and objectively, the potential for an inaccurate use of the diagnosis is minimized (Simon 1995). Even when a claimant’s symptoms meet the DSM-IV criteria for PTSD, the forensic evaluator must bear in mind that the alleged sexual harassment is not necessarily the proximate cause. Pre-existing or concurrent trauma, as well as other psychosocial stressors, may be significant and must be evaluated. When the stressor experienced is not outside the range of common experience, the evidence often tends to support a finding that it is not the proximate cause of

a PTSD diagnosis. Indeed, a very profound response to what most would consider a minor stressor raises both the issue of malingering and individual susceptibility to psychiatric comorbidity.

Legal issues in sexual harassment evaluations Legal terminology which arises in the forensic evaluation of sexual harassment claims includes the concepts of ‘welcomeness,’ ‘reasonableness,’ and ‘hypersensitivity.’ Psychiatrists are frequently asked to evaluate whether the plaintiff ’s behavior or responses indicated that the alleged conduct was welcome, whether she responded reasonably, or whether the plaintiff overreacted to or misperceived acceptable behaviors as sexual harassment due to unusually heightened sensitivity. Typically, the evaluation of these issues leads to the question of whether the plaintiff had a preexisting personality disorder. Just as plaintiff ’s experts favor a diagnosis of PTSD, defense experts favor diagnoses which often include borderline, narcissistic or histrionic personality disorder (Long 1994). Although the diagnosis of a personality disorder is intended to undermine the credibility of a complainant, the constellation of personality traits and coping responses associated with a personality disorder diagnosis are clearly relevant in the evaluation of sexual harassment. The question of an individual’s tendency to invite, misinterpret, distort or overreact to the behaviors of others is a critical part of a sexual harassment assessment, whether due to borderline personality disorder or any other psychological process, such as an underlying psychosis. Women who have experienced sexual harassment often appear histrionic, angry or unstable on evaluation. Commonly seen workplace responses to sexual harassment include defensive, angry or self-defeating responses, even in women with no evidence of pre-existing psychiatric disorders. Other common responses include denial, which, if the harassment continues, may result in anger and emotional flooding. These in turn can precipitate disorganized behaviors, impulsive withdrawal from the workplace, and disrupted interpersonal relationships. These reactions can result in poor work performance reviews, lack of advancement or termination, and damaged relationships (Lenhart 1996). Such behaviors and their consequences ultimately diminish a claimant’s credibility and are often considered evidence of a pre-existing personality disorder. The association of the personality disorders typically diagnosed in sexual harassment cases with histories of victimization has been well documented (Herman 1992; Simon 1995; Zanarini 1997). Such women also are reported to have an increased vulnerability to all types of revictimization (Kluft 1990; Chu 1992; Messman and Long 1996). Therefore, it is not uncommon for individuals bringing

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complaints of sexual harassment to meet the criteria for a personality disorder. Indeed, women with pre-existing personality disorders can develop PTSD as a result of revictimization, including some forms of sexual harassment. However, individuals with pre-existing personality disorders typically have histories of chaotic lives and problematic interpersonal relationships across all spheres of functioning, including employment. A credible diagnosis of a personality disorder should be based on a history that reveals the sorts of patterns consistent with lifelong, pervasive and inflexible patterns of maladaptive coping. For example, repeated and frequent misinterpretation of comments, reports of prior unsubstantiated claims of inappropriate behavior, and repeated interpersonal conflicts and employment complaints might be evidence which supports a diagnosis of a pre-existing personality disorder. Psychological testing can provide valuable data in making this diagnostic determination.

PSYCHIATRIC ISSUES IN SEXUAL HARASSMENT CLAIMS Psychiatric issues in sexual harassment litigation include: causation; damages; diagnoses; psychological symptoms; and treatment and prognosis. These determinations require special attention to identifying specific disorders, alternate causation, general characteristics of a person’s functioning, and likelihood for recovery. Questions regarding prognosis, with and without treatment, include an assessment of the individual’s motivation for recovery. All these elements are relevant to the determination of the extent of psychological injury and legal damages. Although we cannot assume that the plaintiff ’s reports of harassment are true, we must also avoid assuming that her current emotional state and level of functioning are the cause rather than the result of the workplace situation. Plaintiff ’s experts frequently stop at the alleged trauma, and defense experts often stop at a diagnosis of personality disorder. A credible forensic evaluation must consider that either explanation might be valid and look for evidence which would support one conclusion or the other. The forensic evaluator must consider the totality of the situation by examining the type, degree and duration of the sexual harassment, current disturbances which may have been caused by the harassment, and pre-existing Axis I or II disorders which may have exacerbated the individual’s response. The severity and type of emotional, physical, interpersonal and economic consequences of sexual harassment vary considerably. The outcome of sexual harassment experiences is related to a combination of the characteristics of the harassment, the responses of the institution to the individual or the harassment, and the circumstances of the situation. The availability of support inside

and outside the workplace to the victim is also a highly significant factor in outcome. Finally, the individual’s resources, strengths, vulnerabilities and past history will affect both the perception and the impact of sexual harassment experiences on that individual. A complete assessment of sexual harassment claims requires an examination of these factors as well as the effects of:

• • • • •

litigation, commonly acknowledged to be extremely stressful (Lenhart and Shrier 1996; Strasburger 1999); retaliation, which may be distinct clinically and legally from the harassment; underlying medical conditions or medications which may cause psychological symptoms; previous or concurrent trauma or stress; and the use of drugs and alcohol, frequently found in individuals responding to stress.

The issues of functional impairment, prognosis and potential recovery are integral in damage assessments. Rarely is any individual totally disabled, either mentally or physically. A diagnosis, no matter how ominous, does not imply a given level of impairment or potential for recovery. Current level of impairment is assessed through the claimant’s history, behavior and examination findings. The claimant’s pre- and post-incident functional capacities must be compared. Prognostic opinions must be based on an assessment of functioning, the effects of pre-existing and current psychiatric status, and the effects of treatment. The natural history of the current psychiatric diagnosis and the effects of rehabilitation and treatment form one element of the long-term assessment of impairment. The assessment of the claimant’s motivation for recovery and willingness to enter treatment is another critical element in prognostic assessment. Even minimal impairment may lead to permanent disability when the claimant is not motivated to recover. Motivation for treatment can be particularly problematic in the context of litigation. Although plaintiffs are legally obligated to try to minimize damages, the ongoing presence of more severe symptoms and functional impairment may result in a better legal and financial outcome. Comparison of the claimant’s personality, behavior and functioning before and after the alleged incident is crucial in such determinations (Simon 1995).

GUIDELINES FOR ASSESSMENT IN SEXUAL HARASSMENT CLAIMS Forensic evaluations in sexual harassment cases are subject to many types of bias: personal, social, political, professional, those related to gender and those inherent in participation in the adversarial system of justice (Gold 1998). Adherence to guidelines which promote good principles of forensic practice can help the evaluator

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minimize the effects of these biases and provide credible assessments and testimony which will stand up under cross-examination in fiercely litigated sexual harassment cases (Simon 1996; Simon and Wettstein 1997). Suggested guidelines include: 1 Maintain neutrality. Avoid making assumptions about the facts of a case which can prejudice opinions. In addition, the evaluator should avoid occupying both the role of the treating clinician and the forensic expert (Simon and Wettstein 1997). Sexual harassment cases present difficulties in combining the two roles beyond the usual problems associated with ‘wearing two hats’ (Strasburger, Gutheil, and Brodsky 1997). When a patient alleges sexual harassment, experienced clinicians have recommended adopting an initial treatment stance of assuming that the report of harassment is true (Charney and Russell 1994; Shrier and Hamilton 1996). This recommended clinical stance and the necessarily neutral forensic stance are obviously incompatible. 2 Review all available documents, including medical, psychiatric, legal, and employment records. In cases where civil charges are filed in conjunction with or after the filing of criminal charges such as assault, battery or rape, police records may be available. These records may include the original complaint as well as interviews of the complainant, the alleged perpetrator, and witnesses, and should also be reviewed if available. Attorneys will frequently try to minimize costs by editing the material provided to the forensic consultant for review. This can present credibility problems at the time of testimony, and may well result in overlooking data crucial to the formulation of an informed opinion. 3 Assess mental status, diagnosis and functioning only through personal contact with the individual in question, in combination with record review. Such evaluations may require interviews with significant others, such as family members and friends. 4 Obtain as extensive a personal history from the claimant and the records as possible. This includes review of past and current sources of trauma, such as childhood sexual abuse, domestic violence, and assaults, and review of the claimant’s litigation history, employment history, and history of interpersonal relationships. 5 Decline any case in which the opinions being sought are outside the area of the clinician’s expertise. Attorneys will frequently push an expert into giving opinions beyond the boundaries of his training and experience. This may result in rendering his testimony inadmissible under a Daubert (Daubert v. Merrell Dow Pharmaceuticals, Inc. 1993) challenge (McCandless and Schickman 1989; McDonald and Lees-Haley 1995; McDonald 1998). Sexual harassment cases present many opportunities for the expert to cross this boundary.

6 Formulate opinions based on experience, training and knowledge. The Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) and Kumho Tire Co. v. Carmichael (1999) decisions require that expert testimony based on scientific knowledge be methodologically sound and defensible. This requires familiarity with the knowledge base behind one’s opinions, and its strengths and weaknesses (McDonald and Lees-Haley 1995; McDonald 1998). 7 Assess each case on its own merits, and be prepared to defend opinions with specific facts and data. Daubert also requires that the scientific expertise presented as expert testimony be relevant. Only familiarity with the specific facts of the case and the pertinent data can ensure that the testimony is relevant to the case.

CONCLUSION The behaviors described by the law as illegal employment discrimination are only a subset of the wide variety of behaviors that can be considered sexual harassment. The complex nature of human relationships and behavior defies the development of social or legal formulas defining when conduct is offensive, and when offensive conduct is illegal. In providing expert testimony, psychiatrists are asked to evaluate the effects of many experiences alleged to be sexual harassment. When doing so, we should bear in mind that whether a behavior is ultimately determined to be illegal employment discrimination is the purview of the court. Nevertheless, forensic psychiatrists can offer expert opinions and testimony regarding the various legal and psychological aspects of sexual harassment. Such testimony can assist the court in clarifying the unusually complex issues that arise in this type of employment litigation. Reliable and admissible expert opinions must be grounded in relevant literature and arrived at by employing accepted forensic and diagnostic methodology (Jorgenson and Wahl 2000). Credible opinions, based on such expertise and guided by forensic ethics and methodology, are of value to the legal system and will withstand both Daubert challenges and cross-examination.

REFERENCES Berdahl, J.L., Magley, V.J., Waldo, C.R. 1996. The sexual harassment of men? Exploring the concept with theory and data. Psychology of Women Quarterly 20, 527–47. Breslau, N. 1998: Epidemiology of trauma and posttraumatic stress disorder. In Yehuda, R. (ed.), Psychological trauma. Washington, DC: American Psychiatric Press, Inc., 1–29. Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998). Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e-2(a)(1).

288 Civil law Charney, D.A., Russell, R.C. 1994. An overview of sexual harassment. American Journal of Psychiatry 151, 10–17. Chu, J.A. 1992. The revictimization of adult women with histories of childhood abuse. Journal of Psychotherapy Practice and Research 1, 259–69. Dansky, B.S., Kilpatrick, D.G. 1997: Effects of sexual harassment. In O’Donohue, W. (ed.), Sexual Harassment: Theory, Research and Treatment. Boston: Allyn and Bacon, 152–74. Davidson, J.R.T., Foa, E.B. (eds). 1993: Posttraumatic Stress Disorder: DSM-IV and Beyond. Washington, DC: American Psychiatric Press, Inc. Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993). Equal Employment Opportunity Commission. 1980: The Federal Guidelines on Sexual Harassment. 29 C.F.R. §§ 1604.1-.11. Faragher v. Boca Raton, 118 S.Ct. 2275 (1998). Fitzgerald, L.F., Swan, S., Fisher, K. 1995. Why didn’t she just report him? The psychological and legal implications of women’s responses to sexual harassment. Journal of Social Issues 51, 117–38. Fitzgerald, L.F., Drasgow, F., Hulin, D.L., et al. 1997a. Antecedents and consequences of sexual harassment in organizations: a test of an integrated model. Journal of Applied Psychology 82, 578–89. Fitzgerald, L.F., Swan, S., Magley, V.J. 1997b: But was it really sexual harassment? Legal, behavioral and psychological definitions of the workplace victimization of women. In O’Donohue, W. (ed.), Sexual Harassment: Theory, Research and Treatment. Boston: Allyn and Bacon, 5–28. Fitzgerald, L.F., Shullman, S., Bailey, N., et al. 1998. The incidence and dimensions of sexual harassment in academia and the workplace. Journal of Vocational Behavior 32, 152–75. Fitzgerald, L.F., Drasgow, F., Magley, V.J. 1999. Sexual harassment in the armed forces: a test of an integrated model. Military Psychology 11, 329–43. Gold, L.H. 1998. Addressing bias in the forensic assessment of sexual harassment claims. Journal of the American Academy of Psychiatry and Law 26, 563–77. Gold, L.H. 2003: Sexual Harassment: Psychiatric Assessment in Employment Litigation. Washington, DC: American Psychiatric Press, Inc. Green, B.L. 1995: Recent research findings on the diagnosis of posttraumatic stress disorder: prevalence, course, comorbidity and risk. In Simon, R.I. (ed.), Posttraumatic Stress Disorder in Litigation: Guidelines for Forensic Assessment. Washington, DC: American Psychiatric Press, Inc., 13–29. Gruber, J.E. 1997: An epidemiology of sexual harassment: evidence from North America and Europe. In O’Donohue, W. (ed.), Sexual Harassment: Theory, Research and Treatment. Boston: Allyn and Bacon, 84–98.

Gutek, B.A., Koss, M.P. 1996: How women deal with sexual harassment and how organizations respond to reporting. In Shrier, D.K. (ed.), Sexual Harassment in the Workplace and Academia: Psychiatric Issues. Washington, DC: American Psychiatric Press, Inc., 39–57. Hamilton, J.A., Alagna, S.W., King, L.S., Lloyd, C. 1987. The emotional consequences of gender-based abuse in the workplace: new counseling programs for sex discrimination. Women and Therapy 6, 155–82. Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (1993). Herman, J. 1992: Trauma and recovery. New York: Basic Books. Jordan J.V. (ed.). 1997: Women’s Growth in Diversity: More Writings from the Stone Center. New York: The Guilford Press. Jordan, J.V., Kaplan, A.G., Miller, J.B., et al. 1991: Women’s Growth in Connection. New York: The Guilford Press. Jorgenson, L.M., Wahl, K.M. 2000. Psychiatrists as expert witnesses in sexual harassment cases under Daubert and Kumho. Psychiatric Annals 30, 390–6. Kluft, R.P. 1990: Incest and subsequent revictimization: the case of therapist-patient sexual exploitation, with a description of the sitting duck syndrome. In Kluft, R.P. (ed.), Incest Related Syndromes of Psychopathology. Washington, DC: American Psychiatric Press, Inc., 263–88. Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999). Lenhart, S.A. 1996: Physical and mental health aspects of sexual harassment. In Shrier, D.K. (ed.), Sexual Harassment in the Workplace and Academia: Psychiatric Issues. Washington, DC: American Psychiatric Press, Inc., 21–38. Lenhart, S.A., Shrier, D.K. 1996. Potential costs and benefits of sexual harassment litigation. Psychiatric Annals 26, 132–8. Long, B.L. 1994. Psychiatric diagnoses in sexual harassment cases. Bulletin of the American Academy of Psychiatry and Law 22, 195–203. Magley, V.J., Waldo, C.R., Drasgow, F., Fitzgerald, L.F. 1999. The impact of sexual harassment on military personnel: is it the same for men and women? Military Psychology 11, 283–302. McCandless, S.R., Schickman, M.I. 1989. In sexual harassment cases: examining the psychotherapist at trial. The Brief 18, 41–7. McDonald, J.J. 1998. Daubert in employment litigation: a potent weapon against dubious science. Employee Relations Law Journal 24, 35–56. McDonald, J.J., Lees-Haley, P.R. 1995. Avoiding ‘junk science’ in sexual harassment litigation. Employee Relations Law Journal 21, 51–66. Meritor Savings Bank, FSB v. Vinson, 106 S.Ct. 2399 (1986). Messman, T.L., Long, P.J. 1996. Child sexual abuse and its relationship to revictimization in adult women: a review. Clinical Psychology Review 16, 397–420.

Sexual harassment 289 Miller, J.B., Stiver, I.P. 1997: The Healing Connection: How Women Form Relationships in Therapy and Life. Boston: Beacon Press. Oncale v. Sundowner Offshore Services, 118 S.Ct. 998 (1998). Rosen, G.M. 1995. The Aleutian Enterprise sinking and posttraumatic stress disorder: misdiagnosis in clinical and forensic settings. Professional Psychology Research and Practice 26, 82–7. Schafran, L.H. 1995. Credibility in the courts; why is there a gender gap. Judges’ Journal 34, 5–7. Schneider, K.T., Swan, S., Fitzgerald, L.F. 1997. Job-related and psychological effects of sexual harassment in the workplace: empirical evidence from two organizations. Journal of Applied Psychology 82, 401–15. Shrier, D.K. 1996: Introduction and brief overview. In Shrier, D.K. (ed.), Sexual Harassment in the Workplace and Academia: Psychiatric Issues. Washington, DC: American Psychiatric Press, Inc., 1–20. Shrier, D.K., Hamilton, J.A. 1996: Therapeutic interventions and resources. In Shrier, D.K. (ed.), Sexual Harassment in the Workplace and Academia: Psychiatric Issues. Washington, DC: American Psychiatric Press, Inc., 95–112. Shuman, D.W. 1995: Persistent reexperiences in psychiatry and law: current and future trends in posttraumatic stress disorder litigation. In Simon, R.I. (ed.), Posttraumatic Stress Disorder in Litigation: Guidelines for Forensic Assessment. Washington, DC: American Psychiatric Press, Inc., 1–11. Simon, R.I. 1995: Toward the development of guidelines in the forensic psychiatric examination of posttraumatic stress disorder claimants. In Simon, R.I. (ed.), Posttraumatic Stress Disorder in Litigation:

Guidelines for Forensic Assessment. Washington, DC: American Psychiatric Press, Inc., 31–84. Simon, R.I. 1996. The credible forensic psychiatric evaluation in sexual harassment litigation. Psychiatric Annals 26, 139–48. Simon, R.I. 1999. Chronic posttraumatic stress disorder: a review and checklist of factors influencing prognosis. Harvard Review of Psychiatry 6, 304–12. Simon, R.I., Wettstein, R.M. 1997. Toward the development of guidelines for the conduct of forensic psychiatric examinations. Journal of the American Academy of Psychiatry and Law 25, 17–30. Strasburger, L.H. 1999. The litigant-patient: mental health consequences of civil litigation. Journal of the American Academy of Psychiatry and Law 27, 203–11. Strasburger, L.H., Gutheil, T.G., Brodsky, A. 1997. On wearing two hats: role conflict in serving as both psychotherapist and expert witness. American Journal of Psychiatry 154, 448–56. Unger, R., Crawford, M. (eds). 1996: Women and Gender: A Feminist Psychology. 2nd edition. New York: McGraw-Hill. United States Merit Systems Protection Board. 1995: Sexual Harassment in the Federal Workplace: Trends, Progress, Continuing Challenges. Washington, DC: U.S. Government Printing Office. Waldo, C.R., Berdahl, J.L., Fitzgerald, L.F. 1998. Are men sexually harassed? If so, by whom? Law and Human Behavior 22, 59–79. Weeks v. Baker & McKenzie, 74 Cal. Rptr. 2d 510 (1994). Williams v. Saxbe, 413 F. Supp. 654, D.D.C. (1976). Zanarini, M.C. (ed.). 1997: The Role of Sexual Abuse in the Etiology of Borderline Personality Disorder. Washington, DC: American Psychiatric Press, Inc.

32 Trauma-induced psychiatric disorders and civil law STUART B. KLEINMAN AND SUSAN B. EGAN

INTRODUCTION Negligent behavior that produces harm to a person is termed a ‘tort’ (Slovenko 1973). Society, represented by a judge or jury, may award the injured party money in an effort to make him or her whole. When psychiatric injuries are alleged, the forensic examiner must determine whether the injury claimed is genuine rather than malingered, and specify the nature, extent, and prognosis of any harm suffered. The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) (American Psychiatric Association 1994) specifies only four types of psychiatric disorders as resulting from stressful external events: posttraumatic stress disorder (PTSD); adjustment disorder; acute stress disorder; and brief psychotic disorder (with marked stressors). However, other disorders, for example, panic disorder – if not caused by external events – can at least be triggered or precipitated by them. Moreover, compensable injuries are not limited to the development of a psychiatric disorder, and may also include disturbed occupational or social functioning, for example, inability of a mother who witnessed a murder and suffers from PTSD to take her four-year-old child outside for walks due to anxiety regarding safety. Additionally, trauma may induce fundamental changes in an individual’s experience of him/herself and/or his/her world, leading some to feel anxiously ‘weak’ and/or depressively ‘bad,’ and to perceive the world as frighteningly and/or despairingly ‘cruel.’ Compensation may also be awarded for psychiatric injuries produced by workplace events that violate Federal (or state) law; for example, Title VII of the 1964 Civil Rights Act, or for failure to accommodate disabling psychiatric disorders at the workplace when the Americans with Disabilities Act (ADA) is contravened. Prognostication of the course of psychiatric injuries is often difficult, and includes evaluation of the effect of

anticipated monetary compensation as well as the litigation process itself. The ‘greenback poultice’ or compensation neurosis (Modlin 1986), which refers to the curative effect of a wad of dollar bills upon a plaintiff ’s forehead, remains a controversial issue. Litigation is often driven by hurt, anger, avarice, and/or pride, and may serve, often unwittingly, as a stage for expression of both trauma engendered and displaced wishes and conflicts.

DIAGNOSIS OF PTSD Legal utility Claims of PTSD are particularly popular in personal injury actions. As one legal commentator stated wryly: ‘… if mental disorders were listed on the New York Stock Exchange, PTSD would be a growth stock worth watching.’ (Lees-Haley 1986). Such claims are, in part, popular because diagnosis of this condition indicates that an individual experienced an extreme trauma, and ‘because it [the diagnosis] creates a presumption of causation’ (Brown 1996). Determination of causation of PTSD and responsibility for damages can, nevertheless, be complex, especially when an individual has experienced more than one traumatic event.

Predictors of PTSD Many demographic, social, and psychiatric factors have been associated with development and persistence of PTSD (Simon 1999; Freedman et al. 1999; King et al. 1999; Saigh and Bremner 1999). These include:

• • •

type of trauma; nature of symptoms; prolonged childhood separation;

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• • • • • • •

childhood abuse; age; gender; contemporary stressors; family psychiatric history; social support; and mental health treatment.

PTSD results from a complex interaction between a stressor and a host of influences residing inside and outside an individual. Higher ‘doses’ of a given stressor and prior trauma are associated with a significantly increased risk for development of PTSD, and peritraumatic dissociation (Koopman, Classen, and Spiegel 1994) may herald its onset or foreshadow its continuation (Shalev et al. 1996). Breslau and Davis (1992) found that separation from parents, family history of anxiety, pre-existing anxiety or depression and neuroticism increased the odds for both chronic and non-chronic PTSD, while family history of antisocial behavior and female gender were specifically associated with chronic PTSD. Breslau et al. (1998) also determined that having a psychiatric history in and of itself was a stronger predictor of PTSD than specifically having a history of a mood, anxiety or substance abuse disorder. Green et al. (2000) found that those who had experienced multiple traumas suffered worse outcomes than those who had experienced a single trauma, and that those who had suffered interpersonal traumas were more distressed than those who had suffered only noninterpersonal events. In Green et al.’s study of 1909 college students, 65 per cent had suffered at least one traumatic event and 80–85 per cent of these individuals had experienced at least one other traumatic event. Neurobiological factors may increase the risk for development of PTSD. One study (Gurvits et al. 2000) found greater neurodevelopmental problems, for example, learning problems, motor hyperreactivity, in those who developed PTSD, while another (Resnick et al. 1995) found that those at greater risk by virtue of exposure to prior traumas also had lower cortisol levels shortly after being raped. No one factor, or combination of factors, necessarily leads to PTSD, and little remains understood about how some individuals are able to tolerate even the most overwhelming trauma. Prognosis is ultimately a clinical judgment informed by examination data, records, and relevant research findings. The heterogeneity and complexity of PTSD make it unlikely that, particularly in forensic contexts, a single, reliable and valid biological or psychological prognosticator will soon be developed.

The stressor criteria PTSD and acute stress disorder (ASD) are the only diagnoses in the DSM-IV that are defined as resulting from an ‘[extreme] traumatic’ event. Ever since PTSD was (officially) recognized as a diagnostic entity, efforts have been underway to clarify the meaning of a ‘traumatic event.’

The DSM-III (American Psychiatric Association 1980) described the inciting PTSD stressor as outside the usual range of human experience. That definition, in part because disturbing events are common, was highly problematic. Solomon and Davidson (1997), for example, reported lifetime prevalence rates of trauma from 39 per cent to over 70 per cent. In 1994, the stressor criteria were significantly modified. According to the DSM-IV (American Psychiatric Association 1994), exposure to an ‘extreme traumatic stressor,’ defined as ‘actual or threatened death or serious injury, or a threat to the physical integrity of self or others,’ that induces ‘intense fear, helplessness, or horror’ is necessary to develop PTSD. Examples listed in the DSM-IV of ‘extreme traumatic stressor(s)’ include:

• • • • • • • •

military combat; violent personal assault; being kidnapped; being taken hostage; terrorist attack; torture; incarceration as a prisoner of war or in a concentration camp; and natural or man-made disasters.

Sometimes, individuals develop PTSD-type symptoms after confronting non-extreme stressors, for example, repetitive nasty criticism or lewd language. Because ‘information’ generated by a life event, including events which are not extreme, appears to be commonly processed in a manner which generates oscillations between intrusive/reliving and avoidance/numbing phenomena (Horowitz 1986), and individuals may react intensely to personally meaningful occurrences which objectively are not seriously threatening, the presence of PTSD-type symptoms is not a reliable indicator of the magnitude of a precipitating life event. Many factors determine the impact of an adverse life event, including:

• • • •

nature of the event; perception of the event; an individual’s biological make-up; and response of an individual’s social milieu to the event and the person who experienced the event.

Perception of an event is influenced by such (interrelated) variables as personality and life history. Although significant PTSD-type symptoms can be triggered by nonextreme stressors, generally the more severe the life event, the greater the resultant difficulties. Confronting imminent death and/or sexual penetration, and witnessing grotesque sights, for example, decapitation, mutilation, are particularly likely to produce severe symptoms. Lack of fulfillment of the diagnostic criteria for PTSD is not commensurate with lack of significant distress. The diagnoses of adjustment disorder, and particularly those of

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anxiety disorder not otherwise specified and/or depressive disorder not otherwise specified, may be used to describe meaningful pathology produced by non-extreme stressors. Psychological fragility that creates or significantly compounds a response to a life event does not bar recovery in personal injury cases. According to the ‘eggshell’ or ‘thin skull’ doctrine, which is based in common law, the wrongdoer is obliged to take his or her victims as he/she finds them, however frail they may be, and is liable both for exacerbation of a pre-existing injury and any new injury. Such liability, however, may not apply or be limited in actions for compensatory damages for sexual harassment under Title VII. In such cases, a plaintiff may not be entitled to damages emanating from pre-existing fragility/ hypersensitivity unless the harassment also would have (significantly) distressed the ‘ordinarily sensitive person,’ for example, McKinnon v. Kwong Wah Restaurant (1996). If it is determined that it would have, the plaintiff can recover for all of the damages associated with his or her ‘thin skull.’

Trauma history Assessment of (psychological) causation can be complex. When an individual has suffered past and contemporary trauma, and symptoms comprising PTSD are present, the examiner must determine whether:

• • • •

the PTSD is a new disorder caused by the recent trauma; the PTSD is a previously undiagnosed or undetected condition caused by prior trauma; the recent trauma triggered certain symptoms which emanate from PTSD caused by a prior trauma (more likely if the prior trauma was of greater magnitude than the recent trauma); interaction between the recent and prior traumas caused the PTSD, or each of these traumas independently produced a PTSD.

Because knowledge of prior traumas is necessary for full understanding of an individual’s response to a contemporary event, an examiner should take a complete trauma history. Such a history includes exploration of whether the claimant experienced physical or sexual abuse, or witnessed domestic violence during childhood, and age of onset, duration, frequency, nature and identity of the perpetrator(s) of any such abuse. A neighbor once fondling a child’s buttocks when the child was twelve years old, for example, typically produces a significantly different effect than a father repeatedly raping his daughter from the time she was five to eleven years old. When considering physical abuse, head injuries should be particularly explored. Neurologic status may affect development and prognosis of PTSD, and create diagnostic issues, for example, whether an individual’s irritability originates neurologically, psychologically, or both. Another area of inquiry should be military experiences, especially those of combat. It is important to determine the

nature and duration of combat activities, whether there was involvement in atrocities, and whether friends were killed. Involvement in long-distance reconnaissance, for example, has been found to be associated with severe and enduring PTSD (Wilson and Zigelbaum 1983). A history of criminal victimizations, including how any such events were perceived, should be obtained. The meaning that an individual ascribes to an event mediates its effect. For example, a mugging in which a middleaged woman is robbed by a young male with a knife may be experienced in different ways. One woman may focus upon the trembling hand holding the knife, interpret the youth’s shaking as an indication of inexperience, conclude he is likely to bungle the mugging and panic, stab and kill her, and be filled with terror. Another woman may attribute his shaking to fear, interpret his youth as a sign of lack of maliciousness – that is, ‘he is really just a boy’ – conclude he does not intend to physically harm her, and not be overwhelmed with fear. The extent to which an individual believes that his or her life or physical well-being is threatened (by a genuinely endangering event) correlates with development of PTSD. Other life events that should be investigated include human-made disasters, for example, accidental fires, naturally occurring disasters, and serious automobile accidents. When more than one individual has been involved in a traumatic event, it is important to learn the nature of the relationship of the examinee to the other individuals and the meaning of the others’ injuries (or lack of injuries) to him/her.

Malingering Because of its legal utility, PTSD is particularly likely to be malingered. One commonly used marker for detecting malingering is discordance between affect and content. A smiling, energetic disposition throughout a three-hour interview, for example, suggests an absence of (severe) depression. Because some individuals with genuine PTSD may dissociatively numb their pain, especially while recounting their trauma, a lack of overt distress does not necessarily reflect an absence of distress. The seeming paralysis of affect which may immediately follow a traumatic event and generate the impression that its victim is unaffected was long ago termed ‘frozen fright’ by Symmonds (1982). In 1991, Resick and colleagues found that rape victims with PTSD may be less animated while discussing their assault than rape victims without PTSD. Clinical judgment must be carefully exercised in determining the significance of discrepant affect. Malingering may also be suggested by:

•

recitation of all DSM-IV listed PTSD phenomena – such recitation suggests memorization of the DSM-IV diagnostic criteria;

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•

• • •

lack of nuanced description of PTSD symptoms – certain PTSD symptoms, for example, nightmares, tend to present in characteristic ways. Those malingering PTSD typically do not possess symptom specific knowledge; inability to provide detailed examples of how PTSD symptoms affect everyday activities; absence of spontaneous display of hyperarousal symptoms; and reporting symptoms to be static – PTSD symptoms typically fluctuate.

Nightmares are a prototypical PTSD phenomenon, but are very difficult to verify. Bed partners may report the presence of sleep disturbance and/or that the examinee has complained of nightmares, but are generally not financially disinterested parties, and except in unusual circumstances depend on the examinee for knowledge of the content of his or her dreams. Data suggest that PTSD nightmares, unlike non-PTSD nightmares, may not occur exclusively during rapid eye-movement (REM) sleep (Hartmann 1984; Kramer, Schoen, and Kenney 1984; van der Kolk et al. 1984). A sleep study might help detect such nightmares. Wave tracings, however, cannot illuminate the content of nightmares.

Psychologic testing Psychologic testing may aid in the determination of whether an examinee’s PTSD symptoms are malingered. It may be particularly useful or indicated when:

• • • •

an examinee is highly guarded during face-to-face interviews; malingering is strongly suspected or questioned; diagnosis is unclear; and/or an examinee’s reaction to the litigated event appears to be distorted or exaggerated.

The Minnesota Multiphasic Personality Inventory-2 (MMPI-2) (Butcher et al. 1989) and the Million Clinical Multiaxial Inventory-III (MCMI-III) (Millon, Davis, and Millon 1994) can be very helpful. The Impact of Event Scale (IES) (Horowitz, Wilner, and Alvarez 1979), a selfreport instrument which measures avoidance and intrusive symptomatology, and the Clinician Administered Posttraumatic Stress Scale (CAPS) (Blake et al. 1990), a structured interview for assessing PTSD, are useful research tools, but offer limited assistance in forensic settings. Data generated by psychologic testing should be considered within the context of all available information, and the strengths and weaknesses of each test employed. Of all tests used to evaluate PTSD, the MMPI-II is likely the most widely administered and potentially the most forensically helpful. It should, however, be used with the understanding that its sensitivity and specificity in detecting malingering of PTSD is not entirely clear. One review found that it correctly identified real and

fabricated PTSD over 90 per cent of the time (Lating, Zeichner, and Keane 1995), but another found that it did so in only a little over 40 per cent of subjects (Perconte and Goreczny 1990). Potentially problematic is its dependence upon an examinee’s characterization of an event as traumatic. An event which does not represent an extreme stressor, but which is perceived as such, can erroneously generate a diagnosis of PTSD. The CAPS, unlike the MMPI-II, was explicitly developed to aid diagnosing PTSD (Blake et al. 1995), but its forensic utility is limited. Varying applications of its scoring system have led to wide disparities in its rate of diagnosis of PTSD (Blanchard et al. 1995), and its ability to detect malingering has been inadequately assessed. The IES does not contain a validity scale, can be readily malingered, and does not fully comport with the DSM-IV PTSD diagnostic criteria. The MCMI-III contains a validity scale and may significantly support evaluation of an individual’s mode of perceiving and experiencing events. However, its ability to identify PTSD is not as well studied as that of the MMPI-II and, like the MMPI-II, it relies entirely upon an examinee’s characterization of an event as traumatic.

Psychophysiologic testing Psychophysiologic testing may be a useful adjunctive technique for assessing PTSD, as those with this disorder often suffer prominent physiological disturbances. Long before the introduction of the diagnosis of PTSD in 1980, Kardiner (1941) recognized the hyperarousal experienced by those with this condition, and labeled this entity a physioneurosis. Measurement of heart rate, skin conductance, and muscle contraction in response to a standard or idiosyncratic provocative, usually auditory, stimulus (Saigh and Bremner 1999) has been successfully utilized to detect PTSD in Vietnam War veterans (Pitman et al. 1987), Korean and World War II veterans (Orr et al. 1993), Israeli victims of rape and terrorism, Israeli combat veterans, and Israelis involved in automotive accidents (Orr and Pitman 1991; Shalev, Orr, and Pitman 1993). This methodology, however, is problematic in a forensic setting. Idiosyncratic testing relies upon scripts generated from a subject’s descriptions of (actual) life events. After a script is created, it is played back to the subject and the subject is asked to imagine the life event as vividly as possible (Orr and Pitman 1993). An examinee could manipulate this process, for example, by misrepresenting the source event. Particularly when the nature of an event is disputed, reliance upon inadequately corroborated information may create significant distortion. An examinee could also undetectedly imagine a scene more disturbing than the litigated event or focus on a fictitious trauma and potentially produce a falsely elevated result. Some 25 per cent of subjects (Vietnam combat veterans without PTSD) who were instructed to respond to their scripts as if they had PTSD were misidentified as PTSD physiologic

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responders by Orr and Pitman (1993). Test takers with greater motivation, for example, procurement of freedom or large amounts of money, might simulate PTSD responses even more successfully. Additionally those with antisocial personality disorder might conceivably fake PTSD responses better than those without this condition. However, because those with this disorder (or significant features of this disorder) may respond in a physiologically muted fashion to anxiety inducing stimuli, their ability to fool this test is quite unclear. Orr and Pitman did not differentiate successful deceivers by personality type. Because of the many difficulties associated with it, the admissibility of psychophysiologic testing is unclear.

TRAUMA IN THE WORKPLACE Sexual harassment Injuries caused by sexually harassing conduct may be actionable under Title VII of the Civil Rights Acts of 1964. Until the Civil Rights Act was amended in 1991, the only remedies available under Title VII were equitable, such as back-pay or reinstatement. The 1991 amendment made it possible to also recover compensatory or money damages, including punitive damages. To recover compensatory damages for emotional distress, some courts, to reduce the incidence of fraudulent claims (Sullivan v. Boston Gas Company 1993), have required proof of a physical manifestation of the emotional injury alleged. Physical manifestations might include nausea, body shakes and stomach pain (Bresnahan v. McAuliffe 1999). Most courts, however, require only expert testimony supporting the presence of emotional distress (Roling v. Daily 1999). Due to privacy concerns, courts may limit the data available to the forensic examiner. Rule 412 of the Federal Rules of Evidence, for example, may be used to exclude from evidence information about an individual’s prior sexual behavior. Inadmissibility of such evidence is not intended to preclude its exploration during pre-trial discovery, but may serve to restrict the scope of the forensic psychiatric examination. Courts and psychiatrists sometimes differently understand the relevance of particular information. Title VII prohibits sexual harassment that is so objectively offensive as to alter the conditions of a victim’s employment. The court in Oncale v. Sundowner Offshore Services, Inc. (1998) stated: Title VII does not reach genuine but innocuous differences in the way men and women routinely interact with members of the same sex and of the opposite sex, and the statute’s prohibition of harassment on the basis of sex requires neither asexuality nor androgeny in the workplace, but forbids only

behavior so objectively offensive as to alter the conditions of a victim’s employment.

The stressor giving rise to a sexual harassment claim must be sufficiently severe to be significant to the ‘reasonable person’ (Harris v. Forklift Systems, Inc. 1993). The ‘reasonable person’ is a legal construct used by the courts to identify the consensus of the community in which the event took place regarding what conduct should be actionable. The views of the ‘reasonable person’ are not those of a particular plaintiff. To prevail, a plaintiff must not only prove that she found the sexually harassing conduct to be severe and pervasive, but that the ‘reasonable person’ also would have done so (Ravitch 1995). Those who have idiosyncratically perceived workplace conduct may not be able to recover damages under Title VII, even if they have experienced genuine and severe distress. Some courts, on the theory that the ‘reasonable person’ tends to be biased towards men (Ellison v. Brady 1991), apply a ‘reasonable woman’ rather than a ‘reasonable person’ standard, for example, Brooks v. City of San Mateo (2000). Most, however, do not. The choice of standard for determining conduct deemed sexual harassment may not be of great practical importance. A study by Weiner et al. (1995) found that the use of different standards did not result in significantly different outcomes.

Disability Damages for trauma-induced injuries may also be recoverable under the Americans with Disabilities Act (ADA). The Equal Employment Opportunity Commission (EEOC) Guidance on Psychiatric Disabilities (1997) identifies PTSD, other anxiety disorders and major depression as impairments which may qualify as disabilities under the ADA. Impairments which ‘substantially limit’ a major life activity, such as working, are disabilities under the ADA. Nonetheless, there are significant restrictions upon obtaining relief under the ADA for PTSD and related difficulties. Impairments which only temporarily substantially limit a major life activity are not covered by the ADA. In Hamilton v. Southwestern Bell Telephone Company (1998), for example, the court dismissed the plaintiff ’s ADA claim on the grounds, amongst others, that his PTSD had abated, and that his work impairment was, thus, only temporary (see also Rogers v. International Marine Terminals 1996). Acute traumatic conditions that resolve are not covered by the ADA. Impairments that are rectified are also not actionable under the ADA. In Sutton v. United Airlines (1999), the Supreme Court held that the determination of whether a disability is cognizable under the ADA must take into account any corrective measures undertaken by the disabled person. Consequently, trauma-induced injuries

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that are compensated with medication and/or psychotherapy are likely not covered by the ADA. Even outside these exclusions, claims for PTSD and related entities succeed only rarely under the ADA. The PTSD sufferer, like those with other conditions, is often unable to negotiate the Scylla and Charybdis of demonstrating that his or her disorder is sufficiently severe to impair a major life activity, but not so disabling as to prevent him/her from working with an accommodation. For instance, in one case, a teacher developed PTSD as a result of being assaulted and threatened by students on four separate occasions. The school expelled three of the involved students and suspended another, and the school board fired the teacher after she was hospitalized for PTSD and did not return to work for months. The court which heard her ADA claim (Fields v. St. Bernard Parish School Board 2000) held that she was not entitled to the protections of the ADA because she could not work with or without an accommodation: The School Board claims, and the Court agrees, that the classroom is the workplace for a middle school teacher and that a teacher who cannot come to school is unable to perform any of the essential functions of her job.

In contrast to Fields, the court in Hetreed v. Allstate Insurance Co. (1999) dismissed the claim brought under the ADA by an auditor who developed PTSD and/or major depression as a result of being sexually harassed, ruling that her diagnoses were enough to establish an impairment under the ADA, but not sufficient to establish that she was substantially limited in the major life activity of working. The only proof she offered regarding the extent of her impairment was the diagnosis proffered by her physician. Interpretation of the ADA by the courts is rapidly evolving. The Supreme Court recently ruled in University of Alabama at Birmingham v. Garrett (2001) that there is no cause of action against state defendants for money damages in Federal court under the ADA. In dicta, the court made several statements respecting the nature of disability classifications entitled to equal protection. One of the cases cited by the court in its opinion, Cleburne v. Cleburne Living Center 1986, holds that it is not necessary under the 14th Amendment for states to make special accommodations for those with mental retardation as long as their actions toward these individuals are rational.

IMPACT OF COMPENSATION AND LITIGATION ON PROGNOSIS In his 1961 Milroy lectures, Miller (1961a, 1961b) described fifty individuals who had suffered accidental head injuries and who had ‘gross neurotic symptoms’ which he termed accident neurosis. By two years after

settlement of their legal cases, 41 out of 45 of those previously employed had returned to their own or similar work. This finding spurred Miller to conclude that symptoms and disability are likely to recede with resolution of a claim for compensation, and to formulate five ‘truths’ regarding work-related injuries. Although these ‘truths’ have been largely repudiated [Fontana and Rosenheck (1998); Smith and Freuh (1996); Mendelson (1995); Binder, Trimble, and McNeil (1991a); Tarsh and Royston (1985); Sprehe (1984); Kelly (1981a, 1981b); Kelly (1975)], they continue to influence many examiners. Unlike Miller, Mendelson, for example, found that 75 per cent of 264 litigants who were not working at the time their litigation concluded continued to be disabled an average of twenty-three months later. Sprehe, who examined the effect of monetary settlement on psychiatric disability in workers’ compensation cases, similarly found that ‘There was a high prevalence of cases in which the settlement correlated with no improvement in employment status’ and concluded, ‘It would appear from this preliminary correlational study that the “greenback poultice” concept has little use as a prognostic theory.’ The litigation process itself may affect trauma related symptoms in multiple ways. Adversarial proceedings, particularly when highly antagonistic, can be very stressful and trigger and interfere with resolution of traumatic memories and associated symptoms. The meaning(s) an individual ascribes to litigation may also influence its emotional impact. To some, litigation represents a way of obtaining recognition of (perceived or actual) injustice and/or expressing rage in a socially acceptable manner. Sometimes individuals misdirect, that is, transfer, to the defendant a desire for vengeance originating from past wrongs, and unwittingly attempt to use litigation to assuage old wounds. Binder, Trimble, and McNeil (1991b) provide examples of the import of the litigation process. One woman, for example, stated regarding her settlement, ‘I accomplished what I wanted; the rental company no longer rents chainsaws to the public. There was a TV show about my accident which alerted the public.’ Another individual, in contrast, reported feeling humiliated and becoming more distressed after a judge ruled that his injury was self-inflicted.

MEMORY OF TRAUMA AND LITIGATION AGAINST THERAPISTS Few issues have inspired as much impassioned debate as that of ‘recovered memory.’ One side argues that amnesia for traumatic events is well documented, and invokes dissociation and/or repression to explain preservation of memories of forgotten trauma. Of dissociation, West (1967) wrote, ‘For a period of time, certain information is not associated or integrated with other information as it normally and logically would be,’ and Yates and Nasby

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(1993) explained that it disconnects or separates one part of memory from the other, that it is not ‘normal’ forgetting, and that dissociated information is ‘encoded but cannot be retrieved.’ The other side notes that there is no compelling ‘biological or social evidence’ (Courtois 1999) which indicates that memories of traumatic experiences can be submerged and then recovered after many years, and that there is an abundance of research indicating that events that recur leave a greater rather than lesser memory trace and are more rather than less likely to be remembered. Also noted is the relationship between dissociation, and hypnotizability and suggestibility, and that those with a high dissociative capacity are at particular risk to confabulate (Frankel 1990).

Admissibility of “recovered memory” into evidence Where evidence results from the use of novel scientific theories or processes, it will be admitted in courts under Frye v. United States (1923) only if the processes or theories are generally accepted in the relevant scientific community, and under Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) only if deemed sufficiently supported by “science”, that is, scientific methodology. If the theory which gave rise to the evidence satisfies the applicable standard’s muster, courts are prepared to presume the evidence has some measure of reliability and leave it to the jury to determine how much weight it should be given in reaching a verdict. Because in the relevant scientific community there is not general agreement that memories of past trauma can be lost and later accurately retrieved, and the “scientific” data undergirding this phenomenon are controversial, “recovered memories” are, for the most part, not permitted into evidence to prove allegations of past wrongful behavior. As a result, lawsuits seeking damages for sexual abuse recalled long after it allegedly occurred have been often dismissed. The debate held at the American Psychiatric Association’s annual meeting in May 2000 regarding “recovered memory” reflects the difficulties courts have in determining the admissibility of “recovered memory”. Dr. David Spiegel, a proponent of “recovered memory” for the debate, argued that ‘while “recovering” abuse memories is not an automatic signal that the remembered events actually occurred, or occurred in the way the person recalls them, patients and others routinely repress these memories and later “restructure the meaning of trauma” in part as a form of protection.’ ‘Recovered memories of trauma,’ he contended, ‘can be an important and appropriate part of the psychiatric treatment of trauma patients and should not be dismissed just because a therapist does not find them plausible.’ Dr. Paul McHugh, in contrast, stated that ‘the concept of repressed memory and “recovered memories” [of

abuse] has been a clinical, intellectual, social and moral disaster for our discipline,’ and that the studies supporting their validity have multiple flaws, ‘including inclusion of individuals with neurological insults, children under age five and patients who have particular agendas for claiming they are victims of abuse.’ Such dichotomous views are prone to persuade courts, for example, State v. Quattrocchi (1999) that the theories in support of “recovered memory” have not gained general acceptance. The courts which have allowed “recovered memory” into evidence have used various legal theories to do so. One approach has been to accept as a premise that there is general agreement in the scientific community about the concept of dissociation and widespread disagreement only regarding the manner in which memories are elicited, and submit to the jury the question of the impact upon a memory’s reliability of the way it was ‘recovered.’ Somewhat similarly, one court, Moriarty v. Garden Sanctuary Church of God (1999) acknowledged that there is ‘considerable debate’ within the scientific community about “recovered memory”, but concluded, based upon the inclusion within the DSM-IV of Dissociative Amnesia, that “recovered memory” does, in fact, exist, and left the issue of the reliability of such memories to the jury. In contrast, the court in Logerquist v. McVey (2000) held that when an expert gave his opinion about “recovered memory” developed from inductive reasoning based on experience, ‘observation or research,’ it was ‘pure opinion’ evidence. Such evidence, the court found, was not subject to the same evidentiary rules as opinions respecting new or novel scientific principles, formulae or procedures developed by others. Courts that permit testimony regarding “recovered memory” seem to be concerned that excluding from evidence the testimony of an expert to explain this phenomenon in general and a plaintiff ’s memories in particular ensures that the plaintiff ’s suit will fail for lack of supporting evidence. Proponents of admitting “recovered memory” into evidence argue that it is no more or less reliable than ordinary memory, and that it should be treated like all testimony concerning things remembered, that is tested at trial via cross-examination and evaluation of any corroborative testimony, and review of any evidence that the plaintiff ’s claim is incorrect. The Court in Logerquist v. McVey wrote: We [the Court] believe, however, that the truth of Plaintiff’s testimony that she actually and accurately recalled or remembered the events as distinguished from inventing them or having had them suggested or implanted is for a jury to decide. While Defendant contends the alleged loss of memory and consequent delay in reporting make Plaintiff’s testimony unworthy of belief, in this, as in other cases, Rule 702 allows Plaintiff to call expert witnesses to explain her behavior following the events alleged and to help the

Trauma-induced psychiatric disorders and civil law 297 jury determine whether Plaintiff’s memories are real and accurate or imagined.

Statute of limitations Suits based on “recovered memory” frequently fail because of expiration of the applicable statute of limitations. State and federal laws generally require that suits be instituted within a specific period of time after alleged harm has occurred. If an individual does not recall alleged abuse until many years after its occurrence, a court may dismiss a suit as untimely unless it determines that a discovery exception to the statute of limitations applies, for example, Grace v. Colorito (1999). In such instances, the statute of limitations is tolled until harm has or could have been, with reasonable diligence, discovered, for example, Doe v. Roe (1998). Because it is very difficult to verify when memory of alleged abuse was “recovered” and to determine when an individual in the process of “recovering” memories should be considered on notice for harm she has allegedly suffered, there is widespread disagreement about application of the discovery exception to “recovered memory”.

Lawsuits against therapists Courts generally do not permit suits against therapists by third parties on the grounds that a therapist owes no duty of care to such individuals. A duty of care to third parties – for example, a patient’s parents – potentially arises, however, when harm to third parties is foreseeable and the burden of protecting third parties against false accusations is determined to outweigh society’s interest in detecting, treating and/or reporting child abuse (e.g., Treer v. Sills 1999). Courts also must balance concern regarding harm to third parties with protection of the psychiatrist–patient privilege (e.g., Doe v. McKay 1998). The case brought by Gary Ramona against his daughter’s treaters (Ramona v. Ramona 1994) illustrates how a therapist’s actions might produce liability. In consultation with her therapist, Holly Ramona underwent a sodium amytal interview. This procedure generated material which, in the context of ongoing therapy, led her to believe she had been sexually abused by her father. Subsequently, in a meeting facilitated by her therapist, she confronted her father regarding the abuse she recalled. After he was accused, Mr. Ramona lost his job and marriage, and sued his daughter’s therapists, claiming that he suffered harm as a result of negligent treatment. The court which heard this matter determined that therapists owe a duty to third parties to whom they direct their interventions and ruled that he could proceed with his suit (Appelbaum 2001). This case signals the peril of utilizing certain potentially suggestive treatment tools, for example, amytal interviews, to determine the ‘truth’ regarding historical events, and of relying upon such ‘truth’ when actively involving a third party in a patient’s treatment.

Other courts also have permitted parents to pursue actions against therapists for allegedly having induced their patients to ‘falsely’ recall incidents of abuse. In Montoya v. Bebensee (1998), although the therapist ultimately avoided liability on immunity grounds, the court held that a duty was owed to a father accused of abuse by a therapist when she reported the child’s abuse claim to county officials, urged the child’s mother to restrict visitation by the father, and testified for the mother at a hearing on visitation rights. In Hungerford v. Jones (1998), the therapist used ‘imagery’ or ‘visualization’ as a technique that led the patient to recall experiences of childhood sexual abuse. After these memories surfaced, the therapist directed the patient to cease all contact with her father and to file a criminal complaint against him. The court found that the therapist owed a duty to the father when the therapist took public action and encouraged his patient based on ‘false’ accusations of sex abuse. One court has suggested that there may be a duty to third parties to investigate the ‘truth’ of patients’ claims of abuse. In Caryl S. v. Child and Adolescent Treatment Services (1994, 1997) the Court held: [A] determination must initially be made by the professional that sexual abuse has in fact occurred and this determination is made not only about the child but about the suspected abuser. When, based upon that determination, a course of action is thereafter embarked upon by the professional, it is intended to and necessarily does, affect both the child and his or her abuser, especially where a family relationship is involved. A suspected abuser surely has the right to a reasonable expectation that such a determination, touching him or her as profoundly as it will, will be carefully made and will not be reached in a negligent manner.

Some courts appreciate the difficulty to therapists of potentially having duties to both alleged abused and alleged abuser. In Treer, the court observed: The issue presented by a claim of a duty to the potential ‘third party’ abuser is to what degree therapists necessarily become insurers of the truth of any diagnosis of childhood sexual abuse by a parent. We say ‘insurers’ because a moment’s reflection will demonstrate the perilous position in which any such duty would put the therapist. The therapist risks utter professional failure in his or her duty to the patient if possible childhood sexual abuse is ignored. On the other hand, if the heinous crime of (recently discovered) childhood sexual abuse really is the cause of the patient’s disorders, then it is virtually inevitable that the alleged abuser will suffer ‘harm’.

Under malpractice law, recovery is barred unless a patient can demonstrate that an injury directly resulted from a negligent act. Applying this principle to therapists accused of creating ‘false memories,’ one commentator

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has argued that ‘to meet this burden of proof, the medical record must clearly show a repetitive and sustained scheme of indoctrination coupled with a personality trait making the patient susceptible to this social influence.’ (Scheflin and Brown 1999). Courts, however, have focused on whether a duty is owed and/or the foreseeability of harm to alleged abusers, and have tended to find therapists liable without much discussion of how treatment was negligent. In Hungerford v. Jones (1998) the court seemingly found the use of certain techniques to be negligence per se. It wrote: The duty of care to the accused parent is breached by the therapist when the publicized misdiagnosis results from (1) the use of psychological phenomena or techniques not generally accepted in the mental health community, or (2) lack of professional qualifications.

In March 2000, the American Psychiatric Association issued a new position statement on memories of childhood physical and sexual abuse, making four recommendations to therapists: Regardless of issues of childhood abuse, all patients should receive a complete psychiatric evaluation. Psychiatrists should maintain an empathetic, nonjudgmental, neutral stance toward reported memories of sexual abuse. As in the treatment of all patients, care must be taken to avoid prejudging the cause of the patient’s difficulties or the veracity of the patient’s reports. A strong prior belief that physical or sexual abuse or other factors are or are not the cause of the patient’s problems is likely to interfere with appropriate assessment and treatment. When no corroborating evidence is available to confirm or refute reports of new memories of childhood abuse, treatment may focus on assisting patients in coming to their own conclusions about the accuracy of their memories or in adapting to uncertainty regarding what actually occurred. The therapeutic goal is to help patients understand the impact of the memories/abuse experiences on their lives and to reduce the impact of these experiences. When asked to provide expert opinion involving memories of abuse, psychiatrists should refrain from making public statements about the historical accuracy of individual patients’ reports of new memories based on observations made in psychotherapy. Further research and education regarding memory and childhood abuse are required to enhance psychiatrists’ ability, on the basis of empirical evidence, to assist patients struggling with these profoundly difficult issues.

Therapist immunity Some states provide immunity to psychiatrists and psychologists who perform certain services, including

advocating, fact finding, and testifying, that are integral to a judicial proceeding (Tyner v. State Department of Social and Health Services 1998). Immunity, however, does not generally extend to provision of therapy. A court order directing that therapy be rendered is not generally enough to create immunity for acts engaged in during it.

CONCLUSION The prevalence of traumatic life events, changing attitudes and rules regarding the workplace, legal utility of PTSD, and difficulty sometimes verifying posttraumatic stress symptoms fuel large numbers of claims alleging the presence of PTSD. To conclude that a plaintiff suffers from PTSD, it is necessary to define the initiating stressor, perform a thorough trauma history, and exclude other diagnoses which may more accurately reflect the plaintiff ’s mental state. To fully understand a plaintiff ’s mental state, it is also necessary to consider the influence of the litigation process upon it.

REFERENCES American Psychiatric Association. 1980: Diagnostic and Statistical Manual of Mental Disorders. 3rd edition. Washington, DC. American Psychiatric Association. 1994: Diagnostic and Statistical Manual of Mental Disorders. 4th edition. Washington, DC. American with Disabilities Act, 42 USC § 12102(2). Appelbaum, P. 2001. Third party suits against therapists in recovered memory cases. Psychiatric Services 52, 27–8. Binder, R.L., Trimble, M.R., McNeil, D. 1991a. The course of psychological symptoms after resolution of lawsuits. American Journal of Psychiatry 148, 1073–5. Binder, R.L., Trimble, M.R., McNeil, D. 1991b. Is money a cure? Follow up of litigants in England. Bulletin of the American Academy of Psychiatry and the Law 19, 151–67. Blake D., Weathers, F.W., Nagy, D., et al. 1990. A clinician rating scale for current and lifetime PTSD. Behavior Therapist 13, 187–8. Blake, D, Weathers, F.W., Nagy, L.M., et al. 1995. The development of a clinician-administered PTSD scale. Journal of Traumatic Stress 8, 75–90. Blanchard, E.B., Hickling E.J., Taylor, A.E., et al. 1995. Effects of varying scoring rules of the ClinicianAdministered PTSD Scale (CAPS) for the diagnosis of post-traumatic stress disorder in motor vehicle accident victims. Behavior Research and Therapy 33, 471–5. Breslau, N., Davis, G.C. 1992. Post traumatic stress disorder in an urban population of young adults: risk factors for chronicity. American Journal of Psychiatry 149, 671–5.

Trauma-induced psychiatric disorders and civil law 299 Breslau, N., Kessler, R.C., Chilcoat, H.D., et al. 1998. Trauma and post traumatic stress disorder in the community: The 1996 Detroit Area Survey of Trauma. American Journal of Psychiatry 55, 626–32. Bresnahan v. McAuliffe, 47 Mass. App. Ct. 278, 285, 712 N.E.2d 1173 (1999). Brooks v. City of San Mateo, 214 F.3d 1082, 1090-1 (9th Cir. 2000). Brown, J.T. 1996. Avoiding litigation neurosis: a practitioner’s guide to defending post traumatic stress disorder claims. American Journal of Trial Advocacy 20, 129–68. Butcher, J.N., Dahistron, W.G., Graham, J.R., et al. 1989: Minnesota Multiphasic Personality Inventory-2 (MMPI-2): Manual for Administration and Scoring. Minneapolis, Minnesota: University of Minnesota Press. Caryl S. v. Child and Adolescent Treatment Services, 614 N.Y.S. 2d 563 (Sup. Ct. N.Y. 1994), aff’d 238 A.D.2d 953 661 N.Y.S. 2d 167 (1997). Cleburne v. Cleburne Living Center, 473 U.S. 432 (1986). Courtois, C.A., 1999: Recollections of Child Abuse. New York: W.W. Norton & Co. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592–3 (1993). Doe v. McKay, 183 III.2d 272, 278 (1998). Doe v. Roe, 191 Ariz. 313, 955 P.2d 951 (Sup. Ct. Az. 1998). EEOC Guidance on Psychiatric Disabilities, 8 FEP Manual (BNA) 405:7462 (1997). Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991). Fields v. St. Bernard Parish School Board, 2000 WL 1560012 (E.D. Louisiana). Fontana, A., Rosenheck, R. 1998. Effects of compensationseeking on treatment outcomes among veterans with post traumatic stress disorder. Journal of Nervous and Mental Disease 186, 223–30. Frankel, F.H. 1990. Hypnotizability and dissociation. American Journal of Psychiatry 147, 823–9. Freedman, S.A., Brandes, D., Peri, T., Shalev, A.Y. 1999. Predictors of chronic post traumatic stress disorder: a prospective study. British Journal of Psychiatry 174, 353–9. Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). Grace v. Colorito, 4 S.W.3d 765 (Ct. App. Tx. 1999). Green, B.L., Goodman, L.A., Krupnick, J.L., et al. 2000. Outcomes of single versus multiple trauma exposure in a screening sample. Journal of Traumatic Stress 13, 271–85. Gurvits, T.G., Gilberson, M.W., Lasko, N.B., et al. 2000. Neurologic soft signs in chronic post traumatic stress disorder. Archives of General Psychiatry 57, 181–6. Hamilton v. Southwestern Bell Telephone Company, 136 F.3d 1047 (5th Cir. 1998). Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). Hartmann, E. 1984: The Nightmare: The Psychology and Biology of Terrifying Dreams. New York: Basic Books. Hetreed v. Allstate Insurance Company, 1999 WL 311728 (N.D. III.), aff’d F.3d, 2001 WL 427785 (7th Cir. III.) April 12, 2001.

Horowitz, M. 1986. Stress response syndromes: post traumatic and adjustment disorders. Hospital and Community Psychiatry 37, 241–51. Horowitz, M.J., Wilner, N., Alvarez, W. 1979. Impact of event scale: a measure of subjective stress. Psychosomatic Medicine 41, 209–18. Hungerford v. Jones, 722 A.2d 478 (N.H. Sup. Ct. 1998). Kardiner, A. 1941: The Traumatic Neuroses of War. New York: Harper and Row Publishers, Inc. Kelly, R. 1975. The post traumatic syndrome: an iatrogenic disease. Forensic Science 6, 17–24. Kelly, R. 1981a. The post traumatic syndrome. Journal of the Royal Society of Medicine 74, 242–5. Kelly, R. 1981b. Post traumatic syndrome: another myth discredited. Journal of the Royal Society of Medicine 74, 275–7. King, D.W., King, L.A., Keane, T.M., et al. 1999. Post traumatic stress disorder in a national sample of female and male Vietnam veterans: risk factors, war-zone stressors and resilience-recovery variables. Journal of Abnormal Psychology 108, 164–70. Koopman, C., Classen, C., Spiegel, D. 1994. Predictors of post traumatic stress symptoms among survivors of the Oakland/Berkeley, Calif., firestorm. American Journal of Psychiatry 751, 888–94. Kramer, M., Schoen, L.S., Kenney, L. 1984: The dream experience in dream-disturbed Vietnam veterans. In van der Kolk, B. (ed.), Post Traumatic Stress Disorder: Psychological and Biological Sequelae. Washington, DC: American Psychiatric Press. Lating, J., Zeichner, A., Keane, T. 1995: Psychological assessment of PTSD. In Everly, G.S., Jr., Lating, J.M. (eds), Psychotraumatology. New York: Plenum Press, 103–27. Lees-Haley, P.R. 1986. Pseudo-posttraumatic stress disorder. Trial Diplomacy 9, 17–20. Logerquist v. McVey, 1 P.3d 113 (Sup. Ct. Ariz 2000). McKinnon v. Kwong Wah Restaurant, 83 F.3d 489, 506 (1st Cir. 1996). Mendelson, G. 1995. ‘Compensation neurosis’ revisited: outcome studies of the effects of litigation. Journal of Psychosomatic Research 39, 695–706. Miller, H. 1961a. Accident neurosis, Lecture I. British Medical Journal 5230, 919–25. Miller, H. 1961b. Accident neurosis, Lecture II. British Medical Journal 5231, 992–8. Millon, T., Davis, R., Millon, C. 1994: Millon Clinical Multiaxial Inventory-III (MCMI-III) 2nd edition. Minnetonka, Minnesota: National Computer Systems Assessments. Modlin, H.C. 1986. Compensation neurosis. Bulletin of the American Academy of Psychiatry and the Law 14, 263–70. Montoya v. Bebensee, 761 P.2d 285, 288 (Colo. Ct. App. 1988). Moriarty v. Garden Sanctuary Church of God, 334 S.C. 150, 511 S.E.2d 699, 705 (1999).

300 Civil law Oncale v. Sundowner Offshore Services, Inc., 118 Sup. Ct. 998, 1002–3 (1998). Orr, S.P., Pitman, R.K. 1991. Psychophysiologic responses to trauma related imagery: classification of post traumatic stress disorder across different subject populations. Paper read at the annual meeting of the International Society for Traumatic Stress Studies, October 5, 1991, Washington, DC. Orr, S.P., Pitman, R.K. 1993. Psychophysiologic assessment of veterans attempting to simulate post-traumatic stress disorder during personal combat imagery. Biological Psychiatry 33, 127–9. Orr, S.P., Pitman, R.K., Herz, L.R., et al. 1993. Psychophysiology of PTSD in Korean and World War II veterans. Journal of Abnormal Psychology 102, 152–9. Perconte, S., Goreczny, A. 1990. Failure to detect fabricated post traumatic stress disorder with the use of the MMPI in a clinical population. American Journal of Psychiatry 147, 1057–60. Pitman, R.K., Orr, S.P., Forgue, D.F., et al. 1987. Psychophysiology of PTSD imagery in Vietnam combat veterans. Archives of General Psychiatry 44, 970–5. Ramona v. Ramona, Super. Ct. Napa County No. 61898 (1994). Ravitch, F.S., 1995. Hostile work environment and the objective reasonableness conundrum: deriving a workable framework from tort law for addressing knowing harassment of hypersensitive employees. 36 Boston College Law Review, 257. Resick, F., Churchill, M., Schnicke, M.K., Olevilch, B. 1991. Behavioral correlates of PTSD: a pilot study. Poster presentation, annual meeting of the International Society for Traumatic Stress Studies, October 1991, Washington, DC. Resnick, H.S., Yehuda, R., Pitman, R.K., Foy, D.W. 1995. Effect of previous trauma on acute plasma cortisol level following rape. American Journal of Psychiatry 153, 1675–7. Rogers v. International Marine Terminals, 87 F.3d 755, 759 (5th Cir. 1996). Roling v. Daily, 596 N.W.2d 72, 27 (Sup. Ct. Iowa 1999). Saigh, P.A., Bremner, J.D. (eds). 1999: Post Traumatic Stress Disorder: A Comprehensive Text. Boston: Allyn and Bacon. Scheflin, A.W., Brown, D. 1999. The false litigant syndrome: “Nobody would say that unless it was the truth.” Journal of Psychiatry and Law 27, 649–705. Shalev, A.Y., Orr, S.P., Pitman, R.K. 1993. Psychophysiologic assessment of traumatic imagery in Israeli civilian post-traumatic stress disorder patients. American Journal of Psychiatry 150, 620–4. Shalev, A.Y., Peri, T., Canetti, L., Schreiber, S. 1996. Predictors of PTSD in injured trauma survivors: a

prospective study. American Journal of Psychiatry 153, 219–25. Simon, R.I. 1999. Chronic post traumatic stress disorder: a review and checklist of factors influencing prognosis. Harvard Review of Psychiatry 6, 304–12. Slovenko, R. 1973: Psychiatry and Law. Boston: Little, Brown. Smith, D., Freuh, B. 1996. Compensation seeking, comorbidity, and apparent exaggeration of PTSD symptoms among Vietnam combat veterans. Psychological Assessment 8, 3–6. Solomon, S.D., Davidson, J. 1997. Trauma: prevalence, impairment, service use, and cost. Journal of Clinical Psychiatry 98, 5–11. Sprehe, D.J. 1984. Worker’s compensation, a psychiatric follow up study. International Journal of Law and Psychiatry 7, 165–78. State v. Quattrocchi, 1999 WL 284822 (R.I. Super) aff’d upon motion for reconsideration and clarification, 2001 WL 100378 (R.I. Super). Sullivan v. Boston Gas Company, 605 N.E. 2d 805 (Mass. 1993). Sutton v. United Airlines, 527 U.S. 471 (1999). Symmonds, M. 1982. The “second injury” to victims. Evaluation and Change, special issue, 36–8. Tarsh, M., Royston, C. 1985. A follow-up study of accident neuroses. British Journal of Psychiatry 146, 18–25. Treer v. Sills 82 Cal. App 4th at 288 (1999). Tyner v. State Department of Social and Health Services, 963 P.2d 215, 224 (Wash. Ct. App. 1998) rev’d 1 P.3d 1146 (Wash. 2000). University of Alabama at Birmingham v. Garrett, 531 U.S. 356 (2001). van der Kolk, B., Blitz, R., Burr, W., et al. 1984. Nightmares and trauma: a comparison of nightmares after combat with life long nightmares in veterans. American Journal of Psychiatry 141, 187–90. Weiner, R.L., Watts, B.A., Goldkamp, K.H., Caspar, C. 1995. Social analytic investigation of hostile work environments: a test of the Reasonable Woman Standard. Law and Human Behavior 19(3), 246. West, L. 1967: Dissociative reactions. In Freedman, A.M., Kaplan, H.I. (eds), Comprehensive Textbook of Psychiatry. Baltimore, Maryland: Williams & Wilkins, 885–98. Wilson, J., Zigelbaum, S. 1983. The Vietnam veteran on trial: the relation of traumatic stress disorder to criminal behavior. Behavioral Sciences and the Law 1, 69–83. Yates, J.L., Nasby, W. 1993. Dissociation, affect, and network models of memories: an integrative proposal. Journal of Traumatic Stress 6, 305–26.

33 Neuropsychiatric assessments in toxic exposure litigation DANIEL A. MARTELL

This chapter provides a synopsis of the issues arising in the forensic assessment of neurotoxicity. The perspective provided here is by necessity an overview due to the extensive literature available on the topic of neurotoxicity, the sheer volume of which far exceeds the scope of this chapter. However, the forensic psychiatric evaluation of issues arising from neurotoxic exposure has received relatively little attention in the literature. This chapter is intended to guide the reader who is confronting this issue to relevant resources and materials, and to facilitate a broad understanding of its forensic contours. The topics that will be addressed include the scope of the problem, an introduction to the scientific reference literature, a review of the forensic contexts in which neurotoxicity claims arise, and an interdisciplinary model for forensic psychiatric evaluation in neurotoxin exposure cases.

neuropharmacological and neurodegenerative processes, including: (i) anoxia; (ii) synaptic damage; (iii) cellular damage; and (iv) neurochemical damage. Because various substances affect the body in different ways, there is no single generally accepted hypothesis for the mechanism of action of neurotoxic agents. The link between initial exposure and ultimate psychiatric and behavioral outcomes depends on a complex chain of variables. These include the dose response relationship to the level of exposure, the developmental status of the individual’s nervous system, the vulnerability of different cell types to exogenous influence, and exigencies of the complex network of cerebral interconnections underlying mental processes within the brain that are not fully understood. Damage may occur as a direct result of toxic insult to specific neurons, or as the indirect result of damage to other organ systems that in turn produces lesions within the nervous system (Silbergeld 1990; Hartman 1995).

WHAT IS NEUROTOXICITY? Broadly, neurotoxicity refers to a temporary or permanent change in the function of the nervous system caused by the deleterious effects of neurotoxic agents, either singly or in combination. Of greatest concern to forensic psychiatry are the cognitive, behavioral, and psychopathological outcomes of such exposures as they arise in the law. The notion that substances can have poisonous or toxic effects on the human nervous system dates back over 450 years. Hartman (1995) notes Anglicus Bartholomaeus’ colorful description in 1535 of the neurotoxic effects of mercury: ‘The smoke thereof is most grevous to men that ben therby. For it bredeth the palsey, and quaking, shakynge, neshynge [softening] of the synewes.’ A thorough understanding of human neurotoxic poisoning requires an integration of the toxicological, neurological, and general medical literature. However, the primary causes of damage to the central and peripheral nervous systems can be summarized to encompass both

EXTENT OF THE PROBLEM The Environmental Protection Agency’s register lists more than 65 000 toxic chemicals in use in the United States (Neurotoxicity 1990). People are exposed to these substances in products ranging from pesticides to drugs, food additives, cosmetics, and industrial chemicals. Anger and Johnson (1985) cite 850 toxic chemicals that are known to cause neurobehavioral disorders (see also Chemical Regulation Reporter 1986). Regulatory agencies such as the Occupational Safety and Health Administration (OSHA) and the Environmental Protection Agency have attempted to promulgate standards for ‘safe’ exposure levels in the workplace (for example the NIOSH Pocket Guide 1985), yet only a fraction of potential neurotoxicants have been studied or are well understood. Anger (1990) notes that the National Institute for Occupational Safety and Health (NIOSH) lists 36 chemical agents with known nervous

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system effects at low concentrations. OSHA sets standards for only 588 chemicals, of which only 167 have been regulated for their neurotoxic effects (Hartman 1985).

been described (Perna, Bordini, and Deinzer-Lifrak 2001), and Hartman (1995) reviews the literature on over two dozen other additional neurotoxic substances, ranging from hyperbaric nitrogen to jet fuels.

SOME SPECIFIC TOXIC AGENTS Due to the sheer volume of neurotoxic substances, any summary here is by necessity cursory. However, there are some major categories of substances that are commonly encountered and bear mention as likely candidates in forensic cases. 1 Pesticides: these include organophosphates, chlorinated hydrocarbons (DDT), and chlorinated cyclodienes (‘Agent Orange’). Exposure is common among several groups, including agricultural workers and Vietnam era veterans, and accidental exposure has been reported from misuse of home pesticides, contaminated drinking water, and unwashed contaminated fruits and vegetables. 2 Solvents: exposure to solvents such as toluene, styrene, and acetone is common among workers who may be accidentally or involuntarily exposed at work (World Health Organization 1985; National Institute for Occupational Safety and Health 1987). Still other individuals are known to abuse solvents by sniffing or ‘huffing’ their concentrated vapors for the intendant intoxication they can produce. However, the risk associated with chronic low-level exposure to solvents remains equivocal (Klinken and Arlien-Soborg 1993; Williams and Lees-Haley 1996). 3 Metals: these represent a third major area of interest in neurotoxicology. No single metal has received more attention in this area than lead (Dyer 1998), particularly involving children. Old paint is notoriously dangerous in this regard, with over one-half of the homes in America believed to be contaminated beyond safe levels (United States Department of Health and Human Services 1988). Other metals including mercury (Risher et al. 1999), iron, copper, gold, aluminum, antimony, and arsenic are also relevant here. The route of exposure in adults is most commonly inhalation in the workplace. 4 Gases: many gases such as carbon monoxide, butane, propane, and ozone have well-described neurotoxic effects. Exposure is often attributed to faulty heaters and leaking from storage tanks and chemical plants, such as the tragedy in Bhopal, India in 1984. Intentional inhalation of some gases (e.g., nitrous oxide) is also common as a means of getting ‘high,’ and inhalation of carbon monoxide is well known as a method of attempting suicide. 5 Other neurotoxic substances: finally, there are several additional neurotoxic substances that do not fall neatly into the categories above. For example, impairment from chronic exposure to formaldehyde has recently

NEUROPSYCHIATRIC EFFECTS OF TOXIC EXPOSURE There are several major textbooks that address the neurological and neurobehavioral sequelae of neurotoxic exposure in fine detail. The interested reader is encouraged to consult excellent texts on behavioral toxicology (Wiess 1992), neuropsychological toxicology (Hartman 1995), and neurological neurotoxicology (Bleeker and Hansen 1994). A wide range of impairments arising from neurotoxic exposure has been described, many of which overlap significantly with or mimic more etiologically routine psychiatric disorders. While some nervous system poisons have fairly distinct neuropsychiatric signatures, others remain ill-defined. All that having been said, one can conceptualize neurotoxic pathology along several fundamental dimensions. The first are neurological impairments, including headaches, seizures, encephalopathies (acute and chronic), ataxia, extrapyramidal movement disorders and tremor, myelopathies, cranial neuropathies, optic neuropathies, peripheral neuropathies, and muscle weakness other than neuropathy (Valciukas 1991, as cited by Singer 1994). Some researchers have described a pattern of irreversible neurobehavioral deficits labeled ‘chronic toxic encephalopathy’ resulting from prolonged exposure to organic solvents (Baker 1994), although others dispute the voracity of this finding (Lees-Haley and Williams 1996). Second are major psychiatric impairments, most commonly including symptoms of affective disorders (depression, bipolar disorder), psychosis (hallucinations and delusions), and organic brain disorder. For example, organic delusional disorders are commonly seen in toxicmetabolic processes (Cummings 1985), and generally fall into one of four types: (i) simple persecutory delusions; (ii) complex persecutory delusions; (iii) grandiose delusions; and (iv) those associated with specific neurological defects. A so-called ‘organic affective syndrome’ has been associated with chronic solvent exposure, characterized by fatigue, irritability, depression, anxiety, and apathy (Baker and Fine 1986). Personality and behavioral changes have also been described, including irritability, social withdrawal, and amotivation, sleep disturbances, chronic fatigue, and sexual dysfunction (Singer 1990). Finally, perhaps the greatest body of empirical literature relates to symptoms of dementia and related neuropsychological impairment. Cognitive dysfunction including memory impairment, psychomotor retardation, pure motor

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and visuomotor impairments, as well as impaired arousal, vigilance, attention, concentration, motor speed, and coordination are all common. Impairment is also seen in cognitive efficiency and flexibility; lowered IQ, hyperactivity and retardation in children; and fine motor control (Hartman, Hessl, and Tarcher 1992). It should be noted however, that some of the literature on the effects of exposure to toxic agents, particularly exposure to low doses, is equivocal with self-reports vulnerable to functional and psychosomatic complaints (Dunn et al. 1995; Lees-Haley and Brown 1992; LeesHaley and Williams 1996; Williams and Lees-Haley 1996).

Hartman (1995) divides the psychological explanations for MCS into five areas:

EMERGING RELATED ISSUES

Some patients develop irrational fears of chemicals (chemophobia) or fears that chemicals in their environment will cause them to develop cancer (cancerphobia), both of which can be debilitating psychiatric conditions with forensic ramifications. Yet another controversial new topic is sick building syndrome. This is characterized by several non-specific somatic and psychological complaints, including irritated eyes, nose and/or throat, dermatological reactions, fatigue, headache, and nausea, and can be differentiated from known building-related medical illnesses related to poor indoor air quality, for example legionellosis, asthma, or humidifier mold spore reactions (Welch 1991; Hartman 1995). Similar to MCS, sick building syndrome may reflect some unique admixture of biopsychosocial risk factors in certain vulnerable individuals.

Under this heading are a number of phenomena, including multiple chemical sensitivity, cancerphobia, chemophobia, and sick building syndrome. These conditions, while bearing some putative connection to environmental toxicology, appear to have roots in functional psychopathology and psychosomatics. Multiple chemical sensitivity (MCS) is a fairly controversial topic in this area, with battle lines drawn over whether it is an organic or functional (psychological) disorder. Simon (1998) addresses the forensic psychiatric evaluation of MCS in the greatest detail to date. It was originally described by Cullen (1987) as a disorder characterized by recurrent symptoms affecting multiple organ systems that come and go predictably in reaction to exposure to several unrelated chemical compounds in ultralow doses, with levels significantly below those known to cause harm or symptoms in others. No single test is known that can explain the symptoms. Most patients presenting with MCS have been described as well-educated white females of above average socioeconomic status (Black, Rathe, and Goldstein 1990). They appear to be patients with a profound aversion to psychiatry and extensive medical histories with unsatisfactory outcomes (Gots et al. 1993), who are also highly litigious in seeking workers’ compensation and social security disability payments (Hartman 1995). Gots (1995) argues that this is a highly subjective and psychosomatic disorder – a position supported by research conducted by Witorsch et al. (1995), who found MCS to be best characterized as a manifestation of any one of several psychiatric disorders that involve somatization as the primary psychopathologic mechanism. Still others have attempted to explain MCS as a deficit in immune regulation (Terr 1989). Lees-Haley and Brown (1992) note that reactions to chemical exposures can be colored by multiple factors, including stories in the media, hysterical and hypochondriachal reactions, prior beliefs, influential others, and the forensic context itself, all of which affect their self-reports.

1 Hysterical or somatoform disorders. 2 Posttraumatic stress disorder arising from a threatening near-poisoning experience. 3 Conditioning and generalization of autonomic and/ or neurotoxic abnormalities. 4 An iatrogenic condition arising from new-age ‘treatments’ by clinical ecologists and holistic heath practitioners. 5 Patients who represent a mixed group of psychiatric disorders whose only commonality is a shared belief that they have an environmental illness because someone in the medical community told them so.

FORENSIC ISSUES ARISING FROM NEUROTOXIN EXPOSURE Neurotoxic exposure cases are most likely to present themselves in forensic psychiatric practice in three areas: civil litigation; criminal litigation; and administrative litigation. In civil litigation, such cases have earned the moniker ‘toxic torts,’ reflecting just how common such cases have become in the contemporary legal lexicon (Lees-Haley 1993; Hartman 1999). In toxic tort litigation, like any other tort action, three classic factors must be established:

• • •

that a duty existed between the parties; that the duty was breached due to the negligence of the defendant; and that the damages suffered by the plaintiff arose as a proximate cause of the negligent breach of that duty.

Legal issues in these cases include establishing general causation (i.e., can substance X cause symptom Y), establishing legal liability (i.e., is defendant responsible for exposing the plaintiff to the toxin), and establishing the

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extent of damages to the plaintiff (compensatory and punitive). Forensic psychiatric evaluation is most often sought on issues of causation and the damages to be awarded given the disability incurred. Examples include product liability cases involving adverse reactions from drugs such as thalidomide or benedictin (morning sickness) (Brannigan, Bier, and Berg 1992), wrongful exposure to toxins in the workplace, and ‘mass tort’ cases (injuries caused by a single product or agent or event affecting a large population) involving substances such as lead paint, asbestos, ‘Agent Orange,’ or catastrophic leaks from chemical plants as in Bhopal, India (Gerson 1990). Fetal exposure is also an increasingly relevant issue here (Karrh et al. 1981; Morris and Sonderegger 1986). For example, the liability of an employer for a mother’s or father’s exposure to a neurotoxic substance in the workplace that may have contributed to birth defects or subsequent impairments in their offspring. The second major arena in which neurotoxin exposure becomes an issue for forensic psychiatry is in criminal litigation. Here, neurotoxic impairment forms the basis for a wide range of legal issues including competency to stand trial, diminished capacities or diminished actualities in the capacity to form criminal intent, and the insanity defense. For example, Lemmen, Holden, and Benedek (1996) report on a case of Prozac intoxication leading to murder. In another case, uranium neurotoxicity was linked to murder (Lucas 1989). Carbon monoxide poisoning has also been raised as defense to homicide. A final area where forensic psychiatric expertise in neurotoxic exposure might be sought is workers’ compensation and/or disability determination cases involving administrative courts and disability insurance litigation. Lees-Haley and colleagues have addressed a range of forensic issues from establishing guidelines for judging the quality of forensic evaluations of personal injury claimants in toxic tort litigation (Lees-Haley 1997a), to addressing the manipulation of plaintiffs by nefarious attorneys in mass tort litigation (Lees-Haley 1997b), to establishing base rates of various neurotoxic complaints among personal injury claimants (Lees-Haley 1992; Dunn et al. 1995).

FORENSIC PSYCHIATRIC EVALUATION OF NEUROTOXIC COMPLAINTS Forensic evaluations in this area can be extremely challenging and are often quite difficult. An interdisciplinary approach is often beneficial, as consultation with other professionals almost always bears fruit in reaching one’s own opinions. Forensic psychiatry, forensic neurotoxicology, and forensic neuropsychology each provide important contributions to the evaluation of these cases.

The second edition of the Federal Judicial Center’s Reference Manual on Scientific Evidence (2000) provides very useful guidelines for conceptualizing a legally relevant forensic evaluation. The first step is to establish that the substance in question is a known neurotoxin. Given the plethora of substances that might come to be at issue this will often involve some research, and consultation with a neurotoxicologist is often helpful, if not crucial. The second step is to establish that there was indeed exposure, and if so, that the individual was exposed to the substance in a manner that can lead to absorption into the body. The third step is to establish that the level of exposure was adequate to cause impairment at all. Here again, consultation with a neurotoxicologist would be a primary source of information. In some cases, it may be possible to re-create the conditions of the exposure, and take samples for quantitative analysis. These data can then be compared with the research literature to establish whether the exposure falls below the ‘no observable effect level’ (NOEL), or above a threshold level at which the individual is at risk for toxic effects (Goldstein and Henifin 2000). Toxicologists, epidemiologists, and risk assessors estimate risk of exposure/extent of exposure. However, this evidence is often open to Daubert and Kumho admissibility challenges, given the state of the science (Daubert v. Merrell Dow Pharmaceuticals, Inc. 1993; Kumho Tire Company v. Carmichael 1999; Rodricks and Rieth 1998). Fundamental differences between the criteria of causation in the courts and in science pose significant problems, with the law being deductive and science being probabilistic (Brennan 1987). Methodologies employed to arrive at valid scientific standards for regulatory and public health purposes are often different from those used in the courtroom, and inadequate for that purpose. However, no well-described alternative methodology is currently available. Muscat and Huncharek (1989) propose an epidemiological evidentiary standard. Brannigan, Bier, and Berg (1992) provide a statistical/probabilistic model for establishing proof of injury based on level of exposure. Henderson (1990) offers a definition and explanation of liability with a focus on how expert witnesses should utilize applicable medical and scientific data in order to provide opinions regarding a causal relation between exposure to a toxic substance and disease in an individual case. However, having established a reasonable foundation for believing that a legally relevant toxic exposure has occurred, it is then important to consider the content of the forensic psychiatric examination. The first purpose of the examination is to establish evidence of the presence or absence of impairment, and its consistency with the expected sequelae of the neurotoxic exposure. Do the signs and symptoms obtained comport with the known toxicological effects of the poison? Are the complaints specific, or non-specific? The second purpose of the examination is disability determination (Kennedy 1997). In preparation

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for such an examination, it is critical to understand the expected relationship between a given level of exposure and subsequent neuropsychiatric disease. One needs to be armed with such information in order to know what to look for in the history and clinical presentation of the person alleging the exposure. Exposure, which may be to multiple agents, can have a range of effects (both systemic and progressive) that are quite difficult to tease apart from pre-existing conditions. Also, there is such vast range of potentially hazardous substances that patterns of neuropsychiatric sequelae may not be known for many of them (Wasyliw and Golden 1985). Although animal studies may exist, extrapolation to humans is often difficult. Certain agents or environments may lead to physical disorders such as chronic obstructive pulmonary disease (COPD), which in turn have neurobehavioral implications. During the examination, it is critical to rule out a number of confounding factors that could account for the individual’s clinical presentation and complaints, before reaching the opinion that exposure to the toxic substance is to blame. A very thorough history must be obtained to establish the individual’s level of premorbid functioning. It is obviously crucial to differentiate outcome effects related to toxic exposure from pre-existing conditions. Does the temporal relationship between the exposure and the onset of symptoms support or refute causation? Hartman (1995) cautions that job selection factors may result in workers with innate (low functioning) deficits, rather than recent, exposure-related deficits. Ironically, workers with poor premorbid education and intellectual functioning are often the workers who suffer the most severe neurotoxic exposure due to the types of jobs they are able to obtain. In any forensic context, the issue of malingering must also be addressed. The possibility of symptom exaggeration or fabrication for secondary gain through litigation must be evaluated and ruled out. Finally, possible differential diagnoses should be addressed such as psychosomatic disorders that must be considered and ruled out. Adjunct medical and neurodiagnostic testing, including blood tests, electroencephalography (EEG), magnetic resonance imaging (MRI), computed axial tomography (CAT), or positron emission tomography (PET) may be indicated. However, quite often there will be a lack of corroborating medical evidence from blood tests or brain scans due to the fact that neurotoxic exposure often results in medically subclinical impairments or findings (Singer 1994; Hartman 1995). Nonetheless, there are often significant deficits that are observable neuropsychologically. Hence, consultation with a forensic neuropsychologist is advisable in almost every case. The neuropsychological evaluation of neurotoxicity is discussed most thoroughly in the landmark textbook by Hartman (1995), and has also been addressed at various levels by Kurlychek (1987), Leestma (1991), Valciukas (1995) and Wasyliw and Golden (1985).

CONCLUSIONS Evaluations of neurotoxicity present some of the most challenging cases in forensic practice. They demand a high level of preparation, interdisciplinary collaboration, and clinical expertise in order to arrive at opinions that will be both credible and probative in court. At the same time, it is important to recognize and acknowledge the limitations of current scientific knowledge in this area. Ultimately, forensic psychiatric opinions regarding neurotoxic claims will rise or fall on the quality of the research conducted and the care taken in the examination process.

REFERENCES Anger, W.K. 1990: Human neurobehavioral toxicology testing. In Russell, R.W, et al. (eds), Behavioral Measures of Neurotoxicity: Report of a Symposium. Washington, DC: National Academy Press, 69–85. Anger, W.K., Johnson, B. 1985: Chemicals affecting behavior. In O’Donohue J. (ed.), Neurotoxicity of Industrial and Commercial Chemicals. Volume 1. Boca Raton, FL: CRC Press. Baker, E.L. 1994. A review of recent research on health effects of human occupational exposure to organic solvents: a critical review. Journal of Occupational Medicine 36, 1079–92. Baker, E.L., Fine, L.J. 1986. Solvent neurotoxicity: the current evidence. Journal of Occupational Medicine 28, 987–90. Black, D.W., Rathe, A., Goldstein, R.B. 1990. Environmental illness: a controlled study of 26 subjects with ‘20th century disease’. Journal of the American Medical Association 246, 3166–70. Bleeker, M.L., Hansen, J.A. (eds). 1994: Occupational Neurology and Clinical Neurotoxicology. Baltimore: Williams & Wilkins. Brannigan, V.M., Bier, V.M., Berg, C. 1992. Risk, statistical inference, and the law of evidence: the use of epidemiological data in toxic tort cases. Risk Analysis 12, 343–51. Brennan, T.A. 1987. Untangling causation issues in law and medicine: hazardous substance litigation. Annals of Internal Medicine 107, 741–7. Chemical Regulation Reporter. 1986, March 14: Health hazards, 1598. Cullen, M.R. 1987. The workers with multiple chemical sensitivities. Occupational Medicine 2, 655–61. Cummings, J.L. 1985. Organic delusions: phenomenology, anatomical correlations, and review. British Journal of Psychiatry 146, 184–97. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

306 Civil law Dunn, J.T., Lees-Haley, P.R., Brown, R.S., Williams, C.W., English, L.T. 1995. Neurotoxic complaint base rates personal injury claimants: implications for neuropsychological assessment. Journal of Clinical Psychology 51, 577–84. Dyer, F.J. 1998. Avoiding type-II error in assessing lead toxicity plaintiffs. Behavioral Sciences and the Law 16, 131–45. Gerson, A. 1990. Psychological effects of toxic inhalation. American Journal of Forensic Psychology 8, 3–10. Goldstein, D., Henifin, M.S. 2000: Reference guide on toxicology. In Federal Judicial Center, Reference Manual on Scientific Evidence. 2nd edition. Washington, DC. Gots, R.E. 1995. Multiple chemical sensitivities – public policy. Clinical Toxicology 33, 111–13. Gots, R.E., Hamosh, T.D., Flamm, W.G., Carr, C.J. 1993. Multiple chemical sensitivities: a symposium on the state of the science. Regulatory Toxicology and Pharmacology 18, 61–78. Hartman, D.E. 1995: Neuropsychological Toxicology: Identification and Assessment of Human Neurotoxic Syndromes, 2nd edition. New York: Plenum Press. Hartman, D.E. 1999: Neuropsychology and the (neuro)toxic tort. In Sweet, J.J., et al. (eds), Forensic Neuropsychology: Fundamental and Practice. Lisse, Netherlands: Swets & Zeitlinger, 339–68. Hartman, D.E., Hessl, S., Tarcher, A. 1992: Neurobehavioral evaluation of environmental toxin exposure: rationale and review. In Tarcher, A. (ed.), Principles and Practice of Environmental Medicine. New York: Plenum Press, 241–62. Henderson, T.W. 1990. Toxic tort litigation: medical and scientific principles in causation. American Journal of Epidemiology 132 (1 Suppl.), S69–78. Karrh, B.W., Carmody, T.W., Clyne, R.M., Gouold, K.G., Portela-Cubria, G., Smith, J.M., Freifeld, M. 1981. Guidance for the evaluation, risk assessment and control of chemical embryo-fetotoxins. Journal of Occupational Medicine 23, 397–9. Kennedy, W.A. 1997. Permanent disability: the legacy of tort litigation. Clinical Orthopedics 336, 67–71. Klinken, L., Arlien-Soborg, P. 1993. Brain autopsy in organic solvent syndrome. Acta Neurologica Scandinavica 87, 371–5. Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999). Kurlychek, R.T. 1987. Neuropsychological evaluation of workers exposed to industrial neurotoxins. American Journal of Forensic Psychology 5, 55–66. Lees-Haley, P.R. 1992. Neuropsychological complaint base rates of personal injury claimants. Forensic Reports 5, 385–91. Lees-Haley, P.R. 1993. Toxic exposure claims for emotional distress and brain damage. Trial Diplomacy Journal 16, 219–24. Lees-Haley, P.R. 1997a. Neurobehavioral assessment in toxic injury evaluations. Applied Neuropsychology 4, 180–90.

Lees-Haley, P.R. 1997b. Manipulation of perception in mass tort litigation. Natural Resources and Environment 12, 64–8. Lees-Haley, P.R., Brown, R.S. 1992. Biases in perception and reporting following a perceived toxic exposure. Perceptual and Motor Skills 75, 531–44. Lees-Haley, P.R., Williams, C.R. 1996: Chronic low-dose exposure to organic solvents: a skeptical review. DRIBIS, Boston. Leestma, J.E. 1991: Neuropathology and pathophysiology of trauma and toxicity. In Doerr, H.O., Carlin, A.S. (eds), Forensic Neuropsychology: Legal and Scientific Bases. New York: Guilford Press. Lemmen, C.A., Holden, C.E., Benedek, E.P. 1996: Criminal responsibility and solvent exposure. In Benedek, E.P. (ed.), Emerging Issues in Forensic Psychiatry: From the Clinic to the Courthouse. San Francisco: Jossey-Bass, Inc., 59–66. Lucas, C.A. 1989. ‘Toxin defense’ successful. National Law Journal May 1, p. 9. Morris, R.A., Sonderegger, T.B. 1986. Perinatal toxicology and the law. Neurobehavioral Toxicology and Teratology 8, 363–7. Muscat, J.E., Huncharek, M.S. 1989. Causation and disease: biomedical science in toxic tort litigation. Journal of Occupational Medicine 31, 997–1002. National Institute for Occupational Safety and Health. 1987: Organic Solvent Neurotoxicity. Cincinnati, OH: U.S. Dept. of Health and Human Services, Public Health Service, Centers for Disease Control. Neurotoxicity. Identifying and Controlling Poisons of the Nervous System. 1990: Office of Technology Assessment. OTA-BA-436, GPO No. 052-003-01184-1. NIOSH Pocket Guide to Chemical Hazards. 1985: Cincinnati: DHHS (NIOSH) Publication No. 85-114. Perna, R.B., Bordini, E.J., Deinzer-Lifrak, M. 2001. A case of claimed persistent neuropsychological sequelae of chronic formaldehyde exposure: clinical, psychometric, and functional findings. Archives of Clinical Neuropsychology 16, 33–44. Risher, J.E., Derosa, C.T. Jones, D.E., Murray, H.E. 1999. Summary report for the expert panel review of the toxicological profile for mercury. Toxicology, Industry, and Health 15, 483–516. Rodricks, J.V., Rieth, S.H. 1998. Toxicological risk assessment in the courtroom: are available methodologies suitable for evaluating toxic tort and product liability claims? Regulatory Toxicology and Pharmacology 27 (1 Pt. 1), 21–31. Silbergeld, E. 1990: Developing formal risk assessment methods for neurotoxicants: an evaluation of the state of the art. In Johnson, B. (ed.), Advances in Neurobehavioral Toxicology. Chelsea, MI: Lewis Publishers, 133–48. Simon, R.I. 1998. The credible forensic psychiatric evaluation in multiple chemical sensitivity litigation.

Neuropsychiatric assessments in toxic exposure litigation 307 Journal of the American Academy of Psychiatry and the Law 26, 361–74. Singer, R. 1990: Neurotoxicity Guidebook. New York: Van Nostrand Reinhold. Singer, R. 1994: Evaluation of neurotoxicity. In Rosner, R. (ed.), Principles and Practice of Forensic Psychiatry. New York: Chapman & Hall, 248–51. Terr, A.I. 1989. Clinical ecology. Annals of Internal Medicine 111, 168–78. United States Department of Health and Human Services 1988: The Nature and Extent of Lead Poisoning in Children in the United States: A Report to Congress. Washington, DC: Public Health Service, Agency for Toxic Substances and Disease Registry. Valciukas, J. 1991: Foundations of Environmental and Occupational Neurotoxicology. New York: Van Nostrand Reinhold. Valciukas, J.A. 1995: Neurotoxic agents in the environment and the workplace. In Valciukas, J.A., Forensic Neuropsychology: Conceptual Foundations and Clinical Practice. New York: Haworth Press, 197–207. Wasyliw, O.E., Golden, C.J. 1985. Neuropsychological evaluation in the assessment of personal injury. Behavioral Sciences and the Law 3, 149–64. Weiss, B. 1992: Behavioral Toxicology: A New Agenda for Assessing Risks of Environmental Pollution. Washington, DC: American Psychological Association. Welch, L.S. 1991. Severity of health effects associated with building related illnesses. Environmental Health Perspectives 95, 67–9.

Williams, C.W., Lees-Haley, P.R. 1996. Neurotoxicity of chronic low-level exposure to organic solvents: caveats for applied neuropsychologists. Applied Neuropsychology 3, 104–15. Witorsch, P., Ayesu, K., Balter, N.J., Schwartz, S.L. 1995: Multiple Chemical Sensitivity: Clinical Features and Causal Analysis in 61 Cases. Paper presented at the Annual Meeting of the North American Congress of Clinical Toxicology, Rochester, NY, September. World Health Organization. 1985: Organic Solvents and the Central Nervous System. Copenhagen: WHO.

Suggested reading Goldwater, L.J. 1972: Mercury: A History of Quicksilver. Baltimore: York Press. Hartman, D.E. 1998. Missed diagnoses and misdiagnoses of environmental toxicant exposure: the psychiatry of toxic exposure and multiple chemical sensitivity. Psychiatric Clinics of North America 21, 659–70. Miller, L. 1993. Toxic torts: clinical, neuropsychological, and forensic aspects of chemical and electrical injuries. Journal of Cognitive Rehabilitation 11, 6–18. Singer, R. 1985. Proving damage in toxic torts: nervous system dysfunction. Trial 21, 59–60. Williams, C.W., Lees-Haley, P.R. 1993. Perceived toxic exposure: a review of four cognitive influences on perception of illness. Social Behavior and Personality 8, 498–506.

34 Civil competencies J. RICHARD CICCONE

A fundamental human right is the right to make a choice and to act on that choice. Actions not prohibited by criminal law may be viewed as private rights, and civil law is ‘concerned with civil or private rights and remedies … .’ (Black, Nolan, and Connolly 1991). While generally a person is afforded the right to make a choice and act on that choice, at times the civil courts are involved in restricting such rights based on a person’s competence. Forensic psychiatrists may assist the courts in making such determinations. Competence is specific; an individual may be competent in one area but not competent in another. Therefore, while the general steps necessary for the determination of competence provide a useful template, the specific questions to be answered are contextual – that is, they are related to the particular civil competence under consideration. Since an exploration of the requirements for legal competency to exercise each possible civil right is beyond the scope of this chapter, several civil competence examples are set forth below that are illustrative of the general and specific principles of a forensic evaluation of civil competence.

CONDUCTING A FORENSIC PSYCHIATRIC EVALUATION OF CIVIL COMPETENCE Along with understanding which competence is to be evaluated, it behoves the forensic psychiatrist to consider the following questions: (i) what ability and knowledge is required to competently exercise a decision?; (ii) who is seeking the evaluation?; (iii) for what purpose is the evaluation requested?; (iv) who will receive the report?; and (v) how will the report be used? The forensic psychiatric evaluation may include not only a review of records but also interviews with relevant individuals, such as relatives, friends and caregivers. The complexity of the individual’s potential illness and disabilities may call for the assembly of a multidisciplinary team that has the capacity to adequately explore the individual’s strengths and weaknesses.

The threshold question is whether the individual suffers from a mental disorder. If the person does not suffer from a psychiatric disorder, the expert does not generally proceed further. It may be useful to comment on competence, because if the court decides that he or she suffers from a mental disorder, the court will move to the question of the individual’s competence regarding the issue at hand. If the individual does have a mental disorder, the forensic expert then turns to the question of whether the disorder significantly impairs his or her capacity to carry out the specific civil function at issue. Roth, Meisel, and Lidz (1977) suggested a decisional hierarchy of competency in the context of informed consent to treatment. This hierarchy is useful in a variety of civil competency evaluations. While there is some disagreement about this effort to vary competence with risk, on the whole it is useful to invoke a direct relationship between the level of competence and the magnitude of the risk or consequences of a decision. In clinical settings, the evaluation of a person’s competence may be called a ‘capacity evaluation’ in order to underscore that the clinician is providing an opinion, but only a court can decide a person’s competence. The evaluation of a person’s competence by the forensic examiner ultimately results in an expert opinion which will be considered by the court in arriving at its decision. The evaluator should be familiar with the legal standard for the competence being evaluated in the jurisdiction where the issue is to be adjudicated. The range of potential competence evaluations will strain the knowledge and experience of the forensic examiner or evaluator. Not only must the evaluator understand the elements of the task but conduct an analysis of the reasonableness of the decision. For example, the evaluation of a 63-year-old man, who is suffering from the physical and emotional sequelae of a stroke, and wishes to sell his halfinterest in a motel requires the evaluator to learn, from appropriate sources, the value of the property, the benefits of selling the property at this time, the tax consequences, and other considerations involved in such a sale. The presence of a mental disorder does not automatically translate into incompetence, whether it is general

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incompetence or specific incompetence. The central question is how does the psychopathology – whether a psychotic symptom, an affectively driven behavior or a cognitive impairment (ranging from dementia to a frontal lobe syndrome) – directly affect the decision; that is, the making and carrying out of a plan? If the individual appears subdued, is it the result of apathy secondary to an anterior cingulate frontal lobe syndrome, the hopelessness of depression, or a reflection of an enduring personality trait? In evaluating competence, examiners have supplemented, at times, their interviews with the Mini-Mental State Examination or similar brief measures. Guilmette and Krupp (1999) found that these measures lead to a high misclassification rate when used to assess competence to give informed consent to treatment. Thus, these brief measures should be used with caution when assessing civil competence. After determining whether the examinee suffers from a mental disorder that impairs his or her ability to perform the specific task, it is necessary to assess the stability of the impairment: Is it likely to be responsive to treatment? Can the deficit be overcome by providing support? Responses to these questions are useful components of the expert’s opinion.

TESTAMENTARY CAPACITY An example of a civil competence is testamentary capacity, which refers to an individual’s competence to make a will. A will takes effect after a person’s death and may be changed at any time before their death. The law presumes that an individual has testamentary capacity – that is, he or she is of sound mind when executing or altering a will. To have testamentary capacity, testators must have the ability to know and understand three points: (i) that they are making a will; (ii) the natural objects of their bounty and claims upon them; and (iii) the general nature and extent of their property (Black, Nolan, and Connolly 1991). The forensic psychiatric evaluation of testamentary capacity usually occurs after the testator’s death. Not being able to examine the individual eliminates an important source of information, and calls for a diligent examination of other sources. Despite the evaluator’s best efforts, the unavailability of the testator may result in insufficient data to arrive at a conclusion regarding the individual’s testamentary capacity. If the expert witness is able to arrive at an opinion, it will be important to report that the database does not include examination of the testator. In those instances where the individual’s attorney anticipates that there may be a challenge to the will and, therefore, seeks contemporaneous psychiatric evaluation of the testator, it is useful to videotape the examination. Operational criteria provide a framework for the psychiatric examination, as well as a format for providing the information to the

court. Did the individual suffer from a mental disorder at the time of making a will? Did the disorder cause a significant impairment in the individual’s rational understanding that he or she was making a will? Who would usually inherit? What is it they own? Isaac Ray argued that there was a proper role for a forensic psychiatrist in a will contest (Bromberg 1980). Ray wrote that the psychiatrist had information relevant to the court’s determination of the individual’s competence to make a will and information relevant in entering the will into probate. Others have argued that psychiatric expert witness testimony at will contests is little more than a psychiatric ‘excuse’ to invalidate wills that do not conform to conventional social norms (Szasz 1963). It is further argued that the will contest itself robs a person of the right to exercise one’s will.

History In feudal times, fixed rules governed the inheritance of real property. Ecclesiastical courts dealt with personal property that the church might receive for ‘pious purposes.’ Even when primogeniture, which gave the eldest son the right to inherit his father’s estate, was the rule, there were significant exceptions where local custom prevailed. For example, in Kent, England, there was gravelkind tenure, which gave equal shares to sons (Friedman 1985). By the thirteenth century, wills became more modern-looking instruments (Slovenko 1973). In 1572, the English Statute of Wills provided everyone with the right to make a will, to dispose of real (immovable) and personal (moveable) property. Over time, the law was amended to exclude ‘idiots’ or persons with ‘insane memory’ (Brakel, Parry, and Weiner 1985). Colonial America used a variety of approaches to wills. New England colonies rejected primogeniture, except for Rhode Island, although Massachusetts and Pennsylvania gave a double share to the oldest son. Southern colonies used primogeniture until revolutionary times (Friedman 1985). American probate laws followed the English Statute of Frauds of 1677, which called for a written, witnessed will for real estate. The Wills Act of 1837 covered both real property and personal property. In some states a holographic will – a will written, dated, and signed in the dead person’s handwriting – may be entered into evidence (Natale 1989). As the nineteenth century came to a close, an increasing number of individuals left wills, and this trend continues today, with most individuals having their will written up by an attorney.

Will contest The development of the rules regarding wills can be seen as reflecting the evolution of the view that an individual

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should have the right to determine what is to be done with his or her property. Guidelines for a valid will developed: almost all states require that a person be of sound mind when signing a will (Brakel, Parry, and Weiner 1985); that is, a person must appreciate the legal and binding nature of the will and understand the personal, legal, social, and financial ramifications. Understanding that one is making a will requires comprehension of the overall size and components of one’s estate. While precise knowledge of the value of the estate is not required for testamentary capacity, the individual should have a reasonable approximation of its overall worth. An individual must also know the natural objects of one’s bounty; generally these are blood relatives, though at times they may include close friends, and occasionally a ‘faithful servant.’ The testator’s denial that he or she has children based on symptom of mental disorder, for example, a delusion or loss of memory, may invalidate a will. However, ignorance of the existence of blood relatives does not usually constitute a basis for challenging a will. Likewise, the inability to read or write does not invalidate a will. Less than 3 per cent of wills are contested, and of those that are contested only 15 per cent are successfully overturned (Slovenko 1973). The source of the contest may be a disappointed or disinherited heir who claims unfairness. There are a number of conditions that can invalidate a will, one of these being the person’s mental condition. In a will contest there is the presumption of testamentary capacity, and the burden of proof that the will should not be admitted to probate – that is, found valid – rests with the party alleging deficiency. In most jurisdictions ‘clear and convincing’ arguments must be made before the will is invalidated. A previous adjudication of incompetency, for example, guardianship, does not prevent establishing a valid will; however, the burden of proof is then on the proponent of the will to establish by clear and convincing evidence that the will was made during a lucid interval (In re Will of Coe 1900). The concept of lucid interval is based on the notion that an individual with a major mental disorder may have an interval of remission of symptoms, and during such an interval may have the minimal abilities required by law to fulfill the criteria for testamentary capacity. Lucid intervals may be found in individuals who abuse alcohol or drugs, unless the substance abuse has led to some chronic, significant mental deterioration. At times, the lucid interval doctrine has been extended to the individual who is lucid for a few minutes. However, those few minutes are usually insufficient for the individual to assess and comprehend the factors involved in the distribution of assets. In addition, the individual may be especially susceptible to undue influence during these few minutes of lucidity.

Insane delusion A testator suffering from delusions may appear well to the psychiatrically untrained. The court is interested in what is legally called an insane delusion, that is, a mistaken belief for which there is ‘no basis in reason, cannot be dispelled by reason, and can be accounted for only as the product of mental disorder’ (Am. Jur. 1975). New York’s highest court dealt with the impact of an insane delusion as follows: If a person persistently believes supposed facts, which have no real existence except in his perverted imagination, and against all evidence and probability, and conducts himself, however logically, upon the assumption of their existence, he is, so far as they are concerned, under a morbid delusion; and delusion in that sense is insanity. Such a person is essentially mad or insane on those subjects although he may reason, act and speak like a sensible man. (American Seaman’s Friend Society v. Hopper 1865)

To invalidate a will on the basis of the existence of a delusion, most jurisdictions require proof not only that the testator had delusional beliefs but also that the will was a product of the delusions. Insane delusions often involve demented individuals who think that their spouses are having affairs. The Estate of Coffin is a frequently cited case involving the issue of insane delusion (In re Estate of Coffin 1968). Coffin agreed to marry a woman who claimed that he had fathered her child, although she had been with other men. Shortly thereafter, they divorced and he had nothing to do with this child. Forty-one years later, Coffin met the child, now a man, for the first time. Based on resemblance, Coffin decided that this was indeed his son, but before he could formally change his will, Coffin, Sr., died. His son went to court to challenge the validity of the will, which had been written at a time when Coffin, Sr., did not believe he had a son. The lower court rejected the will on the grounds that Coffin, Sr., wrote its provisions as a result of an insane delusion that this woman’s child was not his son. The appellate court dismissed this argument and found that Coffin, Sr., did not have an insane delusion when he wrote his will. There was information that was sufficient for him to believe that this woman’s child was not his; he was mistaken but not insanely deluded. The court went on to write that the petitioner has the burden to prove, by clear and convincing evidence, that there were not facts to support the testator’s belief. The judgment denying probate was reversed. The following will contest had a different outcome. Estoll’s will left the bulk of her estate to her only child, a daughter. The codicil, executed four years later, left the bulk of her estate to her sister without mention of her daughter (In re Estoll 1968). The daughter opposed probate of the will and presented evidence that her mother had a constant insane delusion that ‘the person who

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would normally be the principal or only object of the testatrix’s concern and bounty’ was trying to poison her. The decedent told a number of people that the daughter was trying to poison her. She also would not accept pills or water from her daughter, but accepted them from her sister. The codicil was set aside.

Undue influence Undue influence is defined as manipulation or deception in engaging the affections of the testator, significantly impairing the ability of the testator to freely decide on the distribution of his or her property. By its nature, undue influence is often the result of concealed actions, and therefore, it is difficult to determine. A noble purpose does not justify or legitimize undue influence. Undue influence must constitute more than friendship or insincere praise. The courts look for evidence of ‘coercion, compulsion or restraint,’ which led to a will that does not reflect the desires of the testator. Some grounds for undue influence include harassment to the point that the testator agrees in order to get relief, threats to never return, and lies that result in negative feelings toward a potential heir (Perr 1981). A fiduciary relationship is one where the law recognizes that an individual relies on and trusts another, for example, attorney–client, doctor–patient, or guardian–ward. The burden of proof is on a fiduciary who has been left an inheritance to prove that no undue influence was exercised. However, if the heir is not a fiduciary, the burden of proof falls to the person challenging the will. Individuals may be vulnerable to undue influence because of a chronic progressive disorder such as cancer, cardiovascular disease including strokes and heart failure, a variety of neurologic disorders, chronic organ failure, massive trauma, or metabolic disorders. These same ailments may be so severe that the individual may also lack testamentary capacity. A less severe physical ailment may result in the individual’s being more vulnerable to undue influence while retaining testamentary capacity. While psychiatrists may not be able to arrive at an opinion as to whether or not there was undue influence, psychiatrists may nonetheless assist the court in understanding if the individual’s character structure – either alone or in combination with a physical or mental condition – made the testator particularly gullible or susceptible to the influence of others. A number of factors may lead to a weakened ability to resist efforts at undue influence. The psychiatrist must consider intellectual functioning, overall health and physical condition, as well as the signs and symptoms of mental disorders that do not reach the level of negating testamentary capacity. When examining a testator, some clues that undue influence may be present include (Redmond 1987): 1 The psychiatrist is assured by the person requesting the examination that a competency statement is routine due to the testator’s age.

2 The appointment is made by someone other than the testator or his/her attorney. 3 The testator is brought to the appointment by someone who answers most of the questions for the testator and is reluctant to allow the testator to be interviewed alone. 4 Specifics about the will are not given, or the testator seems unclear about specific items in the will. 5 There is reluctance to give information about potential heirs and their relationship with the testator.

Psychiatric assessment An understanding of who has requested the assessment and for what purpose provides the psychiatrist with a framework in which to conduct the assessment. The psychiatrist should review all relevant records, which may include medical, psychiatric, counseling, nursing home, work, school, pharmacy details, as well as other materials. An independent accounting of the nature and value of the testator’s estate should be available.

CONTEMPORANEOUS EVALUATION When the testator is available for examination, the customary psychiatric evaluation of an adult is appropriate (American Psychiatric Association 1996). If attorneys are to observe the interview, a one-way mirror allows for observation without undue intrusion. It is useful to record this examination on videotape (Spar and Garb 1992). Indeed, a videotape may present compelling information that may be relevant to a court’s effort, in the future, to determine if the person possessed testamentary capacity at the time of the psychiatric assessment. The nearer in time to the assessment that the will is signed, the more weight the court will give to the videotape. A thorough mental status examination should be carried out. If there are impairments noted in the mental status examination that are difficult to define, then neuropsychological testing should be considered. Upon examining the testator, the psychiatrist should be alert to secrets, anger, and other considerations. Medical problems cannot be ignored; disabilities secondary to medical problems must be factored into the decision-making process. A number of conditions can interfere with any one of the three components of the ‘sound mind’ required to make a valid will. Significant mental disorders such as schizophrenia, bipolar affective disorder, and organic brain syndromes are one such cluster. However, evidence of the existence of one of these conditions does not necessarily lead to the conclusion that the person was incompetent. Likewise, the fact that a testator committed suicide does not automatically invalidate a will. The psychiatrist must demonstrate that signs and symptoms of the illness from which the person was suffering directly affected his or her capacity to make a valid will. The individual with a mild

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dementia may have difficulty recalling new information but may nonetheless know his or her children, the approximate size of his or her estate, and that he or she wishes to reward the child with whom he or she is living with a larger share of the inheritance. Many medical disorders may affect an individual’s testamentary capacity, including cardiovascular, neoplastic and autoimmune diseases. The presence of a medical disorder requires an assessment of its effect on the testator’s decision making, but it does not invariably lead to an opinion of incompetence to make a will. The evaluator can explore the specific components of testamentary capacity by asking individuals what their understanding of a will is, and its purpose. Testators can be asked to describe their property and estimate its value. They can also be asked to describe the division of their estate and to talk about heirs and the reasoning underlying their decision to include or exclude their potential heirs. Since the question of testamentary capacity is often linked with the issue of undue influence, examining for signs of undue influence is usually a part of each phase of the assessment.

RETROSPECTIVE DETERMINATION A psychiatrist usually undertakes an examination of someone’s competence to make a will after the person has died. This retrospective determination requires that the psychiatric expert witness make clear to the court that the testator was not examined. When undertaking a retrospective determination, the psychiatrist’s evaluation must rely on information from friends, relatives, and neighbors and a review of relevant records, for example, school, military, work and medical counseling. It is helpful to review letters and notes written by the deceased. A visit to the home in which the deceased lived, if possible, may be useful (Perr 1981). If the deceased lived in a nursing home, a visit to the nursing home with interviews of the staff and the individual’s physician can provide essential information. The decedent’s medical records may be disclosed, and the physician–patient privilege (where it exists) and confidentiality requirements may be waived when the decedent’s medical condition is put into issue by the executor, surviving spouse, heir at law, next of kin, or any other party in interest. The fact that an individual has had a guardian or committee appointed does not deprive him or her of the power to execute a valid will (Redmond 1987). However, an order appointing a guardian or committee raises the inference, which the proponent of the will must overcome, that the individual lacks testamentary capacity (Bromberg 1980).

Communicating with the legal system The legal system has recognized the utility of the medical expert witness in the legal system’s mission (Clements

and Ciccone 1984). The forensic report – which is a vehicle for communicating with courts and attorneys – should include a statement of who requested the evaluation of testamentary capacity. In addition, the report on an individual’s testamentary capacity should include responses to the following questions: 1 Does the testator or did the testator suffer from a significant psychiatric disorder? 2 As a result of the psychiatric disorder, was there impairment of the testator’s rational understanding that he or she was making a will? 3 Did the psychiatric disorder impair the testator’s ability to understand the nature and extent of the estate? 4 Did the psychiatric disorder impair the testator’s ability to identify close relatives and friends? 5 Were any delusions elicited or implied regarding the testator’s bounty or heirs?

GUARDIANSHIP A guardian is a person to whom the courts have given the power and have charged with the duty of managing the property and the rights of another person. In addition, a guardian may also be charged with the duty to make decisions regarding the physical needs of another person who, ‘for defect of age, understanding, or self control, is considered incapable of administering his own affairs’ (Black, Nolan, and Connolly 1991). A guardian has a fiduciary responsibility to manage the affairs of the person the courts have found incapable of managing his or her own affairs, and may be held accountable for errors in the transaction of business affairs on behalf of the ‘ward.’ A guardian does not have title to property; this remains with the ward. There are different types of guardians. A testamentary guardian is appointed for a child by a will and has responsibility for both the child and the child’s estate until the child reaches the age of maturity. A guardian ad litem is appointed by the court to protect the interests of a minor, an incompetent, or a proposed conservatee in litigation to which he is a party. A special guardian, also known as a limited guardian or a conservator, has limited powers and duties with respect to the ward; that is, managing a ward’s financial affairs. A general guardian has the additional obligation to provide for the ward’s general personal needs including housing, clothing, food, health care, recreation, education, and other needs as appropriate. In the first part of the twentieth century, general guardianship was in favor, but in recent decades there has been a movement toward the establishment of specific guardianships for specific purposes (Brakel, Parry, and Weiner 1985). The evaluation of an individual regarding the need for a guardian follows the general principle of determining if the person suffers from a mental disorder, and describing

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how the symptoms of that disorder impair a person’s functioning. The nature of that assessment can include eliciting a description of a typical day from the individual and conducting a home visit. (Melton et al. 1997).

History Roman law included the procedure to preserve the property of an incompetent individual. This tradition of protecting the property of an incompetent individual continued in English Common Law and in colonial America. These efforts represent an attempt to preserve the estate of the incompetent so that those who have rightful claims against the estate, as well as those who could be expected to be supported by the estate, would be protected from having the estate dissipated by the incompetent. It has been suggested that the parens patriae powers of the state are derived from these property concerns, and only in more modern times have concerns about the care and well-being of the individual been included in the parens patriae doctrine. Others hold that the feudal system placed the lord of the manor not only in the role of watching over the property interest of his charges but also giving him significant responsibility for their overall well-being, which gives the broader parens patriae doctrine a longer history. In most jurisdictions, there is a presumption of competency when adults enter into contractual arrangements or make decisions as they live their lives. It is currently accepted that the state has the authority to protect incompetent individuals and to preserve their property. This may be done by creating either a limited or a general guardianship.

Limited guardian In some jurisdictions the law provides for the creation of a conservatorship, a mechanism to ensure the financial well-being of an individual. A conservatorship does not require that the person be found incompetent, just that the person cannot care for him/herself, as the result of physical and/or mental dysfunction. In New York State, for example, a petition for a guardian of the person and/ or property may be filed by a relative or a friend; the meaning of the word friend includes corporate bodies, public agencies, or social service officials. If the proposed conservatee is in an institution, the officer in charge of the institution may also file a petition. The petition must contain the reasons for concern about the individual’s ability to manage his or her affairs. The facts must demonstrate the need for an appointment of a conservator to ‘insure the preservation, maintenance, and care of the proposed conservatee’s income, assets, and personal well-being, including the provision of necessary personal and social protective services to the conservatee’ (New York State Mental Hygiene Law).

Due process rights require that notice of the petition be served on the proposed conservatee as well as his or her spouse and children. If no immediate family exists, the conservatee’s distributee – a person entitled to a share in the distribution of the estate – must be served. If none exists, then notice must be served on the person/entity with whom the conservatee resides. The conservatee may be present and a guardian ad litem may be appointed to represent the proposed conservatee’s interest. If after the hearing a conservator is appointed, the court must set forth a specific plan as to its duration and the directions for maintenance of assets and social protective services for the conservatee. Many jurisdictions require that when the proposed conservatee is unable to attend the hearing, a guardian ad litem must be appointed unless the court believes that the proposed conservatee’s interests are adequately protected by counsel chosen by the proposed conservatee. Jury trial is available when any party contests the need for appointment of a conservator. Usually, a family member is appointed as conservator, but a non-family member may be appointed, especially when there are family disagreements. An eighty-four-year old quadriplegic woman, who resided in a nursing home, had a trust that could be invaded for her medical care (In re Lyon 1976). At issue was the care that was keeping Mrs. Lyon alive, which was both comprehensive and costly. Her son considered her present care to be ‘squandering’ in view of her condition. However, in the opinion of Mrs. Lyon’s physician, this care had been lifesaving. The court did not appoint her son conservator. Family members may not always have the best interest of the conservatee in mind, especially when they stand to inherit the estate that remains after the expense incurred by the conservatee. Where there is no family member available – a more frequent occurrence than is generally appreciated – the court may appoint a non-profit corporation as conservator. It is possible for a Department of Social Services to act as conservator, even if the conservatee does not receive public assistance. A conservatorship, while charging the conservator with the duty to look after the ward and supplying his or her needs, does not empower the conservator with the legal decision-making capacity regarding consent to treatment; that requires the creation of a general guardianship.

General guardian A general guardianship, which in some jurisdictions is called a committee of the person, involves a finding of incompetence and the appointment of a committee. Since this is a more drastic measure with far-reaching consequences, it is more difficult to accomplish because the courts have been reluctant to take from a person his or her civil rights, particularly the right to manage his/her own affairs. The law requires the person bringing

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the petition to state the facts showing incompetence and to demonstrate why a conservatorship would be inappropriate. When any party disputes the need for a general guardian, a jury trial is available, and the burden of proof falls on the petitioner. For the court to appoint a guardian for an individual requires evidence that the conservatee suffers a substantial impairment of his or her ability to manage his/her property, or has become unable to provide for him/ herself or his/her dependents, due to a specified disability. A showing that a person suffers from a mental disorder alone is insufficient. There must be clear and convincing proof of a substantial impairment of the proposed conservatee’s ability to manage his or her affairs (In re Baily 1974). Expert testimony is not required, but as a practical matter it is usually employed. The physician – usually a psychiatrist – who undertakes a competence evaluation is not assessing competence in the abstract but rather with respect to the ability to make specific informed decisions. The specific criteria used in the creation of a guardianship vary from jurisdiction to jurisdiction. If a specific or general guardianship is to be created on the grounds of the person having a mental disease or defect that impairs his or her capacity to make requisite judgments, then it is incumbent on the psychiatric expert witness to support his or her opinion with appropriate clinical data. However, the expert’s opinion is just that, and it is not binding on the court.

Termination of guardianship A ward who thinks that he or she is able to manage his/her affairs would apply, in most jurisdictions, for a hearing to have his/her competence restored. Some jurisdictions call for a periodic review of incompetence, and other jurisdictions (e.g., California) have provisions for automatic restorations of competence unless the guardian petitions for reappointment. If there is a finding of restoration of competence, the individual regains his or her right to make personal and financial decisions, and the guardian is relieved of his/her duties. As with the creation of a guardianship, the termination of a guardianship requires informing relevant individuals about the hearing. There is wide variation among jurisdictions regarding who should be notified and who must be present at the hearing regarding the termination of competence. This lack of attention to basic due process rights, along with the vague standards of incompetence, has caused some to question the fairness of the guardianship process. With the population of the United States aging and deinstitutionalization a reality in most of the country, guardianship issues will become increasingly important. The psychiatric expert witness evaluating an individual in preparation for a guardianship hearing will want to be mindful of the potential abuses of guardianship. Information about who has raised the issue

of the individual’s need for a guardian, why it is being sought, and what will be the effect of a specific or general guardianship is important to a careful evaluation. As symptoms fluctuate, so too may capacity. The psychiatric examiner should consider whether treatment or the introduction of social support services will allow a person to remain independent. In this way, the psychiatric expert witness is able to provide the court with clinically relevant and legally useful information about an individual’s ability, in varying contexts, to make and communicate decisions regarding one’s self and property.

Contractual capacity Contractual capacity refers to the individual’s capacity to enter into agreements; society places a great deal of importance on the sanctity of the contract. Pettit (1999), in reviewing the evaluation of contractual rights and the mentally ill noted, ‘the most striking change is that the mentally disabled are now allowed to contract at all.’ As with the evaluations of other civil competence, the context of the request is important. The determination of the presence of a mental disorder and the nature of the resulting impairments is essential to arriving at an opinion regarding an individual’s capacity to enter into a contract. Of course, capacity may vary over time. One consideration is the nature and complexity of the contract and the severity of the individual’s illness at the time he or she enters into the agreement. In a 1963 seminal case, Faber v. Suite Style Manufacturing Corporation, Faber contracted for land at White Lake in the Catskills, against the advice of his attorney. Faber planned to use the property to build a 400-room hotel with a marina and a golf course. At the hearing, the expert witnesses agreed that Faber was in the manic phase of his manic depressive illness at the time he entered into the contract. The court found Faber incompetent to enter into the contract because he acted ‘under the compulsion of a mental disease or disorder but for which the contract could not have been made.’ In the Ortelere v. Teachers’ Retirement Board case (1969), the court examined the kinds of mental incompetency which may void the contractual agreement. Ortelere, while under psychiatric care, changed her retirement option to a maximum allowance which extinguished all interests upon her death. Her husband sued claiming she was not mentally competent to enter into this agreement. The court found that Mrs. Ortelere suffered from an involutional psychosis, melancholia type (now called major depressive disorder, severe with psychotic features) on the date she entered into the contract. Determining that the cognitive rules for incompetence were too restrictive, the court expanded the grounds of incompetence to include affectively driven behaviors resulting from a psychosis. The court went on to find the contract void because the individual entering into the contract was laboring under a

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mental defect that prohibited the individual from acting in a reasonable manner and the other party had knowledge of the defect. In this case, the Board of Education knew the impairment because Ortelere’s mental illness led to her leave of absence. As with testamentary capacity, contractual capacity provides a mechanism for society to provide protection to incompetents. A judicial determination of competency speaks to the individual’s incompetence at the time of the hearing and, in many jurisdictions, there is no retroactive effect. Some have argued that the fact that a person has a guardian should mean that, as a matter of law, the ward’s action (e.g., entering into a contract) is of no legal consequence (Meiklejohn 1988). Those holding this view assert that the ward has been found incompetent, and in order for the guardian to protect the ward’s estate, the guardian has to be able to have control over it. The opposing view argues that the order establishing a guardianship creates a rebuttable presumption of incapacity to enter into a contract; the hearing resulting in guardianship may be flawed since many of these hearings are short and summary in character. They further argue that the state has an interest in upholding contracts, and those dealing with the ward may not have had constructive notice of the guardianship and may have acted in good faith. They assert that contractual competency provides the government with another opportunity to interfere with an individual’s decisions. Most jurisdictions take a middle position, providing grounds for an individual to be found incompetent to enter into a contract but requiring the person requesting that the contract be voided to carry the burden of proof. To be found lacking contractual capacity, the court must be convinced that the individual had a significant mental disability that impaired his or her capacity to understand the character of the transaction and act in a reasonable manner. In some jurisdictions, it must be shown that the other party knew of the incompetency or acted in bad faith. At times, the ‘fairness’ of the contract will determine if it will be upheld by the court.

REFERENCES 79 Am. Jur. 2d Wills, 341 (1975). American Psychiatric Association. 1996: Practice Guidelines. Washington, DC: American Psychiatric Association. American Seaman’s Friend Society v. Hopper, 33 N.Y. 619 (1865). Black, H.C., Nolan, J.R., Connolly, M.J. 1991: Law Dictionary. 6th edition. St. Paul, MN: West Publishing Co.

Brakel, S.J., Parry, J., Weiner, B. 1985: The Mentally Disabled and the Law. Chicago: American Bar Association. Bromberg, W. 1980: The Uses of Psychiatry in the Law. New York: Plenum. Clements, C.D., Ciccone, J.R. 1984. Ethics and expert witnesses: the troubled role of psychiatrists in court. Bulletin of the American Academy of Psychiatry and the Law 12, 127–36. Faber v. Suite Style Manufacturing Corporation, 242 N.Y.S.2d 763 (Sup. Ct. 1963). Friedman, L. 1985: A History of American Law, 2nd edition. New York: Simon & Schuster. Guilmette, T.S., Krupp, B.H. 1999. The role of mental status measures in civil competence determinations. Journal of Forensic Neuropsychology 1, 1–16. In re Bailey, 362 N.Y.S.2d 226 (Sup. Ct. 1974). In re Estate of Coffin, 246 A.2d 489 (N.J. App. Div. 1968). In re Estate of Estoll, 291 N.Y.S.2d 411 (App. Div. 1968). In re Lyon, 382 N.Y.S.2d 833 (App. Div. 1976), aff’d, 364 N.E.2d 847 (N.Y. 1977). In re Will of Coe, 62 N.Y.S. 376 (App. Div. 1900). Meiklejohn, A.M. 1988. Contractual and donative capacity. Case Western Reserve Law Review 39, 307–87. Melton, G.B., Petrila, J., Polythress, N.G., Slobogin, C. 1997: Psychological Evaluations for the Court, 2nd edition. New York: Guilford Press, 338–45. Natale, K.R. 1989. A survey, analysis, and evaluation of holographic will statutes. Hofstra Law Review 17, 159–201. New York State Mental Hygiene Law, Article 81. Ortelere v. Teachers’ Retirement Bd., 250 N.E.2d 460 (N.Y. 1969). Perr, I.N. 1981. Wills, testamentary capacity and undue influence. Bulletin of the American Academy of Psychiatry and the Law 9, 15–22. Pettit, M., Jr. 1999. Freedom, freedom of contract and the ‘Rise and Fall’. Boston University Law Review 79, 263–354. Redmond, F.C. 1987. Testamentary capacity. Bulletin of the American Academy of Psychiatry and the Law 15, 247–56. Roth, L., Meisel, A., Lidz, C. 1977. Tests of competency to consent to treatment. American Journal of Psychiatry 134, 279–84. Slovenko, R. 1973: Psychiatry and Law. Boston: Little, Brown and Company. Spar, J.E., Garb, A.S. 1992. Assessing competency to make a will. American Journal of Psychiatry 149, 169–74. Szasz, T. 1963: Law, Liberty and Psychiatry. New York: Macmillan.

35 Death, dying, and the law NORMAN L. CANTOR

Ever since the 1960s, when medical science first became capable of prolonging the dying process beyond bounds that many patients would find acceptable, people have sought ‘death with dignity,’ or ‘a natural death,’ or ‘a good death’ (Webb 1997). Once debilitation from a fatal affliction has reached a personally intolerable point, dying patients have sought to control the manner and timing of death via diverse techniques. Some dying patients have sought disconnection of life-sustaining medical interventions such as respirators and dialysis machines. Beyond freedom from unwelcome interventions, some patients intent on avoiding suffering have sought access to pain relief medication – even in dosage posing some risk (perhaps even certainty) of hastening death. To avoid unbearable suffering, other dying patients have sought access to deep sedation, even knowing that they would never emerge from the resultant unconsciousness. Still other patients have sought to hasten an impending death by voluntarily refusing to eat or drink or to accept artificial nutrition and hydration. Finally, some suffering patients seek the more expeditious route of assisted suicide (via a prescription of lethal medication) or even active euthanasia (via a lethal injection at a physician’s hand). From the outset, a variety of forces have sought to circumscribe the human wish to shape the dying process. Religious sources sometimes opposed a patient’s prerogative to control the timing of death on the ground that only God should have dominion over life and death. Medical practitioners sometimes resisted patient prerogatives because of professional dedication to principles of cure and preservation of human life or a conviction that medical professionals are better suited to make end-oflife decisions than distraught patients or families. Some social observers invoked sanctity of life as a sacrosanct principle and viewed life-shortening measures as inconsistent with that principle. Other observers feared exploitation of vulnerable populations if life and death decisions were allocated either to stricken patients or their surrogates. Advocates for disabled persons resented the distasteful message supposedly broadcast when an

afflicted person ends life support on the basis that the debilitated existence is intolerable. Starting in 1976, with the Quinlan case in New Jersey, courts and legislatures have outlined the legal bounds governing medical conduct in the dying process (In re Quinlan 1976). Certain principles have become hallmarks of death and dying jurisprudence. Competent persons have a broad legal prerogative to decide how to respond to fatal afflictions – how much to struggle, how much to suffer, how much bodily invasion to tolerate, and how much helplessness and indignity to endure. They can resist life-sustaining medical interventions even if that step will precipitate their deaths and even if the personal values underlying the choice seem idiosyncratic or foolish. Suffering patients can have access to palliative interventions, even if such interventions pose a risk of hastening death. Even after competence is lost, conscientious surrogates may exercise end-of-life options on behalf of the formerly competent patient. For example, a conscientious surrogate can seek an end to artificial life support where the now-incompetent patient previously expressed a desire to reject life support in the situation now at hand. In some jurisdictions, a surrogate can seek withdrawal of life support where a judgment can be made that the patient, if competent, would choose this course, or where the burdens of continued existence so outweigh the benefits that death can fairly be deemed to be in the patient’s best interest. Assistance to suicide and active euthanasia are still forbidden. This chapter will describe in detail the contours of permissible medical response to the dying patient’s pursuit of death with dignity. Because a competent patient enjoys considerable decision-making prerogatives, a lot hinges on the determination of competency. The term competency here means mental capacity to make the particular medical decision at hand. (A person is legally incompetent for all purposes and dependent on a legal guardian only after a formal judicial declaration; such a judicial proceeding is undertaken in relatively few instances.) Adult patients are generally presumed capable of making their own medical decisions, though in the context of end-of-life

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care, some patients may be so debilitated that they lack or lose decision-making capacity. When a patient’s capacity is in doubt, attending medical personnel must make an assessment and, if the determination is against capacity, must seek a surrogate decision maker on behalf of the patient. Usually, that surrogate will be a relative or friend of the patient who has shown interest in the patient’s welfare. If the patient previously designated a surrogate decision maker, that choice should be respected unless the surrogate exhibits unfaithfulness to the patient’s wishes or welfare. While psychiatrists or psychologists are often enlisted in making an assessment of a patient’s decision-making capacity, there are no simple formulae or tests for making that assessment. Decision-making capacity means the mental capability to understand and act upon the nature and consequences of the contemplated courses of action. For a decision entailing possible fatal consequences, a patient has to be capable of understanding the nature of the affliction and the meaning of death as well as being able to weigh the alternative treatment or non-treatment courses and their likely consequences. No universal criteria govern assessment of these issues, leaving room for subjectivity and variations in professional determinations of competency. Experts can and do differ in their assessments. Also, the competent patient’s decision does not have to be sound and well considered. A patient is entitled to make a foolish decision and medical personnel are not permitted to find incapacity just because they vigorously disagree with a patient’s determination. A practitioner can withdraw from a case where the patient’s chosen course offends the practitioner’s conscience, but the patient cannot be abandoned without referral to a healthcare provider who can cooperate with the patient. Depression poses a particularly difficult problem in assessing capacity. Dying patients are frequently depressed. The presence of depression does not, by itself, preclude competency. Only when the depression is at a level that significantly distorts the patient’s ability to weigh medical options can incapacity be found.

COMPETENT PATIENTS The legal foundation As noted, Quinlan in 1976 set the pattern for succeeding death and dying jurisprudence. Karen Ann Quinlan was twenty-one years old when a mix of alcohol and drugs caused brain damage that left her in a permanently unconscious state. Her biologic functions were maintained by a respirator and artificial nutrition and hydration (ANH). Her devoted father sought judicial appointment as Karen’s legal guardian with authority to remove the respirator. Opposition to the father’s petition was grounded primarily on claims that detachment of the respirator would constitute murder and that courts should

not interfere with her physician’s professional judgment favoring continued life support. The New Jersey Supreme Court unanimously upheld the father’s petition. That court posited that Karen, if competent, would be constitutionally entitled to resist life-sustaining medical intervention. Her entitlement flowed from the 14th Amendment to the Federal Constitution and its protection of liberty. In light of Karen’s incompetence, her loving father could exercise the liberty right on his daughter’s behalf. The court repudiated any notions of murder or improper interference with medical judgment. According to the court, the implementation of a patient’s constitutional prerogative could not be deemed unlawful homicide. Improper interference with medical judgment would not ensue because medical ethics recognized patients’ entitlement to choose their own course of treatment (and to have a surrogate choose once the patient has become incapacitated). Succeeding courts have accepted the Quinlan premise that a competent patient may reject life-sustaining medical intervention. A number of state courts echoed Quinlan and grounded the patient prerogative in the constitutional protection of liberty. Other courts stressed a non-constitutional basis – the common-law principle that a medical practitioner must secure informed consent before initiating medical treatment. To treat without such consent is a tort, an unconsented touching. Still other courts used both the Constitution and the common law as the legal foundation for the patient’s prerogative. A strong majority of jurisdictions have case law upholding a competent individual’s rejection of artificial life support (Gasner 1990). In 1990, the U.S. Supreme Court reinforced the notion that the Constitution’s protection of liberty encompasses rejection of life-sustaining medical intervention. In the context of a permanently unconscious patient, the Court noted that many state courts had upheld a patient’s prerogative (implemented by a surrogate) to reject treatment and the Court ‘assumed’ for the sake of argument that a competent patient would have a constitutional right to reject treatment (Cruzan v. Director, Missouri Dept. of Health 1990). Further, the Court followed state court precedents in assuming that the patient could resist ANH as well as other forms of medical treatment. Seven years later, the U.S. Supreme Court reaffirmed a patient’s constitutional right to reject life-sustaining medical intervention, but refused to extend the patient’s protected options to include ingestion of a poison, i.e., assisted suicide (Washington v. Glucksberg 1997). That 1997 decision focused on the patient’s liberty interest in bodily integrity, meaning freedom from unwanted bodily invasions, as opposed to a broader prerogative to control the manner and timing of death. State court decisions upholding a competent patient’s liberty to reject life support have relied on both patient autonomy – i.e., self-determination in deciding how and if to respond to a fatal affliction – and bodily integrity. The autonomy interest has prevailed even when the

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prospective bodily invasions have been rather slight, as in the case of refusal of a life-sustaining blood transfusion. Those same decisions have considered and rejected possible governmental interests opposing the patient’s prerogative. The cases acknowledge a legitimate governmental interest in promoting sanctity of human life, but they also tend to find that a patient’s liberty interests (selfdetermination and bodily integrity) simply outweigh the abstract interest in sanctity of life (In re Conroy 1986; Fosmire v. Nicoleau 1990). The courts note that upholding a dying patient’s decision to reject treatment exalts selfdetermination rather than deprecating sanctity of life. Similarly, courts acknowledge a legitimate government interest in preventing suicide, but refuse to equate rejection of treatment with suicide. The main distinction is that suicide involves initiation of a self-destructive course (e.g., ingesting a poison or shooting oneself), while refusal of treatment involves letting a fatal affliction follow its natural course. Sometimes, there is also a state of mind distinction between suicide and rejection of life support. That is, a patient rejecting medical intervention may not desire to die, but only to avoid an offensive bodily invasion. Yet that state of mind distinction does not always hold up, as some patients rejecting treatment find their quality of life intolerable and indeed intend to die. Other conflicting governmental interests have also not curbed the competent patient’s prerogative to refuse treatment. Efforts to assert a countervailing government interest in upholding medical judgment and medical ethics have met the same fate as in Quinlan – a finding that professional ethics recognize a patient’s prerogative to determine his or her medical fate. While the courts acknowledge a healthcare provider’s interest in maintaining personal scruples or conscience, the judicial solution is to allow the conscientious provider to withdraw (while referring the patient to another provider), but not to override the patient’s preference to forgo treatment. Occasionally, government has asserted an interest in protecting the lives and well-being of dependents of the patient rejecting life support. In at least one early case, in 1964, a court used that rationale to help justify its authorization of medical intervention against a patient’s wishes (Georgetown College 1964). More recent cases have gone the other way, upholding the patient’s decision to reject life support so long as the dependents will not be totally abandoned, i.e., so long as there will be a surviving spouse or relative to care for the dependents (Fosmire v. Nicoleau 1990).

Scope of the competent patient’s prerogative TYPES OF MEDICAL INTERVENTIONS AND PROXIMITY OF DEATH Early discussions of a patient’s right to reject life-sustaining medical intervention considered possible limitations on

that prerogative. One notion was that ‘extraordinary,’ but not ‘ordinary,’ medical means could be withdrawn at a patient’s behest. That dichotomy originated in Roman Catholic doctrine defining extraordinary means as particularly complex, invasive, or expensive treatments. Under such a framework, a respirator would be deemed extraordinary and therefore expendable, but a blood transfusion would not. The extraordinary/ordinary distinction has not prevailed in legal doctrine. A patient’s right to resist bodily invasions encompasses all medical techniques from the simplest aspirin tablet to the most elaborate machine. In the early 1980s, some commentators sought to differentiate among medical interventions and to exclude the withholding of ANH as a medical option. Their contention was that provision of ANH constitutes feeding, and that such feeding reflects a basic human obligation and symbolizes the nurturing spirit of medicine. The courts have almost uniformly rejected this effort to differentiate between ANH and other forms of medical intervention. The judicial position has been that the need for ANH is prompted by disease or other pathology, and that the patient is as entitled to control ANH as any other medical response to bodily dysfunction. Some state legislatures, usually in the context of regulating advance medical directives, have been more sympathetic with the effort to distinguish between ANH and other medical means. This sympathy, though, has only generated a requirement in several states that the declarant in an instruction directive specifically mention ANH if the declarant wants to reject such treatment. The vast majority of jurisdictions still allow rejection of ANH, most of them without a requirement of separate mention of ANH. Early cases also hinted that a patient’s prerogative to reject treatment might be confined to end-stage care, i.e., when unavoidable death is near at hand. Those cases suggested that the government interest in preserving life might prevail against the patient’s autonomy interest unless life could only be temporarily sustained – when ‘the issue is not whether, but when, for how long and at what cost to the individual his life may be briefly extended’ (Satz v. Perlmutter 1978 at 162; Superintendent of Belchertown State School v. Saikewicz 1977). More recent cases clarify that the patient’s prerogative to resist medical intervention is not confined to the end-stage of a dying process or even to unavoidably terminal conditions (In re Peter 1987). This means that a patient can refuse treatment even at an early stage of a degenerative disease process and even in situations where the patient is salvageable to a healthful existence. (This last situation occurs primarily when, for religious reasons, a patient declines a potentially life-saving medical intervention.) Note that cardiopulmonary resuscitation (CPR) is governed by principles similar to those applicable to other forms of life-sustaining medical intervention. That is, a competent patient is entitled to dictate that CPR not be performed in the event of cardiac or respiratory arrest. Most hospitals have protocols for obtaining a debilitated

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patient’s (or, where appropriate, a surrogate’s) consent to a do-not-resuscitate (DNR) order that is then entered in the patient’s chart and signaled to medical personnel in some other fashion. Many states have also adopted protocols for honoring DNR orders in out of hospital settings. In addition, medical personnel may refrain from CPR where such intervention is highly unlikely to succeed in restoring continuous cardiorespiratory function.

MEDICAL FUTILITY That a competent patient can accept or reject proffered medical treatment does not mean that the patient is entitled to receive every medical treatment that the patient demands. Medical futility is a term often used to express an ultimate limitation on what services patients can demand. That term has aroused considerable dispute. Some sources assert a general medical prerogative to refuse to offer or supply services that are ‘not medically indicated’ or ‘futile.’ Other sources view the concept of medical futility as an attempt to reassert provider control of medical services and to undermine the patient’s prerogative to shape medical care (Rubin 1998). The issue of medical futility is complex. A healthcare provider may legitimately assert a prerogative to assess the physiological utility of possible treatments. That is, a physician’s professional judgment includes an assessment of the potential effectiveness of treatments, including a conclusion that a treatment modality will not have an impact on the patient. A conclusion of physiological futility permits a physician to withhold the treatment modality, subject only to two constraints. To avoid malpractice, the physician in judging treatment effects must meet professional skill standards. And the physician ought to inform the patient about the judgment of futility, so that the patient can obtain a second opinion. Where the issue is not physiological futility, but rather the appropriateness of sustaining a severely deteriorated life, the scope of professional judgment is limited (Jecker and Schneiderman 1993). Whether the quality of a remaining existence warrants continued medical treatment is largely a value judgment reserved for the competent patient or the patient’s representatives (in conjunction with medical staff) and is not an issue for unilateral medical judgment. A healthcare provider in an institutional context can ask for an ethics consult in the hope of clarifying the medical picture and inducing a patient or representative to alter course. A healthcare provider may also voice conscientious objections to continued medical intervention and may seek to withdraw from the case – with referral to a more cooperative clinician. But the provider cannot unilaterally terminate life support for a deteriorated but preservable patient. Very few cases speak to the concept of medical futility, especially in its qualitative sense involving a judgment that the remaining existence is not worth preserving. In a well-known Minnesota case, a hospital went to court

seeking a change of guardian when a husband insisted on continued respirator support for his permanently unconscious spouse (In re Wanglie 1991). The judge refused to oust the husband as guardian – since the husband purported to be implementing his wife’s wishes – and the life support continued. In a Massachusetts case called Gilgunn, the daughter of an elderly deceased patient sued Massachusetts General Hospital for having disconnected life support from the then-comatose patient, in contravention of the daughter’s instructions (Capron 1995). In that instance, the attending physician had secured an ethics consult and received endorsement, from the head of the hospital ethics committee, for removal of life support. A jury refused to award damages against the hospital. That jury verdict does not represent a general legal acceptance of a medical prerogative to unilaterally determine qualitative futility. Indeed, when a hospital sought judicial authorization to withhold ‘futile’ treatment to an anencephalic infant over the mother’s objections, the court declared that the hospital’s failure to provide the requested life-extending services would violate a federal statute requiring stabilizing treatment for any emergency medical condition (Matter of Baby K 1994). In sum, a healthcare provider can only hope to invoke the futility concept and to overturn a conscientious surrogate’s insistence on continued life support when the surrogate’s course is abusive – i.e., when the patient is being subjected to pointless suffering or when the surrogate’s course seems aberrant in diverging without explanation from what the vast majority of people would want (Cantor 1996a).

PALLIATIVE CARE: FROM RISKY ANALGESICS TO TERMINAL SEDATION Provision of effective pain relief is increasingly viewed as an integral part of medical responsibility to patients. In recent years, the medical profession has moved rapidly to increase education about pain control, to establish guidelines for practitioners engaged in treating intractable pain, and to eliminate perceived barriers to use of opioids as part of palliative care (Rich 2000). This increased sensitivity to palliative care probably comes in reaction to two phenomena: (i) studies showing that a high percentage of dying patients experience significant pain despite major advances in analgesic techniques; and (ii) claims by advocates for physician-assisted suicide (PAS) that unrelieved suffering of some dying patients necessitates resort to PAS. From a legal perspective, there is no question that healthcare providers are allowed to furnish effective analgesic relief, even when the pain medication poses some risk of hastening a patient’s death. The professional imperative to mitigate suffering justifies some risk of hastening death. The matter is analogous to a risky openheart surgery; the prospect of a patient’s major gain in quality of life justifies the risk involved in the surgery.

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Of course, professional guidelines exist for administration of pain relief, and healthcare providers must conform to them in order to avoid malpractice liability or professional discipline. Those guidelines dictate that risky pain relief be necessary – i.e., that the pain be intractable, that no less dangerous analgesic exist, and that dosage be titrated upward in a careful fashion. The conventional wisdom in medico-legal circles says that a healthcare provider can lawfully give a risky dose of analgesics as long as the impetus is a patient’s severe suffering and the provider’s specific intention is to ease suffering rather than to cause death. The New York State Task Force on Life and the Law observes: It is widely recognized that the provision of pain medication is ethically and professionally acceptable even when the treatment may hasten the patient’s death if the medication is intended to alleviate pain and severe discomfort, not to cause death. (N.Y. Task Force 1992)

This focus on the palliative care provider’s intention seeks to transpose the doctrine of double effect to the medico-legal context. Under that doctrine, a proportionately good effect (relief of suffering) may overcome a foreseeable bad effect (causing death) so long as the actor does not intend to accomplish the bad effect. The effort to use the doctrine of double effect, with its focus on a physician’s intention, seems inconsistent with traditional legal doctrine. Traditional doctrine establishes that it is criminal homicide to knowingly cause death, even if the actor’s motive or intention is to relieve suffering. Mercy killing has always been prohibited in the Anglo-American system. The better explanation for the legality of aggressive palliative care is found in criminal law principles of recklessness and justification that allow a measure of medical risk-taking. A physician is justified in incurring some risk of death (but not a certainty of death) in order to relieve a patient’s unbearable suffering (Cantor and Thomas 2000). No criminal responsibility is incurred unless the palliative care provider is reckless and departs grossly from professional standards. Current professional standards authorize risky analgesics where necessary to relieve intractable suffering. ‘The risk of death is justified, not because it is unintended but because there is no alternative approach that makes the risk of death less likely and the alleviation of suffering possible’ (Fleischman 1998 at 261). The fact that the physician administering pain relief is creating a risk of death rather than certainly precipitating death also helps differentiate legitimate pain relief from euthanasia.‘We view the administration of morphine to reduce suffering not really as killing but as an act of risking death to secure pain relief, analogous to risking death by submitting to a potentially life-saving operation’ (Wennberg 1989 at 105). Another form of aggressive pain relief is deep sedation rendering an egregiously suffering, dying patient

unconscious or stuporous during the remainder of a dying process. The medical objective is to relieve a variety of intractable physical or emotional conditions sometimes accompanying the dying process. Refractory physical suffering can be engendered by pain or discomforts such as nausea, vomiting, or dyspnea. Emotional suffering can be associated with respiratory distress, agitation, fatigue, incontinence, or helplessness. In the small percentage of cases in which customary palliative care does not adequately relieve suffering, deep sedation becomes a possible course. This is known as terminal sedation (TS), where the patient is likely to expire while still sedated. Most forms of deep sedation are clearly lawful under the principles of recklessness and justification discussed above. For example, deep sedation is frequently used as an adjunct to withdrawal of life-sustaining medical machinery such as extubation of a ventilator-dependent patient. To avoid any suggestion of criminality, care providers are expected to use sedative dosages commensurate with keeping the patient unconscious, but not killing them. Any modest risk that the sedatives will hasten death is justified by the need to relieve suffering. The same legal rationale applies to TS that is used when an egregiously suffering patient is within hours or days of death. Because the patient is near death, it is impossible to know definitively whether the sedation hastens death. But as long as the sedation is administered in quantity geared to maintaining unconsciousness, the risk that death might be hastened is justified by the palliative necessity. A problematic element sometimes connected with deep sedation is the simultaneous withholding of ANH. Some commentators contend that cessation of ANH serves as a gratuitous means to hasten the sedated patient’s death (via dehydration) – a gratuitous means assertedly akin to euthanasia because the relief of suffering is already accomplished by deep sedation (Orentlicher 1997). Withholding of ANH does not seem to pose a serious legal problem in the typical case, where the deep sedation is instituted only during the last few days of a patient’s dying process. The patient is already gravely debilitated and may well have naturally cut back on food and fluid intake, so it is impossible to establish that withholding of ANH causes death. Moreover, there is often a palliative justification – such as avoidance of pulmonary edema – for withholding ANH as part of end-stage care. The problematic aspect of TS surfaces if withholding of ANH takes place at an earlier point in the dying process, perhaps many weeks before the patient would normally die from the underlying disease. In that instance, death from dehydration might plausibly be shown. There is no real legal precedent, so analysis of this long-term TS accompanied by withholding of ANH must be tentative. One perspective is that once relief of suffering is achieved via deep sedation, withholding of ANH has no palliative function and therefore risking death by dehydration has no legal justification. As the patient may well intend that the rejection of ANH hasten death, overtones of

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suicide are present. If a healthcare provider contemplating administration of long-term deep sedation knows that the patient will reject ANH and therefore knows that the patient will die of dehydration, initiation of deep sedation knowingly sets in motion a fatal chain of events and might arguably be regarded as facilitation of a suicide – a step which raises some ethical, if not legal, qualms. A contrary perspective is that the patient voluntarily choosing longterm TS is exercising legitimate prerogatives that the care provider ought to respect. Certainly, deep sedation is a legitimate palliative step. A patient then resisting ANH is invoking an important interest in bodily integrity – a prerogative to resist bodily invasions long recognized in death and dying jurisprudence. For example, a dying patient is probably entitled to stop eating and drinking even though the result is to hasten death. And a dying patient resisting ANH has an important self-determination interest in avoiding the indignity of lingering indefinitely in a deeply sedated state. In a sense, long-term TS can be regarded as part of a natural dying process; a fatal pathology causes egregious suffering, necessitating deep sedation and that sedation, in turn, shuts down the natural alimentation system. This matter of long-term TS accompanied by withholding of ANH is legally uncharted territory.

PHYSICIAN-ASSISTED SUICIDE (PAS) AND VOLUNTARY ACTIVE EUTHANASIA (VAE) Advocates of death with dignity are not fully satisfied with the options currently available to the dying patient, such as rejection of life-sustaining medical intervention, access to analgesics, stopping of eating and drinking, or terminal sedation (in its clearly lawful forms). Each option usually entails some period of lingering in a highly debilitated or helpless state, and therefore offends the dignity that these advocates are intent on preserving. They therefore push for more expeditious means of hastening death – particularly PAS (giving a competent patient access to a lethal poison). Only Oregon has legalized PAS. Virtually all the remaining states treat assistance to suicide as a crime, either by statute or by common-law. Supporters of PAS have sought to overcome that legal hurdle by popular referendum, by proposed legislation, and by constitutional attack. Except in Oregon, the referendum/legislative route has thus far failed. Indeed, a significant number of states have in the last several years adopted legislation clarifying or reiterating opposition to PAS. Nor has the constitutional route to legalizing PAS succeeded to date. In 1996, two federal courts of appeals upheld constitutional attacks on the Washington and New York bans on PAS as applied to competent, suffering, terminally ill patients. But in 1997, in appeals from these decisions, the U.S. Supreme Court rejected the constitutional challenges to laws punishing assistance to suicide (Washington v. Glucksberg 1997; Vacco v. Quill 1997). State courts have similarly rejected constitutional challenges to laws barring PAS.

Proponents of PAS contend that it – as confined to a suffering, terminally ill patient – is morally and practically indistinguishable from other forms of hastening death that states have accepted. The ‘other forms’ reference is to medical withdrawal of life support at the patient’s behest and to medical use of risky analgesics or sedatives. The proponents’ constitutional attacks have focused on the claimed arbitrariness of state policy in barring PAS while accepting these other forms of hastening death. The Supreme Court in 1997 forcefully repudiated the constitutional challenge to laws banning PAS (Washington v. Glucksberg 1997). Chief Justice Rehnquist’s opinion acknowledged a patient’s 14th Amendment liberty right to choose death by rejecting life-sustaining medical intervention. But he viewed the constitutional liberty interest in rejecting life support as grounded in bodily integrity rather than autonomy to choose how and when to die. He also saw a rational distinction between rejection of medical intervention and ingestion of a poison. The former involves letting a dying process take its natural course while the latter involves a self-initiated precipitation of death. (Although a physician’s withdrawal of life support is in one sense an action precipitating death, it simply removes previously instituted obstacles to a natural dying process.) Chief Justice Rehnquist also referred to medical ethics as providing a plausible basis for distinguishing PAS. Many medical professional groups regard assistance in killing – such as the provision of a poison – as incompatible with the traditional medical role of curing and comforting. Finally, the Rehnquist opinion perceived certain hazards supposedly accompanying PAS as legitimate bases for the prevailing legal ban. The principal hazard cited was abuse of vulnerable populations. Dying patients are notoriously distressed and depressed, subject to influence or manipulation; moreover, elderly or minority patients might be subject to provider prejudice and therefore be particularly prone to manipulation. All these concerns about legalization of PAS are understandable but highly debatable. The Supreme Court made clear that states are free to resolve the public policy debate either by maintaining the status quo or changing direction, as did Oregon. The ultimate direction of public policy is hard to gauge. The killing/letting die distinction that is used to justify the continuing ban on PAS seems quite fragile. The notion that the ban on PAS symbolically reinforces sanctity of life is eroded by the public perception that both medical withdrawal of life support and administration of risky analgesics (in high, probably lethal dosage) are legally accepted forms of killing. Medical ethics also provide a fragile foundation for the ban on PAS. Although major professional organizations declare that assistance to suicide is incompatible with the medical role, goodly numbers of healthcare professionals perceive relief of a dying patient’s unbearable suffering – even by a poison, if necessary – as consistent with a palliative medical role where curative and restorative measures are no longer realistic.

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Fear of abuse of vulnerable populations looms as the most enduring obstacle to legalization of PAS. However, the purveyors of fear will have to explain why comparable abuses of vulnerable populations have not surfaced in other end-of-life contexts such as withdrawal of life support and use of risky analgesics. Hazards associated with depression, prejudice, and financial pressure potentially affect removal of life support just as they would affect PAS; yet no widespread abuse of vulnerable populations has occurred. Experience in Oregon and in The Netherlands will help determine whether the specter of abuse will continue to block legalization of PAS. It is too early to tell about Oregon, though early reports find no abuse there. The data regarding The Netherlands is controversial, with both pro and anti PAS observers finding support for their positions in the Dutch experience (compare Griffiths, Boud, and Wegers 1998 with Gomez 1991).

INCOMPETENT PATIENTS When the Quinlan case was pending in 1976, some commentators issued dire warnings about allowing disconnection of life support from incompetent, helpless persons. The cry was that detachment of Karen Ann Quinlan’s respirator would constitute murder and that its approval would lead to involuntary euthanasia of senile and other debilitated human beings. Yet the New Jersey Supreme Court resisted the in terrorem arguments. The court understood that requiring medical maintenance of all incompetent, dying persons, no matter how hopeless and deteriorated their condition, would impel inhumane and unwanted medical intervention. It ruled that Karen Ann Quinlan, if competent, would have a right to resist continued life support. In light of her incapacity, her right could be exercised by a conscientious guardian such as her loving father. Protection against abuse would be assured by the presence of attending medical personnel and by the scrutiny of a prognosis committee which had to be consulted. Most jurisdictions have followed the pattern fixed by Quinlan. That is, most states allow a conscientious guardian (usually, but not always, a close family member) to make end-of-life medical decisions on behalf of an incompetent, terminally ill patient. As will be explained below, the precise decision-making criteria and procedures vary from state to state. Many of the cases deal with permanently unconscious patients, like Ms. Quinlan, who obviously cannot benefit in any meaningful fashion from continued medical intervention. But a number of cases and statutes authorize withdrawal of life support from some persons still capable of relating to their environment. A small number of jurisdictions, fearing exploitation of helpless persons, exclude surrogate decisions ending life unless the now-incompetent patient has previously given clear indication of desiring such a course (In re Martin 1995; Edna M.F. v. Eisenberg 1997).

The thrust of most statutes and cases relating to dying, incompetent patients is to honor prospective autonomy – that is, they instruct surrogate decision makers to replicate, to the extent possible, what the formerly competent patient would want done in the circumstances at hand. That respect for following the formerly competent patient’s wishes pervades both the legislation governing advance medical directives and the case law and statutes applicable when no advance directive has been issued. The details follow.

Advance medical directives Every state allows a competent person to provide in advance for resolution of future medical issues in a postcompetence dying process. One device is to appoint a healthcare agent who will be responsible for directing medical personnel regarding any post-competence issues. (This agent may be known by diverse titles, such as proxy, surrogate, or conservator.) Having a healthcare agent, especially one who is familiar with the patient’s wishes, has obvious benefits. The agent will be functioning according to up-to-date information about the patient’s condition and prognosis rather than trying to anticipate circumstances months or years in advance of their occurrence. The agent can also act as an advocate and enforcer of the patient’s wishes in the event of resistance from healthcare providers. The relevant statutes instruct the appointed agent to follow the now-incompetent patient’s wishes as reflected in prior expressions or in other indicia of the patient’s values and preferences regarding end-of-life decisions. In the absence of discernible patient preferences, the agent is generally instructed by statute to follow the patient’s best interests. Whether or not a person appoints an agent, he or she can seek to control post-competence medical intervention by issuing advance instructions, sometimes called an advance directive, instruction directive, or living will. In this chapter, the term advance directive will be used (hereinafter AD). Some commentators doubt the utility or efficacy of ADs. At the moment of drafting an AD, a declarant must anticipate a multitude of possible postcompetence medical scenarios. Moreover, the declarant must project how he or she will feel in a variety of inherently unknowable incompetent mental states. Some commentators also argue that the values or preferences of a previously competent declarant do not matter once the patient is gravely debilitated and cannot appreciate the deviation from his or her prior instructions (Dresser and Robertson 1989). These objections do not obviate the importance of an AD. While a declarant may be unable to anticipate the precise scenario to be faced, that person may have welldeveloped and enduring notions of dignity, religion, and consideration for loved ones that the person wants to shape future medical handling. Personal values and preferences

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reflected in an AD can be important even if their violation will not be sensed in the person’s future debilitated state. People care mightily whether their cherished values, including dignity, will ultimately be respected in the dying process. Accordingly, virtually all jurisdictions provide that a person’s articulated wishes contained in an AD should be honored. Note that an AD may accompany the appointment of a healthcare agent and even form a single document both naming and instructing a healthcare agent. The agent is then charged with implementing the AD as part of his or her responsibility to fulfill the declarant’s wishes. Note also that appointment of a healthcare agent and instructions contained in an AD become effective only when a person has lost capacity for medical decision making. While still competent, a patient retains decision-making control though the patient could choose to share decision making with others or even delegate responsibility to others. Certain intrinsic difficulties of ADs preclude their ever being a panacea regarding end-of-life decision making. Perhaps because thinking about the dying process is generally distasteful, only a modest percentage of people (usually estimated at 20 per cent) prepare ADs. Even when an AD is present, physicians sometimes insist on following their own treatment preferences rather than those of the declarant – particularly if the physician perceives that the advance instructions conflict with the current best interests of the now-incompetent patient. Sometimes, a designated healthcare agent or other surrogate becomes distraught or guilt-ridden and unable to implement the advance instructions. Medical uncertainty also poses an unavoidable obstacle to the implementation of ADs. A document may provide for cessation of life support when there is no longer a ‘significant’ or ‘realistic’ chance of ‘recovery’; yet physicians may not be able to say definitively whether the patient will recover or whether any prospective recovery will be accompanied by serious impairments. All these factors impede the effective utilization of ADs. The biggest obstacle, however, is the imprecision or vagueness frequent in ADs. A common model contains one operative sentence instructing a surrogate decision maker: ‘If I [the declarant] should be in an incurable or irreversible mental or physical condition with no reasonable expectation of recovery, I direct my attending physician to withhold or withdraw treatment that merely prolongs my dying.’ Such language is presumably intended to avoid a lingering, undignified demise, but it does not elucidate the particulars of debilitation or indignity that would be intolerable to the declarant. An AD ought to provide more meaningful guidance by focusing on the elements of indignity – such as mental deterioration, immobility, or helplessness – that the declarant deems personally intolerable. Certain ADs allow specification of personally intolerable levels of deterioration (Cantor 1998 at 646–52), but the bulk of ADs continue to be vague and uninformative.

Statutes in some jurisdictions purport to limit the effectiveness of ADs to where the patient is in a ‘terminal condition,’ variously defined. If strictly applied, such statutory provisions would impede implementation of ADs at early stages of degenerative dying processes or where the deteriorated, incompetent patient is maintainable for a substantial period. In most instances, though, the governing statute contains a saving provision saying that the statutory framework does not derogate from the existing common-law prerogatives of the declarant. Those common-law prerogatives probably encompass a right to dictate in advance withholding of life-sustaining treatment even if the now-incompetent patient has not yet reached the end-stage of a dying process or a statutorily defined ‘terminal condition.’

Decision-making standards binding surrogates As noted, most people do not provide advance instructions regarding end-of-life medical treatment. The states vary widely in the judicially or statutorily defined standards or criteria that are then supposed to govern surrogate decisions on behalf of incompetent, dying patients. The following material sketches the divergent legal approaches.

CLEAR AND CONVINCING EVIDENCE Courts in a small number of states, most notably Missouri and New York, have ruled that surrogates (aside from designated healthcare agents) can only end life support where the patient previously left clear and convincing evidence that he or she would want that course followed under the circumstances now at hand (Westchester Medical Center 1988; Cruzan v. Harmon 1989). This position is grounded in the apprehension that helpless patients would otherwise be abused by insensitive quality of life decisions on the part of prejudiced or self-interested decision makers (Fitzgerald 1997). The hesitance about surrogate conduct is not entirely unfounded. There have indeed been some instances when parents and healthcare providers made imprudent terminal decisions resulting in the deaths of disabled infants. Perhaps the most notorious case was Infant Doe in 1982 (Note 1983), when parents ordered withholding of life-sustaining intervention from a Down’s syndrome newborn because they projected that any such handicapped child must have an unhappy life (Filene 1998 at 109–10). Although well-intended, the requirement of clear and convincing evidence of the now-incompetent patient’s wishes to withdraw life support represents a harsh and inhumane constraint on end-of-life decision making. Very few people articulate their prospective wishes with the precision demanded by these few courts. The consequence, under the clear and convincing evidence approach, is that many individuals will be forced to linger in gravely

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debilitated states (such as permanent unconsciousness) that they would almost surely have wished to avoid (had they expressed their preferences). For the nevercompetent patient, the person who has always been severely developmentally disabled, the result is presumably that all possible life-maintenance must be continued, as such a person could not have given clear and convincing evidence of a wish to die. Again, the result is harsh as patients would have to be sustained no matter how much suffering or debilitation was being endured. Though the clear and convincing standard is harsh and imprudent, it is constitutional. In 1990, the U.S. Supreme Court considered a challenge to the Missouri policy precluding withdrawal of life support from a patient absent clear and convincing evidence of previously expressed wishes. The challenge came from parents who sought removal of a nasogastric tube from their adult daughter who had been reduced to a permanently unconscious state by a traumatic injury (Cruzan v. Director, Missouri Dept. Health 1990). A majority of the Supreme Court ruled that Missouri’s approach was constitutionally defensible as a means of protecting helpless, incompetent persons against abuse at the hands of surrogates who might find the patients’ continued existence to be burdensome or inconvenient. Fortunately, the vast majority of jurisdictions trust surrogates, in conjunction with healthcare providers, to make end-of-life medical decisions for incompetent patients in circumstances beyond those of clearly articulated prior wishes. Those alternative approaches follow.

SUBSTITUTED JUDGMENT In the mid-1970s to mid-1980s, when death and dying jurisprudence was largely being shaped, a number of courts proclaimed that an incompetent patient should enjoy ‘the same panoply of rights’ as a competent person (Superintendent of Belchertown State School v. Saikewicz 1977; In re Colyer 1983; John F. Kennedy Hospital v. Bludworth 1984). This would include the competent patient’s right to reject life-sustaining medical intervention. The notion of ‘the same panoply of rights’ honors autonomy by indicating that a person’s personal values and preferences ought to govern medical treatment even after competence is lost. A surrogate can seek to implement the patient’s autonomy right by choosing the course that the patient would choose for himself or herself if able. Substituted judgment is one name for the decisionmaking standard that strives to implement the nowincompetent patient’s previous wishes regarding end-of-life treatment. The surrogate decision maker is instructed to replicate what the now-incompetent patient would choose if that patient were miraculously competent and aware of all the circumstances confronting the patient. A number of jurisdictions explicitly adopt a substituted judgment approach (e.g., Superintendent of Belchertown State School v. Saikewicz 1977; In re Estate of Longeway 1989). Under that approach, the patient’s previously

expressed wishes or preferences – in the form of an AD or otherwise – would govern the surrogate’s decision. The surrogate’s task may be easy enough where an explicit AD exists, where the patient has left oral instructions, or where the patient adhered to religious or philosophical positions that dictate the course that the patient would follow in the circumstances. The problem occurs in the many instances when the now-incompetent patient has not left clear indicia of end-of-life treatment preferences. Some jurisdictions employ a loose substituted judgment approach and expect the surrogate to extrapolate the patient’s likely choice based on whatever knowledge is available about the patient’s previous values and preferences. That approach is especially common where the patient is in a permanently unconscious state (In re Jobes 1987). Some sources are skeptical, however, of a surrogate’s capacity to project the now-incompetent patient’s likely choice where there are no clear-cut prior expressions regarding end-of-life care. They are fearful that the surrogate will project the surrogate’s own values and preferences rather than the patient’s (Wicclair 1993 at 56–60). Many jurisdictions view the subjective or substituted judgment approach – seeking to discern the patient’s actual wishes – as only a starting point in a decisionmaking spectrum (Pollock 1989). In the absence of meaningful indicia of the patient’s preferences regarding end-of-life treatment, the surrogate is expected to shift to a best interests of the patient approach (In re Conroy 1986). That approach acknowledges the possibility that the burdens of continued existence might outweigh the benefits, i.e., that the incompetent patient might be better off dead than alive. That standard has its own difficulties, now to be considered.

BEST INTERESTS OF THE PATIENT While public policy respects autonomous choice, a nowincompetent patient’s actual preferences about end-oflife treatment often cannot be reliably determined. Many jurisdictions – either by statute or case law – then prescribe that the patient’s best interests should guide surrogate decision making on behalf of the incompetent patient. The best interests approach is supposed to be an objective one geared to promotion of the patient’s well-being. Well-being usually means continued existence, yet there may be circumstances where the burdens of continued existence outweigh the benefits, i.e., where the incompetent patient would be better off dead than alive. In those instances, surrogates may, consistent with best interests, seek removal of life support. This approach sounds simple enough, but significant difficulties occur either in defining the relevant burdens or in measuring them vis-à-vis the benefits of continued living. The overall object of the best interests approach helps define the components of best interests – the relevant burdens and benefits to be assessed. The basic object is to treat people the way they would want to be treated and,

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in the absence of definitive indicia of their actual preferences, the assumption is that incapacitated patients want to be treated the way most people would want to be treated in the circumstances. Thus, the components of best interests are formulated according to perceptions of what the average person (sometimes known as the reasonable person) would deem to be critical factors in end-of-life decisions (Wicclair 1993; Strasser 1995 at 778). This means a starting presumption favoring maintenance of life (as most people, even those grievously ill, want to keep living) and an accompanying principle that extreme suffering is intolerable (given people’s common aversion to extreme pain). Again, the hope is to implement the patient’s likely choice by having the surrogate act according to the factors and criteria most people would choose for themselves. (Keep in mind that this approach does not ignore the patient’s personal preferences. Any discernible, competently expressed wishes govern the patient’s medical fate – either because an inquiry into subjective preferences precedes resort to best interests or because a person’s selfdefined best interests count in the best interests calculus.) While severe suffering is a relevant burden in any best interest approach, assessment of that element of burden can be a daunting task. In many instances, the extreme debilitation of the incompetent patient prevents effective communication of feelings and therefore impedes understanding of the patient’s experiential reality. Those surrounding the dying patient then must struggle to interpret cryptic clues – including enigmatic sounds, gestures, facial expressions, and non-verbal behavior (Dresser 1994 at 666–91). Do moans and tugging at tubes reflect unbearable suffering or just reflexive response to an annoyance? Does a smile reflect pleasure or just gratitude for a kind, but futile, gesture by a care provider? To what extent does the patient’s incomprehension increase the anxiety and fear accompanying medical interventions? In short, problems of measurement or assessment plague any surrogate seeking to determine the level of suffering of an incompetent patient, or the relative weights of suffering and satisfaction. ‘The real burdens and benefits of life in extremely debilitating circumstances are often beyond our ability to know confidently or comprehend fully’ (Peters 1989 at 942; Strasser 1995 at 744–5). Some uncertainty about the component elements of best interests also plagues application of that standard. A prime example is the well-being of the incompetent patient’s surrounding loved ones. Can the surrogate decision maker consider the emotional and financial impact on the patient’s loved ones in fixing the medical course to be followed? One perspective is that most people would include loved ones’ emotional and financial well-being in defining their own best interests in end-of-life situations (President’s Commission 1983). Most people do not want to become a burden to their families and therefore want the impact on loved ones to be considered. Accordingly, a few cases mention family interests as a legitimate factor within a best interests approach to surrogate decision

making. A contrary perspective is that injection of nonpatients’ interests entails a balancing of the value of one person’s life against the financial and emotional strains upon others. This kind of utilitarian calculus has always been anathema in the context of individual end-of-life decision making due to the incommensurability of a life contrasted with other people’s burdens and to revulsion toward Nazi efforts to apply a utilitarian calculus to helpless medical patients. An alternative, intermediate approach would allow consideration of family or caregiver interests only if the patient either stipulated that such factors should be considered or if the patient’s consistently expressed values embraced such an altruistic approach. In the meantime, no consensus exists regarding the role of family interests within a best interests formula. Another controversial component of the best interests formula is quality of life. The 1983 President’s Commission listed ‘quality as well as the extent of life sustained’ as a major element of the best interests standard (President’s Commission 1983 at 135). This is fully consistent with the underlying object of identifying factors that a reasonable person would deem to be part of best interests. Most people care mightily about the quality of life, particularly extreme mental deterioration, in a post-competence stage of a dying process (Singer, Martin, and Kelner 1999). Not surprisingly, courts that embrace a best interests standard frequently mention quality of life (in the form of elements such as loss of function, humiliation, dependence, and loss of dignity) as a relevant consideration for a surrogate. The trick, though, is to identify a level of deterioration so demeaning and distasteful for the reasonable person that life becomes worse than non-existence (Arras 1988). Some sources criticize use of quality of life as a factor within best interests. They regard quality of life as an imprecise, value-laden notion lacking a consistent content and subject to exploitation by surrogates indifferent or hostile to the fate of debilitated, vulnerable patients. This concern over abuse of quality of life determinations was in large part responsible for the narrow approach, previously described, prevailing in New York, Missouri, and a few other jurisdictions. That approach excluded surrogate removal of life support absent clear and convincing evidence of actual patient preferences. An alternative approach to surrogate decision making is available – an approach which acknowledges people’s common preoccupation with dignity in end-of-life care and recognizes the difficulty of assessing the current feelings of deeply demented patients, yet precludes arbitrary or abusive quality of life determinations.

CONSTRUCTIVE PREFERENCE AS A GUIDE TO DEATH WITH DIGNITY I suggest a surrogate decision-making standard, called constructive preference, that promotes the central mission of both the substituted judgment and best interests formulae – replication of what the now-incompetent

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patient would want done in the circumstances confronting the dying patient (Cantor 1996b at 1257–72). The premise of constructive preference is that the vast majority of people care about indignity in the dying process, and that common preferences about intolerable levels of indignity can be ascertained and used to guide surrogate decision makers. At least as to certain commonly occurring end-of-life scenarios, strong majority preferences can be objectively determined and used as default presumptions (in the absence of actual, competently expressed preferences) guiding surrogates. The societal importance of avoiding indignity in the dying process is patent. People fear that grave debilitation will entail embarrassment and/or frustration stemming from helplessness, dependence, and incapacity. Even if these distasteful feelings might not materialize, people care about the image and recollections that they will leave behind, images in the minds of loved ones that may be soiled by the patient’s extreme mental and physical deterioration during the dying process. These common preoccupations with indignity in the dying process are readily observable in the context of competent patients contemplating their prospective medical fates – in decisions to reject life-sustaining medical intervention, in advance medical directives, and in attitudinal surveys showing ‘paramount importance [attached to] … functional independence and the maintenance of mental faculties’ (Danis et al. 1988; Moller 1990 at 20). Of course, many commentators express concern about the possible imprecision and subjectivity of the dignity concept in end-of-life decision making. Sanford Kadish remarks: ‘The difficulty is that we have no way to make confident judgments about how far cognitive and physical deterioration must go before life ceases to be worth living, because the value judgments implicit in such a conclusion are in sharp contention in our society’ (Kadish 1992 at 882). To avoid arbitrariness and abuse, then, dignity-based guidelines must be grounded in reliable measures of what most people deem to be intolerable indignity in the dying process. The tools do exist for assessing common attitudes about indignity in the dying process. Two primary sources of data about competent persons’ preferences about their own medical fates are advance medical directives (viewed in bulk) and surveys regarding prospective medical handling. Some advance directives – particularly where the declarant has completed a values profile – communicate patients’ visions of intolerable indignity in the dying process (Cantor 1998). Many surveys scrutinize people’s preferences regarding end-of-life decisions and highlight attitudes toward elements of indignity often encountered in dying patients, such as incapacity to feed or dress oneself, incontinence, and severe dementia. Those sources can provide definitive guidance as to prevailing attitudes toward certain commonly confronted end-of-life scenarios. Some implications of a constructive preference approach to surrogate decision making are apparent. For

example, permanent unconsciousness is an intolerably undignified status under contemporary societal standards. Public surveys, judicial decisions upholding surrogate decisions, and legislative enactments all confirm that indefinite maintenance in a permanently insensate, immobile status is intolerably demeaning to the vast majority of people contemplating their own medical fate. Because of this overwhelming majority sentiment, the presumption under a constructive preference standard would be that a permanently unconscious patient would prefer death to an existence devoid of all sensation or feeling. A surrogate would be expected to seek removal of life support from any such patient unless the surrogate presented significant indication that the particular patient deviated from the strong majority sentiment about permanent unconsciousness. A similar presumption might ultimately be extended to dying persons who are so demented as to be unable to recognize and interact with other people. Many people regard such an existence as intolerably undignified for themselves. Depending on how prevalent that personal preference is – a question to be resolved by ongoing inquiry – a surrogate would either be expected to allow such a patient to expire without further medical intervention (if a strong majority of persons generally desire such a course for themselves) or the surrogate would have the discretion to end life support. Such surrogate discretion would exist if a substantial percentage (but less than a strong majority) of persons find the profoundly demented status to be intolerably undignified. The precise content of constructive preference presumptions would evolve over time as more data becomes available about people’s end-of-life preferences. The approach applies only to previously competent persons who never provided explicit guidance or clear-cut indications about end-of-life treatment preferences. As to such patients, it makes sense to ascertain what most people would want in similar circumstances and to treat the nowincompetent patient accordingly. As long as constructive preference’s default presumptions are anchored in objective data concerning what competent people consider an intolerably undignified existence for themselves, those default principles would effectively restrain surrogates’ arbitrary or subjective visions of what lives are worth preserving.

REFERENCES Application of Georgetown College, 331 F.2d 1000 (D.C. Cir. 1964). Arras, J.D. 1988. The severely demented, minimally functional patient: an ethical analysis. Journal of the American Geriatric Society 36, 938–48. Cantor, N.L. 1996a. Can heath care providers obtain judicial intervention against surrogates who demand

Death, dying, and the law 327 medically inappropriate life support for incompetent patients? Critical Care Medicine 24, 883–7. Cantor, N.L. 1996b. Discarding substituted judgment and best interests: toward a constructive preference standard for dying, previously competent patients without advance instructions. Rutgers Law Review 48, 1193–272. Cantor, N.L. 1998. Making advance directives meaningful. Journal of Psychology, Public Policy and Law 4, 629–52. Cantor, N.L., Thomas, G.C., III. 2000. The legal bounds of physician conduct hastening death. Buffalo Law Review 48, 83–173. Capron, A.M. 1995. Abandoning a waning life. Hastings Center Report 25, 24–6. Cruzan v. Director, Missouri Dept. Health, 497 U.S. 261 (1990). Cruzan v. Harmon, 760 S.W.2d 408 (Mo. 1989). Danis, M., Patrick, D.L., Southerland, L.I., Green, M.L. 1988. Patients and families’ preferences for medical intensive care. Journal of the American Medical Association 260, 797–802. Dresser, R. 1994. Missing persons: legal perceptions of incompetent patients. Rutgers Law Review 46, 609–99. Dresser, R., Robertson, J. 1989. Quality of life and non-treatment decisions for incompetent patients: a critique of the orthodox approach. Law, Medicine and Health Care 17, 234. Edna M.F. v. Eisenberg, N.W.2d (Wis. 1997). Filene, P. 1998: In the Arms of Others: A Cultural History of the Right to Die in America. Chicago, IL: I.R. Dee. Fitzgerald, W.A. 1997. Engineering perfect offspring: devaluing children and childhood. Hastings Constitutional Law Quarterly 24, 833–61. Fleischman, A.R. 1998. Commentary, Ethical issues in pediatric pain management and terminal sedation. Journal of Pain and Symptom Management 15, 260–1. Fosmire v. Nicoleau, 551 N.E.2d 77 (N.Y. 1990). Gasner, M.R. 1990. The unconstitutional treatment of Nancy Cruzan. New York Law School Journal of Human Rights 7, 40–63. Gomez, C.F. 1991: Regulating Death: Euthanasia and the Case of the Netherlands. New York, NY: Maxwell Macmillan International. Griffiths, J., Boud, A., Wegers, H. 1998: Euthanasia and Law in the Netherlands. Amsterdam: Amsterdam University Press. In re Colyer, 660 P.2d 738 (Wash. 1983). In re Conroy, 486 A.2d 1209 (N.J. 1986). In re Estate of Longeway, 549 N.E.2d 292 (Ill. 1989). In re Jobes, 529 A.2d 434 (N.J. 1987). In re Martin, 538 N.W.2d 399 (Mich. 1995). In re Peter, 529 A.2d 419 (N.J. 1987). In re Quinlan, 355 A.2d 647 (N.J. 1976). In re Wanglie, PX-91-283 (4th Judicial Dist. Minnesota Hennepin County, July 1991).

Jecker, N.S., Schneiderman, L.J. 1993. Medical futility: the duty to treat. Cambridge Quarterly of Health Care Ethics 2(2), 151–9. John F. Kennedy Hospital v. Bludworth, 452 So.2d 921 (Fla. 1984). Kadish, S.H. 1992. Letting patients die: legal and moral reflections. California Law Review 80, 857–88. Matter of Baby K., 16 F.3d 590 (4th Cir. 1994), cert. denied 115 S.Ct. 91 (1994). Moller, D.W. 1990: On Death Without Dignity: The Human Impact of Technological Dying. Amityville, NY: Baywood Publishing Company. New York State Task Force of Life and the Law. 1992: When Others Must Choose: Deciding for Patients Without Capacity. Note. 1983. Withholding treatment from defective infants: ‘Infant Doe’ postmortem. 59 Notre Dame Law Review 224, 225–35. Orentlicher, D. 1997. The Supreme Court and terminal sedation: rejecting assisted suicide, embracing euthanasia. Hastings Constitutional Law Quarterly 24, 947. Peters, P.G. 1989. The state’s interest in the preservation of life: from Quinlan to Cruzan. Ohio State Law Journal 50, 891–977. Pollock, S.G. 1989. Life and death decisions: who makes them and by what standards? Rutgers Law Review 41, 505–40. President’s Commission for the Study of Ethical Problems in Medicine. 1983: Deciding to Forgo Life-Sustaining Treatment. Rich, B. 2000. A prescription for the pain: the emerging standards of care for pain management. 26 William Mitchell Law Review 26, 1–00. Rubin, S.B. 1998: When Doctors Say No: The Battleground of Medical Futility. Bloomington, IN: Indiana University Press. Satz v. Perlmutter, 362 So.2d 160 (Fla. Dist. Ct. App. 1978). Singer, P.A., Martin, D.K., Kelner, M. 1999. Quality end-of-life care: patients’ perspectives. Journal of the American Medical Association 281, 163. Strasser, M. 1995. Incompetents and the right to die: in search of meaningful standards. Kentucky Law Journal 83, 733–99. Superintendent of Belchertown State School v. Saikewicz, 370 N.E.2d 417 (Mass. 1977). Vacco v. Quill, 521 U.S. 793 (1997). Washington v. Glucksberg, 521 U.S. 702 (1997). Webb, M. 1997: The Good Death: The New American Search to Reshape the End of Life. New York, NY: Bantam Books. Wennberg, R.N. 1989: Terminal Choices: Euthanasia, Suicide, and the Right to Die. Grand Rapids, MI: W.B. Eerdmans Publishing Company. Westchester Medical Center, 534 N.Y.S. 2d 886, 521 N.E.2d 607 (N.Y. 1988). Wicclair, M.R. 1993: Ethics and the Elderly. New York: Oxford University Press.

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PART

5

Family law and domestic relations

36 Role of the psychiatric evaluator in child custody disputes Stephen B. Billick and Steven J. Ciric

331

37 Termination of parental rights and adoption Shashi Elangovan and Stephen B. Billick

348

38 Childhood attachment, foster care and placement Lisa R. Fortuna and Stephen B. Billick

366

39 Forensic evaluation of physically and sexually abused children Rodrigo Pizarro and Stephen B. Billick

377

40 Juvenile delinquency Roy H. Lubit and Stephen B. Billick

389

41 Posttraumatic stress disorder in children and adolescents: clinical and legal issues James E. Rosenberg and Spencer Eth

396

42 Forensic aspects of suicide and homicide in children and adolescents Peter Ash, Richard J. Gersh and Stephen B. Billick

407

43 The child as a witness Robert Suddath

419

44 Violent adolescent offenders Roy J. O’Shaughnessy

441

45 Adolescent sexual offenders Meg S. Kaplan and Richard B. Krueger

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46 Neuroimaging in child and adolescent psychiatry Stephen B. Billick and Stephen P. Sullivan

463

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36 Role of the psychiatric evaluator in child custody disputes STEPHEN B. BILLICK AND STEVEN J. CIRIC

The role of the psychiatric evaluator in child custody cases continues to be challenging, as both the need for such evaluations remains high, and the decision-making process in determining custody is increasingly more complex. The demand for competent psychiatric evaluators in part has been driven by the rising divorce rate. Levy (1985a) cited an increase of 200 per cent in the divorce rate in the United States from 1960 to 1977. Amato and Keith (1991) stated that 40–50 per cent of children will experience the divorce of their parents. The American Academy of Child and Adolescent Psychiatry (1997) provided a more contemporary estimate, consistent with data from the National Center for Health Statistics (1997), that one in two marriages ends in divorce. This affects about one million children each year, and approximately 10 per cent of divorces involve custody litigation. In addition, the American family continues to change. Consider remarriages, co-habitation, single parent and alternative families, and issues such as reproductive technologies and DNA testing for paternity. This has contributed to the growing number and complexity of child custody disputes.

IMPACT OF DIVORCE ON CHILDREN The psychological impact of divorce on both children and parents can be far-reaching and may further contribute to the need for a psychiatric evaluator, who may be able to diminish future ill effects. The sequelae of the divorce process on children are dependent on many factors and are not automatically pathogenic. Most controlled research (e.g., a comparison non-divorced group, or controlling for degree of pre-divorce psychological problems) finds that children from divorced and married families differ little, and underscores the resilience of most children to ‘bounce back’ from the stress of divorce (Emery and Coiro 1995; Hetherington and Stanley-Hagan 1999). However, other

evidence possibly points to a greater risk for psychological problems among children of divorced families. For instance, Wallerstein, Lewis, and Blakeslee (2000) cited national studies which demonstrate that children from divorced families have more depression, learning and interpersonal problems, and utilize more mental health services into adulthood than their peers from intact families. Re-analyzing three decades of data from the New York Longitudinal Study of Chess et al. (1983), Shaw, Emery, and Tuer (1993) conducted a prospective examination of parental functioning and children’s adjustment before divorce, and found no consistent differences between children from to-be-divorced and always-married families. However, they did find that a consistent predictor of the children’s poor adjustment following divorce was parental conflict prior to divorce. They also found that boys showed more post-divorce behavioral difficulties than girls did, consistent with prior research (e.g., Zaslow 1988; Wallerstein 1991). They suggested that this might involve the boys’ loss of daily contact with the samegender parent, as the non-custodial parent is usually the father. Wallerstein (1991) suggested that the observed gender difference may involve a ‘sleeper effect’ for girls, who go on to experience interpersonal problems in young adulthood. Lahey et al. (1988) reported a significantly higher incidence of parental antisocial personality disorder in divorced families with boys who developed conduct disorder, giving rise to the consideration that a child’s post-divorce psychiatric problems might not be due to the divorce itself. Instead, there may be a genetic component to the dysfunction in some parents and their offspring that variously contributes to both the pre-divorce marital hardship and deficient parenting, as well as the postdivorce maladjustment in the child. This viewpoint has found support in subsequent research (Jocklin, McGue, and Lykken 1996). The adverse effects of divorce on children have been discussed extensively by Wallerstein and Kelly (1980) and

332 Family law and domestic relations

Wallerstein, Lewis, and Blakeslee (2000). In 1971, Wallerstein and her colleagues originally selected 131 children and their parents from sixty middle-class families in Marin County, California who were going through separation and divorce. The subjects were referred by their family law attorneys on the basis of their willingness to participate in the study (neither randomized nor controlled). The children had to be developmentally normal and free of psychiatric problems. Follow-up interviews and studies took place at eighteen months, five years, ten and finally twenty-five years post separation. They report that about half of the children have difficulties during the first year after divorce, and identify factors associated with prolonged post-divorce maladjustment. The most notable factors are high levels of parental discord, parental mental illness, poor pre-divorce parenting, and a custodial parent burdened by emotional, physical, social or economic stresses. Wallerstein and Kelly described that younger children may experience regression, neediness, increased aggression, low self-esteem, and a feeling of responsibility for their parents’ separation. Middle school-aged children may suffer a disrupted sense of identity, multiple somatic complaints, depression, anger, anxiety, or fear. They also may feel responsible for the divorce, or have fantasies of reconciliation. There may be conflicts of loyalty for one parent over the other. Teenage children of divorcing parents may have anxiety about the success of their own future relationships, and they may be disturbed by suddenly changed perceptions of their parents. They may also attempt to cope with the stress of the divorce through social withdrawal or through accelerated individuation and separation from their parents. Wallerstein, Lewis, and Blakeslee (2000) observed that the children from the divorced families in the California study, now adults, have experienced great difficulty and worry in seeking out partners of their own. They described that many of the children demonstrated an apparent resiliency in adjusting to the divorce, in some instances actually taking on increased responsibilities in attempting to care for their distressed parents. However, the adverse impact of the experience is seen over time, on identity and personality, so that by adulthood the ‘children of divorce’ have the most difficulties, with trust, relationships, and coping with change. In another study, further evidence suggests that when a divorce is associated with a move to a less stressful situation, children in divorced families are similar in adjustment to intact families with non-distressed marital relations (Hetherington 1999). Unfortunately, the psychiatric evaluator, in a custody dispute context, is more likely to see high-conflict families. The psychiatric evaluator can be of great help to both children and their parents by educating all involved about the types of stresses that may be experienced by the children. The evaluator should also address the effects of divorce on the separating parents. Parents often feel a sense of loss that can lead to

depression, anger, or a desire for revenge against the other parent. Levy (1985a) has noted that these feelings may play a role in a parent’s motivation for seeking custody. A psychiatric evaluator, who can help clarify these feelings and motives for parents, may have a profound effect on the decision of custody.

HISTORICAL PERSPECTIVE Changes in custody decision-making have been influenced by many factors, including evolving recognition of the rights of children and women, shifting legal emphasis toward individual rights and equal protection, and research in child development and attachment. Derdeyn (1976) wrote that in ancient times ‘the father had absolute control over his children and could will or condemn them to death with impunity.’ For many years in England and in the United States there was little question as to who would have custody of children, since children were considered to be chattels, the property of the father (Sadoff and Billick 1981; Solnit and Schetky 1986). The father assumed custody usually without involvement of the state. In many ways this was in the best interests of the child, since in those times the father was generally best able to provide for the children. Little concern was given, however, to the rights of children, for they had none.

The tender years Following the British Act of 1839 advanced by Thomas Noon Talfourd, the ‘tender years doctrine’ eventually became the primary standard for determining child custody (Kelly 1994). This doctrine is based on the presumption that there is a unique relationship between mothers and infants in their ‘tender,’ early years, that is presumed to foster optimal development of the infant. Sadoff and Billick (1981) have discussed how the ‘tender years doctrine’ introduced the psychiatrist and psychologist into the domestic relations court to present expert testimony regarding parent–child relationships, emotional needs of developing children, and predictions of outcome of various parent–child arrangements. The application of this doctrine led to the change of usual custody resolutions, and mothers gained custody in greater proportion to fathers. Also, the ‘tender years doctrine,’ which originally referred only to infants, was later expanded to include young children (e.g., less than seven years old), and even later to virtually all children. Kelly (1994) notes that by the 1920s, the maternal preference in custody determinations had replaced the earlier paternal preference. The widespread use of this doctrine by the courts in part was made possible by concurrent changes in views espoused by the women’s rights movement of the late nineteenth and early twentieth centuries. As women gained the rights to vote, own property, receive alimony and child support, and as they developed new educational and employment

Role of the psychiatric evaluator in child custody disputes 333

opportunities, they were much better able to assume custody of their children. The ‘tender years doctrine’ also found support in developing psychoanalytic theory, which emphasized the mother’s role as unique, and in earlier infant attachment theory (Kelly 1994).

The best interests of the child The ‘best interests of the child’ standard, which guides most custody decisions today, has grown with the increasing recognition of the rights of children and in the context of changing attitudes of the courts. In the landmark case of Painter v. Bannister (1966), the Iowa Supreme Court held in a custody dispute between a child’s father and maternal grandparents that ‘the primary consideration is the best interest of the child.’ The justices determined that the child, whose Iowa-born mother had died in a car accident, was to remain in the custody of his stable and midWestern grandparents rather than return to his remarried, California-born, and ‘Bohemian’ father. In Watts v. Watts (1973), a New York State Family Court held that maternal preferred custody statutes (embodiments of the ‘tender years doctrine’) violated fathers’ equal protection rights under the Fourteenth Amendment (Kelly 1994). The model Uniform Marriage and Divorce Act, proposed by the American Bar Association in 1970, further established the notion and language of the ‘best interests of the child’ standard that was subsequently adopted by most states. The Act also stated that a court should consider continuity in parenting, the quality of the parent– child relationships, the physical and emotional health of all parties involved, and a child’s wishes if he or she is deemed to be of sufficient age and capacity to form an intelligent preference. Ash and Guyer (1984) have discussed how the ‘best interests’ standard, by focusing more on psychological questions than previous standards, contributes to an increased use of psychiatric evaluators by the court. This focus on the child’s rights, and healthy development was consistent with changes already taking place in the areas of compulsory education, child labor laws, and child abuse protection laws in the twentieth century. The application of this standard was the focus of Goldstein, Freud, and Solnit’s Beyond the Best Interests of the Child (1979). They suggested the less sanguine language of a ‘least detrimental alternative’ as a more realistic standard that appreciates the inevitable harm to a child in any divorce. Other criticism of the ‘best interests’ standard is that it is too vague, and apt to be variably interpreted through the lens of judicial bias. Also, precisely because it theoretically allows for an equal opportunity for both parents to secure custody, it may foster acrimony and the adversarial quality of divorce litigation. Although concern has been raised that the standard may force women to trade off spousal and child support to secure custody, research has not demonstrated this disadvantage (Kelly 1994). The ‘best interests’ standard mandates that custody is granted to the party who is most capable, or least

obstructive, in providing for the ‘best interests’ of the child. This standard places the rights of the child above the rights of parents in custody determinations. Its main purpose is to ensure an optimal environment for the physical and psychological development of the child. The focus on the child’s needs should theoretically also eliminate judicial discrimination on the basis of a proposed custodian’s gender, sexual orientation, and physical or psychiatric disability (to the extent that these factors do not bear on the individual’s relationship to and ability to care for the child). Decisions are less formula-driven and are to be made on a case-by-case basis. They rely even more on psychological factors than previously, taking into account all of the child’s important relationships, the emotional stability of parents, and the child’s developmental needs. As a result, the ‘best interests’ standard allows judges more flexibility. The increased flexibility, however, comes with an increased judicial inclination to consider the psychological impact of custody decisions. Judges today are more likely than before to look to the psychiatric evaluator for information and guidance.

WHEN AND HOW PSYCHIATRY BECOMES INVOLVED IN CUSTODY DISPUTES Sources of requests for evaluations The psychiatric evaluator may be asked to give an opinion related to child custody at various points in the separation/divorce process. The evaluator may also be asked to give an opinion on related issues such as visitation, or the need for psychiatric treatment for either parent or child to help cope with the divorcing process. Sometimes an evaluator may be requested by parents to help with custody decisions before either party has taken any legal action. This is a clinical consultation that is to be distinguished from the legal process of mediation, a form of alternative dispute resolution (see below). According to Levy (1985a), parents who favor the consultation room over the courtroom may be more amenable to reaching a mutual agreement. The courts generally uphold these decisions when both parents are in agreement, rather than investigate further. This supports the legal precedent to protect parental autonomy in child rearing (consider Parham v. J.R. 1979), as opposed to the power of the state to impose its will on the family. According to Despert (1953), courts in general have acquiesced to parental agreement: the parents consent and the state assents. At other times, only one parent in a custody dispute may request a psychiatric evaluator at the recommendation of his or her attorney. Under these conditions, it is always advisable that the evaluator request to interview both parties involved. One should be aware, however, that the other parent might be uncooperative out of fear that the psychiatrist is biased and on the side of the spouse who

334 Family law and domestic relations

first requested the evaluator. The other parent may obtain his or her own psychiatrist to conduct a separate evaluation. The evaluator should be aware of pressures from the requesting party and her/his attorney for a favorable decision. Under these circumstances, the attorney may choose not to use an evaluation in court that does not favor the requesting parent. The opposing attorney, however, may subpoena the psychiatric evalu-ator to present the results of that evaluation in court. When this happens, it is advisable that the evaluator first requests a court order to testify before risking any breach of confidentiality with the original, requesting party. Residency training in child and adolescent psychiatry teaches the child psychiatrist to be ‘child-centered and child-oriented’ rather than parentally driven. The child psychiatrist is uniquely trained and functions in the ‘best interests of the child’ in nearly all of the clinical settings, not just in child custody evaluations. Psychiatrists without specialty training may have difficulty resisting parental or attorney influence. Judges, like attorneys, have been trained in the adversarial system and are client-oriented. It is more difficult for them to adjust to the non-client model where the child is not their client, but the parent is. This is particularly true when so-called child advocates do not take an active role. When the court orders a psychiatric evaluation, or when two opposing attorneys agree to an evaluation by one psychiatrist, the evaluator is faced with new advantages and disadvantages. One of the most consistent disadvantages is that these cases are usually the most difficult, as the parents may be less amenable to a mutual decision than when one or both parents request a psychiatric evaluation on their own. One advantage, however, is that it is easier to maintain parental neutrality when representing the court and not one attorney or the other (see Figure 36.1). In this way one is less pressured by attorneys and the adversarial system of court law and more easily represents the ‘best interests of the child.’ Yet another way that a psychiatric evaluator may become involved in child custody decision making is when he or she is asked by a guardian ad litem, an attorney appointed by the court to represent the child and not one parent or the other. In custody cases the judge often believes that he/she represents the ‘best interests of the child,’ but since he or she only hears from parental attorneys in most instances, he/she might pay more actual

attention to parental concerns. An active guardian ad litem who requests a psychiatric evaluation is in the best position to utilize the psychiatrist’s recommendations in court to truly ensure a decision that is in the child’s ‘best interests.’ There is some evidence that the role of the mental health evaluator is indeed influential. Ash and Guyer (1984, 1986) found a high rate of concordance between the judge’s decision and the psychiatric evaluator’s recommendation for custody: 85–92 per cent for custody, and 89–93 per cent for visitation. An analysis by Kunin, Ebbesen, and Konecni (1992) of 282 court records of disputed child custody cases revealed only two factors that statistically predicted judicial decision: the recommendation of a family courtappointed counselor in the majority of cases, followed by the child’s preference in cases without a recommendation. The evaluator’s role of child advocate is best maintained under these circumstances that take advantage of a guardian ad litem (see Figure 36.2). One of the most difficult situations an evaluator may face is when he or she is asked by a child-care agency to provide a psychiatric evaluation in a custody case. The American Psychiatric Association (1982) task force report on Child Custody Consultation discusses the special problems these cases may pose for the evaluator. Such evaluations are usually court-ordered and often involve accusations of abuse or neglect. Foster parents, as well as natural parents, may be interested in custody. In addition to the usual post-divorce issues, these cases may involve the decision to terminate parental rights or allow for

Judge

Father

Father

Psychiatrist

Children

Figure 36.2 Preferred situation

CourtAppointed Psychiatrist

Mother's Attorney

Father's Attorney

Children

Figure 36.1 Traditional view

Mother's Attorney

Guardian ad Litem

Judge

Psychiatrist

Father's Attorney

Mother

Psychiatrist

Mother

Role of the psychiatric evaluator in child custody disputes 335

adoption of the child by a foster parent or other involved adult, which can further complicate the evaluation.

Mediation Psychiatric evaluators also may be asked to assist with divorce mediation procedures. The psychiatrist often has the same advantages discussed earlier, when he or she is asked by both parents to carry out an evaluation before they have taken legal action. Mediation is a legal process, however, and usually involves one attorney and one psychiatric evaluator. Both are expected to be impartial to the needs of the parents and do not advocate for one parent over the other. The psychiatrist, of course, maintains the position of child advocate. Ruman and Lamm (1985) have described mediation as an alternative forum for parents where all parties are expected to work together to reach a mutual resolution of the legal and emotional issues of divorce, in lieu of the traditional adversarial approach. They also discuss how in recent years mediation has become increasingly utilized and encouraged by the legal community. They cite a California ruling (California Code of Civil Procedure 1984) mandating that all divorces involving custody conflicts first attempt to resolve custody decisions through mediation before going to hearing. As an alternative to litigation, mediation can decrease the burden on the judicial system. Some researchers also feel that mediation is more sensitive to the emotional needs of parents and child than is the adversarial trial. Dillon and Emery (1996) surveyed parents nine years after random assignment to mediation or litigation. The mediated families saw increased visitation, interparental communication, and non-custodial parent involvement. Emery, Matthews, and Kitzmann (1994) followed families for one year after random assignment to mediation or litigation. They found that fathers were more satisfied with mediation, but mothers more satisfied with litigation. Fathers who mediated were more likely to cooperate with child support payments. The authors speculate that men are more likely to use custody litigation as a means to contest an unwanted divorce. The authors also note that over 90 per cent of the litigated custody cases ended in an award of sole maternal custody. This finding, along with the fact that the study was conducted in a jurisdiction without a statutory preference in favor of joint physical custody, might account for why the mothers were more satisfied with litigation. Also, not all mediation programs mediate financial issues of spousal and child support. Another criticism of mediation is that the process is not bound by the ‘best interests’ standard and may therefore be more sensitive and responsive to the parents’ wishes than the needs of the child.

Visitation In addition to making recommendations for custody decisions in court or in mediation procedures, the psychiatric

evaluator also is often asked to make recommendations regarding visitation. When joint custody is not possible, visitation becomes especially important as a means of ensuring that a child has appropriate access to both parents. Visitation can help minimize the child’s sense of loss that comes from divorce and can encourage the natural affectionate bonds of children with both parents. When visitation decisions are complicated by accusations of abuse or neglect, the evaluator has the additional responsibility of assessing the validity of the accusations and the extent of the abuse (discussed later in this chapter). The evaluator may need to consider restriction or denial of visitation when doing so would be in the child’s best interests.

CONDUCTING THE PSYCHIATRIC EVALUATION Training In order to conduct a thorough and competent psychiatric evaluation in child custody disputes, one must first have had adequate training in this specialized area of psychiatry. This training may begin in the general psychiatry residency, where increased exposure to child psychiatry, forensic psychiatry, and family court would be very helpful. Child psychiatry residencies also should devote sufficient time toward training in this area. Though the child psychiatrist is usually the best equipped to conduct the psychiatric evaluation, adequately trained general psychiatrists or forensic and other pertinent subspecialty trained psychiatrists can also do these evaluations. In areas where child psychiatrists are in short supply, this may be essential. In addition to training in residency and fellowship programs, the American Psychiatric Association (APA 1982) has also recommended that future evaluators first sit in on several child custody trials to observe the process thoroughly before beginning one’s own evaluations. The APA (1982) has also recommended that the general psychiatrist consult with a child psychiatrist, when available, to help with the evaluation. The psychiatrist should have knowledge of basic family law, including statutes and court cases in the jurisdiction of the evaluation, and learn if there are any relevant legal standards that may apply in that jurisdiction (e.g., presumption in favor of joint custody) (AACAP 1997). If provided with adequate training, any psychiatrist doing a competent and thorough psychiatric child custody evaluation, regardless of the source of payment, should arrive basically at the same final decision.

Role as evaluator Solnit and Schetky (1986) have described how the psychiatrist must always remember to maintain his or her role as the advocate for the child’s best interests and not slip into the role as therapist for a given party. The evaluator needs to maintain parental neutrality and should be

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aware of pressures by parents to attend to issues of fairness to adults over the best interests of the child. The evaluator should tell both parents and children that he or she is only concerned with what is in the best interests of the child. When acting as child advocate, the evaluator also should remember that he or she does not necessarily support what the child wants, but what the child needs. In this sense, the psychiatrist maintains an objective stance as forensic evaluator, and applies the examination data to the appropriate legal standard (i.e., what is in the best interests of the child). It should be clear that the evaluator makes clinical recommendations based on psychiatric training, not legal decisions of custody, which are always made ultimately by the court. Finally, as child advocate, the evaluator also must try to conduct as prompt an evaluation as possible, as an unnecessarily protracted evaluation can bring further stress on the child. AACAP (1997) estimated that it might take one to three months to complete an evaluation and report, although other delays may exist before the case actually presents before a judge.

The interviews A large part of the psychiatric evaluation in child custody cases consists of a series of interviews, where one takes careful parental histories and the child’s history, gathering as much information from these primary sources as possible. Before beginning the interviews, the evaluator may obtain a signed waiver of confidentiality from all parties to be interviewed. This waiver, which further distinguishes this work from the psychiatrist’s other work of therapy, may be necessary since the evaluator may be making disclosures to opposing attorneys. Disclosure in court before the judge also may be required. Usually, the interviews that need to be conducted include an interview of each parent individually, each child alone, and the child with each parent individually. The interviews also often include the parents together without the child, the child together with both parents, or the child with his or her siblings. Conducting so many interviews can be time consuming, and the use of a team approach has been advocated (Ash and Guyer 1984; Weiner, Simons, and Cavanaugh 1985). This is not always possible, however, and many psychiatrists do successfully conduct the evaluation alone.

The examination According to the American Psychiatric Association (1982), there are three major questions that should be addressed during the course of the evaluation: 1 What is the quality of the reciprocal attachment between parent and child? 2 What are the child’s needs and the adults’ parenting capacities? 3 What are the relevant family dynamics at play?

Levy (1985a) added a fourth primary question to be addressed, which is, ‘What is the child’s preference, if any, for custody?’ These questions can be answered during the interview process, as well as with supplemental information from other sources. When assessing the quality of the reciprocal attachment between parent and child, the evaluator first must inquire about the extent of involvement each adult has with the child. One can also obtain valuable information from direct observation of the interactions of parent with child. It is important to establish who has the major role of ‘psychological parent’ for the child; that is, whom the child considers to be his or her parent, protector, or provider (Goldstein, Freud, and Solnit 1979; APA 1982). This person may or may not be the genetic parent. Indeed, current research in attachment theory suggests that a child’s early ties to a primary caregiver who is not the originating genetic parent result in a superior biological bond between that caregiver and child dyad (see discussion in Chapter 38). Also, the role of the ‘psychological parent’ is usually shared by more than one person. For example, this might be both genetic parents or one genetic parent and another adult, such as a step-parent or grandparent. The evaluator may use projective tests, such as drawings, or pose hypothetical questions to the child, to help determine whom the child relies on most and in what circumstances. One may also ask the child directly if he or she has a preference for custody, though one should do so with great sensitivity. The reliability of the child’s answer is age-related. A younger child may express the preference of a parent that he/she is afraid of alienating, rather than express his/her own preference. Adolescent children are more capable of expressing their true desire for custody arrangements, but they too may fear answering and thereby alienating or hurting the feelings of the parent not chosen. AACAP (1997) wrote that judges may give more weight to a stated preference when the child is 12 years of age or older, and that some states actually require the evaluator to ask about a child’s preference. Billick (1986) indicates that the average 12-year-old has achieved the Piagetian stage of concrete operations and Kohlberg’s stage of conventional morality, levels of functioning compatible with the overwhelming majority of adults in even a literate society. He suggests that juveniles between the ages of 11 and 14 years should be accorded greater latitude in formulating decisions. If asking a child for his or her custody preference, the evaluator may allay some of the child’s anxiety by reminding him/her that the court – not the child – will make the final custody decision. One may also choose not to ask the children directly what their preference is for custody, and instead infer this preference through observations of the children. When assessing the child’s needs and the involved adults’ parenting capacities, one should be concerned particularly with the developmental needs of the child and the parents’ capacity to promote the healthy development

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of the child. Children of various ages and developmental levels have different needs, which one or another parent may be better able to satisfy. One also should assess the parents’ understanding of these developmental needs. During the interview with child and parent, one can assess the parent’s ability to set limits, provide support and nurturing, and allow appropriate separation and individuation. One can assign specific tasks and observe how parent and child work together on these tasks. Often each parent will have a different set of strengths and weaknesses, and there is no clear-cut distinction as to who has the better parenting skills and can best meet the needs of the child. When joint custody is not possible, the evaluator may be forced to make a value judgment as to which parent provides for the most important needs of the child. One must be careful to focus only on what is relevant to the child’s development and avoid being swayed by irrelevant biases from attorneys or from within oneself. Avoiding such biases may be of particular importance when a non-genetic, mentally ill, or homosexual parent is involved. When assessing the family, the psychiatrist also must analyze the family dynamics at play. These dynamics may influence parental motives for seeking custody. Parents may not always be aware of the source of their motives; for example, anger toward the other parent, depression, or a desire for revenge. The evaluator can help parents to separate marital conflicts and divorcing issues from parenting issues. The evaluator can also help the adults to subjugate parental feelings and needs to the superiority of the child’s needs. The evaluator should also assess the potential custodial parent’s ability to promote the relationship of the child with the non-custodial parent, which would favor a positive post-divorce outcome for the child. Knowledge of the personal and family history of the parents is often helpful in fully assessing family dynamics. Finally, the evaluator should be aware of the child’s potential involvement in family dynamics. A child’s wish for the reunion of the parents may lead to manipulation of the parents by the child, influencing the behavior and desire for custody by the parents. In addition to the above considerations, the American Academy of Child and Adolescent Psychiatry (AACAP) approved their ‘Practice Parameters for Child Custody Evaluations’ (1997). According to the parameters, the evaluator should examine for the presence of parental alienation (i.e., where the child has notable negative feelings toward one parent), the sensitivity of each parent to the gender role-model needs of the child, each parent’s parenting and disciplinary styles, and each parent’s handling of conflict resolution. The evaluator should consider each parent’s work schedule and strategy for day care, and each parent’s educational plans for the child. Other areas of inquiry include sibling relationships, each parent’s physical and psychiatric health, finances, social supports and relatives in each household, and differences in cultural, religious and individual beliefs and values between each parent. It also recommends obtaining a history of the

marriage and separation, each parent’s own social and marital history, and family of origin history. How each parent was raised, his or her childhood experiences of divorce, and how those experiences possibly impact the parent’s perception of the relationship with his or her own children may be important. The evaluator should explore any allegations parents make against each other, but also note whether a parent spends most of the session attacking the other parent at the expense of focusing on the child.

Collateral sources of information When conducting the psychiatric evaluation, one may also use a variety of other sources of information, in addition to the previously described interviews. Home visits, where the evaluator can observe the behavior of child and parents in a naturalistic setting, can be very informative. This behavior can differ strikingly from that in the formal office interview setting. The evaluator should also not forget that both attorneys involved in the custody battle might have useful information. Other secondary sources of information include teachers, grandparents, pediatricians, or other mental health professionals working with the child or with the parents. The evaluator, however, should maintain a clear distinction between information from secondary sources and information that is gained from direct observation, as the courts usually place more confidence in primary sources of clinical data.

Confidentiality issues Malmquist (1994) examined the question of how the courts regard the issue of confidentiality in custody disputes where one or both parents (or the child) have been, or are presently, in psychiatric treatment. The answers are myriad and diverse, depending on the jurisdiction. For example, in some jurisdictions, simply entering into a custody dispute essentially puts a party’s mental health at issue and automatically waives privilege. In other instances, the court remains guided by the best interests of the child standard and looks to a guardian ad litem or independent psychiatric expert to assess whether particular treatment records contain material potentially harmful to the child. Still other courts guided by precedent or state statute have chosen to not interfere at all with doctor–patient privilege, to waive that privilege only in cases where there is an allegation of parental unfitness, or to rely on an independent psychiatric examination without delving into private treatment records. In the often-cited case of In re Lifschutz (1970), Malmquist noted that the California Supreme Court held that ‘the psychotherapist could be held to answer questions directly relevant to the subject of the suit (emphasis added).’ If courts move in the direction of automatic waivers, Malmquist wondered if clinicians will be expected to provide informed consent in the form of a quasi-Miranda type of warning before engaging in

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treatment with patients who are, or may become, parents. Malmquist recommended a compromise: in cases where the parties cannot agree on an independent psychiatric evaluator, the disclosure of private treatment records should be limited to instances where not only an allegation of parental unfitness is made, but where the records sought bear directly on such parental competency standards rather than on the best interests of the child standard. The Court of Appeals of Maryland, in the case of Laznovsky v. Laznovsky (2000), upheld a parent’s right to assert doctor–patient privilege in a child custody dispute (Caracansi and Billick 2000). The opinion stated that maintaining this privilege serves public policy by protecting the psychotherapeutic process and respecting a constitutional right of privacy. However, the court left open the possibility for family court judges to make exceptions. The ruling essentially reads that a parent who claims fitness does not automatically waive their doctor–patient privilege ‘without more.’ The language ‘without more’ is not clearly defined in the written opinion, and guidance is not provided as to what standard a court should follow when considering waiver of privilege (e.g., best interests of the child, parental competency, etc.). However, the Laznovsky opinion mentions the usual exceptions to doctor–patient privilege, including the circumstance where a parent voluntarily waives it. Also, the court recognized that in disputes where only one parent waives privilege, the other parent might be at a disadvantage, but indicated that a trial court can order a current, independent evaluation.

Children in therapy When the evaluator finds that the children in the divorcing family are already in therapy, this is a wonderful source of additional material to be utilized and understood. If the therapist is adept, he or she may be willing and able to testify, if needed, on behalf of the child’s best interests. Many therapists, child psychiatrists included, are not comfortable with this, and they should not be forced to testify unless essential. Sometimes one of the divorcing parents may see the therapist as supporting the other parent. The disheartened parent may try to sabotage or discontinue the child’s therapy. Every attempt should be made to avoid the disruption in the child’s psychological support system, including obtaining judicial intervention safeguarding the therapeutic continuation.

Psychological testing The psychiatrist may wish to consult with a psychologist who is experienced and capable in testing procedures in child custody disputes. AACAP (1997) suggested that psychological testing might be most useful when the psychiatric health of a parent or child is a legitimate issue. The MMPI-2 is considered the most commonly used

assessment instrument in the evaluation of child custody litigants (Ackerman and Ackerman 1997; Strong et al. 1999). Medoff (1999) cautioned that while a body of research on the MMPI-2 in this population has shown a pattern of elevations on validity scales L and K, additional studies do not necessarily support the traditional view that such elevations are to be interpreted as normal in the context of child custody examinations. He pointed out that the well-established elevations on these validity scales do not generally reach clinical significance (i.e., a T score of 65 or greater). Therefore, it may be appropriate to attribute clinically significant scores on scales L and K to empir-ically associated personality characteristics (e.g., neurotic defensiveness, an unrealistic self-image, and an excessive reliance upon denial). Although it may be common sense that parents want to present themselves in the best possible light when faced with custody matters, this expectation should not necessarily explain away meaningful test findings that can alert the clinician to possible underlying psychopathology. Consistent with normative data for the MMPI-2 in child custody litigation (e.g., Bathurst, Gottfried, and Gottfried 1997), a study by Strong et al. (1999) on 412 child custody litigants showed a mean test profile that was within normal limits. Only 26 per cent of their sample produced a T score greater than or equal to 65 on any clinical scale. The authors describe a method of data analysis with the MMPI-2 that may help distinguish between deliberate attempts to create a positive social image (Impression Management) and the unintentional concealment of symptoms and areas of maladjustment (Self-Deceptive Positivity). This might assist the psychologist in discerning whether elevations on various underreporting and validity scales represent a situation-specific (and perhaps understandable) desire of the custody litigant to put his or her best foot forward, or an intrinsic and enduring feature of his or her personality. The psychiatric evaluator should be able to critically examine any interpretations arising from psychological testing, and be aware of the limitations of such procedures. Testing data should be used as an adjunct to the comprehensive clin-ical and forensic evaluation, and not be relied upon in a rote fashion when offering opinions about parental fitness and child custody.

Referrals for treatment As part of the psychiatric evaluation in child custody cases, one is also usually obliged to assess the need for psychiatric treatment for any of the parties involved. This is to help assure a favorable adjustment by the child after the divorce is complete. One may wish to refer the child or parents to other therapists, rather than perform ongoing treatment oneself, since it may be difficult to change roles from evaluator to therapist. When recommending further treatment, one must be realistic as to available treatments and approaches, especially if such treatment is considered a requirement for custody or visitation rights. Unrealistic

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expectations that interfere with the parent–child relationship will be detrimental to the child.

MAKING RECOMMENDATIONS The report Usually, the psychiatric evaluator is requested to organize his or her findings and recommendations for custody in a written report. The APA guidelines (1982) recommended that it is always important to remember when writing this report, however, that the content is not confidential and may be used as evidence in court. Early in the report it is recommended that the basic circumstances in which the evaluation has been conducted be mentioned. This would include the means of referral, a description of the interviews and other clinical procedures, as well as any use of secondary sources of information. The focus of the body of the report should be to answer clearly the basic questions addressed in the custody case. As discussed previously, this would be a description of the reciprocal attachment between parent and child, a description of the child’s needs and the adults’ parenting capacities, and a description of the relevant family dynamics. After this description of the findings, the evaluator should clearly state a recommendation for custody and the evidence in the report should decidedly support this recommendation. In those cases where the evaluator finds it impossible to make a firm recommendation, he or she should state this and perhaps explore the advantages and disadvantages of different decisions. When an evaluator cannot make a firm recommendation, however, the report is less useful to the court, and one should try to avoid this situation. An account of the history of any prior custody of the child, when relevant, should be included. When writing the report it is important that it be free of professional jargon and theoretical discourse, which may be irrelevant and confusing to the court. One may need to discuss particular psychiatric diagnoses, however, when they apply to an involved party in the custody battle. Either the relevance or the irrelevance of such diagnoses to the development of the child should be explained. The report should rely on objective and descriptive data from direct observation of parents and child, and direct quotes from either are often useful. It is also important to state the child’s preference, when a preference exists, and explore the reliability of this preference.

Custody recommendation When formulating an opinion on custody, it is recommended that joint custody be the first considered disposition. Several authors (Galper 1978; Ilfeld, Ilfeld, and Alexander 1982; Luepnitz 1982; Ware 1982) have written about the added benefits that joint custody may provide. Wallerstein and Kelly (1980) have emphasized the

importance of a continuing relationship with both parents in helping children recover from post-divorce trauma. They also have written that children cope better with the stress of divorce when there is less anger and conflict between parents after divorce. Thus, when both parents are able to negotiate joint custody, this in many ways is in the best interest of the child. Parents must be agreeable and capable of such negotiation, however. It is debatable whether one can legislate this level of cooperation onto unwilling parents and expect joint custody always to be effective. One can emphasize to parents during the evaluation process that they may divorce legally, but in reality they may be brought together again and again in the future through their children. They may see one another and have to deal with one another at birthdays, graduations, confirmations, bar mitzvahs, or later, similar events with grandchildren. Cooperation from the start with joint custody may be beneficial for all. Joint custody may not be in the best interest of the child, however, when one parent significantly undermines the authority of the other parent, or the child’s relationship with the other parent. The most common alternative to joint custody is single custody by one parent with visitation rights for the other parent. The custodial parent should have the capacity to help the child continue a positive relationship with the non-custodial parent. The evaluator usually considers the best fit between parent and child, but sometimes may be forced to choose the least harmful fit. When custody disputes are between a genetic parent and a non-genetic parental figure, legal precedent has dictated that the genetic parent has the right to custody unless proven unfit. Often the term ‘biological’ is used to support the genetic parent. Research is demonstrating that attachment behavior is also ‘biological,’ leaving the question to chose between two biological parents. The ‘best interests’ standard allows for questioning of this precedent for genetics, and the evaluator may wish to take advantage of this flexibility when it would benefit the child. Custody decisions can become more complicated in disputes between the state and a parent where allegations of abuse or neglect exist. In these cases, the potential conflict between parents’ rights and the state’s responsibility to protect the child may arise. The APA (1982) has cautioned evaluators involved in such cases to remember a number of special problems that may arise. When relatively easy entry into the foster-care system for these children is coupled with the difficulty of terminating parental rights, children may be caught in limbo between the two. In these cases there may be strong impetus for the focus of the trial to be on parental rights. The psychiatric evaluator thus has the greater challenge of directing the focus of custody decision onto the child and his or her rights and needs.

Potential pitfalls When making recommendations, the evaluator should be aware of potential pitfalls that can be avoided. Evaluators

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need to remember that parents’ characters, behaviors, and life-styles are theoretically relevant only insofar as they affect the child. The evaluator may need to be consciously aware of avoiding influences of his or her own personal biases. Also, the evaluator may be faced with the results of an adversarial system that has brought out the worst in parents, for example, encouraged the parents to use the children as a bargaining chip against a house, car, bank accounts, and so forth. In order to achieve the best post-divorce outcome for the child, the evaluator needs to help parents put aside marital conflicts so that they may comply with the recommendations. The evaluator needs to choose the best or least disadvantageous custody option existing at the time of the evaluation, rather than focus on future possibilities. It may not be possible to predict the needs of the child in the future, or the parents’ future capacities to meet these needs. In order to get the best choice for the child, the evaluator should also try to be clinically flexible when regarding alternative living arrangements for custody, for example, with a single parent, gay parent, or father versus mother. Lastly, it is possible in certain cases to make custody recommendations after having interviewed only one parent, though this is not ideal. This situation may arise when one parent refuses to be interviewed. A recommendation can be made if one can assume that the other parent is normal, and there is still compelling reason to recommend sole custody to the parent interviewed based on positive evidence from the child and the evaluation. It is also possible sometimes to infer aspects of the non-participating parent from the children’s descriptions. Particularly with older children, they may be reliable reporters of pathology or destructive parenting in the nonparticipating parent. The American Academy of Psychiatry and the Law (AAPL) has established Ethics Guidelines For the Practice of Forensic Psychiatry (1987, rev. 1995). AAPL recognized that the role of an expert witness, the child custody evaluator, may include making expert opinions from collateral sources alone, requiring of course clear documentation of this aspect.

the different functions of the psychiatric evaluation in child custody cases, have shown that the most frequent use of the evaluation was as a bargaining chip. They report in their sample that in 71 per cent of the cases, after hearing the evaluator’s recommendation, the parties either stopped litigation or negotiated an agreement, using the evaluator’s report as a bargaining beginning point. For example, the party for whom custody is not recommended may concede to this decision in exchange for a concession by the other party in a different area of dispute. During the interpretative interview, the evaluator can help the parents understand the reasons for the recommendation and may help them come to a negotiated agreement on custody. Actual litigation would thus be avoided.

Testifying in court Once the evaluation is complete and the involved parties have been informed of the recommendation for custody, the evaluator may need to prepare to testify in court. This is not necessary in most cases. Ash and Guyer (1984, 1986) found evaluators were asked to testify in court in only 4–5 per cent of the cases. When the evaluator is called to testify in court, he or she should prepare for this by first discussing the recommendation and how it will be presented in court with the guardian ad litem or attorneys. One must prepare for the pressures of cross-examination, avoid being swayed by extraneous information, and attempt to testify only on what is relevant to the child’s best interests. The best preparation for court is to have a firm recommendation and evidence that clearly supports that recommendation. Lawyers are trained and educated to manipulate, distort, confuse, and obfuscate on crossexamination. The psychiatrist needs to clarify, document, and be logical.

SPECIAL ISSUES IN CHILD CUSTODY DISPUTES Joint custody and father custody

Informing the parties involved After making a recommendation and completing the written report, the evaluator must next inform the involved parties. It may be helpful for an evaluator, who has had access to examine both litigants and reached a conclusion, to meet with each parent separately to explain his or her reasoning for the opinion. This may help to diffuse parental disappointment or anger. This can be accomplished in an interpretative interview with the parents where the evaluator reviews the recommendation for custody and the reasons behind the recommendation. The evaluator may also include the involved attorneys in this interview or discuss the recommendations separately with the attorneys. The evaluator should also explain the recommendation to the child. Ash and Guyer (1986), who have studied

Levy (1985b) has advocated that fathers and mothers be considered equally for custody, and has questioned whether sexism exists in child custody decision making. Ploscowe, Foster, and Freed (1973) have estimated that the mother gains sole custody in 80 per cent of cases, the father in 10 per cent, and that joint custody occurs in 10 per cent of cases. Ash and Guyer (1984) have reported recommending custody to mothers in 50 per cent of cases, to fathers in 31 per cent, joint custody in 15 per cent, and to others in 4 per cent. However, they cited in a random sample of cases from the local jurisdiction that father custody is granted in only 5 per cent of cases. Meyer and Garasky (1993) suggested that the figure for father custody might be closer to 15 per cent based on survey and census data. Kelly (1994) reviewed that there

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has been a trend towards joint legal custody, and that the most common arrangement in the United States is joint legal with sole maternal physical custody. In other words, both parents retain rights and powers to make decisions regarding the child’s health, education, and welfare, but only one parent has residential custody of the child, usually with visitation by the other parent. In the atmosphere of equal rights protections in the 1970s and 1980s, the provision of joint physical custody (i.e., where the child resides with each parent for a portion of the year, or even in alternating years) became an increasingly popular family court disposition. This shift also sprang from child development research into the importance of children’s attachment to their fathers. In 1979, California (which followed the nation’s first ‘no-fault’ divorce law in 1970) enacted the first joint custody statute, to be followed by over 40 states by 1991 (Kelly 1994). Some state laws actually specify a presumption for joint custody, not simply that it be considered (Derdeyn and Scott 1984). Joint custody has been regarded as a means to reduce the negative impact of divorce on the child, by maintaining the child’s contact with both parents. However, AACAP (1997) noted that for this arrangement to be successful, it likely requires parents who are psychologically healthy and cooperative. Kelly (1994) noted that some feminist groups have responded to the emphasis on joint custody by advancing the concept of a primary caretaker standard. The primary caretaker is usually the mother, who spends the most time managing the daily needs of the child. This bears similarity to the ‘tender years doctrine.’ Kelly wrote that a primary caretaker standard, however, ignores the quality of the parent–child relationship and emotional attachment, in favor of counting childcare hours and concrete behaviors. Although it is still not usual, granting sole custody to a father has become less uncommon in recent years. There are factors that have made paternal custody more likely. One of these factors is the gender-neutral ‘best interests of the child’ standard. Also, the changing social roles of men and women have distributed parenting roles more equally between the sexes. Many fathers now spend more time as child caretaker at home, and many mothers are now working out of the home as much as fathers are. Also, due to much recent research in the area, it is now known about the importance of both the father and the mother in child development. Lamb (1997) and Fitzgerald and McCread (1981) have discussed evidence that shows infants are strongly attached to both mother and father by the second half of the first year of life. Levy (1985b) also cited multiple other studies that describe the importance of the father throughout a child’s development. A recent APA resource document on child custody issues indicates that the literature provides some evidence that boys tend to do better in father custody and girls in mother custody, all other factors being equal (Binder 1998). When conducting a psychiatric evaluation for child custody, it is important to use the same criteria to evaluate

men and women when assessing parenting capacities. One should recommend custody to a single male if it is clinically indicated, rather than be moved by a sexist bias to recommend something that would not be in the child’s best interests. Individual’s parenting capacities vary, whether they are male or female, and a good clinical evaluation will recommend custody to the person who can best meet the child’s needs.

Gay and lesbian parents It is estimated that between 6 and 14 million children have at least one gay or lesbian parent (Binder 1998). In the past, when gay men and lesbian women were involved in child custody cases, they were generally denied custody based solely on their sexual orientation. In recent decades there have been slow changes in the way society views homosexuals, as well as changes in how psychiatry views gays and lesbians. In 1973, the APA trustees voted to eliminate homosexuality per se as a mental disorder and, after extensive scientific debate, the members of the APA upheld this decision by referendum (APA 1974). Since DSM-III-R (APA 1987), homosexuality has no longer been classified as a psychiatric disorder of any kind. Despite these changes, unfortunately, sexual orientation is still a confounding issue in child custody cases today, and some attorneys may contest custody decisions based solely on this issue. Hutchens and Kirkpatrick (1985) discuss three stereotypes that have led courts to hesitate to grant child custody to gay parents. The first stereotype is that gays are psychologically or sexually maladjusted and not mentally fit to raise children. The second is that children raised by gay men or lesbians will grown up to be gay or have gender identity problems. The third stereotype is that children raised by a gay parent will be stigmatized by the custodial parent’s sexual orientation. The authors, however, cited numerous psychiatric and psychological studies that scientifically refute all three of these stereotypes, demonstrating that being raised by a gay parent does not compromise child development. These studies confirm that gays’ and lesbians’ psychological functioning and parenting skills are not inferior to those of heterosexuals. Freedman (1971) has proposed that gay men and women may actually have better autonomous ego functioning because they were forced to be more independentminded when growing up. The 1998 APA resource document prepared by the Subcommittee on Child Custody Issues further reviewed the relevant literature (Binder 1998). The evidence presented is that there are no significant differences in parenting between divorced lesbian and heterosexual mothers, and that there are no identifiable differences in the emotional and intellectual development and peer relationships between their children. Also, children of lesbian and gay parents show no statistical increase in the incidence of homosexuality, and there have been no

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reported cases of pedophilia committed by gay parents or their partners on their children (dispelling a prejudicial fear expressed by some courts). Because of these and other findings, Hutchens and Kirkpatrick (1985), as well as others (Sadoff and Billick 1981; Herman 1990b), encouraged psychiatrists to evaluate gay and lesbian parents the same as any other parent. One must evaluate the child–parent relationship, the child’s needs, and the parent’s ability to meet these needs, without being biased by unfounded stereotypes. The evaluator should confront these stereotypes when necessary and educate the court about such stereotypes. The evaluator should clearly state the relevance or irrelevance of a parent’s sexual orientation as it applies to the child. In this way one can best ensure that a child custody decision is based on what is in the child’s best interests and is not based on prejudice.

The mentally ill parent When evaluating parents who carry a psychiatric diagnosis, one should be aware that such a diagnosis does not automatically mean incompetence as a custodial parent. There are millions of psychiatric admissions for inpatient treatment every year in the United States. These patients do not have their parental rights abrogated routinely solely by virtue of having a serious mental illness. Herman (1990b) cited examples of psychotic parents who are either capable or incapable custodians. One first evaluates these parents as one would other parents, assessing their capacity to meet the best interests of the child. In addition, one needs to evaluate the parent’s psychiatric condition, for example, insight, adequacy of treatment, and compliance with treatment. Also, it may be necessary to evaluate if the decision for divorce is a product of a psychiatric illness, for example, psychosis or a psychotic depression. In one case example that one of the present authors (S.B.B.) encountered, a mother sought divorce during the course of a psychotic depression. The father, who did not have a psychiatric illness, opposed the divorce. During the course of the custody evaluation, the 14-year-old son told his mother’s lawyer that in a divorce he would prefer custody with the father, but that instead he felt the mother should be hospitalized rather than be divorced. She was hospitalized and had successful inpatient psychiatric treatment. No divorce occurred, and the family remained intact. Herman (1990b) also noted that both true and false allegations of psychiatric illness, for example, alcoholism or depression, are common in child custody disputes. The evaluator always needs to verify these diagnoses for oneself and not take diagnoses from others a priori. One also should be aware of personality disordered parents, or even delusional parents, whose motives for custody may be influenced by their pathology, rather than the best interests of their child.

Grandparents and other third parties Schowalter (2000) observed that there is probably more interaction between grandparents and their grandchildren in our current society than ever before. Contributing to this are increased longevity, air travel, and grandparents assuming a surrogate parenting role as some mothers continue their careers, and as other mothers remain incapable of assuming care for their children, by virtue of AIDS, substance abuse, or being practically children themselves. The U.S. Bureau of the Census (1997) documented that 13.5 per cent of African-American children, 6.5 per cent of Latino, and 4.1 per cent of white children are in the care of relatives. As noted by Schowalter, there exist plenty of studies showing that grandparent custody is usually a quite satisfactory arrangement. The U.S. Supreme Court, in Troxel et vir. v. Granville (2000), affirmed a decision by the Washington State Supreme Court, finding unconstitutional a statute permitting visitation by any non-parental third party ‘at any time’ if a court determines such visitation to be in the best interests of the child. A 6–3 decision written by Justice O’Connor opined that the statute violated the Fourteenth Amendment Due Process rights of a custodial mother, Ms. Granville, to make decisions concerning the care, custody, and control of her daughters. The opinion stated that the Fourteenth Amendment has a substantive component meant to provide heightened protection against government interference with certain fundamental liberty rights and interests, including the right of a parent to make decisions concerning the care, custody, and control of his or her children. The Court cited precedent in a number of cases, including the landmark case Parham v. J.R. (1979), where the U.S. Supreme Court held that parents should ‘retain a substantial, if not dominant, role in the decision [to civilly commit a minor], absent a finding of neglect or abuse.’ The Court also stated that there is a common law tradition to presume parental fitness and that in the case of Ms. Granville, there were no allegations to the contrary, and that she had even agreed to limited visitation by the grandparents (although less than the Troxels wanted). The Court decried that the Washington statute actually weighed the visitation right of the grandparents as more important than ‘perhaps the oldest of the fundamental liberty interests recognized by this Court.’ Some jurisdictions already place the burden on a third party to not only show that visitation would be in the child’s best interest, but to show potential harm to the child were such visitation denied. For instance, grandparents may need to show that they have been heavily involved in the care of the child prior to the controversy, and that they have been actively pursuing continued contact. The U.S. Supreme Court in Troxel declined to explicitly weigh in on such ‘heightened harm to the child’ standards. The Court held only that the Washington State statute in question swept too broadly by permitting any person to petition for visitation, with the only

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requirement that the visitation serve the best interests of the child. Nevertheless, the ruling in effect raises an already high threshold for third parties to seek visitation rights (and by extension custody) and puts other courts and lawmakers on notice. Schowalter agreed with the Troxel ruling, indicating that grandparent visitation forced on an unwilling custodial parent by the court places the child in an acrimonious and untenable situation. However, it is likely that most children can separate obvious vituperative comments made by grandparents against parents as false, and focus on their own relationships with their grandparents, independent of their grandparents’ relationship with the parent. This is of course easier to do for older children than it is for younger ones. The forensic psychiatric expert in custody and visitation disputes may be called upon to also address potential harm to a child, in cases where a third party is seeking rights relative to a parent. The evaluator may need to balance this consideration with the usual assessment of parental competence and the child’s best interests.

Allegations of child sexual abuse Both true and false allegations of child sexual abuse occur in custody battles. The evaluator must be prepared to assess the validity of such allegations and discuss how they affect custody and visitation recommendations. While Guyer and Ash (1986) reported an incidence for allegations of child sexual abuse of 33 per cent in 400 court-ordered custody evaluations, a study of 9000 families in custody/visitation disputes by Thoennes and Tjaden (1990) yielded a figure of about 2 per cent, replicated by McIntosh and Prinz (1993) who examined 603 family court cases. Thoennes and Tjaden found a similar incidence of false allegations in custody dispute and non-custody dispute situations, whereas Green and Schetky (1988) emphasized that false allegations of child sexual abuse more commonly arise in the context of a custody battle. Gardner (1987) stated that the majority of children professing sexual abuse in custody situations are actually brainwashed to believe it, as part of the controversial parental alienation syndrome. Benedek and Schetky (1985), with a sample of eighteen custody dispute cases, found an incidence of 55 per cent for unfounded allegations. However, studies with larger sample sizes yielded more conservative figures. A survey of general child sexual abuse cases reported to a child abuse agency, found that 6 per cent of allegations could not be substantiated (Goodwin, Sahd, and Rada 1978). Although some have found that 8 per cent of allegations were false, Thoennes and Pearson (1988) 14 per cent, and McGraw and Smith (1992) 16.5 per cent. Penfold (1995) remarked that some authors believe that child sexual abuse may actually be more frequent in divorce (e.g., the stress of the divorce triggering vulnerabilities in a parent, or ongoing abuse coming to light for the first time). She also wrote that some jurists believe that virtually all such

allegations in the custody context are false, a ploy on the part of the mother to besmirch the father. Raising an allegation of child sexual abuse (whether true or false) may actually jeopardize the accuser’s chances of securing custody. In a related vein, raising the issue of spousal abuse, Shalansky, Ericksen, and Henderson (1999) provided references documenting that Canadian courts mostly do not recognize domestic abuse of women as having any bearing on child custody disputes or the abuser’s relationship with his children. The psychiatric evaluator needs to remain objective, but also aware of the importance of carefully examining the validity of these allegations. False allegations can have a potentially harmful impact on the child. Green and Schetky (1988) have described how one can evaluate the child in such cases and assess the reliability of the child’s disclosure. One must first assess the child’s ability to separate reality from fantasy and his or her ability to verbally express and recall past events. Both will be a function of the child’s developmental level. In general, according to these authors, false denials by children are relatively common, but false disclosures of sexual abuse by children are relatively rare. False disclosures can occur, however, in a variety of special settings. They may be seen in a child who has been ‘brainwashed’ by a vindictive parent who seeks revenge or desires to end all contact between the child and the other parent. They also may be seen when a delusional parent has influenced a child. Occasionally a child may give a false disclosure based on the child’s sexual fantasies, rather than reality. A child may also falsely accuse a parent for revenge or retaliation. False disclosures tend to be characterized by a variety of features. They may be expressed more readily and without a significant change in affect than are true disclosures. Such children may appear outspoken, non-defensive, and may use adult terms, possibly learned from a coaching parent. True disclosures, however, usually are delayed, conflicted, and slow to be revealed, if revealed at all. They may be stated, retracted, and then restated again. They are usually accompanied by appropriate negative affect. When assessing accusations of child sexual abuse, the evaluator also should observe the interactions of the child with each parent. One can observe whether there is a fearful or a loving relationship when the child is alone with the accused parent. One can also observe whether this relationship changes when the accusing parent joins them. In false allegations one may observe the child looking for approval from the accusing parent while the child displays hostile behavior toward the accused parent. Then after the accusing parent leaves, the child’s behavior may revert to being friendly toward the accused parent. In cases of true allegations the child’s behavior is usually more consistently fearful toward the accused parent. A young sexually abused child who does not understand the deviant nature of the molestation, however, may display learned seductive behavior toward the accused parent, rather than display fearful behavior.

344 Family law and domestic relations

The evaluation of a child who may have been sexually abused can be supplemented with play therapy with dolls or with drawings. Though such techniques can be very informative, they are not 100 per cent reliable. A child may be well educated in adult sexual behavior from watching television, listening to older siblings talk, or observing farm animals and household pets. Such children without a history of sexual abuse can demonstrate explicit sexual play with dolls. When making recommendations for custody and visitation in cases where one is in doubt about allegations of sexual abuse, it is best to be conservative, yet constructive. One may recommend chaperoned visitation and/or further psychiatric evaluation and treatment for the parent or child. Joint therapy may be possible and helpful. One should be careful not to refuse visitation automatically. This could lead to painful sequelae for both the child and the parent, if a well-established bond is severed permanently. It is rarely required to completely block visitation of any kind, without the consideration of further treatment.

Parental kidnapping Parental kidnapping, the abduction or withholding of a child by one parent from the other parent, may occur in a variety of contexts related to divorce. Katz (1981) has described parental kidnapping to occur before a divorce is finalized by a parent who fears losing custody. Katz has also described its occurrence after divorce by the noncustodial parent, who flees to another state with the child to seek a new custody decision, or simply to hide from the custodial parent. Also, after a divorce is finalized, the custodial parent may disappear with the child in an attempt to deny the non-custodial parent visitation (Back and Buxton 1983). Other motives may include an attempt to protect the child from an abusing parent, a desire to blame and punish the left-behind spouse, a desperate effort to effect a reconciliation, or even paranoid delusions, sociopathy, and other mental disorders on the part of the abducting parent (Johnston, Girdner, and SagatunEdwards 1999). Goodman (1976) estimated that between 25 000 and 100 000 cases occur annually. Lewis (1978) estimated that 60–70 per cent of cases occur before custody has been decided and go unreported. A national household survey conducted by Finkelhor, Hotaling, and Sedlak (1991) showed that over 350 000 families in 1988 saw one parent take unilateral action to deprive the other parent of contact with the child. About one-half of these cases involved actual concealing of the child or flight from the state or country. Schetky and Haller (1983) have discussed the traumatic effects that parental kidnapping may have on the child. The child’s trust in the kidnapping parent may be damaged with a detrimental effect on the child’s future

relationship with the parent. The child may blame the other parent for not preventing the kidnapping and may feel angry if that parent cannot rescue him or her. The child may be further traumatized by the kidnapping parent’s irrational behavior. The parent’s disregard for the law may lead the child to feel vulnerable and without protection. Common symptoms that may be seen in these children include difficulty in trusting others, withdrawal, poor peer relations, school problems, regression, anxiety, or depression. Johnston, Girdner, and Sagatun-Edwards (1999) compared fifty families that had experienced a parental kidnapping in the context of a child custody dispute, identified by district attorney case records, to a comparison sample of custody litigating families that also expressed high levels of anger and distrust, but without an abduction event. They described several risk factors for the abduction cases, namely allegations of child abuse, narcissistic/ sociopathic personality traits, unmarried relationship status, low socioeconomic, and minority ethnic status. The latter two factors may be mediated by the reduced likelihood that these families will have the resources or cultural experience to settle their disputes in a legal forum. The authors proposed that the courts need to have policies in place to effect rapid decisions or restrictive measures in high-risk situations. Due to the potential harm to the child, strict criminal sanctions against parental kidnapping should be imposed. The legal system has been taking steps to try to decrease its occurrence, reflected in the prohibition on parental kidnapping in both United States federal law and the Hague Convention (Haller 1987). The National Conference of Commissioners on Uniform State Laws drafted the Uniform Child Custody Jurisdiction Act (UCCJA) in 1968. It has become law in nearly all states. According to Schetky and Haller (1983), this act has been helpful in reducing the likelihood of a kidnapping parent gaining custody of a child through a new custody decree in a different state. Prior to this act, one state was not obligated to honor a custody decision granted in another state. They have also described the addition of further legislation in the 1980s, where an increasing number of states have made child kidnapping a felony, and how this has been useful to some extent as a deterrent. Even with implementation of these laws, however, parental kidnapping continues to be a significant problem.

Harassment of psychiatric evaluators Of final note as a special issue that may be encountered is the harassment of the psychiatric evaluator. The psychiatric evaluator should be warned that attorneys are trained to manipulate, coerce, confuse, intimidate, and distort as part of the adversarial system of the court. An attorney, if losing in court, may attack the evaluator professionally and personally in a vain attempt to discredit the logical

Role of the psychiatric evaluator in child custody disputes 345

or irrefutable facts of testimony. Some marriage/divorce attorneys may take the adversarial system to new extremes. They may attempt character assassination or other discrediting tactics, ignore the merits of the case, lodge ethical complaints, call regulatory agencies, or harass the evaluator in other ways, in order to persuade the evaluator either to come to a decision that favors their party, or to abandon the case entirely. There have even been instances where an attorney has lied over the phone, pretending to be someone else, in order to try to covertly get information from one of our authors who was involved in a custody battle for one of the attorney’s clients. Because of the pressures placed on evaluators, many psychiatrists refuse to perform child custody evaluations, which unfortunately is detrimental to children who need their expertise. Herman (1990a) pointed out that the psychiatrist also may receive personal threats from parents unhappy with the recommendations of the evaluator. Evaluators may be vindictively reported to state licensure boards or professional ethics boards by angry, hostile parents. Issues surrounding child custody elicit deep emotions within parents. Such feelings in a parent for whom custody is not granted may lead to unwarranted attacks on an evaluator, regardless of how well intentioned or reputable the evaluator may be. The evaluator should also be aware of the possibility even of violence when working with bitter, vengeful, dissatisfied parents. It is remarkable and fortunate that competent child psychiatrists subject themselves to this undeserving abuse, in order to guide and protect children from being further victimized by the divorcing process of their adult parents.

SUMMARY Certainly, conducting a psychiatric evaluation in a child custody dispute is difficult, time-consuming, and emotionally draining. The evaluator must carry out extensive interviews and effectively work with the child, parents, attorneys, and other adults significant to the child. The evaluator must make a recommendation that may have a profound effect on the rest of the child’s life, even when there may be no clear-cut best recommendation. When formulating his or her recommendations, the evaluator must strive not to be biased by personal prejudice or the persuasive influence of attorneys. He or she must make a decision that is rooted in the evidence of the evaluation and is based only on what is in the best interests of the child. Throughout this process the evaluator needs to maintain his or her stance as advocate for the child’s needs. The evaluation process may be painful for the child, the family, and the psychiatrist. The emotional and psychological rewards, however, are great. The evaluator may help provide the potential for a happy, healthy environment for the development of the child, a foundation for later life.

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37 Termination of parental rights and adoption SHASHI ELANGOVAN AND STEPHEN B. BILLICK

HISTORICAL AND LEGAL PERSPECTIVES The basic concepts of ‘parental rights’ and the ‘interests of the child’ have gone through evolutionary changes. Until the nineteenth century, the parental rights issue was relatively simple. Under Roman and early English law, the term ‘parent’ referred to the biological (i.e., genetic) father, and children were treated as property of their parents, particularly the father. Because wealth and property was considered an extremely important matter, the rights of inheritance were carefully protected and rigorously addressed in the legal system. This created an extreme imbalance between the rights of the parents and those of their offspring. The term parens patriae had its origin in English Law where the king was considered the father or the parent of the citizens of the land. The United States government and its individual States function as a parent when it exercises its power of guardianship over persons with disability, such as minors, incompetents, and the mentally ill. Such power is not exercised by the States unless the person under disability has been deprived, for whatever reason, of non-governmental protection and support of an adequate degree. The twentieth century was the beginning of a new interest in delineating rights and the interests of the children over the rights and interests of the father, and of both parents. Child labor laws were enacted in the beginning of the twentieth century to further protect children. In re Gault (1967) is a pivotal landmark U.S. Supreme Court case regarding children’s rights. The Supreme Court upheld a need for timely and adequately specific written notice, the right to counsel, the right to confrontation and cross-examination, and protection from self-incrimination. The need for a transcript and the right to appeal were not ruled upon. The majority opinion written by Justice Fortas traced the long history of differences between juvenile and adult cases and offered juveniles many rights similar to that held by adults.

The social movement of the 1960s, with its emphasis on civil rights, influenced the parent–child law. Children were increasingly viewed as real people with specific rights, and society began to take interest in the well-being of minors; hence the ‘best interest of the child’ concept evolved. As the sociopolitical atmosphere changed again during the 1980s, various rights continued to be re-examined. The rights of parents and children were not viewed as equal by the law. The U.S. Supreme Court, in a series of cases, noted that the biological relationship, although not the exclusive consideration, is in fact, unique, and often prevailing. Constitutional law holds that the rights of parents to raise their children in a manner they see fit constitutes ‘family privacy’ (Lochner v. New York 1905). This suggests that the law allows great latitude to parental actions or inaction toward their children. However, parental rights are not infinite. In the U.S. Supreme Court case of Prince v. Commonwealth of Massachusetts (1944), the court stated, ‘the state, as parens patriae, has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare.’ In Roe v. Wade (1973) the court pointed out that, when the state intrudes upon a fundamental protected right (family privacy and parental rights), strict scrutiny must be observed by the court. Such a high level of review is mandated to ensure that fundamental constitutional rights have not been abridged. Parental rights, as recognized by law, include the basic right to custody of their children unless the parents are proven unfit. Parents have authority to control their children until they reach majority, or are being emancipated. The child has no right to leave the parental home for another, although the law recognizes that parental control decreases with the child’s increasing age, especially in later adolescence. In the issue of discipline, the court gives parents wide latitude in the disciplining of children. The parent has the right, authority and power to discipline the child, if it is viewed as being for the child’s benefit. Corporal punishment is included, while abusive punishment is not. In general, if parental discipline is administered with good

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intent and there is no physical injury, the law will not intervene; however, if malice or serious physical injury results, the parental rights may have been exceeded (American Jurisprudence 22 § 22, 1987). Parents have the right to send their children to private, parochial, or the school of their choice. However, this is a limited right, because the schools must conform to guidelines and standards established by the state educational boards (Pierce v. Society of Sisters 1925). Homebased schooling programs following primary school were allowed in the Amish group, as illustrated in the Supreme Court case (Wisconsin v. Yoder 1972). Parents have a limited right to bring up their child in a reasonable religion, though inculcating Satanism and human sacrifice would be unacceptable. Religious practices that may affect a child’s compulsory school attendance must be a part of an established religion to be acceptable, rather than a mere philosophy or a secular belief. Parents have the right to hospitalize their children involuntarily for psychiatric evaluation and treatment. An independent medical authority must concur the need for hospitalization. In many states, the minor child, however, has the right to a judicial review for involuntary hospitalization (Parham v. J.R. 1979). In other areas of medical care, the law gives parents broad discretion with limits. A child may be considered neglected if the parents fail to provide proper and necessary medical care (In re Green 1972). One of the prominent issues in this area has been the refusal by Jehovah’s Witnesses to allow blood transfusion. All states that have ruled in this matter have ordered the blood transfusions if it has a reasonable likelihood of saving the life of the child. The courts have held that adults have the freedom to exercise full religious beliefs for themselves, but cannot exercise unlimited religious beliefs for their child. In the Matter of Faridah W., 1992, a New York case, the court declared a sixteen-year-old female who was born with spina bifida and had a neurogenic bladder to be a medically and emotionally neglected child, because her mother refused to permit her to undergo an enterocystoplasty. The court stated that,‘A parent has a non-delegable affirmative duty to provide a child with adequate medical care, which has been determined to be that degree of care exercised by ordinary, prudent, loving parents who are anxious for the well-being of the child.’ The court further noted that the critical aspects of the parents’ failure to obtain medical assistance must be to the extent that the child’s mental, medical, or emotional health is adversely affected or in imminent danger of being adversely affected. In this case, the mother allegedly refused to comply with the medical expert’s opinion and failed to provide a reasonable alternative to the proposed treatment. She also failed to visit her daughter during most of her lengthy hospitalization. Parents have a right and the authority to determine their child’s social activities and how best to meet their child’s physical, emotional, and relationship needs. In

parent–child relations, after granting custody to one parent, the other parent usually has the vested right to visitation. The Uniform Marriage and Divorce Act (1991) requires clear and convincing evidence that parental contact seriously endangers the child’s physical, mental, or emotional well-being to justify termination of the right to visitation. In many states, it was formerly assumed that an unmarried father had no claim to parental rights and their permission, therefore, was not required for third-party adoption of their biological child. The Supreme Court, in the case of Stanley v. Illinois (1972), addressed a landmark due process case regarding parental rights. It was uncontested that Stanley was an unwed father who was seriously interested in his offspring. He had maintained a relationship, provided support payments, and held himself out as a father. The Illinois state law presumed an unwed father to be an unfit parent per se, with no opportunity to rebut the unfit determination. However, Illinois law required notice, hearing, and proof of unfitness before neglect proceedings could lead to termination of parental rights. Stanley had no hearing. The court found that Stanley’s private interest involved companionship, care, custody, and management of the children he has ‘sired and raised.’ The court concluded, ‘It is cardinal that the custody, care, and nurturance of the child reside first in the parents, whose primary function and freedom include preparation [of the child] for obligations the state can neither supply nor hinder.’ The court went on to state that the integrity of the family unit was protected by the due process, equal protection, and ‘the rights retained by the people’ clauses of the Constitution (Griswold v. Connecticut 1965), and that the law has not refused to recognize family relationships not legitimized by marriage. In Stanley, the court stated that while the state has a duty ‘to protect minor children through a judicial determination of their interest in a neglect proceeding,’ unwed fathers have a due process and equal protection right to have a hearing on fitness when state law declares a married, divorced, or unmarried mother to be presumed fit. Stanley was given a due process hearing and declared unfit to parent his child for other reasons.

TERMINATION OF PARENTAL RIGHTS (TPR) The law does not view parenting as indigenous to the person, but rather something with which the family is vested by the state. The state assumes it is the parent’s responsibility to understand, implement, and perpetuate the values of society. It assumes that a parent has the innate ability to balance rights and responsibilities, to relinquish absolute power for the good of the developing child, and treat progeny in such a manner so as to maximize developmental potential. When a parent abdicates, neglects, or abuses this responsibility, the state engenders the doctrine

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of parens patriae to break into the delicate parent–child relationship, expose it to the legal and psychiatric community, and to ask the court’s determination as to the appropriateness of terminating an assumed inalienable right of the individual – namely to parent one’s own children (Mnookin 1978). Out of the cruelty to animal laws and the child labor laws, emerged early social legislation protecting children’s rights. Then came the concept of ‘the best interest of the child’ (Goldstein, Freud, and Solnit 1973). The best interest standard is a well-established principle of law in areas of child custody and termination of parental rights (American Jurisprudence 2d § 974, 1983). The concept of ‘best interests’ however tends to be vague. Some states have attempted to make the issue of best interest clearer and more specific. The District of Columbia (District of Columbia Code, 1981 § 16-2353) has codified that the best interest of a child includes factors that consider: 1 The child’s need for continuity of care and caretakers, and for timely integration into a stable, permanent home. 2 The relationship of the physical, mental, and emotional health of all persons involved to the welfare of the child and his needs. 3 The quality of relationship of the child with his sibling, caretakers, foster parents, and natural parents. 4 Whether a child has been left unclaimed in the hospital ten days after a medical determination that he could be safely discharged. 5 The child’s opinion of his best interests to the extent he is able to express them. 6 Evidence of continued drug-related activity in the parental home after interventional services have been provided (Armitage 1994). In the state of California (California Civil Code 226(a), 1991), the court must consider the age of the child, the bonding or potential to bond with natural parents or the adoptive parents, and the ability of the parents to provide adequate and proper care and guidance to the child. In the state of Michigan (Child Custody Act, 1970), factors relating to determination of best interests in custody cases include: 1 The love, affection and other ties between the child and the parents competing for custody. 2 Capacity and disposition of competing parents to give the child love, affection, guidance, and education. 3 The capacity to provide necessary or any special medical care or remedial care required for the child. 4 Length of time the child has lived in a satisfactorily stable environment. 5 Permanence as a family unit of the proposed custodial home. 6 The moral fitness of competing parties. 7 The mental and physical health of the competing parties.

8 Home, community, and school record of the child. 9 Reasonable preference of the children if they are of sufficient age. In Connecticut (as In re Bernard Pecor 1992), the court held that a child’s best interest involving termination of parental rights cases must be met by considering:

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the timeliness, nature, and extent of services offered by the state to help parents reunify (the presumption being that parental rights are important); the terms of any court order or agreement between an agency and the parents, and the extent to which the agreements were complied with; feelings or emotional ties between the parent and the child, related to the concept of psychological parent; age of the child; whether mental or behavioral disorders prevent the parents from changing their conduct, behavior, or circumstances that could be injurious to the child in the foreseeable future; and whether any governmental agency or party prevented the parent from developing a relationship or that the lack of a relationship was based purely on economic circumstances.

Congress determined that Native American parents and children were a special class requiring special protections. Federal law gives deference to the parental rights of Native Americans who are members of a recognized Indian tribe. The Indian Child Welfare Act of 1978 requires a finding by evidence ‘beyond a reasonable doubt’ that allowing an Indian child to remain with the parent or parents would be likely to result in serious emotional or physical damage to the child. This law requiring a higher standard of proof was enacted because there was substantial evidence indicating that state social workers and others unfamiliar with Native American tribal child-rearing practices (including leaving the child for prolonged periods with other members of the tribe who are considered as ‘extended family’), inappropriately recommended termination of parental rights. Schetky and Slader (1980) believe that the law must consider termination of parental rights as it relates to infringement of the rights of children: (i) the right to the maintenance of a parent–child relationship – that is, the right to have someone to call ‘parent’; (ii) freedom from physical, sexual, or psychological mistreatment; and (iii) the right to have ‘primary emotional needs for continuity, consistency and identity’ met by being a part of a family.

Definition of TPR Termination of parental rights means the adjudication that a child is free from the custody and control of either or both his/her living genetic parents by means of court order that completely severs and extinguishes the parent–child

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relationship (American Jurisprudence 2 & § 34, 1987, pp. 172–3). It has, therefore, a profound and serious finality.

Standards of termination Constitutional law provides minimal standards that must be met in order to terminate parental rights. In Santosky v. Kramer (1982), the U.S. Supreme Court held that before a state can completely and irrevocably sever parental rights, due process requires that evidence provided by the state be clear and convincing to support its allegation for termination. The minimal constitutional standard must be met but can be exceeded by state law. Some states currently require ‘beyond reasonable doubt’ standards of proof for termination of parental rights. Due process in termination proceedings requires fundamental fairness under the legal and factual circumstances of a case. The U.S. Supreme Court invoked the Mathews v. Eldridge (1976) elements as rules applicable to deciding what due process requires. These elements are: (i) the private interest at stake; (ii) the government’s interest; and (iii) the risk that the procedures used will lead to erroneous decisions. Legal criteria or grounds for termination of parental rights vary among jurisdictions. However, the grounds/ criteria must be supported by competent, relevant, clear, and convincing evidence. Common grounds for termination of parental rights include: 1 Voluntary abandonment: (NY SSL 384-b). A child is abandoned by his or her parent if such a parent evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child or agency, although able to do so and not prevented or discouraged from doing so by the agency. In the absence of evidence to the contrary, such ability to visit and communicate shall be presumed. 2 Permanent neglect: this means a child who is in the care and custody of an authorized agency and whose parent or guardian has failed for a period of more than one year (after foster placement) to substantially and continuously or repeatedly and consistently maintain contact with or plan for the future of the child although physically and financially able to do so, notwithstanding the agency’s diligent efforts to encourage and strengthen the parental relationship when such efforts will not be detrimental to the best interest of the child. It is important to note that a visit or communication by a parent with the child, which is of such character as to overtly demonstrate a lack of affectionate and concerned parenthood, shall not be deemed a substantial contact. 3 Mental illness: this means an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior thinking, feeling or

judgment to a such an extent that if the child were placed in or returned to the custody of the parent, the child would be in danger of becoming a neglected child. 4 Mental deficiency: this means sub-average intellectual functioning, which originates during the developmental period and is associated with the impairment in adaptive behavior to such an extent that if the child were placed or returned to the custody of such parent, the child would be in danger of becoming a neglected child. 5 Physical/sexual abuse. 6 Substance abuse: when the parental substance abuse leads to danger of neglect or abuse of the child. When the state interferes with parental rights as in involuntary termination of rights, it must carefully follow legal procedures and substantive law that reflects the grounds and criteria for termination. These procedures can vary among jurisdictions. In most cases, circumstances that take place in a child’s life warrant interference by state agencies to take temporary custody of the child, as in cases of neglect, abandonment, or abuse by the parents or legal custodians. The child is initially removed on an emergency basis by a state agency such as child protective services. Hearings on this action are required and there must be substantive evidence of neglect or abuse based on preponderance of evidence. The court then mandates the state agencies to make diligent efforts to assist the parent toward reunification with the child unless reunification is not possible, or is not indicated. All jurisdictions allow for waiver of reunification attempts under certain circumstances. When legal criteria and grounds for termination are met, a termination hearing is ordered following a petition by the state. The grounds for parental unfitness and termination must be stated and must be proved by clear and convincing evidence. The next procedural requirement is to prove that termination is in the best interest of the child by clear and convincing evidence. Testimony of a child psychiatrist is frequently used in termination of parental rights cases. In addition to the prominently accepted principle of the ‘best interest of the child,’ the concept of ‘least detrimental alternative’ has been applied in some cases.

Clinical issues related to TPR All clinical issues and evaluation must be viewed within the context of the legal grounds and criteria for termination.

MENTAL DISORDERS AND MENTAL ILLNESSES Psychiatrists and psychologists are called to provide evidence in TPR proceedings when mental illness or deficiency is a proffered ground for termination. In New York, a parent’s right can be terminated on the grounds of mental illness if the suffering parent is rendered incapable

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of caring for the children. The state is not required to make efforts to strengthen the parental relationship, nor is it required to show that efforts to strengthen the parental relationship would be detrimental to the child (In re Demetrius F. et al. 1991). All clinical evaluations must be viewed within the context of the legal grounds for termination. Involuntary hospitalization for the mental disorders, combined with other factors that are offered, as evidence that the hospitalized parent may be dangerous to the child is a frequently recognized ground. A diagnosis of schizophrenia per se may not be accepted as evidence for unfitness. The schizophrenia must have an adverse impact on the ability to parent by interfering with the individual’s thinking, perception, behavior and judgment. Other associated problems such as poor or non-compliance with medication and recommended treatment, refusal to participate in parenting skills training and erratic parent–child interaction during visitation are also important areas of assessment. A borderline personality disorder has been accepted as a diagnosis of ‘mental illness or disorder’ and deemed by the court to be a long-term condition allowing for termination, if termination is in the best interest of the child, because such a parent was not considered capable of performing proper parental duties. The same parent did not comply with a court-ordered rehabilitation plan for reunification, which the court held as an independent reason, in addition to the mental disorder, to terminate parental rights (In re the Interest of B.M. v. L.M. 1991).

PARENTAL INCARCERATION Criminal incarceration of a parent as a factor in TPR varies among jurisdictions. Parental incarceration is a growing problem that needs accommodation in the current timedriven model of permanency planning. Child welfare agencies need to recognize the importance of maintaining parent–child relationships, even when a parent is incarcerated, and to develop creative approaches for dealing with the unique challenges of parental incarceration. Over the past fifteen years, the population of female prisoners has increased by almost 400 per cent, while the male prison population has increased by more than 200 per cent (U.S. Department of Justice 1995). Two-thirds of the female prisoners in the U.S. had one or more children under the age of 18 years. In 1991, 72 per cent of incarcerated mothers had minor children who had lived with them before entering prison. Approximately 50 per cent of the incarcerated fathers had lived with their children prior to imprisonment (Snell 1994). In the survey of 1991, 71 per cent of the children of incarcerated mothers and 13 per cent of the children of incarcerated fathers were with grandparents or other non-parent relatives (Snell 1994). These data show that incarcerated mothers must rely on non-parent caregivers for childcare to a much greater extent than incarcerated fathers. Some 90 per cent of the children of incarcerated fathers were cared for by

their mothers (Johnston 1995), but only 25 per cent of the children of incarcerated mothers were cared for by their fathers (Snell 1994). Parental imprisonment does not change the basic legal requirement governing permanency planning. Agencies have a legal obligation to make ‘reasonable efforts’ to preserve and strengthen the relationship between incarcerated parents and their children. The definition of reasonable efforts varies from jurisdiction to jurisdiction. For example, New York state law defines diligent efforts to incarcerated parents as including: making suitable arrangements with a correctional facility and other appropriate persons for an incarcerated parent to visit the child within the correctional facility, if such visiting is in the best interest of the child. Such arrangements shall include, but shall not be limited to, the transportation of the child to the correctional facility, providing social or rehabilitation service to resolve or rectify problems which can impair the incarcerated parent’s ability to maintain contact with the child other than incarceration itself [NY SSL 384-b (7) (f) (5)]. The most obvious challenge to the agency is the facilitation of a continued parent–child relationship relating to lengths of sentencing and distance. The length of sentencing is likely to increase in the future as legislative efforts to eliminate or seriously limit parole result in more time served. At the same time, mandatory sentencing laws for certain crimes will lead to the imprisonment of even more parents. Distance is the other problematic issue affecting the ability of agencies to provide services to an incarcerated parent. Womens’ prisons are often located in rural areas, and inaccessible by public transportation. Despite these obstacles, the agencies must generally attempt to overcome them and assist the parent and child to maintain a meaningful relationship. Parental rights are not absolute, and in inappropriate cases, where diligent efforts are not in the best interest of the child, the state may go to court to seek TPR. To do so, the state must prove the parent is ‘unfit’ (Stanley v. Illinois 1971; Santosky v. Kramer 1982). The parent’s ‘fitness’ must be measured by the parent’s ability to ‘maintain a place of importance in the child’s life’ (In re Adoption of Sabrina 1984). Recognizing the principle that parental incarceration does not automatically amount to unfitness, New Jersey’s Supreme Court has articulated the factors that must be examined in TPR evaluations of incarcerated parents: 1 Parent’s performance before incarceration. 2 The extent to which children were able to rely on their parent. 3 Parent’s efforts to remain in contact with the children since incarceration. 4 Parent’s ability to communicate and visit with their children. 5 The effect of parental communication and visitation on the children. 6 The ability to provide nurturance and emotional support to their children.

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7 Risks posed to the children by the parent’s criminal actions. 8 The extent of the parent’s rehabilitation during incarceration. 9 The need of the children for permanency and stability and whether continuation of the parent–child relationships will undermine that need. 10 The effect that the continuation of the parent–child relationship will have on the psychological and emotional well-being of the children. The trend toward incarceration of greater numbers of people for longer periods of time shows no signs of abating. As a result, increasing numbers of out-of-home caseloads will involve children of incarcerated parents. Effective family work in cases involving parental incarceration requires significant expenditure of time and resources. The child protective agencies should identify the cases where efforts would be successful in maintaining and strengthening viable parent–child relationships. In such cases, agencies must develop new permanency approaches, consistent with the requirements of the Adoption and Safe Families Act (ASFA 1997), for families in which a parent is incarcerated. For many children of incarcerated parents, the best permanency plan is one in which the parent continues to play a significant role in the child’s life (Genty 1998).

Clinical issues and the role of child psychiatrist in TPR evaluation As numerous studies have documented, many children languish in foster care with little or no efforts being made to make permanent plans for them, in spite of the fact that their biological parents may be failing to progress towards the goal of reintegrating them into the family. Although foster care is thought of as a temporary placement, studies have shown that once a child is in placement, he or she has a fifty per cent chance of remaining there for three years or longer (Wald 1976). In terms of assessing the child’s needs in this situation, there appears to be few clear-cut guidelines, and the available studies usually either relate to divorce (Malmquist 1968; Benedek 1972; Derdeyn 1976; Derdeyn 1978) or concentrate on legal aspects of such decisions (Foster and Freed 1964). Goldstein, Freud, and Solnit (1973) introduced the concept of ‘psychological parent,’ and urged the court to make decisions based on the children’s needs, interests, and the time perspectives. Schetky et al. (1979) directed their study toward a broader group of parents who failed to meet their children’s needs and also had their parental rights terminated by the court. Their study of fifty-one parents whose rights were terminated revealed that the TPR cases were primarily cases of neglect rather than abuse. Most deal with abandonment or neglect. Less than 10 per cent of all court cases involve physical abuse. In most cases, parents’ backgrounds were notable for severe social, economic, and educational disadvantages, leading to family disruptions, problems with parent–child

relationships, and out-of-home placements. Many were victims of neglect, physical, and sexual abuse. These parents were marginally functioning with interpersonal difficulties, unstable marriages, social mobility and isolation and difficulty finding employment. Many displayed low self-esteem, impulsivity, poor judgment, and difficulty planning ahead. The parents had serious deficiency in the capacity for empathy and an inability to put their children’s needs before their own. They viewed their children as existing to satisfy their needs. Parents were deficient in their own role models for parents and had impaired object relations. Emotional illness in mothers often contributed to the neglect of the child. Mental illness in mothers was frequent: some 40 per cent of mothers had psychiatric illnesses, were hospitalized for treatment, or sought outpatient treatment at some point. Fathers were notable for the absence of psychosis, but presence of serious personality disorders, antisocial personality disorder (ASPD) being most frequent. Neglectful parents are harder to reach and help than abusive parents. One possible reason is the fact that neglect is more insidious and more difficult to detect. A study of children languishing in foster care showed that many were experiencing developmental delays, had symptomatic behaviors, problems in response to visitation and delays in academic performance. In spite of the above findings, many children were doing well in long-term foster care and eventual adoptive homes. At the time of termination, all children had formed positive attachments to foster parents. It is important to stress that age, mixed race, presence of minor behavior problems and duration of time in foster care were not barriers to finding adoptive homes for these children. Fanschel (1976) noted that psychiatrists, in their evaluation of parents and children, and all parties pertinent to the case, should search for: (i) covert aggression; (ii) role reversal where the child has inappropriately become the parent of the parent, or is serving so many psychological needs of the parent that it amounts to serving in a parental role; (iii) indications that the child is being drawn into the marital dysfunction; and (iv) the existence of ageinappropriate expectations of the child often combined with little appreciation of the child’s own feelings and needs as separate from the parents, or lack of knowledge of developmental norms. In addition to a variety of factors considered in light of the legal criteria, clinical issues such as the severity and duration of the parent’s abnormal mental or emotional condition or conduct must be evaluated. The likelihood of the parents changing their abnormalities, allowing reintegration of the child into the home within a reasonable period of time consistent with the current ASFA requirements, must be addressed. The issue of whom the child truly views as his or her parent, that is, who is the psychological parent of the child, must be assessed. Finally, the psychiatrist should also consider options for placement of the child and the ‘least detrimental alternative’ when making a recommendation, bearing in mind the problems of children in prolonged foster placements.

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Although the ‘best interest of the child’ is a universally applied principle in most jurisdictions, the concept of ‘psychological parent’ and the ‘least detrimental alternative’ has also been heavily relied upon as important in many jurisdictions.

CLINICAL CRITERIA FOR TPR The information in this kind of evaluation must be weighed for and against termination of parental rights with a precision that exceeds the legal criteria, for the legal criteria in themselves are not very specific and not well defined to make an easy recommendation: 1 Basic aspects of the evaluation should include examination of the child individually with both biological parents and foster parents. All participants should be informed of the limits of confidentiality or lack of confidentiality in the evaluation. 2 Review of all records from ancillary sources such as child’s school, medical records, psychiatric treatment, child protective service, or agency records should be carried out to obtain history and factual information. 3 A thorough evaluation of the child’s stated parental preference must be explored in the context of a child psychiatric evaluation. 4 The child’s perception of the parent’s abuse, neglect, and unavailability should be assessed. 5 Evaluation of the child’s development, including medical examinations, developmental milestones, and psychological testing. 6 Assessment of parental attitudes, knowledge of parenting skills, the parents own development and emotional maturity (development). 7 Determination of how parents coped with stressors/ demands during their child’s development. 8 Evaluation of the parent’s perspective as to their own difficulties and alleged reasons for termination of parental rights. 9 Psychiatric mental status examination of all parents to assess psychopathology. 10 Assessment of child–parent interaction in an unstructured play setting is useful in detecting covert hostility, anger, and detachment. Additional range of criteria or guidelines include: 1 The parental availability to provide continuity and consistency of care. 2 Parental empathy and their ability to recognize the child’s needs as different from their own. 3 Parental affection, warmth, and nurturance toward their children. It may be helpful to explore the parent’s own history of nurturance during their development if relevant, as many neglectful parents have a history of having been neglected or deprived themselves. 4 Parents’ intelligence in terms of their ability to manage daily practical affairs in their own lives and its effects on their parenting availability.

5 Parental ability to utilize help from professional and personal supports, as well as community supports. 6 Parents’ ability to successfully rehabilitate. Has there been parental improvement enough to keep pace with the child’s developmental needs? Is the parent able to apply her/his knowledge of parenting skills to the child? 7 What special needs does the child have? Have they been met in order to foster satisfactory development? 8 The quality and intensity of the child’s attachment to the natural parents as well as surrogate parents. 9 The parental ability to set limits with the child help the child develop internal controls and effectively interact with her/his environment. 10 Long-term or permanent availability of surrogate parents as well as the adoptability of the child. 11 Evaluation of the parental separations or absences with appropriate comments on their implication on the child. 12 Parent’s inability to take care of him/herself either when the child was at home or placed out of the home. 13 The limitations of psychiatric treatment with certain psychiatric disorders (e.g., personality disorders, organic brain syndromes, severe developmental disorders). 14 The parent’s refusal to use treatment that could be beneficial. 15 The gains made by children while living in foster care. In summary, this comprehensive approach to evaluation involves a progression from assessment of the parental conduct or condition, to the parent–child relationship, to the effects of the parent’s conduct on the child, to the child’s relationship with the surrogate parent, and finally, the child’s needs. This may also satisfy the court’s need to protect parental rights and focus on parental fault in terms of the effects on the child and his/her development (Schetky et al. 1979).

Ethical issues and expert testimony in forensic child psychiatry Termination of parental rights evaluation is a sensitive issue, and it is at this delicate interface of societal values, parental rights, and children’s rights that the psychiatrist is asked to render an expert opinion. The role of a psychiatrist in such evaluations is to assume the position of evaluating appropriate parenting skills and behavior rather than to make pure diagnostic and clinical statements. Weighing competing interest poses an ethical dilemma even when guided by the universally applied principle ‘best interest of the child.’ There is a terrible finality to termination of parental rights. Common ethical dilemmas that can potentially arise in TPR evaluations include:

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Will the parent improve with giving him/her one more chance?

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How does termination affect the parent’s mental health? Are there educational and social class biases that may affect our recommendations?; and How do we balance the interest of the child who is thriving well in foster care with the concern for the child’s impoverished mother who has shown minimal improvement?

of parents and other family members, the foster child requires special safeguards, resources, and care. Every foster child has the inherent right:

•

Article of the first: to be cherished by a family of his own, either his family helped by readily available services and supports to reassume his care, or an adoption family, or by plan a continuing foster family. Article of the second: to be nurtured by foster parents who have been selected to meet his individual needs and who are provided services and supports, including specialized education, so that they can grow in their ability to enable the child to reach his potential. Article of the third: to receive sensitive, continuing help in understanding and accepting the reasons for his own family’s inability to take care of him, and in developing confidence in his own self-worth. Article of the fourth: to receive continuing loving care and respect as a unique human being … a child growing in trust in himself and others. Article of the fifth: to grow up in freedom and dignity in a neighborhood of people who accept him with understanding, respect, and friendship. Article of the sixth: to receive help in overcoming deprivation or whatever distortion in his emotional, physical, intellectual, social, and spiritual growth may have resulted from his early experiences. Article of the seventh: to receive education, training, and career guidance to prepare him for a useful and satisfying life. Article of the eighth: to receive preparation for citizenship and parenthood through interaction with foster parents and other adults who are consistent role models. Article of the ninth: to be represented by an attorney-atlaw in administrative or judicial proceedings with access to fair hearings and court review of decisions, so that his best interests are safeguarded. Article of the tenth: to receive a high quality of child welfare services, including involvement of the natural parents and his own involvement in major decisions that affect his life.

Therefore a psychiatrist’s participation in TPR evaluations runs headlong into the basic value system fundamentally ingrained in the teachings of psychiatry – namely professional neutrality, clinical tolerance to a wide range of life styles, the family’s right to privacy, and dependent decision-making, and the belief that intact family is the cornerstone of our social, emotional, and developmental matrix. Finally, the ultimate decision of termination presents not only the parents’ personal failure in adequately providing for their children, but also the failure of society’s ability to rectify through all means, including psychiatric intervention, the basic flawed parenting styles that brought the family to professional attention in the first place. It is imperative that the courts understand the limit of our current expertise in defining appropriate or adequate parenting skills and our limits in facilitating these virtuous qualities in parents who are grossly inadequate or negligent in assuming parental responsibility (Schoettle 1984). Psychiatrist’s testimony on clinical issues of TPR evaluations should also include history of parental absences and separations from their child, the parent’s failure to rehabilitate or change, even with professional assistance, and their inability to utilize help in planning for the return of their children. Limitations of psychiatric treatment for several diagnostic categories such as organic brain syndrome, mental retardation and severe personality disorders must be acknowledged. It is important to document evidence that the child has made clear developmental gains while in foster care and/or any reversal of developmental delays or abnormalities which the child previously revealed while under the parent’s care and custody.

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PERMANENCY AND ADOPTION: FEDERAL REGULATIONS AND LEGAL PERSPECTIVES

June 20, 1972 was an important day for the foster child in New York State. It was the first day that a Section 392 foster care review hearing was held at family court, New York County, with Judge Edith Miller presiding. Prior to the enactment of Section 392 of the social service law, there was no court review of the thousands of children in foster care. It was thought that because of lack of court review many children in foster care remained in foster care needlessly and many more should have been adopted, while others should have returned home to their natural parents. Section 392 of the SSL mandates that once a child has been in foster care for a continuous period of eighteen months, the authorized agency charged with the care of the child must file a petition in family court seeking review

Bill of Rights for foster children This was ratified in Congress Hall, Philadelphia, on April 28, 1973, and comprises the following points:

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Even more than for other children, society has a responsibility along with parents for the well-being of foster children. Citizens are responsible for acting to insure their welfare. Every foster child is endowed with the rights inherently belonging to all children. In addition, because of the temporary or permanent separation from and loss

• • • • • • • •

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of the child’s status. The petition must set forth the disposition sought (that is, return of the child to his or her natural parents, continuing foster care, or initiating the proceedings to free the child for adoption), and the grounds or reasons for such disposition. All interested parties such as the authorized agency, the natural parents and the foster parents are given notice by mail of the hearing. The court has the power to direct the agency to undertake diligent effort to encourage and strengthen the parent–child relationship when it finds such efforts will not be detrimental to the best interest of the child. Finally, the family court that has continuing jurisdiction and may rehear the matter when it is deemed necessary but within twenty-four months [as in Matter of Sheila G (61 N.Y.S 2d 368, 474 N.Y.S 2d 421)]. The family court is vested with continuing jurisdiction over the child until there has been a final disposition of custody. After the child is returned to the natural parent by the Social Service agency the family court loses its jurisdiction [as in Matter of Lucinda G (122 MISC 2d 416, N.Y.S 2d 736 (1983))].

In addition to modifying the reasonable efforts requirement, ASFA also imposes new requirements for expedited filing of termination of the parental rights proceeding. The statute requires a state to file a petition for termination of parental rights for all children who have been in foster care for 15 of the most recent 22 months, including all children already in care. The TPR petition is to be immediately filed for children for whom ‘aggravated circumstances’ (e.g., severe or repeated child abuse) has been found or whose parent or guardian has an enumerated serious criminal conviction (Santosky v. Kramer 1982, at 455). US 745 (1982) requires a higher burden of proof in a termination based on repeated abuse. The statute provides exceptions to the requirement to file termination of parental rights petition where:

• •

The Adoption and Safe Families Act (ASFA) of 1997 The ASFA of 1997 amended the 1980 Adoption Assistance and Child Welfare Act (P.L.96-272), the federal statute that provided for partial federal reimbursement to states for child welfare and out-of-home care expenses. To qualify for reimbursement, state child welfare and out-of-home care plans must comply with the requirements of the 1980 statute, as amended by ASFA. In the provisions of the 1980 act was the requirement that state child welfare agencies make reasonable effort to preserve families by avoiding unnecessary out-of-home care placements and, where out-of-home care placements could not be avoided, by reunifying families as quickly as possible. ASFA modifies this ‘reasonable efforts’ requirement in some respects. First, the statute establishes ‘health and safety of the child’ as the most important consideration in determining what family preservation and reunification efforts are required. ASFA also sets forth three exceptions to the reasonable efforts requirement: 1 If the agency alleges that there are ‘aggravated circumstances’ defined as severe or repeated child abuse, which may include abandonment, torture, or physical and or sexual abuse. 2 If the parent has been convicted of murder or manslaughter of a sibling or half-sibling of the child, or a felony assault resulting in serious physical injury to the child or another child of the parent. 3 If the parental rights of the parent to a sibling have been terminated involuntarily via termination of parental rights proceeding, as opposed to a voluntary surrender [ASFA § 101(a) (15) (D)].

•

The child is in kinship care. The agency documents ‘compelling reasons’ which may include: (i) a lack of sufficient grounds for a petition to terminate parental right; (ii) inappropriateness because the child is in placement as a juvenile delinquent or person in need of supervision (PINS); (iii) has a permanency goal other than adoption; and/or (iv) refusal of a child over the age of fourteen years to consent to adoption. The agency has not provided reasonable efforts to reunify the family, although legally required to do so.

The other significant amendments include criminal background checks for prospective foster and adoptive parents (42 USC 671[a] [20] [A]). The federal statute further provides that a prospective foster or adoptive parent must be denied placement of a child if the background check reveals:

• •

a felony conviction at any time for child abuse or neglect, spousal abuse, or violent crimes, including homicide, sexual assault, or rape; and/or a felony conviction within the past five years for assault, battery, or a drug-related offense.

The federal act additionally provides that the state must hold an initial permanency hearing for foster children within twelve months of the date the child entered foster care (42 USC 675 [5] [c]). The date the child entered foster care is defined as the sixty days after the child was removed from his or her home. At this permanency hearing, the court determines the appropriateness of the child’s permanency plan, including whether and when the child should be returned to the parent, placed for adoption, referred for legal guardianship, or placed in another planned permanent living arrangement. These amendments were made to expeditiously transition foster-care children into suitable permanent homes. It was felt that foster care should serve mainly as a temporary safe haven for children – a secure setting where they can live while suitable permanent homes are being located for them.

Termination of parental rights and adoption 357

The Adoption 2002 Report, a federal government undertaking in response to President Clinton’s initiative on adoption and foster care, has outlined several important assumptions in its memorandum, including: 1 Every child deserves a safe and permanent family. 2 Children’s safety and health is of paramount concern and must guide all child welfare services. 3 Children deserve prompt and timely decision making as to who their permanent care givers will be. 4 Permanency planning begins when a child enters foster care. 5 Adoptive families require support after the child’s adoption is legalized. 6 The diversity and strengths of all communities must be tapped. 7 Quality services must be provided as soon as possible to enable families in crisis to address problems.

DEFINITION OF ADOPTION The Child Welfare League of America defines adoption as the method provided by law to establish the legal relationship of the parent and child between persons who are not related by birth. Adoption is the legal proceeding whereby an adult person takes another adult or minor person into the relation of child and thereby acquires the rights and incurs the responsibilities of parent with respect to said adult or minor (Section 110 of the N.Y. Domestic Relations Law).

LEGAL ASPECTS OF ADOPTION Adoption occurs either through a public agency (which is legal in all states) or through private or independent source (which is legal in all but five states). Adoption can be ‘closed,’ with virtually no contact between biological and adoptive parents; or ‘open,’ with varying degrees of contact between parties. Adoptions today are not restricted to twoparent heterosexual couples. Single parent and other nontraditional family structures such as homosexual couples also adopt children. Regardless of the route or type, the adopted child has the same legal status with respect to his or her adoptive parents, as do any biological children. Once adoption is final, the biological parents no longer possess legal rights to the child. However, statutory laws may vary on the timing and specifics of these legal issues.

Permanency and adoption: an overview FAMILY PRESERVATION BEYOND THE BEST INTEREST OF THE CHILD Family preservation should not compromise the wellbeing of children. When parents cannot be rehabilitated, or when parents’ problems are too complex to be resolved in the short term, children bounce between the biological family and foster care, drifting from foster home

to foster home. In such cases, the best interests of the children are not served. The current foster-care system is overburdened and the number of available, qualified foster parents has steadily diminished since the 1980s. This diminution is partly due to the increased needs of children traumatized by poverty, physical and sexual abuse, drug and alcohol exposure, and emotional maltreatment at the hands of both parents. Because traditional foster care was not designed to meet these special needs, specialized and therapeutic fostercare homes have become available. For many children, foster care remains a viable option for reducing risk. Kinship foster care also works in the interests of family preservation by allowing a relative to become a foster parent. The federal government has funded several projects to examine the practice elements in kinship adoptions. Evidence available suggests that the likelihood of kinship adoption of foster children depends, in great part, on the ethnicity of the children. Evidence also suggests that kinship adoptive families look vastly different than other adoptive families and are poorer, less educated, older, and more likely to be single than non-kinship adopting families (Barth 1994). The foster-care system has provided invaluable assistance to children at risk. It deserves enhanced financial support, especially at a time when so many birth families are struggling to survive and may need to temporarily relinquish their child. Residential care facilities should be seen as positive alternatives for children in need. Residential facilities can fulfill a need for order, discipline, and rootedness in many young lives. They provide non-parental, wellqualified and committed mentors who can turn around the lives of many youngsters who might wrongly be considered as hopeless cases. Residential care can be introduced into a child’s life on a short-term basis at various points according to their needs, and can enhance family preservation, foster care, and adoption services. Young adolescents who can be taught fundamental principles such as ‘do no harm’ and can benefit from the constructive adult guidance can experience the structure of residential care as liberating (Post, Frutig, and Bennett 1997).

RE-ENTRY AFTER REUNIFICATION Terling (1999) described the correlates of re-entry into child protective services for abused and neglected children reunited with their families. The correlates of re-entry included: 1 Type of abuse: neglect cases are the most common type of cases among both the family reunification cases and the re-entry cases. Among fifty-nine cases of children who were examined after returning home, four had been repeatedly and severely physically and/or sexually abused, and previous documentation of risk of repeat abuse was present in those cases. Therefore, the mere presence of the severity of abuse warrants close attention during evaluation.

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2 Previous referrals: the presence of previous referrals to a child protective agency is a strong indicator of the risk of re-entry. Also, inability of the parent to change after prior interactions with child protective services is a good indicator of the risk of re-entry. Of the re-entry cases, approximately 67 per cent had previous referrals, versus 12 per cent of non-re-entry. 3 Substance abuse: some 50 per cent of re-entry cases involved substance-abusing parents, as opposed to 20 per cent for non-re-entry. Two important issues about substance abuse re-entry included: (i) presence of a substance-abusing partner not in treatment; and (ii) time allowed for recovery for the substance-abusing parent. Therefore in evaluating risk, importance should be given to perpetrators, partners, and their treatment and the length of recovery in caregivers needs to be monitored for longer periods of time (months versus years). 4 Parental competence is the presence or absence of parental ability to provide an environment that is safe and healthy for the child to grow and develop. Parental competence can be impaired in: (i) parents with low levels of intellectual functioning, thus possessing a deficit in their ability to process information and make decisions; and (ii) parents who lack insight and do not understand or accept the agency’s identification of their lifestyle and parenting as inappropriate. This lack of understanding interferes with their parenting skills and renders them incapable of changing their lifestyle/parenting to get their children back. 5 Social isolation and negative relationships such as an abusive spouse or a high level of family conflicts are significant predictors of re-entry. There was less correlation of re-entry to parental income, child protective risk assessment by caseworkers, compliance, and family functioning assessment. It is estimated that, despite efforts by Child Protective Services to rehabilitate abusive and neglectful parents/ families and make them suitable for the children, over one-third of these children return to the system due to additional maltreatment. The rate of children returning seems to be excessively high when dealing with the lives and future well-being of the children. Therefore, identifying for re-entry serves as a useful tool for practitioners and policy makers. Future research is needed to better understand the ‘whys’ behind the successes and failures in order to develop policies and practices that do more than help some of these children, some of the time. Research shows that although adopted children can have difficulties after placement, in the long run they progress well through their remaining childhood and into adult life. They tend to fare better than children brought up by their own parents in an abusive or neglectful environment, or in institutions, and are considerably better than children who have remained in long-term foster care. Several studies conducted in different countries to assess

the effects of long-term foster care have all concluded that, ‘Adoption, when available as an option, should be generally pursued rather than long-term foster care’ (Mather 1999).

Mental health issues in adopted children The emotional and behavioral adjustment of adopted children has received a great deal of attention as a result of the alleged over-representation of adopted children in mental health settings. The over-representation of adopted children and adolescents in clinical population research has varied widely. Several researchers have also suggested that the age of the child is an important factor; the older the child when placed in an adoptive home, the more likely the child is to have emotional and behavioral problems. A study conducted by Borders et al. (1998), using a nationally representative sample of children in the United States found no significant differences between adopted and non-adopted children on a range of adjustment variables. Brand and Brinich (1999) also concluded that a vast majority of adopted children showed patterns of behavior similar to those of non-adopted children. The over-representation of adopted children in mental health settings found in earlier studies might be attributable to the presence of small groups of severely troubled adopted children in clinical samples. For the small group of severely troubled children and adolescents who had extensive behavior problems and were seen more frequently at the mental health centers, a better understanding of the factors that make these children vulnerable is an area of future research. Many factors such as: (i) genetic predisposition to emotional and behavioral problems; (ii) prenatal substance abuse by birth mothers; and (iii) pre-adoption experiences such as neglect, abuse, or multiple placements may be contributing factors. This point needs to be emphasized because of the concerns that an error in interpretation could lead to pathologizing a very effective intervention for children. Most adopted children behave much like their non-adopted peers, and adoption remains a valuable and important social response to a complicated set of placement problems for children.

Role of child psychiatrist and medical practitioner in adoption assessment Like all other parents, potential adopters need to have a thorough description of the children’s past medical problems, their current health status, and their likely future needs. A comprehensive assessment of the child should be carried out to include the child’s physical, emotional, developmental, and social status. Medical practitioners and child psychiatrists involved in adoption work assessments should have knowledge of the long-term consequences of child abuse and neglect. They should have an understanding of genetic illnesses that can be inherited from the birth parents, and of the long-term consequences of the

Termination of parental rights and adoption 359

parental life styles that may have involved exposure to alcohol, substance abuse, high-risk behaviors and domestic violence. They should also be able to make recommendations on these children, and most often should be involved in considerable liaison with other health professionals, social services, foster parents and adopters. It is important to recognize that if adoption is a real option for a group of very disturbed or disadvantaged children, then appropriately trained medical advisors with experience and knowledge in pediatrics and child mental health must be available to support this service.

Yet waiting until a child turns seven years old is not recommended because:

Special issues and considerations

The timing and substance of conversations about the child’s adoption are challenging issues for both parents and providers. Most experts agree that open, life-long, and middle ground communication is the key to improving ego identity, smoothing the adaptation process and building a child’s positive self-image. One excellent method is to have a photo album of the child, beginning with the photographs of the adoptive mother and father going to the agency. Another photograph of the parents’ first contact with the child, along with a photograph of the mother carrying the child through the door into the new home. This provides a life-long continuity for the child’s understanding of the adoptive ‘birthing’ process into the adoptive home (Table 37.1).

TELLING A CHILD ABOUT BEING ADOPTED Telling a child about their unique route of entry into the family is a challenging process. In modern times it is recognized that children adapt more easily when they are aware of their birth circumstances. Therefore parents are now advised openly to discuss adoption, not only with the child but also with relatives and friends. Then comes the question of when and how to discuss adoption. A seven- to eight-year-old child who possesses characteristics of logical thinking could more easily absorb and understand the adoption process than a younger child.

• • • •

children ask questions earlier, and the parents would be forced to cover up or lie in some fashion; sometimes children may inadvertently overhear comments about their adopted status from their relatives or friends; children who look different from their parents often generate comments or questions from public; and health care providers ask questions regarding family history frequently in front of children.

Table 37.1 Stages of understanding adoption Child’s adoption-related tasks

Stage

Questions

Goals for parents and child

Infants and toddlers (0–2)

‘How do we begin?’

Adjusting to the transition to a new home Developing secure attachments

To become comfortable discussing adoption with others To use positive adoption language To become familiar with resources, support groups, books

Preschool (3–7)

‘Where do babies come from?’ ‘Where do I come from?’ ‘Why or how did you choose me?’ ‘Why don’t I look like you?’ ‘If you are in an adoptive family, can your birth parents or another family take you away?’

Learning about birth and reproduction Adjusting to initial information about adoption Recognizing physical differences within the family

To recognize child’s egocentric thinking style To begin communicating about different ways children enter families To realize that despite the child’s ability to parrot story, no abstract or conceptual understanding occurs yet To answer every question as faithfully as possible with positive adoption language To recognize physical differences but focus on similarities between child and the family To alleviate fears of losing adoptive parents by reassuring adoption is permanent (continued)

360 Family law and domestic relations Table 37.1 (continued) Child’s adoption-related tasks

Stage

Questions

Goals for parents and child

Middle childhood (7–11)

‘Why was I placed for adoption?’ ‘Why didn’t they keep me – didn’t they like me?’ ‘If you are adopted can you be un-adopted?’ ‘If they didn’t know how to take care of me, why didn’t someone teach them?’ ‘If they were poor why didn’t someone give them money?’ ‘Who do I look like?’

Understanding the meaning and implications of adoption Searching for answers regarding origin and reasons for relinquishment Coping with physical differences with the family Coping with the stigma of adoption Coping with peer reactions to adoption Coping with adoptionrelated losses

To acknowledge sadness, anger and grief associated with loss of biological parents To assure child they are not bad or defective by offering actual reason for adoption To refrain from making negative comments about biological parents To offer factual information without embellishment To reassure that adoption is not a second choice To provide support groups and services for child

Adolescence (12–17)

‘Who am I?’

Exploring the implications and meanings of being adopted Connecting adoption to one’s sense of identity Coping with racial identity Possibly searching for the biological family Coping with adoptionrelated losses

To recognize child’s abstract thinking style To recognize identity difficulties of dealing with biological and adoptive parents To share adoption papers To continue use of support groups and services for child and parents

Young adult (⬎18)

‘I want to meet my birth parents’

Considering searching for biological family Exploring implications of adoption as it relates to development of intimacy Coping with adoptionrelated losses

To help child seek biological family To minimize parent’s feelings of rejection To continue use of support groups and services for child and parents

Adapted from Brodzinsky, Singer, and Braff (1984); Smit (1996).

TRANSRACIAL ADOPTION The definition of ‘transracial’ is changing with an increase in placement of mixed parentage children and in recruitment of mixed parentage substitute families. It then depends on which categorization of race/ethnicity is used to define both parents and grandparents. These questions have significance in practice with regard to finding a matched placement and for research when establishing entry criteria to a transracial sample. In addition to racial/ethnic heritage, whether the child is visibly different from the new parents is likely to be a consideration in trying to achieve a match. Furthermore, a transracial placement may, to varying degrees, involve a transition across social class. Historians of transracial placement in the U.S. generally agree that its occurrence was extremely rare up to World War II (Silverman and Fiegelman 1990; Simon 1994). Initially, it occurred on a moderately large scale as a

form of inter-country adoption from the 1960s to the mid-1970s. First, U.S. military involvement in the Far East was the background to the adoption of Japanese, Chinese, and subsequently Korean and Vietnamese children by Caucasian Americans. The adoption of Hispanic children from Latin America has also been considerable (Feigleman and Silverman 1983). Second, liberal child welfare regulations actively promoted transracial placement as a means of assisting disadvantaged African-American children by finding alternatives to institutionalization. Third, Caucasian families were willing to accept placement of African-American children and were then seen as progressive in being prepared to withstand stigma for the sake of principle, as many were motivated by the ideal of a more racially integrated society. However, opposition arose against transracial placement. Concerns in both Native and African-American communities were based on the view that their culture

Termination of parental rights and adoption 361

was threatened with depletion if their children were placed away from home into Caucasian families. The rise of the civil rights and African-American consciousness movements took child welfare practice into the political arena, and the increasingly confident voice of some African-American professionals was raised in criticism of the adoption establishment. Transracial placement became emblematic of wider historical and political injustices. Such views were understandable in light of the lack of prior involvement and consultation with the African-American professionals and their community about the placement of African-American children in care. Hence, there followed a sharp decline in such placements after 1976. Some reviewers have disputed that this opposition was justified and maintain that ‘transracial placement’ is a viable means of providing stable homes for waiting children. Identity is one of the concepts most used by antitransracialists. It is crucial to child development, but its meaning remains less resolved. Some authors present ‘a positive sense of racial identity’ as a unified achievable goal (Maximé 1986), whereas others stress its fluidity and context dependency (Katz 1995). It has been defined as having overlapping parts such as personal identification and feelings about the self, as well as the degree of identification with various social groupings (Richards 1994). The process of transracial adoption seems to produce children whose self-esteem is at least as high as that of non-adopted children, and whose adjustment appears to be more than satisfactory (Silverman and Feigelman 1990, p. 199). Tatara (1993) reported that thirty-two states provided data for fiscal year 1989 on children being cared for by public agencies. There were about 34 per cent AfricanAmerican children out of the 380 000 children in out-ofhome placement. Other studies and estimates also suggest that African-American children remain in out-of-home placement significantly longer than Caucasian before being adopted (NABSW 1991). Only about 1 per cent of all adoptions were by white families adopting African-American children.

THE BABY BYRON CASE This is a custody case that had considerable media coverage. This case highlights the problems most commonly raised in the transracial adoption debate. Byron, an African-American infant born addicted to heroin and cocaine, had been raised since July 1992 – from the age of six days – by a Caucasian couple. This family had been selected to provide shelter for Byron on an emergency basis because his birth mother was unable to care for him. The foster family had their own biological child and two other adopted children. They were owners of a printing company. Byron’s father was reportedly killed in an automobile accident in 1992. Byron’s mother had four children who were cared for by two other families

because she reportedly had neglected her children in the past. When Byron was a five-month-old, child protective officials tried to remove him from care of the Caucasian family and place him with an African-American foster family. The Caucasian family objected, and the judge left the child with them on a short-term basis. When Byron was eleven months old, the judge once again ruled that Byron should continue to stay with the Caucasian family who expressed desire to adopt him. When Byron was seventeen months old the judge ruled that he should be returned to his biological mother, which in the judge’s opinion was in the best interest of the child. In referring to criticism of his decision, the judge felt it was racist to conclude that an African-American woman was no good, and then to give Byron to the ‘nice, white, suburban couple.’ Byron was then returned to his biological mother who was reported to have undergone treatment for her substance-abuse problems and was living in a residential drug treatment center. The foster family reportedly felt that race was very much an issue in this case. They suggested that if the court had considered only the child’s best interest, had visited Byron, and considered the birth mother’s history of drug addiction, the decision would have been different. Some commentators argued that children are best reared in families where they will be taught coping skills. Others suggested it was important for any baby to be kept with his or her own race. However, in June 1994, the judge removed Byron from his biological mother after she admitted using drugs. It is important to be mindful of the concepts of bonding and psychological parenting in the context of many adoption disputes where there might be considerable bonding or a unique affective connection between the child and the caregiver. Silverman (1993) reviewed transracial adoption research studies published in the past ten years, focusing on outcome in adolescence and adulthood. This included a comparison group; and they had their subjects placed for adoption at an early age. These studies assessed family integration, self-esteem, school performance, racial identity, and overall adjustment of the transracial adoptees. The first of the studies in this group carried out by McRoy et al. (1984) reported that family integration and general adjustment were successful; and their self-esteem and academic performance were satisfactory. Marked differences emerged in the area of racial identity. The in-racial adoptees referred to themselves as black, and 56 per cent of the transracial adoptees referred to themselves as mixed or part white. McRoy and her colleagues saw this racial group orientation among the transracial adoption children as problematic. Simon and Alstein conducted the longest running study between 1971 and 1991 (Simon and Alstein 1981; Simon 1994). There were again no impressive differences among the groups in regard to family integration, academic performance, self-esteem, and general adjustment. Most

362 Family law and domestic relations

children were under the age of three years at the time of adoption in this study. During adolescence and later as adults, the transracial adoptees were aware of, and comfortable with, their racial identity. There was clear variability in their reference group orientation, however, as many of them dated Caucasian and preferred Caucasian friends. It is important, therefore, for forensic experts or evaluators who participate in the transracial adoption context to make clear to the court the limitation of scientific-based data in this area. At the same time, the expert should tell the court what is known about parent– child bonding and the outcome of transracial adopted children. Undoubtedly, there will continue to be considerable disagreement about whether the best way to assure a promising future for an African-American child needing a permanent home is to seek qualified adoptive parents without regard to race. A thoughtful framework needs to be kept in mind as psychiatrists participate in this passionate debate of transracial adoption, which is of national importance.

SUBSIDIZED ADOPTIONS When financial aid is given to adoptive parents after the adoption of a child, it is called subsidized adoption. The intent of such adoptions is to insure permanent homes for children who would otherwise remain in foster care until they were adults. The amount of monthly payments and the length of time the subsidy is granted are left to the discretion of the social services commissioner, and can vary. A voluntary agency that has a child in foster care and wishes to recommend to the local department of social services adoption by the foster parents, with subsidy, may do so. The social services department may accept such recommendations, which include the amount of subsidy to be provided in the first year. After the adoption, the family is like any other family and is independent of the agency, except for annual evaluations of the need for continued subsidy.

OPEN ADOPTION The court has power under the N.Y. Domestic Relations Law, Section 111, not only to grant an adoption but also to grant the natural parents visitation rights even after the adoption, if it is in the best interest of the child. This is referred to as an open adoption. Parental visitation after adoption Visitation with a natural parent after adoption should be considered: 1 If there is a solid parent–child relationship, visitation after adoption should be explored and, if beneficial, implemented with consent of all parties, including the child.

2 The court should not force visitation after adoption without the consent of the adoptive parents and the child. 3 If visitation is provided, the court should retain jurisdiction and modify or vacate visitation where appropriate. Grandparents visitation after adoption The paramount concern of the court in making its final decision as to grandparent’s visitation must be the ‘best interests of the child.’ The child’s rights and wishes can be best considered if counsel represents them, and if the judge interviews the child as to his/her preferences. No petition for grandparent visitation should be dismissed without a hearing where the petition alleges that a relationship existed between the grandparent and the child. Prior to the hearing, a law guardian should be appointed to represent the interests of the child and his/her preferences with the best interests of the child as a controlling factor. Several factors to be considered in the decision making include: 1 The relationship between the grandparent and the child. 2 The age of the child, and his/her wishes. 3 The benefit to the child of a continued relationship with a grandparent. 4 The recommendation of the law guardian. 5 The contention and wishes of the adoptive parents. 6 The extent to which visitation with grandparents could interfere with the new relationship of the child and the adoptive parents. 7 Clinical assessment by a child psychiatrist should be considered in complex cases.

REFERENCES Adoption and Safe Families Act, Public Law 105-89, § 101(b), 42USC, 675 (7). Adoption and Safe Families Act of 1997. 1999. Changing welfare policies without addressing parental substance abuse. Journal of Contemporary Health Law Policy 16, 243–71. American Jurisprudence 2d 24, Generally § 974, 960 (1983). American Jurisprudence 2d 59, Generally § 10, 142 (1987). American Jurisprudence 2d 59, Discipline § 22, 152 (1987). Armitage, D.T. 1994: Parental competence and termination of parental rights. In Rosner, R. (ed.), Principles and Practice of Forensic Psychiatry. London: Chapman & Hall, 282–308. Barth, R.P. 1994. Adoption research: building blocks for the next decade. Child Welfare 73, 625–38. Benedek, E. 1972. Child custody law. American Journal of Psychiatry 129, 326–8.

Termination of parental rights and adoption 363 Borders, X., et al. 1998. Are adopted children at greater risk for negative outcomes? Family Relations 47, 237–41. Brand, A.E., Brinich, P.M. 1999. Behavior problems and mental health contacts in adopted, foster, and non-adopted children. Journal of Child Psychology and Psychiatry 40, 1221–9. California Civil Code § (226(a), as found in West’s annotated California Civil Code (main volume 1982; supplement 1991)). Child Custody Act of 1970, Michigan Comprehensive Law Annotated § 722.23 (west supplement 1976). Derdeyn, A.P. 1976. A consideration of legal issues in child contests. Archives of General Psychiatry 33, 165–71. Derdeyn, A.P. 1978. Child custody conflicts in historical perspective. American Journal of Psychiatry 133, 1369–76. District of Columbia Code 1981 § 16-2353 (1991). Fanschel, D. 1976. Status change of children in foster care. Final results for the Columbia University Longitudinal Study. Child Welfare 55, 143–71. Feigelman, W., Silverman, A.R. 1983: Chosen Children. New York: Praeger. Foster, H., Freed, D. 1964. Child custody. New York Law Review 39, 423–43. Genty, P.M. 1998. Permanency planning in the context of parental incarceration: legal issues and recommendations. Child Welfare 77, 543–59. Goldstein, J., Freud, A., Solnit, A. 1973: Beyond the Best Interests of the Child. New York: Free Press. Griswold v. Connecticut, 381 U.S. 479 (1965). In re Adoption of Sabrina, 325 Pa. Super. 17, 472 A. 2d 624, 627 (Super. Ct. 1984). In re Bernard Pecor, W.L. 10791 (CT 1992). In re Demetrius F. et al., 575 N.Y.S. 2d 552 (1991). In re Gault, 387 U.S. 1 (1967). In re Green, 292 A. 2d 2387 (1972). In re Interest of B.M. v. L.M., 475 N.W. 2d 909 (1991). Johnston, D. 1995: Effects of parental incarceration. In Gabel, K., Johnson, D. (eds), Children of Incarcerated Parents. New York: Lexington Books, 59–88. Katz, I. 1995: Anti-racism and modernism. In Yelloly, M., Henkel, M. (eds), Learning and Teaching in Social Work: Towards Reflective Practice. London: Jessica Kingsley Publishers. Lochner v. New York, 198 U.S. 45 (1905). Malmquist, C. 1968. The role of parental illness in custody proceedings. Family Law Quarterly 360, 364–5. Mather, M. 1999. Adoption: a forgotten pediatric specialty. Archives of Disability in Childhood 81, 492–5. Mathews v. Eldridge, 96 S.Ct. 893 (1976). Maximé, J.E. 1986: Some psychological models of black self-concept. In Ahmed, S., Cheetham, X., Small, J.

(eds), Social Work with Black Children and their Families. London: Batsford/BAAF.F. McRoy, R.G., Zurcher, L.A., Lauderdale, M.L., Anderson, R.E. 1984. The identity of trans-racial adoptees. Social Casework 65, 34–9. Mnookin, R. 1978: Child, Family and State: Problems and Materials on Children and the Law. Boston: Little Brown. National Association of Black Social Workers. 1991: Preserving African American Families: Research and Action Beyond the Rhetoric. Detroit: Michigan. New York Social Services Law § 384-b(7)(f)(5). Parham v. J.R., 99 S.Ct. 2493 (1979). Pierce v. Society of Sisters, 2689 U.S. 510 (1925). Post, S.G., Frutig, P.R., Bennett, J. 1997. The moral challenge of children at risk: protective policies and pediatrics. A report of the Children’s Services, Inc. Task Force of Greater Cleveland. Clinical Pediatrics (Phila.) 36, 625–33. Prince v. Commonwealth of Massachusetts, 46 N.E. 2d 755 affn. 321 U.S. 158 without opinions; Reh. Den. 321 U.S. 804 (1944). Richards, B. 1994: What is identity? In Gaber, I., Aldridge, J. (eds), Culture, Identity and Transracial Adoption. London: Free Association Books. Roe v. Wade, 410 U.S. 113 (1973). Santosky v. Kramer, 102 S.Ct. 1388 (1982). Schetky, D.H., Angell, R., Morrison, C.V., Sack, W.H. 1979. Parents who fail: a study of 51 cases of termination of parental rights. Journal of the American Academy of Child Psychiatry 18, 366–83. Schetky, D., Slader, D. 1980: Termination of parental rights. In Benedek, E., Schetky, D. (eds), Child Psychiatry and the Law. New York: Brunner/Mazel. Schoettle, U.C. 1984. Termination of parental rightsethical issues and role conflicts. Journal of the American Academy of Child and Adolescent Psychiatry 23, 629–32. Silverman, A.R., Feigelman, W. 1990: Adjustment in interracial adoptees: an overview. In Brodzinsky, D.M., Schechter, M.D. (eds), Psychology of Adoption. Oxford: Oxford University Press. Silverman, A.R. 1993. Outcomes of transracial adoption. Future Child 3, 104–18. Simon, R.J. 1994: Transracial adoption: the American experience. In Gaber, I., Aldridge, J. (eds), In the Best Interests of the Child: Culture, Identity and Transracial Adoption. London: Free Association Books. Simon, R.J., Alstein, H. 1981: Transracial Adoption: A Follow Up. Lexington, MA: Lexington Books. Snell, T.L. 1994: Special Report: Women in Prison. Washington, DC: US Department of Justice, Bureau of Justice Statistics. Stanley v. Illinois, 92 S. Ct. 1208 (1972). Tatara, T. 1993. Characteristics of children in substitute and adoptive care: based upon FY 82 through FY 89

364 Family law and domestic relations Data. Washington, DC: American Public Welfare Association. Terling, T. 1999. The efficacy of family reunification practices: re-entry rates and correlates of re-entry for abused and neglected children reunited with their families. Child Abuse and Neglect 23, 1359–70. United States Department of Justice. 1995: Sourcebook of Criminal Justice Statistics 1995. Washington DC: Bureau of Justice Statistics. Uniform Marriage and Divorce Act § 402 H.N. 1991. In Uniform Laws Annotated. St. Paul, MN: West Publishing Co. Wald, M. 1976. State intervention on behalf of neglected children. Stanford Law Review 28, 627–706. Wisconsin v. Yoder, 406 U.S. 205 (1972).

Further reading Alstein, H., Simon, R. 1977. Transracial adoption: an examination of an American phenomenon. Journal of Social Welfare, winter. Barth, R., Berry, M. 1988: Adoption and Disruption: Rates, Risks and Responses. New York: Aldine de Gruyler. Barth, R.P. 1997. Effects of age and race on the odds of adoption versus remaining in long-term out-of-home care. Child Welfare 76, 285–308. Borgman, R. 1981. Antecedents and consequences of parental rights termination for abused and neglected children. Child Welfare 60, 391–400. Brodzkinsky, D.M., Smith D., Brodzkinsky, A. 1998: Children’s Adjustment to Adoption: Developmental and Clinical Perspectives. Newbury Park, CA: Sage Publications. Carrieri, J.R. 1991. The adoption. Child Custody, Foster Care and Adoptions. New York: Lexington Books. Diamond, B.L. 1990: The psychiatric expert witness; honest advocate or ‘hired gun’? In Ethical Practice in Psychiatry and Law. New York: Plenum Press, 75–84. District of Columbia Code 1981 § 16-2351 (1991). Doe v. Roe, 526 N.Y.S.2d 718 (1988). Doe v. Commonwealth’s Attorney, 403 F. Supp. 1199 (1976). Fialkov, M.J. 1998. Fostering permanency of children in out-of-home care: psycho-legal aspects. Bulletin of the American Academy of Psychiatry and the Law 16, 343–57. Griffith, E.E. 1999. Forensic and policy implications of the transracial adoption debate. Bulletin of the American Academy of Psychiatry and the Law 23, 501–12. Hall, J.G., Mitchell, B.H. 1982. The role of law in protecting the child. A critique of the English system. Child Abuse and Neglect 6, 63–9.

Henry, D.L. 1999. Resilience in maltreated children: an implication for special needs adoption. Child Welfare 78, 519–40. Hollingsworth, L.D. 1998. Promoting same-race adoption for children of color. Social Work 43, 10–17. Holloway, J.S. 1997a. Foster and adoptive mothers’ assessment of permanent family placements. Archives of Disability in Childhood 76, 231–5. Holloway, J.S. 1997b. Outcome in placements for adoption or long-term fostering. Archives of Disability in Childhood 76, 227–30. In re Baby M, 525 A. 2d 1128 (NJ 1987). In re Baby M, 537 A. 2d 1227 (NJ 1988). In Matter of Baby M, 538 A. 2d 1227 (1988). In re Carmelata B., 579 P. 2d 518 (1978). Kermani, E.J., Weiss, B.A. 1995. Biological parents regaining their rights: a psycho-legal analysis of a new era in custody disputes. Bulletin of the American Academy of Psychiatry and Law 23, 261–7. Knight, M.R. 1985. Termination visits in closed adoptions. Child Welfare 64, 37–45. Lears, M.K., Guth, K.J., Lewandowski, L. 1998. International adoption: a primer for pediatric nurses. Pediatric Nursing 24, 578–86. Lykken, D.T. 1997. Incompetent parenting: its causes and cures. Child Psychiatry and Human Development 27, 129–37. Maas, H. 1969. Children in long-term foster care. Child Welfare 48, 321–33. McRoy, R.G. 1994. Attachment and racial identity issues: implications for child placement decision-making. Journal of Multicultural Social Work 3, 59–74. McRoy, R.G., Zurcher, L.A., Lauderdale, M.L., Anderson, R.E. 1982. Identity of transracial adoptees. Social Work 27, 522–6. Nordhaus, B.F., Solnit, A.J. 1998. Foster placement. Child and Adolescent Psychiatric Clinics of North America 7, 345–56. O’Flynn, M. 1999. The Adoption and Safe Families Act of 1997: changing child welfare policy without addressing parental substance abuse. Journal of Contemporary Health and Law Policy 16, 243–71. Proch, K., Howard, J. 1984. Parental visiting in foster care: law and practice. Child Welfare 63, 139–47. Ritner, B., Dozier, C.D. 2000. Effects of court-ordered substance abuse treatment in child protective services cases. Social Work 45, 131–40. Rosner, R. 1994: Principles and Practice of Forensic Psychiatry. Chapman & Hall Publications, Family Law Section. Rushton, A. 1994. Principles and practice in the permanent placement of older children. Children and Society 8, 224–5.

Termination of parental rights and adoption 365 Rushton, A., Minnis, H. 1997. Transracial family placements. Journal of Child Psychology and Psychiatry 38, 147–59. Schetky, D.H. 1992. Ethical issues in forensic child and adolescent psychiatry. Journal of the American Academy of Child and Adolescent Psychiatry 31, 403–7.

Stanton, A.M. 1998. Grandparent’s visitation rights and custody. Child and Adolescent Psychiatric Clinics of North America 7, 409–19. Vroegh, K.S. 1992: Transracial Adoption: How is it 17 Years Later? Chicago: Chicago Child Care Society.

38 Childhood attachment, foster care and placement LISA R. FORTUNA AND STEPHEN B. BILLICK

INTRODUCTION: THE ROLE OF THE CHILD PSYCHIATRIST IN PLACEMENT ISSUES During the past decade, child and adolescent forensic psychiatry has emerged as a sub-specialized area of increased activity, complexity, and utilization. This chapter examines the role of the child psychiatrist in foster-care placement in the advent of new legislation supporting more permanent placement for children. Child permanency planning arose through recognition that psychological harm is done to children who drift in and out of care, moving perhaps from their original family to foster parents or to children’s homes (Black and Wolkind 1991). A number of studies conducted during the 1970s, which collectively came to be known as ‘permanency-planning projects,’ showed that goal-oriented case plans and assertive case work, combined with intensive services to a child’s birth parents, could facilitate family reunification and permanent planning for children (Rosenfeld et al. 1997). In 1980, the Federal government passed Public Law 96-272, the Adoption Assistance and Child Welfare Act, which was designed to: end the drift of children in foster care; encourage planning for permanency for each child within a hierarchy of desirable options rather than long-term foster care; provide for oversight to move cases through the child welfare system; and develop preventative services to avoid family breakdown when children are temporarily removed from the home (Fein 1991). Subsequently, Congress passed Public Law 105-89, The Adoption and Safe Families Act of 1997 (ASFA), the first major reform of federal child welfare policy since 1980. Enactment of this new law and the need for requisite changes in State laws and policy have continued to generate significant discussions among policy makers, service providers, child welfare experts, and judicial officers. In addition, year 2000 guidelines were designed by the Federal government as part of the president’s initiative on permanency for children, in order to provide legal options

Table 38.1 Increasing permanency of placement Low permanency

High permanency

Return to genetic parents after temporary kinship foster care Return to genetic parents after temporary non-kinship foster care Extensive contact with genetic parents with foster care with tenure Contact with genetic parents with permanent guardianship to new custodian Contact with genetic parents with new adoptive parents New adoptive parents with no contact with genetic parents

and recommendations for the States (US Department of Health and Human Services Guidelines 1999). These can be used to identify legal questions that need to be addressed and to facilitate clear policy choices to help achieve permanence for children. The guidelines describe specific placement options and take into consideration multiple child and family situations and factors. Options range from temporary kinship foster care to adoption and a potential range of originating parental involvement is delineated (Table 38.1). The child psychiatrist has an essential role as an expert in child development, and brings knowledge of biological and psychosocial understanding critical for the care and planning for children in the foster-care system under these guidelines. The child psychiatrist can evaluate families and parents in the context of placement planning. When children are known to local authority services and are received into care, child psychiatrists are asked to comment upon the suitability of various placement options open to the local authority itself, or to the court already concerned with the child. It is important that the child psychiatrist knows these options and is familiar with recent policy issues regarding children in foster care.

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Ultimately, any clinical assessment of a foster child will require that the psychiatrist understand the child, the genetic parents, the foster parents and the context of the agency. In other words, he or she will become involved in a complex system that has many components. This chapter is a discussion of the developmental issues important in providing appropriate recommendations for children in foster-care placement. This includes a discussion on attachment theory and the latest in biological research regarding attachment. A discussion on the evaluation and definition of parenting is also provided. These are then followed by a discussion of policy issues affecting children in foster care and the role of the child psychiatrist in the complex efforts to provide stability for these youth. The goals of the chapter are to:

• • • •

Increase awareness about the developmental issues important to consider when performing evaluations and providing recommendations for children in the foster-care system. Provide an overview of attachment theory and attachment research and relate it to policy and practice regarding establishing permanency for children. Highlight some of the recent policies regarding child placement, foster care, parental termination and the role of the psychiatrist. Highlight areas of particular concern to child and adolescent psychiatrists within the child welfare system.

DEFINING AND EVALUATING PARENTING A child psychiatrist’s involvement in the foster-care system is important, as he or she presents unique skill to the evaluation of families and children. In addition, the evaluation of both individuals and families must utilize what is available from legal, social, biological, and psychological constructs. This section focuses on a basic understanding of what is the role of parenting and what are the rights of parents who possess a variable degree of competence. There are two important questions to begin with: 1 What is a parent, and what constitutes good parenting? 2 What legal rights does the state give to parents, and how do these relate to parental termination issues? In Smith v. OFFER (1977), the Supreme Court held that the right of genetic parents to custody of their children is a ‘constitutional recognized liberty interest that derives from blood relationships, state law sanction, and basic human right’ (Schetky 1992). The court also noted that the importance of the familial relationship to the individual and society stems from the emotional attachments that derive from the intimacy of daily association. Therefore, the court acknowledges that a deeply loving and interdependent relationship between an adult and child may exist in the absence of a blood relationship. However, the

court usually accepts the family to be the primary blood relation kin involved in the young person’s life. Parenting is the task of raising children, providing them with the necessary material and emotional care to further their physical, emotional, cognitive, and social development. Parental responsibility in law is conferred on both parents if married to each other, and on the mother alone if not. The term ‘parent’ embraces all the powers and duties of parents and guardians of a child’s person and the child’s estate as recognized in common law (Schetky 1992). A father who is not married to the mother may acquire parental responsibility by formal agreement with her or by application to a court. In return, the responsibilities of the parents are to provide for the child his or her basic needs and to maintain the safety and healthy development of that child. Parents of course come with different levels of competency, strengths and disabilities. These disabilities and impairments can range from mental illness to physical illness, to issues of personality disturbance and substance abuse. Of course, the role of the child psychiatrist is to assess to what level these impairments affect a child’s wellbeing either through parental acts or omissions. In addition, it is important to remember that parenting is rarely a function of one individual alone, and wider social supports are also relevant. With greater isolation of the parents and the more the parental responsibility weighs on two individuals alone (without social support), the more likely that parental disabilities will adversely affect the capacity to parent. In addition, there are many instances where the primary parenting responsibilities are taken over by alternative individuals such as grandparents. In some cases a foster-care parent may have been the one consistent adult in a child’s life. The child’s contribution is also important. Thus, at different ages children need different things from their parents. The parenting needs of a mentally or physically handicapped young child are very different from those of a disturbed teenager. A child’s temperament may also play a part in rendering him or her difficult to parent, calling for unusual qualities in the caretaker. In addition, children with insecure attachment behavior may be more vulnerable to separation from parents. It must also be noted that children may have significant attachment to a parent despite a history of abuse on the part of that parent. Children – especially young ones – may blame themselves for any separations and may feel that they are not worthy of a parent’s love, even an abusive parent. They may idealize their parent in this way because the alternative – recognizing that their parents are bad – is a hopeless one. In court, one is often dealing with value judgments held by other people rather than objective information about a person’s ability to be a parent. Thus, terms such as ‘mentally retarded,’ ‘schizophrenic,’ ‘drug addict,’ ‘alcoholic,’ ‘psychopathic,’ ‘personality disordered’ may be used to suggest that a parent is inevitably incompetent or unsuitable. The child psychiatrist’s role often may be to

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translate these value-laden labels into everyday language. The child psychiatrist will need to explain and evaluate issues such as the following:

7 Does the child have special needs or problems that require exceptional parenting skills? 8 Why does the parent want to regain custody?

• • • • • • • • • • • • • • • • • •

Many of the issues, which will follow in this text, discuss the balancing of legal rights of parents, determining family and attachment issues to be considered in determining the best interest of a child. How does one consider attachment as it relates to child development when considering placement issues? Recent research in attachment theory and its biological constructs are worth considering as we attempt to balance the rights and needs of parents, children, and the state.

Physical abuse Sexual abuse Munchausen’s syndrome by proxy Neglect Cruelty Emotional abuse Abandonment Gross emotional or behavioral disturbance in the child Gross developmental delay in the child Failure to thrive/deprivation dwarfism Parental mental illness Parental personality disorder Parental addiction Parental mental handicap Parental lifestyle (e.g., prostitution, multiple caretakers) Parental competence to care and protect Divorce proceedings Placement decisions when the child is already in alternative care.

Parenting capacity in itself is not assessed by one interview or by references from one parent or other individual regarding another parent. It requires a full assessment of the influence of current circumstances and the parent– child relationship. It is important to remember that, given a change for the better, individuals with the most unpromising backgrounds can prove themselves to be ‘good enough parents.’ The alternative to this is in cases where rehabilitation is questionable and a child is already placed with a good foster parent. The stability of this alternative ‘parent–child’ bond must be preserved to the best of the foster-care system’s ability. The standard of ‘the child’s best interest’ has been accepted as a guiding principle in custody decisions and one that takes precedence over parental interests. With the emphasis on permanency, the parental rights may need to be terminated in order that the alternative parent–child bond can become stable and permanent. In assessing a parent the following are considerations: 1 Is the parent currently able to meet the child’s needs? 2 What is the parent’s current level of functioning, and does this represent an arrest in development or regression? 3 Is the parent’s condition treatable and, if so, is the parent motivated to change and willing to accept treatment? 4 What is the parent’s record with respect to following through with recommendations for treatment? 5 If the parent is treatable, will help improve the parent sufficiently in time to meet the child’s needs within the child’s time perspective? 6 What is the impact of the parent’s pathology or conduct on the child? What ameliorating social support factors might be present such as the protection of the child by other parental figures (e.g., a spouse or a grandparent)?

ATTACHMENT Psychiatrists may be asked to comment on or measure the child’s attachment to their family of origin. In evaluating a family situation it is useful to distinguish between secure and insecure attachments. Young or emotionally immature children may be strongly attached to an abusive parent. There will also be a need to evaluate the current circumstances when the child is in a foster home and a need to consider attachments developed to foster parents or step-parents. The child psychiatrist may not only have to describe a child’s current attachment, but may also have to comment on the capacity for developing new attachments. This is a task based on developmental lines looking at the child’s current maturity as well as deficits. In the 1970s, Goldstein and his colleagues Anna Freud and Solnit (1973, 1979) published two highly influential books that asserted forcefully that a child’s relationship to the psychological parent is more important than blood ties. Furthermore, they felt that the parent–child relationship had to be permanent and exclusive to count as psychological parenting. Multiple placements and foster homes that lasted for years without a firm commitment to continuity deprived children of their fundamental need for emotional constancy (Rosenfeld et al. 1997). A great deal of our understanding in regards to infantile attachment comes from the studies of Bowlby (1958, 1969/1982, 1973, 1980). In his work on attachment, Bowlby observed that children experience intense distress when separated from their mothers, even if they were fed and cared for by others. He rejected two widely accepted theories of the time that offered explanations for the child’s ties to his or her mother as being related to secondary drives. Psychoanalytical and social learning theories alike proposed that the infant’s relationship with the mother emerges because she feeds the infant. Bowlby was aware of evidence from animal studies that refute these theories. For example, Bowlby noted the reports by Harlow and Harlow (1935) showing that rhesus monkeys in times of stress preferred not wire-mesh ‘mothers’ that provided food, but cloth-covered mothers that afforded contact comfort. Soon, systematic observations of human infants

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were made, and it became evident that babies also became attached to people who did not feed them. Bowlby incorporated discussions with colleagues from such fields as evolutionary biology, ethnology, developmental psychology and cognitive science and control systems theory. There are several concepts that Bowlby brings to an initial understanding of infantile attachment. 1 There is a biological basis for attachment behavior. Bowlby proposed that selection favored attachment behaviors because they increased the likelihood of child–mother proximity, which in turn increased the likelihood of protection and provided survival advantage. 2 Attachment behavior is part of an organizational system with a variety of attachment behaviors. The behaviors chosen in a specific context are the ones the infant finds most useful at that moment. Thus, a non-mobile child may cry and reach out to contact its mother, but a mobile child may crawl instead. Children will adapt behaviors to different situations. 3 There are two classes of factors that contribute to activation of the attachment system. One relates to conditions of the child (such as illness, fatigue, hunger, pain), whilst the other relates to conditions of the environment such as the presence of threatening stimuli; particularly important are the location and behavior of the mother. 4 Bowlby proposed that the organization of the attachment behavioral system involves cognitive components – specifically, mental representations of the attachment figure, the self and the environment – all of which are largely based on experience and help children make predictions about the future. Lack of a stable mental representation may be destabilizing and result in behavioral problems. 5 Whereas nearly all children become attached, not all are securely attached. Secure attachment occurs when a child has a mental representation of the attachment figure as available and responsive when needed. 6 Infants are thought to form more than one attachment. By the end of the first year an infant has a ‘small hierarchy’ of major caregivers, which may include grandparents, day-care providers, aunts, uncles, etc.; however, they strongly prefer their mother or primary caregiver, usually the mother. 7 It is important to note that an infant does not treat all attachment figures alike. They are not interchangeable; rather, an attachment hierarchy exists. Children have a tendency to ‘choose’ a special caregiver. 8 Perhaps most importantly, according to Bowlby, emotions are strongly associated with attachment. He writes: Many of the most intense emotions arise during the formation, the maintenance, the disruption, and the renewal of attachment relationships. The formation of a bond is described as falling in love, maintaining

a bond as loving someone, and losing a partner as grieving over someone. Similarly, threat of loss arouses anxiety and actual loss gives rise to sorrow; whilst each of these situations is likely to arouse anger. The unchallenged maintenance of a bond is experienced as a source of joy. (Bowlby 1979, p. 81)

In summary, Bowlby describes a complex set of behaviors related to attachment that are perhaps biologically rooted in our species and elegantly incorporated into the normal socialization of the human infant. This socialization and development of self under the guidance and security of a primary attachment figure is essential for a healthy child. Bowlby’s ideas have been further expanded and supported by biological research.

Biological models of attachment and social buffering More than 25 years of research on the antecedents of attachment security now begins to answer the question: Is parental sensitivity, the ability to sense a child’s needs including exploration and support, indeed an important condition for the development of a secure attachment relationship? A meta-analysis by De Wolff (1997) notes that parental sensitivity is not the exclusive or most important factor in the development of attachment. Mutuality and synchrony between child and parent are quite strongly associated with attachment security as are stimulation, positive attitude, and emotional support (De Wolff 1997). Social supports are important for the well-being of an individual. Social psychobiology research, and particularly research on affiliations, has also increased dramatically during the past 25 years. For one, the loss or absence of valued social companionship is a well-known risk factor for depression. Patients with major depression show exaggerated cortisol responses to supraphysiological, maximal and submaximal doses of adrenocorticotropic hormone (ACTH) (Levine and Lyons 1997). Adrenal hyperresponsiveness to ACTH is a state-dependent outcome that subsides with clinical recovery. De Wolff (1997) found that social separations in squirrel monkeys can induce long-lasting increases in cortisol similar to those in human depression, whereas companionship can result in social buffering. These findings are consistent with neuroendocrine interactions hypothesized to occur during major depressive disorders in humans, and point to the importance of affiliations, which are related to human bonding. Gunner and Connors (1998), in their studies of adrenocortical activity and behavioral distress in human newborns, note that stress reactions of the adrenocortical system (persistent increases in cortisol) are triggered by sudden changes in demands on the organism that the organism is not prepared to meet. At the very least, developmental and physical status would influence the experience of increased demand: the coping behavior initiated

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also would be expected to vary with the nature of the demand, among other factors. In studies of psychological and physiological responses to stress, it has been found that trauma and re-experiencing of trauma may be associated with dysfunction of the locus coerulus, amygdala and hippocampal systems, as well as result in dissociation of the hemispheres (Henry 1993; Nachmias and Gunner 1996). Right hemisphericdamaged children lose critical social skills, and in adults the related sense of familiarity critical for bonding is lost. Such loss of social sensibilities may account for the lack of empathy and difficulties with bonding found in sociopathy and borderline personality disorder – conditions now believed to result from repeated trauma during development (Lyons-Ruth 1996). If one considers separation from parents and abuse as trauma, such findings have potentially significant implications. Biological research continues to study how bonding and social affiliation affect the individual, and are mediated. Bowlby initiated an understanding of the importance of attachment and bonding as it relates to normal development. The importance of a secure and supportive environment and social support for a child is indisputable, and yet our understanding of the role of separation and trauma in the future functioning of the individual is still in need of further examination. Clearly, a child who has had a primary caregiver for years other than the biologically originating parent (such as a foster parent) can be expected to have a far stronger and superior attachment with the primary caregiver rather than the originating genetic parent. This means that both the primary caregiver and the originating parent are to be understood as being the biological parents of the child, simply through different mechanisms.

PUBLIC POLICY AND STATE LEGISLATION GOVERNING PERMANENCE FOR CHILDREN An understanding of attachment brings an awareness that America’s foster children spend far too long waiting for, and are deprived of, the permanent and stable homes necessary for their healthy development. The Guidelines for Public Policy and State Legislation Governing Permanence for Children were developed as one of several action steps undertaken by the Federal government in response to Adoption 2002, President Clinton’s Initiative on Adoption and Foster Care. It is a technical assistance document designed to help States review their own laws and develop statutes and policies that reflect the best practices in child welfare today. The Guidelines are intended to assist the States as they focus on critical issues affecting child welfare practice and the courts. The Guidelines particularly focus on the courts and legal processes involved in decisions affecting children and families; they were written for a broad audience of stakeholders in the public policy arena, including State legislators and their staffs,

judges, public child welfare officials, and other Statelevel policy makers and program managers (USDHHS Guidelines 1999). Several important assumptions are articulated in the Adoption 2002 report. The child psychiatrist involved in forensics needs to be aware of these policies and assumptions as he or she will be intimately involved with them when involved in the foster-care system. They are as follows:

• • • • • • • •

Every child deserves a safe and permanent family. Children’s health and safety is a paramount concern that must guide all child welfare services. Children deserve prompt and timely decision-making as to who their permanent caregivers will be. Permanency planning begins when a child enters foster care; foster care is a temporary setting. Adoption is one of the pathways to a permanent family. Adoptive families require supports after the child’s adoption is legalized. The diversity and strengths of all communities must be tapped. Quality services must be provided as quickly as possible to enable families in crisis to address problems.

PERMANENCY FOR CHILDREN ‘Permanency’ means that a child has a safe, stable, custodial environment in which to grow up, and a life-long relationship with a nurturing caregiver. The concept of permanency has assumed a central place in American child welfare law and policy because permanency establishes the foundation for a child’s healthy development. The basic needs of children include safety and protection; a sense of identity; validation of themselves as important and as valued persons; stability and continuity of caregivers; an opportunity to learn and grow cognitively, physically and emotionally; and a protected custodial environment that is legally secure. The literature shows that children do better in a stable family. When their own family cannot be rehabilitated, children do better in stable placement, and do better than children who are returned to an unstable home. Except for certain judicial proceedings, children per se are not afforded any rights under the United States Constitution. However, under case law, in face of abuse, neglect, or abandonment the ‘right of family integrity’ must yield to the State’s interest in protecting children. The rights of a child to his or her psychological home, to some home, or to a home free of abuse are in potential conflict with the rights of the biological originating parent to possess the child. The interest of society is not served when children are mistreated, grossly neglected, or allowed to languish in the limbo of foster care. The Adoption Assistance and Child Welfare Act of 1980, was the first federal statute to discourage excessive reliance on foster-care placement and

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promote greater use of services to assist and rehabilitate families, discouraging out-of-home placements. It introduced the concept of permanency planning and incorporated specified time frames for decision making for children and families. Other legislative initiatives to support or promote permanency include the Family Preservation and Family Support Services Program (FPFS) (P.L. 103-66) established in 1993 and amended in 1997, the Multiethnic Placement Act of 1994 (P.L. 103-382) with its 1996 Interethnic Placement Provisions (P.L. 105-89), and the Adoption and Safe Families Act (P.L. 105-89) enacted in November of 1997. The legislation that established the Family Preservation and Family Support Services Program focused primarily on the front-end of the child welfare system by providing additional funding for preventive services and crisis services for children and families at risk. Implementation required active involvement of the broad community of stakeholders to focus on needs and services for children and families. In response to major concerns about the extended length of stay and poor outcomes for minority children and the prevalence of racial preference in placement, the Congress enacted the Multiethnic Placement Act (MEPA), and the Interethnic Placement Provisions (IEP), enacted in 1994. MEPA outlawed discriminatory practices which will be discussed further later in this text. Ultimately, preventing the breakdown of these families will require a wide array of services. Services need to include housing assistance, securing services of a homemaker, nursing care and respite care as well as traditional social, psychological and psychiatric care. The recently authorized Adoption and Safe Families Act of 1997 (ASFA), enacted as an amendment to titles IV-B and IV-E, comprehensively addresses critical permanency issues in child welfare and the law. Safety is the paramount concern that must guide all child welfare services. ASFA clarifies the reasonable efforts requirements by identifying those circumstances in which States are not required to make reasonable efforts to keep the child with the parents. Cases in which a parent has been convicted of murdering a child have resulted in having their rights to another child involuntarily terminated. Similarly, a parent who has committed a felony assault resulting in serious bodily injury to a child, or when a court has found that the child has been subjected to aggravated circumstances such as abandonment, torture, or chronic abuse, parental rights have been terminated. This requires criminal record checks on the backgrounds of prospective foster and adoptive parents. To ensure that the system respects a child’s developmental needs and sense of time, the law reaffirms reunification as a viable option for children whose families can provide them with a safe, nurturing environment. The law strongly promotes the timely adoption of children who cannot return safely to their own homes, and radically changes the time frames for decision making for children. ASFA requires that if families cannot be reunited, efforts

be made to find families for children who are legally free and waiting for permanent placement. ASFA establishes adoption incentive payments for States to increase the number of children who are adopted, leading to a doubling of the annual number of children adopted by the year 2002. It authorized pre- and post-adoption services to support adoptive families and supported activities to expedite the adoption process. Innovative approaches are needed to achieve the goals of safety, permanency, and well-being. To allow for serious consideration of new ways to serve children and families, the law expands Federal authority to support projects for the examination of issues, and the demonstration and evaluation of program improvements related to child welfare.

Case examples A seven-year-old boy was removed at birth from his physically abusive cocaine-using mother and placed in foster care for seven years with a kinship foster mother. The natural originating mother maintained superficial weekly visits and requested a return of the child when she became drug free. The child adamantly refused to go and asked that the ‘maternal visits’ should cease. Assessment of the child clearly demonstrated that the foster mother was the child’s primary caregiver and primary attachment figure. The biological nature of genetics was thus pitted against the biological nature of maternal attachment. This is an example of how legal reform and updating need to be implemented in order to easily and quickly support a child’s reasonable request.

Clinical issues The child psychiatrist’s role is to keep the foster-care child’s best interest primary in regards to the policy. One of the guiding principles is that the independent evaluator must bring to light what it is like to become a foster-care child. Most children have been placed suddenly for their protection. Frequently, the children cannot be prepared in advance and are confused and traumatized in the earliest hours of separation. Many children who enter foster care have been deprived and abused before this, which makes the toleration of extreme stress even more difficult for them. Many children become anxious, and some regress (e.g., become enuretic). Others with pre-existing psychiatric and emotional problems cannot adjust and are moved to other placements. Children miss their parents – even those that abused them. Parent-like children who have helped care for their younger siblings are often upset because placement interferes with their job/role and attachment. Because foster children are separated from their biological originating parents – often against their will – they very often feel angry and deprived, and long to be

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reunited with their parents. To keep loyalty to the natural parents intact, the child may need to be emotionally distant from and oppositional toward his or her new foster parents, which makes the child less endearing. Children have fantasies of being ‘thrown away’ or ‘bad,’ and at times idealize their abusive parents in retaining their hope in the ‘good parent.’ If adoption is planned or imminent but the child has not agreed emotionally, he or she may act out to disrupt the plans. Children who have experienced repeated placements often become standoffish as a way of protecting themselves from future losses. A history of past and present attachments will often help to differentiate what is a defensive posture from the inability to attach. If a child cannot attach and is placed in a pre-adoptive home, the preadoptive parents are likely to become discouraged and feel as if they have failed. Both children and parents (originating, foster or pre-adoptive), would benefit from concurrent psychotherapy to address these important issues. These and other issues should involve a full evaluation by a child psychiatrist, and should be considered when making recommendations for a child. In addition, the child psychiatrist who interfaces with the system can assist in developing a better understanding of the child’s behaviors and potential barriers to successful placement. The child may require some assistance in adjusting to the discomfort of the foster-care system and potential permanent placement and adoption. Some severely disturbed children may need a period of emotional grooming in therapeutic foster care before they are adoptable. Again, safety is the paramount consideration and if services for parental and family rehabilitation are not successful, then transition to free the child for adoption should be inevitable. Special consideration for permanent placement and adoption needs to be made for a long-term foster-care family for which the child has adjusted to or has been in since infancy.

SPECIAL CONSIDERATION OF MULTIETHNIC AND RACIAL ISSUES Although they comprise only 35 per cent of the general population, children of color account for over 64 per cent of the children in foster care, according to the most recent data available (USDHHS, Children’s Bureau 1997). When a family is reported for suspected child abuse and neglect, minority children, particularly African-American children, are more likely than white children to be placed in foster care rather than receive in-home services – even when the children share the same problems and characteristics (USDHHS, Children’s Bureau 1997). AfricanAmerican and Latino children tend to remain in temporary foster care twice as long as white children and, once legally free for adoption, wait longer to be adopted than do white children. Similarly, despite the Indian Child Welfare Act,

Native American children also are significantly over represented in the foster-care population. Therefore, the overrepresentation of children of color who have been placed in foster care because of suspected child abuse and neglect is a particularly troubling phenomenon. Like race, ethnicity, and culture, socioeconomic status also correlates with entry into foster care. Close to 60 per cent of foster children come from families receiving government support. More than half (at least 52 per cent) of the children in foster care come from families that are title IV-E eligible; that is, these families are at the lowest end of the family income scale (Lindsay 1991). Parents’ inadequate income best predicts foster-care placement rather than the actual severity of abuse. These families with inadequate income were less likely to be provided supportive services. Recent legislation is targeted at providing equal services. Lack of a same-race foster-care placement is no longer an acceptable reason for delay.

Clinical issues Representatives of culturally divergent communities often feel that ‘eurocentric’ prejudice interferes with agencies making serious efforts to engage the original parents so that children can be returned to their care, or so that they can receive services. Family perceptions and frustrations need to be considered. The clinician should ensure that a full and culturally sensitive evaluation of all families occurs. Care should be taken in ensuring that reunification and rehabilitation are not overlooked in certain populations. In order to look into feasible alternative approaches to treatment, one must be aware of psychosocial issues involved in lower socioeconomic status communities. This includes an awareness of limited resources and the risk factors for substance abuse. Strengths should be supported in order to increase the potential for improvement. These strengths may include family networks and support, education and parental motivation for treatment services as appropriate. As always, emphasizing the child’s safety and well-being are the paramount concern.

ADOPTION Adoption remains the placement of choice when a child cannot be returned to his or her birth family. This gives the child a new, permanent, legal family with the same legal standing and protection as a family created through birth. Adoption is the permanent transfer of all parental rights and responsibilities concerning a child to the adoptive parents (see Adoption Guidelines in Table 38.2). Children may be adopted by relatives, step-parents, foster parents, or persons previously unrelated or unknown to them. The Federal government now recommends that

Childhood attachment, foster care and placement 373 Table 38.2 Federal guidelines for adoption a. Adoption is irrevocable, even if the post-adoption contact agreement is violated, modified, or set aside. b. A birth parent’s voluntary relinquishment of parental rights may not be set aside if a post-adoption contact agreement is violated, modified or set aside. c. The court may approve the post-adoption contact agreement only if the parties, including a child over the age of 12 years, agree and the court finds that the agreement is in the best interests of the child. d. The court may approve post-adoption contact ranging from occasional exchanges of cards, photographs and information to regular personal visits in whatever level of detail the parties agree to and the court deems appropriate as supported by the record. e. Any party to the post-adoption contact agreement may petition the court to modify the agreement, order a person to comply with the agreement, or to void the agreement. f. The court may order compliance, modify, or void the contact agreement only if the parties agree or circumstances have changed and it is in the best interests of the child. The court may use its contempt power to enforce compliance as appropriate.

State law authorize a court to terminate parental rights or grant adoption for a child in foster care, to approve an agreement by the adoptive parent or parents to allow post-adoption contact between the child and a birth parent, sibling, grandparent, or other relative or individual who has a significant emotional tie to the child. State law should provide for the legal enforcement of this agreement for post-adoption contact, while maintaining the supremacy of the adoption. In addition, State laws should authorize judicial approval and enforcement of agreements for post-adoption contact in appropriate circumstances. Birth parents, when given a chance, can be tremendous resources in planning for their children, and their participation can have positive outcomes for adoption. For many years, certain adoption agencies have placed children in adoptions where birth parents maintain contact and exchange information. States could encourage birth parents’ involvement in planning for relinquishment of parental rights and adoption of the child (USDHHS Guidelines 1999).

Clinical issues Adoption brings forth the issue of termination of parental rights. There is very little in the literature regarding assessing parents in regards to termination of parental rights, and even less so on issues of maintaining contact when the child is placed outside of the home. In considering maintaining contact, one has to consider the parent–child relationship and the ability of the child to manage issues of loyalty to the biological parent without disturbing the integrity of his or her new family unit. There may be

pitfalls to maintaining ties between birth parents and their children after the children have been placed into new permanent homes. For example, birth parents might only reluctantly accept the new placement and may later try to disrupt or undermine it. The child may be fearful or resistant to continuing contacts. Determining whether an individual child needs a permanent placement with ongoing birth parent–child contacts or contacts with siblings or members of the extended family is a subtle and sophisticated task. Adoption with contact will be most successful when all of the parties to the contact agree: (i) that the contact should occur; (ii) what type of contact should occur; (iii) how or where the contact will occur; and (iv) how frequently the contact will occur. Such agreements should be flexible enough to accommodate the changing needs and abilities of all. Contact should not be allowed if the child is fearful of the parent or fearful that he or she will be removed from the adoptive home and returned to the parent. This is important when the child has had many placements and does not have strong ties to the parent, or if there is evidence that post-adoption contact will undermine the integrity of the adoptive relationship. Attachment and identification issues are critical. New federal policy guidelines state that ‘The court may approve the post-adoption contact agreement only if the parties, including a child over the age of 12, agree.’ Some children may have trouble making the decision to terminate their parents’ rights to them and may feel guilt in doing so. Clinicians need to be sensitive to this and give recommendations to help the child through this process. Capacity for object relations remains a major criterion for placement in an adoptive home. The most difficult children to place are those with severe behavioral problems, including children who are acting out sexually. One must always consider the risk of failed adoption with these children, and the devastating effect of yet another rejection. At times adoption may not be the best choice. The following case example demonstrates this idea: The child psychiatrist and the children’s therapist recommended against placing the children in adoptive homes but were not heard. An adoption worker was assigned to the children and pursued life history books with them. The children’s behavior regressed severely and they became almost unmanageable around the adoption worker’s visits. A team review was held six months later. The consulting child psychiatrist and both therapists reiterated the need for long-term placement of the children in their present foster home. Plans for adoption were dropped; the children were told they would remain with their foster parents, and their behavior improved. The foster parents were willing to keep the children, but were understandably reluctant to adopt, given the extent of the children’s behavior problems.

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For situations like this, the Federal government has provided guidelines for the alternative to adoption – permanent guardianship.

GUIDELINES FOR PERMANENT GUARDIANSHIP The term ‘legal guardianship’ means a judicially created relationship between child and caretaker which is intended to be permanent and self-sustaining, as evidenced by the transfer to the caretaker of the following parental rights with respect to the child: protection; education; care and control of the person; custody of the person; and decision making. The term ‘legal guardian’ means the caretaker in such a relationship (ASFA, Public Law 105-89). Federal guidelines want State courts to award permanent guardianship to an individual or couple who will serve as permanent caregivers of a child without ongoing State supervision. Although this is not full adoption, some transfer is in the child’s best interest. Permanent guardians should have legal custody and control of the child, including the power to make major decisions. Genetic parents may retain some ongoing contacts with the child and may retain the obligation to pay child support. Suitable relatives should be initially preferred for all placements, including placements for permanent guardianship. In a contest for guardianship there should be a presumption that the best interests of the child are served by placement with a relative unless a person competing for permanent guardianship has already an established custodial relationship having had custody of the child for twelve of the past eighteen months. In that case, the court shall evaluate the competing potential guardians on an equal basis with no presumption and should award custody based on the best interests of the child. Because the goal of permanent guardianship is to create a permanent family for the child, guardians should be adult individuals or couples, rather than public or private agencies. Once a permanent guardianship is established, there should be no need for ongoing court review or agency supervision of the guardianship. It should be permanent.

Clinical issues Adoption is a serious step, but missing the opportunity for adoption can be a grave error as it provides the greatest stability. The following should be provided before adoption is overlooked:

• •

Skilled counseling to enable the child to grieve and accept the possibility of adoption is necessary such as when the child is older and/or unwilling to cooperate with adoption. Aggressive efforts should be made to secure an adoptive family including the use of adoption exchanges and other adoption recruitment efforts.

• • • •

All interested inquirers should be considered as possible adoptive parents, regardless of race or geographic location of the inquiring families. Counseling should be provided to potential guardians about the benefits of adoption. The social service agency should engage in efforts to eliminate other possible systemic barriers to adoption such as availability of services to enable independent living for children with developmental disabilities. A limitation to adoption may be seen in the child living with a relative or caregiver who is committed to be a party to a legal guardianship and agrees to raise the child to adulthood but is not willing to support termination of parental rights and expects to secure a voluntary relinquishment.

GUIDELINES FOR STANDBY GUARDIANSHIP It is recommended by Federal guidelines that State statutes provide for the legal option of Standby Guardianship, which allows a chronically or terminally ill parent to authorize another adult person to serve as guardian of a child when the parent dies or becomes temporarily or permanently incapacitated. This is much like a healthcare proxy or advance directive.

Clinical issues The child and family should receive support and guidance in preparation for the loss of the parent. One should also address whether guidance is provided for the selected guardian to offer a reasonable transition and continuity of care. Adequate funds need to be set aside for child support and education. For parents who have sizeable estates, money can be placed in a trust fund. The child should get to know the guardian in the context of the parent in order to facilitate the attachment transition.

GUIDELINES FOR PLANNED LONG-TERM LIVING ARRANGEMENTS WITH A PERMANENT FAMILY The Federal government recommends that the States should authorize courts to approve long-term living arrangements with a specific and identified permanent family for a child who will not return to his or her family of origin. This less-formal arrangement is the Planned Long Term Living Arrangement (PLTA) or the so-called ‘foster care with tenure.’ In this case, adults caring for the child have considerably less authority or decision making, and for this reason it is the least preferred choice among the permanent placement options. It should be permitted only under strictly limited circumstances. State law

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should authorize long-term living arrangements with a specified family only upon a court finding that one of the following two situations exists: 1 Older child, stable foster home, with ties to birth family. That is, there exists a documented, positive, and ongoing relationship between the child and birth relatives or other caregivers. Alternatively, there exists a stable foster-care placement that is predicted to last until the child leaves foster care or reaches majority; and the child has attained the age of fourteen years and agrees to the plan or achieves majority. 2 Child with serious and profound disability. Where the child has serious and profound physical, emotional, or mental disabilities, foster parents may not want guardianship or adoption, i.e., a very permanent situation. Adequate services for these children may vary with time, necessitating a change in placement. Nonetheless, the best results are achieved whenever a longterm stable relationship can be maintained. In these extended long-term living arrangements the court should find by clear and convincing evidence that the usually preferred permanent placement options of adoption and guardianship are not available or appropriate for this child.

Clinical issues Many of these children may not be adoptable or may resist adoption because of loyalty binds or the wish to maintain some contact with the parent. ‘Foster care with tenure’ allows them to experience stability and permanency without fears of having their ties disrupted. Such an arrangement often works well for foster parents who may be reluctant to adopt because of the extent of a child’s medical or emotional problems or because they cannot afford the cost of raising another child. If appropriate, the child may have contact with the birth family. Once again, the child’s experience of the visits and issues of loyalty conflicts, separation and developmental stage must be considered. In addition, the child with developmental and behavioral disability must be ensured adequate services including mental health and should be explicit in recommendations and follow-up.

REFERENCES Adoption and Safe Families Act, Public Law 105-89, § 101(b), 42 U.S.C. 675(7). Black, D., Wolkind, S. 1991: Placement Issues in Child Psychiatry and the Law, 2nd edition. Royal College of Psychiatrists Press, 53–62. Bowlby, J. 1958. The nature of the child’s ties to his mother. International Journal of Psychoanalysis 39, 350–73.

Bowlby, J. 1969/1982: Attachment and Loss: Volume 1. Attachment. New York: Basic Books. Bowlby, J. 1973: Attachment and Loss: Volume 2. Separation. New York: Basic Books. Bowlby, J. 1979: The Making and Breaking of Affectional Bonds. London: Tavistock. Bowlby, J. 1980: Attachment and Loss: Volume 3. Loss. New York: Basic Books. De Wolff, M.S. 1997. Sensitivity and attachment: a meta-analysis on parental antecedents of infant attachment. Child Development 68, 571–91. Fein, E. 1991. Issues in foster care: where do we stand? American Journal of Orthopsychiatry 61, 578–83. Goldstein, J., Freud, A., Solnit, A.J. 1973: Beyond the Best Interests of the Child. New York: The Free Press. Goldstein, J., Freud, A., Solnit, A.J. 1979: Before the Best Interests of the Child. New York: Free Press. Guidelines for Public Policy and State Legislation Governing Permanence for Children, http://www.acf.dhhs.gov/programs/cb/special/ 02prefac.htm Gunner, M.R., Connors, J. 1988. Adrenocortical activity and behavioral distress in human newborns. Developmental Psychobiology 21, 297–310. Harlow, H.F., Harlow, M.K. 1935: The maternal affectional system of rhesus monkeys. In Rheingold, H.R. (ed.), Maternal Behavior in Mammals. New York: Wiley, 254–81. Henry, J.P. 1993. Psychological and physiological responses to stress: the right hemisphere and the hypothalamo-pituitary-adrenal axis: an inquiry into problems of human bonding [Review]. Integrative Physiological and Behavioral Science 28, 369–87; discussion 368. Levine, S., Lyons, D.M. 1997. Psychobiological consequences of social relationships. Annals of the New York Academy of Sciences 807, 210–18. Lindsay, D. 1991. Factors affecting the foster care placement decision: an analysis of national survey data. American Journal of Orthopsychiatry 61, 272–81. Lyons-Ruth, K. 1996. Attachment relationships among children with aggressive behavior problems: the role of disorganized early attachment patterns. Journal of Consulting and Clinical Psychology 64, 64–73. Nachmias, M., Gunner, M. 1996. Behavioral inhibition and stress reactivity: the moderating role of attachment security. Child Development 67, 508–22. Rosenfeld, A.A., Pilowsky, D.J., Fine, P., Thorpe, M., Fein, E., Simms, M.D., Halfon, N., Irwin, M., Alfaro, J., Saletsky, R., Nickman, S. 1997. Foster care: an update [Review]. Journal of the American Academy of Child and Adolescent Psychiatry 36, 448–57.

376 Family law and domestic relations Schetky, D.H. 1992: Termination of parental rights and adoption. In Clinical Handbook of Child Psychiatry and the Law. Maryland: Williams & Wilkins, 162–81. Smith v. OFFER, Organization of Foster Families for Equality and Reform, 431 U.S. 816 (1977). United States Department of Health and Human Services: Adoption 2002: Guidelines for the

President Initiative on Adoption, Foster Care in 1998. Washington, DC: US DHHS, 1999. USDHHS, Children’s Bureau. 1997: National Study of Protective, Preventive and Reunification Services Delivered to Children and Their Families.

39 Forensic evaluation of physically and sexually abused children RODRIGO PIZARRO AND STEPHEN B. BILLICK

Child abuse can present as physical abuse, emotional abuse, sexual abuse, and neglect. There are special forms of abuse, such as Munchausen syndrome by proxy and fetal abuse (Finkelhor 1994). Because so much abuse remains undisclosed, researchers usually use retrospective information from adults to make inferences about the incidence and prevalence of abuse. Authors agree that adult reports are probably underestimates due to a number of methodological problems. Adding confusion to the literature is the fact that the definition of abuse can vary among papers and that in certain cases the report of abuse may be fabricated due to ulterior motives or may later be found unsubstantiated.

•

DEFINITIONS The physical and sexual abuse of children may be categorized as follows:

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Physical abuse: this is the physical injury of a child under 18 years of age by a person who is responsible for the child’s welfare. Emotional abuse: this includes close confinement, verbal or emotional assault and other forms of abuse (US Department of Health and Human Services 1988). Close confinement is the restriction of movements such as tying a child’s arms or legs together or binding a child to a chair, bed, or confining a child to an enclosed area (such as a closet) as a means of punishment. Verbal or emotional assault is the habitual pattern of belittling, denigrating, scapegoating, or other non-physical forms of overtly hostile or rejecting treatment, as well as threats of other forms of maltreatment. Other forms of emotional abuse include overtly punitive, exploitative, or abusive treatment and includes attempted or potential physical or sexual assault, deliberate withholding of food, shelter, sleep, or other necessities, as a form of

•

punishment, economic exploitation, and unspecified abusive reactions. Neglect: this is an act of omission perpetrated by caretakers who fail to fulfill their obligations towards the children they are caring for (Giovannoni 1988). Neglect can be classified as physical neglect, educational neglect and emotional neglect (US Department of Health and Human Services 1988). Physical neglect includes refusal of healthcare, delay in healthcare, abandonment (desertion of a child without arranging for reasonable care and supervision), expulsion (refusal of custody), inadequate supervision, inattention to avoidable hazards in the home, inadequate nutrition, clothing, or hygiene, and other forms of reckless disregard of the child’s safety and welfare. Educational neglect includes permitted chronic truancy, failure to enroll and failure to attend to special education needs. Emotional neglect includes providing inadequate nurturance/affection, exposing a child to chronic or extreme spouse abuse, permitting a child to abuse drugs or alcohol, permitting other maladaptive behavior, or refusing a child psychological care. Child sexual abuse: this is the use of a child under eighteen years of age as an object of gratification for adult sexual needs or desires (Green 1996). A sexual relationship between a child and adult in which there is no coercion is also regarded as abusive because the child lacks the capacity to consent to sexual activity. A parent or a caretaker who allows another person to have sexual contact with a child is also deemed sexually abusive. Incest refers to the sexual exploitation of a child by another family member. The most common forms of sexual abuse encountered by girls are exhibitionism; fondling; genital contact; masturbation; and vaginal, oral or anal intercourse by a male perpetrator. Boys are usually subjected to fondling, mutual masturbation, fellatio, and anal intercourse. Finkelhor has distinguished between contact and non-contact sexual abuse

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•

•

(Loue 1998). Contact sexual abuse is the touching of the sexual portions of the child’s body (genital or anus) or touching the breasts of pubescent females, or the child’s touching the sexual portions of a partner’s body. It can involve penetration (penile, digital and object penetration of the vagina, mouth or anus) or not (fondling, touching or kissing). Non-contact sexual abuse includes exhibitionism, voyeurism, verbal sexual propositions, or harassment. Munchausen syndrome by proxy: this is a disorder in which a person persistently fabricates symptoms of illness on behalf of another, so causing that person to be regarded as ill (Forsyth 1996). In instances involving children, it is almost exclusively their mothers who are fabricating the illness. The term was coined by Meadow in 1977, and it is considered a special form of abuse. Fetal abuse: this is the ingestion of substances during pregnancy that may have serious consequences for the developing fetus. States vary in their approach to this problem, some seeking criminal charges in order to place the woman in a controlled environment for the protection of the fetus. However, some have argued that confinement in prison does not necessarily protect the child.

INCIDENCE The exact incidence of child abuse and neglect in the USA is unknown due to reporting limitations. The 1986 National Incidence and Prevalence Study of the National Center on Child Abuse and Neglect estimated that 22.6 per 1000 children were maltreated that year. Some 64 per cent of the cases involved neglect. The rate of reported physical abuse was 4.9 per 1000 children (Kaplan 1996). Also, the exact incidence and prevalence of sexual abuse are unknown, but community and college surveys indicate that 20 per cent to 40 per cent of adult women, and almost 10 per cent of adult men, were abused as a child (Green 1996). The true prevalence of Munchausen Syndrome by Proxy and fetal abuse remains unknown.

PRESENTATION AND FINDINGS

5 The parent claims that the injury was self-inflicted, or blames it on a sibling or third party. 6 The child had been previously taken to different hospitals for the treatment of injuries. 7 The child accuses the parent or caretaker of injuring him or her. 8 The parent has unrealistic and premature expectations of the child. 9 The parent demonstrates a lack of concern about the injury, or minimizes it. 10 The parent has a prior history of abuse as a child. The usual physical findings are more severe than those that could reasonably be attributed to the alleged cause. Physical signs include bruises and welts on areas that are not easily exposed to natural accidents such as the face, lips, mouth, ears, and eyes. These signs form regular patterns that often resemble the shape of the article used to inflict the injury. For example, cigarette burns can be present on the soles, palms, back, or buttocks. Immersion burns are stocking or glove-like on extremities, but doughnut-shaped on buttocks or genitals. Fractures of the skull, ribs, nose, facial structures, or long bones, frequently present as multiple or spiral fractures in various stages of healing. The examiner can also find lacerations or abrasions, rope burns on wrists, ankles, neck, torso, mouth, lips, eyes, ears, or external genitalia, and bruises of the abdominal wall. In addition, the child may present with intramural hematoma of the duodenum or proximal jejunum, intestinal perforation, ruptured liver, pancreas, or spleen, ruptured blood vessels, kidney, or bladder. Subdural hematoma, retinal hemorrhage, or subarachnoid hemorrhage can also be present. The usual psychiatric/behavioral findings include wariness of adults. The child may appear anxious and frightened in the presence of the abusive parent. He or she may become more anxious closer to the discharge date (if she/he is in the hospital), or may express fears regarding returning home. The psychiatric symptoms include anxiety symptoms (such as sleep difficulties, nightmares, psychosomatic complaints, separation anxiety, self-mutilation); avoidance; mistrust; depressive symptoms (such as low self-esteem, suicidal ideation, suicidal attempts); impaired impulse control (leading to aggression, conduct disorder, attention deficit); substance abuse; speech, learning and cognitive problems; and limited social competence. In addition, the victim of abuse can also present as a perpetrator of abuse.

Physical abuse Green (1994) described the typical history of a case of physical abuse as follows: 1 There is an unexplained delay in bringing the child for treatment following the injury. 2 History is implausible or contradictory. 3 History is incompatible with the physical findings. 4 There is a history of repeated suspicious injuries.

Emotional abuse Even though there are no characteristic physical findings, the child may present with sad or angry expression. The psychiatric/behavioral findings include generalized fearfulness, impaired social competence, conduct problems, separation anxiety, and sleep disturbances.

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Neglect The usual physical findings include malnutrition, pica, limited hygiene, inadequate clothing. In addition, there might be evidence of medical neglect, such as lack of immunizations, absence of dental care, eyeglasses, or hearing aids, and discharge against medical advice. Developmental delays and failure to thrive may also be a result of neglect. The psychiatric/behavioral findings vary according to the child’s developmental stage. Children can be easily irritable, less flexible, present more difficulties in terms of affect regulation and dealing with frustration. They are more dependent, less enthusiastic, have low self-esteem and can present with depression, withdrawal, social isolation and aggressive behaviors. They can also present with anxiety, sleep disturbances, and psychosomatic complaints.

Child sexual abuse The usual physical findings include lacerations, hematomas, petechiae, edema and contusions of genital areas. Signs of penile penetration include hymeneal tears, scar tissue and adhesions that distort the shape of the hymeneal membrane, clefts or bumps in the hymeneal membrane, labial adhesions, widening of the hymeneal orifice and rounding of the hymeneal edge. Signs of anal trauma include hematomas, prolapse of anal tissue, fissures, anal skin tags, pigmentation and scar tissue. Penetration can also produce changes in the tone of the anal sphincter. Different authors have proposed different ways of classifying the findings according to the degree of specificity or certainty (Bays and Chadwick 1993). The findings can be classified as diagnostic findings (e.g., pregnancy); findings consistent with sexual abuse (e.g., presence of Trichomonas); findings sometimes following sexual abuse but also other causes (e.g., bacterial vaginosis); findings unlikely to be due to abuse (e.g., Candida albicans dermatitis). The usual psychiatric/behavioral findings characteristically found in child sexual abuse can be categorized in different ways: 1 No symptoms: not all the children who are victims of abuse present psychiatric symptoms. In addition, if the child has been progressively groomed and seduced into sexual activity that has been pleasurable and nonviolent, the only indication of abuse may be a heightened sexual arousal. 2 Acute symptoms: anxiety symptoms (sleep disturbances, nightmares, insomnia), somatic complaints, phobias (for example to males), and symptoms of posttraumatic disorder (re-experiencing the abuse, avoidance, and autonomic hyper-arousal). 3 Long-term symptoms: avoidance and mistrust of adults, depression, suicidal behavior, anger, guilt,

low self-esteem, aggression and poor impulse control, hysterical and dissociative symptoms, early signs of borderline personality disorder, substance and alcohol abuse, abnormal sexual behavior, disturbances in sexual identity and sexual object choice, inadequate social skills, and difficulties in social relationships. 4 Adult survivors: anxiety symptoms (chronic tension, sleep difficulties), somatic complaints, feelings of detachment, sexual dysfunction, depressive symptoms with suicidal behavior, borderline personality disorder, dissociation and multiple personality disorder, and alcohol and substance abuse. The long-term consequences of sexual abuse can be divided into posttraumatic stress disorder (PTSD), cognitive distortions, emotional pain, avoidance, impaired sense of self and interpersonal difficulties (Briere and Elliot 1994). In PTSD there are intrusive, avoidant and arousal symptoms, including sensory phenomena that are similar to those experienced during the assault. It is also common to find re-enactments or repetition of abusive behavior, repetitive thoughts, intrusive thoughts or memories of the abuse. Thoughts revolving around the themes of danger, humiliation, guilt and badness, and nightmares are also common. Due to cognitive distortions there is an overestimation of danger and adversity in the world, underestimation of their own self-efficacy or self-worth. There are also chronic self-perceptions of helplessness, hopelessness, impaired trust and low self-esteem. It is also common to find hyper-reactivity to real, potential or imagined threats. Emotional distress presents with depression, anxiety, sexual problems and anger. It is also associated with behavioral problems in children, such as aggression, bullying, attacking or molesting other children. Individuals develop an impaired sense of self and an inability to soothe or comfort themselves whenever facing adversity. This explains the overreaction to stress, the separation anxiety, the difficulties understanding others as independent and separate from them, and therefore results in an inability to define appropriate boundaries when interacting with others. Those features can also result in increased suggestibility, inadequate self-protectiveness and greater likelihood of being victimized or exploited by others. Children use avoidance in order to protect themselves from painful memories of abuse. In addition, victims of abuse usually use dysfunctional behaviors as tension-reducing activities. These activities may help transiently to reduce the anxiety but can result in increased psychopathology later. Some of the avoidant behaviors include dissociation, substance abuse and suicidal attempts. Dissociation is a disruption in the usually integrated functions of consciousness, memory, identity and perception of the environment. This disruption seems to serve the purpose of reducing psychological distress and can present as depersonalization, excessive day dreaming, alterations in bodily perception, emotional numbing, amnesia, and multiple personality disorder. Substance

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abuse can be used to numb painful internal states. Suicide attempts can also be interpreted as avoidant behavior. Tension-reducing activities include compulsive and indiscriminate sexual activity, bingeing, and self-mutilation. The difficulties in interpersonal relationships due to decreased social competence and the difficulties managing fear, anger, aggression, and sexual arousal can both result in decreased ability to develop intimate relationships.

Munchausen syndrome by proxy The usual physical findings include the presence of multisystemic illnesses of varying course and symptomatology. The most frequent symptoms are bleeding (from different sites), seizures, apnea, diarrhea, vomiting, and fever. The usual psychiatric/behavioral findings include collusion of children with their mothers in the fabrication of the symptoms, or passively tolerating medical procedures. Mothers who perpetrate this type of abuse usually have some experience with the medical field, are extremely attentive, and spend long periods of time in the hospital but appear less worried about their child’s health than the medical staff. In addition, it is common that the symptoms take place always in the mother’s presence and are nonresponsive to treatment. Infants and toddlers can present feeding disorders, while pre-schoolers can present withdrawn, hyperactive or oppositional behaviors (Forsyth 1996).

LONG-TERM CONSEQUENCES OF ABUSE Despite the fact that adolescents cannot be diagnosed, as per DSM-IV, with a personality disorder, the psychological and behavioral functioning of adolescents with psychiatric disorders and history of abuse resembles that of patients who suffer from borderline personality disorder (Grilo et al. 1999). In addition, persons with documented childhood abuse or neglect were more than four times as likely as those who were not abused or neglected, to be diagnosed with personality disorders during early adulthood. Of the twelve categories of DSM-IV personality disorder symptoms, ten were associated with childhood abuse or neglect (Johnson et al. 1999).

BIOLOGICAL CORRELATES OF ABUSE Despite the definitional issues that make this type of study difficult, more literature is starting to point at biological correlates in children who have history of abuse. Studies of cerebral blood flow show that the recollection of traumatic events was accompanied by increases in regional blood flow in the anterior paralimbic regions. In addition, those with history of trauma and symptoms of PTSD also show increases in blood flow in the orbitofrontal cortex and anterior temporal pole (Shin et al. 1999).

In addition, in children who have been abused and are depressed, there seems to be a dysregulation of the serotoninergic system evidenced by increases in the secretion of prolactin following the injection of L-5-HTP (Kaufman et al. 1998). This serotoninergic dysregulation could be the cause of many of the symptoms previously described.

THEORIES EXPLAINING ABUSE AND FAMILIES AT RISK Various models have been put forth to explain why abuse occurs. Some have proposed an ecological model, whereby typically non-abusive parents could behave abusively under certain circumstances. Others propose that it is necessary to look into parental attitudes, history, personality characteristics and ideology (Jackson et al. 1999). Tomkiewicz states that in order to perpetrate abuse, the abuser has to believe that the victim is subhuman and that society or even the victim will eventually benefit from the abuse. This model is supported by studies that have found cognitive distortions in perpetrators of abuse (Tomkiewicz 1998). One of the models explaining the behaviors of the perpetrators is that of the generational transmission of abuse: between 47 and 70 per cent of mothers with a history of severe physical abuse currently abuse their children. The sexual abuse model is somewhat different, because in the majority of those cases the perpetrator is a male, but 24–42 per cent of mothers who have been sexually abused, end up in relationships where the male partner of the mother abuses her children. Green described that the factors contributing to generational transmission of maltreatment are trauma-induced repetitions, pathological object relationships, impaired mother–child attachments, the use of dissociation and the failure to verbalize one’s own maltreatment (Green 1998). The trauma-induced repetitions explain the reenactment of the perpetrator’s own victimization. One potential explanation for this phenomenon is that the abuse results in stress, which in turn results in increased secretion of glucocorticoids, which in turn damage the hippocampal neurons,finally impairing memory processes. This leads to fragmented memories that are not integrated and are therefore prone to be repeated and reenacted. The pathological object relationships result from the incorporation of a working model of the aggressor– victim dyad. Children may then identify with the aggressor, or with the victim, displaying sadistic behaviors that serve as a defense against helplessness or masochistic behaviors that elicit more victimization. Some children identify with the non-protective parent and go on to allow their children to be a victim of sexual predators. The impaired mother–child attachments are due to the mothers’ history of poor early relationships with their own caretakers. The use of dissociation obliterates the memory link between the parents’ own childhood abuse

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and the maltreatment they inflict upon their children. Also the use of other defenses such as avoidance, distancing, hypervigilance, denial, projection and splitting prevent the mother and child victims from integrating their painful memories and affects, making them more likely to reenact the abuse. In addition mothers who reenact abuse, have been unable to talk about their experience. Crittenden (1996) described the characteristics of each family according to the type of abuse. He stated that families with physical abuse are usually low-income, have young parents with little education, and present larger than usual number of closely spaced children. They tend to have unstable relationships with mothers being unmarried, divorced or separated. They depend on public welfare and most parents were abused or neglected. Abusive families interact less frequently and are more negative, often presenting covered hostility. Members of these families may respond more negatively to aversive communications and attribute negative intent to positive communications. The families with neglect are usually poor, large and structured around the mother and her children. There is little interaction among family members. Children perceive their parents as unavailable, and themselves as powerless. Children are often listless and apathetic and suffer from developmental delays. The families are chaotic with little structure, few rules and occasional outbursts of anger and frustration. Families with sexual abuse result sometimes from blurred interpersonal boundaries, high levels of anxiety, and fear of abandonment. In some cases, sexual abuse is a way of soothing anxiety rather than a pure sexual dysfunction. In other cases it is the result of a sexually deviant form of arousal or a cognitive distortion. In many cases, after admitting to the abuse, the perpetrators claim that the child enjoyed it and invited them. Child physical abuse has been correlated with substance abuse, low self-esteem, poor impulse control, antisocial behavior, and poor knowledge of child development in the parent. Families usually suffer from social isolation and dissatisfaction with social supports, present low use of community resources, and limited involvement in community activities. In addition, there is usually a family history of marital problems and spouse abuse. The children in these families are young and present delayed development, aggression, non-compliance and difficult temperament (Swenson and Spratt 1999). In general, authors have agreed that child abuse is widespread and crosses class barriers. However, others state that the evidence suggests that the prevalence among the poor is higher and that classlessness is just a myth (Drake and Zuravin 1998).

CHARACTERISTICS AND TREATMENT OF SEXUAL OFFENDERS There is no defined offender psychological, class, ethnic or racial profile. There are those who have a normal sexual history but act impulsively or opportunistically to perform

a single deviant act, and those who present a consistent deviant sexual interest. Many or most offenders have more than one category of deviant sexual behavior. In addition, a significant percentage of child abusers start to abuse as juveniles. It is also important to recognize that most of what is known about offenders is based on incarcerated offenders but this knowledge may not apply to undisclosed or unreported abuse. A study of a large sample of interviewed nonincarcerated sexual offenders showed that offenders can engage in both incestuous and non-incestuous molestation and may target children of both genders (Abel et al. 1988). Another study reported that 66 per cent of a sample of male juvenile sex offenders had been victimized either physically (19 per cent) or sexually (49 per cent) (Johnson and Shrier 1985). Juveniles may offend against their peers, against younger children, or against adults. Most of them are male and in the most common scenario they chose as a victim a seven to eight-year-old whom they knew. Usually, these offenders also present interpersonal deficits, learning problems, and poor impulse control. They usually come from unstable homes and have witnessed sexual activity and/or family violence. Finkelhor (1984) stated that four factors are necessary in order to reach the point of child molestation: (i) the adult needs to find emotional satisfaction in relating to children; (ii) the adult needs to experience a physical reaction to the presence of children; (iii) the adult is blocked in his ability to get his needs met by an adult; and (iv) the individual may have poor impulse control or may use substances that lower impulse control. In terms of treatment for offenders, most studies present methodological problems. However, there has been an increase in the number of facilities that provide treatment for sexual offenders, some in residential setting but most in outpatient community-based settings. Treatment goals include lack of recidivism, decreasing deviant sexual arousal, increasing non-deviant sexual arousal, improving interpersonal skills, anger management, stress control and eliminating substance abuse (Becker 1994). In order to be considered amenable to treatment, the offender must recognize the offense, must consider the offending as a problem behavior, and must be willing to participate fully in treatment. The different approaches to treatment include biological therapies, family therapy, cognitive-behavioral therapy and relapse prevention. Medications include antiandrogenic medication to decrease sexual drive and/or antidepressants to increase impulse control. Family therapy is indicated for those cases where there has been incest or intra-familial abuse. Cognitive-behavioral therapies aim at teaching individuals to recognize and change their inaccurate beliefs and to increase impulse control. Relapse prevention aims at identifying the molester’s cognitive and behavioral patterns that are precursors to the sexual abuse. The recidivism rates reported by different studies vary. It is necessary to develop controlled treatment outcome studies with long-term follow-up.

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REPORTING ISSUES IN CHILD ABUSE California enacted the nation’s first child abuse reporting law in 1963. By 1967, every state had followed suit (Pence and Wilson 1994). All states accept calls from anyone with information about suspected child abuse. Many states place a special reporting requirement on selected professionals such as doctors, nurses, teachers and law enforcement agencies. Some of the states have criminal penalty for those mandated professionals who fail to do so (usually a misdemeanor). The report usually triggers an investigation that may result in different outcomes. Potential outcomes include keeping the child at home and closing the case, keeping the child at home but mandating treatment for the family and instituting a monitoring system, removing the child from the house, and at times, pressing criminal charges against the perpetrators. Court proceedings usually result in mandated physical and psychiatric evaluations. Some hospitals or agencies have Child Advocacy Centers where multidisciplinary evaluations are performed (social worker, pediatrician, psychologist or psychiatrist, police officer and district attorney) so that multiple interviewing does not become traumatic per se. Cases can be substantiated (cases that are opened for service after the investigation) or unsubstantiated (cases that are closed). The reasons to fail to substantiate are often insufficient information, inappropriate referral, absence of current risk and false allegations (Zellman and Faller 1996).

INVESTIGATION AND PROSECUTION OF CHILD ABUSE Only 40 per cent of all allegations are ultimately substantiated through investigation. Substantiation is determined by evidentiary standards. Some states require ‘some credible evidence,’ some require ‘credible evidence,’ some require ‘preponderance of evidence,’ and some use the term ‘material and substantial evidence’ (Pence and Wilson 1994). It is always easier to prosecute when there is material evidence of the abuse. It is however important to remember that a normal physical examination in a child that has been sexually abused is not uncommon. Reasons for lack of physical findings are delay in seeking a medical examination, difficulties in finding semen or evidence of ejaculate after 72 hours from the episode, lack of ejaculation or physical damage to tissue, and elasticity of the sphincters and hymen (Zellman and Faller 1996). After a preliminary investigation, if the report appears to have basis, a hearing will be held. This kind of case can be heard both in civil or criminal courts. The civil court or family court attempts to protect the child and to arrange the best living situation for him or her. The criminal proceeding tries to determine whether the

accused is guilty and, if so, to punish him or her. Both courts have different standard of proof (clear and convincing versus beyond reasonable doubt, respectively) (Nurcombe and Partlett 1994). Child abuse is a crime that is difficult to prosecute (Myers 1994) because in the majority of the cases the only witness is the victim. However, before a child is permitted to testify in court, the judge must be convinced that the child is competent to do so. Testimonial competence requires that the child be able to observe and remember events, understand the difference between lie and truth, and appreciate the need to tell the truth in court. However, competence is not the same as credibility, since a competent and accurate witness may not be credible. In addition, concerns about deliberate lying, coaching and indoctrination, and flawed, distorted interviewing are the most important issues facing professionals working to protect children. To make matters more difficult, legal protections in prosecution of criminal acts make testimony more difficult since children are put in the position of describing the abuse a few feet away from the alleged perpetrator. Closing the courtroom is possible, but not always done. Usually after the initial report there is an investigation, often as a joint effort by Child Protective Services and Law Enforcement agencies. As stated above, the child is now frequently taken to a Child Advocacy Center for a multidisciplinary evaluation. The next step is the decision by the prosecutor whether to file formal criminal charges or not. In many cases the strength of the evidence depends on the child’s ability to testify. Pre-school children are often seen as unreliable witnesses. On the other hand, adolescents are often viewed as willing participants in the abuse. Therefore, most successful prosecutions involve children aged seven to twelve years. Charges are also more likely when there is material evidence. Once charges are filed, prosecutors engage in plea bargaining with the defense attorneys. In many cases, the defendants pleas guilty to a less serious offense than originally charged. Most of the charges result in guilty pleas before trial. In some jurisdictions the prosecutors divert selected defendants away from prosecution into treatment. Approximately only 10 per cent of cases are tried in court. Conviction may result in prison or in probation with mandate for treatment for sexual abuse. Certain states now have sexual registration laws that maintain local registries of all the sexual offenders in an area. Other states have also passed laws allowing for involuntary inpatient commitment of offenders who have finished their prison sentences. Minors can be either victims or perpetrators. Minor perpetrators are usually under the jurisdiction of Juvenile Courts. As in criminal litigation, most cases do not proceed to trial but the minor remains under the supervision of the court. Allegations of sexual abuse can also occur in the context of custody and visitation litigation. A number of these cases are fabricated to give advantage to one parent in the litigation.

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THE ROLE OF CHILD ADVOCACY CENTERS These centers permit a multidisciplinary evaluation. Health professionals, workers for child protective agencies and law enforcement officers work together attempting to maximize the amount of information and the quality of the data and to minimize trauma. Usually, a trained professional interviews the child while other professionals watch from a one-way mirror. This type of team approach helps to coordinate the different agencies involved, minimizes fragmentation and neutralizes ‘splitting.’ The final outcome is the facilitation in accomplishing the necessary goals, either the strengthening of the family, pursuing termination of parental rights (Westman 1996) or criminal prosecution.

PSYCHIATRIC EVALUATION OF THE CHILD VICTIM Studies indicate that an alarming number of child victims do not reveal incidents of abuse. Significant reasons for this reticence on the part of the victims are the profound and lasting repercussions that often accompany disclosure (Diaz and Manigat 1999). Although some families respond appropriately to the disclosure of abuse, many do not. As a result, victims face a risk of not being believed, losing support from their own family, being re-victimized, being displaced from their home, or a combination of those. If displacement takes place, their future becomes less certain, as they enter the foster-care system. On the other hand, if the perpetrator is removed, they may fear his/her return. If the perpetrator is the breadwinner of the family, the removal places the family at risk of financial hardship. There are also psychological repercussions that increase the burden on the victims that disclose abuse. For example, if they are female they are at risk of being accused by the mother of having ‘seduced’ the perpetrator or having willingly participated in the abuse. The phenomenon of recanting previously disclosed abuse may be due to all these factors, and therefore makes the interview of the victim more complicated. In addition, the recantation could truly indicate that the abuse did not take place and that the original disclosure was due to other motives, such as parental pressure from one of the spouses. Therefore the interviewer should be careful and mindful that the interview should not contaminate the evaluation and should be performed with an open mind. Courts are placing more importance to the quality of the interview and the training of those who perform the interviews. There are differences between a clinical versus a forensic interview. Clinicians generally assume that their clients are telling the truth. Moreover, because information collected in a clinical setting is not intended specifically for legal purposes, clinical interviewing is often aided by techniques that lack scientific validation (e.g., free drawing) or

that require subjective interpretation. In contrast, the forensic interview is characterized by skeptical neutrality on the part of the interviewer, techniques that are grounded in research on the development of memory and language, concern about the possibility of interviewer influence, and the collection of data that require minimal interpretation (Poole and Lamb 1998). In addition to these concerns about the differences between forensic and clinical interviews, problems in evaluating children include the issues of credibility, suggestibility and accuracy in children. Accuracy refers to the amount of correct versus incorrect information in children’s answers. Suggestibility refers to errors that arise when witnesses are exposed to information that is false, or to social pressures that encourage particular types of answers. Credibility is the believability that one assigns to a witness’s testimony. A judgment about credibility is a subjective reality that is not necessarily based on reliability or consistency but rather on its apparent plausibility. Reports that are highly reliable may be judged as not very credible. Research has shown that younger children are often more vulnerable to suggestion than older children, that children often resist suggestions about significant events that involve their own bodies better than they resist suggestions about other details or events (although pre-schoolers can misreport inappropriate touching). Misinformation is most likely to produce erroneous responses to specific or misleading questions and factors that impair memory (including delays between events and presentation of misinformation) also increase suggestibility (Bruck, Ceci, and Hembrook 1998). It has also been studied that certain conditions can have a damaging effect on the accuracy of children’s testimony. Interviewers who have a bias and use an accusatory tone tend to elicit more false information. On the other side, non-suggestive techniques do not guarantee that children will provide accurate narratives when they have been previously exposed to misinformation. The research on suggestibility and results of evaluations according to the type of questioning has led to considering the need for developing interview protocols.

GUIDELINES FOR FORENSIC EVALUATIONS OF ABUSED CHILDREN Different organizations have published guidelines of the forensic interview of children who may have been sexually abused. The American Academy of Child and Adolescent Psychiatry (Bernet et al. 1997) and other organizations have published guidelines for such evaluations, and also about the use of anatomical dolls. In general, the guidelines require that the professional performing the evaluations is a person in search for unbiased truth rather than a child advocate or therapist. The American Psychological Association also published guidelines for psychological evaluations in child protection matters (Board of Professional

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Affairs, Committee on Professional Practice and Standards 1999). The American Academy of Child and Adolescent Psychiatry recently published practice parameters for the assessment of children and adolescents who are sexually abusive of others (Shaw et al. 1999). All these guidelines share some common recommendations that are summarized below.

The interview setting Usually, authors recommend that interviewers gather information about the case before meeting with the child. Information can be obtained from child protective agencies, police and medical records and from adults involved in the case. The information can also help in building rapport during the interview. It is also helpful to gather information about the quality and number of previous interviews, and the training of prior interviewers. It is also important to know the context and possible motivations for false allegations. Ideally the room will have an adjacent room with a one-way mirror and videotaping capabilities. The rooms should be child-friendly. Most authors agree on the need to interview children alone. If a companion is authorized in the room it is better to delineate his/her role prior to the interview and prevent the person from making any statements. It is generally recommended to use one interviewer, but if there are going to be more than one interviewer it is necessary to appoint one in advance to do most of the questioning and the other to take notes and to suggest additional questions at the end of the interview. Regarding the use of drawings and dolls, they can be used in different ways. Drawings can be used to facilitate rapport, as projective tests and to facilitate the description of a certain event. Anatomically correct drawings are also used to request for details in case of investigation of sexual abuse. The use of drawings to facilitate rapport is a widely used tool that allows children to perform an activity that is familiar to them when being interviewed by a non-familiar person. However, the question of whether drawings provide a significant yield for obtaining information about family interactions and specific events is highly controversial. The same applies to anatomically correct dolls. Authors agree that anatomically correct drawings and dolls should only be used when the child has already made a disclosure, and for clarification purposes only. The use of anatomically correct dolls is controversial because children that do not have a history of abuse may show sexualized behavior when presented with a sexually stimulating object. To date there is no agreement about clear behavioral markers for normal play and exploratory behavior and abnormal sexualized behavior (Poole and Lamb 1998).

Interviewing techniques Given the legal need for truth, the developmental limitations of children in terms of memory, suggestibility and

credibility, the phenomenon of recantation and the serious implications in the lives of children after allegations of abuse take place, there is a clear need for formal ways of assessing these allegations. Different groups have proposed different types of protocols to conduct these interviews. None of these interviews has yet been validated, and there is no universal agreement about the superiority of one model over the other. In general, it is accepted that the protocol should aim at minimizing the probability of retraumatization of the victim and at maximizing the amount of information elicited. Some of the model interviews proposed include the Cognitive interview, the Step-Wise interview, and the NICHD protocol (Poole and Lamb 1998). In addition, others have categorized interviewing styles and questions based on the level of coercion and suggestibility. The cognitive interview was designed to improve the quality of police interviews with adult eyewitness. The structure of the interview consists of five stages including introduction, open-ended narration, the probing stage (during which the interviewer guides the witness to exhaust the contents of memory), the review stage, and the closing. This technique has been modified for the use with children, but the studies on the use of this interviewing technique are not conclusive. The Step-Wise interview was developed by Yuille. The overall format involves rapport building, requesting recall of two specific events, explaining the need to tell the truth, introducing the topic of concern, encouraging a free narrative, asking general questions, asking specific questions, using interview aids (if necessary and only after the child has disclosed an event), and concluding the interview. In addition to the interview, Yuille has developed a procedure to analyze the statements elicited during the interview, as well as a validity checklist that allows the interviewer to arrive at a conclusion regarding the likelihood of abuse actually taking place. The statement analysis takes into consideration factors such as internal coherence, level of detail, contextual embedding, peculiarities of the content, motivation related contents and offense-specific elements. The validity checklist takes into consideration the child’s language, knowledge, affect, gestures, susceptibility to suggestion, drawings, and behaviors. It also takes into consideration the availability of other evidence (Yuille 1987; Yuille 1991). The National Institute of Child Health and Human Development developed a similar interview protocol. As we can see, the protocols have common features that emphasize the need for neutrality and the use of more open-ended questions at the beginning, but with more closed-ended questions and use of ancillary techniques at the end of the interview. Faller (1998) has categorized the type of questions generally used in assessing children in a continuum from open-ended questions to closed-ended questions, with open-ended questions being more reliable. Examples that she has coined about the different types of questions are: 1 General question: Why did you come to see me?

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2 Focused question about people: What kind of guy is your dad? 3 Follow up question: What happened next? 4 Multiple choice question: Did it happen in the daytime or the night-time? 5 Direct question: Did your daddy do something to your pee pee? 6 Leading question: Your mom makes you suck her breasts, doesn’t she? 7 Coercion: You cannot leave until you tell me what happened. The evaluator should make the best attempt to interview the child and determine whether the allegation of abuse is consistent with the available evidence, the statements during the interview, and our knowledge about child development and child normal behaviors. However, the validation of an allegation of abuse may not be possible. The forensic evaluator should remember that he or she is neither the trier of fact nor an unquestioning advocate for the child’s allegations, and should be aware of the limitations of his/her own interview.

SPECIAL TOPICS: FALSE ALLEGATIONS, PARENTAL ALIENATION SYNDROME AND RECOVERED MEMORIES There has been an increase in the number of allegations of sexual abuse in the context of custody disputes. Even though a majority of the allegations of abuse are still true, the number of false allegations is rising. The problem of this type of allegation is that most courts, when facing such allegation, will prevent the alleged perpetrator from seeing his/her child in order to protect the child. This usually gives more time to the custodial parent for developing a stronger relationship with the child, distorting and influencing later the outcome of the custody dispute. The evaluator needs to be aware of this possible situation. Evaluators tend to view abuse as more likely when there are multiple prior reports of abuse rather than a situation in which the allegation of abuse only takes place after the beginning of a custody dispute. Gardner defined parental alienation syndrome (PAS) in 1985 to describe a situation in which one parent attempts to alienate the child from the other parent. The purpose is to force the other parent out of the child’s life, and with time the child adopts that negative view about his/her parent and rejects him/her. Although not in the DSM-IV it is a useful concept to consider in any evaluation. Since allegations of sexual abuse may be the first step in a campaign of brainwashing leading to the PAS, certain authors argue that in those cases the custody of the child should be awarded to the non-alienating parent. However, others argue that the concept of PAS puts children in danger of being placed under the care of truly abusing parents. There are no specific tests, scales or validated protocols to avoid these

pitfalls while performing abuse evaluations. It is imperative to be mindful of the whole picture and one’s own biases (Gould 1998). PAS is less prevalent in children aged nine years and older. Child abuse treatment has led to the highly controversial issue of treatment in adults who claim recovered memories of child abuse. This has led to highly politicized positions, since patients began to take their claim to courts and other settings, with consequent disruption of families and at times significant media involvement. A recovered memory is the emergence of an apparent recollection of childhood sexual abuse of which the individual had no recent previous knowledge. A false memory is the recollection of an event which did not occur but which the individual subsequently strongly believes. If the presence of a false memory becomes the center of a person’s identity and interpersonal relationships, the individual has developed a condition called ‘false memory syndrome.’ The problem is that memory is a reconstructive rather than a reproductive process and is therefore vulnerable to suggestion (Brandon et al. 1997). Because of the high potential for misuse, some researchers recommend that forensic evaluators testifying to these issues have extensive current scientific knowledge on memory when discussing the false memory syndrome (Freyd 1998). In addition, professional organizations should consider the development of guidelines for the treatment of adults who were abused or possibly abused as children. The guidelines should include the obligation to practice within an established code of ethics, develop special knowledge and competence in the area, maintain awareness of transference and counter-transference issues, adopt a stance of supportive neutrality, not automatically assume sexual abuse from a set of symptoms, be open to the possibility of other childhood trauma besides sexual abuse, not recommend family alienation on the basis of recovered memory, contract for no unplanned/impulsive disclosures, confrontations or legal initiatives, not encourage or suggest law suits, and encourage the use of forensic experts when necessary (Courtois 1997).

TREATMENT ISSUES IN CHILD ABUSE As discussed previously, children with a history of abuse and neglect may present with a broad range of symptoms and disorders. One of the problems that arise when trying to evaluate the outcome of treatment in children who have suffered from abuse is that the literature does not use uniform terminology. Abuse is an experience, and not a disorder or syndrome. It can lead to a disorder but it is not in itself a disorder. Children can also be symptomatic or asymptomatic. When symptomatic, the manifestations can be diverse, but in asymptomatic children one issue is whether there are any ‘sleeper effects’ (symptoms that surface years later). Reviews of the literature agree on the fact that certain symptoms are more difficult to treat than

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others (sexualized and aggressive behavior) and that longterm follow-up is necessary (Finkelhor and Berliner 1995). In order to design appropriate treatment programs to address the consequences of sexual abuse, it would be necessary to isolate the specific consequences of sexual abuse and the interaction between sexual abuse and psychopathology. However, abuse occurs many times in the context of other stressors, such as poverty, drug abuse, unemployment, lack of education and pre-existing psychiatric pathology. Sexual abuse may be just one of many traumas to which a child is exposed. Assessing those factors and targeting deficiencies in the support network can be extremely helpful in preventing further victimization, and increasing resilience without necessarily addressing the abuse per se. Once those factors are evaluated it is important to determine the characteristics of the abuse that are usually associated with poor outcome, such as severity of abuse, abuse involving force or violence, and a close and emotional relationship with the offender. Afterwards it is necessary to establish the age of onset of abuse and the duration and type of abuse and also the post-abuse environment, since victims of abuse who encounter a supportive non-abusive network do much better. It is important to address the psychiatric symptoms of the non-offending parent, since the disclosure and the consequent disruption caused by the disclosure of the abuse can lead to symptoms of anxiety and depression in the non-offending parent, more often the mother, that can impair her ability to be supportive. Sexual victimization increases the longterm risk of developing widely different patterns of symptoms and behavioral patterns. Nevertheless, many children are symptom-free at the time of the assessment. There is no single or specific pattern of symptoms or problems that arise from a common history of being sexually abused children. Certain symptoms may develop only gradually over time. Many victims develop somatic complaints rather than classic psychiatric symptoms, such as depression, anxiety and hyperactivity. Unfortunately, most treatment studies reported are naturalistic and lack appropriate controls. Deblinger and her colleagues have reported positive findings with the use of cognitive-behavioral programs for the alleviation of symptoms of posttraumatic stress disorder. Emerging data indicate that the involvement of the non-offending parent may enhance the outcome (Beutler, Williams, and Zetzer 1994). Other authors also support the use of cognitive behavioral therapy for sexually abused pre-schoolers rather than the use of nondirective supportive psychotherapy (Cohen and Mannarino 1997). Others have reported on the use of medication management of the symptoms of hyper-arousal, aggression and insomnia in PTSD with clonidine, a presynaptic alpha 2-adrenergic agonist (Harmon and Riggs 1996). A challenge for the incoming decade will be the implementation of well-designed treatment studies and the use of ecological theories to understand, prevent and treat psychopathology in the victims of maltreatment (Kaplan, Pelcovitz, and Labruna 1999).

CONCLUSIONS The legal structure and the administrative agencies in charge of child services are reactive rather than proactive. Therefore, despite the increasing knowledge about risk factors, there is a failure to provide power to providers and agencies to refer children and families for intervention prior to the detection of the abuse. The legal system focuses on secondary prevention or preventing the recurrence of the abuse that has already taken place. This leads to an emphasis on the need for training of medical and non-medical personnel in the detection of warning signals for abuse. In addition, the phenomenon of recanting, the serious consequences of disclosure of abuse in a child’s life and the difficulties generated by multiple interviewing are also reasons to emphasize the importance of the training of personnel in charge of interviewing children in cases of alleged abuse. Another important issue is the fact that there are no established clear guidelines in terms of what training is necessary to perform a forensic evaluation in cases of alleged abuse, and there is no consensus regarding the superiority of any given interviewing protocol. Issues of suggestibility, accuracy, credibility and re-victimization need to be taken into account when designing any such protocol. It is difficult to accept that even with the best, most complete and well-executed evaluation, it may not be possible to determine whether abuse has occurred, or not. There is also a lack of clarity of when to treat and what type of treatment to provide to children who have been abused. In summary, despite abundant literature being available on child abuse, the basic questions about how to evaluate allegations of abuse and how to treat abused children have still not yet been definitively answered.

REFERENCES Abel, G., Becker, J., Cunningham-Rathner, J., et al. 1988. Multiple paraphilic diagnoses among sex offenders. Bulletin of the American Academy of Psychiatry and the Law 16, 153–68. Bays, J., Chadwick, D. 1993. Medical diagnosis of the sexually abused child. Child Abuse and Neglect 17, 91–110. Becker, J. 1994. Offenders: characteristics and treatment. Sexual Abuse of Children 4, 176–97. Bernet, W., Ayres, W., Dunne, J.E., et al. 1997. Practice parameters for the forensic evaluation of children and adolescents who may have been sexually abused. Journal of the American Academy of Child and Adolescent Psychiatry 36, 423–42. Beutler, L.E., Williams, R.E., Zetzer, H.A. 1994. Efficacy of treatment for victims of child sexual abuse. Sexual Abuse of Children 4, 156–75.

Forensic evaluation of physically and sexually abused children 387 Board of Professional Affairs, Committee on Professional Practice and Standards, American Psychological Association. 1999. Guidelines for psychological evaluations in child protection matters. American Psychologist 54, 585–93. Brandon, S., Boakes, J., Glaser, D., Green, R. 1997. Recovered memories of childhood sexual abuse: implications for clinical practice. British Journal of Psychiatry 172, 296–307. Briere, J.N., Elliot, D.M. 1994. Immediate and long-term impacts of child sexual abuse. Sexual Abuse of Children 4, 54–69. Bruck, M., Ceci, S., Hembrook, H. 1998. Reliability and credibility of young children’s reports. From research to policy and practice. The American Psychologist 53, 136–51. Cohen, J.A., Mannarino, A.P. 1997. A treatment study for sexually abused preschool children: outcome during a one-year follow-up. Journal of the American Academy of Child and Adolescent Psychiatry 36, 1228–35. Courtois, C.A. 1997. Guidelines for the treatment of adults abused or possibly abused as children. American Journal of Psychotherapy 51, 497–510. Crittenden, P. 1996: Research on maltreating families. In Briere, J., Berliner, L., Bulkley, J., Reid, T. (eds), The APSAC Book on Child Maltreatment. Thousand Oaks, London, New Delhi: Sage Publications, 158–71. Deblinger, E., Stauffer, L.B., Steer, R.A. 2001. Comparative efficacies of supportive and cognitive behavioral group therapies for young children who have been sexually abused and their non-offending mothers. Child Maltreatment 6, 332–43. Diaz, A., Manigat, N. 1999. The health care provider’s role in the disclosure of sexual abuse: The medical interview as the gateway to disclosure. Children’s Health Care 28, 141–9. Drake, B., Zuravin, S. 1998. Bias in child maltreatment reporting: revisiting the myth of classlessness. American Journal of Orthopsychiatry 68, 295–304. Faller, K. 1998: Interviewing for Child Sexual Abuse: A Forensic Guide. New York: The Guilford Press. Finkelhor, D. 1984: Child Sexual Abuse: New Theory and Research. New York: Free Press. Finkelhor, D. 1994. Current information on the scope and nature of child sexual abuse. Sexual Abuse of Children 4, 31–53. Finkelhor, D., Berliner, L. 1995. Research on the treatment of sexually abused children: a review and recommendations. Journal of the American Academy of Child and Adolescent Psychiatry 34, 1408–23. Forsyth, B. 1996: Munchausen syndrome by proxy. In Lewis, M. (ed.), Child and Adolescent Psychiatry. A Comprehensive Textbook, 2nd edition. Baltimore, MA: Williams & Wilkins, 1048–54. Freyd, J.J. 1998. Science in the memory debate. Ethics & Behavior 8, 101–13.

Giovannoni, J. 1988: Overview of issues on child neglect. Child Neglect Monograph: Proceedings from a Symposium. Washington, DC: Clearinghouse on Child Abuse and Neglect Information, 1–6. Gould, J.W. 1998: Conducting Scientifically Crafted Child Custody Evaluations. Thousand Oaks, London, New Delhi: Sage Publications, Inc., 158–72. Green, A. 1994: Forensic evaluation of physically and sexually abused children. In Rosner, R. (ed.), Principles and Practice of Forensic Psychiatry. Great Britain: Chapman & Hall, 309–13. Green, A. 1996: Child sexual abuse and incest. In Lewis, M. (ed.), Child and Adolescent Psychiatry. A Comprehensive Textbook, 2nd edition. Baltimore, MA: Williams & Wilkins, 1041–8. Green, A. 1998. Factors contributing to the generational transmission of child maltreatment. Journal of the American Academy of Child and Adolescent psychiatry 37, 1334–6. Grilo, C.M., Sanislow, C., Fehon, D.C., et al. 1999. Psychological and behavioral functioning in adolescent psychiatric inpatients who report histories of childhood abuse. American Journal of Psychiatry 156, 538–43. Harmon, J.R., Riggs, P. 1996. Clonidine for PTSD in preschool children. Journal of the American Academy of Child and Adolescent Psychiatry 35, 1247–9. Jackson, S., Thompson, R.A., Christiansen, E.H., et al. 1999. Predicting abuse-prone parental attitudes and discipline practices in a nationally representative sample. Child Abuse and Neglect 23, 15–21. Johnson, J.G., Cohen, P., Brown, J., et al. 1999. Childhood maltreatment increases risk for personality disorders during early adulthood. Archives of General Psychiatry 56, 600–6. Johnson, R., Shrier, D. 1985. Sexual victimization of boys: experience at an adolescent medicine clinic. Journal of Adolescent Health Care 6, 372–6. Kaplan, S. 1996: Physical abuse and neglect. In: Lewis, M. (ed.), Child and Adolescent Psychiatry. A Comprehensive Textbook, 2nd edition. Baltimore, MA: Williams & Wilkins, 1033–41. Kaplan, S., Pelcovitz, D., Labruna, V. 1999. Child and adolescent abuse and neglect research: a review of the past 10 years. Part I: Physical and emotional abuse and neglect. Journal of the American Academy of Child and Adolescent Psychiatry 38, 1214–22. Kaufman, J., Birmaher, B., Perel, J., et al. 1998. Serotoninergic functioning in depressed abused children: clinical and familial correlates. Biological Psychiatry 44, 973–81. Loue, S. 1998. Legal and epidemiological aspects of child maltreatment. The Journal of Legal Medicine 19, 471–502. Meadow, R. 1977. Munchausen syndrome by proxy: the hinterland of child abuse. Lancet 2, 343–5. Myers, J. 1994. Adjudication of child sexual abuse cases. Sexual Abuse of Children 4, 84–101.

388 Family law and domestic relations Nurcombe, B., Partlett, D.F. 1994: Forensic evaluation in cases of child maltreatment. In Nurcombe, B., Partlett, D.F. (eds), Child Mental Health and the Law. New York: The Free Press, 132–85. Pence, D.M., Wilson, C.A. 1994. Reporting and investigating child sexual abuse. Sexual Abuse of Children 4, 71–83. Poole, D.A., Lamb, M.E. 1998: Investigative Interviews of Children. A Guide for Helping Professionals. Washington, DC: American Psychological Association. Shaw, J.A., Bernet, W., Dunne, J.E., et al. 1999. Practice parameters for the assessment and treatment of children and adolescents who are sexually abusive of others. Journal of the American Academy of Child and Adolescent Psychiatry 38, 55S–75S. Shin, L.M., McNally, R.J., Kosslyn, S.M., et al. 1999. Regional cerebral blood flow during script-driven imagery in childhood sexual abuse related PTSD: a PET investigation. American Journal of Psychiatry 156, 575–84. Swenson, C.C., Spratt, E.G. 1999. Identification and treatment of child physical abuse through medical and mental health collaborations. Children’s Health Care 28, 123–39.

Tomkiewicz, S. 1998. Psychological mechanisms of violent behavior against children. Child Abuse and Neglect 22, 947–57. US Department of Health and Human Services. 1988: Study Findings: Study of the National Incidence and Prevalence of Child Abuse and Neglect. Washington, DC: US Department of Health and Human Services, 5–8. Westman, J. 1996. The child advocacy team in child abuse and neglect matters. Child Psychiatry and Human Development 26, 221–34. Yuille, J.C. 1987. Statement validity analysis: a systematic approach to the assessment of children’s allegations of child sexual abuse. British Columbia Psychologist, 19–27. Yuille, J.C. 1991. The Step-Wise Interview: A Protocol for Interviewing Children. Unpublished manuscript, University of British Columbia. Zellman, G., Faller, K. 1996: Reporting of child maltreatment. In Briere, J., Berliner, L., Bulkley, J., Reid, T. (eds), The APSAC Book on Child Maltreatment. Thousand Oaks, London, New Delhi: Sage Publications, 359–81.

40 Juvenile delinquency ROY H. LUBIT AND STEPHEN B. BILLICK

INTRODUCTION Juvenile delinquency is a serious societal problem for which the cost is enormous in terms of property damage and victims’ lives lost; processing, trying and jailing offenders; and for the delinquents’ lives and futures.1 This chapter will begin by defining juvenile delinquency. It will discuss the magnitude of the problem, theories of juvenile delinquency and the structure and origin of the juvenile justice system. The chapter concludes with the psychiatrist’s role in the system and treatment of juvenile offenders. A juvenile delinquent is someone under eighteen years of age who has committed an act that would be a crime if it had been committed by an adult. This is in contrast to a juvenile who has committed a status offense. Status offenses are crimes only because of the young age of the individual. They would not be crimes for adults, and include truancy, running away, incorrigibility, and alcohol use. In most states, juvenile courts have jurisdiction until an individual reaches eighteen years of age. Children can, however, be waived to adult courts under a variety of circumstances.

RATES AND TRENDS It is estimated that nearly 2.9 million juveniles were arrested in 1997, accounting for 19 per cent of all arrests. One-third of these were released immediately, leaving 1.8 million cases to be handled by the court (Stahl et al. 1999). Approximately 100 000 children were in residential facilities for juvenile delinquency (Moone 1997a; Moone 1997b; Snyder and Sickmund 1999). After rising sharply during the 1980s and early 1990s, juvenile crime significantly decreased during the mid to 1

A good reference site is http://virlib.ncjrs.org/JuvenileJustice.asp

late 1990s. From 1984 until 1993, the number of juvenile homicide offenders increased from 1266 to 4172, a rate increase from 8.5 per 100 000 to 30.2 per 100 000 (FBI 1976–99). In 1999, the number of juvenile homicide offenders had dropped to 1674, a rate of 10.7 per 100 000 (FBI 1976–99). This six-year decline in murders by teenagers brought the 1999 homicide arrest rate for juveniles down 68 per cent from its 1993 peak to the lowest level since 1966. The arrest rate of juveniles for four major violent crimes – murder, rape, robbery, and aggravated assault – declined 36 per cent from its 1994 peak to 1999, reaching the lowest point since 1988. Rape by juveniles was down 31 per cent from 1991 to 1999, to the lowest level since 1980. Robbery was down 53 per cent from 1994, the lowest rate since 1980. Aggravated assault was down 24 per cent from 1994, the lowest since 1989. The juvenile arrest rate for weapons crimes fell by 39 per cent from 1993, to its lowest since 1988. Non-violent crime also decreased: burglary was down 60 per cent from 1980; larceny-theft was down 23 per cent from 1997; and auto theft was down 52 per cent from 1990. Two juvenile arrest rates that had climbed during most of the 1990s began to drop more recently. Drug abuse violations fell 13 per cent, and curfew and loitering violations dropped 17 per cent from 1997 to 1999 (CNN 2000a). A number of reasons have been suggested for the significant decrease in juvenile crime. The demand for crack cocaine abated during the mid-1990s, and the gangs that peddled it either eliminated their competition or made peace with it. The police targeted gang members, traced illegal guns, and aggressively confiscated guns. A booming economy also helped, as this permitted cities to spend greater funds on policing, crime prevention, incarceration, recreation and after-school programs (CNN 2000a). An additional factor fostering the decrease in juvenile crime may be the decline in the adolescent population. There are other reasons for optimism. Most adolescents arrested do not continue to offend into adulthood, and most adolescents arrested for violent offenses do not engage in further violence. Most adolescents diagnosed

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with conduct disorder do not develop antisocial personality disorder.

THEORIES AND ETIOLOGY The etiology of juvenile delinquency is complex, with biological, sociological and psychological factors each playing a role. Attention deficit hyperactivity disorder (ADHD) and learning disabilities (LD) are significant predisposing factors. Between 20 and 60 per cent of adolescents with ADHD engage in antisocial behavior compared with a normal occurrence of 3–4 per cent (Goldstein 1999). In addition, one study showed that 35–65 per cent of juvenile delinquents have a learning disability (Ingalls and Goldstein 1999). The connection between learning disabilities, ADHD and juvenile delinquency are multi-factorial. One factor is impulsivity and poor judgment resulting directly from the disorders. This not only predisposes children into committing offenses, but makes them more susceptible to being caught than peers without these difficulties. Another factor predisposing to delinquent behavior is the poor self-esteem and stress secondary to the disorders that predispose to criminal activity. Moreover, the difficulties of parenting a child with ADHD contribute to parental stress and often to suboptimal parenting behavior. A variety of sociological theories have been posited for the origin of juvenile delinquency. Robert Merton built on Durkheim’s concept of ‘anomie’ and argued that strain arises when an individual’s goals go beyond the institutional means available to the individual for attaining them (Merton 1938). In society, the mass media often promote goals for material wealth, but for children in poor communities, poor schools and poor job availability make it very difficult to achieve the goals fostered by mass media. The emotional distress caused by the mismatch tends to lead adolescents either to ‘retreat’ into drug abuse or to ‘innovate’ and go into crime. Thrasher wrote about the importance of peer behavior, arguing that playgroups turn into gangs as they come into conflict with each other. Gangs lead adolescents into crime unless there are alternative activities to direct their energies toward. He provided a fascinating story of a gang terrorizing a business until it became involved in scouting, and then began to protect it (Thrasher 1936). Edwin Sutherland argues that delinquent behavior is learned, primarily within intimate personal groups. The individual who goes into crime learns not only criminal techniques but also that criminal behavior is acceptable. The family and other close relationships are key to this learning. A higher frequency of association with criminals increases the likelihood that one will engage in criminal activities oneself (Sutherland 1956). George Mead noted the importance of explaining not only why many people become juvenile delinquents, but also why others who

are exposed to the same factors do not. He argued that what role the juvenile decides to accept depends upon how it fits with his self-concept (Mead 1918). Albert Cohen, echoing some of the ideas of Merton, wrote that adolescents who are unable to compete in middle-class society reject its standards; moreover, they find identity validation through gang membership (Cohen 1955). Contributing psychological factors arise from a combination of biological predisposition and the sociological environment to which the individual is exposed. From a classical psychoanalytic point of view, one can note that there are problems with superego development in those who turn to delinquent behavior. Erik Erikson asserted that failure to achieve self-identity played a role (Erikson 1968). Learning theory holds that family role models, and family reaction to the child’s actions, are key to his or her avoiding versus engaging in delinquent activities (Bandura and Walters 1963). McCord, McCord, and Zola (1969) argued that both lax and erratic discipline predisposes to delinquency, whilst Gottfredson and Hirschi (1990) argued that parental attachment and supervision are necessary for an individual to learn self-control. Without self-control, people dislike environments requiring discipline and therefore turn to the streets (Gottfredson and Hirschi 1990). Reiner and Kaufman (1959) suggested that parents with antisocial personality disorders sometimes act out their own unconscious wishes through their children. Juvenile delinquency is a symptom that can arise from a variety of factors including biological, sociological and family ones. It is a common endpoint for a variety of psychological issues. Understanding the etiology is helpful, because the prevention, treatment and prognosis will vary significantly depending upon the etiology.

ORIGINS OF JUVENILE JUSTICE SYSTEM Historically, juveniles were adjudicated by the adult justice system with the same rules as adults. In 1899, the first juvenile justice system was created in Illinois. Other states followed suit, with all but three states having juvenile courts in 1920. Two primary factors drove the change: (i) children were increasingly seen as different from adults; and (ii) juries were letting children go free after committing crimes rather than put them behind bars with adults. As a result of the work of Rousseau and Pestalozzi in Europe and John Dewey in the US, children were increasingly seen not simply as little adults, but as psychologically different. As a result, the English common law concept of parens patriae became applicable to juveniles in legal difficulties. The state had a responsibility to act in a parental role to further the well-being and development of minors in trouble. Juveniles were seen as malleable, in need of treatment not punishment, and not fully accountable for their behavior.

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The juvenile court emphasized guidance, protection and rehabilitation instead of punishment. The child guidance clinic movement arose, and many child psychiatry clinics were established to help meet the needs of the new juvenile justice courts. A new vocabulary was used, i.e., ‘state in the interests of child.’ Children were no longer housed along with adults, and children aged under twelve years could no longer be committed to a jail or to a police station. Because the juvenile judicial proceedings were nonadversarial, and the court was seen as acting in the juvenile’s interests, juveniles were not seen as needing due process protections. Judges were given broad discretion. The loss of due process protections, however, led to serious problems.

CRITICAL LEGAL DECISIONS Over time, concern grew about the result of lack of due process. Increasing criticism arose in the 1950s, both of excessive leniency and harshness. Kent v. US (1966) was the first US Supreme Court case concerning the juvenile court system. A sixteenyear-old was accused of housebreaking, robbery and rape, and his case was waived to adult court without due process. He was convicted on six counts of housebreaking and robbery, and received 30 to 90 years in prison. On appeal, the US Supreme Court ruled that waiver was a critical stage of proceedings requiring representation by counsel, inspection of all records by the defense, and a statement of reason for the court’s decision. The court went on to say ‘We do hold that the leaving must hold up to the essentials of due process and fair treatment.’ Moreover, ‘There may be grounds for concerns that the children receive the worst of both worlds; he gets neither the protection accorded adults, nor the solutions, care, and regenerative treatment postulated for children.’ In re Gault (1967) concerned a fifteen-year-old who was committed until age twenty-one to an industrial school after being found delinquent of making a lewd telephone call. He reportedly called his neighbor and asked if she had ‘big bombers.’ The complainant called the police to complain, but did not appear in court; moreover, no other witnesses were sworn and no transcript was made. The maximum sentence for an adult convicted for this crime would have been two months in jail or a $50 fine. The US Supreme Court ruled that Gault’s rights had been breached by ‘a kangaroo court.’ The court ruled that ‘Neither the Fourteenth Amendment nor the Bill of Rights is for adults only.’ The court upheld the rights of a juvenile to notice of charges, counsel, confrontation and cross-examination of witnesses, and privilege against self-incrimination. The Gault case markedly strengthened safeguards in the juvenile court when liberty is at risk.

Subsequent court cases served to further define the nature of the juvenile court. As a result of In re Winship (1970), ‘beyond a reasonable doubt,’ rather than the civil court’s ‘preponderance of the evidence,’ became the standard of proof in delinquency proceedings. The parens patriae model continues, however, albeit in a weakened form. Specifically, trial by jury was deemed not to be necessary for children as a result of McKeiver v. Pennsylvania (1971). Moreover, the court held in Schall v. Martin (1984) that juveniles could be held without bail for the protection of themselves and society. The logic behind these decisions limiting children’s rights was that children are not free and are always in the custody of their parents, the state, or an appointed guardian. During the 1990s there has been a move toward a more punitive model, and it is now easier to waive juveniles to adult court. In some states there is automatic transfer for homicide. Moreover, although Thompson v. Oklahoma (1988) held that the 8th and 14th Amendments prohibited execution for first-degree murder for defendants aged fifteen years and under, Stanford v. Kentucky (1989) and Wilkins v. Missouri (1989) held that capital punishment of sixteen-year-olds did not violate the constitution. Between 1973 and 2000, seventeen men were executed for crimes committed as juveniles, and 74 offenders were on death row for crimes committed before the age of eighteen years. Twenty-three of the 38 states that have the death penalty permit execution for youthful offenders, but only seven have actually carried out such executions. Only six other nations executed individuals for crimes as minors during the 1990s (CCN 2000b). The US and Somalia are the only UN members who have not ratified the UN’s Convention on the Rights of the Child which forbids execution or life imprisonment without parole for offenses committed as minors.

PROCEDURES IN JUVENILE COURT Unlike adult court, juvenile court has intake, adjudication and disposition rather than pretrial, trial and sentencing. The term ‘adjudicated delinquent’ is used, rather than guilty. At intake, various things can happen including: dismissal; admonishment and dismissal; informal supervision by probation staff; referral to a community agency for mental health services; or continuation in juvenile court. If a juvenile confesses to an act, and it did not involve violence, he or she may be diverted from the court to seek counseling and make restitution. Juvenile court is closed to spectators, and records are not public. Trial is solely before a judge, rather than a jury. If at the adjudication hearing there is a finding of delinquency, a probation officer investigates the juvenile’s environment (school behavior, family support, circumstances of the behavior, parents’ ability to provide supervision and guidance) and presents a report to help the judge in determining disposition.

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WAIVER A crucial issue concerning minors is whether they will be tried in a juvenile court or an adult court. Waiver depends upon the seriousness of the crime and the perceived rehabilitatability of the juvenile. Adult courts, in which juveniles are often first time offenders, sometimes treat them more leniently than juvenile courts where they may be recidivists. There are three types of waivers. The most common is judicial waiver, in which a hearing is held and the juvenile court judge decides whether the adolescent will be dealt with in an adult or juvenile court. In some states, both adult and juvenile courts have jurisdiction for certain crimes committed by juveniles of a given age. As a result, the prosecutor has the discretion to select whether trial will occur in juvenile or adult court. Statutory exclusion – also known as legislative waiver – entails a mandatory waiver for certain crimes committed at certain ages. Half of the states have no minimum age for waiver, but most that do have a minimum age use fifteen years. In the federal system the minimum age for waiver is fifteen years unless a firearm was used in a violent offense, in which case it is thirteen years. Crucial issues concerning waivers include consistency/ fairness of waivers, their deterrent effect, and their effect upon recidivism. A study by Bishop et al. (1966) matched 2738 juveniles prosecuted as adults with an equal number who stayed in the juvenile justice system. They were matched for age, race, gender, current charges, and past criminal record. The study found that within two years of release, 30 per cent of those prosecuted by adult courts were rearrested, while only 19 per cent of those handled by juvenile courts were rearrested. In addition, those handled by the adult system were arrested for more serious offenses.

PSYCHIATRIST’S ROLE IN JUVENILE JUSTICE SYSTEM When working in juvenile court, psychiatrists need to be alert to several issues. All individuals who will be interviewed need to be warned that the normal confidentiality of a psychiatric examination will not apply. The psychiatrist will rely more on collateral sources for background data and verification of interview material than with adults. The specific questions the court wants addressed need to be clear. Denial of psychiatric symptoms by the juvenile is a significant problem, but it can partially be evaluated by the degree of denial of other aspects of his or her history. Most youngsters facing delinquency, however, prefer to appear bad rather than psychiatrically ill. The evaluation should include a description of antisocial activities and a detailed mental status evaluation.

Waiver A psychiatrist could be asked to advise on a potential waiver to adult court. Crucial issues will include treatability and dangerousness. The psychiatrist should address whether the child is amenable to any type of psychiatric intervention and, if so, then specific recommendation for services should be made. Moreover, one should describe the clinical indicators for good or poor prognosis in relationship to treatment and dangerousness. Prediction of violence remains difficult. Factors affecting the likelihood of future violence include the frequency and seriousness of acts; greater variety of situation and types of victims; and early onset of antisocial acts, i.e., before the ages of ten to twelve years. Moreover, one should address cognitive, affective, and situational factors related to violence.

Understanding of Miranda Rights A psychiatrist may be asked to evaluate if a juvenile who waived his or her Miranda Rights understood what he or she was doing, and therefore whether a confession that was given will stand up in court. In People v. Lara (1967) the court established the ‘totality of circumstances doctrine,’ saying that not only age but intelligence, education and comprehension need to be considered when deciding if a suspect competently received their Miranda Rights. To evaluate the juvenile’s ability to understand their Miranda Rights, one can present each of the four parts of the Miranda Rights and ask the juvenile to say what it means in his/her own words. The Rights are: the right to remain silent; anything he/she says can be used against him/her in a court of law; right to an attorney; if an accused cannot afford an attorney, one will be appointed by the court prior to any questioning if he/she so wishes. The ability to understand one’s Miranda Rights is only one step, and the psychiatrist must evaluate a number of other issues (Ackerman 1999): 1 Did the juvenile understand he/she was waiving rights? 2 Did the juvenile have the capacity to understand the options? 3 Was the juvenile, tricked, coerced, unable to say no to authority, or overly suggestible? 4 What was the situation around the waiver? Were the parents present? Was the juvenile hungry or ill or tired? How were the rights presented? What was his or her emotional state? Was he or she intoxicated? Data gathering involves interviews of the juvenile and of others. In the interview of the juvenile, one should ask what is recalled of the interrogation, what choices did the youth feel he or she had, and what did the youth think would happen as a result of signing the waiver? Other sources of data include interviews with the parents, review

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of mental health records, school records, legal records, and the police report. Research has shown that children aged fourteen years and under have much less ability to understand Miranda Rights than older children. Moreover, fifteen- and sixteenyear-olds with IQs below 80 often have impaired understanding of their Miranda Rights. Research showed that many understood ‘the right to remain silent’ to mean that ‘they should remain silent until they were told to talk’ (Grisso 2000).

Competency to stand trial In evaluations for competency to stand trial, Dusky v. US (1960) is generally the standard, as it is with adult defendants. The individual needs to be able to work with a lawyer, and to have a rational and factual understanding of the proceedings. In carrying out evaluations, one should focus on: present ability, and not past ability; capacity not willingness; cognitive functioning not mental illness; and reasonable understanding, not complete comprehension. Moreover, the issue is not pre-existing knowledge, but ability to learn about court process. The juvenile needs to know what the charges are against him or her, be able to describe them in his/her own words, and to know the potential penalties. In terms of court procedures, he or she needs to know the roles of the major court officers (defense attorney, prosecutor, judge and jury), understand the need to behave appropriately in court, understand the meaning of guilty and not guilty, be able to testify on his/her behalf, and be able to work with his/her attorney to challenge witnesses that he/she believes are lying. In terms of working with his or her attorney, he/she needs to be able to trust that the attorney is trying to act in his/her best interests, to describe the circumstances leading to the arrest, to ask his/her attorney questions about things he/she does not understand, to understand the basics of plea bargaining and wish to be acquitted or obtain the lightest penalty possible. Potential questions that one should ask in order to obtain the relevant information include (Ackerman 1999): 1 What do various people do (judge, lawyer, prosecutor, you)? 2 Do you think your attorney is trying to help you? 3 How do you think you will plead? 4 What other choices do you have? 5 Would it matter if there were no witnesses? 6 What will happen if you are found guilty? 7 What does it mean to be placed on probation? 8 Tell me about your last meeting with your attorney. 9 Talk about any prior experiences in court. Of note, one could be competent to stand trial in a juvenile court, but not be able to stand trial in an adult court, which has a more adversarial process.

DISPOSITION AND TREATMENT The treatment of delinquent youths is a major challenge for our profession. The results of treatment programs have generally been poor, as treatment efforts are countered by a strong peer culture that serves to maintain the delinquent behavior. Even programs, which attain some shortterm success, have generally failed to document long-term success in reducing recidivism. In designing treatment for juvenile delinquents one cannot use a ‘one type fits all’ approach. It is crucial to match juveniles not only to an appropriate program but also to tailor the treatment modalities used in the program to the individual’s needs and environment. Specific behavioral goals should be sought, rather than vague objectives and unstructured discussion. One should help the juvenile to develop skills to deal with peer pressure and help parents to develop limit-setting capabilities (Gordon and Arbuthnot 1987; Trojanowicz, Marsh, and Schram 2001). Psychodynamic psychotherapy is only helpful when reserved for carefully selected juveniles. In using this approach, one hopes to achieve beneficial changes in attitudes. The traditional stance of providing a neutral stance and open-ended discussions can be helpful for individuals who internalize their issues, are inhibited and have problems with anxiety and guilt. However, those who externalize their problems and have low levels of inhibitions against impulses are not likely to benefit from resolution of internal unconscious conflicts. On the other hand, the opportunity to internalize the image of a stable, warm adult can be beneficial. This is complicated, however, by the delinquent’s relative lack of ability to trust, and therefore inability to form a bond with the adult figure. The adult is likely to represent an alien middle-class world into which the juvenile will probably never be able to find access and with which he or she may be at war. Moreover, the pull of the gang is likely to be stronger than that of the therapist. In addition, lack of support by the family for the therapy may further hamper it. Nevertheless, therapy can be useful if the therapist can create an atmosphere in which the juvenile can develop trust. The therapist and juvenile can examine destructive patterns of behavior and incorrect perceptions of the world, and explore more adaptive modes of living and having one’s needs met (Aichhorn 1964; Holmes 1964; Trojanowicz, Marsh, and Schram 2001). Reality therapy focuses on the present rather than the past. It states that irresponsible behavior, rather than the past, is the major obstacle to the juvenile feeling positively about him/herself. The therapist provides expectations and defines the limits of acceptable behavior. The therapist expects the juvenile to behave appropriately, and provides considerable support for doing so, but does not reject the juvenile for falling down (Glasser 1965).

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Cognitive therapy focuses on confronting destructive behavior patterns and the irrational beliefs that may underlie them. The therapist can also help the individual to develop decision-making skills, social skills, and the ability to understand others. Juveniles learn to think through the consequences of their action, before they act, and to take responsibility for them. They learn non-aggressive solutions to problems and how others’ behavior is often a reaction to their behavior. Role playing to practice skills may be helpful. This approach has shown considerable promise (Ross and Fabiano 1985; Kazdin et al. 1987; Hains and Hains 1988; Guera and Slaby 1990; Lester and Van Voorhis 1997; Trojanowicz, Marsh, and Schram 2001). Vocational counseling can be helpful in changing a juvenile’s attitudes toward work and helping him or her find work at which he/she can succeed and from which he/she will gain some satisfaction. It is very important that the job opportunities selected should be ones with opportunities for advancement. The juvenile should also seek his General Equivalency Diploma (GED). Status and opportunities for advancement are very important in decreasing recidivism. The juvenile is also likely to benefit from assistance in adjusting to the work world (Trojanowicz, Marsh, and Schram 2001). Group counseling, sharing of concerns, problems and experiences, can be an important addition to individual therapy. Special attention should be given to juveniles who are passive or dependent so that the group does not make them scapegoats. Role-playing can be a useful way to practice skills and to see what it is like to be in someone else’s shoes. Family therapy can be helpful if it focuses on improving communication, development of parental decisionmaking skills, and teaching parents discipline skills (Romig 1978). Project ‘Back on Track’ is an after-school diversion program that uses a multi-modal approach for the treatment of early-career juvenile offenders. The program consists of participation in a four-week cycle of treatment consisting of group and family therapies, parent groups, educational sessions, community service projects, and empathy-building exercises. These youths attend the program for 2 hours per day, four days a week, allowing for 32 hours of contact with the program per cycle. Parents attend the program for 15 hours per cycle. Most youths were referred for violent offenses and met criteria for conduct disorder. The results have been promising, with those who completed the program being significantly less likely than matched controls to have committed subsequent criminal offenses after twelve months. In addition, they had significantly fewer subsequent criminal charges at nine- and twelve-month follow-up intervals than the control group (Myers et al. 2000). Some have argued that no treatment works, one problem having been a failure to separate adolescents into groups. Finding the crucial variables affecting who is

amenable to treatment, and what treatment is most likely to be helpful to a given individual is needed. In general, community-based treatment is better than institutionalization. Structured training is helpful; indeed, the most promising psychosocial treatments for youths with conduct problems include problem-solving skills training, parent management training, functional family therapy, and multi-systemic therapy. Anger replacement training and community-based interventions are examples of other approaches that have demonstrated merit. There is a modest positive effect based on treatment intensity and duration. Finally, certainty of punishment is more important than severity of punishment.

SUMMARY There are many differences between the field of juvenile delinquency and that of adult crime. The juvenile court system, based in the concept of parens patriae, is very different from that of the adult system. There are many roles for the psychiatrist in juvenile delinquency, including evaluating juveniles’ ability to stand trial, whether their Miranda Rights were observed, and whether they are amenable to treatment. There is a need for psychiatrists to provide clinical treatment for juvenile delinquents. Finally, research must be carried out to establish the best treatment and corrective methods for the different causes of juvenile delinquency.

REFERENCES Ackerman, M. 1999: Essentials of Forensic Psychological Assessment. New York: John Wiley & Sons, Inc. Aichhorn, A. 1964: Delinquency and Child Guidance. New York: International Universities Press, Inc. Bandura, A., Walters, R.H. 1963: Social Learning and Personality Development. New York: Hold, Rinehart and Winston, Inc. Bishop, D.M., Frazier, C.E., Lanza-Kaduce, L., Winner, L. 1966. The transfer of juveniles to criminal court: does it make a difference? Crime & Delinquency 42, 171–91. CNN. 2000a: 17 Americans executed for crimes committed as juveniles since 1973. CCN.com December 4. CNN. 2000b: Juvenile murder rate down 68 percent from 1993 to 33-year low. Article provided ideas of James Alan Fox, a Northeastern University criminal justice professor. CNN.com December 15. Cohen, A. 1955: Delinquent Boys, The Culture of the Gang. Glencoe, IL: The Free Press. Dusky v. United States, 362 U.S. 402 (1960). Erikson, E. 1968: Identity, Youth and Crisis. New York: Norton.

Juvenile delinquency 395 FBI. 1976–99: Supplementary Homicide Reports, http://crime.about.com/newsissues/crime/gi/dynamic/ offsite.htm?site⫽http://www.ojp.usdoj.gov/bjs/ homicide/teens.htm Glasser, W. 1965: Reality therapy: a realistic approach to the young offender. In Schasre, R., Wallach, J. (eds), Readings in Delinquency and Treatment. Los Angeles: Delinquency Prevention Training Project, Youth Studies Center, University of Southern California. Goldstein, S. 1999: Attention-deficit/hyperactivity disorder. In Reynolds, S., Reynolds, C.R. (eds), Handbook of Neurodevelopmental and Genetic Disorders in Children. New York: The Guilford Press. Gordon, D.A., Arbuthnot, J. 1987: Individual, group and family interventions. In Quay, H.C. (ed.), Handbook of Juvenile Delinquency. New York: John Wiley & Sons, 290–324. Gottfredson, M.R., Hirschi, T. 1990: A General Theory of Crime. Stanford, CA: Stanford University Press. Grisso, T. 2000: quoted in Margaret Talbot, ‘What’s Become of the Juvenile Justice System’. The New York Times Magazine, September 10. Guera, N.G., Slaby, R.G. 1990. Cognitive mediators of aggression in adolescent offenders. Developmental Psychology 26, 269–77. Hains, A.A., Hains, A.H. 1988. Cognitive-behavioral training of problem-solving and impulse-control with delinquent adolescents. Journal of Offender Counseling, Services and Rehabilitation 12, 95–113. Holmes, D.J. 1964: The Adolescent in Psychotherapy. Boston: Little, Brown and Company. In re Gault, 387 U.S. 1 (1967). In re Winship, 397 U.S. 358 (1970). Ingalls, S., Goldstein, S. 1999: Learning disabilities. In Reynolds, S., Reynolds, C.R. (eds), Handbook of Neurodevelopmental and Genetic Disorders in Children. New York: The Guilford Press. Kazdin, A.E., Esveldt-Dawson, K., French, N., Unis, A.S. 1987. Problem solving skills training and relationship therapy in the treatment of antisocial child behavior. Journal of Consulting and Clinical Psychology 55, 76–85. Kent v. United States, 383 U.S. 541 (1966). Lester, D., Van Voorhis, P. 1997: Cognitive therapies. In Van Voorhis, P., Braswell, M., et al. (eds), Correctional Counseling and Rehabilitation, 3rd edition. Cincinnati, OH: Anderson Publishing Co., 163–85. McCord, W., McCord, J., Zola, I.V. 1969: Origins of Crime: A New Evaluation of the Cambridge-Somerville Youth Study. Montclaire, NJ: Patterson Smith.

McKeiver v. Pennsylvania, 403 U.S. 528 (1971). Mead, G.H. 1918. The psychology of punitive justice. American Journal of Sociology 23, 577–602. Merton, R. 1938: Social structure and anomie. American Sociological Review 3(5). Moone, J. 1997a: Juveniles in Private Facilities, 1991–1995. Washington, DC: U.S. Department of Justice. Moone, J. 1997b: States at a Glance: Juveniles in Public Facilities 1995. Washington, DC: U.S. Department of Justice. Myers, W.C., Burton, P., Sanders, P.D., Donat, K.M., Cheney, J., Fitzpatrick, T., Monaco, L. 2000. Project Back-On-Track at 1 year: a delinquency treatment program for early-career juvenile offenders. Journal of the American Academy of Child and Adolescent Psychiatry 39, 1127–34. People v. Lara, 432 P.2d 202 Cal (1967). Reiner, S.B., Kaufman, I. 1959: Character Disorders in Parents of Delinquents. New York: Family Service Association of America. Romig, D.A. 1978: Justice for Our Children: An Examination of Juvenile Delinquent Rehabilitation Programs. Lexington, MA: Lexington Books, D.C. Health and Company. Ross, R.R., Fabiano, E.A. 1985: Time to Think: A Cognitive Model of Delinquency Prevention and Offender Rehabilitation. Johnson City, TN: Institute of Social Sciences and Arts, Inc. Schall v. Martin, 467 U.S. 253 (1984). Snyder, H.N., Sickmund, M. 1999: Juvenile Offenders and Victims: 1999 National Report. Washington, DC: Office of Juvenile Justice and Delinquency Prevention. Stahl, A.L., Sickmund, M.H., Finnegan, T.A., Snyder, H.N., Pool, R.S., Tierney, N.J. (1999): Juvenile Court Statistics: 1996. Washington, DC: Office of Juvenile Justice and Delinquency Prevention. Stanford v. Kentucky, 492 U.S. 361 (1989). Sutherland, E. 1956: In Cohen, A.K., Lindesmith, A.R., Schuessler, K.F. (eds), The Sutherland Papers. Bloomington: University of Indiana Press, 8–10. Thompson v. Oklahoma, 487 U.S. 815 (1988). Thrasher, F. 1936: The Gang. Chicago: University of Chicago Press. Trojanowicz, R.C., Marsh, M., Schram, P.J. 2001: Juvenile Delinquency Concepts and Control. Upper Saddle River, NJ: Prentice-Hall. Wilkins v. Missouri, decided together with Stanford v. Kentucky, 492 U.S. 361 (1989).

41 Posttraumatic stress disorder in children and adolescents: clinical and legal issues JAMES E. ROSENBERG AND SPENCER ETH

Alan A. Stone, M.D., wrote that, ‘No diagnosis in the history of American psychiatry has had a more dramatic and pervasive impact on law and social justice than posttraumatic stress disorder … ’ (Stone 1993). His thoughts are particularly poignant as we survey the changing landscape of child and adolescent forensic psychiatry. The practitioner must be attuned to the strengths and limitations of his or her own qualifications, ethical obligations, and the current research and controversies that uniquely define the field. Cook (1996) summarizes the issues thus: ‘as new visitors (to the legal system), they must be alerted to old tricks familiar to adult forensic psychiatrists. The art and science of forensic psychiatry is both slowly evolving and rapidly changing. The practitioner must not only be clinically competent, but be wary of the multiple agendas of society, the law, and adversarial lawyers.’ The fundamental approach or focus of the child and adolescent forensic psychiatrist differs from his or her adult counterpart. According to Ash and Derdeyn (1997), ‘The forensic evaluation of an adult generally emphasizes providing data for the court, without any duty of care toward the person evaluated. For the three forensic issues that child psychiatrists most commonly face – child custody in divorce, disposition in abuse/neglect proceedings, and assessment of delinquents for juvenile courts – what is best for the child remains a central concern … quasi-therapeutic orientation.’ As reviewed in this chapter, the skill and knowledge base required to evaluate posttraumatic stress disorder (PTSD) in children and adolescents is highly specialized, and cannot be provided by analogy to adults. There is furthermore an increasing emphasis on the use of quantitative data, properly designed research studies, and standardized evaluation techniques in providing authoritative rather than impressionistic expert opinions in the courtroom (Ash and Derdeyn 1997).

PTSD in children has been an area of psychiatric focus since only the 1970s. Newman’s paper on the Buffalo Creek disaster (1976), and in particular, Terr’s detailed study of the 1976 Chowchilla kidnapping incident (1979) were landmark articles, and set the stage for a new era of inquiry into the psychiatric sequela of emotional trauma from infancy through adolescence. Prior to the Vietnam War, the assessment and formulation of psychic trauma in adults occurred largely within a Freudian framework (Boehnlein 1989). The American Psychiatric Association’s original Diagnostic and Statistical Manual (DSM) in 1952 referred to ‘gross stress reaction,’ while the DSM-II in 1968 employed ‘transient situational disturbance’ (Brett, Spitzer, and Williams 1988). The term ‘posttraumatic stress disorder’ was formally introduced into the psychiatric nomenclature with the publication of DSM-III in 1980. The DSM-III significantly differed from earlier editions by specifying a chronic PTSD syndrome. The United States Department of Veterans Affairs accepted the DSM-III diagnosis of PTSD, delayed type, allowing veterans for the first time since World War I to apply for service-connected disability a year or more after their periods of military service had expired. No specific reference to traumatized children was made until DSM-III-R, which was published in 1987 [American Psychiatric Association (APA) 1987]. In the DSM-IV, acute stress disorder was introduced as a short-term, early-onset disorder in response to emotional trauma, with an emphasis on dissociative symptoms (APA 1994). In 2000, the American Psychiatric Association published the DSM-IV-TR in which the diagnostic criteria of mental disorders, including PTSD and acute stress disorder, remain unchanged while the accompanying text has been updated to reflect changes in the field (APA 2000). A ‘Familial Pattern’ component has been added to the PTSD section to highlight research suggesting a genetic predisposition to the disorder.

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DIAGNOSTIC CRITERIA Despite the cautionary statement at the beginning of the DSM-IV (APA 1994), and now the DSM-IV-TR (APA 2000), regarding the use of the text and its diagnostic criteria in legal proceedings, the DSM remains the virtual standard throughout forensic psychiatry and psychology. The DSM-IV diagnostic criteria for PTSD are independent of the subject’s age, though features particular to children and adolescents are noted in the text and as annotations to the criteria (APA 2000). The diagnosis of PTSD requires that the individual first meet a threshold criterion of having suffered or experienced a traumatic event (Criterion A), followed by a triad of re-experiencing, avoidance and numbing, and hyperarousal symptoms (Criteria B, C, and D, respectively). To qualify as an emotional trauma, ‘the person experienced, witnessed, or was confronted with … actual or threatened death or serious injury, or a threat to the physical integrity of self or others … the person’s response involved intense fear, helplessness, or horror.’ The authors note that, in children, the response to trauma may consist of disorganized or agitated behavior (APA 2000). The nature of the emotional trauma for a child may extend beyond the boundaries of the momentary accident or act of violence, both in its duration and complexity. For example, the child victim may be forced to remain at the side of his or her injured or dead parent until help arrives. The direct impact of the trauma to the child may be extended by fears for the safety of loved ones who are not immediately accessible at the scene. Children may thus feel frightened, overwhelmed, or helpless long after the discrete ‘trauma’ has passed (Pynoos, Steinberg, and Goenjian 1996). Criterion B of the PTSD criteria in DSM-IV requires that the subject re-experience the traumatic event in at least one of several possible ways. Symptoms include intrusive, repetitive recollections; nightmares; re-experiencing the event as happening again in real time, e.g., flashbacks; intense psychological distress in response to traumarelated cues; or intense physiologic activation in response to such triggers or reminders (APA 2000). In children, re-experiencing phenomena can be developmentally quite distinct from those encountered in older teens and adults. Recollections may take the form of joyless, repetitive play that symbolizes some element of the trauma. Within a matter of weeks, nightmares can generalize into frightening dreams about monsters or other generic threats rather than preserve the trauma-specific content. Re-enactments of the traumatic experience, or some component thereof, can take the place of flashbacks (APA 2000). Alternatively, children may suffer intrusive, repetitive daydreams about the trauma during periods of relaxation or calm, such as at bedtime (Terr 1991). Criterion C involves three or more of the avoidance and numbing symptoms of PTSD. Possible symptoms

include cognitive avoidance of thoughts, feelings, or recollections that trigger heightened anxiety or negative, intrusive posttraumatic sequela; physical avoidance of people, places, or things that similarly rekindle some element of the posttraumatic anxiety syndrome; psychogenic amnesia for part or all of the traumatic event; loss of interest or pleasure in previously satisfying activities, i.e., anhedonia; lack of emotional connection or affection to significant others; loss of emotional range, e.g., loving or cheerful feelings; and fears or expectations of a truncated future (APA 2000). Clearly, the avoidance and numbing symptoms of PTSD overlap considerably with those of major depression, a common comorbid condition. In children, many of the elements of Criterion C can be difficult to elicit directly from the younger child, and necessitate an increased reliance on third-party sources of information, such as parents and teachers. As noted in the DSM-IV-TR, the sense of a foreshortened future may take the form of feelings by the child that he or she will never reach adulthood or other major milestones. They may engage in ‘omen formation,’ i.e., magical beliefs in having the ability to predict negative future events. Physical symptoms of anxiety, such as indigestion or headaches, are common in this age group (APA 2000). Criterion D requires the presence of two or more of five symptoms of autonomic hyperarousal: sleep disturbance; irritability or temper outbursts; subjective difficulties with distractibility or reduced concentration; hypervigilance; and increased startle reaction to commonplace sounds, such as the phone or doorbell ringing (APA 2000). In addition to the core features of PTSD in the DSMIV-TR, viz., the threshold criterion of the traumatic event followed by the triad of re-experiencing, avoidance and numbing, and hyperarousal symptoms, the diagnosis entails a number of supplemental and associated features. The symptoms of Criteria B, C, and D must last at least one month, and cause significant distress or impairment in functioning. The available specifiers include an ‘acute’ course of less than three months; a ‘chronic’ condition lasting three months or more; and ‘delayed type’ in which the onset of symptoms is at least six months posttrauma (APA 2000). In a variety of contexts, the subject’s PTSD may be further described as mild, moderate, or severe in duration (e.g., McDermott and Cvitanovich 2000). This specifier appears to be borrowed from the nomenclature for major depression. Strictly speaking, it is not available for PTSD within the DSM-IV-TR. The basic backbone of any mental disorder within the DSM-IV and DSM-IV-TR framework, including PTSD, is a constellation of symptoms that cause marked distress or impairment in one or more major domains of function. This criterion is not required for a diagnosis of PTSD in the tenth revision of the International Classification of Diseases (ICD-10) by the World Health Organization (WHO 1992), which in turn leads to a significantly higher percentage of individuals being diagnosed with PTSD

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under ICD-10 than DSM-IV (Peters, Slade, and Andrews 1999). Interestingly, PTSD is relatively unique among the major mood, anxiety, and psychotic disorders in lacking an exclusion criterion that the disorder has not been caused by a substance or underlying general medical condition. However, the differential diagnosis includes adjustment disorder; attention-deficit hyperactivity disorder (ADHD); acute stress disorder; a variety of mood, anxiety, and psychotic disorders; and conditions referable to a substance or medical condition (APA 2000). Another consideration of particular relevance to the forensic expert is, of course, malingering. In considering diagnostic alternatives, two interesting scenarios arise under DSM in subjects who meet only partial criteria for PTSD (McNally and Saigh 1993). If the subject suffers a stressor of lesser severity than an emotional trauma, as described under Criterion A, but goes on to exhibit re-experiencing, avoidance and numbing, and hyperarousal symptoms, the correct diagnosis would be adjustment disorder or anxiety disorder not otherwise specified (NOS). On the other hand, an individual who suffers a full-blown emotional trauma, but only responds with a partial syndrome of fear and avoidance, would most properly be classified with a specific phobia. With regard to other formulations of PTSD, Terr bifurcates the disorder into Type I and Type II based upon the characteristics of the trauma history. In Type I traumas, the subject experiences a single traumatic event, such as a car accident or violent crime, followed by the classic Criteria of PTSD as outlined above. In contrast, Type II traumas occur on a chronic or repetitive basis, such as years of childhood physical or sexual abuse. The predominant symptoms appear to be more geared towards physical and psychological survival: denial, repression, dissociation, and anger. Some victims may present with a hybrid of Types I and II (Terr 1991). Blank (1993) has described the marked variability in the onset, course, and proportions of symptoms in PTSD. In addition to acute, chronic, and delayed types, Blank has identified intermittent and recurrent forms. The re-experiencing, avoidance and numbing, and hyperarousal symptoms vary with the individual, the trauma, and over time in a particular case. The so-called ‘dose–response’ relationship between severity, proximity, and duration of the emotional trauma only partially correlated with the genesis of PTSD and its natural history (Blank 1993). While the onset and course of the disorder can be quite variable, symptoms resolve in roughly 50 per cent of cases within three months, with the remainder of patients having more chronic or waxing and waning symptoms (APA 2000). Despite these considerations, acute stress disorder must be contemplated as a distinct disorder from PTSD; a significant proportion of individuals who ultimately develop PTSD never qualified for a diagnosis of acute

stress disorder or only had a partial, subsyndromal version. For example, Harvey and Bryant (1999) followed automobile accident victims for two years post-event to ascertain the precursors and frequency of PTSD. Initially, in the early post-accident period, 13 per cent of victims met diagnostic criteria for acute stress disorder, and another 21 per cent had a subsyndromal version. At two years, 63 per cent of the patients with acute stress disorder had progressed to PTSD, whilst 70 per cent of the subjects who had only partially met criteria for acute stress disorder developed full-blown PTSD. An additional 13 per cent met the diagnostic criteria for PTSD without previously having elements of acute stress disorder. Within the differential diagnosis of PTSD, particular attention should be paid to the question of ADHD given the potential overlap in behavioral manifestations and the markedly different treatment approaches required for the two conditions. McLeer and colleagues compared sexually abused to non-abused children who presented to a psychiatric clinic. In both groups, ADHD was the most common diagnostic entity. However, 42.3 per cent of the subjects in the sexually abused group also met criteria for PTSD (McLeer et al. 1994). The impulsivity, hyperactivity, and interpersonal problems encountered in PTSD can be misinterpreted as ADHD (Weinstein, Staffelbach, and Biaggio 2000). The treatment for PTSD and ADHD are substantially different such that a misdiagnosis of one as the other can lead to either ineffective or even deleterious therapy. For example, inadvertently treating PTSD with psychostimulants, the first-line medications for ADHD, would potentially worsen problems with anxiety, irritability, autonomic activation, and insomnia. In children with pre-existing ADHD, a comorbid PTSD can be more severe than otherwise expected given the traumatic event and other factors (Martini et al. 1990).

EPIDEMIOLOGY According to community-based studies, the overall lifetime prevalence of PTSD has been estimated at 8 per cent (APA 2000). Among 8098 respondents who participated in the National Comorbidity Survey, 60.7 per cent of men and 51.2 per cent of women reported having experienced at least one traumatic event in their lifetimes. Most subjects in fact had suffered two or more such incidents. The risk of developing PTSD varied significantly with the type of trauma. Females more commonly experienced all three types of traumas that carried the highest incidence of consequent PTSD – rape, childhood physical abuse, and childhood neglect (Kessler et al. 1999). The National Comorbidity Study has, however, been criticized for artifactually raising the prevalence of PTSD by collecting data only from subpopulations with prior histories of mental illness (Deykin 1999).

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According to epidemiologic studies, PTSD commonly occurs in conjunction with one or more other psychiatric disorders. In adults, the highest comorbidities were observed between PTSD and depressive, substance use, and other anxiety disorders (Brady et al. 2000). Having laid a foundation for epidemiologic data regarding PTSD in adults, the overall prevalence of the disorder in children and adolescents is uncertain. Widely varying estimates have been given, depending upon the nature of the trauma and other risk factors, from 5 per cent to 75 per cent (Dulcan and Martini 1999). While these discrepancies are no doubt in part due to differential risk factors for developing PTSD, the research literature has also been plagued by problems with sampling methods, interview techniques, psychometric instruments, and other methodologic weaknesses and inconsistencies (Eth 1990). Garmezy (1986) has reviewed concerns regarding research issues in childhood PTSD, including generalizability of limited results to other races and communities.

RISK FACTORS In addition to the threshold traumatic event, several other putative risk factors may affect the likelihood that a particular trauma victim will go on to develop PTSD. Those factors include victim characteristics, the specifics of the trauma, environmental factors, and the availability of social and family support systems (Pfefferbaum 1997; Deykin 1999). A meta-analysis of risk factors in adults, including the significant contributions of childhood and adolescent antecedents, has been meticulously reviewed (Brewin, Andrews, and Valentine 2000). According to the DSM-IV-TR, genetics may constitute a risk factor in the genesis of PTSD (APA 2000). For example, in a study of veterans by True and Lyons, heritable elements accounted for about 30 per cent of the risk of developing re-experiencing, avoidance and numbing, and hyperarousal symptoms as compared to environmental factors. The one exception was DSM-IV criterion B(1) – intrusive memories – which was largely environmental in origin, i.e., in the range of 90 per cent (True and Lyons 1999). Physical and emotional proximity factors are significant characteristics of the traumatic event itself. An event that is physically closer to the individual, all else being equal, is more traumatic, as is an event that impacts the subject or a loved one as opposed to a stranger (Pfefferbaum 1997). This phenomenon is eloquently illustrated by the study of the sniper attack on an elementary school playground by Pynoos et al. (1987). Students who were closest to the gunfire were most likely to manifest symptoms of PTSD. Those individuals who were further away but still developed PTSD tended to have additional risk factors. Other students with little or no exposure to the traumatic

event who had close relationships with pupils who were injured or killed, also experienced an increased risk of PTSD. On the other hand, proximity to the danger carries less weight when the perceived threat is vague or intangible, as in the case of Three Mile Island (Handford et al. 1986). Traumas of human origin, such as rape, are considered to be more potent triggers of PTSD than natural disasters, such as a hurricane or earthquake (APA 2000). Simon (1995) suggests that, ‘The injured person usually feels that a man-made stressor is preventable, whereas natural disasters are unavoidable acts of God.’ In her review of the literature, Pfefferbaum found mixed, inconsistent results regarding the effect of gender on the likelihood of developing PTSD. Some studies reported a higher rate in females, others a higher rate in males, and a third group of studies concluded that boys and girls developed PTSD with equal frequency (Pfefferbaum 1997). As noted earlier, the National Comorbidity Survey reported that the types of traumas that were most strongly linked to the development of PTSD occurred more often in females (Kessler et al. 1999). The National Women’s Study was a prospective, multivariate analysis of the risk factors in 3006 women for rape, sexual assault, and for the development of PTSD as a result of sexual or physical assault (Acierno et al. 1999). A set of risk factors was identified for each of the four groups: rape victims; physical assault victims; PTSD secondary to rape; and PTSD due to physical assault. Factors that appeared to increase the rate of PTSD in rape victims included a history of an affective disorder, alcohol abuse, or the presence of bodily injuries inflicted by the perpetrator. In addition to gender, qualitative differences are seen in how various pediatric age groups respond to emotional trauma and express PTSD symptoms. Older children and adolescents are more likely to develop re-experiencing and hyperarousal symptoms, while younger children are more inclined to present with avoidance symptoms (Schwarz and Kowalski 1991). Furthermore, teens may utilize aggressive or other acting-out behaviors to externalize stress and anxiety, which can lead to school, family, substance use, sexual, and legal problems (Luthar and Zigler 1991; Deykin 1999). As addressed above, the text and diagnostic criteria of DSM-IV-TR discuss several ways in which younger children manifest PTSD symptoms differently from older children, adolescents, and adults (APA 2000). The comorbidity of substance use disorders and PTSD in teens has received attention as a problem of increasing importance. For example, Deykin and Buka (1997) studied 297 adolescents in a residential drug treatment program. Roughly 75 per cent endorsed a history of significant emotional trauma, and about 30 per cent qualified for a diagnosis of PTSD. However, striking gender differences emerged. In boys, high-risk substancerelated behaviors led to being victimized in emotionally traumatic events, in turn placing them at risk for PTSD.

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In contrast, adolescent girls were more likely to first suffer the trauma, which then led to later substance abuse or dependence as a means of self-medication or perhaps as part of a pattern of high-risk behaviors secondary to preexisting PTSD. Thus, in civil litigation, drug abuse in a traumatized teen may be a second, distinct and potentially far-reaching injury caused by the event in question. For many years, the issue of whether intelligence served as a protective factor against PTSD remained controversial. More recent studies suggest that cognitive deficits may increase the risk of developing PTSD in at least two ways. Cognitively impaired individuals often manifest poor judgment, which renders them more likely to be exposed to an emotionally traumatic situation. Furthermore, such individuals may have limited resources to process and cope with the trauma and its psychiatric sequela compared with the average victim (Orr and Pitman 1999). Cultural and racial factors may be influential in the genesis and natural history of PTSD in various populations, but have not been adequately studied. For example, Latino children and adolescents are at increased risk for PTSD and other psychiatric disorders due to such adversities as forced immigration from war-torn or impoverished homelands; high rates of economic hardship, gang violence, and pregnancy; problems with school truancy and dropout. Interestingly, the psychosocial impact of immigration and acculturation in Latino youths depended most upon how well their mothers appeared to handle the same stressors (Garrison, Roy, and Azar 1999). In general, the resilience and coping styles of parents in response to emotional trauma dictate to a substantial degree the psychiatric outcomes in their children. In McFarlane’s classic study of the Australian bushfire disaster, he found that parental factors were more predictive of chronicity of PTSD symptoms in the child victims than the degree of exposure (McFarlane 1987). Similarly, psychopathology in the parent, particularly the mother, was found to significantly affect the outcomes of traumatized children in studies of pediatric cancer (Stuber et al. 1997) and automotive accidents (de Vries et al. 1999). In civil litigation, this finding can serve to the advantage of either plaintiff or defendant. On the one hand, the child’s emotional problems may be found to be related more to pre-existing maternal psychopathology rather than the event at issue. On the other hand, concomitant traumatization of both the child and mother may have far-reaching benefits to the plaintiff ’s case if the child’s recovery is slowed or even damaged by the mother’s own symptoms that have rendered her unable to provide essential nurturance and support. As noted earlier, the type and severity of the traumatic event significantly affect the genesis and course of PTSD in children and adolescents. Childhood sexual abuse illustrates this principle; a number of factors influence whether PTSD, or an array of other psychiatric disorders, will emerge in response to this dark trauma. The types of

sexual abuse that are most likely to trigger PTSD include the application of physical force by the perpetrator, genital contact, or if the offender is a male authority figure in the victim’s life, such as the father. In fact, sexual abuse by a significant other, such as a family member, places the child at greater risk than perpetration by a stranger (Browne and Finkelhor 1986). A number of studies have considered whether childhood sexual abuse leads to prostitution. Using a series of logistical models, Brannigan and Gibbs Van Brunschot (1997) examined an array of potential risk factors. Negative home life and sexual precocity increased the likelihood of both prostitution and adolescent run-away behaviors. Sexual abuse was not a separate risk factor. The rate of PTSD is elevated among populations of foster-care children. A recent study compared three groups: victims of physical abuse; sexual abuse; and no history of abuse. The group that had suffered sexual abuse had the highest risk of PTSD, viz. 64 per cent, whilst 42 per cent of children who had experienced physical abuse qualified for a diagnosis of PTSD. Of note, 18 per cent of the non-abused children also had PTSD, presumably due to other types of emotional trauma, such as witnessing gang or domestic violence (Dubner and Motta 1999). With regard to other types of traumatic situations of medico-legal relevance, the risk of childhood PTSD in motor vehicle accidents has been studied. In one report, using a prospective cohort study paradigm, researchers found that 25 per cent of youths qualified for a diagnosis of PTSD, akin to that seen in victims of violent crimes (de Vries et al. 1999). Interestingly, the risk for developing PTSD correlated better with older age or a parent with PTSD rather than such factors as physical injury in the child.

PSYCHOPHYSIOLOGIC STUDIES As Stone observed, part of the appeal of PTSD to the plaintiff ’s attorney is the opportunity to forge, for the sake of jury impact, the impression of a physical disorder from the emotional; medical rather than psychological (Stone 1993). The latest PTSD literature indeed bristles with an array of biologic studies, searching for markers to confirm PTSD or, conversely, to detect malingering with the medical authority of electrophysiologic tests in neurology or structural imaging in orthopedics. In assessing the value of quantitative electroencephalogram (QEEG) or functional imaging studies, for example, the prejudicial value to the jury of brightly colored images and technical jargon must be weighed against concerns of research shortcomings and lack of specificity. In any case, it appears that the future of PTSD-related civil litigation and criminal defenses rest with whoever will find the ‘magic bullet,’ i.e., the truly definitive biochemical, electrophysiologic, or imaging study of high specificity and sensitivity.

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A wide assortment of psychophysiologic research modalities has been utilized. Putative abnormalities have been found in such varied domains as the autonomic nervous system, a variety of event-related potentials, multiple neurotransmitters, the hypothalamic-pituitary-adrenal axis, neuropsychological studies, immune responses, and structural and functional imaging. Of note, findings particular to children with PTSD have also been reported, including possible alterations in neuroendocrine markers, the limbic cortex, and brain electrical activity (van der Kolk 1997; Glaser 2000). One of the most promising areas of research regarding biologic markers for PTSD involves exploiting the increased physiologic responsiveness of the victim to trauma-related cues, i.e., DSM-IV criterion B(5) (APA 2000). However, a number of factors confound its use. Individuals with the appropriate specific phobia or a past history of PTSD, now resolved or in remission, may demonstrate the same reactivity. Responsiveness to the test also varies as a function of symptom severity, losing sensitivity in mildly symptomatic subjects (Orr 1997). Structural and functional imaging studies are available, primarily in the adult literature. For example, Bremner et al. (1997) have reported the results of a preliminary study of magnetic resonance imaging (MRI) findings in adults with histories of PTSD secondary to childhood abuse. Compared to matched controls, subjects with PTSD had reduced volumes in the left hippocampus, which could have particular implications for memory disturbances in PTSD. The significance of past PTSD in producing a falsepositive test has also been encountered in other settings, such as psychophysiologic markers of adult survivors of childhood trauma. Three groups of women who had been sexually abused as youths were compared, using measures of heart rate, skin conductance magnitude, and skin conductance habituation: current PTSD; prior history of PTSD with no current symptoms; and no history of PTSD. Similar derangements were found in the subjects with current and past PTSD, suggesting that the heightened reactivity may either represent a biologic predisposition to PTSD or a permanent physiologic change following the onset of PTSD (Metzger et al. 1999).

ASSESSMENT Standards and guidelines have been published pertaining to the clinical examination of children and adolescents with regard to the issue of PTSD [Newman, Kaloupek, and Keane 1996; American Academy of Child and Adolescent Psychiatry (AACAP) 1998; Perrin, Smith, and Yule 2000]. A wide array of assessment instruments are available to assist the evaluator, including parent and teacher questionnaires, clinician-administered checklists, self-report inventories, and structured personality

assessment, e.g., the MMPI-2 (Newman, Kaloupek, and Keane 1996). The AACAP clearly states that such tools are appropriately used only as adjuncts, and are not substitutes for careful, detailed face-to-face interviews (AACAP 1998). Drake, Bush, and Van Gorp (2001) have recently reviewed the sophisticated use of such instruments, as part of a multimodal evaluation approach. One of the most dramatic ways in which younger children can differ from adult subjects with PTSD is with regard to the pattern of symptom expression. The number and proportion of re-experiencing, avoidance and numbing, and autonomic hyperactivity symptoms in the child can vary substantially (AACAP 1998). Functionally, a partial PTSD syndrome in children may ultimately prove to be indistinguishable from those individuals who meet full DSM-IV criteria. The forensic examiner faces a number of hurdles, including risk of genuine or perceived bias, possessing and maintaining proper qualifications, the scope of the examination, and the availability of sufficient corroborative third-party sources of information. A particular pitfall also faces the treating child psychiatrist who agrees to serve as expert witness, i.e., the issue of double agency (Strasburger, Gutheil, and Brodsky 1997). The psychiatrist who provides clinical evaluation and treatment brings the perspective of advocate who largely accepts the patient’s subjective perceptions and statements at face value. In contrast, the forensic expert, by virtue of education, training, and experience, supposedly brings a more objective, unbiased approach to the courtroom, emphasizing the value of additional sources of information. These databases may include third-party collateral interviews, structured paper-and-pencil testing, extensive records from a number of settings, and even surveillance videotapes. Quinn (1995) has specifically addressed the issue of forensic examination of the child or adolescent regarding PTSD. She emphasizes a number of highly cogent points, such as the array of PTSD features that are unique to younger children; the details of the forensic examination process, particularly the importance of employing a developmental perspective; and the need to possess adequate qualifications and training to properly proceed with such specialized assessments. Quinn also reviews the several ways in which faulty or deficient evaluation procedures can lead to artificially exaggerated or understated rates of detection of emotional trauma, and in turn, PTSD. Factors that reduce the rate of diagnosis include ignorance, denial, or minimization by teachers, parents, and other adults, and the lack of expressiveness in child subjects, especially younger, less verbally sophisticated individuals. In contrast, examples of factors that may lead to over-reporting of emotional trauma and PTSD are poor implementation or standards for state mandatory reporting requirements, and incompetence or bias of some so-called ‘trauma therapists’ (Quinn 1995).

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PTSD AND MEMORY Posttraumatic stress disorder involves two fundamental disturbances in memory. The traumatic event primes the individual to experience repetitive, intrusive memories and other re-experiencing phenomena. In addition, some PTSD patients suffer from psychogenic amnesia in which partial or complete information regarding the trauma is rendered inaccessible to recall, despite an intact memory apparatus (McNally 1997). Ruminative thinking, hyperarousal, and other factors can also lead to non-specific impairments in the attention and concentration required to encode new information presented after the trauma. Quinn reviewed the literature regarding childhood trauma and memory as it pertains to examination by the forensic child psychiatrist. She discusses a number of dysfunctional memory processes seen in the pediatric population, including omission of memory segments about the most traumatic element of the perceived threat; alterations in the details of the traumatic event; the use of omens or premonitions; denial, minimization, and repression; and dissociation (Quinn 1995). The neuroanatomical correlates of intrusive, unpleasant memories of a past emotional trauma have been studied using positron emission tomography (PET) in women with childhood histories of sexual abuse. Matched subjects with and without PTSD were provided with neutral and trauma-related cues during imaging. Compared to the control sample, females with PTSD showed alterations in brain glucose metabolism in several sites in response to triggering stimuli: medial prefrontal cortex, visual association areas, and the hippocampus (Bremner et al. 1999). Ash and Derdeyn (1997) analyzed the mental health literature with regard to the validity of child victim testimony in cases involving allegations of sexual abuse. They conclude that, in general, children are able to adequately recall what happened to them, with the caveat that younger children are particularly susceptible to suggestion and manipulation by adults. The authors also sound a cautionary note that other factors may also lead to distortions in the child’s testimony, such as the conflicting goals and motivations in a child custody dispute or the effects of multiple individual or group interviews in reshaping the victim’s perception of the facts. Indeed, the manner in which the forensic examiner or attorney questions the child while under stress can lead to significant problems with suggestibility or further emotional disturbance for the victim. The child may fall victim, for example, to misleading questions, intimidation, questions involving false premises, or the use of jargon or overly adult vocabulary (Goodman, G.S., et al. 1999). The process of testifying in a civil or criminal case can even be an additional source of emotional trauma for the already suffering or damaged child witness/victim (Eth 1988). The presence of a significant psychiatric disorder, such as PTSD, schizophrenia, or other conditions furthermore

does not per se invalidate the veracity of witness or victim testimony. Goodman, L.A., et al. (1999) studied a variety of adult victims of violent crimes who also had active major mental illness. In general, when proper examination protocols were followed, reliable information regarding the traumatic event could be elicited. Corroboration with additional sources of data, as in any good forensic evaluation, is of course encouraged.

TREATMENT ISSUES In civil litigation, the forensic psychiatrist may be called upon to comment upon a number of treatment-related issues in the child or adolescent with PTSD. They include the role of inadequate or inappropriate treatment of a pre-existing disorder in mitigating damages; the contributory effects of therapist bias, adverse medication side effects, and other treatment complications; and an estimate of future treatment needs, costs, and long-term prognosis. Pfefferbaum (1997) has noted that chronic PTSD in children can have far-reaching effects in disrupting the normal cascade of developmental milestones. Treatment issues can also be an important aspect of expert evaluation and testimony in a criminal case, such as a matter involving an adolescent with PTSD who has been accused of a violent offense. The trier of fact may be receptive to reasonable testimony regarding the role of the defendant’s PTSD that had been left untreated or inadequately treated, particularly in penalty phase. A carefully outlined, comprehensive treatment plan with adequate monitoring and safeguards may lead to better success in obtaining probation instead of incarceration in select cases. A panoply of treatment interventions are available in PTSD, though most are better established in adult populations. First-line modalities that may be used alone or more typically in combination include cognitivebehavior psychotherapy, family and psychosocial interventions, eye movement desensitization and reprocessing (EMD/R), and drug therapies. Preliminary research regarding pharmacotherapy in adults suggests that selective serotonin re-uptake inhibitors (SSRIs) are the preferred medications for PTSD, associated depressions and other comorbid conditions. Other agents include benzodiazepines, monoamine oxidase inhibitors (MAOIs), and clonidine. Unfortunately, the safety and efficacy of medication treatments for children and adolescents with PTSD, particularly in younger children, remain largely unexplored, and are built mainly upon analogies borrowed from the adult literature (Donnelly, Amaya-Jackson, and March 1999).

LEGAL ISSUES A variety of issues pertinent to the legal aspects of PTSD in children and adolescents have already been touched

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upon in the course of explicating the available information regarding the epidemiology, risk factors, phenomenology, evaluation, and treatment of individuals in this unfortunate population. The child forensic psychiatrist must have considered and be familiar with a number of key issues that span the evaluation and opinion process. First, as noted earlier, and discussed by Quinn (1995), particular expertise by virtue of education, training, and experience is required, particularly with prepubertal age children. Knowledge and skill in the subspecialties of clinical and forensic assessment in this population is essential, unless the expert is simply offering opinions about one specific area, such as psychopharmacology, without addressing broader issues. In accepting the case referral for a civil or criminal consultation, a number of other considerations surface in addition to adequate expertise. The expert must assure that there is no conflict or question of bias with regard to prior relationships with the parties involved. The attorney’s expectations, timelines for each step of the process, and expectations regarding fees and payment must also be made explicit. The expert has a responsibility to consider early and discuss with the attorney the need for adequate corroborative third-party records, psychological testing, collateral phone interviews, and other important sources of information that help distinguish the forensic assessment from the clinical–therapeutic evaluation. As discussed previously, the expert must have an appreciation for the variability of the presentations in PTSD in children and adolescents, based upon age, developmental phase, nature of the traumatic event, and other characteristics. A rigid, uncritical application of the DSM-IV criteria for PTSD that fails to address the fluctuations in re-experiencing, avoidance and numbing, and hyperarousal symptoms is a disservice to the subject. A partial PTSD syndrome may lead to the same degree of functional impairment as a complete disorder by DSMIV standards (AACAP 1998), which has implications for civil damages. Moreover, the role of common comorbid depressive, anxiety, substance use and other disorders must be evaluated with regard to the degree of emotional distress, impairment, treatment needs, and prognosis. Plaintiffs can also recover monetary damages for emotional injury that does not meet the criteria for a specific DSM-IV disorder. PTSD can become a central issue in a wide array of criminal, civil, and administrative matters. Although some are less relevant to children and adolescents, they include criminal defenses during guilt phases; penalty phase issues of mitigation; workers’ compensation; fitness for duty in law enforcement; administrative evaluations of lawyers, physicians and other licensed professionals; and of course, civil tort law in psychic personal injury claims. PTSD could also potentially be an issue in civil and criminal competencies, such as the capacity to give a voluntary and honest confession or plea.

In the criminal arena, PTSD can be offered affirmatively as an insanity defense, or as part of heat of passion, imperfect self-defense, or mens rea defense in which a specific element required for the crime may be negated. The use of PTSD in the insanity defense is severely limited, both by the relative paucity of states that allow a volitional component, and the restrictions and limitations imposed by those few states that do with regard to issues of what constitutes a serious mental illness, evidence of planning or preparation for the crime, and other factors (Melton et al. 1997). The retrospective examination of a defendant’s mental state at the time of an alleged criminal offense is always problematic, but can be particularly difficult in the case of PTSD. Such individuals may have relatively few or no mental health treatment records around that time compared to a schizophrenic or bipolar patient. Despite advances in imaging and other studies of biologic markers, the examination remains largely based upon subjective, self-serving statements by the defendant. Psychometric testing is likewise less robust for PTSD than for major mood and psychotic disorders. Intervening periods of substance abuse, other stressors, and malingering further obscure the evaluation process (Melton et al. 1997). In the arena of civil litigation, personal injury suits, including those involving mental health factors, are matters of tort law. A tort is a civil wrong committed by one party towards another, other than breach of contract (Gutheil and Appelbaum 2000). There are four elements to the tort: a duty owed by one party towards another; a breach of that duty; the breach caused injury to the second party; and the breach was a proximate (or similar formulation) cause of that injury. Torts can involve intentional infliction of emotional distress, negligent infliction of emotional distress, or strict liability, for example, in defective product cases (Melton et al. 1997). Stone has reviewed the ways in which the diagnosis of PTSD has revolutionized the psychiatric personal injury litigation for the plaintiff ’s attorney (Stone 1993). As noted earlier, it renders ‘scientific’ and ‘medical’ the previously intangible, unappealing notions of some sort of mental injury or process. Since PTSD is incident-specific, the re-experiencing symptoms can implicitly solve the issue of causation. In cases of intentional infliction of emotional distress, expert testimony can be offered regarding the ‘outrageousness’ of the defendant’s conduct; it had to be outrageous in order to rise to the level of causing an emotional trauma and PTSD. In civil cases alleging negligent infliction of emotional distress, PTSD has been used by plaintiffs’ attorneys in attempts to push back the zone of danger doctrine from physical injury to physical contact to zone of danger to indirect contact with no potential for physical harm. This in fact accords with the broader formulation of what constitutes a trauma in DSM-IV (APA 1994) and DSM-IV-TR (APA 2000), as well as key case studies in the child PTSD literature in

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which loved ones, school peers, and other indirect victims have developed PTSD symptoms. On the other hand, the shift in criteria from DSM-III-R (APA 1987) to DSM-IV (APA 1994) has also had a theoretical negative impact for plaintiff ’s litigation. In the threshold criterion for the traumatic event, the DSMIII-R specified that the event be ‘markedly distressing to almost anyone.’ This potentially solved the issue of foreseeability in claims of intentional infliction of emotional distress, but has been dropped in DSM-IV. Negligent infliction of emotional distress primarily arises in product liability and bystander recovery cases (Melton et al. 1997). In the majority of states, the bystander/plaintiff must be in the ‘zone of danger’ imposed by the defendant, and must be a family member or relative of the victim. However, in some jurisdictions, the plaintiff need not be present at the time of the incident, and in other states, the requirement that the bystander/plaintiff be related to the victim is dropped. An example of the former would be a parent running out into the street to find that his or her child had been struck down by an automobile. States impose limitations on plaintiff recovery, e.g., the resulting psychiatric disorder must be substantial and result in verifiable symptoms, which can be particularly problematic with PTSD (Melton et al. 1997).

CONCLUSION Posttraumatic stress disorder is a fascinating, complex and rapidly changing field of inquiry. It poses both significant rewards and potential pitfalls to the forensic examiner. The expert must be properly qualified, take care at each step to avoid issues of bias or deficiency, and have an adequate appreciation of the clinical and forensic factors that are relevant to PTSD in general and specific to the disorder in youths, especially in prepubertal children.

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Posttraumatic stress disorder in children and adolescents: clinical and legal issues 405 Donnelly, C.L., Amaya-Jackson, L., March, J.S. 1999. Psychopharmacology of pediatric posttraumatic stress disorder. Journal of Child and Adolescent Psychopharmacology 9, 203–20. Drake, E.B., Bush, S.F., van Gorp, W.G. 2001: Evaluation and assessment of PTSD in children and adolescents. In Eth, S. (ed.), PTSD in Children and Adolescents. Review of Psychiatry, Volume 20. Washington, DC: American Psychiatric Publishing, Inc., 1–31. Dubner, A.E., Motta, R.W. 1999. Sexually and physically abused foster care children and posttraumatic stress disorder. Journal of Consulting and Clinical Psychology 67, 367–73. Dulcan, M.K., Martini, D.R. 1999: Concise Guide to Child and Adolescent Psychiatry. Washington, DC: American Psychiatric Press, Inc., 137. Eth, S. 1988. The child victim as witness in sexual abuse proceedings. Psychiatry 51, 221–32. Eth, S. 1990: Post-traumatic stress disorder in childhood. In Hersen, M., Last, C.G. (eds). Handbook of Child and Adult Psychopathology: A Longitudinal Perspective. New York: Pergamon Press, 263–74. Garmezy, N. 1986. Children under severe stress: critique and commentary. Journal of the American Academy of Child Psychiatry 25, 384–92. Garrison, E.G., Roy, I.S., Azar, V. 1999. Responding to the mental health needs of Latino children and families through school-based services. Clinical Psychology Reviews 19, 199–219. Glaser, D. 2000. Child abuse and neglect and the brain – a review. Journal of Child Psychology and Psychiatry 41, 97–116. Goodman, G.S., Redlich, A.D., Qin, J., et al. 1999: Evaluating eyewitness testimony in adults and children. In Hess, A.K., Weiner, I.B. (eds), The Handbook of Forensic Psychology. New York: John Wiley & Sons, 218–72. Goodman, L.A., Thompson, K.M., Weinfurt, K., et al. 1999. Reliability of reports of violent victimization and posttraumatic stress disorder among men and women with serious mental illness. Journal of Traumatic Stress 12, 587–99. Gutheil, T.G., Appelbaum, P.S. 2000: Clinical Handbook of Psychiatry and the Law, 3rd edition. Philadelphia: Lippincott Williams & Wilkins. Handford, H.A., Mayes, S.D., Mattison, R.E., et al. 1986. Child and parent reaction to the Three Mile Island nuclear accident. Journal of the American Academy of Child Psychiatry 25, 346–56. Harvey, A.G., Bryant, R.A. 1999. The relationship between acute stress disorder and posttraumatic stress disorder: a 2-year prospective evaluation. Journal of Consulting and Clinical Psychology 67, 985–8. Kessler, R.C., Sonnega, A., Bromet, E., Hughes, M., Nelson, C.B., Breslau, N. 1999: Epidemiological risk factors for trauma and PTSD. In Yehuda, R. (ed.), Risk Factors for Posttraumatic Stress Disorder. Washington, DC: American Psychiatric Press, Inc., 23–59.

Luthar, S.S., Zigler, E. 1991. Vulnerability and competence: a review of research on resilience in childhood. American Journal of Orthopsychiatry 61, 6–22. Martini, D.R., Ryan, C., Nakayama, D., Ramenofsky, M. 1990. Psychiatric sequelae after traumatic injury: the Pittsburgh Regatta Accident. Journal of the American Academy of Child and Adolescent Psychiatry 29, 70–5. McDermott, B.M., Cvitanovich, A. 2000. Posttraumatic stress disorder and emotional problems in children following motor vehicle accidents: an extended case series. Australian and New Zealand Journal of Psychiatry 34, 446–52. McFarlane, A.C. 1987. Posttraumatic phenomena in a longitudinal study of children following a natural disaster. Journal of the American Academy of Child and Adolescent Psychiatry 26, 764–9. McLeer, S.V., Callaghan, M., Henry, D., et al. 1994. Psychiatric disorders in sexually abused children. Journal of the American Academy of Child and Adolescent Psychiatry 33, 313–19. McNally, R.J. 1997. Implicit and explicit memory for trauma-related information in PTSD. Annals of the New York Academy of Sciences 821, 219–24. McNally, R.J., Saigh, P.A. 1993: On the distinction between traumatic simple phobia and posttraumatic stress disorder. In Davidson, J.R.T., Foa, E.B. (eds), Posttraumatic Stress Disorder: DSM-IV and Beyond. Washington, DC: American Psychiatric Press, Inc., 207–12. Melton, G.B., Petrila, J., Poythress, N.G., Slobogin, C. 1997: Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals, 2nd edition. New York: The Guilford Press. Metzger, L.J., Orr, S.P., Berry, N.J., et al. 1999. Physiologic reactivity to startling tones in women with posttraumatic stress disorder. Journal of Abnormal Psychology 108, 347–52. Newman, C.J. 1976. Children of disaster: clinical observations at Buffalo Creek. American Journal of Psychiatry 133, 306–12. Newman, E., Kaloupek, D.G., Keane, T.M. 1996: Assessment of posttraumatic stress disorder in clinical and research settings. In van der Kolk, B.A., McFarlane, A.C., Weisaeth, L. (eds), Traumatic Stress: The Effects of Overwhelming Experience on Mind, Body, and Society. New York: The Guilford Press, 242–75. Orr, S.P. 1997. Psychophysiologic reactivity to traumarelated imagery in PTSD: Diagnostic and theoretical implications in recent findings. Annals of the New York Academy of Sciences 821, 114–24. Orr, S.P., Pitman, R.K. 1999: Neurocognitive risk factors for PTSD. In Yehuda, R. (ed.), Risk Factors for Posttraumatic Stress Disorder. Washington, DC: American Psychiatric Press, Inc., 125–41. Perrin, S., Smith, P., Yule, W. 2000. Practitioner review: the assessment and treatment of post-traumatic stress disorder in children and adolescents. Journal of Child Psychology and Psychiatry 41, 277–89.

406 Family law and domestic relations Peters, L., Slade, T., Andrews, G. 1999. A comparison of ICD10 and DSM-IV criteria for posttraumatic stress disorder. Journal of Traumatic Stress 12, 335–43. Pfefferbaum, B. 1997. Posttraumatic stress disorder in children: a review of the past 10 years. Journal of the American Academy of Child and Adolescent Psychiatry 36, 1503–11. Pynoos, R.S., Steinberg, A.M., Goenjian, A. 1996: Traumatic stress in childhood and adolescence: recent developments and current controversies. In van der Kolk, B.A., McFarlane, A.C., Weisaeth, L. (eds), Traumatic Stress: The Effects of Overwhelming Experience on Mind, Body, and Society. New York: The Guilford Press, 331–58. Quinn, K.M. 1995: Guidelines for the psychiatric examination of posttraumatic stress disorder in children and adolescents. In Simon, R.I. (ed.), Posttraumatic Stress Disorder in Litigation. Washington, DC: American Psychiatric Press, Inc., 85–98. Schwarz, E.D., Kowalski, J.M. 1991. Malignant memories: PTSD in children and adults after a school shooting. Journal of the American Academy of Child and Adolescent Psychiatry 30, 936–44. Simon, R.I. 1995: Forensic psychiatric examination of PTSD claimants, In Simon, R.I. (ed.), Posttraumatic Stress Disorder in Litigation. Washington, DC: American Psychiatric Press, Inc., 31–84.

Stone, A.A. 1993. Post-traumatic stress disorder and the law: critical review of the new frontier. Bulletin of the American Academy of Psychiatry and the Law 21, 23–36. Strasburger, L.H., Gutheil, T.G., Brodsky, A. 1997. On wearing two hats: role conflict in serving as both psychotherapist and expert witness. American Journal of Psychiatry 154, 448–56. Stuber, M.L., Kazak, A.E., Meeske, K., et al. 1997. Predictors of posttraumatic stress symptoms in childhood cancer survivors. Pediatrics 100, 958–64. Terr, L. 1979. Children of Chowchilla: a study of psychic trauma. Psychoanalytic Study of the Child 34, 552–623. Terr, L.C. 1991. Childhood traumas: an outline and overview. American Journal of Psychiatry 148, 10–20. True, W.R., Lyons, M.J. 1999: Genetic risk factors for PSTD: a twin study. In Yehuda, R. (ed.), Risk Factors for Posttraumatic Stress Disorder. Washington, DC: American Psychiatric Press, Inc., 68–71. van der Kolk, B.A. 1997. The psychobiology of posttraumatic stress disorder. Journal of Clinical Psychiatry 58(suppl.), 16–24. Weinstein, D., Staffelbach, D., Biaggio, M. 2000. Attentiondeficit hyperactivity disorder and posttraumatic stress disorder: differential diagnosis in childhood sexual abuse. Clinical and Psychological Reviews 20, 359–78. World Health Organization. 1992: The ICD-10 Classification of Mental and Behavioral Disorders: Clinical Descriptions and Diagnostic Guidelines. Geneva.

42 Forensic aspects of suicide and homicide in children and adolescents PETER ASH, RICHARD J. GERSH AND STEPHEN B. BILLICK

Homicide and suicide are, respectively, the second and third leading causes of death for adolescents aged fifteen to nineteen years (National Center for Health Statistics 2001). Society often expects psychiatry to be able to accurately predict and effectively prevent suicide and homicide, despite realistic limitations in these areas. In a treatment context, clinicians must recognize the children and adolescents most at risk for violence and take appropriate steps. In a forensic context, cases of homicide and suicide are frequently the focus of court scrutiny, and forensic psychiatrists frequently play a role in the adjudication of such cases.

SUICIDE Epidemiology and demographics During the past few decades, adolescent suicide rates have been quite variable, tripling from 1955 to 1979 (Brent et al. 1988), then increasing slowly to a peak in 1991, before falling back to the rates of the 1980s (National Center for Health Statistics 2000). It is unclear why adolescent suicide rates increased through the early 1990s and then declined, although these changes roughly parallel the directions of changes in youth homicide rates and rates of suicide in the elderly. Data from the National Center for Health Statistics (2001) indicate a 1999 rate of 8.2 per 100 000 for 15- to 19-year-olds, representing 1615 suicides in the United States. Rates for younger adolescents were much lower, averaging about one-seventh of the older adolescent rates, and rates for pre-adolescents are much lower still. Male adolescents are about five times as likely to commit suicide as females. This difference is explained, in part, by the means of suicide employed: teenage males tend to use more lethal methods, such as firearms and hanging, rather than less dangerous

methods often used by females, such as poisoning (e.g., carbon monoxide or pill overdose) or wrist cutting (Trautman and Shaffer 1989; Brent and Kolko 1990). In decreasing prevalence, common methods of suicide include firearms, hanging or suffocation, carbon monoxide poisoning, jumping, and overdose. By contrast, the most common method among unsuccessful attempts is overdose, followed by wrist cutting (Holinger 1990; Low and Andrews 1990). Some 90 per cent of suicide attempts in the young – over 300 000 cases annually – are intentional poisoning (Trautman and Shaffer 1989). Historically, white adolescents have been about twice as likely as African-Americans to commit suicide, but over the past ten years this ratio has been falling. In a study comparing adolescent suicide victims to a control group of non-suicidal adolescents, there was no significant difference found in socioeconomic status (Shaffer and Craft 1999). Some 40 per cent of gay and lesbian youths have been reported to have a history of suicidal ideation (Proctor and Groze 1994), but this appears to be a consequence of increased risk for mood disorder and other mental health problems which are risk factors for suicide (Fergusson, Horwood, and Beautrais 1999), rather than related directly to stressors of stigmatization (Shaffer et al. 1995). Suicidal ideation and attempts are much more frequent than completed suicide. McKeown et al. (1998) found a one-year incidence rate for attempts of 1.3 per cent (approximately 100 times the rate for completed suicide). Estimates of suicidal ideation range from 7 per cent to 60 per cent (Harkavy Friedman et al. 1987; Joffe, Offord, and Boyle 1988; Garrison et al. 1991) and show different demographic patterns from completed suicide. Suicidal ideation is over four times as common in girls, and suicide attempts are three times as common when compared to boys (Joffe, Offord, and Boyle 1988). Although completed suicide is rare in prepubertal children, self-destructive thoughts and behavior are frequent in this

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young age group. Those in this age group, and those that express suicidal ideation are more likely to have symptoms of psychiatric illness and are more likely to evidence suicidal behavior later in adolescence (Pfeffer 1997).

Risk factors and precipitants Predicting suicide in an individual case is clouded by the fact that completed suicide is rare when compared with clinical presentations of suicidal ideation and suicide attempts. Similar to the adult population, there are no studies which demonstrate factors which allow a clinician to accurately predict which adolescents will commit suicide. Research has therefore focused on risk factors, those characteristics which appear at greater frequency in the population of those who have completed suicide when compared to other groups. Since many youths who complete suicide were not previously in treatment, research assessment of those who have committed suicide is most commonly carried out utilizing psychological autopsy. The suicide risk factor literature is complex, reflecting changing rates and patterns of suicide, significant age and sex differences, and different sample populations, comparison groups, and statistical methods. Many different factors have been identified as increasing risk when compared to normal subjects. Risk factors commonly cited in the literature appear in Table 42.1. Clinically, suicidal ideation, especially when coupled with a plan involving lethal means, or a recent attempt,

Table 42.1 Summary of leading risk factors Individual factors Previous suicide attempt High intent/lethality of method Psychopathology Major depression Bipolar disorder Substance abuse comorbid with other psychopathology Schizophrenia Conduct or personality disorder, especially with impulsive characteristics Helplessness and hopelessness Demographic factors Over age 14, risk increases with age Male White Unwed/unwanted pregnancy Family and environmental factors Firearm in the home Family pathology/discord Abuse (physical or sexual) History of violence Recent stressors Separation Arrest/legal problems

are most often the trigger to a judgment of imminent danger requiring hospitalization. In psychological autopsy studies, previous attempts have been found to be the strongest risk factor for boys, increasing the risk about thirty times over the normal population (Shaffer et al. 1996; Brent et al. 1999). Multiple past attempts increase the risk. Individuals who attempt suicide make further attempts at a rate of 6 per cent to 15 per cent per year. The time of greatest risk for another suicide attempt is within the first three months to two years following an initial attempt. Retrospective risk factor studies have consistently found affective disorder to be a potent risk factor for adolescent suicide (Shafii et al. 1985; Rich, Young, and Fowler 1986; Shaffer et al. 1996; Brent et al. 1999). One longitudinal study found that 4.4 per cent of children diagnosed with major depression committed suicide in the following ten years (Rao et al. 1993). Affective disorder appears to pose a risk of over nine times that of the normal population. Two well-controlled studies (Brent et al. 1993b; Shaffer et al. 1996) both found high rates of psychiatric disorder, around 90 per cent, in suicide completers. Major depressive disorder was the most prominent finding, and poses the most risk. Bipolar disorder and conduct disorder were also found to elevate risk. Substance abuse was an especially potent risk factor when comorbid with affective illness, and may account for more attempts (Gould et al. 1998a) and for higher suicide rates in older adolescents (Brent et al. 1999). Substance abuse also significantly raises risk when comorbid with disruptive disorders (Renaud et al. 1999). While the majority of completers had longstanding symptoms, in one study (Brent et al. 1993b) about one-third of the depressed group had developed symptoms in the previous three months. Conduct disorder appears to be a potent risk factor for boys, but not for girls. Patients suffering from schizophrenia are at considerably increased risk for suicide, but schizophrenia has a low incidence in children and adolescents. In the absence of clear psychopathology, suicide is associated with recent legal or discipline problems, interpersonal loss or conflicts, and the presence of firearms (Brent et al. 1993c; Marttunen et al. 1994). Axis II psychopathology is also found in many suicide completers. Cluster B (impulsive-dramatic) and C (avoidant-dependent) were found to be more common in suicide victims than in controls (Brent et al. 1994a). Antisocial personality disorder traits are significant risk factors (Brent and Kolko 1990; Low and Andrews 1990; Marttunen et al. 1991). A history of past violence or aggressivity toward others has been correlated with increased suicidality (Morewitz and Morewitz 1991). In these individuals, violence directed toward themselves may be an expression of vengeance toward others, or may be a method of relieving pent-up tension. Impulsivity is often a characteristic, along with poor frustration tolerance and difficulty delaying gratification. Another common characteristic is a history of interpersonal difficulties.

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Self-poisoning is more common in this group (Brent and Kolko 1990). Females with learning disabilities have been found to have twice the risk for suicidal behavior and violence, in comparison to peers (Svetaz, Ireland, and Blum 2000). Some biological factors have been implicated, including genetic factors through twin studies (Roy, Segal, and Sarchaipone 1995) and preliminary findings of cerebrospinal fluid (CSF) monoamine metabolite abnormalities similar to suicidal adults (Kruesi et al. 1988). Family stressors constitute a second domain of risk factors for suicide. Factors that have been identified include family member suicide attempts (Brent et al. 1996), not living with both parents (Groholt et al. 1998), family history of depression and substance abuse (Brent et al. 1988), intrafamilial abuse (Shaunesey et al. 1993; Brown et al. 1999), and parent–child discord (Brent et al. 1994b; Gould et al. 1996). Parental divorce does not appear to be a potent risk factor (Gould et al. 1998b). A family with psychiatric complications increases the emotional stress in the household and may weaken the child’s support system. Those completing suicide are more likely to have experienced rejection by their fathers, and have often experienced the death of their mother by suicide (Husain 1990). Children and adolescents also react strongly to the suicide of a family member. Pfeffer et al. (1997) found that in 40 per cent of families that had a suicide, a child developed moderate PTSD, and in 31 per cent of families, a child developed suicidal ideation, although none made suicide attempts. Beyond the family, environmental factors can influence suicidality. Personal contact with a suicide victim can lead to increased suicidal behavior, such as a cluster of incidents in a single community. Media coverage of suicide – factual or fictional – has been associated with transient increases, especially among younger adolescents (Holinger 1990). Imitation seems most likely to occur among adolescents with pre-existing risk factors (Shaffer et al. 1990). Widespread societal issues, particularly the economy, war, and population shifts, have also been correlated with changes in suicide rates (Holinger 1990). Many, but by no means all, suicides have a clearly identified precipitant, although a stressor in the absence of pre-existing vulnerability likely does not cause suicide. Marttunen, Aro, and Lonnqvist (1993) identified a precipitant in 70 per cent of a series of cases. Of those, half occurred in the 24 hours preceding the suicide. Interpersonal problems, particularly separations, were the most common stressor. Among those who complete suicide, conflict is most commonly with a parent (Brent et al. 1988). Among those who attempt suicide, other precipitants include physical or sexual abuse, family discord, unwanted pregnancy, and parental psychiatric illness (Brent and Kolko 1990; Morewitz and Morewitz 1991). Nearly 75 per cent of adolescents report feeling angry rather than sad at the time of a suicide attempt (Trautman and Shaffer 1989). Of particular interest to

forensic psychiatrists, arrest is a risk factor as a precipitant for suicide. In one study (Brent et al. 1993a), among that minority of adolescents who did not appear to have a psychiatric disorder, 43 per cent had legal problems or discipline in the prior year. Firearms are the most common method of committing suicide, and firearms, particularly handguns, in the home are associated with a four-fold increase in risk for suicide (Brent et al. 1993c). Between 30 per cent and 50 per cent of adolescent suicide victims have had prior contact with a mental health professional (Blumenthal 1990), but there is a lack of evidence showing that interventions affect statistical suicide rates (Holinger 1990; Shaffer et al. 1990). Few victims were in active treatment at the time of a suicide, and non-compliance with outpatient treatment is correlated with increased risk for a recurrence of suicidality (Greenhill and Waslick 1997).

Assessment Asking about depressive feelings and symptoms, suicidal ideation, and a history of attempts of self harm should be a routine part of the initial evaluation of any adolescent or depressed child. The assessment of suicidality generally focuses on the risk and protective factors identified above, and information from sources such as parents and prior psychiatric records, when available, should be sought. Information from sources other than the identified patient should be considered seriously, as individuals with suicidal ideation may be unlikely to reveal their true feelings (Shaffer et al. 1990). A patient with a constellation of risk factors which does not include moderate to high intent or a recent suicide attempt generally does not require hospitalization on the grounds of suicidality because of the low power of such risk factors to predict in the short-term future (although the youth’s condition may warrant hospitalization on other grounds). The threshold issue is generally the presence of thinking about suicide or a recent attempt. Characteristics of attempts with high intent include lethality of method, gestures of saying ‘goodbye,’ such as giving away belongings, leaving a note, writing a will, and efforts to minimize or prevent discovery and rescue. Pfeffer (1998) has proposed a decision tree for interventions for suicidal tendencies, and the American Academy of Child and Adolescent Psychiatry has developed practice parameters for the assessment and treatment of suicidal behaviors (American Academy of Child and Adolescent Psychiatry 2001). The severity of suicidal ideation needs to be assessed. This involves evaluating the nature of the youngster’s thinking, whether he or she has formulated a plan, the lethality of the plan, access to means, the youth’s level of helplessness and hopelessness, and the details of any recent attempts. Interviews with family members and medical and school records may

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provide useful additional data. Once suicidal thinking has been identified, other risk factors take on added significance. It is important to pay attention to the dynamic factors, including which stressors have precipitated suicidal thinking or past attempts, and to assess the likelihood of such stressors recurring. In evaluating protective factors, the clinician needs to look to the nature of available social support, especially from the family; internal resistances to suicide, such as religious objections; the extent to which stressors in the environment can be ameliorated; and the usefulness of the family in monitoring the youngster’s thinking and behavior.

Treatment Unfortunately, no particular treatment has been shown to be especially effective in suicidal youths, despite a variety of individual, institutional and community programs (Greenhill and Waslick 1997; Shaffer and Craft 1999). Until research on effective treatment becomes available, clinicians will need to rely on accumulated clinical wisdom. Treatment encompasses four major components: protection of the patient; continuing assessment of risk; ameliorating risk factors; and enhancing protective factors. Protection of the patient is the first consideration. In outpatient treatment, it is important to involve the family in monitoring and supporting the patient, making firearms and lethal medications unavailable to the patient, and forging an alliance for supporting continuing treatment. The family must feel comfortable with the outpatient plan and agree to accept some of the responsibility for the patient’s safety. One important method of assessing a patient’s capacity to be treated as an outpatient is to simply ask what he or she would do if stressors recurred. No-suicide contracts are often used in treatment, but whether such a contract provides much protection remains unclear (Reid 1998). If the outpatient plan does not appear likely to manage the suicide risk, the youth is generally hospitalized. Involuntary hospitalization may be required if the parents refuse voluntary admission of their child. While hospitalized, an appropriate level of observation should be maintained. During periods of active suicidal or self-destructive ideation, patients may require continual monitoring until such impulses have resolved. Treatment should include addressing and diminishing those characteristics that constitute dynamic risk factors, including the treatment of underlying psychopathology. Depression in children and adolescents may not present with the classic diagnostic features found in adults. The American Academy of Child and Adolescent Psychiatry has published practice parameters for the assessment and treatment of several conditions which elevate the risk for suicide, including depression (AACAP 1998) and bipolar disorder (AACAP 1997). Medication is frequently

utilized, and the clinician should consider the possibility the patient will overdose and either arrange for parental control of the medication or prescribe non-lethal quantities. Psychotherapy plays an important role in treatment in providing information about continuing risk, delineating how the youth thinks about suicide, addressing underlying psychopathology, helping the adolescent cope with such stressors as may be present, and enhancing protective factors such as more adaptive defenses or coping strategies. Some factors are best dealt with in a family context, including ameliorating disruptive or stressful family patterns and eliminating access to firearms. Unfortunately, parental compliance with a recommendation to remove firearms is fairly low, even when parents are provided with considerable information about the risks and strong recommendations (Brent et al. 2000). Working to increase family support is an important component of enhancing protective factors.

Legal considerations In an outpatient treatment context, when the clinician determines the adolescent is at serious suicide risk, he or she will probably want to hospitalize the patient. In most jurisdictions, the consent of a parent is sufficient for hospitalizing a minor, even over the minor’s objections. State laws vary as to the age at which an adolescent may object, the procedures available to an objecting minor, and whether certain youths, such as ‘mature minors’ are able to give consent as though they were adults. If the parents do not consent to hospitalization or are unavailable, then involuntary hospitalization is available provided that the youth meets the state’s commitment criteria. In treating a child or adolescent depressed patient, one dilemma which can arise is the extent to which the adolescent’s confidentiality should be broken and the parents informed of the patient’s status. It is useful at the outset of treatment to discuss with the minor patient the conditions under which the therapist will communicate information to the parents. When the clinician feels the need to discuss his or her patient’s condition – for example, if a youth becomes more depressed and the therapist wishes to advise the parents to remove firearms from the home – it is preferable, when possible, to raise the need to talk to the adolescent’s parents with the adolescent and obtain his or her assent. If the adolescent objects, but the therapist has significant concerns about the youth’s safety, the therapist generally may discuss these issues with the parents over the adolescent’s objections. This is allowable because in most cases the parents legally speak for the child and control access to information about treatment. In rare instances, such as when the minor is an emancipated minor or has ‘mature minor’ status in a state which recognizes such a status, such a breach may not be possible, and the clinician then has fewer options. If the

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opportunity to involve the adolescent’s support system is limited, the threshold for hospitalization is decreased. Forensic psychiatrists are sometimes involved in determining whether the manner of death was unintended autoerotic asphyxiation (Sheehan and Garfinkel 1988), other accident, or suicide. The techniques employed in such analyses are similar to those utilized for adults. A completed suicide by a patient in treatment may give rise to a malpractice action against the treating psychiatrist. When an outpatient commits suicide, a central question is likely to be whether the suicide was reasonably foreseeable, under the theory that if so, there was a duty to protect the patient, generally by hospitalizing him or her. Other issues which may come into play include whether informed consent was obtained for certain components of the treatment, whether the parents were sufficiently informed and involved in managing the patient, and whether the psychiatrist made available the means for suicide, as when an adolescent overdoses on antidepressant medication (less common now with reduced use of tricyclic antidepressants), or any other defects which rendered the care below the standard of practice. In malpractice litigation involving an adult who committed suicide, the degree to which the adult was responsible for his or her own acts, and thus a contributor to the outcome, is often important. When a minor commits suicide, the presumption that minors are not as competent as adults often reduces the responsibility of the minor for his or her actions. As is typical in malpractice cases, the psychiatrist’s notes in the chart will be carefully scrutinized. When assessing a suicidal youth who is going to be treated as an outpatient, it is therefore very important from a risk management perspective to document carefully the assessment process, noting which risk factors and protective factors were assessed. The assessment process is an ongoing one, and documentation of the continuing assessment of risk is useful. In those cases in which the patient is not hospitalized, it is useful to detail the clinician’s reasoning about how the risk factors were weighed in devising the treatment plan. The most difficult patients from a risk management perspective are those who are at chronic risk for suicide, for whom longterm hospitalization is not a reasonable option, but where the clinician is aware that there is significant risk that at some point an attempt may miscarry and result in a lethal outcome. In cases in which the clinician believes that his or her treatment plan carries significant, but justified, risk, one of the best risk management strategies is ‘when in doubt, shout’ (Rappeport 1984) – have another clinician evaluate the patient and document his or her findings. In the event of an unexpected adverse outcome, the test will be whether the psychiatrist acted reasonably, and having the report of a second reasonable clinician who evaluated the patient can strongly counteract the retrospective analysis of a plaintiff’s expert who was not there. In a malpractice case following an adolescent committing suicide on an inpatient psychiatric unit, the two

most common issues are completeness of the assessment of the patient’s suicidality by the doctor and hospital staff, and the adequacy of the measures to protect the patient. Again, the quality of the continuing assessments and the extent to which they are documented are very important. One common issue is whether the attending psychiatrist was aware of clinical findings by the staff. Managed care has increased the threshold of severity necessary to justify inpatient hospitalization, and an increasing percentage of inpatients are hospitalized because of concerns about their suicidality. Therefore, the presence of some risk factors is quite common among inpatients. Once suicidal risk is noted, a central issue will be the level of monitoring of the patient, and whether decreasing the level of monitoring was justified. Matters of self-destructive and suicidal behavior are likely to heighten the anxiety of the patient’s relatives, opening the door to questioning and scrutinizing the psychiatrist’s treatment. One risk is that the psychiatrist’s own reaction to a patient’s suicidality will lead to neglect of basic good practice (Simon 2000). Psychiatrists need not be intimidated by the complexities and uncertainties of dealing with suicidality. It is helpful to keep in mind that courts, peer reviewers, and managed care agencies ordinarily accept clinical decisions that are in keeping with a community’s general standard of care, based on a rational consideration of the documented facts, and made in the service of the patient’s welfare and well-being (Simon 1987).

HOMICIDE Epidemiology Homicide is currently the second leading cause of death for adolescents after automobile accidents (National Center for Health Statistics 2001). In 1999, the overall rate of homicide for 15- to 19-year-olds was 10.6 per 100 000. Homicide at age fourteen years and below is much less common. Rates for males are much higher than rates for females, and, for black males aged 15–19 years, homicide was the leading cause of death, at a rate approximately triple that of motor vehicle accidents. Death rates from homicide rate for 15- to 19-year-olds were fairly flat at about 10–12 per 100 000 from 1976 until 1987 when, within the next four years, the homicide rate more than doubled to reach a peak of over 20.7 per 100 000 in 1993. The rate then declined significantly through 1999, returning to a rate of about 16.6 per 100 000 (National Center for Health Statistics 2001). A similar pattern is seen in the FBI statistics (2001) pertaining to juvenile homicide offenders. In 1997, juveniles were determined to have committed approximately 1400 murders of the 18 200 murders in the United States. While homicide is the most accurately reported crime, in approximately 38 per cent of murders, the age of the

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offender cannot be determined. In extrapolating, it appears that approximately 2400 murders (or 13 per cent) involved at least one offender who was under the age of 18 years at the time of the crime. This represents a decrease of about 45 per cent from the peak in 1994. Of murders involving a juvenile, 31 per cent also involved an adult, and 13 per cent involved another juvenile. In all, 44 per cent of all murders involving a juvenile involved more than one perpetrator. The vast majority (93 per cent) of the known juvenile homicide offenders were male, and more than half were African-American. It is not clear why the homicide rate accelerated so quickly, nor why it has come back down. What is clear is that the increase was due almost entirely to an increase in firearm use among youth (Snyder and Sickmund 1999). Rates of intrafamilial homicide and homicide with other weapons have stayed flat since the early 1980s. Blumstein and Cork (1996) hypothesized that the increase followed a rapid increase of involvement of adolescents in the drug trade, which in turn led to increased gun carrying by youths. More recent data have provided further support to this hypothesis (Cork 1999), though why the rates subsequently declined, however, remains unclear. What is clear is that these changes in homicide rates mirrored a similar pattern of changes in rates of violent crime in the adult population, although the magnitude of increase was far greater among juveniles, and, interestingly, in youth suicide rates. Snyder and Sickmund’s analysis of FBI data (1999) shows that the likelihood of being a juvenile offender increases through adolescence. Murder victims were more likely to be acquaintances of the juvenile than strangers: in 1997, 56 per cent of juvenile murder victims were acquaintances, 34 per cent were strangers, and approximately 10 per cent were family members. Girls made up only 7 per cent of the known juvenile homicide offenders, and girls were more likely than boys to use a knife or means other than a firearm.

Types of juvenile homicide Homicide is a heterogeneous phenomenon among adolescents: the shooter who has been ‘dissed’ outside a club, the adolescent girl who kills her stepfather because he has been sexually abusing her, and the psychotic adolescent who opens fire on his classmates at school represent very different pictures in terms of offenders, motivations, and victims. Studies of juvenile murderers have tended to be either interview studies of a convenience sample seen by the author (Lewis et al. 1988; Benedek and Cornell 1989; Myers et al. 1995) or analyses of FBI crime statistics. It is difficult to blend together these two different levels of analysis. There is a considerable literature on juvenile violence and its development, and homicide may present as the peak in severity of a violent career. Unlike suicide, it does not appear that juvenile homicide is primarily

caused by mental health problems – although most offenders have psychiatric disorders – and many juvenile killers had not received psychiatric attention prior to offending. Cornell, Benedek, and Benedek (1987) proposed a typology of three types of juvenile homicide: arising out of conflict; a psychotic perpetrator; and homicide committed during the course of another crime. Findings over the past fourteen years suggest it is useful to subdivide the conflict group into street confrontation, intrafamilial, and other, and to consider school shootings with multiple victims as a rare, but separate group. In addition, there are even less common subgroups, such as sexual homicide (Myers 1994), which have their own distinct characteristics.

Street homicides Street violence is the most common form of juvenile homicide. Statistics often do not distinguish very clearly between street homicides occurring during the commission of another felony and street homicides arising out of conflict between youths. Between 1980 and 1997, when juveniles killed other juveniles, firearms (usually handguns) were used 77 per cent of the time (Snyder and Sickmund 1999). Gun-carrying among adolescents is a major risk factor for homicide, as confrontations quickly escalate in lethality when one of the participants is armed. In many instances, the distinction between aggravated assault and homicide turns more on chance factors affecting the path of the bullet than on the intent of the shooter. When adolescents are asked about their reasons for carrying guns, keeping oneself safe is by far the most commonly cited reason (Sheley and Wright 1993; Ash et al. 1996). Although some adolescents report that they derive an enhanced sense of power or self-respect from carrying a gun, few claim that they carry a gun for the purpose of committing a crime. Gun-carrying by adolescents appears to be reactive in nature and is done because they fear harm on the street or at school. Youths, particularly in minority groups, do face a much higher risk of victimization than the population at large. According to data from the FBI’s Uniform Crime Reports (FBI 1999) in 1997, 17-year-old African-American males were murdered at a rate more than seven times higher than their white peers, and ten times higher than the national average for all ages. Adolescents who feel unsafe – especially those who live in inner-city neighborhoods where there is an ‘ecology of danger’ – are more likely to arm themselves for protection. Although the effectiveness of this strategy is debatable, handguns increase the likelihood of a violent confrontation. Whether fatal or nonfatal, street shootings heighten the overall level of fear in a community, which in turn leads to rising levels of fear that encourage even more gun-carrying (Blumstein and Cork 1996). There are three key points in the chain of events that precedes almost every street shooting: first, the decision

Forensic aspects of suicide and homicide in children and adolescents 413

to acquire a handgun; second, the decision to carry it; and finally, the decision to use it. These are also the three key points for intervention. Most adolescents who become involved with guns acquire their first firearm in early adolescence (Ash et al. 1996; Brener et al. 1999). The majority receive their first gun from someone else, whether from a parent giving a child his first hunting rifle as a Christmas gift, or a teenager giving his best friend an illegally acquired handgun for protection. By middle to later adolescence, when delinquent boys are more likely to be arrested, they have begun to actively obtain handguns from a variety of sources, including buying from a drug dealer or an adult ‘straw purchaser,’ borrowing from a friend or acquaintance, or theft. In an altercation between two inner-city youths, at least one of whom is armed, issues of respect and toughness – ‘being the man’ – are very important, and perceived attacks on identity can rapidly escalate to lethal violence. In an analysis of transactions leading to inner city street shootings, Fagan and Wilkinson (1998) emphasize the importance of a drug and alcohol context. Drug use worsens judgment, and the drug trade itself provides fertile ground for disputes over territory and payment. Fagan and Wilkinson emphasize the need to maintain hierarchy and respect in ways which feed into maintaining a violent identity. The threat of gun violence introduces new complexities for development of social identity, resulting in the paradox that creating a ‘safe’ social identity may require the use of extreme forms of violence. In Myers et al.’s (1995) series of juvenile murderers who were seen for mental health evaluation, those juveniles who committed homicide during the course of another crime were found to have very high (⬎95 per cent) rates of family dysfunction, disruptive behavior disorders, previous violence towards others and prior arrests, and high (⬎70 per cent) rates of school failure, family violence, and learning disabilities. Benedek and Cornell (1989) reported consistent findings, but generally lower rates of disorder. In both groups, fewer than 25 per cent had received prior mental health treatment. Fendrich et al. (1995) found that about one-third of juvenile murderers were using substances, primarily alcohol, at the time of the offense – a rate that was lower than all but the oldest group of adult offenders.

Intrafamilial homicide Rates of killing a family member have been holding steady or decreasing over the past twenty years, and in 1997 accounted for 10 per cent of juvenile homicides (Snyder and Sickmund 1999). Parricide – killing a parent – is the most common form, is generally found in the context of abuse (Heide 1995), and is usually committed by older and depressed adolescents (Dutton and Yamini 1995). In many cases, unlike with street homicides, the adolescent does not exhibit a prior history of delinquency. The

criminal defense of these youth often emphasizes the abuse victim status of the killer as a mitigating circumstance of the killing.

Psychotic motive While psychotic motive overlaps the other categories, it is frequently dealt with separately because it has different implications with regard to criminal disposition and treatment. In criminal justice statistics, psychotic motive is not broken out as a separate category, so overall rates are unclear, but even in series referred to mental health professionals psychosis is uncommon, accounting for less than 7 per cent of cases (Benedek and Cornell 1989; Meloy et al. 2001). Myers et al. (1995) found no psychotic youth in their sample, although they found a history of psychotic symptoms in 71 per cent of subjects. Psychotic juvenile defendants may be found not criminally responsible and referred for treatment of their psychosis.

School mass shootings Statistically, schools are a safe place to be, but between 1996 and the school shootings in Littleton, Colorado in 1999, there were eight highly reported cases of multiple shootings at school by students, including two instances in which two students participated in shooting at classmates (for descriptions, see Verlinden, Hersen, and Thomas 2000). These cases have generated enormous amounts of media coverage and grave concerns about school safety. The clustering of the shootings in such a brief period strongly suggests a contagion effect. Such shootings, while fortunately very rare, nevertheless create a climate of fear in schools which has an impact on students’ emotional well-being, their readiness to learn, and the hiring and retention of teaching staff. Detailed psychiatric information about school shooters is difficult to obtain: some of the killers committed suicide immediately after the shootings, and some are protected by the confidentiality of the juvenile court. Therefore, most information about them has been limited to publicly available data. Verlinden, Hersen, and Thomas (2000) identified a number of individual offender commonalities, including prior threats of violence, having a detailed plan, blaming others for problems, having a history of regression, uncontrolled anger, depression, troubled family relationships, poor coping and social skills, alienation from peers, fascination with weapons and explosives, preoccupation with violent media and music, and attack-related behavior such as an interest in targeted violence, and social-environmental factors such as access to firearms. Consistent findings were found by Meloy et al. (2001) in a study of juvenile mass murderers. In all cases, there was a failure of peers to report threats of serious violence to others and to consider the threats seriously.

414 Family law and domestic relations

Legal issues When a therapist is aware that a patient is dangerous to others because of mental illness, he or she will most commonly hospitalize the patient, involuntarily if necessary. In many states, therapists now have a Tarasoff-type duty to protect third parties, though the precise nature of the duty varies from state to state. The laws with respect to civil commitment and protection of third parties embody the same principles for adolescents as for adults. Many states responded to the wave of juvenile violence in the early 1990s by passing laws which make it easier to try an adolescent in adult court, either by enacting discretionary waivers, which give the prosecutor discretion as to whether to waive the adolescent defendant, or mandatory waivers, laws which require that adolescents over a certain age and charged with certain crimes be tried in adult court. Homicide, being the most serious offense, heads the list of crimes for which waivers are invoked. Therefore, many youth arrested for homicide are tried as adults. In adult court, issues of competency to stand trial and insanity defense can be considered. The issue of competency to stand trial, when applied to juveniles, is complex and not well worked out. While many middle to later adolescents make decisions similar to adults, the determination of a younger adolescent’s competency may turn on complex developmental issues. Grisso (1997, 1998) has discussed some of the specifics of assessing these defendants. Adolescents whose competency is seriously diminished will often be remanded to juvenile court. In addition to competency to stand trial, competency to confess may also be at issue. For homicide, in some jurisdictions the death penalty is a possibility. The Supreme Court has held that execution for a crime committed at age fifteen years is unconstitutional (Thompson v. Oklahoma 1988), but is allowable for crimes committed at age sixteen years (Stanford v. Kentucky 1989). If the juvenile is not automatically waived to adult court, the issue of possible judicial waiver to adult court needs to be considered. In some states, competency to stand trial is now required also to be tried in juvenile court. Younger adolescents are more likely to be found incompetent to stand trial on developmental grounds. If a juvenile defendant is found incompetent to stand trial, the question of how their competence is to be ‘restored,’ when what may be needed is time for them to cognitively mature, poses knotty problems for interim disposition.

Prevention Psychiatry is fairly weak at predicting violence towards others, and most of the mental health research carried out has focused on adults, particularly psychiatric inpatients. It is unclear the extent to which the principles developed for adults generalize to adolescents, particularly since psychosis and substance abuse play a smaller

role in adolescent violence. If a patient expresses homicidal intent, a clinician has good grounds to intervene, but in the absence of expressed intent, risk factors such as a prior history of violence are so non-specific as to be of little help in most individual cases. Homicide which occurs impulsively, without prior threats or expressed ideation, is therefore essentially unpredictable. Most threats by adolescents are first heard by peers, and then may be brought to the attention of school or law enforcement personnel, and psychiatrists may be asked to help evaluate their seriousness. Threat research has largely grown out of law enforcement work focused on adults, but there is reason to think similar principles apply to adolescents. Threat evaluation has moved away from profiling the subject towards evaluating pathways that lead to violent action. Put another way, look less at the characteristics of the subject, and more at recent behavior which suggests he or she is moving on a path towards violence (Borum et al. 1999). Threat assessment procedures first developed for the Secret Service are now being implemented by law enforcement (Fein and Vossekuil 1998). These emphasize that attack is the consequence of an understandable and discernable process of thinking and behavior. Attack following threat is targeted, not impulsive or spontaneous. Evaluation emphasizes situational variables, such as the likelihood of interaction between attacker and victim, stress, and the current situation. Recent behaviors such as planning and making preparations (obtaining weapons, etc.) lead to a conclusion of high level threat. The FBI protocol developed for evaluation of threats reported to school personnel (O’Toole 1999) embodies these principles. The widely fluctuating rates of juvenile homicide over the past decade, and the difficulty in identifying prospective murderers, suggest that interventions at the community level are likely to have the most effect in reducing mortality. Juvenile homicide is the tip of the iceberg of youth violence, and reducing youth violence generally is likely to reduce the juvenile homicide rate. The report of the Surgeon General on youth violence reviews the effectiveness of strategies to reduce violence (Satcher 2001). Given that most homicides are firearms-related, reducing the carrying of firearms appears among the most promising strategies targeting juvenile homicide. While a sense of need for protection is the leading factor motivating gun-carrying, fear of being caught with a gun is the strongest deterrent (Ash et al. 1996; Freed et al. 2001). The federal Youth Handgun Safety Act (1996) makes it illegal for juveniles to carry a handgun. Several jurisdictions have implemented promising programs to deter gun-carrying by juveniles (Office of Juvenile Justice and Delinquency Prevention 1999). Some pilot strategies which appear useful are enhanced prosecution of gun offenders (Seattle), directed police patrols aimed at deterring illegal gun carrying (Kansas City, MO), parental consent for police to search a juvenile’s room and confiscate any firearms found there (St. Louis), and holding a

Forensic aspects of suicide and homicide in children and adolescents 415

gang responsible for the actions of individual members (Boston). There is encouraging evidence that gun-carrying by adolescents is on the decline, in tandem with adolescent homicide rates (Ash and Kellermann 2001). There is ample, albeit indirect, evidence that if an area is perceived as safe and well-policed, young people are less apt to bring guns there. Schools are one clear example of this. A recent report from the US Departments of Justice and Education finds that rates of gun-carrying on school property have been falling and that youths feel safer in school than previously (Kaufman et al. 2000). It is unclear whether teenagers decline to carry guns to school because they feel that they are unlikely to encounter an armed rival or because they fear detection by vigilant teachers, classmates, or school security technology and the penalties of ‘zero tolerance’ policies. What is clear, however, is that the collective impact of these interventions has been positive. Unfortunately, a similar level of effort has not been expended to help adolescents feel safe in their community, despite the fact that a teenager is much more likely to be killed on the street than at school.

CONCLUSION Adolescent violence, directed against self or others, exacts an enormous toll on its victims, their families, and society. Forensic psychiatrists are frequently consulted to assess cases involving youth – primarily adolescents – who are either thought to be at risk for killing themselves or others, or have already done so. Because of the high stakes involved, such cases generate great anxiety and concern for evaluators, patients, and families. While a good deal of group data about these juveniles has been developed, our ability to predict accurately which individuals will carry out such violence remains severely limited. Clinical approaches for assessment and intervention have been developed. While psychiatric intervention has no doubt benefited many at-risk patients, rigorous research has so far not demonstrated a consequent significant decrease in death rates. This may in part reflect that many youth who kill themselves or others never see a mental health professional. Family and community interventions may have the most effect in reducing mortality.

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Simon, R.I. 1987: Clinical Psychiatry and the Law. Washington, DC: American Psychiatric Press, Inc. Simon, R.I. 2000. Taking the ‘Sue’ out of suicide: a forensic psychiatrist’s perspective. Psychiatric Annals 30, 399–407. Snyder, H.N., Sickmund, M. 1999: Juvenile Offenders and Victims: 1999 National Report. Washington, DC: Office of Juvenile Justice and Delinquency Prevention. Stanford v. Kentucky, 492 U.S. 361 (1989). Svetaz, M.V., Ireland, M., Blum, R. 2000. Adolescents with learning disabilities: risk and protective factors associated with emotional well-being. Findings from the National Longitudinal Study of Adolescent Health. Journal of Adolescent Health 27, 340–8. Thompson v. Oklahoma, 487 U.S. 815 (1988). Trautman, P.D., Shaffer, D. 1989. Pediatric management of suicidal behavior. Pediatric Annals 18, 134–43. Verlinden, S., Hersen, M., Thomas, J. 2000. Risk factors in school shootings. Clinical Psychology Review 20, 3–56. Youth Handgun Safety Act 996: 18 U.S.C. 922(x).

43 The child as a witness ROBERT SUDDATH

INTRODUCTION A child may be a witness to a wide variety of events, may be a crime victim, or may be accused of committing a crime. In any of these circumstances, the child may be asked to provide eyewitness testimony for a court or other legal procedure. Before providing testimony, the child may be questioned by professional investigators as well as a variety of people with no special training in forensic interviewing including family, school staff, and medical professionals. These interactions, the passage of time, and a wide variety of other factors may affect the accuracy of a child witness. Because children are continuously developing both cognitively and physically, their ability to recall and, at a more basic level, to understand events that they witness changes as they grow older. Further, the response of children to factors that may influence their memory of events changes as a child matures. Younger children, in general, are less reliable witnesses and more susceptible to factors that alter the accuracy of their accounts of events. As children develop, their memory improves and their susceptibility to suggestion lessens. By adolescence, they are difficult to distinguish from adults, and like adults, they continue to exhibit some memory errors and remain susceptible to some degree of suggestion. Psychiatrists may be involved with child witnesses in several ways. Following an event, a psychiatrist may be consulted regarding the most appropriate way to interview a child witness, or may be asked to interview the child to obtain their account of events. Psychiatrists may be asked to offer an opinion regarding a child’s competency to testify or whether the child’s testimony has been distorted in some way. Additionally, psychiatrists may help guide the court regarding the impact of testifying on a child and the most appropriate ways for a child to testify. When a child does provide testimony, psychiatrists may consult with investigators, attorneys, and judges regarding the most appropriate way to interview the child,

particularly the way to obtain the most complete and accurate information possible while minimizing trauma to the child.

HISTORY OF CHILD WITNESSES Early English and American history The most famous cases in early American history that involved child testimony were the Salem witch trials. In these seventeenth century trials, child witnesses, aged five to seventeen years testified to a variety of bizarre events including observing the defendants flying on broomsticks (Starkey 1969). Nineteen defendants were executed and several other defendants confessed to avoid execution (Trask 1975). For some, these events demonstrated the risks of relying on child witnesses, while others have interpreted these events as products of the children’s social or religious environment (Hill 2000). Some authors have described specific modern prosecutions involving child witnesses as ‘witch hunts,’ drawing parallels to the Salem trials; however, there are limits to this analogy because many children have actually been abused and have accurately reported their abuse. Under English common law, children under age seven years were not allowed to take the oath to testify (Goodman 1984). In 1770, an English court held that there was no minimum age for children to be competent to testify (Myers 1993). Some nineteenth century US courts were reluctant or categorically refused to consider the testimony of children; however, in 1895 the US Supreme Court considered the issue of whether a child could testify as a witness (Wheeler v. United States 1895). The court found that an individual evaluation to determine the competency of the child witness was appropriate. Current US court practices, which allow individual determinations regarding the competency of child witnesses, began more than two centuries ago in English common

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law and have been continuously refined and re-evaluated since.

The child sexual abuse pre-school cases of the 1980s

Early research relevant to child testimony

Beginning in the early 1980s there was a series of highly publicized cases of alleged organized sexual abuse of large numbers of pre-school children. The primary witnesses in these cases were the alleged child victims. In many cases testimony was provided by older children who were asked to recall what had happened to them years earlier when they attended a pre-school or day-care center. These cases brought up questions about the credibility of the child witnesses and further questions about the relationship between interviewers, therapists, and children’s suggestibility. Perhaps the most well-known case involving multiple allegations of child sexual abuse was the McMartin PreSchool case. The case began in 1983, when a woman, who eventually developed symptoms of paranoid psychosis, reported that her child had been sexually abused at the McMartin Pre-School in Manhattan Beach, California. The parents of other pre-school children were sent a letter from the police department asking them to interview their children regarding sexual abuse. The District Attorney eventually retained a sexual abuse ‘expert’ who testified before congress that out of hundreds of cases of reported abuse by children, she knew of only two who had incorrectly reported sexual abuse (United States Congress 1985). The children were interviewed repeatedly, and the sexual abuse expert instructed the children’s other interviewers in means of breaking down the children’s resistance to overcome alleged threats by the defendants. The McMartin Pre-School investigation and trials were both expensive and controversial. Allegations against the pre-school’s staff included systematic ritualized sexual abuse of a large number of pre-school children as a part of satanic cult worship. At the time of the initial investigation there was very limited scientific knowledge about children’s memory, suggestibility or the best way to interview them. Ultimately, the juries were unable to convict the defendants in the McMartin case. In part, this may have been due to the jury’s lack of faith in the testimony of the children; however, it was also clear that the children had been interviewed with highly suggestive techniques that might prevent the truth from ever being known. The case consumed years of the defendants’, the victims’ and their families’ lives, and factions of angry parents remain convinced that their children were victims. Additional, similar, well-publicized cases included: Wee Care Day Nursery (1985, Maplewood, NJ), Little Rascals Day Care (1989, Edenton, NC), and Wenatchee WA (multiple prosecutions across the community: 1994). These cases and other cases involving alleged organized ritualized sexual abuse and an increasing frequency of claims of abuse arising in the context of divorce and child custody proceedings led to several studies of children’s eyewitness memory and child interviewing in the 1980s and 1990s.

The beginnings of psychology and psychiatry in the nineteenth century led to research focused on child development and child psychology beginning in the early twentieth century in both Europe and the United States. A major early researcher in child cognitive development was Alfred Binet who pioneered intelligence testing in children. Binet documented both poor comprehension and impaired critical review of information in children as compared with adults; however, he also reported superior memory ‘retention’ in children (Binet, Simon, and Terman 1980). These authors additionally observed the importance of the social context in which children are questioned, noting distortions and attempts by children to conform their opinions to those of adults (Binet 1900). As a student working in Binet’s laboratory, Jean Piaget observed consistencies in the errors children made on intelligence tests. By focusing on children’s reasoning process and its interaction with their perceptions, Piaget was able to describe child cognitive development in an orderly, sequential manner (Piaget 1962). Notably, he described characteristics of the thought process of developing children including several distortions (lack of understanding of causality, egocentrism, animism) that may directly affect their ability to observe, understand, or report events (Piaget 1954). Piaget’s theory of developmental stages may underestimate the abilities of young children, and has been replaced by modern developmental psychologists with a continuum of development. Until recently, there was minimal interaction between the judicial system and child psychological research; however, some early investigators did study children’s abilities as witnesses. Beginning in 1900, William Stern and his wife carefully documented their own children’s cognitive developments, paying particular attention to their recall of events and factors that influenced their recall (Stern, Stern, and Lamiell 1999). The Sterns reported several findings that have been replicated using modern methodologies, including the limited quantity but superior accuracy of free recall and the tendency of children to alter their reports based on their expectations. They additionally reported individual differences in children’s suggestibility and described circumstances that could minimize the risk of suggestibility. Another European psychologist, Varendonck, was an expert witness in a murder trial in which the defendant was identified by a child following suggestive questioning. To provide evidence for the trial, he conducted studies using suggestive questioning of several seven-year-old children. His results demonstrated that all but a few of the children had incorporated some of the suggested information into their accounts of events (Varendonck 1911).

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U.S. SUPREME COURT CASES AND LAWS PERTAINING TO CHILD WITNESSES The first issue to be addressed by the US Supreme Court pertaining to child witnesses was their competency to testify. In the first three cases described below, the standards and procedures for determining competency were clarified. These standards are reflected in the current criminal and evidence codes of most states. Once children were allowed to testify as witnesses, numerous other issues became apparent. The remaining cases discussed below attempted to balance the protection of child witnesses and the optimal means of obtaining testimony with the rights of the accused.

The competency of child witnesses to testify In Wheeler v. United States (1895), the defendant appealed his murder conviction and death sentence on several bases including the fact that the 5 1⁄2-year-old son of the victim was allowed to testify. The court affirmed the conviction, allowing the child’s testimony. The decision indicated that the child had stated he would tell the ‘truth’ and that if he lied a ‘bad man would get him’ or he would ‘go to jail.’ The opinion stated, ‘… the boy was not by reason of his youth, as a matter of law, absolutely disqualified as a witness … there is no precise age which determines the question of competency. This depends on the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former.’ This decision further defined the process of defining competency: ‘The decision … rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence, as well as his understanding of the obligations of an oath.’ The procedure for evaluating competency of child witnesses was the major issue in Kentucky v. Stincer (1987). The defendant was convicted of sodomy with three victims, aged five, seven, and eight years. The seven- and eight-year-old victims testified during the trial after they were found competent in a hearing involving the judge, the prosecutor, and the defense counsel. The questions asked at the competency hearing involved determining whether the children were ‘capable of observing and recollecting facts … narrating those facts to a court or jury, and whether the child has a moral sense of the obligation to tell the truth.’ The defendant appealed his conviction based on his exclusion from this competency hearing, which he stated, violated his Sixth and Fourteenth Amendment rights. The Supreme Court upheld the trial court’s conviction. The court found that the defendant’s right to confront his accuser had not been violated because, during the trial, ‘the two girls were cross-examined in

open court with respondent present and available to assist his counsel.’ Additionally, the court found that the defendant’s due process right to be present at critical stages of a criminal proceeding was not violated because ‘of the particular nature of the competency hearing, whereby questioning was limited to competency issues and neither girl was asked about the substantive testimony she would give at trial.’ The hearsay testimony of a 21⁄2-year-old child was the key issue in Idaho v. Wright (1990). The defendant was convicted of two counts of lewd conduct with her two daughters ages 21⁄2 and 51⁄2 years. She appealed only the conviction involving her 21⁄2-year-old daughter because she believed that the child’s hearsay testimony was not trustworthy or reliable. The younger daughter was excluded from testifying based on a competency evaluation that found her not ‘capable of communicating with the jury’; however, a pediatrician was allowed to testify to her statements under the state’s hearsay exception. The US Supreme Court affirmed a lower court’s reversal of the conviction. The court specifically found that the pediatrician’s interview technique ‘lacked procedural safeguards.’ Possible procedural safeguards discussed by the court included the use of ‘videotape for preservation and perusal by the defense.’ Importantly, the court referenced research findings and concluded that ‘blatantly leading questions were used’ and that the interview ‘was performed by someone with a preconceived idea of what the child should be disclosing.’ This decision is of particular relevance to clinicians who may give testimony in court regarding interviews with child witnesses. Uniform guidelines regarding the competency of child witnesses were established through the Federal Rules of Evidence (1984), which were enacted in 1975. These rules broaden competency standards – ‘every person is competent to be a witness except as otherwise provided in these rules.’ Further, no ‘mental or moral qualifications for testifying as a witness are specified’ and the notes elaborate: ‘a witness wholly without capacity is difficult to imagine. The question is one particularly suited to the jury as one of weight and credibility.’ The majority of US states have adopted these rules of evidence either explicitly or in some modified form in state law. For example, California Evidence Code (California Codes 1995) states: ‘Except as otherwise provided by statute, every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter,’ explicitly allowing child witness testimony. New York Consolidated Laws (1970) prohibit testimony of a child less than twelve years old, ‘unless the court is satisfied that he understands the nature of an oath,’ but allows for ‘unsworn evidence if the court is satisfied that the witness possesses sufficient intelligence and capacity to justify the reception thereof.’ Although the specifics vary, Federal jurisdictions and most state codes allow hearsay evidence of children provided their statements were obtained as a part of medical evaluation or treatment (Myers, pending publication).

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Protection of child witnesses, the best interests of a child and the right to confront your accuser The balance between protecting the privacy of child witnesses and the rights of the media was the key issue addressed in Globe Newspaper Co. v. Superior Court (1982). Massachusetts law provided that for sexual crimes with child victims, ‘the presiding justice shall exclude the general public from the court room, admitting only such persons as may have a direct interest in the case.’ A newspaper publisher challenged this statute asserting that it violated the First Amendment (United States Constitution) by limiting an informed ‘discussion of governmental affairs.’ The US Supreme Court recognized an interest in ‘safeguarding the physical and psychological well-being of a minor’; however, it found that the Massachusetts law was not constitutional because it was a ‘mandatory closure rule’ that applied indiscriminately to all cases. The court’s opinion further stated that the state’s interest in protecting a minor ‘could be served just as well by requiring the trial court to determine on a case-by-case basis whether the State’s legitimate concern for the well-being of the minor victim necessitates closure.’ As in Globe Newspaper Co. v. Superior Court (1982), the protection of child witnesses was a central issue in Coy v. Iowa (1988); however, in this case the US Supreme Court considered the issue of whether protective measures interfered with the defendant’s right to a fair trial. The defendant was convicted of two counts of lascivious acts with a child. During his trial, the victims, two thirteenyear-old girls, testified from behind a screen which shielded the witnesses from the defendant’s sight ‘but allowed him to see them dimly and to hear them.’ The defendant appealed his conviction, asserting that the use of the screen had violated his Sixth Amendment (United States Constitution) right to ‘be confronted with the witnesses against him.’ The court found that the defendant’s ‘constitutional right to face-to-face confrontation was violated,’ reversing and remanding the lower court’s judgment. The court found that there was ‘no merit to the State’s assertion that its statute creates a presumption of trauma to victims of sexual abuse that outweighs appellant’s right to confrontation.’ The court did indicate that there was a possibility for exceptions based on ‘individualized findings that these particular witnesses needed special protection.’ Just two years after the decision in Coy v. Iowa (1988), the US Supreme court again considered the balance between a defendant’s Sixth Amendment rights and the state’s interest in protecting child witnesses. In Maryland v. Craig (1990), the defendant was accused of several counts of sexual abuse of a six-year-old girl who attended the defendant’s kindergarten and pre-kindergarten center. Based on expert testimony that the victim would suffer ‘serious emotional distress such that (they could not) reasonably communicate,’ the victim testified through a ‘one-way’ closed-circuit television. This arrangement

allowed her to be questioned in a separate room and observed from the courtroom during her testimony. The defendant was convicted, but appealed arguing that the closed-circuit procedure violated the Sixth Amendment right to face-to-face confrontation with witnesses (United States Constitution). The US Supreme Court considered an Amicus Curae brief from the American Psychological Association that suggested a ‘case-by-case’ evaluation of the potential trauma to the child and the child’s ability to provide accurate courtroom testimony. The Supreme Court vacated a lower court’s reversal of the defendant’s conviction. The Supreme Court declined ‘to establish, as a matter of federal constitutional law, any such categorical evidentiary prerequisites for the use of the one-way television procedure.’ Additionally the Court’s opinion stated ‘so long as a trial court makes such a case-specific finding of necessity, the Confrontation Clause does not prohibit a State from using a one-way closed-circuit television procedure for the receipt of testimony by a child witness in a child abuse case.’ In this case the Supreme Court effectively allowed trial courts to make a case-by-case determination of the specific need for protective measures like closed-circuit television. The use of closed-circuit technology has been incorporated into the statutes of some states. California (California Codes 1995) allows closed-circuit testimony of children aged thirteen years and younger limited to ‘a recitation of the facts’ of an alleged violent or sexual criminal act. The statute places the burden on the state to show ‘by clear and convincing evidence’ that the minor would be ‘unavailable as a witness unless closed-circuit television is used.’ Texas law places fewer restrictions on the use of closed-circuit testimony from child victims of violent or sexual crimes, allowing a motion for closedcircuit testimony to be initiated by either party (The Texas Statutes 1965). This law provides broad guidelines for the trial courts to use in determining the use of closed-circuit technology: ‘the court may set any other conditions and limitations on the taking of the testimony that it finds just and appropriate, taking into consideration the interests of the child, the rights of the defendant, and any other relevant factors.’ Following Maryland v. Craig, most states have established some mechanism to allow for closed-circuit testimony of child witnesses; however, the use of this technology remains relatively rare.

MODERN RESEARCH ON CHILDREN’S COGNITIVE DEVELOPMENT AND MEMORY A child’s basic ability to be a witness to an event depends on many factors. A simplified view of these factors begins with the child’s perception of the event, and progresses through organization and storage of event information. Finally, the child must retrieve the stored

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information and express it in some manner. Memory is important at almost every stage of these inter-related processes, and has been the subject of several studies. Memory may be the weakest link in this chain of events, with limitations on how much can be remembered, how long information can be remembered, and numerous problems with retrieval of information. A child’s memory of events takes place in the context of the child’s level of development, significantly shaping their report of witnessed events.

Cognitive development Children’s development progresses continuously with development occurring in motor, cognitive, language and other skills in a simultaneous and inter-related manner (Volkmar 1995). An infant or toddler with a very limited vocabulary cannot fully describe what they have witnessed. Even if they were able to express themselves using non-verbal communication, their understanding of the world, including basic concepts such as causality, may not be adequately developed. A very young child’s thought processes differ from an adult’s thought processes in several major ways including distortions and inaccuracies in their perceptions of their environment. Magical thought, egocentrism, animism, and focusing on a single dimension are some characteristics of pre-school age thought (Inhelder and Piaget 1958) that could significantly affect a child’s account of events. For example, a child who equated a person’s size with their height might inaccurately report the size of a perpetrator, focusing on the person’s height alone and ignoring all other dimensions. Importantly, this child may have never encoded complete information about the perpetrator’s dimensions (weight, proportions, etc.), making it impossible for an investigator to learn additional information from the child. Although this example over-simplifies a young child’s cognitive abilities, it illustrates the essential interactions between development, memory, and recall. Many interviews with young children utilize props such as drawings or dolls to assist the child in relating information. The ability of a child to correctly use the props requires the child to have developed the ability to think symbolically. DeLoache tested the ability of 21⁄2and three-year-old children to use pictures or models to represent a room where a toy had been hidden. The younger children were more successful using the pictures (80 per cent) than using a scale model (20 per cent) (DeLoache 1995). Follow-up studies suggested that the younger children found the scale room intrinsically interesting, and had difficulty understanding that it also symbolized a real room. Extending this research to the use of dolls, children were asked to demonstrate where an experimenter had touched them using a doll or using their own body. When using a doll, 21⁄2-year-olds reported only slightly more than half as much accurate information

as when they used their own bodies. Four-year-old children were more accurate than 2 1⁄2-year-olds at using dolls, but still provided considerably more information when asked to demonstrate on their own bodies. These findings cast doubt on the use of intrinsically interesting props such as dolls when interviewing young children who may not have fully developed the ability to use them as symbolic representations of other objects. Concerns about a child’s ability to distinguish imagined events from real events have been expressed both historically and by prominent developmental psychologists (Piaget 1962). A limited number of studies have examined developmental changes in children’s imagination in a forensically relevant way. One approach involved asking younger and older children to imagine both common (a cup) and unreal (a monster) items (Harris et al. 1991). Both four- and six-year-old children were able to distinguish real from imagined items. When questioned afterwards, a proportion of the younger children (aged three to four years) indicated that they were afraid of the imagined monster or believed that the imagined monster could become real, in spite of reassurances from the experimenters that the creatures were not real. Although even young children were able to differentiate imagined events from real events, the authors concluded that some younger children might be ‘tempted to believe in the existence of what they have merely imagined.’ Another process that has been described in developmental terms is moral development. Kohlberg described a progression of children through stages of moral development (Kohlberg, Levine et al. 1983). Although Kohlberg’s theories have been widely criticized and have not been consistently replicated, the moral development that he described may be relevant to children’s courtroom testimony. An important element of a child’s competency to testify is their understanding of the difference between lying and telling the truth. Sometimes, a child is additionally expected to demonstrate a moral obligation to tell the truth. These concepts may be understood by young children only in terms of punishment or other anticipated direct effects on the child; it may not be developmentally appropriate to expect them to demonstrate a more sophisticated understanding. The development of an understanding of truth and lies was investigated in a study of four-, eight- and eleven-year-old children’s abilities to categorize statements as lies or truths (Bussey 1999). The results demonstrated improved ability to categorize truth and lies with increasing age and a similar developmental progression of ability to differentiate antisocial lies from ‘white lies.’

Children’s memory Memory researchers have described the process of memory in sequential stages including encoding, storage, and retrieval. Information can be lost or altered at any stage,

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and each stage is completely dependent on the prior stage. Information that is encoded may be lost during storage, and normally only a subset of the information that is stored is retrieved. Because children have already encoded the information that they have witnessed, research that is relevant to a child’s testimony relates to information storage and retrieval. These components of memory can potentially be enhanced or altered in some way after a child has witnessed an event. A major and consistent finding in memory research for both children and adults is that ‘repetition facilitates performance’ (Brainerd and Ornstein 1991). The improvement in performance observed with repetition assumes that the repeated information is accurate and not influenced by variables such as leading questions. Investigators evaluating ways to improve the storage of information have found that ‘across session repetition generally delays forgetting for subjects of all ages’ (Poole and White 1995). These general findings suggest that a child’s memory for a witnessed event can be improved through some form of practice occurring after the event. Studies have examined specific ways to enhance children’s memory using different types of repetition or practice, typically using follow-up sessions in which they were interviewed or questioned about a previously witnessed event. Studies have demonstrated improvement in recall three to eight weeks after an event for children who were interviewed within the first few days of the event (Dent and Stephenson 1979; Baker-Ward, Hess, and Flanagan 1990). In a related study, investigators re-tested children interviewed at one week or more after an index event and found no improvement in subsequent recall (Goodman et al. 1991a). These results suggest that there may be a critical period following the initial exposure to the information in which repetition may have to take place for there to be a benefit to a child’s memory. The benefits of practice interviews may not be limited to improving recall. Repetition through ‘neutral’ questioning, soon after an event, has even been reported to ‘reduce susceptibility to suggestion for both children and adults’ (Warren and Lane 1995). Both children and adults perform better on memory tasks involving information that they understand and is relevant or interesting to them. A developmental progression has been reported in children’s memory of repeated events that they have participated in. Younger children (age 2 1⁄2 years) rely most on causal relationships, and gradually develop the ability to organize events temporally or hierarchically over the next three years (Price and Goodman 1990). Goodman et al. (1990) evaluated effects of participation in an activity on children’s recall and reported that ‘children are more resistant to suggestions about personally significant actions than one would predict based on previous research.’ In this study, four- and seven-year-old children who participated in a play activity or simply watched the activity demonstrated similar free recall of events; however, the children who participated

were more resistant to suggestive questioning (Rudy and Goodman 1991). When pre-school age children are asked to recall events, using open-ended questions, in general they provide accurate information. Unfortunately, pre-schoolers’ accounts of events typically contain very limited and incomplete information (Fivush et al. 1991). Repeated interviews of children using open-ended questions continue to demonstrate generally accurate accounts of events, but very limited information. Importantly, the information recalled on second or third interviews, while still accurate is often different from the information initially recalled: ‘pre-school children seem to recall different but still accurate information each time they recall an event’ (Fivush and Shukat 1995). These results could suggest that one way to obtain more complete accounts of events using open-ended questions would be to conduct multiple interviews. In spite of this potential advantage of multiple interviews, the children being interviewed would be susceptible to suggestion and other intervening variables during periods between interviews. In practice, these risks outweigh the possible benefits of multiple interviews, with most interviewers attempting to minimize the number of interviews of child witnesses. Due to the very limited information obtained from young children who are asked to recall witnessed events, researchers have studied the use of more directed questioning. The use of directed questions has a greater potential to be leading or suggestive, but may elicit information that a child will not volunteer with free recall (Dent and Stephenson 1979). This research is relevant for court procedures in which attorneys and investigators routinely use directed questions when interviewing child witnesses. Directed questions may simply provide context, or may be much more leading, asking a child to choose from a group of answers or to limit their response to yes or no (Peterson and Biggs 1997). Depending on the type of directed questioning, these techniques have the potential to dramatically increase (more than double) the amount of correct information that children recall. This improvement in recall comes at a significant cost, with most studies demonstrating a simultaneous increase in inaccurate information provided (Poole and Lamb 1998). The accuracy of children’s accounts of events decreases with time, and this finding has been described in many ways including ‘memory fade,’ ‘omission,’ or simply ‘forgetting’ (Brainerd, Kingma, and Howe 1985; Howe and Brainerd 1989; McGough 1994; Fivush and Shukat 1995). Test–re-test designs have demonstrated that the accounts of school age children contain up to 10 per cent inaccurate information when questioned within the first week following a witnessed event. When re-tested at several months, up to two years, the proportion of inaccuracies may double and has been reported at approximately 20 per cent (Flin et al. 1992; Poole and White 1993). This increase in inaccurate information recalled has not been

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reported in adults who maintain a consistent 10 per cent rate of inaccuracies over time. Many of the events that children may be asked to provide eyewitness testimony for may have been stressful or even traumatic experiences. To study the effects of stress on children’s memory, researchers have used designs that incorporate naturally occurring stressful events such as medical or dental examinations and procedures (Peters 1991). The effects of stress caused by blood draws and inoculations on children’s memory were investigated in a series of studies by Goodman et al. (1991b). In these studies, three- to seven-year-old children demonstrated similar recall for stressful and non-stressful events, except for very highly stressed children who demonstrated enhanced recall and reduced suggestibility. Saywitz et al. (1991) compared children’s memories of medical examinations with and without a genital exam. Children who experienced a genital exam failed to report this exam unless they were specifically asked about it. None of the children who did not experience a genital exam falsely reported genital touch, even when using anatomically detailed dolls; however, a small number of the children made incorrect reports in response to direct questions. To study the effects of more invasive, painful, and potentially traumatic events on memory, Goodman et al. (1994) studied children undergoing voiding cystourethrography, a procedure which involves urethral catheterization and infusion of fluid into the bladder. Age effects on the children’s memory of the procedure were prominent, with older children recalling more correct information, making fewer errors, and demonstrating more resistance to suggestion than younger children. These age differences were most prominent when the youngest children, aged three to four years, were compared with the older children, aged up to ten years. Additional interesting findings reported in this study included: none of the children developed amnesia for the procedure; younger children who endured multiple medical procedures had poorer recall; and children who had nightmares about the procedure were more suggestible than the other children. Some researchers have suggested that children’s memories of traumatic events such as physical or sexual abuse interact with emotional factors in a complex but predictable sequence to produce variability in their reports (Summit, Miller, and Veltkamp 1998). Some experimental support for this hypothesis has been reported in studies of abused children in psychotherapy who demonstrated initial denial followed by active disclosure and subsequently recantation of reported abuse (Sorensen and Snow 1991). Other studies have used samples of abused children involved with a child protection agency and reported that most (78 per cent) children simply disclose without going through other stages (Bradley and Wood 1996). Although abused children may not all go through particular stages, some proportion of these children will fail to report and may even deny memory of being abused during certain periods following the abuse.

Children are asked to provide information in a wide variety of contexts. The most visible of these places are courtrooms, which have the potential to be intimidating and stressful. Some jurisdictions have implemented programs to familiarize child witnesses with courtrooms to reduce possible deleterious effects of stress on their testimony (Saywitz 1995). In a study comparing differences in recall of eight- to ten-year-old children in a mock court or a classroom setting, children experienced significantly more stress in the court setting (Saywitz and Nathanson 1993). Children’s recall was impaired in the court setting for open-ended questions, but was similar in both settings for directed questions. Additionally, it was reported that children’s perception of strong social support was correlated with lower anxiety. The effects of a conventional legal interview were compared with a more developmentally appropriate interview in a study of fiveto seven-year-old children (Carter, Bottoms, and Levine 1996). The study demonstrated significantly reduced accuracy when children were questioned in ‘legalese,’ and increased susceptibility to misleading suggestions when children were interviewed in an intimidating manner. These studies suggest that children may be able to provide more complete or more accurate information when they are questioned with developmentally appropriate language in a less stressful environment with social supports.

FACTORS THAT MAY INFLUENCE CHILDREN’S MEMORY The fact that children’s reports of witnessed events may be less accurate and less complete than those of adults does not fully explain other deficits that have been reported in children’s accounts of events. Several studies have reported that children may be more readily misled or susceptible to suggestions of inaccurate information than adults. This susceptibility of children has been reported for a wide variety of interventions, including directly misleading questioning, and more subtly misleading interventions such as simply repeating questions or using forced choice questioning. Numerous studies of children’s memory have added some suggestive or misleading questions into the testing of recall to allow evaluation of the effects of leading questions. In one study, nine-year-old children were found to be significantly more suggestible than adults when questioned about central events in a video they watched (Warren and Lane 1995). In a study comparing four- and seven-year-olds who were questioned about an activity that they had observed or participated in, children were described as relatively resistant (approximately 90 per cent accurate) to suggestions that might be associated with abuse (Rudy and Goodman 1991). Younger children were more suggestible than older children; however, no age differences were found in children’s responses to misleading

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questions that implied sexual abuse. In a study of children receiving inoculations, younger children (aged three to four years) were significantly more suggestible than older children (aged five to seven years) in response to questions about the inoculation (Goodman et al. 1991b). The children were in general less suggestible regarding actions than information about the persons involved, and very few of the children were susceptible to leading questions suggesting sexual abuse. In order to study the effects of multiple leading questions, some studies have randomly assigned children to be interviewed in a consistently leading or non-directive way regarding a witnessed event. In a study of five- to six-year-old children who were either questioned in a neutral manner or ‘interrogated’ using multiple leading questions, the interrogated children ‘uniformly’ changed their accounts of events to match the interviewer’s suggestions (Thompson, Clarke-Stewart, and Lepore 1997). These altered accounts persisted when the children were subsequently interviewed in a non-leading manner. In a study of suggestive interviewing with children aged three to six years, the younger children were described as ‘significantly more vulnerable to suggestion’ than the older children (Ceci and Huffman 1997). The investigators noted that suggestions of false-negative, sexual, or salient information were more difficult to implant in children’s statements; however, once implanted, the children resisted attempts to ‘debrief ’ them. Interestingly, this study presented videotaped interviews to mental health professionals who were unable to distinguish the false, suggested accounts from true accounts. The timing of leading, suggestive or misinformation has been investigated using a variety of designs. In a study of six- and nine-year-old children, misinformation was presented two weeks after the children participated in an activity. Both age groups showed similar interference effects with the misleading information reducing the accuracy of their reports of the event (SchwartzKenney and Goodman 1999). Lindsay et al. (1995) demonstrated that ‘children were especially influenced by suggestions presented immediately before the test rather than two days earlier’ and that ‘children may find it difficult to escape the effects of misleading suggestions, even when the interviewer warns the children against them.’ Ceci et al. (1996) and others have described ‘source misattribution’ as a mechanism explaining the suggestibility of pre-school children. Source misattribution is a process in which children recall being presented with false information but, in retrospect, are unable to determine the source of the information and incorrectly recall this information as a real event. This mechanism was demonstrated in a study of forty children aged three to six years in which younger children were disproportionately more likely ‘to claim that they remember actually experiencing events that they only thought about or were suggested by others’ (Ceci et al. 1994). In a study in which children were presented with false information about a

medical procedure that took place an average of more than three years earlier, almost three-fourths of the younger (three- to five-year-old) and half of the older (six- to eight-year-old) children assented to a medical procedure that had never occurred (Quas et al. 1999). When these assenting children were provided with a detailed description of the false procedure, most of the children subsequently denied experiencing the procedure. Children may provide false accounts of events in response to interviewing techniques that are not apparently suggestive. For example, the use of specific questions to interview children has been demonstrated to significantly reduce the accuracy of children’s reports. In a study of children’s reports of treatment in an emergency room, open-ended questions produced 91 per cent accurate information compared with specific questions, which provided only 45 per cent accuracy (Peterson and Bell 1996; Peterson and Biggs 1997). Simply repeating questions or repeating interviews may have suggestive effects on children. A child who responds to a repeated question may believe that they made an error when they first responded to the question, and may change their response in an attempt to please the interviewer or to guess the correct answer. Effects of repeated questioning were evaluated in a study comparing the accuracy of information elicited from four- to eight-year-old children and adults (Poole and White 1991). Younger children were more likely than older children and adults to change their responses to yes–no questions. In a follow-up study, the same children were asked questions about the event they had witnessed two years earlier (Poole and White 1993). Only 50 per cent of the children’s responses to yes–no questions were the same as their responses two years earlier – a performance that is no better than chance. The role of questions repeated across interview sessions is not clear. Research has demonstrated that repeated neutral interviews can maintain the accuracy of children’s and adult’s memories, but few studies have examined discrepancies in information obtained with repeated interviews. In a study of threeand five-year-old children interviewed about an event they participated in at both three days and one year after the event, information that children produced at both interviews was reliable. Importantly, information that was introduced for the first time at the second interview was almost always inaccurate (Salmon and Pipe 1997). A biased interviewer with inaccurate preconceptions about the events that a child has experienced can influence the accuracy of a child’s report. This may take place as an interviewer inadvertently rewards responses that are consistent with the interviewer’s bias and ignores responses that are inconsistent with their bias. The effects of an exculpatory, an accusatory or a neutral interview on children aged five to six years were evaluated using multiple interviews following a witnessed event in which a janitor handled some dolls. Following a biased initial exculpatory or accusatory interview, most children provided

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inaccurate accounts that were consistent with the interviewer’s bias (Thompson, Clarke-Stewart, and Lepore 1997). The majority of the children, whose second interviewer had a contradicting bias, reversed their accounts and fit them to the interpretation provided by the second interviewer. A similar study used blinded social workers to interview pre-school children about a game they had played a month earlier (Ceci and Bruck 1995). The social worker was provided with a one-page report containing both correct and incorrect information about what might have happened during the game, and was asked to interview the children about the game. For children who were interviewed by a social worker who was inaccurately informed, 34 per cent of the three- to four-year-old and 18 per cent of the five- to six-year-old patients incorporated false events into their accounts. These results were extended by providing the social worker’s interview notes to another interviewer who re-interviewed the children three months later. At this follow-up interview, children continued to incorporate the previously suggested errors into their accounts and became more confident of the incorrect information. Most studies investigating children’s suggestibility have limited the use of suggestive techniques to test the effects of a particular technique. These designs may not accurately mimic forensic interviews in the community in which children may be subject to multiple suggestive influences. In two studies designed to evaluate the effects of multiple suggestive interview techniques on child witnesses, Garven et al. (1998) used techniques drawn from the McMartin Preschool investigation to interview children about a stranger’s visit to their day-care center. Interview techniques used included suggestive questioning, verbal reinforcement and punishment, peer pressure and requests for children to think about their answers or to pretend that something happened. Children who were interviewed with multiple suggestive techniques were less accurate (43 per cent compared with 83 per cent) and made more false accusations (58 per cent compared with 17 per cent) than children who were interviewed using suggestive questions alone. This study was subsequently replicated using a subset of the suggestive techniques, reinforcement and peer pressure (Garven, Wood, and Malpass 2000). The investigators reported a higher rate (35 per cent compared with 12 per cent of controls) of false accusations against a visitor, and a higher rate (52 per cent compared with 5 per cent in controls) of false reports of ‘fantastic’ events (being taken from the school in a helicopter) in the children who were interviewed using reinforcement and peer pressure. In a subsequent nonsuggestive interview, the children who had undergone the brief, ten-minute suggestive interviews continued to make false allegations against the visitor. Some authors have reported that an analysis of the interaction between children and their interviewers can provide a uniform explanation for findings of children’s suggestibility. Meyer (1997) reviewed a variety of research

on suggestibility in children and suggested that an underlying principle is the response of children to authority. This effect was documented in adults in a series of classic experiments by Milgram (Milgram 1963; Milgram 1965) in which experimental subjects gave what they believed were dangerous electrical shocks to other subjects simply because they were told to do so by an authority figure. These results have been partially replicated in children. In a courtroom or other legal interview situation, children may place a higher value on pleasing the authority figure than on the accuracy of their testimony. In a review of literature on children’s memory and suggestibility, Bruck and Ceci (1999) concluded that in spite of selected strengths and individual variability, there are clear age-related differences in children’s suggestibility. Specifically, children’s memory becomes more complete, more accurate, and less susceptible to suggestion as they grow older. Across a variety of studies, the differences are most profound between pre-school and school age children, although differences have been reported across all ages of children. The authors described children’s desire to please adults – a critical skill that they learn from an early age – as a major factor leading to children’s acquiescence to adult’s suggestive interviews. In another review of literature on children’s eyewitness testimony, Goodman and Schaaf (1997) focused on methods of interviewing children. These authors concluded that there is a continuum of questions from open-ended to leading or suggestive questions. Although open-ended questions produce the most accurate information with the lowest risk of suggesting erroneous information, at times it may be best to use carefully formulated leading questions to obtain specific information that children might not otherwise volunteer.

COURT TESTIMONY OF CHILDREN, RISKS, BENEFITS AND THE JURY Child witnesses in court A confrontational cross-examination in which a child victim is asked to recount details of sexual abuse in front of a courtroom full of observers, including a previously trusted family member/perpetrator has abundant potential to be traumatic to the child. This risk to the child, combined with the risk that the child’s testimony will suffer due to stress, has led to proposals to reduce the stress on child witnesses, distance them from the proceedings, or to avoid having children appear in court at all. It may not be possible to study the effects of testifying on a child using a randomized, controlled design; however, a limited number of studies have investigated the psychiatric effects of providing courtroom testimony. In an early study of the effects of court involvement on children involved in sexual abuse investigations and

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litigation, questionnaires were sent to administrative and clinical staff of child protection agencies (Tedesco and Schnell 1987). The survey results indicated that the majority of the involved children found the investigations ‘helpful’ and only 21 per cent found the process harmful. Helpfulness was not related to interventions such as the use of videotape or the presence of a support person. In a more elaborate design, seventy-six children aged six to seventeen years who were involved in child protection proceedings were assessed when referred to the study and then five months later (Runyan et al. 1988). All of the children demonstrated a ‘high degree of distress’ at the initial assessment, with prominent high scores on measures of anxiety and depression. After five months, average scores improved for all subjects; however, the improvement was much greater for children who had been involved in court proceedings compared with children who were still waiting for court proceedings to begin (30 per cent versus 17 per cent improvement). Children who had testified in juvenile court demonstrated an even greater improvement in measures of psychiatric distress (42 per cent). The authors concluded that juvenile court testimony was beneficial to children; however, this conclusion may only apply to the extent that court testimony resolved some of the already high anxiety that the children were experiencing as participants in child protection proceedings. In a recent study of eighty-one children who were sexually abused by a family member, measures of the children’s stress were compared with the social service interventions that they had received (Henry 1997). The number of investigative interviews was positively correlated with stress, while a trusting relationship with a professional was negatively correlated with stress. The investigators found no relationship between stress and testifying in court. Studies that have evaluated children testifying in criminal court have generally described poorer outcomes than studies of children testifying in civil court. In a study of more than 200 children aged four to seventeen years who were referred by prosecutors, the level of behavioral disturbance was evaluated following initiation of prosecution, after disposition and at three and seven months after testifying (Goodman et al. 1992). Children who testified evidenced greater behavioral disturbance seven months after testifying, but significant differences were not found for other intervals. Before testifying, children were most likely to report being fearful of facing the defendant in court. Children who were fearful of facing the defendant had more difficulty responding to questions and were more likely to subsequently report that testifying had been traumatic. Younger children who had been severely abused were the most seriously affected by testifying. In a subsequent multi-site study of 256 child victim witnesses in criminal courts, the psychiatric symptoms in four- to seventeen-year-olds whose cases were referred for prosecution were evaluated (Whitcomb and National Institute of Justice (U.S.) 1994).

Children who had been sexually abused were described as ‘highly distressed’ when initially evaluated, but eight months later the majority had demonstrated improvement in their symptoms. Testifying in court was not significantly related to the severity of symptoms; however, those children who testified multiple times or who ‘experienced a lengthy or harsh cross-examination’ demonstrated significant adverse effects. At the follow-up interviews, an inventory was used to score the stress that the children had experienced from court interventions (Runyan et al. 1994). Testifying in court was ranked as significantly more stressful (score ⫽ 111) than placement in foster care (score ⫽ 100) or interviews with police or social workers (scores ⫽ 50 and 35, respectively). Most studies of children undergoing court proceedings report very high levels of psychiatric symptoms, particularly stress, both for children who testified and those who did not testify. It may be impossible using naturalistic designs to define the precise contribution of court testimony to the already devastating life stress that many of the children were experiencing. It could be argued from available data that courtroom testimony may contribute to the resolution of some stressors and thus may be beneficial. Alternatively, it could be argued that confrontational court testimony has the potential to create long-lasting trauma to child witnesses. The American Academy of Child and Adolescent Psychiatry’s position paper on ‘Protecting Children Undergoing Abuse Investigations and Testimony’ warns of ‘serious stress and potential trauma’ to children involved in court proceedings (AACAP 1989). The document recommends expedited handling of a variety of investigative and court procedures involving children, the use of child psychiatrists to assist in a variety of aspects of investigation and court procedures, special procedures to make the courtroom less stressful, and changes in evidentiary requirements to allow hearsay statements from children.

Jury perception of child witness testimony A decisive factor in many court cases is the jury’s assessment of the witness’s credibility. Studies have failed to demonstrate that children are consistently perceived as either more or less credible than adults. Instead, most studies suggest that jurors evaluate the credibility of a child witness in a larger context. The earliest study designs questioned jurors about mock case ‘transcripts’ or videotaped testimony in which the age of witnesses was experimentally varied. In a series of studies comparing jurors perceptions of six-, ten- and thirty-year-old witnesses, the ten-year-old witness, and to a greater extent the six-year-old witness, were perceived as less credible that the adult witness (Goodman, Goldings, and Haith 1984). In subsequent studies, Goodman et al. (1987) demonstrated that a mock jury’s confidence about the credibility of a child witness was related to the

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child’s age, confidence and attractiveness, but was not related to the accuracy of information conveyed by the child. Interestingly, in some situations, in which the child was considered naive such as sexual abuse, younger children were rated more credible than adults. Using more than 600 simulated jurors who read simulated criminal cases, Leippe and Romanczyk (1989) reported that younger witness age was associated with lower perceived credibility, particularly in cases that required a strong memory. Although most studies of juror perception of child witnesses have demonstrated lower credibility for child witnesses, some studies have demonstrated no relationship between witness credibility and age. In a study in which mock jurors rated the non-scripted testimony of child (ages eight to twelve years) and adult witnesses who had witnessed a staged abduction, Wells, Turtle, and Luus (1989) reported no significant relationship between the age of the witness and their perceived accuracy. The variable most closely related to jurors’ perceptions of accuracy was the confidence of the witness. This finding was replicated in a study by Leippe, Manion, and Romanczyk (1992) that reported an over-reliance on witness confidence by mock jurors attempting to judge the accuracy of children’s testimony. In a series of studies examining jurors’ perceptions of the child witness in sexual assault cases, Bottoms and Goodman (1994) reported that younger witnesses were perceived as more credible than older witnesses. The authors explained these conflicting findings as a result of an interaction between the perceived competence and perceived trustworthiness of the witness. In general, children are regarded trustworthy but not competent, leading jurors to consider their testimony less credible, particularly when the testimony requires complex memory or cognitive skills. In cases in which the witness could be deceptive, children’s lack of cognitive sophistication makes jurors perceive them as less capable of deception and more credible. In cases involving sexual abuse, in which children are presumed to have limited sexual knowledge, the presence of sexual knowledge may be interpreted by jurors as evidence of sexual abuse, enhancing the child’s credibility. Interventions designed to protect a child witness from the stress of providing courtroom testimony may have unintended effects on the credibility of the child’s testimony. Using an elegant and elaborate design involving a simulated abuse of child victims aged five to nine years, the effects of the victims testifying using closedcircuit technology were investigated in simulated jury trials (Goodman et al. 1998). Both advantages and disadvantages of using closed-circuit technology were reported. Children were less anxious and less likely to refuse to testify using closed-circuit technology; however, with some exceptions children’s testimony was more accurate when closed-circuit technology was used. The use of closed-circuit technology did not bias the jury against the defendant as the defendant had argued it

might in Maryland v. Craig (1990); however, the artificial nature of the study and the minor nature of the ‘crime’ could explain this finding. Importantly, closed-circuit testimony did bias the jurors against the child witnesses who perceived them as less credible than child witnesses who testified in the courtroom. The authors concluded that the use of closed-circuit technology ‘may be beneficial for some child witnesses,’ but they warn that it ‘may also limit the impact of children’s testimony on juror’s initial decisions.’

INTERVIEWING CHILD WITNESSES: PRACTICAL CONSIDERATIONS AND SPECIFIC SUGGESTIONS Preparation for interviewing a child witness In many cases, a child witness may disclose information to a medical professional as a part of routine evaluation or treatment, making it impossible to adequately prepare for an interview. Disclosures that take place in this context not only initiate investigations but also may be important evidence for court proceedings. Every state has laws requiring professionals to report suspected child abuse to the state’s child protective agency. When a child discloses abuse, a natural instinct of many professionals is to attempt to further question the child, both to clarify the child’s statements and to attempt to gather information for law enforcement. Attempting to conduct an extensive forensic interview without preparation and immediately after a child makes a disclosure of abuse has numerous risks. The most important of these risks is the failure to preserve an adequate record of the interview, exposing any prosecution related to the child’s allegations to criticisms of bias and suggestive interviewing resulting in false allegations. Unless a medical professional has the experience and the resources necessary to interview a potential child witness, the interview should be limited to determining that the threshold for reporting abuse has been met and that enough information is available to allow the child protective agency to determine what must be done to protect the child. Subsequent interviews should be arranged by a child protection agency. Of course, all of the information that the child provides at any point should be carefully documented, including exact quotes of both the interviewer’s questions and the child’s responses whenever possible. Children’s statements and other behaviors pertaining to abuse, when obtained during a purely investigative interview may be considered hearsay and not admissible as evidence (McGough 1994). Children’s disclosures of abuse, when they occur in the context of medical evaluation or treatment, are hearsay, but may qualify for the ‘medical diagnosis and treatment’ exception to the

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hearsay rule allowing medical professionals to testify to a child’s statements. The probability that a child’s statements will qualify for the hearsay exception is enhanced if the child’s statements are pertinent to their medical evaluation, if the child understands that one purpose of the evaluation is to obtain medical treatment, and if information pertaining to the accuracy of the child’s statements is documented. Statements that do not qualify for the ‘medical evaluation and treatment’ exception to the hearsay rule may still qualify for an ‘excited utterance,’ ‘residual,’ or ‘child’ hearsay exception provided that the statements were spontaneous or if there is other evidence of the reliability of the statements (Myers, pending publication). The American Academy of Child and Adolescent Psychiatry’s Practice Parameters for the Forensic Evaluation of Children and Adolescents Who May Have Been Physically or Sexually Abused suggests that clinical and forensic evaluations must be separate to assure clear role definitions (Bernet 1997). The use of distinct evaluators to some extent may control for the effects of interviewer bias, but may effectively exclude any hearsay testimony from the forensic evaluator, potentially requiring the child to testify and participate in additional interviews. When a child will be interviewed in an investigative interview or in court, it is often possible to prepare for the interview. Perhaps the first concern of an interviewer should be the timing of the interview. The interview should take place as soon as possible to minimize forgetting, and the risk that the child’s testimony will become contaminated in some way (Poole and Lamb 1998). The duration of the interview may need to be adjusted to the child’s endurance, motivation, and capacity to pay attention (Poole and Lamb 1998). Even when a child is given breaks, it may be necessary to conduct multiple interviews to maximize the information the child is able to convey (Walker and Hunt 1998). Although multiple non-leading interviews may strengthen a child’s memory of events through repetition, this process may also introduce errors through strengthening incorrect memories, increasing the risk of intervening suggestions, and increasing the risk that the child will change their responses in an attempt to please the interviewer. The importance of videotaping the investigative interview cannot be over-estimated. This process preserves a record of the child’s testimony and allows the interview to be evaluated by both the prosecution and the defense to protect against allegations that the interviewer influenced the child witness. Standards for videotaping have been proposed and include: the use of unbiased interviewers; no editing; the use of developmentally appropriate language; the use of questions that evaluate a child’s competency and the completeness of the account; and questions that probe whether the child could have been influenced by others (McGough 1994). Although the American Academy of Child and Adolescent Psychiatry’s Practice Parameters for the Forensic Evaluation of

Children and Adolescents Who May Have Been Physically or Sexually Abused simply states ‘if possible, audiotape or videotape the interview’ (Bernet 1997), failing to videotape the interview may fall below community standards of practice for interviewers who have had time to prepare or who are conducting forensic evaluations. Interviewers should be familiar with state laws defining standards for videotaped interviews to assure that the tape will be admissible as evidence. Prior to an interview, reviewing available records to learn about the child’s development and obtain detailed knowledge of the allegations or other information that the child is being questioned about, can help an interviewer to work at the child’s level and guide the interviewer’s questioning (Saywitz and Camparo 1998). Some authors have suggested that interviewers should be blinded to the allegations to avoid bias; however, at this time blind interviewing is not commonly used and will require additional research to determine its role (Saywitz and Camparo 1998). It may be valuable for an interviewer to obtain questions from all interested parties before initiating an interview so that both prosecuting and defense attorneys’ questioning can be accomplished in a single interview. An extension of this practice allows both prosecution and defense personnel to observe the interview and provide the interviewer with follow-up questions during breaks or through some non-intrusive means of communicating with the interviewer (McGough 1994). This approach further minimizes the number of interviews, interviewers (Poole and Lamb 1998) and the risk of distorting the child’s testimony. Children should be interviewed in an appropriate setting to minimize their anxiety and maximize their ability to provide complete and accurate information. An ideal setting would be comfortable, free of distracting stimuli, and may be familiar (Saywitz and Camparo 1998). The presence of intriguing toys or other objects, while inviting, may be distracting, particularly for pre-school children or children with attention deficits. The interviewer’s clothing and other objects such as badges, clipboards, and microphones may increase the perceived authority of an interviewer, making the child more suggestible (Meyer 1997). The presence of an adult support person may reduce a child’s anxiety, and in some cases children may refuse to separate from a family member to speak to an interviewer. Family members may be potential defendants, may be strongly biased, or may even communicate their own anxiety to the child, interfering with an interview. Because of the unpredictable effects that a support person may have on a child witness, it is generally recommended that children be interviewed alone (Poole and Lamb 1998). Although interviewers may be able to control the setting of an investigative interview, very little can be done to control the setting when children give courtroom testimony. Experts may advise the court regarding courtroom interventions such as the presence of a support person or a toy and closed-circuit

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testimony for situations in which a child’s testimony may be seriously impaired due to the courtroom environment.

Questioning a child witness: interview technique The first task that a child interviewer must accomplish is an assessment of the child’s developmental level, including their ability to understand and communicate. Children’s vocabulary, grammar, and ability to comprehend complex or abstract concepts improves as they develop. Child interviewers should use a limited vocabulary (minimize polysyllabic words) with simplified sentence structures that emphasize action and minimize the use of the passive voice. Pre-school children may not understand pronouns, and interviewers should substitute more precise words (Saywitz 1995). Younger children may not have fully developed concepts of time or distance and may be unable to accurately provide information about dates, locations, or measurements (Saywitz and Camparo 1998). These abilities may be evaluated during the initial minutes of the interview to guide the developmental level of the remainder of the interview. Because children are often uncomfortable with strangers and unlikely to disclose personal information, the primary goal of the initial phase of an interview is to build rapport. It is important during the building of rapport to avoid topics that may suggest interviewer bias to the child. To minimize the child’s anticipatory anxiety, the purpose and the structure of the interview should be communicated to the child in general terms, carefully avoiding any suggestion of information that should be disclosed. Topics of conversation used to facilitate rapport should be limited to neutral topics such as the child’s favorite television program or foods (Saywitz and Camparo 1998). The interaction during this initial phase may set the tone for the remaining interview and the interviewer should use open-ended questions and be patient and attentive to the child without evaluating the content of what the child says (Sternberg et al. 1997). Following establishment of rapport between the interviewer and the child, the child’s competency to testify should be informally evaluated. The child’s competency to testify may be formally evaluated before the child testifies in court; however, an evaluation of the child’s competency to testify before an interview will add credibility to any data obtained during the interview. A child’s competency to testify may be evaluated by asking the difference between telling the truth and lying, asking the child for examples, and asking the child what will happen if they lie. This procedure requires young children to define somewhat abstract concepts and may lead an interviewer to erroneously conclude that a young witness was not competent (Poole and Lamb 1998). More appropriate questions for young children ask, using

age-appropriate language, whether simple and concrete statements are lies or the truth (McGough 1994). Lyon and Saywitz (1999) evaluated the competency to testify of ninety-six four- and five-year-old children using an illustrated identification task. Some 69 per cent of the four-year-olds and 80 per cent of the five-year-olds were able to correctly identify which illustrated characters had told the truth or lied, and an even higher proportion of each group of children (73 per cent and 87 per cent, respectively) were able to identify accurately which illustrated characters had done something ‘bad’ or would get ‘in trouble.’ The study also demonstrated that the majority of the children were unable to ‘define’ truth or lie. These data suggest that the majority of five-year-old children are competent to testify, and that the most appropriate way to evaluate their competency is with concrete, identification tasks rather than questions that require children to define terms. After evaluating the competency of the child to testify, several instructions regarding the interview are normally provided. The instructions that are provided to the child regarding the rules of the interview play an important role in preparing the child for the main portion of the interview (Walker and Hunt 1998). The child should be told to describe everything that happened and not to leave out anything. It should be emphasized that the child should only tell the truth, should not guess or lie, and that it is all right to say they do not know. The child should be told to correct the interviewer if he or she says something wrong because the interviewer does not know what happened. Before questioning a child about the event(s) of interest, many researchers suggest (and several interview protocols incorporate) a practice task (Yuille et al. 1993; Fisher and McCauley 1995; Lamb, Sternberg, and Esplin 1998; Poole and Lamb 1998). A commonly suggested practice task would be to ask a child to describe a recent event such as birthday party, holiday celebration, or school outing. The practice task allows the interviewer to evaluate the child’s abilities, and to provide feedback to the child. The child has the opportunity to practice providing complete and detailed responses to openended questions, and also to learn what will be expected later in the interview. Interviewers should refrain from using directive or specific questions during the practice task to maintain the child’s expectation of providing elaborate narrative responses to questions. During the practice task, interviewers should emphasize the accuracy and completeness of the child’s account, praising children for their effort, but carefully avoiding reinforcing specific answers (Saywitz and Camparo 1998). The crucial importance of the introductory minutes of an interview were demonstrated in a study that compared the effects of using either open-ended or direct rapport building styles on the information that alleged child abuse victims provided during an initial forensic interview (Sternberg et al. 1997). The open-ended and

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direct styles consisted of scripted interviews that were used to introduce the interview to the child; each script required approximately 7 minutes to complete. The content of the interviews was similar, but the open-ended script called for predominantly open-ended prompts rather than focused questions. In response to the same initial substantive question, children whose interviews began with the open-ended style produced more than twice as much information as children whose interviews began in the directed style. Children in the open-ended condition continued to provide more information in response to interviewer’s subsequent questions. When entering the substantive portion of the interview, interviewers must continuously monitor themselves because the manner in which children are questioned can significantly alter both the amount of information obtained and the accuracy of the information obtained. The use of questions that contain suggestions, implications of fact, or that are threatening, blaming, or otherwise emotionally laden (separate from the content of the question) should be avoided. The best way to introduce the topic of interest to the interviewer is to allow the child an opportunity to volunteer information. For example, an interviewer may ask if the child has anything they want to tell, may ask the child to tell why they are being interviewed (Poole and Lamb 1998), or may ask if anything has happened to them (Bernet 1997). This approach is often unsuccessful with very young children, requiring interviewers to introduce the topic of interest with some sort of leading question. There is no agreement among experts or researchers regarding the best way to do this; however, there is agreement that the interviewer should not repeat a child’s prior allegation. An interviewer may begin by asking a child to describe some known aspect of the crime, such as the crime scene [National Institute of Justice (U.S.) 1992]. Other approaches include discussing the child’s body parts and any injuries, asking about problems, safety or people that the child does or does not like to be with (Saywitz and Camparo 1998). Once a child begins to describe an event of interest, they should be allowed to continue without interruption, and with the interviewer patiently tolerating the child’s descriptions of peripheral or irrelevant information (Walker and Hunt 1998). Perhaps the most important decisions regarding the method of subsequently questioning children pertain to the use of and timing of open-ended and leading or directed questioning. The inevitable conclusion of a review of current research on questioning children is that a dichotomous view of openended versus directed questioning does not apply. Each technique has strengths, and the best interview technique will incorporate both styles, normally beginning with predominantly open-ended questions and progressing to more direct, but not leading questions. Some questions contain or imply much more information than others, and some questions incorporate greater bias than others. The amount of information implied in an interviewer’s

questions may have to be increased to elicit information; however, the interviewer should not alter their questions to suggest answers to questions or other biasing information, such as the interviewer’s belief that the child was sexually abused. The precise use of this continuum of questioning styles must be applied to the individual child, the interview setting, and the known circumstances of each case (Goodman and Schaaf 1997). Open-ended questions have the advantage of introducing a minimal amount of potentially suggestive or misleading information to the child. Further, a response to an open-ended question may contain more detail or provide a fuller picture of what happened than responses to narrowly phrased questions. When interviewers are restricted to using open-ended questions with young children, less information is obtained than could have been obtained by using a combination of open-ended and directed questions (Lamb, Sternberg, and Esplin 1998). In effect, children tend spontaneously to provide very few details, and pre-school children may have problems even organizing the information that they recall without the context provided by directed questions. Another reported risk of open-ended questioning is failure to provide enough information for the child to correctly place the event of interest. In this situation, the child’s responses may describe events that occurred at a different time, involved different individuals, or places or perhaps had little or nothing to do with the events of interest. Directed questioning of children has been demonstrated to produce much more complete information than open-ended questioning techniques (Poole and Lamb 1998). Careful, directed questioning provides context and directs the child to recall specific information without suggesting an answer. In practice, it is impossible to avoid suggestions with directed questions. For example, the rather neutral question ‘what did the man do?’ clearly suggests that ‘the man’ may have done something (Goodman and Schaaf 1997). Particularly when using more directed questions, it is important for an interviewer to remind children that the interviewer does not know the answer to the questions and that it is alright for children to say that they don’t know, but that they should not guess or provide incorrect information. A logical approach to questioning children is to begin interviews with open-ended questions and progress to increasingly directed questioning. Initial questions should be no more than prompts for the child to elaborate, provide more detail, to describe what happened next, or to clarify information. This approach should be continued as long as it is productive. When more specific information is required, the risk of suggestion may be lessened when the context of the directed questioning can be based on the information the child has already provided. At the end of an interview, it may be beneficial to ask a child to repeat parts of their narrative for clarification. A concluding open-ended question asking if there are other things the child would like to talk about may

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allow a child to disclose further or clarify information (Poole and Lamb 1998). Some investigators have combined techniques and research findings to produce interview protocols. The Step-Wise Interview (Yuille et al. 1993) begins with establishing rapport and practice topics, and progresses from free narrative to increasingly leading questioning followed by the use of interview aids, if necessary. This interview is integrated into the American Academy of Child and Adolescent Psychiatry’s Practice Parameters for the Forensic Evaluation of Children and Adolescents Who May Have Been Physically or Sexually Abused (Bernet 1997). Another protocol, the Cognitive Interview was developed to maximize accurate recall from adult witnesses and has been adapted for and studied with child witnesses [National Institute of Justice (U.S.) 1992]. Features of the Cognitive Interview include creating context, accepting partial information, encouraging varied paths of information retrieval, reducing distractions, and guided imagery. This interview has several conceptual advantages including practice, multiple sensory path retrieval, and the use of a flexible approach in a distraction free environment. In a study comparing children interviewed with the Cognitive Interview or a standard interview, children interviewed with the Cognitive Interview recalled 20–50 per cent more accurate information (Fisher and McCauley 1995). Some investigators warn that some components of the Cognitive Interview, such as guided visual imagery, have not been adequately studied and have the potential to be suggestive (Poole and Lamb 1998). Although the methods of questioning children that are most effective can readily be presented to interviewers or integrated into protocols, it may be difficult for interviewers to integrate them into their practice (Poole and Lamb 1998). Part of the difficulty is the uniqueness of each child who must be interviewed and the imprecise nature of establishing and maintaining rapport with children. Additionally, it is possible that the open-ended techniques that are the most effective for interviewing children are quite different from the techniques that are routinely used in day-to-day communication with children, making it difficult for interviewers to substitute new techniques. In a study that demonstrated significantly improved recall when interviewers asked a child a scripted open-ended question, interviewers shifted their style to more focused questioning immediately following the scripted portion of the interview (Sternberg et al. 1997). In this study, the children’s improved performance on open-ended questions had no effect on the interviewer’s tendency to ask more directed questions.

Special considerations for physical and sexual abuse The majority of the available child witness-related scientific literature pertains to children who are victims or

witnesses in physical or sexual abuse proceedings. Although laboratory research studies cannot simulate abuse, many designs involve suggestions of possible abuse, a medical procedure, or an event that simulates some element of abuse such as touching. The majority of the available child witness data is relevant to child witnesses in general; however, there may be specialized concerns for child witnesses who have been physically or sexually abused. The American Academy of Child and Adolescent Psychiatry has created both guidelines and a policy statement specifically for evaluation of these populations (AACAP 1988; Bernet 1997). Both of these documents describe professional qualifications of evaluators and standards of practice, including evaluation techniques and the need to protect the children involved. Evaluation of alleged sexual abuse may be complicated by social norms prohibiting discussion of sexuality by children. In a study of five- and seven-year-old girls who underwent an examination involving genital touch, few children spontaneously revealed information about the genital exam in response to open-ended questions. The majority of the children failed to reveal genital touch until they were asked directly about it (Saywitz et al. 1991). Another factor that may be associated with child abuse is the use of threats by the perpetrator to prevent disclosure or to compel a child to lie or conceal information. Pipe and Goodman (1991) reviewed literature on secrecy in children and reported that threats may occur in almost half of some samples of sexually abused children. Studies of children who were asked to keep a secret or conceal information in a laboratory setting have demonstrated that children were willing to keep secrets to protect strangers for minor reasons, leading the authors to state ‘we can only speculate on how much more potent a promise to a significant relative to remain silent, perhaps under threat of physical harm or disruption to family unity might be.’ Alleged physical abuse and sexual abuse – particularly when it occurs in a family setting – may be chronic, taking place in several episodes over months to years. A research finding that may be related to multiple episodes of abuse was reported in a study of children undergoing voiding cystourethrography. The memory of younger children who had endured multiple procedures was no different from children who had endured a single procedure; however, the memory of the younger multiple procedureexposed children was more susceptible to suggestion (Goodman et al. 1994). The most controversial interview techniques for children who have been sexually abused involve the use of props including anatomically detailed (dolls with representations of external genitalia) dolls and drawing materials. The American Academy of Child and Adolescent Psychiatry’s policy statement Protecting Children Undergoing Abuse Investigations and Testimony recognized the use of dolls and drawings as ‘communication aids’ for the courtroom (AACAP 1989). The Guidelines for the Clinical Evaluation of Child and Adolescent Sexual Abuse

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state that ‘it is not necessary to use anatomically detailed dolls,’ but goes on to describe the role of the dolls in assessments in which they ‘may be useful for eliciting the child’s terminology for anatomic parts and for allowing the child who cannot tell or draw what happened to demonstrate’ (AACAP 1988). The Practice Parameters for the Forensic Evaluation of Children and Adolescents Who May Have Been Physically or Sexually Abused reviewed literature on the use of anatomical dolls, described limited uses for them, and cautioned against using them to ‘instruct, coach or lead’ or use them as a ‘short cut to a more comprehensive evaluation’ (Bernet 1997). The use of anatomically detailed dolls has generated so much controversy that some states have incorporated guidelines (New York State Consolidated Laws 1970) or prohibitions into their statutes or case law, requiring professionals to be aware of any relevant local rules. Although there have been several studies involving anatomically detailed dolls, the results have been difficult to interpret due to conflicting findings and the absence of standardized protocols or norms. Anatomically detailed dolls may facilitate communication for children whose vocabulary does not include words for sexual organs or behaviors. However, it has been suggested that the presence of sexual organs on the dolls, combined with a child’s curiosity and exploratory behavior, may lead to sexualized play and reports of sexual behavior in children who have not been abused. It is also possible that the use of dolls, or props of any type, influences children’s testimony by distracting them or encouraging their imagination. Several studies have evaluated the use of anatomically detailed dolls in interviewing normal children. In a study comparing three- and five-year-old children’s accounts of events with anatomically detailed dolls, regular dolls and no dolls, some improvement in recall was demonstrated using both types of dolls for the older children and using regular dolls for the younger children (Goodman and Aman 1990). The authors also reported ‘the use of anatomically detailed dolls in and of itself did not increase the chances of obtaining a false report of abuse.’ In a similar study using four- and six-year-old children, no statistically significant differences in the amount of accurate information recalled were found for children interviewed with anatomically detailed dolls, anatomically neutral dolls, or no dolls (Samra and Yuille 1996). All of the children were described as ‘extremely resistant to the abuse-related leading question.’ The authors reported that children who were interviewed with either type of doll demonstrated consistent, but not statistically significant, enhanced recall of detailed information. Some studies have evaluated the use of anatomically detailed dolls in children who had been sexually abused or who had experienced potentially traumatic medical procedures. In a retrospective study, twenty-four casematched videotaped interviews of alleged sexual assault victims (average age seven years) with and without

anatomically detailed dolls were compared (Lamb et al. 1996). Although children interviewed with and without dolls provided an equivalent number of details, the children interviewed without dolls gave longer and more detailed responses to open-ended questions. In order to evaluate the effects of anatomically detailed dolls on interviews of children undergoing a painful medical procedure involving genital contact, forty-six three- to tenyear-old children were interviewed following a voiding cystourethrogram (Goodman et al. 1997). Children were much more likely to report genital contact when demonstrating with an anatomically detailed doll than in a free recall session. Five-year-old and older children recalled more correct information when using the anatomically detailed dolls than when using free recall; however, younger children actually made more errors when they used anatomically detailed dolls. The performance of the younger children using anatomically detailed dolls was so poor that the amounts of correct and incorrect information provided were not statistically different. In a review of research on the use of anatomically detailed dolls, a working group of the American Psychological Association warned against the use of anatomically detailed dolls in pre-school children because of their ‘greater tendency toward suggestibility and difficulties with symbolic representation’ (Koocher et al. 1995). The review concludes that research supports the limited use of anatomically detailed dolls ‘as a communication or memory aid.’ Ceci and Bruck (1995) reviewed more than twenty studies involving anatomically detailed dolls in both abused and normal children. These authors concluded that anatomically detailed dolls should not be used diagnostically, and described a ‘potential for serious misuse’ that could result in ‘implantation of false memories.’ The authors supported this conclusion with their own study of normal three-year-old children who were interviewed just minutes after a physical examination. Some 50 per cent of the children inaccurately reported being touched on the genitalia in response to a leading question and a prompt to ‘show on the doll.’ A child interviewer wishing to use the most conservative approach to the use of anatomically detailed dolls should simply avoid their use until research more clearly defines indications for their use and interpretation of findings (Everson and Boat 1997). If anatomically detailed dolls are used, it should be because other methods of interviewing have failed, and the older than pre-school aged child being interviewed is having difficulty verbally expressing specific anatomic details about the abuse. Sexual play with anatomically detailed dolls should not be considered diagnostic of sexual abuse (McGough 1994; Koocher et al. 1995; Poole and Lamb 1998). The use of children’s drawings in the evaluation of children who may have been abused has been less controversial than the use of anatomically detailed dolls. Drawings do not contain genitalia for children to interact with (unless the child creates them as parts of the drawing)

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and are not intrinsically sexually stimulating. Furthermore, a child who spontaneously draws explicit sexual behavior, even if never abused, must have been exposed to sexual behavior in some form in order to create the drawing. American Academy of Child and Adolescent Psychiatry guidelines and practice parameters describe drawings of persons, families, or events as ‘helpful’ in the evaluation of sexually abused children (AACAP 1988; Bernet 1997). The results of the limited number of studies evaluating the utility of drawings in investigative interviews of children are inconclusive and have reported benefits, no effect, and in some cases distraction of children (Poole and Lamb 1998).

Court testimony of a child: the role of a mental health professional When circumstances require that a child provide court testimony, a mental health professional may be involved in a variety of capacities (AACAP 1989). The child’s competency to testify may be a crucial issue, and a mental health professional may be asked to provide an opinion on this issue. Once a child is considered competent to testify, a mental health professional may be asked to provide an opinion on the best way for a child to testify, specifically addressing the risks to the child of appearing in court compared to testifying using closed-circuit technology. Attorneys may use a mental health professional to assist them in preparing to interview a child witness, maximizing accuracy, minimizing trauma and taking into consideration effects on the jury. Finally, a mental health professional may be involved in the treatment of a child’s anxiety both before and after court testimony, and may be asked to recommend appropriate interventions for the child following a court appearance. In the majority of cases, the competency of a child to testify is determined by the trial judge, but in some cases a mental health professional may be asked to make such a decision. Guidelines for evaluating a child’s competency to testify are similar to standards for adults and have been described (Myers 1993). Competency to testify requires the capacity to observe, remember, communicate, and distinguish truth from lies. Additionally, the person testifying must have an understanding of the obligation to tell the truth. The ability to observe or perceive events is present in virtually every potential witness, and this requirement almost never interferes with a child’s testimony. Children’s capacity to remember has been studied using a variety of designs that have demonstrated some deficits as well as some situations when a child’s capacity may be comparable with that of an adult. This capacity should be evaluated using both free recall and recognition tasks because children often perform better using recognition, providing a more representative sample of their capabilities. A child’s capacity to communicate may be readily underestimated by an interviewer

who uses language that is not developmentally appropriate. A child’s communication abilities may be more than adequate when language that is understandable to the child is used. A child, who communicates effectively oneon-one, may become fearful and unable to communicate when testifying in court. The ability of a child to distinguish truth from lies is often evaluated by asking the child for examples. Even very concrete responses normally qualify. An evaluation of the child’s understanding of the obligation to tell the truth commonly involves asking the child what will happen if they lie. Responses that suggest something bad will happen or the child will get in trouble normally satisfy this requirement. An innovative approach to evaluating competency in children using developmentally appropriate picture tests has demonstrated the potential to increase the number of children who are considered competent to testify (Lyon and Saywitz 1999; Gibeaut 2000). Evaluators must distinguish the competency of a child to testify from the credibility of their testimony. A child who has been interviewed with highly suggestive techniques and reports impossible or highly improbable events may still be competent to testify. The scrutiny of the court process including other evidence, cross-examination and expert testimony are used to assist the jury in determining what value to place on the child’s testimony. Court procedures and standards that are specific to children recognize both potential deficits in child witnesses and the state’s interest in protecting children from being traumatized by investigative and court procedures. A mental health professional may be the best-qualified person to make a determination regarding the impact of court procedures on children. An evaluation of this type is necessarily specific to the individual child and their circumstances. Child-specific factors that must be considered include the pre-existing mental health of the child, the presence or absence of a supportive family structure, and the child’s cognitive abilities and emotional maturity. Perhaps the most important situational factors that an evaluator must take into account are the specifics of the court proceedings. A child witness whose role was simply to testify that they had seen a stranger in a store could reasonably be expected to experience less anxiety about testifying than a child who was expected to testify as a victim of multiple incidents of forcible rape perpetrated by family members. A child who is aware of the consequences of their testimony may experience significant anxiety about testifying. For example, a child testifying in a trial in which their parents have been charged with abuse or neglect, may be acutely aware of the direct impact that their testimony will have on their future relationship with their parents. The most commonly reported responses of children to court procedures are anxiety and depression; however, these symptoms are not observed in all children. A child who is distraught, crying or otherwise traumatized during a forensic interview could reasonably be expected to

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respond similarly when testifying to the same information in a courtroom in the presence of a defendant. Children who develop anxiety symptoms such as sleeplessness, nightmares or somatic complaints that worsen as a court date approaches are candidates for some type of treatment or intervention. First-line interventions include psychiatric treatment of the disorder and/or an educational program that may familiarize the child with court procedures. If these interventions fail, alternative means of testifying including the use of closed-circuit technology, testifying with a support person, or in severe cases recommending against the child testifying, may be considered. A recommendation against testifying should be considered very carefully because some studies have demonstrated improvement in anxiety after testifying and because failure for the child to testify could result in a failure to convict a guilty defendant, potentially re-uniting the child with a perpetrator. When a decision is made to use closed-circuit testimony, a mental health professional may also advise the court regarding whether two-way (witness can see the defendant) or one-way (witness cannot see the defendant) closed-circuit technology should be used. A mental health professional may also play a role as a consultant or an advisor to attorneys or other court personnel involved with child witnesses. Attorneys may benefit from instruction about how to question a child in a developmentally appropriate way, including strategies to obtain the most accurate testimony. Attorneys should be advised to elicit information in the same way that other child witness evaluators should; starting with ageappropriate open-ended questions and carefully using directive questions as needed, always using age-appropriate language. After a child has testified or has been involved in other court proceedings, mental health professionals may be asked to recommend or provide psychiatric treatment. When a family member has been involved in the court proceedings, a mental health professional may be asked to make recommendations regarding future contact with an alleged perpetrator.

Expert testimony pertaining to the testimony of a child witness An expert witness may be asked to give testimony to support or cast doubt on testimony provided by a child, or simply to provide background information regarding child development, interviewing techniques and testimony (McGough 1994). As with any forensic evaluation, an expert should remain neutral, avoiding one-sided statements that indicate children are always correct or incorrect. Balanced expert testimony will describe children’s strengths and weaknesses and then apply this information to the specifics of the child’s case. An expert should be prepared to support his or her conclusions with relevant research, but also be able to explain how the research applied or did not apply to the situation in question.

The most common areas in which there is controversy are children’s memories and the risk of false allegations through suggestible interviewing. A summary of four general recommendations for experts testifying on these issues has been suggested by Ceci and Bruck (1995). First, an expert should advise the court that ‘there are reliable age differences in children’s suggestibility with pre-schoolers being more vulnerable than older children.’ Second, young children can provide accurate reports, but they may provide erroneous reports of incidents involving even very salient events involving their own bodies when influenced by suggestive interviewing. Third, an expert should describe measures that can be used by interviewers to minimize suggestibility such as minimizing the number of interviews and the use of suggestive questions. Finally, an expert should describe the variability and complex interrelationships between the factors affecting a child’s testimony, urging caution in applying research findings. A complete description of factors that may influence a child’s testimony will include factors related to both the child, the context of the interview, and other social factors. Important child-specific variables are the child’s age and development. Less easily quantified variables include the child’s memory capabilities, their susceptibility to suggestion, and their level of anxiety or other psychopathology. Interview variables that may influence the accuracy of a child’s testimony include the timing and type of questions used, the expectations style or biases of the interviewer, and the appropriateness of the interview setting. Other variables that may be important include the availability of social support and the possibility of witness coaching or other influences such as threats. It is important for an expert who identifies variables that could have caused a child to make a false allegation to point out to the court that the presence of these influences has no relationship to what actually happened. The presence of suggestive interviewing does not support the innocence of a defendant; it simply provides an alternative explanation for a child’s allegation.

CONCLUSIONS, FUTURE RESEARCH AND UNANSWERED QUESTIONS A consistent finding in child witness research is that children, including pre-school-aged children, often have accurate memories of events and have the potential to provide valuable information. Unfortunately, children’s abilities to understand, retain, and relate information are not fully developed. Furthermore, children relate their accounts of events in an interactive social context that has the potential to alter the child’s accounts of events through suggestion and attempts by the child to please the interviewer. It is not appropriate to ask whether or not particular children have memory deficits, are poor historians, or are suggestible. Both children and adults

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demonstrate deficits in all of these areas, and there is substantial variability in these deficits at any age. A more appropriate group of questions involve more precisely defining children’s weaknesses and defining strategies to improve their performance. Children’s ability to testify – like the majority of their abilities – lies on a developmental continuum, with the most significant deficits consistently evidenced in preschool-aged children. Research has focused on preschool and school-aged children, perhaps because they demonstrate the greatest deficits, or perhaps because this is the period when the most relevant cognitive and emotional development is occurring most rapidly. Studies evaluating memory or suggestibility in older children sometimes demonstrate abilities that are similar to adults; however, typically they demonstrate some deficits compared with adults. The abilities and deficits of adolescents have not been adequately studied and have not been well defined. Although most studies suggest that adolescents are quite similar to adults, it is possible that factors such as peer pressure, sexuality and response to authority may play different roles in interviews of adolescents. A major area of research on child witnesses has focused on defining the best ways to obtain information from children. There are ways to approach a child witness to maximize their memory performance and minimize the risk of altering their accounts. The findings of these studies consistently underscore the importance of developmentally appropriate interview techniques. A professional who interviews children cannot rely on a single format for interviewing. Instead, the professional will have to learn a variety of interview techniques for the different ages and developmental levels of the children who are interviewed. These techniques cannot be applied blindly based on the child’s age or measured intelligence; instead, they must be used in an interactive way based on the developmental level of the child being interviewed and the child’s behavior during the preceding portions of the interview. Further complicating the task of interviewing children is the finding that open-ended questioning may be counter-intuitive and that apparently innocuous questions or behavior may adversely affect the account of the child. These factors require a child interviewer to be continuously vigilant of their questions and behavior in a setting that is often so emotionally charged that makes it difficult for even experienced interviewers to remain neutral. Although research is available to provide interviewers broad guidelines for questioning children, there is little or no specific information available to guide interviewers during the substantive phases of interviewing. Additionally, the majority of studies of interviewing child witnesses have focused on alleged victims of sexual assault; there is very little information available describing interviews of child witnesses in other criminal or civil matters. Legislative and judicial trends increasingly allow the admission of testimony from children. To reduce the risks

associated with allowing more children and younger children to testify, there is an increasing role for mental health professionals to advise the court regarding both the appropriateness of allowing the testimony and the best way to obtain the testimony. When a child does provide testimony, a mental health professional may advise the court regarding the strengths and limitations of the child’s testimony. Additionally, there is increasing recognition of an interest in protecting child witnesses from the trauma of interviews and testifying. Again, a mental health expert may advise the court regarding the risks of testifying for the child and the appropriateness of interventions to reduce these risks. Together, these legal trends support an increased role for mental health professionals with an expertise with child witnesses. Many studies of children’s suggestibility, while generally reporting some resistance to suggestion for personally relevant events, have indicated that one subject or a very small number of subjects were highly suggestible. These children not only endorsed interviewer’s suggestions but also were described in some cases as elaborating and spontaneously inventing details. Future studies to help to identify and characterize this group of children are needed. Another important area for future research will involve studies of the eyewitness testimony of children with psychiatric illnesses or developmental disabilities. These studies may be particularly important because children who provide eyewitness testimony are often victims. These victims may be at an increased risk of developing a variety of psychiatric disorders including depression, anxiety disorders, and dissociative disorders. It is important for new studies to begin to define how the presence of a psychiatric disorder affects a child’s memory and suggestibility. A controversial extension of research on the suggestibility of children involves the longitudinal course of patients who have been interviewed with suggestive techniques. What happens to children’s real or false traumatic memories as they age into adulthood is currently unknown.

REFERENCES AACAP. 1988: Policy Statement: Guidelines for the Clinical Evaluation of Child and Adolescent Sexual Abuse. Internet: http://www.aacap.org/publications/policy/ Ps22.htm AACAP. 1989: Policy Statement: Protecting Children Undergoing Abuse Investigations and Testimony. Internet: http://www.aacap.org/publications/ policy/ps17.htm Baker-Ward, L., Hess, T.M., Flannagan, D.A. 1990. Cognitive Development 5, 55–69. Bernet, W. 1997. Practice parameters for the forensic evaluation of children and adolescents who may have been physically or sexually abused. Journal of the

438 Family law and domestic relations American Academy of Child and Adolescent Psychiatry 36, 37S–56S. Binet, A. 1900: La Suggestibilité. Paris: Schleicher. Binet, A., Simon, T., Terman, L.M. 1980: The Development of Intelligence in Children. Nashville, Tennesse: Williams Printing Co. Bottoms, B.L., Goodman, G.S. 1994. Journal of Applied Social Psychology 24, 702–32. Bradley, A.R., Wood, J.M. 1996. How do children tell? The disclosure process in child sexual abuse. Child Abuse and Neglect 20, 881–91. Brainerd, C.J., Ornstein, P.A. 1991. In Doris, J., et al. (eds), The Suggestibility of Children’s Recollections. Washington, DC: American Psychological Association, 10–20. Brainerd, C.J., Kingma, J., Howe, M.L. 1985. Storageretrieval processes of normal and learning-disabled children: a stages-of-learning analysis of picture-word effects. Child Development 56, 1120–33. Bruck, M., Ceci, S.J. 1999. The suggestibility of children’s memory. Annual Review of Psychology 50, 419–39. Bussey, K. 1999. Child Development 70, 1338–47. California Codes, Title 10 Penal 1346-1348.5 (1995). Carter, C.A., Bottoms, B.L., Levine, M. 1996. Law and Human Behavior 20, 335–58. Ceci, S.J., Bruck, M. 1995: Jeopardy in the Courtroom: A Scientific Analysis of Children’s Testimony. Washington, DC: American Psychological Association. Ceci, S.J., Huffman, M.L. 1997. How suggestible are preschool children? Cognitive and social factors. Journal of the American Academy of Child and Adolescent Psychiatry 36, 948–58. Ceci, S.J., Loftus, E.F., Leichtman, M.D., Bruck, M. 1994. The possible role of source misattributions in the creation of false beliefs among preschoolers. International Journal of Clinical and Experimental Hypnosis 42, 304–20. Ceci, S.J., Huffman, M.L.C., Smith, E., Loftus, E.F. 1996: In Pezdek, K., Banks, W.P. (eds), The Recovered Memory/False Memory Debate. San Diego, CA: Academic Press, Inc., 225–44. Coy v. Iowa, 487 U.S. 1012 (1988). DeLoache, J.S. 1995: In Zaragoza, M.S. (ed.), Memory and Testimony in the Child Witness. Thousand Oaks, CA: Sage Publications, 298. Dent, H.R., Stephenson, G.M. 1979. British Journal of Social and Clinical Psychology 18, 41–51. Everson, M.D., Boat, B.W. 1997. Applied Cognitive Psychology 11, S55–S74. Federal Rules of Evidence, Title 28 U.S.C.A 601-615 (1984). Fisher, R.P., McCauley, M.R. 1995: In Zaragoza, M.S., Graham, J.R., et al. (eds), Memory and Testimony in the Child Witness. Thousand Oaks, CA: Sage Publications, Inc., 141–59. Fivush, R., Shukat, J.R. 1995: In Zaragoza, M.S., Graham, J.R., et al. (eds), Memory and Testimony in the

Child Witness. Thousand Oaks, CA: Sage Publications, Inc., 5–23. Fivush, R., Hamond, N.R., Harsch, N., Singer, N. 1991. Discourse Processes 14, 373–88. Flin, R., Boon, J., Knox, A., Bull, R. 1992. The effect of a five-month delay on children’s and adult’s eyewitness memory. British Journal of Psychology 83, 323–36. Garven, S., Wood, J.M., Malpass, R.S., Shaw, J.S., III. 1998. More than suggestion: the effect of interviewing techniques from the McMartin Preschool case. Journal of Applied Psychology 83, 347–59. Garven, S., Wood, J.M., Malpass, R.S. 2000. Allegations of wrongdoing: the effects of reinforcement on children’s mundane and fantastic claims. Journal of Applied Psychology 85, 38–49. Gibeaut, J. 2000. ABA Journal 86, 24. Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982). Goodman, G.S. 1984. Journal of Social Issues 40, 9–31. Goodman, G.S., Aman, C. 1990. Children’s use of anatomically detailed dolls to recount an event. Child Development 61, 1859–71. Goodman, G.S., Schaaf, J.M. 1997. Applied Cognitive Psychology 11, S5–S20. Goodman, G.S., Goldings, J.M., Haith, M.M. 1984. Journal of Social Issues 40, 139–56. Goodman, G.S., Golding, J.M., Helgeson, V.S., Haith, M.M. 1987. Law and Human Behavior 11, 27–40. Goodman, G.S., Rudy, L., Bottoms, B.L., Aman, C. 1990: In Knowing and Remembering in Young Children. New York: Cambridge University Press, 249–84. Goodman, G.S., Levine, M., Melton, G.B., Ogden, D.W. 1991a. Law and Human Behavior 15, 13–29. Goodman, G.S., Hirschman, J.E., Hepps, D., Rudy, L. 1991b. Merrill-Palmer Quarterly 37, 109–57. Goodman, G.S., Taub, E.P., Jones, D.P., England, P., Port, L.K., Rudy, L., Prado, L. 1992. Testifying in criminal court: emotional effects on child sexual assault victims. Monographs in Social Research and Child Development 57, 1–142; discussion 143–61. Goodman, G.S., Quas, J.A., Batterman-Faunce, J.M., Riddlesberger, M.M. 1994. Consciousness and Cognition: An International Journal 3, 269–94. Goodman, G.S., Quas, J.A., Batterman-Faunce, J.M., Riddlesberger, M.M., Kuhn, J. 1997. Applied Developmental Science 1, 54–75. Goodman, G.S., Tobey, A.E., Batterman-Faunce, J.M., Orcutt, H., Thomas, S., Shapiro, C., Sachsenmaier, T. 1998. Face-to-face confrontation: effects of closed-circuit technology on children’s eyewitness testimony and jurors’ decisions. Law and Human Behavior 22, 165–203. Harris, P.L., Brown, E., Marriott, C., Whittall, S. 1991. British Journal of Developmental Psychology 9, 105–23. Henry, J. 1997. Journal of Interpersonal Violence 12, 499–512.

The child as a witness 439 Hill, F. 2000: The Salem Witch Trials Reader. Cambridge, Mass: Da Capo Press. Howe, M.L., Brainerd, C.J. 1989. Developmental Review 9, 301–40. Idaho v. Wright, 497 U.S. 805 (1990). Inhelder, B., Piaget, J. 1958: The Growth of Logical Thinking from Childhood to Adolescence; An Essay on the Construction of Formal Operational Structures. New York: Basic Books. Kentucky v. Stincer, 482 U.S. 730 (1987). Koocher, G.P., Goodman, G.S., White, C.S., Friedrich, W.N. 1995. Psychological science and the use of anatomically detailed dolls in child sexual-abuse assessments. Psychological Bulletin 118, 199–222. Lamb, M.E., Hershkowitz, I., Sternberg, K.J., Boat, B., Everson, M.D. 1996. Investigative interviews of alleged sexual abuse victims with and without anatomical dolls. Child Abuse and Neglect 20, 1251–9. Lamb, M.E., Sternberg, K.J., Esplin, P.W. 1998. Conducting investigative interviews of alleged sexual abuse victims. Child Abuse and Neglect 22, 813–23. Leippe, M.R., Romanczyk, A. 1989. Law and Human Behavior 13, 103–32. Leippe, M.R., Manion, A.P., Romanczyk, A. 1992. Journal of Personality and Social Psychology 63, 181–97. Lindsay, R.C.L., Ross, D.F., Lea, J.A., Carr, C. 1995. Journal of Applied Social Psychology 25, 870. Lyon, T.D., Saywitz, K.J. 1999. Applied Developmental Science 3, 16–27. Maryland v. Craig, 497 U.S. 836 (1990). McGough, L.S. 1994: Child Witnesses: Fragile Voices in the American Legal System. New Haven: Yale University Press. Meyer, J.A. 1997: Inaccuracies in Children’s Testimony: Memory, Suggestibility, or Obedience to Authority? New York: Haworth Press. Milgram, S. 1963. Journal of Abnormal and Social Psychology 67, 371–8. Milgram, S. 1965. Human Relations 18, 57–76. Myers, J.E.B. 1993: Behavioral Sciences and the Law 11, 121–33. Myers, J.E.B. (pending publication): In Reece, R.M., Ludwig, X. (eds), Child Abuse: Medical Diagnosis and Management. Philadelphia: Lippincott, Williams & Wilkins. National Institute of Justice (U.S.). 1992: New Approach to Interviewing Children: A Test of its Effectiveness. U.S. Department of Justice Office of Justice Programs National Institute of Justice, Washington, DC. New York State Consolidated Laws, Article 60 – Rules of Evidence and Related Matters Criminal Procedure 60.10-60.76 (1970). Peters, D.P. 1991: In Doris, J., et al. (eds), The Suggestibility of Children’s Recollections. Washington, DC: American Psychological Association, 60–76.

Peterson, C., Bell, M. 1996. Children’s memory for traumatic injury. Child Development 67, 3045–70. Peterson, C., Biggs, M. 1997. Interviewing children about trauma: problems with ‘specific’ questions. Journal of Traumatic Stress 10, 279–90. Piaget, J. 1954: The Construction of Reality in the Child. New York: Basic Books. Piaget, J. 1962. Bulletin of the Menninger Clinic 26, 120–8. Pipe, M.-E., Goodman, G.S. 1991. Behavioral Sciences and the Law 9, 33–41. Poole, D.A., Lamb, M.E. 1998: Investigative Interviews of Children: A Guide for Helping Professionals. Washington, DC: American Psychological Association. Poole, D.A., White, L.T. 1991. Developmental Psychology 27, 975. Poole, D.A., White, L.T. 1993. Developmental Psychology 29, 844. Poole, D.A., White, L.T. 1995: In Zaragoza, M.S., Graham, J.R., et al. (eds), Memory and Testimony in the Child Witness. Thousand Oaks, CA: Sage Publications, Inc., 24–43. Price, D.W., Goodman, G.S. 1990. Visiting the wizard: children’s memory for a recurring event. Child Development 61, 664–80. Quas, J.A., Goodman, G.S., Bidrose, S., Pipe, M.-E., Craw, S., Ablin, D.S. 1999. Emotion and memory: children’s long-term remembering, forgetting, and suggestibility. Journal of Experimental Child Psychology 72, 235–70. Rudy, L., Goodman, G.S. 1991. Developmental Psychology 27, 527. Runyan, D.K., Everson, M.D., Edelsohn, G.A., Hunter, W.M., Coulter, M.L. 1988. Impact of legal intervention on sexually abused children. Journal of Pediatrics 113, 647–53. Runyan, D.K., Hunter, W.M., Everson, M.D., Whitcomb, D., De Vos, E. 1994. The Intervention Stressors Inventory: a measure of the stress of intervention for sexually abused children. Child Abuse and Neglect 18, 319–29. Salmon, K., Pipe, M.-E. 1997. Props and children’s event reports: the impact of a 1-year delay. Journal of Experimental Child Psychology 65, 261–92. Samra, J., Yuille, J.C. 1996. Anatomically-neutral dolls: their effects on the memory and suggestibility of 4- to 6-year-old eyewitnesses. Child Abuse and Neglect 20, 1261–72. Saywitz, K.J. 1995: In Zaragoza, M.S., Graham, J.R., et al. (eds), Memory and Testimony in the Child Witness. Thousand Oaks, CA: Sage Publications, Inc., 113–40. Saywitz, K., Camparo, L. 1998. Interviewing child witnesses: a developmental perspective. Child Abuse and Neglect 22, 825–43. Saywitz, K.J., Nathanson, R. 1993. Children’s testimony and their perceptions of stress in and out of the courtroom. Child Abuse and Neglect 17, 613–22. Saywitz, K.J., Goodman, G.S., Nicholas, E., Moan, S.F. 1991. Children’s memories of a physical examination

440 Family law and domestic relations involving genital touch: implications for reports of child sexual abuse. Journal of Consulting and Clinical Psychology 59, 682–91. Schwartz-Kenney, B.M., Goodman, G.S. 1999. Applied Developmental Science 3, 34–46. Sorensen, T., Snow, B. 1991. How children tell: the process of disclosure in child sexual abuse. Child Welfare 70, 3–15. Starkey, M.L. 1969: The Devil in Massachusetts; A Modern Enquiry into the Salem Witch Trials. Garden City, New York: Anchor Books Doubleday & Co. Stern, C., Stern, W., Lamiell, J.T. 1999: Recollection, Testimony, and Lying in Early Childhood. Washington, DC: American Psychological Association. Sternberg, K.J., Lamb, M.E., Hershkowitz, I., Yudilevitch, L., Orbach, Y., Esplin, P.W., Hovav, M. 1997. Effects of introductory style on children’s abilities to describe experiences of sexual abuse. Child Abuse and Neglect 21, 1133–46. Summit, R.C., Miller, T.W., Veltkamp, L.J. 1998: In Miller, T.W. (ed.), Children of Trauma: Stressful Life Events and their Effects on Children and Adolescents. Madison, CT: International Universities Press, Inc., 43–60. Tedesco, J.F., Schnell, S.V. 1987. Children’s reactions to sex abuse investigation and litigation. Child Abuse and Neglect 11, 267–72. The Texas Statutes, Chapter 38 Code of Criminal Procedure 38.071 (1965). Thompson, W.C., Clarke-Stewart, K.A., Lepore, S.J. 1997. Law and Human Behavior 21, 405–26. Trask, R.B. 1975: Salem Village and the Witch Hysteria. New York: Grossman Publishers.

United States Congress, S.C.o.t.J., Subcommittee on Juvenile Justice. 1985: Child Sexual Abuse Victims in the Courts: Hearings Before the Subcommittee on Juvenile Justice of the Committee on the Judiciary, United States Senate, Ninety-Eighth Congress, Second Session on Oversight Hearings to Consider the Testimony of Children in Sexual Abuse Cases. May 2 and 22, 1984, U.S. G.P.O., Washington, DC. United States Constitution, I-XXVII Amendments. Varendonck, J. 1911. Archives de Psychologie 11, 129–71. Volkmar, F.R. 1995: In Kaplan, H.I., Sadock, B.J. (eds), Comprehensive Textbook of Psychiatry VI, Volume 2. Baltimore, MD: Wiliams & Wilkins, 2154–61. Walker, N.E., Hunt, J.S. 1998: In Thompson, C.P., Herrmann, D.J., et al. (eds), Eyewitness Memory: Theoretical and Applied Perspectives. Mahwah, NJ: Lawrence Erlbaum Associates, Inc., 55–87. Warren, A.R., Lane, P. 1995: In Zaragoza, M.S., Graham, J.R., et al. (eds), Memory and Testimony in the Child Witness. Thousand Oaks, CA: Sage Publications, Inc., 44–60. Wells, G.L., Turtle, J.W., Luus, C.A.E. 1989: In Ceci, S.J., Ross, D.F., Toglia, M.P. (eds), Perspectives on Children’s Testimony. New York: Springer-Verlag, 24–36. Wheeler v. United States, 159 U.S. 523 (1895). Whitcomb, D. and National Institute of Justice (U.S.). 1994: The Emotional Effects of Testifying on Sexually Abused Children. U.S. Department of Justice Office of Justice Programs National Institute of Justice, Washington, DC. Yuille, J.C., Hunter, R., Joffe, R., Zaparniuk, J. 1993: In Goodman, G.S., Bottoms, B.L. (eds), Child Victims, Child Witnesses: Understanding and Improving Testimony. New York: The Guilford Press, 95–115.

44 Violent adolescent offenders ROY J. O’SHAUGHNESSY

INTRODUCTION Violence in our society is rapidly developing into a major public health problem. Exact rates of violent behavior are not completely known due to the under-reporting of violent crimes to police agencies. We have witnessed varying rates of violent behavior by adolescents during the past two decades. Between the mid-1980s and mid-1990s, there was a marked increase in the rate of juvenile violence, though this rate seems to have reduced in the past few years. The rate increases have been postulated as being affected by the number of juvenile gangs, access to weapons, including guns, use of drugs (especially crackcocaine), as well as other local factors that influence rates. Adolescents and young adults are the most likely groups to commit violent offenses, and are also the most likely groups to be victims of assaultive acts. Dietz (1987) analyzed crime reports of violent behavior and found that 86–89 per cent of the offenders committing aggravated assault or simple assaults were male. Of these offenders, 20 per cent were aged less than twenty-one years. Likewise, rates of victimization were higher for males, with the highest age-specific victimization rates falling in the 16to 19-year-old group. Homicide victimization rates show similar trends, with a sharp increase in rates in adolescence and peaking in the 20- to 29-year-old group. Historically, males in the 16- to 25-year-old age group have shown the highest frequency of violent behavior. The office of Juvenile Justice and Delinquency Prevention has presented research from the Program of Research on the Causes and Correlates of Delinquency (Hawkins et al. 2000). The populations from the Denver Youth Survey and Pittsburgh Youth Study document the interconnection between delinquent activity and being a victim of violent crime (Loeber and Hay 1996; Loeber and Farrington 1998). As the rate of delinquency increased, the rate of victimization also increased, with 10–20 per cent of the two cohorts having been victimized. The studies also examined predictors of victimization, and noted that youth which participated in gang fights, carried a weapon

or had committed a serious assault themselves were more likely to be victims of crime and assaults. Likewise, selling drugs and associating with delinquent peers increased the risk of being a victim of violence. The authors conclude that identification and management of those factors leading to serious delinquent and violent behavior also may reduce victimization in that same cohort. It is beyond the scope of this chapter to examine all the factors leading to violent behavior. There are excellent reviews of studies available in the psychiatric, psychological and sociological literature (Robbins 1966; Wolfgang 1972; McMannus, Alessi and Grapefine 1984; McMannus et al. 1985; Dietz 1987; Burrowes, Hales, and Harrington 1988; Moffitt and Silva 1988; Travin, Cullen, and Melella 1988; Moffitt, Mednick and Gabrielli 1989; Moffitt 1993; Farrington and Loeber 2000). What is clear from these studies is that violence – like all other complicated behaviors – is multi-determined and is generally regarded as resulting from the interaction of a number of intrapsychic, interpersonal, biological, and social factors (Farrington and Loeber 2000). Psychiatrists are frequently asked by juvenile court judges to assess adolescents who have committed violent crimes. While issues of the adolescent’s competency to stand trial (Grisso, Miller, and Sabos 1987) or his/her mental state at the time of the offense are occasionally raised, the courts are generally more interested in what treatment or interventions are available to reduce future likelihood of violent behavior (Wizner 1991). The psychiatrist will be asked to evaluate whether a psychiatric disorder is present, how the disorder relates to the violent behavior before the courts, and what type of treatment or other disposition may be effective. In cases of severe or chronic violent behavior, the courts will often ask for an assessment to determine if the youth shall be tried as an adult rather than a juvenile, thus exposing the adolescent to much lengthier sentences or the death penalty. Most waiver statutes require an evaluation of amenability to treatment and prediction of future likelihood of violent behavior (Barnum 1987). There are substantial scientific and ethical limitations on the ability of adequately determining

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future violent behavior, especially in adolescents. In the past few years, however, there have been a number of longitudinal studies following youth into early adulthood that have increased our knowledge base regarding factors that predict for future violent behavior (Rutter and Giller 1983; Farrington et al. 1988; Farrington 1989; Loeber and Hay 1996; Rutter, Giller, and Hagell 1998). As noted below, however, there needs to be careful consideration of utilizing such predictions in a court setting where the potential consequences are grave and where prospective studies have not yet been determined. The forensic psychiatric evaluation of adolescents in juvenile court is described elsewhere in this text. The psychiatric evaluation of individuals who have committed violent acts demands a true bio-psychosocial assessment. When examining a youth charged or convicted with a violent offense, the examiner needs a clear understanding of the interaction between the predisposing social, psychological and biological vulnerabilities with the precipitating events, including interpersonal interactions, motivations, goals and provocations preceding the actual violent behavior. This assessment, by its nature, requires examination not only of the youth alleged to have committed the violent act but also an evaluation of his family and sociocultural background. Information regarding previous psychiatric and medical assessments and treatments, prior conflicts with the law, current police reports, and victim and witness statements is essential to complete an assessment. To adequately assess an individual charged with a violent offense, the examiner must have a wide knowledge of the psychiatric, psychological and criminological research into violent behavior. Data derived from groups of violent individuals provide a reference point for the assessment of the individual, as well as assisting the examiner in areas of investigation that may be fruitful. More importantly, rough measures of prognosis, future risk and possible responsiveness to treatment may be estimated by comparing the individual to known outcomes of similar groups. A number of long-term outcome studies are now available.

LONGITUDINAL STUDIES OF DELINQUENCY Outcome studies of juvenile offenders show an increasing confluence of data regarding baseline rates of offending and patterns of behavior. Virtually all studies in North America and Europe describe a close association between violent behavior and persistent or serious criminal offending. Higher rates of both persistent offending and violence are found in males from socially deprived backgrounds who also have a history of family dysfunction with exposure to domestic violence. Family studies note high rates of criminal behavior, mental health difficulties and substance abuse in the parents of seriously delinquent youth.

While delinquent behavior by itself is a relatively common phenomenon, the majority of delinquent acts are relatively minor and the majority of offenders do not persist in offending past adolescence. A number of studies have identified subgroups of delinquents who can be considered either persistent or chronic offenders whose prognosis is decidedly different from less severe delinquents. In Wolfgang’s (1972) classic early study of delinquents, he noted a subgroup defined by committing five or more offenses. Although this group comprised 6 per cent of the youth population, they were responsible for over 50 per cent of all criminal offenses. Farrington (1989), in England, noted that 77 per cent of youth committing three or more offenses went on to become chronic adult offenders with at least four subsequent convictions. Robbin’s earlier studies (1966) noted that childhood antisocial behavior was virtually a prerequisite for serious adult antisocial behavior. She noted that those more likely to become persistent offenders began offending early, and had a high childhood frequency of antisocial behavior in a variety of different settings. The Epidemiological Catchment Area (ECA) study (1991) also noted the same predictors for adult antisocial personality disorder. In the ECA study, 71 per cent of individuals showing eight or more symptoms of conduct disorder prior to the age of six years went on to subsequently meet the criteria for antisocial personality disorder in adulthood. By contrast, 48 per cent of youth with eight or more symptoms that began after the age of twelve years went on to meet Antisocial Personality Disorder criteria. Virtually all longitudinal studies of persons committing antisocial acts indicate that violent criminals commit more of every other type of crime than non-violent criminals. In the Danish cohort study (Moffitt, Mednick, and Gabrielli 1989), the mean number of violent crimes in a criminal career varied directly with the age of first arrest for any crime. Farrington (1989) noted that violence was part of a more serious criminal tendency and the predictors for violence were similar to the predictors for general criminal behavior. The recognition that there were a small number of juveniles who committed the large proportion of offenses and violent offenses has spawned increasing research to more thoroughly study this subpopulation. The office of Juvenile Justice and Delinquency Prevention convened researchers under the direction of Drs. Loeber and Farrington, who summarized the data and research on predictors of violent offending in juveniles. Utilizing metaanalysis, the group described predictors in five separate, but related, domains. Within individual psychological factor domain, the traits of hyperactivity, impaired concentration and risk taking/reckless behavior was highly correlated with subsequent violent behavior, as was aggressive behavior in the pre-teen years, with ongoing prediction through adolescence into adult years. Likewise, early initiation of other violent behavior seemed to identify

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a subgroup that was more likely to continue engaging in violent acts. As noted above, Farrington also noted the increased rate of violent behavior in those who had committed antisocial, but non-violent, acts. Attitudes and beliefs were also noted to be predictive in those individuals who affirmed antisocial orientation or who accepted violence as an instrument that could be used to effect desired ends. Anxiety symptoms in general seemed to be negatively correlated with subsequent violence. Family factors were highly correlated with juvenile violence in some studies, although Moffat found contrasting results. Most studies have affirmed a linkage between juvenile violence and poor parenting skills marked by inconsistent parenting or lack of discipline or punitive discipline behaviors (Kazdin et al. 1987; Lahey et al. 1988a; Lahey et al. 1988b; Lewis et al. 1989). The studies have also affirmed increased delinquency and violence in those families where there is frequent conflict and poor bonding. Lack of parental involvement in the child’s life also seems to increase the future risk of violent behaviors. Social factors have also been implicated in increasing risk of violent behavior in youth. Poverty, lack of cohesiveness in the community, as well as ready availability of drugs and firearms have all been linked to increasing rates of violence. Further, exposure to violence, as well as racial prejudice has been demonstrated in past studies to increase subsequent violent behavior. Likewise, peer group influences have clearly been documented to increase rates of crime and violence in youth. Delinquent peers or affiliation with youth gangs or a delinquent subculture substantially increases the rates of delinquent and violent behaviors. The last domain, school factors, has been identified as viable predictors. Youth who do not have any affiliation to a regular school or those who have difficulties with academic achievement have higher rates of violent behavior. Further, most individuals who engage in delinquent and violent acts by their earlier teens also have a high rate of truancy and school dropout, which further impedes their abilities to obtain vocational training, which can be seen as an alternative to criminal offending. Schools in areas of high delinquency often have a contagion effect for other youth and, subsequently, a higher rate of criminal behavior and violent behavior is found. In reviewing various longitudinal studies of antisocial and aggressive behaviors, a number of conclusions can be drawn. Antisocial behavior and aggression are stable traits over time (Olweus 1979), with serious aggressive offending increasing from the mid-teens to mid-twenties. Early onset and frequency of symptoms of conduct disorder predict subsequent antisocial and aggressive behavior in adolescents and adults, and presence of mental health symptoms and/or multiple drug abuse identifies the most disturbed, multi-problem youth that also have the highest rate of antisocial and violent activity. While we are able to make relatively accurate predictions of criminal and violent behavior by identified subgroups of antisocial youth, there is sufficient movement by individuals into

and out of these groups so that individual prediction of future violent behavior is not precise. Nonetheless, the early-onset pathway defined by Patterson and colleagues (1989), or Moffitt’s (1993) life course persistent models of conduct disturbances certainly identify subgroups that carry a high risk of ongoing violent and non-violent offending. This may have significant implications for Court assessments of such youth, as well as community response to management and treatment of these subgroups.

CLINICAL CORRELATES WITH VIOLENCE The assessment of the individual charged with a violent offense begins by an analysis of the behavior itself. There is some clinical utility in borrowing concepts from animal models of aggression, such as dividing violence into ‘predatory’ types versus ‘affective’ or ‘expressive’ types. This entails an analysis of the apparent goals and motivations both consciously and unconsciously, the amount of premeditation and planning, the use of carried weapons or weapons found at the scene, and the behavior before, during, and after the violent act. Evidence of any provocation from slight to severe, real or imagined, may have significant impact on the final clinical judgment, as can an examination of the level of violence used especially if there is grossly excessive violence. The youth who coldly plans a robbery and kills the victim for monetary benefit paints a very different clinical picture from the boy who erupts impulsively following a perceived slight and subsequently inflicts multiple stab wounds upon his victim. Unfortunately, talking in detail about the offense may not be possible, especially in waiver hearings, as the youth’s lawyer may advise against such disclosures. In such circumstances valuable information may not be available and what actually happened can only be inferred from witness statements, police investigation, or autopsy reports. The evaluation of the youth must focus on the biological, psychological, and social factors relevant both to the criminal’s behavior and to his or her general functioning. Although the majority of adolescent violent offenders are diagnosed with conduct disorder, the examiner must look past the offending behavior to rule out other symptoms of psychopathology. Although past studies have identified various clinical entities in association with violent behavior, there is no single biological or psychiatric disorder that can explain any more than a small percentage of violent behaviors. In some adolescents, however, psychiatric illness may play a significant role in the expression of violent behavior. Attention deficit hyperactivity disorder (ADHD) frequently coexists with conduct disorder, and numerous studies have shown increased rates of antisocial behavior and substance abuse in youth with ADHD (Gittelman et al. 1985; Cantwell and Baker 1988; Lahey et al. 1988a;

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Lahey et al. 1988b; Mannuzza et al. 1988; Cantwell and Hanna 1989). The core symptoms of hyperactivity, impulsivity, and poor attention span render these youth vulnerable both academically and socially (Weiss 1985; Weiss and Hechtman 1986; Tailor et al. 1996). The traits of impulsivity and hyperactivity have long been associated with violent behavior. Symptoms of impulsivity may persist through adolescence and into adulthood, even when signs of hyperactivity have faded. Youth with ADHD, who are comorbid for disruptive behavior disorders present a subgroup that carries a much worse prognosis for both substance abuse and criminal and violent behaviors later in life (Vitacco and Rogers 2001). There was considerable debate in the literature as to whether ADHD with conduct disorder is the precursor of ‘psychopathy’ in adults (Lynam 1998). There is fairly clear evidence that impulsivity, as a trait, predicts strongly for conduct disturbance and ‘psychopathy.’ This area of research is still in need of more data and longitudinal studies but, certainly, the role of impulsivity in violent behavior is well established and may assist the clinician both in assessment and subsequent management of serious offenders. Treatment outcome studies of ADHD indicate that roughly 75 per cent of patients show significant improvement with sympathetic agents such as methylphenidate (Cantwell 1985a; Cantwell 1985b; Jacobvitz et al. 1990; Klorman et al. 1990; Green 1991; Cantwell 1996). It is encouraging to note that methylphenidate produces a reduction in aggressive behavior, as well as an improvement in general interpersonal functioning (Barkley et al. 1989; Gadow et al. 1990; Kaplan et al. 1990). The results are less dramatic in the adolescent population than in children, but the improvements warrant a therapeutic trial in any adolescent with ADHD. Unfortunately, methylphenidate is a drug that is easily abused, and generally should not be prescribed in drug abusers. Given that a sizeable portion of serious offenders are also polydrug abusers, alternative treatments such as clonidine or indipramine may be considered (Hunt, Mindera, and Cohen 1985; Green 1991). Current clinical practice recommends that multimodal treatment is the preferred management of ADHD (Jensen 1999). This basically combines both chronological and psychosocial interventions to optimize outcome. This has significant implications also for violent youth, in that the multimodal treatment for ADHD shares elements in common with multisystemic treatment that has been proven effective in seriously delinquent and violent youth. Improving parental functioning through parent management training, improving school functioning through intervention and placement, as well as individual training to improve social skills and control of impulses has significant benefit, not only for youth with ADHD but also for those with comorbid conduct disorder. Neuropsychiatric disorders have been linked with adolescent violence in a number of studies. Lewis et al. (1982,

1989; Lewis, Mallough and Webb 1989) found evidence of symptoms of partial complex seizure disorder in eleven of ninety-seven incarcerated delinquents and presence of paranoid thinking, hallucinations and thought disorder in many others. Lewis and colleagues found a greater number of such symptoms in the more violent youth. McMannus and colleagues (1984, 1985) noted conflicting findings in their study of seventy-one incarcerated delinquents, 70 per cent of whom were violent. In this study, gross neurological findings were uncommon and ‘soft signs,’ although present, were not related to severity of violence. McMannus et al. did note a high percentage of borderline personality disorder in their sample, and this subgroup had a greater number of violent offenses. This group was characterized by intense anger, impulsivity and self-injurious behavior. Although most studies of violent adolescents describe severe dysfunction with self-injurious behavior, distant and disturbed interpersonal relationships, emotional liability, and substance abuse, the presence of psychiatric disorders is relatively uncommon. During the past decade, there has been increasing evidence that some types of violent behavior have been associated with alterations in neurotransmitters. Reduced levels of 5-hydroxyindoleacetic acid (5-HIAA) in cerebrospinal fluid (CSF) has consistently been found in adults with impulsive violent behavior directed both toward self and others (Linnoila et al. 1983; Linnoila, DeJong, and Virkkunen 1989; Virkkunen et al. 1989a; Virkkunen et al. 1989b). Adults who were impulsively violent had significantly lower 5-HIAA levels than adults who had planned or premeditated their violent acts, and impulsive offenders who had also attempted suicide had the lowest 5-HIAA levels (Linnoila et al. 1983). Lower 5-HIAA levels were found in those who had committed multiple violent acts versus those with only one offense. Studies of CSF 5-HIAA levels are more difficult to perform in children given ethical and practical limitations, but Kruesi and colleagues (1990) have found similar findings in a group of children with disruptive behavior disorder. In this study, measures of aggressive behavior were inversely correlated with CSF 5-HIAA levels. Although no control group was available, the levels of CSF 5-HIAA in these children were significantly lower than a contrast group of children with obsessive compulsive disorder. In the follow-up study, Kruesi et al. (1992) found that low CSF 5-HIAA levels significantly predicted severity of physical aggression, even after a multi-varied analysis control for other clinical measures. Halperin et al. (1994) performed fenfluramine challenges in a conduct disordered population, but lacked a control group. He too found evidence of a different response to fenfluramine by the aggressive than by the non-aggressive group, but was unable to tell whether the aggressive group had a lower response or the nonaggressive had a simply higher response. He concluded that serotonin dysregulation appears to be a factor, but the exact mechanism is unknown. In contrast, Pine et al.

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(1996) did not find an association between boys with and without disruptive behavior disorders in the serotonin receptor density on platelets. In a follow-up study using a fenfluramine challenge, Pine, Copland, and Wasserman (1997) found an increase prolactin response consistent with Halperin et al.’s findings, and postulated that there may be developmental changes in the relationship between serotonin levels and aggressive behavior in the development from childhood to adult years. These authors also found a correlation between prolactin response and poor parent–child interactions, and also postulated a possible genetic environmental interaction that could work in tandem to affect brain chemistry. There have been promising findings in the treatment of impulsive/aggressive behavior in adults with serotonin uptake inhibiting antidepressant medications (Coccaro, Kavoussi, and Hougar 1997), though as yet these have not been duplicated in youth. Studies of the family environment of seriously antisocial and aggressive adolescents have yielded consistent results (Robbins 1966; Rutter and Giller 1983; Quay and Werry 1986; Boyle et al. 1987; Offord et al. 1987; Lahey et al. 1988a, 1988b; Robbins 1991; Rutter, Giller, and Hagell 1998). Family dysfunction with evidence of marital discord and severe and erratic disciplining practices is frequently associated with severe delinquency. Domestic violence in which the child is either the victim of physical abuse or frequently views violence in the home is described in the development of violent adolescents. Parental criminal behavior, especially in the mother, is highly predictive of serious adolescent antisocial behaviors. Rutter and coworkers (1990) reviewed the literature on genetic predisposition to antisocial behavior. Both adoptive studies and twin studies have shown a genetic influence in prediction of adult antisocial behavior, with monozygotic twins of antisocial adults showing consistently higher rates of antisocial behavior than dizygotic twins. Of note are the higher rates of antisocial behavior in the dizygotic twins of antisocial adolescents than in dizygotic twins of antisocial adults, which points to a greater role of the family environment shared by siblings in the adolescent population. Equally interesting is the finding that genetic factors appear to be more influential for chronic, minor antisocial behaviors than for major or violent offenses. Patterson, Chamberlain, and Reid (1982) describe family dynamics frequently seen in aggressive adolescents. Coercive interaction patterns are established over long periods of time. The aggressive child provokes aggressive responses in the parent, who often reinforces the behavior by becoming frustrated and giving in to the child’s demands. Promising results in the reduction of aggression have been shown in controlled studies utilizing parent management training. The parent is taught to establish consistent rules to reward appropriate behavior with positive reinforcement and to use only mild punishment to suppress negative behaviors. Although this approach

appears effective, the best results occur with prolonged treatment, but this is expensive and difficult to access. Poor results are seen in families with excessive marital discord or psychopathology. Kazdin (1987) and Kazdin et al. (1987) evaluated the effectiveness of combined parent management training with cognitive problem-solving social skills training. After one year these adolescents showed significantly less aggressive and externalizing behaviors and better overall adjustment. There is now a widespread belief that abusive and aggressive adolescents and adults are violent because they themselves were the victims of violence in their families of origin. The majority of studies comparing violent with non-violent adolescents show significantly higher rates of child abuse in the violent group. Widom (1989) carried out an extensive review of the literature on the relationship between child abuse and subsequent violence, and found multiple methodological flaws in the majority of the studies. The findings of many studies indicated a high level of subsequent violence in some abused children, but the majority of abused children did not subsequently become violent. Violent offenders had a higher rate of abusive histories than non-violent adolescents and adults, but the majority of violent persons did not have a history of being abused. The effects of emotional abuse and neglect were difficult to separate from the effects of physical abuse. Widom concluded that the empirical evidence indicating that childhood physical abuse leads to subsequent violence is sparse. In their review of the literature, Lewis, Mallough, and Webb (1989) opined that severe child abuse does not invariably lead to subsequent violent behavior. However, severe child abuse is associated with subsequent violence if there is concurrent psychological or neurological dysfunction leading to poor impulse control, mood regulation, or reality testing. In addition to evaluation of individual psychological and biological functioning and family dynamics, violent behavior must also be assessed within its sociocultural context. Rates of violent behaviors differ significantly across geographical and cultural boundaries. Wolfgang, Figho, and Sellin (1972) coined the phrase ‘the subculture of violence’ to define a sociodemographic pattern of violence. In Wolfgang’s model, groups differ in their base rates of violence because their members accept and encourage violent behavior that would be socially discouraged by other groups. In this context, violence is seen as the normal response to minor provocations or as an acceptable method of dealing with disputes. Although it is unclear if this phenomenon is found in large demographic groups, it is certainly common among certain subgroups such as youth gangs and in certain violence-plagued urban socially deprived areas. The cognitive distortions and rationalizations associated with ‘the subculture of violence’ are also seen in youth who are violent. Among many adolescent peers violence

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quickly gains acceptability, especially in an environment where ‘macho’ values dominate. Among many adolescent peer groupings, violence instills fear and a misguided notion of respect and envy at the power that a violent individual may enforce over others. In this context, violent behavior is powerfully reinforced. Many juvenile institutions, filled with antisocial aggressive youth, are breeding grounds to learn that violence is an effective tool for self-protection and advancement with rewards of power, control, and domination (Poole and Regoli 1983; Jacobvitz et al. 1990; Mutchnick and Fawcett 1990). Psychiatrists must realize that placing youth in such an environment is likely to have negative effects. Arguably, only those youth who are a persistent risk to the community should be sentenced to these types of secure custodial environments. The concept of psychopathy, which was first described by Cleckley (1976), and subsequently operationalized by Hare (1991), has gained significant interest in the assessment and management of adult violent offenders. During the past few years, there has been increasing interest in the measure of ‘psychopathy’ in adolescents, utilizing a modified version of the Psychopathy Checklist (PCL) developed by Hare. Although the published manual was not in print at the time of the writing of this chapter, there have been a number of studies utilizing the PCL-Youth Version (PCL-YV) that demonstrate good inter-rater reliability in assessing psychopathy in adolescents. The preliminary studies indicate that those youth who have a high score on the PCL-YV have much greater rates of institutional infractions, violations of probation orders, and are also much more likely to re-offend both violently and non-violently than those youth with low PCL scores. PCL scores have been utilized in a number of risk assessment instruments for adult violent behavior, and as a single factor the PCL is the most robust in predicting future criminal behavior and violent activity in adults. Whilst it is likely that PCL scores in youth will also be quite predictive, the data are still preliminary and examiners must be cautious in their interpretation of PCL scores, given that the negative impact from such interpretations may be quite profound on a particular youth. This is understandably not without ethical concern and debate and, certainly, full disclosure as to the limitations of such instruments must be provided if examiners are to use them in any court-related procedure. Psychiatrists are often asked by the courts to offer a risk assessment of an adolescent that can be used in court proceedings to determine if they should be transferred to an ordinary (adult) court or kept in juvenile courts. This is an area that has been widely developed in adult criminal forensic psychiatry, in which a combination of clinical and actuarial factors to predict future behavior has become the standard procedure. A number of such instruments are now available with benefits and limitations that are beyond the scope of this chapter. To date, there have not been any risk assessment instruments for adolescent

offenders that have been adequately researched in the literature. In our own clinic, we have been testing a prototype instrument that utilizes a combination of actuarial and clinical variables that, in turn, have been demonstrated to be predictive for violent behavior and persistent offending. These variables were derived from the longitudinal studies noted above. Refinement of the instrument will occur with prospective studies that will hopefully assist a differential weighing of each of these variables to develop a more reliable measurement of future behavior. In the interim, however, the clinician is well advised to be extremely cautious in the area of such predictions. One can use the existing longitudinal data in a generic fashion to offer rough guides to the court as to which youth present with a greater or lesser risk of re-offending (Lipsey and Derzon 1998; Loeber and Farrington 1998; Hawkins et al. 2000). While it is fairly easy to separate the very lowrisk from the very high-risk youth, the group in between – or the majority of offenders – are less easily distinguished and the reli-ability of predictions in this area is suspect.

TREATMENT Kazdin (2000) has summarized the existing literature for psychosocial treatment of severely conduct disordered or delinquent youth. Parent management training, multisystemic treatment and cognitive problem solving skills training have all been shown to have benefit in severely conduct disordered youth (Borduin et al. 1995). These have now been well established as efficacious interventions, but with both replication of results and controlled trials supporting their benefit. What is still unclear is to which of these three treatments would be indicated for a particular individual. Further, there is no clear indication as to what potential interactive benefit may be achieved by combining psychosocial interventions with medically based and pharmacological interventions. Further research needs to be offered in these areas. What is clear however is that treatments focused specifically on deficits which had been identified as criminogenic in young offender populations are the preferred interventions. Over the years, numerous pharmacological interventions have been conducted on individual patients, and there are many anecdotal reports from clinicians as to a particular agent being useful or not. Large-scale controlled studies, however, are not readily available, though there is a suggestion of efficacy in four broad areas of pharmacological intervention. The first is the use of antipsychotic medications, most notably the use of novel antipsychotics in those individuals with a high degree of irritability and, in particular, in conjunction with psychotic illnesses. The second area where clear treatment benefit has been indicated is the ADHD spectrum, as noted above. The third area of promise are those medications which directly address impulsivity issues and, in particular, the use of

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serotonin uptake inhibiting antidepressants in impulsive personality disordered adults, and possibly in youths. The fourth area of interest has been in mood stabilizers, where evidence has shown both lithium and divalproex sodium to be effective in the management of patients with mood lability or explosive temper difficulties (Campbell, Perry, and Green 1984; Campbell et al. 1995; Campbell, Kafantaris, and Cueva 1995; Donovan et al. 1997; Donovan et al. 2000). It should be noted that, in virtually all the drug studies a relatively small number of cases is available, and so it is difficult to generalize. It is equally clear that violent behavior is not a unified construct, such that the use of pharmacological agents must be based on the particular traits of the patient. Much like psychosocial interventions, it is necessary that this pharmacological intervention is tailored to those factors which seem directly related to the aggressive behavior, whether it be psychotic symptoms, impulsivity disorder, explosive mood changes or hyperactivity and impulsivity associated with ADHD.

ADOLESCENT SEXUAL OFFENDERS Adolescents charged with sexual offenses present the psychiatric examiner with unique challenges. During the past twenty years, there has been an increased interest in research on assessment, treatment and outcome of adolescent sexual offenders. There has been a growing awareness that adolescent sexual offenders commit a substantial number of crimes, with official reports estimating that adolescents commit approximately 20 per cent of rapes and approximately 30 per cent of child molestations. The interest in adolescent offenders has been accompanied by a rapid growth in the number of treatment programs (Freeman-Longo et al. 1995) such that, by approximately 1993, an estimated 800 programs had been established. Within the past ten years, a number of descriptive studies have been published that assist the examiner in assessing adolescent offenders (Becker, Cunningham-Rathier, and Kaplan 1986; Fehrenback et al. 1986; Kavoussi, Kaplan, and Becker 1988; Blaske et al. 1989). The definitions of sexual offenses vary among jurisdictions such that it is more helpful in this chapter to talk of behaviors rather than crimes. The issue facing the examiner is to determine if the behavior underlying the criminal charge indicates likely serious pathology, or may be part of experimentation and sexual discovery by an immature youth. At times, the boundary between appropriate and inappropriate behavior is not clear, especially in ‘courtship disorders.’ It is clear, however, that sexual behavior involving the use of force or violence or focused on prepubescent children is not part of any normal sexual development, and generally indicates significant underlying pathology. Many clinicians accept the general rule that an offender who is sexually involved with a victim more than four years

younger than the offender shows evidence of pedophilia. Although this general rule has great utility, it should not be inflexible, as it is not rare to find immature older adolescent boys interested in younger adolescent girls who have reached puberty and demonstrate comparative maturity. A more important issue indicating likely pathology is the offenders’ sexual interest in prepubescent boys or girls who have no evidence of secondary sexual characteristics. General descriptions of adolescent sexual offenders indicate that the majority of offenders are male, and the majority of their victims are female. Most of the victims are under twelve years of age. Assaultive behaviors may vary from non-touching type offenses, such as exhibitionism, all the way through violent rapes with penetration and physical violence. Between 46 per cent and 70 per cent of offenders will acknowledge a past history of other sexual offences at the time of assessment. Descriptive studies can be subcategorized into three areas of traits. The first is whether or not there is a sexual deviation present. The second group pertains to general antisocial orientation or behavior, and the third pertains to more generalized psychological dysfunction or problems managing in the community. Considering findings in these three main areas assist the clinician in assessing the adolescent offender and, in particular, covering some of the issues that have been identified as related to offense behavior. Deviant sexual arousal has been long noted in studies of adult offenders. In a number of these studies, adult offenders acknowledge that they began their deviant sexual interests and behaviors in their adolescence. Abel, Mittlem, and Becker (1985) described an adult sexual offender population in which the majority of the adults acknowledged the onset of deviant sexual arousal in adolescence, and 50 per cent of them admitted to sexually offending while still in their teens. While there is little doubt that many persons with paraphilic disorders have initial deviant arousal in their teens, it is unclear as to how many adolescents who commit a sexual assault actually have an underlying deviant sexual arousal. Most studies of adolescent sexual offenders show behaviors similar to their adult counterparts, and many offenders will acknowledge deviant sexual arousal when asked. Likewise, the limited studies on phalometric examination of adolescent offenders also suggest the presence of deviant arousal, even though these results are not completely comparable to adult studies (Becker et al. 1989; Becker, Kaplan, and Kavoussi 1993). Numerous studies of adolescent sexual offenders document an increase in antisocial orientation in this group. Many demonstrate similar traits to other delinquents who do not commit sexual offenses, such that conduct disorder has been diagnosed in over half the samples. Correspondingly, they show many traits commonly seen in delinquent populations, such as high rates of family instability and psychopathology, impaired peer relationships, substance abuse and a history of general and other violent offending. Likewise, follow-up studies of adolescent sexual offenders show high rates of both general offending and violent

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offending in their early adult years (Basta and Davidson 1988; Smith 1988; Gretton et al. 2001). The traits of general psychological dysfunction have been found in numerous studies. The rates of physical, social and emotional abuse have varied markedly across different studies, with estimations of physical abuse in between 25 per cent and 50 per cent of sexual offenders. Rates of sexual abuse are difficult to evaluate given the tendency to minimize such abuse by some offenders, or possibly magnify the level in those offenders who perceive such a history to possibly assist them in receiving less punishment for their offences. The exact linkage between any sexual abuse and subsequent paraphilic disorder is unclear and, certainly, most authors are of the view that this is a very complex interaction. It should be noted that most individuals who have been sexually abused do not become sexual offenders and, rather, show high rates of anxiety disorders, personality disorders and substance abuse problems. Assessment of adolescent sexual offenders is most commonly requested at a post-adjudication phase of proceedings to assist the court in both understanding the behavior and recommending possible treatment as part of a sentence. Pre-adjudication evaluations are inherently problematic and should be avoided. In the pre-adjudication assessment, the role of a psychiatrist as helper becomes bluffed with a police function and produces an ethical dilemma that is not easily solved. On a more practical note, the examiner is unlikely to obtain the cooperation and candor needed for a competent assessment if the adolescent knows that admissions may be used against him. The post-adjudication assessment requires data not normally obtained in the psychiatric assessment of the non-sexual offender. To fully examine the sexual offender, the examiner must obtain data regarding sexual fantasies and interests, extent of sexual drive as measured by frequency of sexual thoughts and masturbation, as well as sexual history and sexual behaviors. These types of data demand an effective therapeutic alliance that is difficult to achieve in sexual offenders, who are frequently highly resistant. In our clinic we routinely ask detailed questions regarding sexual fantasy, and in particular, questions about deviant fantasies. If the youth denies deviant fantasy or behaviors, we generally will stop with the inquiry and educate the youth about the nature of paraphilia disorders. We inform him of the high risk that without treatment he will likely re-offend and injure others, as well as put himself at risk for incarceration for a lengthy period. We indicate that we will provide treatment with his consent that will hopefully, although not necessarily, help him control and redirect his sexual fantasies and thereby reduce his likelihood of further offending. We then explain that he will know if he has a paraphiliac disorder if he experiences deviant sexual fantasies or behaviors. After a period of reflection, many resistant offenders will acknowledge the deviant fantasies and a therapeutic alliance can be forged.

Despite the best clinical efforts, many offenders will continue to deny their behavior. Information from police reports and victims’ statements, as well as past records, are helpful to confront the youth regarding his behavior and to make general inferences as to motivations underlying his conduct. Information obtained from family, previous therapists, and social workers can generally provide further corroboration. The actual behavior in the offense gives clues to underlying sexual arousal patterns. The offender’s object choice can be inferred from the age and appearance of the victims. The use of force, coercion, or threats – especially if it exceeds that needed to gain compliance of the victim – may indicate that aggression is part of the sexual arousal pattern. Evidence of planning of the crime is strong inference that the offender has rehearsed it in fantasy if not on previous offenses, and points to a well-established deviant fantasy pattern. When confronted by the details of the crime, a large number of offenders will acknowledge their behavior and underlying problems. Indeed, it is common for offenders to experience some relief at disclosing. The examiner should seize the moment to encourage the offender to tell his parents, with the examiner’s support, and to immediately plan subsequent treatment. Sexual physiological assessment, or phelometry, is frequently used in adult offenders (Travin, Cullen, and Melella 1988; Becker et al. 1989), but is much less commonly used in adolescent population because of ethical concerns and pragmatic difficulties. We have routinely used phalometric assessments in our juvenile sexual offender program for fifteen years and have had no significant difficulties arising from this procedure. We restrict the process to treatment assessment and planning and do not release the findings to any external agencies, in particular, to courts, as the techniques do not have sufficient validity to be used in court and may mislead the court as to the nature of the youth’s psychiatric difficulties. Although highly intrusive, sexual physiological assessment is not noxious if performed tactfully and sensitively with adequate explanation as to its utility and limitations. The technique, limitations, and ethical issues related to sexual physiological assessment are given in Chapter 73. Ethical issues are even more acute when using this assessment with adolescents. A fully informed consent by both the youth and his parents obtained without coercion is mandatory. Limiting the results to treatment planning and not including the results in court reports assists compliance and reduces the likelihood of false negatives. Compliance for subsequent treatment is also enhanced by openly discussing the results of the assessment with the youth and emphasizing the importance of treatment in reducing any deviant drive demonstrated. Adolescent sexual offenders are more similar than different from adult offenders. Treatment programs for adult offenders have emphasized cognitive behavioral techniques and/or anti-androgen medications. Similar programs

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for adolescent sexual offenders are now implemented in many clinics. Behavioral therapies such as covert sensitization or masturbatory satiation have shown benefit in reducing or controlling deviant sexual drive and fantasy. Group therapy focusing on mutual confrontation or cognitive distortions and rationalizations as well as focusing on underlying motivations and the psychological needs of offenders has become standard. Follow-up treatment emphasizing relapse prevention strategies has been utilized in many programs (Becker and Hunter 1997; Becker and Murphy 1998; Becker and Johnson 2001). Anti-androgen medications have not been used to a large extent in adolescent offenders. In our clinic we utilize them in a small number of cases and find these medications extremely helpful, especially in youth who have failed to respond to cognitive behavioral techniques. Antiandrogens are controversial in adolescents and should only be used with the fully informed consent of both the youth and his parents. In the United States, medroxyprogesterone acetate (MPA) is the most commonly employed anti-androgen, whilst cyproterone acetate is also available in Canada and Europe and generally has fewer side effects than MPA. Luteinizing hormone releasing hormone (LHRH) analogues have recently been used for the treatment of paraphilic disorders. These medications had previously been used in children suffering from precocious puberty, and no serious side effects were reported. In our clinic, we employ both cyproterone acetate and Lupron (an LHRH analogue) with the aim of reducing sexual drive to the point where the youth can control their behavior, although still have some degree of sexual functioning. We utilize these medications with great caution, given that there are no long-term studies in youth, coupled with the fact that most youth are reluctant to continue with such medications for any prolonged period of time, given the impact it has on their sexual functioning. For those youth, however, who have severe difficulties in controlling sexual impulses, these medications can provide substantial relief and, in general, we have been pleased with the clinical results on an individual case basis. In the recent literature, there has been suggestion that paraphilia may be part of a compulsive spectrum disorder (Bradford 2001). There have been studies demonstrating the efficacy of serotonin uptake-inhibiting antidepressant medications in adults with paraphilia (Greenburg and Bradford 1997), but these have not been replicated in adolescent population. Anecdotally, our experience is that youth with mild to moderate difficulties may achieve some benefit with serotonin uptake-inhibiting antidepressants, but individuals with marked difficulties in impulse control or strong sexual drives will generally require antiandrogen medications. The assessment of long-term outcome of adolescent sexual offender therapies is hampered by methodological difficulties. Most studies rely on official recidivism rates which, by nature, tend to under-report actual offending and, as a result, do not accurately reflect true rates of

recid-ivism. Of those programs where there has been follow-up, the actual rate of recidivism seems to be lower than comparative adult programs. This has intuitive logic, in that adolescent offenders have not developed as strongly an ingrained behavioral pattern as have adult offenders and have not reinforced their underlying deviant drive through repeated fantasy and behavior. Further, many adult offenders preclude development of more normalized sexual functioning by pursuing their deviant interests, while adolescents are still at a flexible stage in which treatment programs can assist them in attaining more developmentally normal and appropriate sexual behaviors. Moreover, adolescents are more easily engaged in terms of programs that may assist the development of social and interpersonal skills that have been noted to be deficient in many adult sexual offenders. While most sexual offender treatment programs utilize a cognitive behavioral model that was initially used for adult offenders, there is one small study utilizing multisystemic therapy that has shown promise. Although this study would not address any underlying deviant sexual arousal patterns, multisystemic therapy certainly does address some of the other criminogenic factors that are also associated with juvenile sexual offenders. The question as to which program may be best suited for a particular sexual offender remains open, as insufficient data are available to suggest a clear direction. As with the approach for violent offenders, it is imperative that the assessment process identifies those factors that have been associated with risk for sexual offending and minimizes them through intervention. Risk assessment of adolescent sexual offenders has become a major focus on research for adult offenders. There are now multiple actuarial-based risk assessment instruments currently used by mental health professionals to assist the court in risk assessment of adult sexual offenders but, at present there are no validated risk assessment instruments available for juvenile offenders. We have recently completed a study utilizing the PCL-YV in juvenile sexual offenders who had completed treatment in our sexual offender program. Prior to treatment, 70 per cent of the sample acknowledged a prior history of committing sexual assaults, and 22 per cent had a history of violent nonsexual assaults. At follow-up, 15 per cent of the group had gone on to commit a further sexual offense, 30 per cent a violent offense, and 51 per cent had committed nonviolent criminal offenses. The offenders with high PCL-YV scores were statistically significantly more likely to commit sexual assaults, violent assaults and non-violent offenses than those with low scores. Also of interest is that the group who had both high PCL scores and deviant sexual arousal, as measured by phalometry, formed a subgroup which showed even higher rates of both violent and general offending. Although no adult risk instruments would be appropriately used on adolescents, data have been produced from Hansen and Brussier’s (1996) meta-analysis that

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gives the clinician some assistance in reviewing those factors that have been associated with recidivism. In Hansen’s review, the strongest predictors for re-offense included sexual deviance, prior sexual offenses, a victim who is a stranger, as well as antisocial personality disorder. Failure to complete treatment also predicted for re-offending. Whether these traits will hold true in prospective studies of adolescents is unclear, but one must be cautious in utilizing these data in those situations where there may be a profound impact on the young offender. At the present time there is no hard evidence to estimate which offenders are likely to go on to develop chronic paraphilia disorders, and which offenders will benefit from treatment. Based on our experience, it is clear that even after completing treatment programs there will be a significant number of adolescents who continue to manifest denial of their difficulties and to experience deviant sexual fantasies and behaviors. From clinical experience, adolescents with more profound antisocial traits and/or adolescents with greater arousal to sexual aggression tend to do less well in treatment. The subgroup of adolescents, who are extremely aggressive sexually as well as demonstrating aggression and violence in other areas, is the most disturbed and appears to have the worst prognosis. Hence, long-term follow-up of both treated and untreated adolescents is required.

CONCLUSIONS The assessment and treatment of physically or sexually violent adolescents presents both exciting opportunities and tremendous risks. The early identification of youth who are at high risk of becoming serious and chronic violent offenders offers the ethical therapist an opportunity to interview therapeutically, with the hope that future violent behavior can be reduced. It also creates an ethical dilemma in which high-risk youth may be subject to longer incarceration in either juvenile or adult institutions where little, if any, treatment may be offered. We are now at the point where we can identify risk factors and prognostic indicators, and can make general predictions of outcome for large groups of violent adolescents. We are not, however, able to make precise predictions of outcome for individual adolescents who are violent, and so must confine ourselves to estimations of risk factors. Given that violence committed by adolescents continues to increase, there will likely be further pressure placed on psychiatrists to predict violent behavior. Treatment of violent adolescents shows some promise, though unfortunately many programs are poorly funded and inadequate to meet the needs. It is difficult to attract psychiatrists to programs treating violent adolescents, and often there is little time or funding to conduct research within these settings. By the same token, however, studies on violent behavior in general point to early identification and intervention programs as being most likely to be

effective. Logically, these interventions should be available to adolescents within the high-risk environments outlined in this chapter. Although most violent behavior is a direct product of an aversive social environment that will not be altered without significant social changes, some violent individuals have treatable disorders. Research into the biological underpinnings of ‘expressive’ violent behavior shows great promise. Likewise, removing a child from a noxious environment or intervening to reduce emotional and physical abuse and exposure to violence has been shown to be beneficial. Treating co-occurring disorders such as attention deficit hyperactivity disorder, mood disorders, or other neuropsychiatric syndromes may significantly reduce future violent behaviors. In this respect, the need for further clinical research is great.

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conduct disorder and hyperactivity. Journal of the American Academy of Child and Adolescent Psychiatry 27, 163–70. Lewis, D.O., Pincus, J.H., Shanok, S.S., et al. 1982. Psychomotor epilepsy and violence in a group of incarcerated adolescent boys. American Journal of Psychiatry 139, 882–7. Lewis, D.O., Mallough, C., Webb, V. 1989: Child abuse, delinquency and violent criminality in child maltreatment. In Cichetti, E., Carlson, V. (eds), Theory and Research on the Causes and Consequences of Child Abuse and Neglect. Cambridge, MA: Cambridge University Press. Lewis, D.O., Lovely, R., Yeager, D., et al. 1989. Toward a theory of the genesis of violence: a follow-up study of delinquents. Journal of the American Academy of Child and Adolescent Psychiatry 28, 431–6. Linnoila, M., Virkkunen, M., Scheinin, M., Nititila, A. 1983. Low cerebral spinal fluid 5-HIAA differentiates impulsive from non-impulsive violent behavior. Life Sciences 33, 2609–14. Linnoila, M., DeJong, J., Virkkunen, M. 1989. Family history of alcoholism in violent offenders and impulsive fire setters. Archives of General Psychiatry 46, 613. Lipsey, M.W., Derzon, J.H. 1998: Predictors of violent or serious delinquency in adolescents in early adulthood. In Loeber, R., Farrington, D.P. (eds), Serious and Violent Juvenile Offenders: Risk Factors and Successful Interventions. Sage Publications. Loeber, R., Farrington, D.P. 1998: Serious and Violent Juvenile Offenders: Risk Factors and Successful Interventions. Sage Publications. Loeber, R., Hay, D.F. 1996. Key issues in the development of aggression and violence from childhood to early adulthood. Annual Review of Psychology 48, 371–410. Lynam, D.R. 1998. Early identification of the fledgling psychopath: locating the psychopathic child in the current nomenclature. Journal of Abnormal Psychology 107, 566–75. Mannuzza, S., Klein, R.G., Bonagura, N., et al. 1988a. Hyperactive boys almost grown up. II: Status of subjects with a mental disorder. Archives of General Psychiatry 45, 13–18. McMannus, M., Alessi, N., Grapefine, W. 1984. Psychiatric disturbance in serious delinquents. Journal of the American Academy of Child Psychiatry 23, 602–15. McMannus, M., Brickman, A., Alessi, N., et al. 1985. Neurological dysfunction in serious delinquents. Journal of the American Academy of Child Psychiatry 24, 481–6. Moffitt, T.E. 1993. Adolescent limited and life course persistent antisocial behavior: a developmental taxonomy. Psychological Review 100, 674–701. Moffitt, T.E., Silva, P. 1988. Neuropsychological deficit and self-reported delinquency in an unselected birth cohort. Journal of the American Academy of Child and Adolescent Psychiatry 27, 233–40.

Violent adolescent offenders 453 Moffitt, T.E., Mednick, S., Gabrielli, W.S. 1989: Predicting careers of criminal violence: descriptive data and predispositional factors. In Brizer, D., Crowner, M. (eds), Current Approaches to the Prediction of Violence. Washington, DC: American Psychiatric Press, Inc. Mutchnick, R.L., Fawcett, M.R. 1990. Violence in juvenile corrections: correlates of victimization in group homes. International Journal of Offender Therapy and Comparative Criminology 34, 43–56. Offord, D.R., Boyle, M.H., Szatmari, P., et al. 1987. Ontario Child Health Study II: Six-month prevalence of disorder and rates of service utilization. Archives in General Psychiatry 44, 832–6. Olweus, D. 1979. Stability of aggressive reaction patterns in males: a review. Psychological Bulletin 86, 852–75. Patterson, G.P., Chamberlain, C., Reid, J.B. 1982. A comparative evaluation of a parent training program. Behavior Therapy 13, 638–50. Patterson, G.P., De Baryshe, B.D., Ramsey, E. 1989. A development perspective on antisocial behaviour. American Psychologist 44, 325–35. Pine, D.S., Wasserman, G.A., Copland, J., et al. 1996. Platelet serotonin 2A (5-HT2A) receptor characteristics and parenting factors for boys at risk for delinquency – a preliminary report. American Journal of Psychiatry 153, 538–44. Pine, D.S., Copland, J., Wasserman, G.A. 1997. Neuroendocrine response to fenfluramine challenge in boys. Archives of General Psychiatry 54, 839–46. Poole, E.D., Regoli, R.M. 1983. Violence in juvenile institutions: the comparative study. Criminology 21, 213–32. Quay, H.C., Werry, J.S. (eds). 1986: Conduct Disorders: Psychopathological Disorders of Childhood, 3rd edition. New York: John Wiley & Sons. Robbins, L.N. 1966: Deviant Children Grown Up. Baltimore: Williams & Wilkins. Robbins, L.N. 1991. Conduct disorder. Child Psychology and Psychiatry 32, 193–212. Rutter, M., Giller, H. 1983: Juvenile Delinquency: Trends and Perspectives. New York: Penguin Books. Rutter, M., Giller, H., Hagell, A. 1998: Antisocial Behavior by Young People. Cambridge, UK: Cambridge University Press. Rutter, M., MacDonald, H., Lecouteur, A., et al. 1990. Genetic factors in child psychiatric disorders. II: Empirical findings. Journal of Child Psychology and Psychiatry 31, 39–83. Smith, W.R. 1988. Delinquency and abuse among juvenile sexual offenders. Journal of Interpersonal Violence 3, 400–13. Tailor, E., Chadwick, O., Heptinstall, E., et al. 1996. Hyperactivity in conduct problems as risk factors for adolescent development. Journal of the American Academy of Child and Adolescent Psychiatry 35, 1213–27.

Travin, S., Cullen, K., Melella, J.T. 1988. The use and abuse of erection measurements: a forensic perspective. Journal of the American Academy of Psychiatry and Law 16, 235–50. Virkkunen, M., DeJong, J., Baraco, J., Virnoilla, M. 1989a. Psychobiological concomitants of history of suicide attempts among violent offenders and impulsive fire setters. Archives of General Psychiatry 46, 604–9. Virkkunen, M., DeJong, J., Barttco, J., Goodwin, F., Virnoilla, M. 1989b. Relationship of psychobiological variables to recidivism in violent offenders and impulsive fire setters. Archives of General Psychiatry 46, 600–3. Vitacco, M.J., Rogers, R. 2001. Predictors of adolescent psychopathy: the role of impulsivity, hyperactivity and sensation seeking. Journal of the American Academy of Psychiatry and Law 29, 374–82. Weiss, G. 1985. Follow-up study on outcome of hyperactive children. Psychopharmacological Bulletin 21, 169–77. Weiss, G., Hechtman, L.T. 1986: Hyperactive Children Grown Up. New York: Guilford Press. Widom, C.S. 1989. Does violence beget violence? A critical examination of the literature. Psychological Bulletin 106, 3–28. Wizner, S. 1991: Mental health professionals in the juvenile justice system. In Lewis, M. (ed.), Child and Adolescent Psychiatry. Baltimore: Williams & Wilkins.

Further reading Ageton, S. 1983: Sexual Assault Among Adolescents. Lexington, MA: Lexington Books. American Psychiatric Association. 1987: Diagnostic and Statistical Manual of Mental Disorders, 3rd edition revised. Washington, DC. American Psychiatric Association. 1994: American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, 4th edition. Washington, DC. Babysitters. Journalist of Child Abuse and Neglect: The International Journal 4(1). Barberee, H.E., Cortoni, F.A. 1993: Treatment of the juvenile sex offender in the criminal justice and mental health systems. In Barberee, H.E., Marshall, W.L., Hudson, S.M. (eds), Juvenile Sex Offender. New York: Guilford Press. Bradford, J.M. 2000. The treatment of sexual deviation using a pharmacological approach. Journal of Sex Research 37, 248–57. Brandt, J.R., Kennedy, W.A., Patrick, C.J., et al. 1997. Assessment of psychopathy in a population of incarcerated adolescent offenders. Journal of Psychological Assessment 9, 429–35. Cantwell, D.P., Hanna, G.L. 1989: Attention Deficit Hyperactive Disorder. In Tasman, A., Hales, R., Frances, A.J. (eds), Review of Psychiatry. Volume 8. Washington, DC: American Psychiatric Press, Inc.

454 Family law and domestic relations Chiles, J.A., Miller, M.L., Cox, G.B. 1980. Depression in an adolescent delinquent population. Archives of General Psychiatry 137, 1179–84. Coccaro, E., Siever, J., Klar, H., Maurer, G. 1989. Serotonergic studies in patients with affective and personality disorders. Archives of General Psychiatry 46, 587–99. Cohen, R., Parmalee, D., Irwin, L. et al. 1990. Characteristics of children and adolescents in a psychiatric hospital and a corrections facility. Journal of the American Academy of Child and Adolescent Psychiatry 29, 909–13. Curry, J.R., Plissier, B., Woodford, D.J., Lochman, J.E. 1988. Violent or assaultive youth: dimensional and categorical comparisons with mental health samples. Journal of the American Academy of Child and Adolescent Psychiatry 27, 226–32. Davis, G., Leitenberg, H. 1987. Adolescent sex offenders. Psychological Bulletin 101, 417–27. Elliot, D., Huizinga, S.D., Menard, S. 1989: Multiple Problem Youth. New York: Springer-Verlag. Fagan, J., Wexler, S. 1988. Explanations of sexual assault among violent delinquents. Special issue: adolescent sexual behavior. Journal of Adolescent Research 3, 363–85. Gentry, M., Ostapiuk, E.B. 1988. Management of violence in a youth treatment center. Issues in Criminological and Legal Psychology 12, 5–8. Groth, A. 1997. The adolescent sexual offender and his prey. International Journal of Offender Therapy in Comparative Criminology 21, 249–54. Groth, A., Longo, R., McFadin, B. 1982. Undetected recidivism amongst rapists and child molesters. Crime and Delinquency 29, 450–8. Henn, F.A., Bardwell, R., Jenkins, R.L. 1980. Juvenile delinquents revisited: adult criminal activity. Archives in General Psychiatry 37, 1160–3. Lee, R., Coccaro, E. 2001. The neuropsychopharmacology of criminality and aggression. Canadian Journal of Psychiatry 46, 35–42. Lewis, D.O., Shanok, S., Pincus, J.H. 1981: The neuropsychiatric status of violent male delinquents. In Lewis, D.O. (ed.), Vulnerabilities to Delinquency. New York: SP Medical and Scientific Books. Lewis, D.O., Lewis, M., Unger, L., et al. 1984. Conduct disorder and its synonyms: diagnoses of dubious validity and usefulness. American Journal of Psychiatry 141, 514–19. Lewis, D.O., Pincus, J.H., Lovely, R., et al. 1987. Biopsychosocial characteristics of matched samples of delinquents and non-delinquents. Journal of the American Academy of Child and Adolescent Psychiatry 26, 744–52.

Marriage, K., Fine, S., Moretti, M., et al. 1986. Relationship between depression and conduct disorder in children and adolescents. Journal of the American Academy of Child and Adolescent Psychiatry 25, 687–91. Martin, J.E., Kourany, F.C. 1980: Child abuse by adolescents. McConaghy, N., Basczyriski, A., Kidson, W. 1988. Treatment of sex offenders with imaginal desensitization and/or medroxyprogesterone. Acta Psychiatrica Scandinavica 77, 199–206. Messner, S.F. 1988. Topic research on cultural and socio-economic factors in criminal violence. Psychiatric Clinics of North America 11, 511–27. Miller, L. 1988. Neuropsychological perspectives on delinquency. Behavioral Science and Law 3, 409–28. Puig-Tich, J. 1982. Major depression and conduct disorders in pre-puberty. Journal of the American Academy of Child Psychiatry 21, 118–29. Quay, H.C. 1983. A dimensional approach to behavior disorders: the revised behavior checklist. School Psychological Review 12, 244–9. Robbins, L.N. 1981. Epidemiological approaches to natural history research: antisocial disorders in children. Journal of the American Academy of Child and Adolescent Psychiatry 20, 666–80. Rutter, M., Cox, G., Tuplin, G.C., et al. 1975. Attainment and adjustment in two geographical areas. I: Prevalence of psychiatric disorder. British Journal of Psychiatry 126, 493–509. Rydeluis, P.A. 1988. The development of antisocial behavior and sudden violent death. Acta Psychiatrica Scandinavica 77, 348–403. Satterfield, J.H., Satterfield, B.T., Schell, A.M. 1987. Therapeutic interventions to prevent delinquency in hyperactive boys. Journal of the American Academy of Child and Adolescent Psychiatry 26, 56–64. Shoor, M., Speed, M., Bartelt, C. 1965. Syndrome of the adolescent child molester. American Journal of Psychiatry 22, 783–9. Tardiff, K. 1987: Determinants of human violence. In Hales, R.E., Frances, A.J. (eds), Psychiatry Update Annual Review. Volume 6. Washington, DC: American Psychiatric Press, Inc., 451–65. West, D.L., Farrington, D.P.: The Delinquent Way of Life. London: Heinemann. Wong, S.E., Woolsey, J.E., Innocent, A.J., Liberman, R.P. 1988. Behavioral treatment of violent psychiatric patients. Psychiatric Clinics of North America 11, 569–81. Wolfgang, M.E., Figho, R.M., Sellin, T. 1992: Delinquency in a Birth Cohort. Chicago: University of Chicago Press.

45 Adolescent sexual offenders MEG S. KAPLAN AND RICHARD B. KRUEGER

The problem of sexual assaults committed by adolescents is serious and widespread. It is estimated that juveniles account for up to one-fifth of all rapes and almost onehalf of all cases of child molestation committed each year. In addition, youth under the age of 18 years have accounted for 10 per cent of the sexual assault/murders since 1976 (Greenfeld 1997). To avoid using ‘he/she’ pronouns throughout the text, a single pronoun is sometimes used. Since most known offenders are male, ‘he’ is primarily used; however, when there are gender differences, this is clearly stated. Otherwise we are speaking about both genders.

ETIOLOGY Although a variety of theories have been proposed to explain the etiology of sexually inappropriate interests and behavior, there is a paucity of empirical support for these theories (Kobayashi et al. 1995; Ryan and Lane 1997). The National Task Force on Juvenile Sexual Offending (1988) identified fourteen different theoretical perspectives of juvenile sexual offending. This task force later developed basic assumptions upon which treatment is based (National Task Force 1993). Although there are many theoretical perspectives, the behavioral and cognitive theories have predominated in the field of juvenile sex offender treatment; some of the other models will also be discussed below.

Social learning theory Numerous researchers cite social learning approaches as important contributing factors to the development and maintenance of atypical sexual interest (Laws and Marshall 1990). This model suggests that atypical sexual behaviors are learned in the same manner by which other individuals learn sexual behavior and expression, and can be changed by learning a new pattern (McGuire, Carlisle,

and Young 1965). Laws and Marshall (1990) posit that sexual patterns are acquired and established through Pavlovian and operant conditioning, learned from observation and modeling and shaped through differential reinforcement. Masturbatory fantasy and orgasm increases higher-order conditioning and reinforces the behavior so that it is made more powerful and refined.

Biological factors Recently, biological factors have been postulated as playing a role in the development of paraphilias. There is a paucity of such studies in either adolescents or adults. No direct biological measurements have been made in adolescents. Berlin (1988) has commented on the difficulty in performing such measures in adults. Most approaches have relied on examining the efficacy of the selective serotonin reuptake inhibitors in adolescence (Bradford 1993). One recent case study (Galli et al. 1998) described the case of an adolescent male with multiple paraphilias, obsessive compulsive disorder and bipolar type II disorder, who responded to treatment with fluoxetine, a serotonin reuptake inhibitor, after failing to respond to long-term residential treatment. This area of research shows promise.

Additional theories Psychoanalytic theory views perversion as symptomatic of unresolved childhood conflicts (Stoller 1986). Sociobiological theory sites evolutionary perspectives (Ellis and Symons 1990). Money (1984) has theorized that a paraphilia is a mental template or a ‘love map that grows awry … by the displacement of original elements’ (Money 1984, p. 178). Another factor that has been identified to help explain the development of inappropriate sexual interest is a history of physical and/or sexual abuse. A history of physical abuse has been found in 20–30 per cent of adolescents

456 Family law and domestic relations

who have committed sexual offenses and a history of sexual abuse has been found in 40–80 per cent of sexually abusive youth (Hunter and Becker 1999). Although having been abused may be a factor, it is not in itself explanatory since many juvenile and adult offenders were not sexually abused and most children who were victimized do not go on to abuse others. Exposure to family violence has been cited as a variable which may play a role in the behavior of the adolescent sex offender (Lewis, Shankok, and Pincus 1979) as well as dysfunctional family background (Loeber and Stouthamer-Loeber 1998; Caputo, Frick, and Brodsky 1999) and exposure to community violence (JohnsonReid 1998). Becker and Kaplan (1988) have described a model by which deviant sexual behavior and the development of deviant sexual arousal patterns may be explained. This model incorporates individual characteristics, family variables, and social environmental variables as possible precursors to the commission of an adolescent’s first deviant sexual act. They posit that following the first sexual offense, there are three paths an adolescent might follow: 1 The dead-end path, in which an adolescent never commits any further deviant sexual behavior. These adolescents are likely to be the ones who suffer from the most negative consequences for the behavior or for whom the behavior may have been exploratory in nature, lacking in violence and related to the lack of a peer partner or as a copycat offense (modeling). 2 The delinquency path, in which an adolescent may commit further deviant sexual acts as part of the general antisocial personality pattern. 3 The sexual interest pattern path, in which an adolescent commits further sexual crimes and develops a paraphilic arousal pattern. These adolescents are likely to be those who found the behavior to be very pleasurable, to have experienced no or minimal consequences, to have experienced reinforcement of the deviant sexual behavior through masturbation or fantasy, and also who have deficits in their ability to related to age appropriate peers. These cases may represent cases of early onset pedophilia.

CHARACTERISTICS There has been a distinction made between adolescents who molest children and those who target peers or adults. Research has shown that, in general, as with adult offenders, juvenile child molesters tend to have deficits in self esteem and social confidence (Awad and Saunders 1989; Monto, Zgourides, and Harris 1998), whereas those who assault peers or adults are more likely to have other criminal histories and are generally delinquent and conduct disordered and display higher levels of violence and aggression (Kaufman et al. 1998).

Clearly, to date there is no one theory that will explain the development of sexually inappropriate interests and behavior. Abel and his colleagues (Abel, Mittelman, and Becker 1985) found that in a group of 411 adults with paraphilias, 58 per cent had begun interest in paraphilias between the ages of 13 and 18. This points to adolescence as the time period during which paraphilias have their onset. As with adult sex offenders, juvenile sex offenders are a heterogeneous group; it is likely that many factors influence the etiology of the offender and that it is multicausal in nature.

ASSESSMENT Assessment of the adolescent sex offender requires sensitivity and expertise with particular attention to the following areas.

Forensic issues There are numerous sources of referral and reasons to conduct a specific sexual offender evaluation; therefore, it is of utmost importance that prior to the evaluation it is made clear what the referral source is requesting. For example, there is no empirically validated ‘profile’ of an adolescent sex offender. Nor can an assessment determine if a specific crime has been committed. Often, assessments are conducted to determine treatment amenability, treatment needs and risk as an outpatient. Regarding risk assessment, clinicians are frequently asked to make predictions. Again, there is to date no empirically validated risk assessment for adolescent offenders. A number of risk assessment instruments have shown promise. One of these is a juvenile sex offender protocol (JSOP) (Prentky et al. 2000).

Confidentiality Prior to beginning any assessment, the juvenile and his or her parents or legal guardian should read and sign consent forms. Limits of confidentiality should be discussed, as well as what the assessment will consist of, any negative effects that could occur, such as anxiety or depression, as well as who the assessment report will be sent to. In addition, release forms should be signed at that time, giving permission to send the report to various other interested individuals, such as the adolescent’s individual therapist. Many adolescents are mandated to receive an assessment and are therefore reluctant to talk about sexual issues and behavior. Most sex offenders do not reliably self-report their deviant thoughts and behavior (Kaplan et al. 1990). In addition to these difficulties, since many assessments are for the legal system, the adolescent does not trust the evaluator. Within the field of specialized sex offender treatment and evaluation, there are guidelines for evaluation

Adolescent sexual offenders 457

(Association for the Treatment of Sexual Abusers 1997) and a 21-factor guide to assessment (Ross and Loss 1991; Ryan and Lane 1991). These guidelines advise that evaluation should be conducted post-adjudication because if evaluations are conducted pre-adjudication, juveniles are then placed in a position where, if they reveal information, it may be used against them in a report going to the court (Hunter and Lexier 1998). Prior to an assessment, there should be a review of materials. Information should be obtained wherever possible from outside sources, such as court reports, police documents, victim’s statements and collateral interviews with family members. In addition, any psychiatric or psychological records should be reviewed. The clinician should also be sensitive to and have an understanding of ethnic, religious, sociological and cultural backgrounds of the youths they evaluate. An evaluation should include a general diagnostic assessment as well as a specialized battery of tests for sexual interest and behavior. The structured interview collects information concerning demographic characteristics, family background, criminal history, social history, drug and alcohol history, a history of all sexual behaviors including all deviant sexual behaviors and fantasies and a history of sexual and/or physical abuse. A detailed assessment for adolescent sex offenders has been described (Becker and Kaplan 1988). In addition, the clinical interview should include a detailed description of the sexual offense including what the adolescent’s thoughts and feelings were prior to and following the offense. The assessment should also include the following.

Psychiatric history A number of adolescent sex offenders present with comorbid psychiatric problems which may respond favorably to pharmacological interventions. Several studies have found high rates of conduct disorder (Kavoussi, Kaplan, and Becker 1988; Galli et al. 1999), depressive and psychotic symptoms (Lewis, Shankok, and Pincus 1979), and mood disorders and attention deficit with hyperactivity disorder (Galli et al. 1999). It is also important to assess for psychopathology, peer relations, anger impulse control, behavioral problems, intelligence and cognitive ability.

Family assessment Areas of concern in family assessment which should also be evaluated are over-involvement, isolation, intergenerational sexual and/or physical abuse, emotional deprivation, abuse of power, family members’ perceptions of sexual abuse and reaction of family to disclosure (Thomas 1997). In assessing the family, it is also important to assess the current living arrangements in order to determine if the offender has access to his or her victim.

Self-report measures In addition to a general psychological assessment, specific sex offender instruments have been developed for assessment. These are: 1 The Adolescent Cognition Scale (Hunter et al. 1991). This is a true–false test developed to determine if the adolescent has any faulty beliefs regarding sexual behavior. An example would be ‘if a young child does not tell others about having sex with me, it means they really like it and want to keep doing it.’ Research has suggested that sexual offenders develop belief systems which support continued sexual behavior with children. 2 The Adolescent Sexual Interest Card Sort (Becker and Kaplan 1988) is a self-report test with sexual vignettes which the adolescent rates as arousing or not arousing on a five-point scale. The card sort gives the patient an opportunity to indicate deviant sexual interests without having to disclose them verbally to the interviewer (Hunter, Becker, and Kaplan 1995). Other general assessment instruments that are used with this population are the following:

• • • • •

MMPI-A (Archer 1997). Child Behavior Checklist (Achenbach, McConaghy, and Howell 1987). The Beck Depression Inventory (Beck et al. 1961). Matson Evaluation of Social Skills in Youngsters (Matson, Esveldt-Dawson, and Kazdin 1983). The Multiphasic Sex Inventory (Nichols and Molenda 1984).

Adjunctive assessment tools that are used to assess this population are the polygraph and the plethysmograph. Plethysmography is used to measure sexual arousal by measuring erection responses to erotic stimuli (audiotapes or slides) in the laboratory. In general, this assessment is used with youth over age 16 years, who report multiple paraphilic interests and who have extensive sexual offending histories in order to help develop treatment needs (Becker et al. 1992; National Task Force 1993). Regarding polygraphy, to date there are few empirical data available on the use of the polygraph with juvenile sexual offenders, the procedure being used more often with adult offenders (Blasingame 1998; Ahlmeyer et al. 2000).

TREATMENT In recent years, many specialized programs have been developed to treat the adolescent offender (Knopp 1982). Research indicates that treatment should be highly structured and designed specifically for sexual offenders (Ryan and Lane 1997). Peer groups are the preferred

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method of treatment by 98 per cent of juvenile and adult sex offender programs (Knopp 1982). Various treatment modalities have been utilized with adolescent sexual perpetrators. Freeman-Longo and his colleagues (1995) surveyed the main treatment models used with juvenile offenders by providers. The models reported in this survey were cognitive-behavioral (41 per cent), relapse prevention (36 per cent), psychosocio-educational (14 per cent), psychotherapeutic (5 per cent), family systems (2 per cent), sexually addictive (1 per cent), and psychoanalytic (1 per cent). Currently, the most accepted form of treatment is cognitive behavioral therapy with relapse prevention. Behavioral literature for adult offenders utilizes three principal approaches to the treatment of paraphilic behavior, which have been incorporated and modified for the treatment of adolescents. These are: 1 Decreasing atypical arousal through covert sensitization and satiation (Barlow, Leitenberg, and Agras 1969). 2 Increasing arousal to peers. 3 Teaching appropriate peer related skills by social skill training, sex education and assertiveness training (Tollison and Adams 1979; Barlow and Abel 1976).

occurred from the beginning of the offenses to the end to help him identify the earliest aspects of the deviant act in order to be able to stop before his urges get out of control. Each adolescent develops his own script of: (i) risk factors; and (ii) negative consequences in therapy. After the script has been developed with the therapist, the adolescent then in private records his verbalization of this script, which the therapist then reviews with him. Each successive audiotape builds on the previous one, including more and more details and emotional material as the adolescent becomes aware of it. In the audiotape, first the risk factor script is verbalized and then the adolescent says the word ‘switch’ to transition into the negative consequences script, which is then verbalized. An example would be: (i) risk factor ‘I am feeling really angry that I have to baby-sit, I want to be out partying. I think I will play wrestling with this little boy and teach him a lesson.’‘Switch.’ (ii) consequences,‘I am really scared sitting here in jail. I want to go home. All of this is happening because I took my anger out on the little boy I was baby-sitting for.’

•

Specific behavior therapies The primary goal of each of the following techniques is to help the offender reduce his sexual arousal to inappropriate sexual fantasy. Preliminary research from one study indicates that a deviant sexual arousal pattern is common among adolescent offenders who have molested young boys and who have a history of sexual victimization themselves (Becker 1988; Becker, Kaplan, and Tenke 1992). A cognitive behavioral outpatient treatment program for adolescent sexual offenders has been described by Becker, Kaplan, and Kavoussi (1988) and Becker and Kaplan (1993) in which they examined the utility of a seven-component cognitive behavioral weekly outpatient treatment program. The components of this program include:

•

Covert sensitization: This is a form of therapy originally used with an adult offender population (Abel et al. 1984). It is a behavioral technique that is used to pair deviant sexual urges with highly negative social consequences by teaching the adolescent offender to associate and anticipate real life negative consequences of the sex offense with the urge to offend. By frequent pairings of the deviant fantasy and a negative event, the fantasy acquires negative images and becomes less pleasurable.

It is common for male adolescents to believe that the offending ‘just happened.’ This technique also teaches the adolescent his specific chain of events and the steps that

•

Verbal satiation: Satiation is a technique used to reduce sexual arousal to inappropriate fantasy. This procedure has been modified from the technique used with adult offenders called masturbatory satiation (Abel et al. 1984). Verbal satiation teaches the adolescent offender how to use inappropriate fantasies in a repetitive manner to the point of boring himself or satiating his own fantasies. This procedure has been found to be effective with a group of adolescent sex offenders (Kaplan, Becker, and Tenke 1991). Cognitive restructuring: When adolescents engage in deviant sexual behaviors, they develop beliefs or faulty cognitions in order to rationalize their behavior. Cognitive restructuring is a process of confronting and changing these rationalizations or distortions. This treatment was originally conducted with adult offenders (Abel et al. 1984) and has been modified for adolescents.

Additional behavioral methods that are used to help adolescents rehearse methods of coping with deviant urges are thought-stopping and rehearsal of the positive consequences of non-offending.

Non-sexual components of treatment Treatment programs also incorporate other modalities aside from the above-mentioned behavioral methods. These include:

•

Social skills training: The interpersonal skills of the adolescent perpetrator are an important factor in treatment. Deficits in these skills may result in alienation and a lack of appropriate peer-aged relationships. The goals of this treatment component are to

Adolescent sexual offenders 459

•

•

•

help the juvenile develop pro-social skills. Many adolescent offenders are under-socialized, while others have adequate social skills but use them to manipulate others. Topics covered in this component of treatment are effective ways of communication, listening skills, initiating conversations, body language and sharing feelings. Anger control and assertive training : Failure to manage anger in a constructive way increases the likelihood of the juvenile perpetrator displacing his aggressive impulses onto a victim. The goal of this component of treatment is to help the adolescent recognize his feelings and to develop alternate appropriate responses that are socially acceptable. Many adolescents either react to anger by responding aggressively or by being passive rather than assertive. Many adolescents have difficulty recognizing their own anger. This component of therapy addresses these problems. Sex education: Adolescent offenders have been shown to have deficits in sexual knowledge, beliefs and attitudes (Kaplan, Becker, and Tenke 1991) and to believe in many myths regarding human sexuality. The purpose of this component of therapy is to help adolescent sex offenders better understand themselves by focusing on social, sexual and health issues currently facing them. The goals of this component of therapy are to: (i) increase knowledge about adolescent sexual development, anatomy and physiology; (ii) broaden knowledge about sexual myths and learn ways to prevent unwanted pregnancy and sexually transmitted diseases; and (iii) to become more aware of attitudes and clarify values about sexuality. Additional factors that should also be addressed are distorted beliefs about appropriate sexual behavior and sexual knowledge, values, and attitudes. A study by Rotheram-Borus and her colleagues (1991) found that adolescents in a male adolescent sex offender population scored significantly lower than male adolescent runaways in general knowledge about AIDS and were not able to discriminate safer sexual behaviors from those that were less safe. Since HIV is a threat in our society and to the adolescents being treated, it is suggested that AIDS education be added to any sex education curriculum. Victim empathy: Empathy has been identified as an important factor in sexual offenders (Marshall, O’Sullivan, and Fernandez 1996). However, there is little empirical research on empathy training for adolescent offenders. One recent study (Way 1999) suggested that unresolved maltreatment issues may be associated with lower empathy for victims. Victim awareness and increased understanding of negative impact of abuse may help motivate these adolescents to work on treatment. According to Ryan (1999) and Barbaree, Hudson, and Seto (1993), treatment in a developmental/contextual perspective allows the juvenile to recognize the needs of others.

Additional therapies The following section will briefly describe the most popular of the non-cognitive behavioral treatments. However, there is little or no empirical research that supports their use.

•

•

•

•

Psychodynamically oriented psychotherapy: Although group treatment is recommended for all sexual perpetrators (National Task Force 1993), many adolescents may also benefit from individual therapy which can help them deal with their own victimization as well as personality problems and interpsychic conflicts. Family systems therapy: Here, the emphasis is on family therapy and family dynamics. According to Thomas (1997), who proposes a five-stage model, one pre-requisite must always be that the sexually abusive youth is also in a specific therapy. Thomas states that for adolescent perpetrators, the goals of family therapy are to provide support for the sexually abusive youth, to help them continue in treatment, to identify and interrupt the family patterns that allowed or supported the sexual abuse, to improve family relationships and to maximize family strengths, and provide information for relapse prevention (Thomas 1997). Sexual addiction model: According to a survey by the Safer Society (Freeman-Longo et al. 1995), only four programs that were surveyed (1 per cent of the total) identified the addiction or 12-step program model as being used primarily with adolescents. This model proposes that an adolescent is ‘addicted to sex.’ The treatment is similar to the 12-step programs used by alcoholics and drug users (Carnes 1991; Carnes 1992). Relapse prevention model: Relapse prevention (Pithers 1990; Laws, Hudson, and Ward 2000) is helpful in the final stages of treatment. In this component, the adolescent identifies high-risk situations and thinking and develops methods of coping with them and understanding his or her sexual abuse cycle. The adolescent also identifies specific situations to avoid.

TREATMENT OUTCOME There are many different recidivism rates in the sex offender field, which have led to confusion and pessimism. Part of this has to do with treatment methods which vary from study to study. There are widely disparate populations (prison populations versus outpatients). Much research is preliminary in nature with imperfect statistical design. Becker and Kaplan (1988) reported one year posttreatment follow-up data which indicated that treatment is effective according to self-report, rearrest and plethysmographic data. Of the first 300 adolescents evaluated, 68.3 per cent (n ⫽ 205) entered treatment, although only

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27.3 per cent (n ⫽ 56) attended 70–100 per cent of the scheduled therapy sessions. Recidivism rates of one-year post-treatment were low. According to self-reports and reports from parents and criminal justice agencies only 9 per cent had recommitted sexual crimes (Becker 1990). In a more recent study Hunter and Figueredo (1999) found that up to 50 per cent of juveniles in an outpatient program were expelled during their first year, but only 4.9 per cent for sexual delinquency. Lower levels of denial at the intake predicted compliance with treatment. In a recent review of treatment outcome studies Alexander (1999), in examining studies of 1025 juvenile sexual offenders, found a recidivism rate of 7.1 per cent of treated subjects. In examining recidivism rates by type of intervention, she found that group behavioral treatment had a 6.8 per cent recidivism rate, and relapse prevention a 9.8 per cent recidivism rate. When separating juveniles treated in prisons from those treated in hospitals, the former subgroup had a 6.9 per cent recidivism rate, those from hospitals an 8.5 per cent rate, and those from outpatient clinics a 6.3 per cent rate. Recidivism rates rose over time for juveniles. According to these data, juveniles responded well to treatment: ‘The demonstrated efficacy of juvenile offender treatment programs is a strong argument for their continued existence.’ (Alexander 1999, p. 110).

CONCLUSION There is increasing awareness of the need for early specialized therapeutic intervention with adolescent sexual perpetrators. Cognitive behavioral therapy appears to be the most effective treatment for these youth, and the most available treatment in the United States. Early intervention, while adolescents are in the early stages of the development of their sexually aggressive behavior, is critical, since patterns of such sexual interest and behavior become ingrained at this time. Not only can these aggressive patterns be addressed and treated through such early intervention, but further victimization can also be prevented.

REFERENCES Abel, G.G., Becker, J.V., Cunningham-Rathner, J., Rouleau, J.L., Kaplan, M., Reich, J. 1984: The Treatment of Child Molesters. Available from the Sexual Behavior Clinic at the New York State Psychiatric Institute, New York, NY. Abel, G.G., Mittelman, M.S., Becker, J.V. 1985: Sexual offenders: results of assessment and recommendations for treatment. In Ben-Aron, Hucker, Webster (eds), Clinical Criminology. Toronto, Canada: M.M. Graphics, 191–205.

Achenbach, R., McConagahy, S., Howell, C. 1987. Child and adolescent behavioral and emotional problems: implications of cross informant correlations for situation specificity. Psychological Bulletin 101, 213–32. Ahlmeyer, S., Heil, P., McKee, B., English, K. 2000. The impact of polygraphy on admissions of victims and offenses in adult sexual offenders. Sexual Abuse: A Journal of Research and Treatment 12, 123–38. Alexander, M.A. 1999. Sexual offender treatment efficacy revisited. Sexual Abuse: A Journal of Research and Treatment 11, 101–16. Archer, R. 1997: MMPI-A: Assessing Adolescents’ Psychopathology, 2nd edition. Mahwah, NJ: Lawrence Erlbaum Associates. Association for the Treatment of Sexual Abusers. 1997: Ethical Standards and Principles for the Management of Sexual Abusers. Beaverton, Oregon: Association for the Treatment of Sexual Abusers. Awad, G., Saunders, E. 1989. Adolescent child molesters: clinical observations. Child Psychiatry and Human Development 19, 195–206. Barbaree, H.E., Hudson, S.M., Seto, M.C. 1993: Sexual assault in society: the role of the juvenile offender. In Barbaree, H., Marshall, W., Hudson, S. (eds), The Juvenile Sex Offender. New York, NY: Guilford Publications, 1–24. Barlow, D., Abel, G. 1976: Sexual deviation. In Craigshead, A., Kazdin, M.M. (eds), Behavior Modification. Atlanta, GA: Houghton Mifflin Co, 26–48. Barlow, D., Leitenberg, H., Agras, W. 1969. Experimental control of sexual deviation through manipulation of the noxious scene in covert sensitization. Journal of Abnormal Psychology 74, 596–601. Beck, A.T., Ward, C.H., Mendelson, M., Mock, J., Erbaugh, J. 1961. An inventory for measuring depression. Archives of General Psychiatry 4, 561–71. Becker, J.V. 1988: The effects of child sexual abuse on adolescent sexual offenders. In Wyatt, G.E., Powell, G.J. (eds), Lasting Effects of Child Sexual Abuse. California: Sage Publications, 193–207. Becker, J. 1990. Treating adolescent sexual offenders. Professional Psychology Research and Practice 2, 1–4. Becker, J.V., Kaplan, M.S. 1993: Cognitive behavioral treatment of the juvenile sex offender. In Barbaree, H.E., Marshall, W.L., Laws, D.R.E. (eds), The Juvenile Sex Offender. New York, NY: The Guilford Press, 264–77. Becker, J.V., Kaplan, M.S. 1988: The assessment of adolescent sexual offenders. In Prinz, R.J. (ed.), Advances in Behavioral Assessment of Children and Families. Greenwich, CT: JAI Press, Inc., 97–118. Becker, J.V., Kaplan, M.S., Kavoussi, R. 1988: Measuring the effectiveness of treatment for the aggressive adolescent sexual offender. In Prentky, R.A., Quinsey, V.L. (eds), Human Sexual Aggression: Current Perspectives. New York, NY: The New York Academy of Sciences, 215–22.

Adolescent sexual offenders 461 Becker, J.V., Kaplan, M., Tenke, C.E. 1992. The relationship of abuse history, denial, and erectile response profiles of adolescent sexual perpetrators. Behavior Therapy 23, 87–97. Becker, J.V., Stein, R.M., Kaplan, M.S., CunninghamRathner, J. 1992. Erection response characteristics of adolescent sex offenders. Annals of Sex Research 5, 81–6. Berlin, F.S. 1988: Issues in the exploration of biological factors contributing to the etiology of the ‘sex offender,’ plus some ethical considerations. In Prentky, R.A., Quinsey, V.L. (eds), Human Sexual Aggression: Current Perspectives. New York, NY: The New York Academy of Sciences, 183–92. Blasingame, G.D. 1998. Suggested clinical uses of polygraphy in community-based sexual offender treatment programs. Sexual Abuse: A Journal of Research and Treatment 10, 37–45. Bradford, J.M.W. 1993: The pharmacological treatment of the adolescent sex offender. In Barbaree, H.E., Marshall, W.L., Laws, D.R.E. (eds), The Juvenile Sex Offender. New York, NY: The Guilford Press, 264–77; 278–88. Caputo, A.A., Frick, P.J., Brodsky, S.L. 1999. Family violence and juvenile sex offending. The potential mediating role of psychopathic traits and negative attitudes toward women. Criminal Justice and Behavior 26, 338–56. Carnes, P. 1991: Don’t Call it Love. Recovery from Sexual Addiction. New York, NY: Bantam Books. Carnes, P. 1992: Out of the Shadows. Understanding Sexual Addiction. Center City, MN: Hazelden. Ellis, B.J., Symons, D. 1990. Sex differences in sexual fantasy: an evolutionary psychological approach. The Journal of Sex Research 27, 527–55. Freeman-Longo, R.E., Bird, S., Stevenson, W.F., Fiske, J.A. 1995: 1994 Nationwide Survey of Treatment Programs & Models. Brandon, VT: The Safer Society Program and Press. Galli, V.B., Raute, N.J., McConville, B.J., McElroy, S.L. 1998. An adolescent male with multiple paraphilias successfully treated with fluoxetine. Journal of Child and Adolescent Psychopharmacology 8, 195–7. Galli, V., McElroy, S.L., Soutello, C.A., Kizer, D., Raute, N., Keck, P.E., Jr., McConville, B.J. 1999. The psychiatric diagnoses of twenty-two adolescents who have sexually molested other children. Comprehensive Psychiatry 40, 85–7. Greenfeld, L.A. 1997: Sex Offenses and Offenders. Washington, DC: U.S. Department of Justice. Hunter, J.A., Becker, J.V. 1999: Motivators of adolescent sex offenders and treatment perspectives. In Shaw, J.A. (ed.), Sexual Aggression. Washington, DC: American Psychiatric Press, Inc., 211–33. Hunter, J.A., Figueredo, A.J. 1999: Factors associated with treatment compliance in a population of juvenile

sexual offenders. Sexual Abuse: A Journal of Research and Treatment 11, 49–67. Hunter, J.A., Jr., Lexier, L.J. 1998. Ethical and legal issues in the assessment and treatment of juvenile sex offenders. Child Maltreatment 3, 339–48. Hunter, J.A., Becker, J.V., Kaplan, M.S. 1995. The adolescent sexual interest card sort: test–retest reliability and concurrent validity in relation to phallometric assessment. Archives of Sexual Behavior 24, 555–61. Hunter, J.A., Becker, J.V., Kaplan, M.S., Goodwing, D.W. 1991. The reliability and discriminative utility of the adolescent cognitions scale for juvenile offenders. Annals of Sex Research 4, 281–6. Johnson-Reid, M. 1998. Youth violence and exposure to violence in childhood: an ecological review. Aggression and Violent Behavior 3, 159–79. Kaplan, M.S., Abel, G.G., Cunningham-Rathner, J., Mittleman, M.S. 1990. The impact of parolees’ perception of confidentiality of their self-report sex crimes. Annals of Sex Research 3, 293–303. Kaplan, M., Becker, J., Tenke, C. 1991. Assessment of sexual knowledge and attitudes in an adolescent sex offender population. Journal of Sex Education and Therapy 17, 217–25. Kaufman, K., Holmberg, J., Orts, A., McCrady, F., Rotzien, A., Daleiden, E., Hilliker, D. 1998. Factors influencing sexual offenders’ modus operandi: an examination of the victim-offender relatedness and age. Child Maltreatment 3, 349–61. Kavoussi, R.J., Kaplan, M., Becker, J.V. 1988. Psychiatric diagnoses in adolescent sex offenders. Journal of the American Academy of Children and Adolescents Psychiatry 27, 241–3. Knopp, F. 1982: Remedial Intervention in Adolescent Sex Offenses. Orwell, Vt.: Safer Society Press. Kobayashi, J., Sales, B.D., Becker, J.V., Figueredo, A.J., Kaplan, M.S. 1995. Perceived parental deviance, parent-child bonding, child abuse, and child sexual aggression. Sexual Abuse: A Journal of Research and Treatment 7, 25–44. Laws, D.R., Marshall, W.L. 1990: A conditioning theory of the etiology and maintenance of deviant sexual preference and behavior. In Marshall, W.L., Laws, D.R., Barbaree, H.E.E. (eds), Handbook of Sexual Assault. Issues, Theories, and Treatment of the Offender. New York, NY: Plenum Press, 209–29. Laws, D.R., Hudson, S.M., Ward, T. 2000: Remaking Relapse Prevention with Sex Offenders. A Sourcebook. Thousands Oaks, CA: Sage Publications, Inc. Lewis, D., Shankok, S., Pincus, J. 1979. Juvenile male sexual assaulters. American Journal of Psychiatry 136, 1194–6. Loeber, R., Stouthamer-Loeber, M. 1998. Development of juvenile aggression and violence. Some common misconceptions and controversies. American Psychologist 53, 242–59.

462 Family law and domestic relations Marshall, W., O’Sullivan, C., Fernandez, Y. 1996. The enhancement of victim empathy among incarcerated child molesters. Legal and Criminological Psychology 1, 195–202. Matson, J., Esveldt-Dawson, K., Kazdin, A. 1983. Validation of methods for assessing social skills in children. Journal of Clinical Child Psychology 12, 174–80. McGuire, R.J., Carlisle, J.M., Young, B.G. 1965. Sexual deviations as conditioned behavior: a hypothesis. Behavioral Research and Therapy 2, 185–90. Money, J. 1984. Paraphilias: phenomenology and classification. American Journal of Psychotherapy 38, 164–79. Monto, M., Zgourides, G., Harris, R. 1998. Empathy, self-esteem, and the adolescent sexual offender. Sexual Abuse: A Journal of Research and Treatment 10, 127–40. National Task Force. 1993. Juvenile sexual offending. Juvenile and Family Court Journal 44, 1–121. National Task Force of Juvenile Sexual Offending. 1988. Preliminary report. Juvenile and Family Court Journal 39, 1–81. Nichols, H., Molenda, M. 1984: Multiphasic Sex Inventory Manual. Tacoma, Washington: Nichols & Molinder Assessments. Pithers, W.D. 1990: Relapse prevention with sexual aggressors. A method for maintaining therapeutic gain and enhancing external supervision. In Marshall, W.L., Laws, D.R., Barbaree, H.E.E. (eds), Handbook of Sexual Assault. Issues, Theories, and Treatment of the Offender. New York, NY: Plenum Press, 343–61.

Prentky, R., Harris, B., Frizzell, K., Righthand, S. 2000. An actuarial procedure for assessing risk with juvenile sex offenders. Sexual Abuse: A Journal of Research and Treatment 12, 71–93. Ross, J., Loss, P. 1991: Assessment of the juvenile sex offender. In Ryan, G., Lane, S. (eds), Juvenile Sexual Offending. San Francisco, CA: New Lexington Press, 199–251. Rotheram-Borus, M., Becker, J., Koopman, C., Kaplan, M. 1991. AIDS knowledge and beliefs, and sexual behavior of sexually delinquent and non-delinquent (runaway) adolescents. Journal of Adolescence 14, 229–44. Ryan, G. 1999. Treatment of sexually abusive youth. The evolving consensus. Journal of Interpersonal Violence 14, 422–36. Ryan, G., Lane, S. (eds). 1991: Assessment of the Juvenile Sex Offender. Lexington, MA: Lexington Books. Ryan, G., Lane, S. 1997: Juvenile Sexual Offending: Causes, Consequences, and Corrections. San Francisco, CA: Jossey-Bass Publishers. Stoller, R.J. 1986: Perversion. The Erotic Form of Hatred. London, England: Karnac Books, Ltd. Thomas, J. 1997: The family in treatment. In Ryan, G., Lane, S. (eds), Juvenile Sexual Offending: Causes, Consequences, and Corrections. San Francisco, CA: Jossey-Bass Publishers, 360–403. Tollison, D., Adams, H. (eds). 1979: Sexual Disorders: Treatment, Theory and Research. New York, NY: Gardner Press. Way, I. 1999. Victim empathy in adolescent sexual offenders: preliminary results. Sexual Abuse: A Journal of Research and Treatment 12, 1–9.

46 Neuroimaging in child and adolescent psychiatry STEPHEN B. BILLICK AND STEPHEN P. SULLIVAN

FORENSIC CONSIDERATIONS IN NEUROIMAGING The advances in structural and functional brain imaging techniques has permitted the investigation of the human brain in vivo, allowing for real-time delineation of neural processes unimaginable to investigators formerly restricted to research on animals and humans with brain lesions. While neurologists and neurosurgeons were the principal beneficiaries of the information provided by computed tomography (CT) and magnetic resonance imaging (MRI), psychiatrists now anticipate equally impressive gains from functional brain imaging techniques of positron emission tomography (PET) and single photon emission tomography (SPECT). Already, there exists a significant accumulation of imaging data on adult neuropsychiatric disorders. While there exists much less similar research on the pediatric population (due in part to complications involving informed consent, risk/benefit ratios secondary to the use of radiation and anesthesia), recent advances in neuroimaging technology present new opportunities in the study of neurodevelopmental and psychiatric disorders in children. An important aspect of such research will be the longitudinal study of children at risk for a disorder compared to normal controls. This new technology will create new scientific markers for disease and symptoms. The potential uses of brain imaging for the forensic psychiatrist are only now beginning to be ascertained. Given the evolving nature of brain imaging research and techniques, consideration must be given to the protocols concerning the admission of scientific evidence in the courts. While the U.S. Supreme Court’s 1993 review of Daubert v. Dow Pharmaceuticals resulted in greater latitude for expert testimony, it also re-defined the court’s role as that of a ‘gate-keeper’ regarding the suitability and relevance of such evidence. Admissibility of scientific evidence is no longer contingent exclusively upon whether the

theory or techniques has been subjected to peer review and publications, but whether underlying principles and methodologies giving rise to such evidence have been judged by the court as scientifically sound. An important question to be answered is to what extent the variable standards utilized in neuroimaging research will undermine their potential use by forensic psychiatrists as they seek to meet the court’s pre-conditions for admissibility of evidence. Presently, in current imaging research, there exists no standard method agreed upon by researchers regarding the acquisition or measurement of the images, nor is there a common database of normal controls. Different studies by different investigators use different techniques even when the imaging technology (CT, MRI, SPECT, PET) is the same. The expert witness’ effective use of neuroimaging results will certainly depend on his or her ability to appreciate the wide variability of ‘normal,’ as well as the constantly evolving standards. Indeed, perhaps those most effective in utilizing neuroimages in the courts will be those who appreciate the subtle overlap that can exist between pathology and ‘normal.’ Such knowledge places the clinician in a better position to affirm or refute claims that a given image supports an actual clinical correlation with a diagnosis. Whether it provides any clinical correlation with a legal standard (fitness for trial, not guilty by reason of insanity) requires the additional clinical assessment of diagnosis and temporal circumstances. Executive functioning relating to specific behavioral control issues cannot yet be delineated solely with neuroimaging. One must be mindful not to confuse an image’s association with a particular disorder as representing the disorder’s etiology. The forensic expert needs to differentiate between findings that are pathognomonic and those that are only correlated or consistent with a diagnosis. Neuroimaging, like many radiographic studies, are more likely to fit with the latter. Clinical psychiatry, like clinical medicine, creates a setting of findings that, when taken as

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a whole, can create a compelling picture of a diagnostic condition. More often than not, neuroimaging will be but one of the factors that contribute to the forensic expert’s opinion. Given the paucity of, as yet, neuroimages which indeed represent a psychiatric disease state pathognomonically, experts cannot currently use brain imaging in replacement of a thorough history of illness, mental status exam, and collateral sources. Clinical uses of neuroimaging rule out other causes of psychiatric symptoms other than the presumed clinical assessment, such as occupying lesions, encephalopathies and classical patterns of certain diseases such as AIDS and multiinfarct dementia. The intent of this chapter is to review the most current findings and relate what scientific consensus exists on neuroimaging in specific psychiatric disorders in childhood and adolescence. Also provided is an explication of the various imaging technologies. It is hoped that this review will be of particular assistance to forensic psychiatrists who intend to make use of such imaging studies in the court, providing a concise guide regarding what claims may or may not be made in their use. For a more complete overview, the reader is referred to the reviews on the subject by both Hendren and colleagues (2000) and Peterson (1995).

IMAGING TECHNIQUES Provided herein is an overview of instrumentation and techniques used in brain imaging. For a more comprehensive review of these issues, the reader is directed to standard texts (Adams and Victor 1997; Kaplan 2000).

Computed tomography Computed tomography (CT), which was first introduced in 1972, revolutionized diagnostic neuroradiology by allowing the imaging of the structural components of living brain tissue. In CT, a focused source of external radiation is transmitted along several trajectory lines through varying angles within a single plane of a subject’s head. As the X-rays pass through the brain tissue, they are attenuated secondary to their collisions with tissue molecules. These interactions involve both partial absorption by tissue molecules (Compton scattering) and complete absorption (photoelectric). The degree of energy absorbed by different tissues is proportional to their individual electron and physical densities. Attenuation values can be measured for various tissues, such as brain, cerebral spinal fluid (CSF), and bone. CT scanners take a series of head X-ray images over 360 degrees around the patient’s head. The amount of radiation that passes through (not absorbed) each angle is then digitalized. Using matrix algebra calculations to assign a specific density to each

point within the head, the computer then displays the information as a set of two-dimensional pictures. Several important limitations are noted with the use of CT, often necessitating the use of MRI. Because bony structures absorb high amounts of irradiation, they tend to obscure details of contiguous structures. This can cause considerable difficulty in studying brainstem structures, which are surrounded by the skull base. Furthermore, while CT can effectively reveal the border between gray and white matter, the minimally different absorption properties of each prevent detailed study of gyral patterns. Calcifications in the brain, which may be invisible on MRI, is the only brain component better visualized on CT.

MRI MRI was developed in the 1950s to measure the atomic constituents of chemical compounds. When it was subsequently combined with CT, it provided a powerful imaging technique by its ability to distinguish different biological tissues because of their distinct chemical compositions. When odd-atomic weight elements, such as hydrogen, are exposed to a static magnetic field of sufficient strength, their nuclei behave like spinning magnets, developing a net alignment of spin along the direction of the first applied magnetic field. This spin alignment can be disturbed by a brief radio wave pulse, which tips the spinning nuclei away from this parallel orientation. After the pulse is terminated, the nuclei return to their original position, releasing radio wave energy in the process. The frequency of the radio wave emitted is distinct for different atomic species as well as for a given nucleus in a distinct chemical/physical environment. Thus, the nuclei act as radio waves transmitters with signature frequencies. Different nuclear species absorb energy from radio waves of a particular frequency. After absorbing energy from the externally applied radio waves, the atomic nuclei release this absorbed energy in a signal fashion as they return to a lower energy state. Relaxation refers to the rate at which the nuclei return to this lower energy state, described as a time constant (T). In MRI, there are two types of relaxation: spin–lattice relaxation (T1); and spin–spin relaxation (T2). Relaxation times vary from compound to compound for a particular atom. For example, hydrogen’s relaxation time is significantly shorter in fat than in water. Relaxation times also vary secondary to particular tissue conditions. The relaxation of water’s hydrogen nuclei in CSF is distinct from its relaxation in brain parenchyma. For example, T1 images best differentiate gray from white matter, while CSF is greater enhanced using T2. Dense bone, which contains little water, is invisible. Since relaxation times are influenced by local tissue conditions, images can either emphasize normal tissue of various compositions or

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pathology by focusing on the two conditions’ respective relaxation times.

Functional MRI A new sequence, T2*, detects levels of oxygenated hemoglobin in blood. Since neural activity within the brain causes local increase in blood flow, it increases the level of hemoglobin to those active areas. This change in activity can be detected virtually in real time with the T2* sequence. This process is the basis for the technique of functional MRI (fMRI). fMRI has been particularly useful in localizing neuronal activity to a specific lobe or subcortical area. Investigators can also often localize neuronal activity to a specific gyrus. fMRI measures tissue perfusion, in contrast to PET, which measures neuronal metabolism. Unlike CT and MRI, fMRI is more highly correlated with brain function as opposed to brain structure.

PET PET renders images of brain function that have revolutionized the study of cognitive processes and neurological/ psychiatric pathology. Emission tomography represents the distribution in brain tissue of an injected isotope that emits radiation. The positron (an electron with a positive charge) travels through the tissue before colliding with a negatively charged electron. The resulting annihilation of the two particles results in the production of two highenergy photons, which are simultaneously emitted 180 degrees to each other. The resulting particles penetrate the brain and skull and are subsequently measured by external radiation-detection devices. The process requires elements with low atomic numbers, such as nitrogen or hydrogen, that are common to biological compounds. Because of their longer half-lives of decay, radioactive isotopes of carbon (11C), nitrogen (13N), or oxygen (15O) are chosen, and are substituted in the structure of the compound to be investigated. Louis Sokoloff pioneered one of the most powerful applications of PET. He studied specific active populations of nerve cells by taking advantage of the fact that the activity of neurons is related to glucose utilization. More specifically, the glucose analogue 2-deoxyglucose is taken up by neurons and phosphorlyated by hexokinase in the same manner as glucose. This phosphorylated deoxyglucose cannot be further metabolized, thus accumulating within the active cells. By covalently bonding the positron-emitting isotope of fluorine-18 to deoxyglucose, 18F-labeled deoxyglucose (FDG) is generated. The creation of such a tracer molecule makes it possible to measure glucose metabolism in small, specific regions of the brain. Important structures are simultaneously differentiated, in that gray matter uses much more glucose than white. Different regions of gray matter generate unique patterns of metabolism. Particularly important

in psychiatry, neurotransmitters, their precursors, and receptor ligand molecules can also be radioactively labeled. For example, 11N-methylspiperone, a ligand that preferentially binds to dopamine receptors, has been used to map dopamine receptor locations throughout the brain.

SPECT SPECT, which has evolved from PET, uses isotopes that do not require a cyclotron for their production. The first use of SPECT on patients was in 1989 (Peterson 1995). The decay half-lives of the species used in SPECT are significantly lower than those employed with PET, allowing the radioisotope to be produced at a central location and be distributed to multiple imaging centers. As in PET, the isotopes (commonly those of iodine) are incorporated into active biological systems, with their distribution then measured and plotted. The labeled molecule is injected intravenously and the lipophilic molecules cross the blood–brain barrier. Uptake in the brain is proportional to cerebral profusion. SPECT imaging cameras detect the data in a 360-degree circle around the brain and generate a three-dimensional image that can be displayed in coronal, transaxial, or saggital cuts 1–1.5 cm thick. Although more cost-efficient and thereby more readily available than PET, SPECT has some disadvantages when compared to the information that can be obtained from PET. Because the decay of a SPECT radiopharmaceutical involves the emission of a single photon directly from that radioisotope itself, the emission is typically of a lower energy than that of PET. PET’s simultaneous emission of two photons results in a higher energy emission. Compounding this relative weakness is the fact that the emissions of the radioisotope are attenuated as they pass through tissue. SPECT is therefore less helpful with deeper brain structures, such as subcortical areas.

Magnetic resonance spectroscopy Magnetic resonance spectroscopy (MRS) provides a noninvasive means by which to study biological molecules in vivo. MRS differs from MRI in its ability to provide information about the molecules in which the identified nuclei reside. MRS utilizes the difference in frequency of same atomic species protons when bound to different cell-associated structures. It measures the inherent magnetic behavior of a nuclear species contained naturally in biological compounds. The measure of this chemical shift thus does not require the use of radiation as it does with PET/SPECT. The resulting information characterizes the chemical milieu of cells. One unique advantage of MRS is its ability to measure multiple chemical species simultaneously. MRS is not limited only to organic compounds and, as such, can provide important information that is not available via PET/SPECT. For example, it can monitor both lithium and fluorinated pharmaceuticals (e.g., trifluoperazine and fluoxetine), making it an

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important tool in monitoring pharmacokinetics. A notable drawback with this investigative tool is the inability to acquire a detectable signal in certain tissue molecules, as the signals of the nuclei studied in MRS are fundamentally weak.

BRAIN IMAGING STUDIES IN PEDIATRIC PSYCHIATRY Attention-deficit hyperactivity disorder Attention-deficit hyperactivity disorder (ADHD), determined to be among the most common cause of behavioral disturbances in schools (particularly in school-aged boys), is characterized by considerable problems of awareness and poor impulse control. The prevalence of this disorder is such that it constitutes a major proportion of patients in the clientele of pediatric psychiatrists and neurologists. Although no consistent values of incidence/prevalence exists, some estimates report an incidence of 3–5 per cent, with a clearly male dominance (Barkley 1990). Earlier studies of this disorder in children (and adults) utilizing data obtained from brain imaging studies have delineated both structural and functional abnormalities as compared to normal controls. Giedd et al. (1999) compared eighteen boys with diagnosed ADHD with another eighteen matched for age, weight, Tanner pubic hair stage, and handedness using 1.5 Tesla MRI images. In the group diagnosed with ADHD, the rostrum and rostral body of the corpus callosum were found to be significantly smaller than those of the controls. Semrud-Clikeman et al. (1994) performed a similar study with fifteen males, but failed to replicate the findings of Geidd. Instead, she found that the males with ADHD had significantly smaller posterior elements of the corpus collosum. O’Tauma and colleagues (1999), in reviewing these two studies, speculate that the above differences in results may only be technical, in that the thickness of the MRI scans were different for the two investigative teams. An important investigation of structural abnormalities in those with ADHD in terms of number of patients studied is that of Castellanos et al. (1996). His team analyzed brain MRIs of 57 patients, again comparing the results with those of 57 healthy matched controls. Their findings demonstrated that those boys with ADHD had significantly smaller volumes of total cerebrum and cerebellum, and of right globus pallidus and right anterior frontal lobe. Also noted was loss of volume in the right caudate nucleus greater than that in the left, representing a reversal of the right greater than left volume asymmetry believed by Castellanos to represent normal. Filipek (1995) however, believes that left greater than right pattern of caudate asymmetry represents normal development.

Another study by Castellanos (Castellanos, Giedd, and Elia 1997) contemporaneous with the one previously cited, investigated structural relationships between twenty-six boys diagnosed with ADHD, fourteen boys diagnosed with both ADHD and Tic Disorder, and thirty-one normal controls. In contrast to the previous study, no significant differences in anterior frontal regions between the three groups were discerned. Clearly, much has yet to be confirmed. O’Tauma et al. (1999), however, suggested that a reduction in size of the right globus pallidus would presumably decrease gammaaminobutyric acid (GABA)-ergic inhibition of the ventrolateral thalamus, thereby increasing ventrolateral thalamic excitation of the motor cortex, ultimately resulting in physical/behavioral hyperactivity. These morphometric investigations of ADHD have been complemented by functional imaging studies utilizing PET and SPECT. In 1990, Zametkin et al. employed PET during the processing of auditory attention tasks in twenty-five non-medicated hyperactive adults who had never received medication and were also the biological parents of hyperactive children. It was found that for these patients, global cerebral glucose utilization was 8.1 per cent lower than that of controls. The hyperactive adults had substantially reduced metabolism in approximately half of specified brain regions. The greatest reductions were in the premotor cortex and superior prefrontal cortex – areas, as noted by O’Tauma et al. (1999), which were known to be involved in the control of attention and motor activity. A later, but similar investigation compared twenty adolescents diagnosed with ADHD with nineteen normal controls. Here, the global cerebral glucose metabolism rate in the female subjects with ADHD was 15 per cent lower than that of normal control females. Interestingly, no such difference was observed between the studied boys. A still later investigation by Ernst (1997), however, confounded the findings of his earlier work: ten adolescent females diagnosed with ADHD demonstrated central glucose metabolism rates similar to those of the normal female controls, although those with ADHD showed some decreased rates in the left hemisphere – a reversal of what Ernst observed in the normal controls. Lou, Henriksen, and Bruhn (1984), while studying the brains of patients with ADHD employing SPECT, consistently demonstrated hypoperfusion of the striate and periventricular structures of the central frontal lobes. Interestingly, these areas were accompanied by somewhat hyperperfused occipital lobes and sensorimotor cortical areas. The findings tended to reverse after the administration of methylphenidate. The authors postulated that ADHD is a dysfunction of the basal ganglion’s modulating function, resulting in dysinhibition and increased sensorimotor activity. Results from more recent studies again suggest frontal irregularities, noting decreased activity in the left frontal and parietal lobes in children

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with ADHD. Amen and Carmichael’s 1997 study discerned decreased blood perfusion in the prefrontal cortex in those diagnosed with ADHD as compared to normal controls. O’Tauma et al. (1999), in reviewing such studies, commented that brain imaging studies of ADHD are remarkably concordant in identifying the frontal lobes, basal ganglia, and their functional relationship as a major potential site of the dysfunction in ADHD, with prefrontal and striatal connections being of paramount importance.

Tourette’s disorder Tourette’s disorder (Gilles de la Tourette syndrome, or TS) is comprised of multiple motor tics and at least one vocal tic that may present concurrently or at different periods during the illness. Tics are defined in DSM-IV as an involuntary, sudden, rapid, recurrent, non-rhythmic stereotyped motor movement or vocalizations. Hallmarks of the disorder also include distractibility, impulsivity, hyperactivity, obsessions and compulsions. The median age of onset for TS is seven years old, with the majority of children exhibiting symptoms before the age of fourteen years. Of note, approximately 50–60 per cent of those suffering from TS also demonstrate the symptoms of ADHD (Kaplan 2000). Interestingly, some investigators employing structural neuroimaging techniques to study this disorder have found similarities to the imaging findings of patients with ADHD, specifically to abnormalities found in the basal ganglia. Indeed, even prior to neuroimaging applications, clinical correlations pertaining to some hyperkinetic movement disorders led some to hypothesize that the pathology of TS and ADHD occur in the basal ganglia. Singer et al.’s (1993) volumetric MRI study reported significant differences for measurements of symmetry in the putamen and the lenticular region for those with TS versus righthanded normal controls. Controls demonstrated a leftsided predominance of the putamen, whereas in thirteen of the thirty-seven TS subjects, a right-sided predominance exceeded that of any control. Furthermore, statistical comparison of the eighteen TS subjects with comorbid ADHD in comparison to controls suggested to Singer et al. that the presence of ADHD in TS is associated with changes in volume of the left globus pallidus. Moriarty, Costa, and Schmitz (1995) demonstrated decreased cerebral blood flow in the left dorsolateral prefrontal cortex, anterior cingulate, and left caudate. The most dramatic hypoperfusion was observed in the left caudate, thus implicating the striatum (known to regulate the initiation and execution of movement) and, in general, the basal ganglia. MRI studies by Hyde, Stacey, and Coppola (1995) showed that in ten monozygotic twin pairs sharing the diagnosis of TS but of differing severity, the more severely

affected twins showed a relative decrease in right caudate and left lateral ventricular volume. Peterson, Riddle, and Cohen’s (1992) structural MRI study of fourteen individuals with Tourette’s disorder demonstrated a relative decrease in volume of the left lenticular nucleus and an absence of the ‘normal’ left greater than right basal ganglia asymmetry. As discussed in the previous ADHD section, however, debate exists concerning which asymmetry (L ⬎ R, R ⬎ L) represents normal development. Peterson noted that the severity of motor tic symptoms did not, however, correlate with the measured degrees of volume differences. However, Castellanos et al. (1996) (as discussed in the previous section) was unable to demonstrate any volume differences in those children diagnosed with both ADHD and co-morbid Tourette’s. Moreover, in stark contrast to the results of Peterson and colleagues, Castellanos reported that these subjects demonstrated a decrease – and even a reversal – of a right greater than left globus pallidus asymmetry, the standard used by this group for normal development. By employing SPECT, George et al. (1992) investigated twenty unmedicated individuals with Tourette’s disorder, and demonstrated increased right frontal and visual cortex metabolism in those individuals in fifty patients with Tourette’s disorder as compared with fifty normal controls. The severity of tics related to the degree of hypoperfusion of the left caudate, cingulate, and medial temporal areas. While both Peterson and George and colleagues were attempting to correlate the severity of tic symptoms with specific neuroimages, George et al.’s use of SPECT proved most successful. It provides a good example of how much of an advantage functional imaging can have over structural imaging in explicating phenomenon.

Autism Autistic disorder (infantile autism), classified as one of the pervasive developmental disorders in the DSM-IV, is characterized by significant impairments in reciprocal socialization, disturbed abilities in communication, and stereotypical patterns of behavior. Onset usually occurs before the age of three years and is hallmarked by a failure to develop both language and appropriate relatedness to parents. Over two-thirds of those diagnosed with autism are attributed with a retarded level of mental function. The prevalence rate as measured by Lotter in 1966 approximated 4.5 in 10 000 children. However, more recent surveys, and especially those conducted in Japan, have reported a prevalence of over 13 in 10 000 children (Kaplan 2000). Significant research employing various neuroimaging techniques has been conducted on this disorder, though results remain inconclusive. One group (Courchesne et al. 1988) reported abnormal findings on MRI of the cerebellum in afflicted children. In their initial investigation, they compared eighteen subjects diagnosed with autism

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not complicated by severe mental retardation or other significant pathology, with twelve normal controls. Courchesne et al. found significantly smaller neocerebellar vermal lobules VI–VII in those patients with autism, and believed the abnormality to be the result of developmental hypoplasia as opposed to deterioration of fully developed cerebellar tissue. This was postulated on the basis of an absence of sulcal widening in the vast majority of affected individuals. In a later investigation, collaborating with Murakani et al. (1989), Courchesne et al. found a general decrease in cerebellar size. A subsequent study by Hashimoto et al. (1995) also found decreased cerebellar size associated with autism. Their findings of abnormalities in lobules I–V, VIII–X, however, unlike those of Couchesne et al., supported a wider spectrum of cerebellar abnormalities in the disease. More recently, Courchesne et al. (1994) have identified two subtypes of cerebellar abnormalities associated with autism: the alreadymentioned neocerebellar hypoplasia (87 per cent) and neocerebellar hyperplasia (13 per cent). A 1997 investigation by Piven et al. (1992), however, challenged the data of Courchesne et al. When comparing thirty-five autistic subjects with thirty-six normal controls, Piven et al. found no abnormalities in size of the cerebellar lobules VI–VII in autistic subjects; rather, these authors found an increased total cerebellar volume associated with the disease. Other MRI studies of autism have suggested other brain abnormalities. Gaffney et al. (1987) found enlarged features of the lateral ventricles, while Jacobsen et al. (1988) found enlarged third ventricles. Piven’s 1995 study also reported significantly increased total lateral ventricular volume in those with autism compared with normal controls. In a review of neuroimaging studies to date on the subject, Courchesne (1991) commented that 15 per cent of those diagnosed with autism demonstrated some enlargement of some portion of the lateral ventricles. Studies utilizing PET and SPECT have also resulted in ambiguous findings. Using FDG PET, Horwitz et al. (1988) measured resting regional cerebral metabolic rates for glucose in fourteen healthy autistic patients. These authors demonstrated functionally impaired interactions between frontal and parietal regions and the neostriatum and thalamus. This differed from an earlier investigation by Rumsey et al. (1985), who found few group differences in cerebral metabolic rates between autistic subjects and normal controls. In an initial study using SPECT, Zilbovicius et al. (1992) showed no regional cortical dysfunction in primary autism, though in a later study this group demonstrated transient frontal hypoperfusion in autistic children. Filipek (1995) posited that much of the differences in these results might be largely due to technical variation as the collective autistic cohorts were heterogeneous with respect to age, gender, IQ, neuropsychological, and behavioral parameters. The collective studies represented vastly differing protocols for MRI scanning, including variable MRI slice thickness, orientation and position. Later, O’Tauma et al. (1999) commented on the variability

of the imaging studies, hypothesizing that such differences were not surprising given the dramatic variability both in autism’s clinical expression and in the extent of its associated cognitive abnormalities. Autism may indeed represent a syndrome, the net result of etiologically separate encephalopathies sharing the ability to impose themselves on the developing central nervous system at a particular moment in gestation.

Major depression Diagnosing a mood disorder in children can often prove challenging for the clinician. Cognitive and expressive ability can vary greatly in children, even of the same age, and can frustrate the psychiatrist as he or she attempts to diagnose pathology via the template of symptom criteria. For example, a child who cannot yet comprehend the concepts of future and guilt is less likely to demonstrate hopelessness and guilt – two telling symptoms of major depression. The debate continues as to whether a subgrouping of symptoms in mood disorder for children can be found for different age groups. While certain symptoms, such as sad mood, decreased concentration, insomnia, and suicidal ideation appear independent of age, some investigators believe that sad appearance, low self-esteem, somatic complaints decrease with maturation in children. Despite methodological problems collecting information, the consensus is that the prevalence of mood disorders varies with the age group studied. For major depression, non-clinical samples of pre-school children, those aged nine years, and adolescents showed prevalences of 0.3 per cent, 1.8–2.5 per cent and 4.5–6 per cent, respectively (Kaplan 2000). Since the clinical picture of mood disorders in children can be ambiguous and varied, it would be helpful if neuroimaging could identify common structural or functional abnormalities. Such studies could equally serve as a baseline for further studies. Findings could be used to determine the degree to which pathology discovered in children predicted later development of psychiatric illness. To date, however, very few imaging studies of mood disorder in children have been performed. Hendren et al. (1991) investigated the relationship between brain pathology and psychiatric illness in thirty-seven psychiatric inpatients aged between 5 and 14 years, by using MRI scans on a 1.5 Tesla superconducting magnet. Of the three children carrying the diagnosis of major depression, neuroradiologists (who were blinded to the subjects’ diagnosis) identified two of the three MRI scans as abnormal. While due comment was made regarding the extremely small sample size, it was noted that the two abnormal findings revealed relative enlargement in the right ventricles. In 1996, Steingard et al. reported significantly reduced frontal lobe/total cerebral volume ratios in sixty-five children and adolescents diagnosed with depression as compared to eighteen hospitalized controls without depression.

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Significant research of major depression in adults employing brain-imaging techniques, however, has been conducted. Several studies employing SPECT have revealed some consistent findings. Abnormal regional blood flow is most frequently discerned in the temporal, prefrontal, frontal, and parietal lobes. Studies employing PET have also implicated reduced glucose metabolism in prefrontal brain regions. Indeed, Buchsbaum et al. (1997), by using FDG PET, found increased brain metabolism in response to sertraline treatment in depressed patients. Some investigators, such as Mayberg et al. (1994) questioned whether reduced perfusion to the frontal cortex indicates decreased activity of the lateral orbitofrontal circuit. These authors further speculate as to whether this specific hypoperfusion was responsible for the decreased cognitive ability (poor concentration) in depression. In addition, the question was raised as to whether this hypoperfusion was in some way responsible for a decrease in behavioral control, enabling suicidal behavior.

Schizophrenia Early definitions of childhood-onset schizophrenia (COS) were often too broad, causing the inappropriate inclusion, at times, of such disorders as autism. More current, restrictive guidelines for the diagnosis in children now emphasize those criteria applied to adults. Considerable challenge remains, however, for the clinician attempting to accurately discern delusions and formal thought disorders in children whose cognitive processes are not fully developed. What approach can the practitioner use to distinguish play and fantasy from psychosis? While the varied diagnostic criteria have complicated the collection of epidemiological data on COS, its onset is certainly considerably less than that of adults. Consistent neuroimaging findings associated with adult schizophrenia have been well documented. CT studies by several investigators have demonstrated enlarged ventricles and increased sulcal widening, though debate continues as to whether this represents a failure of brain tissue to develop or subsequent loss of tissue. MRI studies have evidenced decreased cortical gray matter, especially in the temporal cortex, decreased volume of limbic system structures and increased volume of basal ganglia nuclei. Functional imaging studies have demonstrated abnormalities in glucose metabolism and blood flow in certain cognitive tasks. For example, Wolkin et al.’s (1992) study employing PET investigated the possible association of frontal lobe dysfunction with negative symptoms. These authors found that in twenty non-medicated chronic schizophrenics, there existed a close relationship between negative symptoms and prefrontal hypoperfusion, particularly in the right dorsolateral convexity. Schultz et al. (1983) described ventricular enlargement in fifteen teenage subjects diagnosed with either schizophreniform disorder or schizophrenia compared to

normal, similarly aged controls. Woody et al.’s (1987) later investigation of a pre-pubertal schizophrenic also demonstrated ventricular abnormalities: ex-vacuo enlargement of the lateral ventricle, dilation of the third ventricle, as well as cerebellar abnormalities. Woody et al. questioned whether the structural changes observed in their patients and other schizophrenic patients provide any long-term prognostic significance, but noted that the observed changes might indicate that parenchymal alterations on the brain occur early during the course of the illness. In 1996, Frazier et al. published results from a study using MRI, and reported significantly reduced total cerebral volumes in twenty-one adolescents with COS compared to thirty-three controls. In 1997, Rapoport et al. reported a significantly decreased total cerebral volume and increased ventricular volume in sixteen children and adolescents (all having a history of neuroleptic use) as compared to twenty-four normal controls. Jacobsen et al. have noted irregularities in temporal lobe structures associated with COS. They reported in a 1996 study that twenty-one children demonstrated increased volumes of the superior temporal gyrus and generally larger temporal lobe volume. A follow-up study by Jacobsen et al. in 1998 on ten original cohorts revealed yet greater decreases on right temporal, bilateral superior, and posterior temporal gyri. Also noted were reduced right anterior superior temporal gyrus and left hippocampal volumes. Rapoport (1999) subsequently continued to examine fifteen of this same original cohort and reported a decrease in frontal parietal and temporal gray matter. After employing FDG-PET, Gordon reported that in twelve neuroleptic naive children with COS, decreased right parietal metabolism was noted as subjects engaged in auditory continuous performance tasks. A later study by Jacobsen however did not note this hypofrontality in sixteen adolescents with COS as they performed similar auditory continuous performance tasks. Hendren and colleagues (2000), in a review of neuroimaging in children, summarized that studies on COS intimate that brain changes are first hallmarked by asymmetries, reductions in both the basal ganglia and overall brain size which are associated with negative symptoms. Later, in adolescence, the reductions in frontal and temporal structures, as well as increased ventricular enlargement, correspond to positive symptoms.

Obsessive compulsive disorder (OCD) Fewer data exists on this disorder. Rosenberg et al.’s study (1997a) on nineteen children and adolescents diagnosed with OCD demonstrated significantly reduced striatal volumes with correspondingly increased third ventricle volumes as compared with nineteen normal controls. A subsequent study by Rosenberg et al., revisiting in part the cohort from the earlier study, revealed increased

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anterior cingulate volumes in those children with OCD. In yet another study, Rosenberg et al. (1997b) detected significantly enlarged corpus callosum volumes in those children diagnosed with OCD. Interestingly, these authors believed that such increased volumes corresponded to OCD symptom severity. Hendren and colleagues (2000), in reviewing these and other single case studies, summarized that OCD in the pediatric population is associated with reduced basal ganglia volumes, and considered that further involvement with the prefrontal cortex, striatum, and thalamus suggested a frontal–striatal mechanism. Consequently, the degree of corpus callosum enlargement might bear a direct functional relationship to the degree of symptom severity in the disease.

Eating disorders The starvation/restriction characteristic of anorexia nervosa (AN) was associated with significant reductions in total gray and white matter volumes in Katzman’s study (Katzman et al. 1996) of thirteen affected adolescent females when compared with eight controls. Interestingly, when Katzman later rescanned six of the original cohorts after their subsequent successful treatment and weight recovery, white matter volumes normalized, while significant gray matter deficits and increased CSF ventricular volumes persisted as compared to healthy controls. Golden et al.’s (1996) MRI study on twelve females with AN confirmed Katzman’s data. Kingston et al.’s (1996) MRI investigation of forty-six hospitalized patients with AN noted that, when those patients who had regained 10 per cent of their body weight were rescanned, their greater ventricular size was commensurate with their lower weight, and not with their duration of illness. Lower weight also corresponded to poorer performances on certain memory/ flexibility/inhibition assessing instruments. It is suggested that the combination of starvation and hypercortisolism in AN generates persistent gray matter loss, and, perhaps, deficits in cognition.

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Castellanos, F.X., Giedd, J.N., Elia, J. 1997. Controlled stimulant treatment of ADHD and comorbid Tourette’s syndrome: effects of stimulant and dose. Journal of the American Academy of Child and Adolescent Psychiatry 36, 589–96. Castellanos, F.X., Giedd, J.N., March, W.L., et al. 1996. Quantitative brain magnetic resonance imaging in attention-deficit hyperactivity disorder. Archives of General Psychiatry 53, 607–16. Courchesne, E., Saitoh, O., Yeung-Courchesne, R., et al. 1994. Abnormalities of cerebellar vermian lobules VI and VII in patients with infantile autism: identification of hypoplastic and hyperplastic subgroups by MR imaging. American Journal of Radiology 162, 123–30. Courchesne, E., Yeung-Courchesne, R., Press, G.A., et al. 1988. Hypoplasia of cerebellar vermal lobules VI and VII in autism. New England Journal of Medicine 318, 1349–54. Courchesne, E. 1991. Neuroanatomic imaging in autism. Pediatrics 87, 781–90. Daubert v. Dow Pharmaceuticals, 509 U.S. 579 (1993). Ernst, M., Liebenauer, L.L., Tebeka, D., et al. 1997. Selegiline in ADHD adults: plasma monoamines and monoamine metabolites. Neuropsychopharmacology 16, 276–84. Filipek, P. 1995. Brief report: neuroimaging in autism: the state of the science. Journal of Autism and Developmental Disorders 26, 211–15. Frazier, J.A., Giedd, J.N., Hamburger, S.D., et al. 1996. Brain anatomic magnetic resonance imaging in childhood-onset schizophrenia. Archives of General Psychiatry 53, 617–24. Gaffney, G.R., Kuperman, S., Tsai, L.Y., et al. 1987. Midsagittal magnetic resonance imaging of autism. British Journal of Psychiatry 151, 831–3. George, M.S., Trimble, M.R., Costa, D.C., et al. 1992. Elevated frontal cerebral blood flow in Gilles de la Tourette’s syndrome, A 99mTc-HMPAO SPECT study. Psychiatry Research 45, 143–51. Giedd, J.N., Castallanos, F.X., Casey, B.J., et al. 1999. Quantitative morphology of the corpus callosum in attention deficit hyperactivity disorder. American Journal of Psychiatry 151, 665–9. Golden, N.H., Ashtari, M., Kohn, M.R., et al. 1996. Reversibility of cerebral ventricular enlargement in anorexia nervosa, demonstrated by quantitative magnetic resonance imaging. Journal of Pediatrics 128, 296–301. Hashimoto, T., Tayama, M., Murakawa, K., et al. 1995. Development of the brain stem and cerebellum in autistic patients. Journal of Autism and Developmental Disorders 25, 1–18. Hendren, R.L., De Backer, I., Pandina, G.J. 2000. Review of neuroimaging studies of childhood and adolescent psychiatric disorders from the past 10 years. Journal of the American Academy of Child and Adolescent Psychiatry 39, 815–28. Hendren, R.L., Hodde-Vargas, J.E., Vargas, L.A., et al. 1991 Magnetic resonance imaging of severely disturbed

Neuroimaging in child and adolescent psychiatry 471 children – a preliminary study. Journal of the American Academy of Child and Adolescent Psychiatry 30, 466–70. Horowitz, H., Rumsey, J.M., Grady, C.L., et al. 1988. The cerebral metabolic landscape in autism. Archives of Neurology 45, 749–55. Hyde, T.M., Stacey, M.E., Coppola, R. 1995. Cerebral morphometric abnormalities in Tourette’s syndrome: a quantitative MRI study of monozygotic twins. Neurology 45, 1176–82. Jacobsen, L.K., Giedd, J.N., Vaituzis, A.C., et al. 1996. Temporal lobe morphology in childhood-onset schizophrenia. American Journal of Psychiatry 153, 355–61. Jacobsen, L.K., Giedd, J.N., Castellanos, F.X., et al. 1998. Progressive reduction of temporal lobe structures in childhood-onset schizophrenia. American Journal of Psychiatry 155, 678–85. Jacobsen, R., Le Couteur, A., Haulin, P., et al. 1988. Selective subcortical abnormalities in autism. Psychological Medicine 18, 39–48. Kaplan, B. 2000: In Sadock, B.J., Sadock, V.A. (eds), Sadock’s Comprehensive Textbook of Psychiatry, 7th edition. Lippincot, Williams & Wilkins. Katzman, D.K., Lambe, E.K., Mikulis, D.J., et al. 1996. Cerebral gray matter and white matter volume deficits in adolescent girls with anorexia nervosa. Journal of Pediatrics 129, 794–803. Kingston, K., Szmukler, G., Andrewes, D., et al. 1996. Neuropsychological and structural brain changes in anorexia nervosa before and after refeeding. Psychol. Med. 26, 15–28. Lou, H.C., Henriksen, L., Bruhn, P. 1984. Focal cerebral hypoprofusion in children with dysphasia and/or attention-deficit disorder. Archives of Neurology 41, 825. Mayberg, H.S., Lewis, P.J., Reginald, W., et al. 1994. Paralimbic hypoperfusion in unipolar depression. Journal of Nuclear Medicine 35, 929–34. Moriarty, J., Costa, D.C., Schmitz, B. 1995. Brain perfusion abnormalities in Gilles de la Tourette’s syndrome. British Journal of Psychiatry 167, 249–54. Murakani, J.W., Courchesne, E., Press, G.A., et al. 1989. Reduced cerebellar hemisphere size and its relationship to vermal hypoplasia in autism. Archives in Neurology 46, 689–94. O’Tauma, L.A., Dickstein, D.P., Neeper, R., et al. 1999. Functional brain imaging in neuro-psychiatric disorders of childhood. Journal of Child Neurology 14, 207–21. Peterson, B.S. 1995. Neuroimaging in child and adolescent neuropsychiatric disorders. Journal of the American Academy of Child and Adolescent Psychiatry 34, 1560–76. Peterson, B., Riddle, M.E., Cohen, D.J. 1992. Reduced basal ganglia volumes in Tourette’s syndrome using three-dimensional reconstruction techniques from magnetic resonance images. Neurology 43, 941–9. Piven, J., Nehme, E., Simon, J. et al. 1992. Magnetic resonance imaging in autism: measurement of the

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PART

6

Correctional psychiatry

47 The history of correctional psychiatry Peter N. Barboriak

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48 Standards for the delivery of mental health services in a correctional setting B. Jaye Anno

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49 The structure of correctional mental health services Joel A. Dvoskin, Erin M. Spiers, Jeffrey L. Metzner and Steven E. Pitt

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50 Administrative and staffing problems for psychiatric services in correctional and forensic settings Robert T.M. Phillips and Carol Caplan

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51 Issues in the prevention and detection of suicide potential in correctional facilities Gerald Landsberg and Pamela Morschauser

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52 The psychosocial basis of prison riots Phyllis Harrison-Ross and James E. Lawrence

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53 The right to refuse treatment in a criminal law setting Michael L. Perlin

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54 Psychiatric ethics in the correctional setting Jay E. Kantor

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47 The history of correctional psychiatry PETER N. BARBORIAK

The number of incarcerated persons in the United States reached an all time high in 1999. The United States Department of Justice indicated that federal, state, and municipal governments incarcerated a total of 2 026 596 individuals by the end of 1999 (Beck 2000). A significant proportion of these incarcerated individuals suffers from major psychiatric disorders or substance abuse, or requires psychiatric intervention. Inadequate mental health services to mentally ill criminal offenders remain an urgent problem despite a long history of psychiatric service to prisoners (Metzner 1997a). Correctional psychiatry refers to the practice of psychiatry in the correctional setting including lock-ups, jails, detention centers, juvenile correctional institutions, prisons, and community corrections programs. Historically, correctional psychiatrists have engaged in treatment and rehabilitation of prisoners (Travin 1994). Prisoners with legally recognized emotional or mental disorders have been identified as mentally disordered offenders. Certain mentally disordered offenders, however, are not in the custody of a correctional institution (Halleck 1987; Wettstein 1998). This chapter focuses on the historical development of correctional psychiatry in the United States. The history of correctional psychiatry in the United States has been driven by a longstanding medical interest in explaining and treating criminal behavior. Social reformers, rather than physicians, played the most important roles in the origins of American correctional institutions. The beginnings of American penology and the invention of the prison arose from the same reform movements that gave rise to mental hospitals in the early nineteenth century. Historical developments that shaped psychiatric institutions exerted similar influences on the historical development of correctional institutions.

EVOLUTION OF THE PRISON The modern system of correctional incarceration originated in the first half of the nineteenth century. Reformers in Great Britain and the American colonies sowed the seeds

for this new system beginning in the eighteenth century. Eighteenth-century British politicians and moral reformers on both sides of the Atlantic sought to find a solution to the perceived problem of rampant lawlessness. Reformers attempted to find humane alternatives to the traditional punishments practiced in Great Britain and the American colonies, including branding, mutilation, flagellation, public ridicule, and death. Limited incarcerations in workhouses involving forced labor became a popular alternative to traditional punishments. In Great Britain, the existence of a large empire with areas ripe for settlement and in need of cheap labor suggested another solution. Beginning in the seventeenth century, but expanding significantly in the eighteenth century, British courts transported convicts to colonies in America, the Caribbean, and, later Australia. British reformers such as John Howard, and Quakers on both sides of the Atlantic, advocated a different approach. They suggested that criminals could be morally redeemed through reflection and repentance in a regularized, structured, and peaceful environment. They argued that penitentiaries would humanely redeem the fallen (McGowen 1995). In a similar fashion, Quakers and other reformers advocated for and established asylums for the mentally ill beginning in the eighteenth century. They argued that ‘moral treatment’ in asylums would humanely redeem the mentally ill. In addition, early nineteenth century mental health reformers were strongly motivated to provide adequate housing and treatment for the mentally ill, who were often confined in local jails in the absence of any other suitable place for them (Grob 1994). Some historians have characterized the asylum and prison reform movements as merely flip sides of the same coin. Rothman viewed the emergence of psychiatric institutions and correctional institutions as part of an overarching mechanism to control social deviance in the United States (Rothman 1971). The beginnings of correctional reforms in the United States are generally dated to 1790, with the opening of the Walnut Street Jail in Philadelphia, Pennsylvania. This facility pioneered the use of the ‘Pennsylvania system,’

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which used solitary confinement as a tool to force the inmate to reflect upon and repent of his or her criminal behavior. The system was further refined at the Eastern State Penitentiary in Philadelphia, completed in 1829. Architects designed the physical layout of Eastern State Penitentiary as the ‘ideal prison,’ by meeting specific requirements of the Pennsylvania system, in which inmates were not allowed to interact with one another in any way. Proponents of the Pennsylvania system believed that total isolation would allow inmates to reflect on and reform their morals while protecting them from the corrupting influences of other criminals (Johnston 1994). In 1817, New York opened Auburn State Prison and established the ‘Auburn system’ model to secure and rehabilitate prisoners. In contrast to the Pennsylvania system, advocates of the Auburn system isolated inmates at night, but relied on group meals and hard labor performed in groups to provide the impetus to moral change. Inmates under the Auburn system were severely punished for talking to or otherwise interacting with one another. Although both models stressed isolation, strict obedience, and steady labor, fierce competition between advocates of the two systems developed by the 1830s (Friedman 1993). Prison reform and mental health reform continued to be closely allied during the antebellum period. For example, Dorothea Dix, confident in the curative power of asylums, worked actively to reform jails and prisons. She tirelessly visited houses of correction, jails, and prisons, where she interacted with the prisoners (Gollaher 1995). She took part in the controversy between the Pennsylvania and Auburn systems by writing in favor of the Pennsylvania system (Dix 1845). Few American prisons during this period attempted to care specifically for mentally disordered offenders. The first psychiatric hospital for the criminally insane was opened next to Auburn State Prison in 1855. Eventually, hospitals for the criminally insane were opened in Massachusetts, Michigan, and Illinois (Halleck 1965). Despite idealistic efforts to reform and humanize the criminal justice system, the new models themselves drew criticism as cruel and inhumane institutions. For example, Charles Dickens criticized the Pennsylvania system after visiting the Eastern State Penitentiary in 1842. He characterized the system as ‘rigid, strict, and hopeless solitary confinement.’ He witnessed inmates who suffered ‘an anguish so acute and so tremendous that all imagination of it must fall short of the reality.’ He wrote, ‘I hold this slow and daily tampering with the mysteries of the brain, to be immeasurably worse than any torture of the body’ (Dickens 1842). Multiple criticisms of the early penitentiary systems reflected similar criticisms aimed at the asylum movement. Prisons during the second half of the nineteenth century underwent a progressive decline in faith in the ability of the established prison models to redeem inmates. The period between approximately 1870 and 1900 witnessed

the rise of a new correctional philosophy called the reformatory model. This model stressed the use of education and vocational training, combined with indeterminate sentencing, to promote change in the prisoner (Friedman 1993).

THE RISE AND FALL OF PSYCHIATRIC CRIMINOLOGY Biological and anthropological theories dominated explanations for criminality and other antisocial behaviors in the nineteenth century. For example, the work of the Italian criminologist Lombroso postulated the existence of hereditary physical criminal types. During the late nineteenth century theorists on the etiology of crime, including psychiatrists, supported the concept of a ‘criminal brain’ based on anatomical and physiological studies. The practical application of such ideas led to the eugenics movement and sterilization of criminals in the early twentieth century (Halleck 1965). Subsequently, psychiatrists and others found little empirical support for hereditary biological and anthropological theories of criminal behavior. Noted psychiatrist William Alanson White effectively argued against coerced sterilization in 1915 (White 1917). The origins of psychiatry’s interest in developing an alternative to moralistic, biological, or anthropological theories of criminal behavior began in the nineteenth century. Interest in studying and treating antisocial and other deviant behaviors can be traced back to the father of American psychiatry, Benjamin Rush, who in his psychiatric textbook of 1812, suggested that medical causes could account for deviant behavior (Rush 1812). This intellectual movement only began to gain momentum in the late nineteenth century. Correctional psychiatrist H. E. Allison called for psychiatric examination of all offenders as early as 1894 (Allison 1894). The early twentieth century witnessed the flowering of the Progressive Era. Progressives believed in the rational reformation of society by experts. Though generally considered to date from approximately 1900 to 1920, the influence of the Progressive Era on correctional psychiatry extended from the 1920s to the 1960s. During this period, psychiatrists strove to view crime through a medical model and to establish a psychiatric criminology. Ultimately, optimism in psychiatry’s ability to understand and treat deviant behavior scientifically, led to calls for alternatives to incarceration and outpatient approaches to treatment. The rise of a juvenile justice system during the Progressive Era played an important role in the development of correctional psychiatry. In 1909, William Healy established the first court clinic in Chicago, where he conducted psychiatric evaluations for the court. His model for a court clinic was later copied in other juvenile courts,

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and in adult criminal courts in major jurisdictions. In conjunction with the young sciences of psychology and sociology, Healy fostered a psychiatric interest in the study of delinquency that laid the groundwork for the rise of a medical model of crime, and influenced studies of psychopathy and antisocial behavior (Healy 1915; Levine and Levine 1992). Another source for the origins of psychiatric criminology came from the mental hygiene movement. Founded in 1909 by Clifford Beers, a former patient, with support from psychiatrists and psychologists, the National Committee for Mental Hygiene aimed to protect the public’s mental health. The mental hygiene movement advocated for preventive measures to curb delinquency and criminal behavior (Salmon 1920). Caught up in the ideals of the Progressives during the 1920s, psychiatrists argued strongly that psychiatric expertise could solve the problems of criminals and crime. Excitement over new psychological insights provided by psychoanalysis also played a role in this movement, pioneered by the state of Massachusetts. In 1921, Massachusetts enacted the Briggs Law, which called for psychiatric examination of all defendants charged with a capital crime, or felons with prior felony convictions (Halleck 1965). Prominent psychiatrists such as William Alanson White, superintendent of St. Elizabeths Hospital in Washington, DC, called for closer relationships among psychiatrists, attorneys, and the courts (White 1927). Prominent legal scholars such as Sheldon Glueck reflected the growing interest of progressive attorneys and judges by incorporating the latest psychiatric concepts in their work (Glueck 1925). Psychiatric explanations for criminal behavior catapulted into the general public’s attention during the sensational Leopold–Loeb trial, an early ‘crime of the century.’ Nathan Leopold and Richard Loeb, two nineteen-year-old sons of wealthy Chicago families, murdered a fourteenyear-old boy in 1924. Their attorney, Clarence Darrow, successfully used psychodynamic expert testimony to avoid the death penalty. Defense experts included William Healy, William Alanson White, and Bernard Glueck, a psychiatrist at Sing Sing Prison in New York. Psychiatric aspects of the Leopold–Loeb trial further encouraged the development of psychiatric criminology (Diamond 1994). Leading psychiatric reformers wished to apply the medical model to the correctional system. They criticized the traditional correctional approach of punishment as cruel and ineffective. They urged a scientific, individualized approach ‘which has rehabilitation and reconstruction as its end’ (Glueck 1935). Despite the rhetoric suggesting a possible medical cure for crime, correctional psychiatrists engaged in little treatment. Psychiatrists working for the courts and correctional institutions concentrated on diagnostics and classification (Halleck 1965). The first survey of correctional psychiatrists conducted by Overholser in 1928 identified twenty-nine correctional

institutions with at least one full-time psychiatrist, and sixty-four institutions with at least one part-time psychiatrist. Overholser found that 110 criminal courts out of a total of 1058 employed full or part-time psychiatrists (Overholser 1928). The Committee on the Legal Aspects of Psychiatry of the American Psychiatric Association played an important part in advocating for increasing psychiatric involvement in corrections and psychiatric criminology. Psychiatrists such as Karl A. Menninger and William Alanson White represented crime as a kind of failure in life adaptation that fell within the focus of psychiatry. They asserted that psychiatric study of individual criminals and their crimes would lead to ‘an efficient and scientific solution’ to the problem of crime. The Committee on Legal Aspects of Psychiatry issued a report supporting these views in 1925 (Grob 1985). The interest in developing a psychiatric criminology and applying that knowledge to the criminal justice system flourished in the 1930s. Leading psychiatrists, lawyers, and judges continued to foster the process of close cooperation. The beginning acceptance of psychoanalytic theories engendered a confidence in fledgling American psychoanalysts that they could unlock the unconscious and psychosexual origins of criminal behavior. American psychiatrists were strongly influenced by the translation and American publication in 1931 of the seminal German study of the psychodynamics of crime, The Criminal, the Judge, and the Public (Alexander and Staub 1931). In 1931, the Forensic Psychiatry Committee of the American Psychiatric Association, including members William Alanson White, Bernard Glueck, and Winfred Overholser, proclaimed that psychiatry must play an important role in the problems of crime (American Psychiatric Association 1932). During this period, psychiatric work with criminals earned prestige and respect from others in the field. The National Commission on Law Observance and Law Enforcement, in conjunction with American Bar Association, recommended that larger courts routinely access psychiatric expertise by establishing court clinics (American Psychiatric Association 1931). The establishment of court clinics resulted in the routine evaluation and occasional treatment efforts towards defendants in major cities. The first psychiatric clinic attached to an adult court was founded in Detroit in 1919. Subsequent court clinics opened in Baltimore, Chicago, New York, Cleveland, Pittsburgh, and Philadelphia. The American Psychiatric Association formally recognized the growing importance of forensic and correctional psychiatry by organizing a Section on Forensic Psychiatry in 1934 with William Alanson White as its first chairman. This and similar developments led to ‘golden years of awakening in the field of criminal jurisprudence’ (Zilboorg 1944). Psychiatric interest in the ‘sexual psychopath’ developed in the 1930s. Public opinion feared an epidemic of sex crimes, and the criminal justice system viewed psychiatrists

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as a valuable resource. A number of psychiatrists voiced confidence that scientific study of sexual offenders could result in effective prevention and treatment. Many state legislatures passed sexual psychopath laws including Illinois in 1938, and Michigan and California in 1939. Psychiatric criminology fueled an interest into psychiatric research involving in-depth analysis into the histories of individual criminals (Karpman 1933; McCartney 1934). In practice, psychiatric attempts to evaluate, treat, and research criminals fell short of the standards proclaimed by the leading psychiatric thinkers of the day (Bromberg 1982). Despite these problems, few psychiatrists heeded voices of caution, such as Menas Gregory who commented in 1935 that ‘psychiatry might be over-sold’ (Gregory 1935). Despite strong interest and prestige, few psychiatrists actually practiced correctional psychiatry. A survey conducted by McCartney in 1934 revealed forty-eight full-time and thirty-five part-time psychiatrists practicing in prisons (Halleck 1965). Interest in psychiatric criminology waned during the 1940s, as psychiatrists turned their attentions to the psychiatric aspects of World War II. Correctional psychiatry services decreased, and efforts towards treatment of offenders became sporadic. Research efforts continued, especially studies in the psychodynamics of psychopathy, which bore fruit during the decade (Cleckley 1941; Wittels 1942; Greenacre 1945). In addition, specialized programs for specific offender populations, especially sex offenders, became established in a number of states. Indeterminate sentencing for sexual offenders became more popular. Psychiatrists generally favored indeterminate sentencing as an important component of a treatment program for criminal behavior using the medical model. However, the Group for the Advancement of Psychiatry fiercely criticized indeterminate sexual offender sentencing in 1947, owing to fears regarding due process and the lack of treatment for those receiving indeterminate sentences (Halleck 1965). The 1950s witnessed a renewed interest in correctional psychiatry and psychiatric criminology. The success of psychoanalytic explanations and treatments for war-related traumatic neuroses spurred a general interest in individual and group therapy. Founded in 1950, the Association for Psychiatric Treatment of Offenders encouraged large-scale individual and group psychotherapeutic treatment for prisoners. Massachusetts instituted an extensive outpatient evaluation and treatment program for probationers and parolees. As correctional psychiatrists engaged in more intensive treatment rather than diagnosis and classification, ethical concerns regarding dual agency became more common (Halleck 1965). Interest in innovative treatment and reformation of the psychopath resulted in the establishment of the Patuxent Institution in Maryland in 1955. Maryland courts committed ‘defective delinquents’ to the institution under a completely indeterminate sentence until they were rehabilitated, and safe to re-enter society. Defective

delinquent was defined as ‘an individual who by the demonstration of persistent aggravated antisocial or criminal behavior evidences a propensity towards criminal activity and is found to have either some intellectual deficiency or emotional imbalance or both as to clearly demonstrate an actual danger to society.’ Patients received group therapy and individual counseling. An institutional review board evaluated patients for release to the community, which was usually contingent on continued outpatient therapy (Guttmacher 1968). Wisconsin established a similar program for sex offenders. California opened the Vacaville Medical Facility in 1955 to provide innovative therapeutic approaches, especially group programming, for prisoners. The Federal Bureau of Prisons achieved a role as an innovator in correctional psychiatry during this period. Psychiatrists provided a full range of forensic evaluations and innovative treatment programs for the federal prisons (Halleck 1965). Despite these developments, even fewer psychiatrists worked in correctional settings, relative to past periods. A survey by Warren Wille in 1957 found fortythree full-time and thirty-five part-time psychiatrists working in correctional settings. Only nineteen state prisons reported having a full-time psychiatrist on staff. Ten states reported no psychiatrists working in any capacity in their correctional systems (Wille 1957). Correctional psychiatry continued to make a resurgence through the 1960s, and correctional psychiatrists continued to express confidence in their ability to rehabilitate individual prisoners using psychotherapy. In terms of numbers, however, correctional psychiatry during the 1960s remained a minor part of clinical psychiatry. An American Psychiatric Association survey in 1961 indicated that sixty-five psychiatrists reported spending over 30 hours a week in correctional institutions, with an additional forty-five spending at least 15 hours of parttime work or consultation (Halleck 1965). Three years later, the chief psychiatrist of the Federal Bureau of Prisons reported that only fifty-six full-time psychiatrists covered the nations’ 230 correctional institutions (Smith 1964). Leaders in both psychiatry and corrections still envisioned an important role for psychiatry. They believed that psychiatry could contribute ‘understanding, handling, and, hopefully, correction of socially unacceptable behavior’ (Smith 1964). In addition, psychiatry was felt to have a role in modifying the ‘anti-therapeutic’ aspects of incarceration. By the 1960s, some forensic psychiatrists raised doubt about the concept that all criminals suffered from some type of mental illness (Guttmacher 1968). The optimism expressed early in the decade changed to criticism as the decade ended. Proposals for new innovative programs remained on paper while prisoners often received minimal mental health services. Conflicts between psychiatrists and correctional staff impeded the therapeutic mission of correctional mental health services (Stamm 1962). Voices for immediate remedies became

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prominent. Critics noted that correctional institutions continued to stress security over the psychological needs of prisoners, and they called for action to reform correctional mental health services (Halleck 1967). Correctional psychiatrists continued to complain that evaluation and treatment of inmates with mental illness was too limiting. Advocacy for primary focus on rehabilitation and for prisons to become ‘centers for the study, diagnosis, and treatment of the criminal mind’ continued the goals of the Progressive Era (Fink, Derby, and Martin 1969). The 1960s witnessed the beginnings of standards of healthcare for jails and prisons. In 1966, the American Correctional Association published standards for correctional institutions that included a section on healthcare (American Correctional Association 1966).

CORRECTIONAL PSYCHIATRY IN TRANSITION The 1970s proved to be a time of significant change in correctional psychiatry. Psychiatrists saw their influence in corrections wane, as the concept of rehabilitation came under strong attack. Psychiatrists lost enthusiasm for the coerced psychiatric cure for criminal behavior (Rappeport 1974). Critics of psychiatry questioned the effectiveness and therapeutic authority of correctional psychiatry. A number of prison riots, especially the Attica rebellion in 1971, shook the foundations of corrections. The correctional bureaucracy began to question the utility of correctional psychiatry, as faith in rehabilitation for prisoners faded. Prison and jail inmate populations exploded and placed severe pressures on correctional systems. Overall, psychiatrists became more modest in their therapeutic goals (Roth 1986). Correctional psychiatry lost prestige and appeared unappealing to many if not most clinicians (Cumming and Soloway 1973). The Supreme Court and lower courts significantly increased constitutional protections for prisoners’ rights. Prior to 1973, the courts allowed prison administrators a free hand in running prisons, including the restrictions of civil rights. For example, the Virginia Court of Appeals ruled in 1871 that ‘Prisoners have no more rights than slaves’ (Ruffin v. Commonwealth 1871). A number of Supreme Court and Appeals Courts rulings greatly expanded the basic constitutional rights of prisoners. In 1974, the Supreme Court clearly affirmed a basic set of prisoner rights (Wolff v. McDonnell 1974). The Fifth Circuit Court of Appeals ruled that lack of mental health care could violate a prisoner’s Eighth Amendment protections (Newman v. Alabama 1974). The landmark case Estelle v. Gamble (1976) set a standard for the provision of medical care for prisoners. Estelle v. Gamble held that inadequate medical care constituted cruel and unusual punishment. The United States Supreme Court established a ‘deliberate indifference’ standard of medical care. In 1977, the Fourth Circuit Court of Appeals ruled that the

right to mental health care was equal to a prisoner’s right to medical care in Bowring v. Godwin (1977). The Supreme Court ruled on a prisoner’s due process rights when transferred from a prison to a psychiatric hospital in Vitek v. Jones (1980). The court ruled that such transfers required procedural safeguards, including an adversarial administrative hearing with available legal counsel due to stigmatization and other ‘curtailment of liberty.’ Research into antisocial behavior continued, but the emphasis in jails and prisons was to treat mentally disordered prisoners. Commentators increasingly questioned psychiatry’s attempts to treat antisocial behavior, even in those individuals with other mental illnesses. Critics asserted that psychiatrists and other mental health professionals could not demonstrate the effectiveness of coerced treatment on patients engaging in antisocial behavior, and that the mental health system perpetuated myths about the curability of this population. John Monahan, for example, complained of the ‘psychiatrization of criminal behavior’ (Monahan 1973). Critics in and out of psychiatry questioned the effectiveness and moral basis of sexual psychopath laws. States progressively phased out commitment laws and traditional treatment programs (Group for the Advancement of Psychiatry 1977). By the early 1970s, many psychiatrists feared that changes making involuntary commitment laws more stringent would force many individuals with mental illness into the criminal justice system (Abramson 1972; Kirk and Therrein 1975; Rachlin, Pam, and Milton 1975). Steadman’s research to address this question cautioned that perceptions of increasing numbers of mentally ill inmates in prisons and jails were not supported by statistics (Steadman and Ribner 1980). For the most part, the 1980s represented a period of consolidation for correctional psychiatry. Turning from a focus on societal goals, correctional practitioners focused on dealing with particular problems of mental health service delivery in the correctional environment, and on evaluation and treatment of individual prisoners (Roth 1986; Rosner and Harmon 1989). The prestige of correctional psychiatry remained low. Critics from within psychiatry pointed out a number of perceived problems with correctional psychiatry: isolation from mainstream clinical practice, collusion with correctional authorities, professional legitimization of dehumanizing, coercive institutions, and poor working conditions. Correctional psychiatry positions seemed dangerous, unpleasant, and poorly paid (Goldstein 1983; Hollingsworth 1985). Inmate populations continued to grow rapidly due to increased conviction rates and the gradual shift to determinate sentencing. Social critics continued to criticize the mental healthcare provided in jails and prisons. Criticisms included the lack of specialized mental health housing units, misuse of psychotropic medications, overuse of restrictive interventions, and general prison conditions that contributed to prisoner psychopathology

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(Kaufman 1980). Standards for correctional mental healthcare continued to develop in the 1980s. The National Commission on Correctional Health Care published a set of healthcare standards for jails, prisons, and juvenile detention centers (National Commission on Correctional Health Care 1986a; National Commission on Correctional Health Care 1986b). These efforts were supplemented by standards published by the American Bar Association in 1989 (American Bar Association 1989). In 1989 the American Psychiatric Association published suggested guidelines for mental healthcare standards in jail and prisons (American Psychiatric Association 1989).

THE 1990s Significant changes in the structure of correctional psychiatry occurred in the 1990s because of the rise of managed healthcare driven by skyrocketing healthcare costs. State legislatures responded in similar fashion to rising prison populations, limited prison beds, class action lawsuits, and skyrocketing costs. Various state departments of correction and the federal government experimented with privatization of prisons. Many states privatized correctional healthcare and mental healthcare in a bid to save money. Managed mental healthcare appeared to be an effective way to curb costs, yet provide mandated services (Patterson 1998). Large companies such as Corrections Corporation of America, Wackenhut Corrections Corporations, and Prison Health Services managed prisons and health services beginning in the 1980s. State legislatures and departments of corrections viewed these companies as solutions to problems such as the cost of care and difficult staffing of healthcare services. Critics of private companies accused them of underbidding in order to get a foothold in the state contracts. Critics also charged that private mental health centers provided overly restrictive formularies, restricting diagnostic testing, and decreasing lengths of stay. Newspapers have alleged significant problems in correctional mental health services (Hurst 1995; Kurkijan 1996; Corcoran 1999a; Corcoran 1999b). Critics have characterized the current state of prison mental health as woefully inadequate, cruel, and the byproduct of a corrupt ‘prison-industrial complex’ (Kupers 1999). Recently, pressures on managed care have resulted in increased costs, and the same trend is evident in correctional mental health services. Competition between managed care companies has resulted in instability, as contracts switch from company to company. In addition, private corrections companies and managed health service providers have continued to merge. The experience of departments of correction has been to see increased need for mental health services with limited resources. The result has been shortened lengths of stay on mental health units.

The courts continued to clarify and tighten prisoner rights during the decade. The Supreme Court clarified the definition of deliberate indifference regarding cruel and unusual punishment in Farmer v. Brennan (1994). The court ruled that prisons officials were liable for cruel and unusual punishment if they knew that the inmate faced a substantial risk of harm, but disregarded that risk. The Supreme Court ruled on the involuntary administration of psychotropic medications to prisoners in Washington v. Harper (1990) and Riggins v. Nevada (1992) based on Fourteenth Amendment rights. In Washington v. Harper, the court ruled that psychotropic medications could be involuntarily administered if the treatment arose from ‘legitimate penological interests’ and if the prisoner received institutional due process protections. Two years later, the Riggins v. Nevada decision ruled that pre-trial detainees could not be involuntary treated with psychotropic medications unless the government established a need for treatment. Research efforts in the 1990s concentrated on epidemiological studies to determine mental health service requirements. In addition, research efforts analyzed the provision of mental health services in specific institutions in light of mental healthcare standards. Such research led to a promising analytic approach to understanding and improving correctional mental health services by utilizing a systems approach (Metzner 1997a; Metzner 1997b; Metzner 1998). Epidemiological studies continued to demonstrate a high prevalence of mental illness and substance abuse in populations of prisoners (Teplin 1990; Teplin, Abram, and McClelland 1996; Lamb and Weinberger 1998).

FUTURE DIRECTIONS Correctional psychiatry faces today a period of flux. The need for mental health services has increased in light of soaring prison populations and legal mandates. The expense of mental health services has increased despite managed care measures. The price of medications continues to rise, and mental health correctional budgets must contend with the increasing costs of medication to treat HIV and hepatitis. Current trends included augmentation and substitution of psychiatrists with physician extenders, increased ‘outpatient’ services in the general prisoner populations of correctional institutions, and increasing use of case managers. The future of privatized mental health services appears uncertain. Though private managed behavioral health systems have clearly cut costs in the short term, the trend is for increasing costs and probable decreased profit margins, as much abuse and waste in the system has already been reduced. News accounts have documented rising criticism of managed care in prison (Allen and Bell 1998; Marshall 2000). Recent problems with privatized prisons, including allegations

The history of correctional psychiatry 481

of substandard services and inmate riots, may have slowed the trend towards the privatization of correctional institutions. The need for specialized programs for substance abuse and sexual offenders continues to grow. The Supreme Court’s ruling in Kansas v. Hendricks (1997) reverts to reasoning found in early sexual psychopath legislation. Correctional psychiatry continues to make more modest claims to its role in corrections as a whole. In uncertain times, correctional psychiatrists must continue to focus on providing better service for their patients. Developments in correctional mental health systems continue to provide psychiatrists and other mental health professionals with opportunities for leadership and innovation (Halpern 1998).

Acknowledgments Significant assistance was received from Beltran J. Pages, M.D., Mental Health Director of the North Carolina Department of Correction.

REFERENCES Abramson, M.F. 1972. The criminalization of mentally disordered behavior: possible side-effect of a new mental health law. Hospital and Community Psychiatry 23, 101–5. Alexander, F., Staub, H. 1931: The Criminal, the Judge, and the Public. Translated by G. Zilboorg. New York, NY: Macmillan Co. Allen, W., Bell, K. 1998: Death, neglect, and the bottom line, push to cut costs poses risks. St. Louis Post-Dispatch, September 27. Allison, H.E. 1894. Insanity among criminals. American Journal of Insanity 51, 54–63. American Bar Association. 1989: ABA Criminal Justice Mental Health Standards. Washington, DC: American Bar Association. American Correctional Association. 1966: Manual of Correctional Standards. Washington, DC: American Correctional Association. American Psychiatric Association. 1931. Report of the Committee on Legal Aspects of Psychiatry. American Journal of Psychiatry 88, 375–82. American Psychiatric Association. 1932. Psychiatry and prison problems. American Journal of Psychiatry 88, 822–3. American Psychiatric Association. 1989: Report of the Task Force on Psychiatric Services in Jails and Prisons. Washington, DC: American Psychiatric Association. Beck, A.J. 2000: Prisoners in 1999. Washington, DC: United States Department of Justice, Bureau of Justice Statistics. Bowring v. Godwin, 551 F.2d 44 (4th Cir. 1977).

Bromberg, W. 1982: Psychiatry Between the Wars, 1918–1954: A Recollection. Westport, Connecticut: Greenwood Press. Cleckley, H. 1941: The Mask of Sanity. St. Louis, MO: C.V. Mosby Co. Corcoran, K. 1999a: Help for mentally ill prisoners in jeopardy; state officials threaten to scuttle $98 million outsourcing deal for psychological services. The Times [Indiana] January 18. Corcoran, K. 1999b: Mental health for inmates faces problems. The Times [Indiana] January 18. Cumming, R.G. and Soloway, H.J. 1973. The incarcerated psychiatrists. Hospital and Community Psychiatry 24, 631–33. Diamond, B.L. 1994: Psychoanalysis in the courtroom. In Quen, J.M. (ed.), The Psychiatrist in the Courtroom; Selected Papers of Bernard L. Diamond, M.D. Hillsdale, NJ: The Analytic Press, 1–18. Dickens, C. 1842: American Notes for General Circulation. Volume I. London: Chapman & Hall. Dix, D. 1845: Remarks on Prisons and Prison Discipline in the United States. Boston: Munroe and Francis. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285 (1976). Farmer v. Brennan, 114 S.Ct. 1970 (1994). Fink, L., Derby, W.N., Martin, J.P. 1969. Psychiatry’s new role in corrections. American Journal of Psychiatry 126, 542–6. Friedman, L.M. 1993: Crime and Punishment in American History. New York: Basic Books. Glueck, B. 1935. Psychiatry and the criminal law. A. The psychiatric aspect. Journal of Nervous and Mental Diseases 81, 192–4. Glueck, S.S. 1925: Mental Disorder and the Criminal Law; A Study in Medico-Sociological Jurisprudence, with an Appendix of State Legislation and Interpretive Decisions. Boston: Brown, Little. Goldstein, N. 1983. Psychiatry in prisons. Psychiatric Clinics of North America 6, 751–65. Gollaher, D. 1995: Voice for the Mad: The Life of Dorothea Dix. New York: The Free Press. Greenacre, P. 1945. Conscience in the psychopath. American Journal of Orthopsychiatry 15, 495–509. Gregory, M.S. 1935. Psychiatry and the problems of delinquency. American Journal of Psychiatry 91, 773–81. Grob, G.N. (ed.). 1985: The Inner World of American Psychiatry, 1890–1940: Selected Correspondence. New Brunswick, NJ: Rutgers University Press. Grob, G.N. 1994: The Mad Among Us: A History of the Care of America’s Mentally Ill. New York: The Free Press. Group for the Advancement of Psychiatry. 1977: Psychiatry and Sexual Psychopath Legislation, the 30’s to the 80’s. Volume 9: 831–956. Guttmacher, M.S. 1968: The Role of Psychiatry in Law. Springfield, IL: Charles C. Thomas. Halleck, S.L. 1965. American psychiatry and the criminal. American Journal of Psychiatry 121(suppl.), i–xxi.

482 Correctional psychiatry Halleck, S.L. 1967: Psychiatry and the Dilemmas of Crime. Berkeley, CA: University of California Press. Halleck, S.L. 1987: The Mentally Disordered Offender. Washington, DC: American Psychiatric Press. Halpern, A. 1998: Psychotherapy in American prisons: prospects for the 21st century. Abstract, Seventh Annual Meeting of the International Association of Forensic Psychotherapy. Healy, W. 1915: The Individual Delinquent. Boston: Little, Brown. Hollingsworth, J.B. 1985. Overview of correctional psychiatry. American Journal of Forensic Psychiatry 6, 23–8. Hurst, J. 1995: Appointment of ‘special master’ is ordered to oversee psychiatric reforms. State claims system has improved. Los Angeles Times, September 15. Johnston, N. 1994: Eastern State Penitentiary: Crucible of Good Intentions. Philadelphia: Philadelphia Museum of Arts. Kansas v. Hendricks, 117 S. Ct. 2072 (1997). Karpman, B. 1933: Case Studies in the Psychopathology of Crime. 2 volumes. Washington, DC: Mineoform Press. Kaufman, E. 1980. The violation of psychiatric standards in prisons. American Journal of Psychiatry 137, 566–70. Kirk, S.A., Therrein, M.E. 1975. Community mental health myths and the fate of former hospitalized patients. Psychiatry 38, 209–17. Kupers, T.A. 1999: Prison Madness: The Mental Health Crisis Behind Bars and What We Must Do About It. San Francisco: Jossey-Bass. Kurkjian, S. 1996: Lawsuit calls Plymouth inmate’s mental care inadequate, officials deny claim finances drive policies. Boston Globe, September 10. Lamb, H.R., Weinberger, L.E. 1998. Persons with severe mental illness in jails and prisons: a review. Psychiatric Services 49, 483–92. Levine, M., Levine, A. 1992: Helping Children: A Social History. New York: Oxford University Press. McCartney, J.L. 1934. An intensive psychiatric study of prisoners: the receiving routine in the classification clinic of Elmira Reformatory. American Journal of Psychiatry 90, 1183–203. McGowen, R. 1995: The well ordered prison. In Morris, N., Rothman, D.J. (eds), The Oxford History of the Prison: The Practice of Punishment in Western Society. New York: Oxford University Press, 79–109. Marshall, T. 2000: Prison health care called ‘snake pit.’ Houston Chronicle, May 4. Metzner, J.L. 1997a. An introduction to correctional psychiatry: part I. Journal of the American Academy of Psychiatry and the Law 25, 375–81. Metzner, J.L. 1997b. An introduction to correctional psychiatry: part II. Journal of the American Academy of Psychiatry and the Law 25, 571–9.

Metzner, J.L. 1998. An introduction to correctional psychiatry: part III. Journal of the American Academy of Psychiatry and the Law 26, 107–15. Monahan, J. 1973. The psychiatrization of criminal behavior: a reply. Hospital and Community Psychiatry 24, 105–7. National Commission on Correctional Health Care. 1986a: Standards for Health Services in Jails. Chicago, IL: National Commission on Correctional Health Care. National Commission on Correctional Health Care. 1986b: Standards for Health Services in Prisons. Chicago, IL: National Commission on Correctional Health Care. Newman v. Alabama, 503 F.2d 1320 (5th Cir. 1974). Overholser, W. 1928. Psychiatric service in penal and reformatory institutions and criminal courts in the United States. Mental Hygiene 12, 801–38. Patterson, R.F. 1998. Managed behavioral healthcare in correctional settings. Journal of the American Academy of Psychiatry and the Law 26, 467–73. Rachlin, S., Pam, A., Milton, A. 1975. Civil liberties versus involuntary hospitalization. American Journal of Psychiatry 132, 189–92. Rappeport, J.R. 1974. Enforced treatment – is it treatment? Bulletin of the American Academy of Psychiatry and Law 2, 148–58. Riggins v. Nevada, 112 S.Ct. 1810 (1992). Rosner, R., Harmon, R.B. (eds). 1989: Critical Issues in Psychiatry and the Law. Volume 6: Correctional Psychiatry. New York: Plenum Press. Roth, L.H. 1986: Correctional psychiatry. 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. Rothman, D.J. 1971: The Discovery of the Asylum: Social Order and Disorder in the New Republic. Boston, MA: Little, Brown, and Company. Ruffin v. Commonwealth, 62 Va. 790 (1871). Rush, B. 1812: Medical Inquiries and Observations Upon the Diseases of the Mind. Philadelphia: Kimber and Richardson. Salmon, T.W. 1920. Some new problems for psychiatric research in delinquency. Mental Hygiene 4, 29–42. Smith, C.E. 1964. Psychiatry in corrections. American Journal of Psychiatry 120, 1045–9. Stamm, R.A. 1962. Relationship problems between correctional and psychiatric staffs in a prison hospital. American Journal of Psychiatry 118, 1031–5. Steadman, H.J., Ribner, S.A. 1980. Changing perception of the mental health needs of inmates in local jails. American Journal of Psychiatry 137, 1115–16. Teplin, L.A. 1990. The prevalence of severe mental disorder among male urban jail detainees – comparison with the Epidemiological Catchment Area Program. American Journal of Public Health 80, 663–9.

The history of correctional psychiatry 483 Teplin, L.A., Abram, K.M., McClelland, G.M. 1996. Prevalence of psychiatric disorders among incarcerated women: I. Pretrial jail detainees. Archives of General Psychiatry 53, 505–12. Travin, S. 1994: History of correctional psychiatry. In Rosner, R. (ed.), Principles and Practice of Forensic Psychiatry. New York: Chapman & Hall. Vitek v. Jones, 445 U.S. 480 100 S. Ct. 1254 (1980). Washington v. Harper, 494 U.S. 210, 110 S. Ct. 1028 (1990). Wettstein, R.M. (ed.). 1998: Treatment of Offenders with Mental Disorders. New York: Guilford Press. White, W.A. 1917. Sterilization of criminals. Journal of the American Institute of Criminal Law and Criminology 8, 499–500.

White, W.A. 1927. The need for cooperation between the legal profession and the psychiatrist in dealing with the crime problem. American Journal of Insanity 84, 493–505. Wille, W.S. 1957. Psychiatric facilities in prisons and correctional institutions in the United States. American Journal of Psychiatry 114, 481–7. Wittels, F. 1942. Kleptomania and other psychopathic crimes. Journal of Criminal Psychopathology 4, 205–16. Wolff v. McDonnell, 418 U.S. 539 (1974). Zilboorg, G. 1944: Legal aspects of psychiatry. In Hall, J.K. (ed.), One Hundred Years of American Psychiatry. New York, NY: Columbia University Press, 507–84.

48 Standards for the delivery of mental health services in a correctional setting B. JAYE ANNO

Concern regarding the adequacy of health services for the incarcerated is a relatively new phenomenon. Prior to the 1970s, there was little assurance that the basic medical, dental, and mental health needs of inmates would be met. Few prisons and even fewer jails had a system of healthcare in place. Health services were characterized by insufficient numbers of qualified staff, inadequate services, and the denial of access to care on a timely basis. The use of inmate workers as health providers was common and correctional staff determined who would be seen and what services would be provided.1 Three decades later, much of that picture has changed owing to the efforts of two separate forces – namely, the courts and certain professional associations. During the 1970s, the courts abandoned the ‘hands-off ’ policy that had characterized their prior approach to handling disputes between inmates and correctional administrators, and began to establish inmates’ rights to certain basics of life such as decent housing, nutritional meals, a safe environment, and adequate health services. The judicial activism of the courts was paralleled by the social activism of certain professional associations during that same era, which began to focus on the health needs of under-served populations such as the urban poor, rural America, minorities, women and children, and the incarcerated. Once the United States Supreme Court established that adequate healthcare was a right that must be extended to all inmates, and not a privilege that could be offered as a reward or denied as punishment (see Estelle v. Gamble 1976),2 it fell largely to the health professions to define 1 Anno (2001) provides a more complete historical overview of the status of correctional healthcare in the early 1970s and efforts to improve it. 2 In the Estelle v. Gamble case, the U.S. Supreme Court ruled that correctional facilities could not be ‘deliberately indifferent’ to inmates’ ‘serious medical needs.’ Later federal cases including Bowring v. Godwin (1977) established that psychiatric needs were included within the meaning of ‘serious medical needs.’

what constituted ‘adequate’ care. Several groups developed standards to govern the delivery of health services in correctional settings. This chapter traces the history of standardsetting efforts by various professional organizations, compares the efficacy of the different sets of standards on assessing the adequacy of correctional health services in general and mental health services in particular, and suggests areas that should be considered in future revisions of standards for mental health services in corrections.

THE DEVELOPMENT OF NATIONAL STANDARDS Prior to the mid-1970s, healthcare in prisons and jails usually was directed and managed by correctional officials rather than by qualified health professionals. Most correctional administrators viewed health services as a support activity, similar to food services, laundry, or recreation. There seemed to be little recognition that healthcare was a highly specialized field requiring unique skills or expertise. Thus, it followed that the first national standards addressing health care in jails and prisons were sub-sections in manuals governing overall operations of correctional facilities. Healthcare was mentioned in early publications of key correctional organizations representing both prison and jail officials. For example, the American Correctional Association’s (ACA) Manual of Correctional Standards (1966) included health as one of its topics, and in 1974, the National Sheriffs’ Association (NSA) produced a series of pamphlets for jailers that discussed the need for adequate sanitation and general health services. Similarly, the National Advisory Commission on Criminal Justice Standards and Goals devoted a couple of pages to medical issues in its 1973 volume on corrections. There were some problems with these early standards, however. In the first place, they were too brief and too

Standards for the delivery of mental health services in a correctional setting 485

general to provide much direction for improvement. Courts and correctional administrators seeking specific guidance as to what constituted ‘adequate’ care were not likely to derive much satisfaction from these early standards developed by correctional organizations. The interpretation of words such as timely, access, available, reasonable, appropriate, and acceptable were left entirely to the discretion of the reader. Similarly, the standards might state that ‘regular sick call should be held’ or that ‘adequate mental health services must be provided’ without further specification. The second deficiency was that the standards lacked enforcement power. Early national standards were simply suggested guidelines that prison and jail administrators were free to adopt or reject as they chose. Clearly, what was still needed was a set of health standards specifically designed for corrections that would provide enough detail to enable administrators to measure their facilities against those standards. The initial answer came not from corrections but from the health professions. The first national healthcare standards drafted specifically for correctional institutions were developed by the American Public Health Association (APHA) and published in 1976. That comprehensive manual addressed all aspects of ambulatory care and included separate sections on mental health services and dental care, as well as ancillary services such as pharmacy, health records, and nutrition. Said to be applicable to both jails and prisons, the 1976 APHA standards provided more specificity on health delivery than earlier sets of correctional standards. They did not, however, address the problem of enforcement. In 1977, the American Medical Association (AMA) published its first correctional health standards.3 This edition was specific to jails and, although not as detailed as those of the APHA, had the advantage of an accompanying accreditation effort that allowed facilities to be measured on the extent of their compliance with standards. The AMA’s jail standards were revised in 1978, 1979, and again in 1981, with each successive revision providing more direction and more detail based on the experience of applying these standards against actual delivery systems. In 1979, the AMA also published its first health standards for prisons as well as a separate set for juvenile confinement facilities. Standards for mental health services and substance abuse, originally intended to be published as separate volumes, instead were incorporated into the three basic sets for jails, prisons, and juvenile facilities. 3 The AMA was the first professional association to develop an active program to improve health services in correctional institutions. It began to study the problem of lack of care in 1970, and by 1975, the AMA had launched a national effort to upgrade health services for the incarcerated. The AMA continued its correctional program until 1982 when it helped to form an independent organization, the National Commission on Correctional Health Care, to carry on the standards and accreditation activity. [See Anno (2001) for more information on the AMA’s early reform efforts.]

For a time, it appeared that the correctional health standards developed by the health and corrections fields would be in concert, since the ACA used the AMA standards as the base for its health care section when it revised its manual in 1977. Subsequent revisions of ACA’s standards, though, differed in important ways from standards established by health organizations. Additionally, as discussed in the next section, the ACA’s accreditation program for jails and prisons, which includes a review of health services, operates somewhat differently than those run by health organizations. During the 1980s, a number of standards volumes covering correctional health services were published. The ACA revised several of its standards manuals and the APHA issued its second edition of correctional health standards (Dubler 1986). The National Commission on Correctional Health Care (NCCHC) assumed the AMA’s correctional health activities and published its first standards for juvenile facilities in 1984, followed by separate volumes for jails and for prisons, both in 1987. In 1985, the American Nurses’ Association (ANA) issued a small volume of standards governing nursing practice in correctional facilities, and in 1986, the American Bar Association (ABA) published a comprehensive book of standards for criminal justice that included a chapter on mental health. In 1989, the ABA’s mental health standards were expanded and issued as a separate edition. Finally, that same year, the American Psychiatric Association (APA) printed its task force report on psychiatric services in jails and prisons that included specific guidelines on mental health service delivery. There is one other national standard-setting body that should be mentioned, namely the Joint Commission on Accreditation of Healthcare Organizations (JCAHO). While JCAHO does not have any sets of standards specifically designed for correctional facilities, it is the primary accrediting body for health facilities in the community.

COMPARISON OF STANDARDS To the uninitiated, the proliferation of national standards for correctional healthcare by various professional groups can be very confusing. Thus, it may be helpful to compare the different sets in terms of their utility in offering guidance for the delivery of health services in general, and mental health care in particular. Of the eight organizations that developed standards during the 1980s, there are only four whose standards are sufficiently comprehensive to govern the delivery of health services in corrections (those of the ACA, APHA, JCAHO and NCCHC), and of these only three are actively used. The AMA’s standards are obsolete, having been revised by the NCCHC, and the ANA’s apply only to nursing issues. The ABA’s standards provide excellent guidance on a number of mental health issues, but their emphasis is on legal rights

486 Correctional psychiatry

of, and responsibilities to, the mentally ill and retarded, rather than on the care and treatment of these populations. The APA’s standards are excellent also. While they do focus on the delivery of mental health services, especially the role of the psychiatrist, they are not intended to be used as ‘stand-alone’ standards. According to the task force chair, the APA’s standards serve to supplement those of the NCCHC by providing greater specificity on mental health issues (Weinstein 1989, p. 1095). In the year 2000, the APA issued a second edition of its guidelines for psychiatric services in jails and prisons, which again stated that ‘It is important to reiterate that these guidelines are supplementary to the standards developed by the National Commission on Correctional Health Care’ (APA 2000, p. 31). The four remaining sets of national standards (ACA, APHA, JCAHO, and NCCHC) are the most comprehensive with respect to administrative concerns and health delivery system components. While they have some requirements in common, they also differ in important ways, and thus, they do not work equally well in applying them to correctional systems. The advantages and disadvantages of each set are discussed briefly. The American Correctional Association has separate volumes of standards for different types of confinement facilities, but the most widely used are those for prisons (ACA 1990) and those for jails (ACA 1991). These standards cover all aspects of managing an institution (e.g., safety, security, housing, personnel, administration) rather than focusing solely on the delivery of health care. Each set of ACA standards does have a section on health services, though, which contains some direction for providing mental health services. While the ACA’s standards have not been re-issued in a decade, standards supplements are printed periodically, the most recent of which was printed in 1998. The primary advantage of ACA’s standards is that they were developed by the largest correctional professional association, and thus, most administrators of jails and prisons are likely to be aware of them and try to follow them. However, from the perspective of health professionals, where there are potential areas of conflict between custody and medical staff – particularly related to ethical concerns such as involving health staff in custody procedures or evidence gathering – the ACA’s standards tend to stand silent or adopt the security perspective. Additionally, while the healthcare sections of the ACA’s standards address many of the same topics as those of NCCHC and APHA, they are the least comprehensive and provide the least specificity. ACA’s healthcare standards seldom include discussion, commentary, or examples that could assist health professionals in implementation. The Joint Commission on Accreditation of Healthcare Organizations does not have separate standards for correctional health facilities. Rather, it has a series of standards volumes that were designed to govern delivery of care in community facilities with various health missions (e.g., hospitals, ambulatory-care clinics, nursing homes,

and behavioral health programs such as mental health treatment facilities and substance abuse programs). The primary advantage of using JCAHO’s standards is that they do reflect the ‘community standard of care,’ since they are used in community health facilities of all types. Also, JCAHO’s standards have a strong emphasis on quality assurance. The primary disadvantage of JCAHO’s standards is that they were not designed for corrections, and hence do not address important aspects of this unique environment such as health training of correctional staff, the role of staff in evidence gathering or inmate disciplinary actions, intake procedures, and so forth. Further, certain of the ‘patient rights’ defined by JCAHO concerning privacy, telephone contacts, and visits are seen as privileges in prisons and jails and are under the control of custody rather than health staff. Also, while JCAHO’s standards provide the most specificity regarding delivery of mental health services, few prison systems and even fewer jails have freestanding mental health facilities. Thus, many of the JCAHO standards simply do not apply or are not appropriate for most correctional facilities. Finally, JCAHO’s requirements often are stated in very general terms, and key words (e.g., ‘timely,’ ‘available,’ and ‘accessible’) are left undefined. The standards developed by the American Public Health Association (Dubler 1986) address some of the problems identified with those of the ACA and JCAHO. The APHA’s standards were developed by a health organization and accordingly, emphasize the perspective of health professionals. These standards are comprehensive (covering medical, dental, and mental health services) and they are specific to corrections. Additionally, they are sufficiently detailed to provide guidance to individuals regarding implementation. Overall, APHA’s standards are very good as a set of principles, but there are two basic problems in applying them to correctional institutions. First, they are said to apply to small local jails as well as to large state prisons, which is not always practical. For example, one requirement is that, ‘Sick call shall be at least five days weekly,’ which makes sense for larger institutions, but not for smaller ones. Second, the absence of an accreditation effort associated with APHA’s standards makes it difficult to judge whether compliance has been achieved. The standards of the National Commission on Correctional Health Care have many similar advantages to those of APHA. NCCHC’s standards were developed by representatives of a number of health professional associations (including both the American Psychiatric Association and the American Psychological Association), using the prior standards of the American Medical Association as a base. NCCHC has separate sets of standards for jails (NCCHC 1996), for prisons (NCCHC 1997), and for juvenile facilities (NCCHC 1999a). Institutional size differences are also taken into account, particularly when specifying the frequency with which certain basic services should be provided. NCCHC’s standards assume a unified model of health delivery (i.e., medical, mental

Standards for the delivery of mental health services in a correctional setting 487

health, and dental care are all organized under a single authority). Hence, all standards governing administrative issues, personnel matters, care and treatment, medicolegal concerns, support services, and record keeping apply to all three services. NCCHC’s standards are also measurable, since compliance levels are established through an ongoing accreditation program. The primary disadvantage of NCCHC’s standards is that certain important areas such as environmental and occupational health issues are not addressed adequately. Further, some of the standards addressing treatment of the mentally ill should be more detailed. Recognizing that more specificity was needed in providing guidance for delivering mental healthcare in correctional facilities, NCCHC issued a companion volume to its standards in 1999. This book outlines NCCHC’s prison and jail standards and explicitly addresses the mental health concerns under each standard (NCCHC 1999b). Using this volume as a supplement to NCCHC’s prison and jail standards along with the APA’s guidelines for psychiatric services addresses most of the deficiencies regarding mental health services in the NCCHC’s standards themselves. Finally, like all of the standards except perhaps JCAHO’s, little mention is made of programming for the mentally retarded/developmentally disabled. Of the four primary sets of standards mentioned in this chapter, only three are actively used in correctional settings, since APHA does not offer accreditation under its standards. The ACA has the most correctional facilities accredited, but it reviews the management and operations of entire facilities, not just health services. NCCHC accredits health delivery systems in jails, prisons, and juvenile facilities and has nearly 600 currently accredited institutions. JCAHO’s market is primarily community facilities, but it does have some prisons (mostly federal facilities) and a few jails accredited. The steps leading to accreditation are pretty much the same for all three accrediting bodies: application; selfassessment; on-site survey; report; and accreditation decision. All three award full accreditation for a three-year period, but have their own rules and requirements for decisions short of full accreditation. All three provide some process of appeal. The primary differences in the accreditation offered by these three organizations are associated with conducting the on-site survey and with the fee charged. Since ACA’s accreditation is not focused on health services, its on-site survey provides the least comprehensive health review. Its surveyors tend to be corrections experts, but seldom include health professionals. Therefore, ACA auditors can determine whether certain things exist (e.g., policies and procedures, health records), but generally are not qualified to assess the adequacy of the documentation or the care provided. Additionally, ACA auditors rely almost solely on written documents to verify compliance. Of the three accrediting bodies, ACA’s charges fall in the middle.

JCAHO’s survey teams are comprised entirely of health professionals, but generally not those with correctional experience. Like ACA, its auditors rely primarily on documentation to determine the extent of compliance with its standards. JCAHO’s accreditation is also the most expensive. NCCHC’s survey teams are always comprised of correctional health professionals. Its surveyors rely not only on the existence of documentation to measure compliance with standards but also on observations and structured interviews. The latter are conducted with administrative staff (correctional and health), custody staff (officers, training directors, food-service managers, sanitarians), health staff (at least one from each service area or activity, and in larger institutions, several), and inmates, who are the consumers of the health care delivered in corrections. NCCHC’s accreditation is the least expensive of the three.

CONCLUSIONS AND FUTURE ISSUES Some of the key features of the primary sets of standards applicable to correctional facilities are summarized in Table 48.1. It may be useful to balance these factors in deciding which set of standards to follow in a given facility offering mental healthcare. Individuals using the standards currently available for delivery of mental health services in corrections undoubtedly will find that none of them is a perfect fit. ACA’s standards need more input from health professionals, while APHA’s should distinguish between jails and prisons as well as between small and large facilities, JCAHO’s standards require an awareness of the unique aspects of health delivery in a correctional setting, and NCCHC’s would benefit from more specificity on mental health issues. Further, all of the sets of standards need to devote more attention to programming for the mentally retarded. In corrections, as in society, these individuals are largely ignored. Fortunately, standards are not carved in stone. Most, if not all, standard-setting bodies periodically revise their Table 48.1 Comparison of national standards A

B

C

D

E

F

G

ACA APHA JCAHO NCCHC

No Yes Yes Yes

Yes Yes No Yes

Low Medium High Medium

Yes No Yes Yes

No N/A Yes Yes

Medium N/A High Low

A ⫽ name of organization; B ⫽ developed by health organization; C ⫽ specific to corrections; D ⫽ specificity on mental health issues; E ⫽ offers accreditation; F ⫽ survey conducted by health professionals; G ⫽ cost; N/A ⫽ not applicable. Source: Based on data in Anno (2001).

488 Correctional psychiatry

standards to accommodate new knowledge and technology in healthcare, or from experience derived from their application to actual facilities.4 Comments from users are actively sought and welcomed. The importance of standards in governing mental healthcare in corrections should not be underestimated. While the Supreme Court stated in Bell v. Wolfish (1979) that standards developed by professional organizations are not necessarily the same as constitutional standards, in practice the courts look to professional organizations to determine what constitutes adequate care. Significant improvements have occurred in health services in jails and prisons over the past three decades, but many of the remaining problems are in the delivery of mental healthcare and the population it serves (e.g., insufficient numbers of psychiatrists, licensure for mental health staff, increased numbers of mentally ill and retarded inmates, high numbers of substance-abusing inmates, increased numbers of violent inmates). The challenge for the twentyfirst century is how to meet the mental health needs of the incarcerated in a time of explosive population growth, reduced resources, and escalating healthcare costs. Rigorous adherence to national standards is imperative if the gains made are not to be lost. To some extent, the choice of which standards to use may be less important than simply deciding to follow some set in delivering mental healthcare. If a correctional facility does not have a good delivery system in place, it can expect the courts to step in and mandate that the void be filled. In the long run, voluntary compliance with standards is a more positive, less protracted, less expensive way to achieve improvements in the delivery of correctional mental healthcare than litigation.

REFERENCES American Bar Association. 1989: ABA Criminal Justice Mental Health Standards. Washington, DC. American Correctional Association. 1966: Manual of Correctional Standards, 3rd edition. College Park, MD. American Correctional Association. 1990: Standards for Adult Correctional Institutions, 3rd edition. Laurel, MD. American Correctional Association. 1991: Standards for Adult Local Detention Facilities, 3rd edition. Laurel, MD. American Correctional Association. 1998: Standards Supplement. Lanham, MD.

4

NCCHC has appointed a task force to revise its standards and will publish revised editions of its jail and prison standards in 2002. At the time of writing, both the APHA’s standards and the ACA’s healthcare sub-section also are undergoing revision.

American Medical Association. 1977: Survey Questionnaire for the Accreditation of Medical Care and Health Services in Jails. Chicago, IL. American Nurses Association. 1985: Standards of Nursing Practice in Correctional Facilities. Kansas City, MO. American Psychiatric Association. 1989: Psychiatric Services in Jails and Prisons. Washington, DC. American Psychiatric Association. 2000: Psychiatric Services in Jails and Prisons, 2nd edition. Washington, DC. American Public Health Association. 1976: Standards for Health Services in Correctional Institutions. Washington, DC. Anno, B.J. 2001: Correctional Health Care: Guidelines for the Management of an Adequate Delivery System. 2001. Chicago: National Commission on Correctional Health Care. Bell v. Wolfish, 441 U.S. 520 (1979). Bowring v. Godwin, 551 F.2d 44 (4th Cir. 1977). Estelle v. Gamble, 429 U.S. 97 S.Ct. (1976). Dubler, N.N. (ed.). 1986: Standards for Health Services in Correctional Institutions, 2nd edition. Washington, DC: American Public Health Association. Joint Commission on Accreditation of Healthcare Organizations. 2000: 2000–2001 Standards for Ambulatory Care. Oakbrook Terrace, IL. Joint Commission on Accreditation of Healthcare Organizations. 2001: 2001–2002 Comprehensive Accreditation Manual for Behavioral Health Care. Oakbrook Terrace, IL. National Advisory Commission on Criminal Justice Standards and Goals. 1973: Corrections. Washington, DC: U.S. Government Printing Office. National Commission on Correctional Health Care. 1984: Standards for Health Services in Juvenile Confinement Facilities. Chicago, IL. National Commission on Correctional Health Care. 1987a: Standards for Health Services in Jails. Chicago, IL. National Commission on Correctional Health Care. 1987b: Standards for Health Services in Prisons. Chicago, IL. National Commission on Correctional Health Care. 1996: Standards for Health Services in Jails. Chicago, IL. National Commission on Correctional Health Care. 1997: Standards for Health Services in Prisons. Chicago, IL. National Commission on Correctional Health Care. 1999a: Standards for Health Services in Juvenile Detention and Confinement Facilities. Chicago, IL. National Commission on Correctional Health Care. 1999b: Correctional Mental Health Care: Standards & Guidelines for Delivering Services. Chicago, IL. Weinstein, H.C. 1989. Psychiatric services in jails and prisons: who cares? American Journal of Psychiatry 146, 1094–5.

49 The structure of correctional mental health services JOEL A. DVOSKIN, ERIN M. SPIERS, JEFFREY L. METZNER AND STEVEN E. PITT

INTRODUCTION The rate of incarceration in the United States continues to increase at a staggering rate. In June 1999, nearly 1.9 million inmates were incarcerated in the nation’s prisons or jails (U.S. Department of Justice 2000a). By year end, approximately one in every 110 men, and one in every 1695 women in the United States were incarcerated (U.S. Department of Justice 2000b). Commensurate with the rapidly escalating rates of incarceration in the United States is the rising number of imprisoned individuals who suffer from a mental illness. Research indicates that roughly 20 per cent of inmates in jail and prison are in need of psychiatric care for serious mental illness (American Psychiatric Association 2000). According to the Bureau of Justice Statistics, an estimated 283 800 mentally ill offenders were incarcerated in U.S. prisons and jails at midyear 1998 (U.S. Department of Justice 1999). Teplin and Swartz (1989) noted that even after adjusting for demographic differences, the prevalence rates of schizophrenia and major affective disorder are two to three times higher in jails than in the general population. Steadman and his colleagues (1987) found that the prevalence of severe or significant psychiatric disability among sentenced felons is at least 15 per cent. When coupled with mental retardation or brain damage, at least 25 per cent of the inmate population in the New York State Department of Correctional Services was found to have at least a significant psychiatric or functional disability. Incongruities exist when looking at the disposition and sentencing of persons incarcerated with a mental illness. Axelson (1987) found that psychotic detainees charged with misdemeanors were discriminated against in accessing various types of pretrial release resulting in lengths of stay six-and-a-half times longer than nonpsychotic controls. Similarly, Valdiserri, Carroll, and Hartl

(1986) determined that psychotic inmates were four times more likely than non-psychotic inmates to have been incarcerated for less serious charges such as disorderly conduct and threats. In correctional institutions, those inmates with serious mental illness or in psychiatric crisis present a host of problems to correctional administrators. One problem of course is the possibility of serious injury to staff and other inmates posed by some mentally ill inmates whose behavior is uncontrolled and violent. Mentally ill inmates may be terrified by hallucinations and stay up all night screaming, thereby keeping other inmates awake, who in turn become angry and violent in response. Thus, housing assignments must take into account the mutual fears of inmates with and without mental illness. Another problem posed by the occurrence of psychiatric crisis and severe mental illness in correctional facilities is related to liability. Suicides and restraint-related deaths may have dire legal consequences. Despite the stereotype of ‘guards’ as tough and unfeeling, a successful suicide is often devastating to staff, who feel responsible for keeping inmates safe. Indeed, public opinion, so seldom sympathetic to inmates, nevertheless solidly expects correctional officials, at the very least, to keep their inmates alive. Even in the absence of adverse judgments or settlements, legal fees can be costly. The diversity of American correctional facilities is extraordinary. Local correctional facilities range from one-person police lockups to large urban jails, which may house more than 20 000 inmates. Similarly, state prisons vary from very small field camps to walled prisons of more than 5000 inmates. Notwithstanding the differences between facilities, jails and prisons are alike in many ways. Both are viewed as correctional settings, with uniformed staff, secure perimeters (depending on custody level), and usually stark accommodations. Jails and prisons can also be very stressful environments, due to forced association, segregation by gender, and extremes

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of noise and temperature. However, the challenge of keeping their respective facilities safe is the most important similarity that jails and prisons share. Despite such similarities, there are also important differences between jails and prisons. While prisons are selfcontained environments that tend to house inmates for long periods of time, jails often hold detainees for only a matter of hours; thus, jails need to be treated as part of the larger communities in which they exist (Steadman, McCarty, and Morrissey 1989). The goals of the two settings also differ. For pre-trial detainees, jails exist predominantly to hold and process people until their case is resolved by the courts. Often, jail detention depends solely on external factors such as the ability of the defendant’s family to raise money to post bond. For sentenced misdemeanants, jails serve as short-term punishment, with or without an effort at rehabilitation. Prisons, on the other hand, serve to punish the most serious offenders, and to prepare them through various prison programs for their eventual return to society.

THE LEGAL REQUIREMENTS FOR CORRECTIONAL MENTAL HEALTH SERVICES O’Leary (1989), Cohen and Dvoskin (1992), and Cohen (1988, 1998) have written extensively about the legal bases for requiring mental health services in jails and prisons, in addition to the required components and standards that various courts have established for such services. Pre-trial detainees have a due process right not to be punished, while convicted inmates are prohibited from suffering cruel and unusual punishment. For pre-trial detainees, the right to treatment stems from due process rights guaranteed by the Fourteenth Amendment. ‘Detainees are entitled to at least the same level of care as the convicted’ (Cohen 1988; Cohen 1998). A convicted inmate’s right to medical and psychiatric treatment in prison, guaranteed by the Eighth Amendment, stems from the state’s role as incarcerator. In Estelle v. Gamble (1976), the Supreme Court interpreted this responsibility as the duty to avoid ‘deliberate indifference’ to the serious medical needs of inmates. Other federal and state courts specifically included psychiatric needs within the standard (e.g., Bowring v. Godwin 1977), and have required that treatment be greater than the provision of psychotropic medication (Langley v. Coughlin 1989). It was not until 1994, however, with Farmer v. Brennan, that a clear definition of this term was presented. The Farmer decision equated deliberate indifference with recklessness, and applied the criminal standard of ‘actual knowledge’ of risk. It is not essential to prove that an official clearly believed that harm was imminent; only that an official possessed substantial knowledge of risk (Cohen 1998). Examples of the application of this standard can be found

in cases such as Coleman v. Wilson (1995), and Madrid v. Gomez (1995), both of which speak to the necessity of providing adequate treatment to inmates with mental illness. To incarcerate someone with deliberate indifference to their significant psychiatric needs is thus viewed as cruel and unusual punishment and may be remedied, often through class action lawsuits, by injunctive relief, or by compensatory and/or punitive monetary damages. The conservative turn in the federal judiciary, however, has made it far more difficult for plaintiffs to succeed in such actions (e.g., Wilson v. Seiter 1991; Hudson v. McMillan 1992). Congress has also been conservative relevant to prison reform as reflected in passage of the Prison Litigation Reform Act (PLRA) of 1996 (18 U.S.C. Section 3626 (b)(2)). The PLRA established new procedural requirements for suits by prisoners and significantly limited the ability of the courts to order relief. Consent decrees now require a finding of unconstitutional conditions (i.e., admission of such conditions by the defendants), fees are limited for special masters and attorneys, and other restraints to remedies are present. The U.S. Supreme Court in Miller et al. v. French et al. (No. 99-224, decided June 19, 2000) upheld the constitutionality of this act that had been challenged on due process and separation of powers principles. In addition to constitutional litigation, correctional administrators who ignore the mental health needs of at risk inmates who go on to commit suicide may also be vulnerable to tort liability, such as wrongful death actions (O’Leary 1989). Injuries to staff and other inmates resulting from inadequate mental health services can also lead to tort liability, as well as great expense due to occupational injury leave and disability retirements. In addition, inadequate medical or psychiatric services can result in malpractice claims against both medical and mental health providers in the jail. Finally, while the services described in this chapter need to be available to inmates, they do not necessarily have to be provided by or within the jail or prison itself. Indeed, it is not often especially important who provides the services, or whether the services are brought to the inmates or the inmates are brought to the services. What matters is that the inmates have access to necessary treatment. Thus, there is a clear constitutional requirement that correctional administrators provide for the psychiatric needs of those they incarcerate. Deliberate indifference is not a high standard (Cohen and Dvoskin 1992), and it should be clear that legal considerations alone will not necessarily lead to ideal or even adequate services. Good public policy will necessitate a balancing of various considerations that include reducing liability, providing humane treatment for prisoners, and maintaining the safety of staff and other inmates, all within a framework of cost effectiveness in an increasingly conservative fiscal environment.

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DIVERSION PROGRAMS There are a number of reasons (e.g., deinstitutionalization, overcrowded state hospitals) why people with mental illness find their way into correctional settings despite efforts to divert them to alternative dispositions (Lamb and Weinberger 1998). For some, the offense will be severe and unrelated to their mental illness,1 thus ruling out the possibility of dismissing charges or negotiated insanity pleas. For others, the stress of the correctional environment may result in decompensation in some individuals who were mentally intact in the community (Gibbs 1987; Muzekari et al. 1999). Finally, with the rise in illegal drug use and its well-documented relationship to criminal behavior (see, e.g., Petrich 1976; Mirsky 1988; O’Neil and Wish 1990), urban jails are facing large increases in the numbers of newly admitted inmates who suffer from drug-induced psychosis upon arrest. Diversion programs are essentially intended to shift offenders with mental illness and/or substance abuse problems away from the criminal justice system (Draine and Solomon 1999). This does not imply, however, that mentally ill offenders should not, or would not, ever be detained. While diversion may prevent incarceration in some cases, it may also mitigate the time spent behind bars, as well as impose contingencies for after-care upon release. For those offenders requiring detention, mental health services must be provided by the correctional facility. Generally speaking, however, non-violent mentally ill offenders are not likely to have their ongoing mental health needs best met by serving jail time. Instead, the safety of the community is better served by providing a comprehensive, inclusive diversion program designed to meet the needs of the offender, as well as the mental health and criminal justice systems (Coleman 1998). Despite widespread agreement about the need for effective jail diversion programs, existing programs share few similarities. Disparate definitions of inclusion criteria, strategies, and objectives have resulted in limited meaningful data available to evaluate existing programs and/or to provide guidelines for the development of future programs (Steadman, Steadman-Barbera, and Dennis 1994a; Steadman, Barbera, and Dennis 1994b; Steadman, Morris, and Dennis 1995; Draine and Solomon 1999). In conjunction with ongoing research regarding the effectiveness of jail diversion programs (see also Steadman, Steadman-Barbera, and Dennis 1994a and Steadman, Barbera, and Dennis 1994b), Steadman et al. (1999) delineated five key elements common to the most successful programs. First, effective programs included interagency involvement (e.g., mental health, substance

1 Virkkunen (1974), for example, reported that only about onethird of violent offenses committed by persons with schizophrenia occurred during psychotic episodes.

abuse, and criminal justice systems) beginning at the program’s inception. Second, regularly scheduled interdisciplinary communication between representatives was built in to the structure. Third, service integration was orchestrated by a designated ‘boundary spanner’ who served as a liaison between agencies. A fourth key element was the presence of strong leadership. Finally, effective diversion programs consistently employed non-traditional case management strategies. According to Steadman et al. (1999), there are only about fifty to fifty-five true jail diversion programs nationwide. Whether diversion occurs pre or post-booking,‘the best programs see detainees as citizens of the community who require a broad array of services, including mental health and substance abuse treatment, housing and social services’ (American Psychiatric Association 2000, p. 29). Program success has essentially depended upon building new system linkages and holding the community responsible for the provision of services (Steadman et al. 1999). Policies providing for the selective diversion of specific mentally ill offenders, and/or their careful reintegration into the community following incarceration, are more desirable than existing alternatives (Cohen 1998). In sum, the development of comprehensive diversion programs may break the ‘unproductive cycle of decompensation, disturbance, and arrest’ (American Psychiatric Association 2000, p. 30) so familiar to many of our nation’s mentally ill.

SERVICE COMPONENTS OF CORRECTIONAL MENTAL HEALTHCARE Due to the many differences between jails and prisons, some of which are discussed in this chapter, the priorities for mental health services are somewhat different in each setting. For example, Steadman (1990) found that, for jails, the priority services are screening, crisis intervention, and discharge-oriented case management. Prison environments, on the other hand, due to their typically longer lengths of stay, lend themselves to the possibility of longer-term psychotherapy and psychiatric rehabilitation rarely seen in jails. Despite these differences, the services themselves fall into generic categories that hold up rather well across the two settings. Nevertheless, it is important to be mindful of the inevitable differences, subtle or obvious, between the implementation of services as they are adapted to each specific correctional environment.2

2 Inmates in psychiatric crisis or those with severe mental illnesses are also defendants whose competency to proceed is likely to be questioned. However, it is not necessary that jails or their mental health programs actually provide competency assessments. Such assessments by jail staff could well drain needed clinical resources away from treatment within the institution. For a more complete discussion of this topic, see Chapter 24.

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Cohen (1998) lists six minimal essential elements,3 taken from a prison class action suit in Texas (Ruiz v. Estelle 1980), as providing a useful framework for planning mental health services (see also American Psychiatric Association 1989; American Psychiatric Association 2000): 1 Systematic screening and evaluation. 2 Treatment that is more than mere seclusion or close supervision. 3 Participation by trained mental health professionals. 4 Accurate, complete, and confidential records. 5 Safeguards against psychotropic medication prescribed in dangerous amounts, without adequate supervision, or otherwise inappropriately administered. 6 A suicide prevention program.

Screening Screening is regarded as perhaps the single most important service element in correctional mental health (Pogrebin 1985; Teplin and Swartz 1989). Screening is not only a specifically required legal obligation (Cohen 1998) but is clinically and programmatically essential. It is impossible to appropriately treat serious mental illnesses or psychiatric crises without identifying the specific individuals affected. While there are a number of acceptable ways to provide this screening, several specific elements must be present:

•

•

•

•

3

Trained staff. Standardized screening tools can be successfully administered by line staff, nurses, or case managers, provided that they are adequately trained in the administration of each screening instrument and know where to refer inmates in need of services. Documentation. The results of the screening must be clearly and legibly documented and available to those responsible for medical care, housing assignment, and follow-up services. Records must be maintained in a manner that assures the privacy and confidentiality of each inmate, while facilitating communication between different mental health and medical providers. Low threshold. The screening must have a low threshold for referral for more extensive evaluation. That is, any indication of either a history or current evidence of mental illness or psychiatric problems must result in referral for a follow-up evaluation. Likewise, any unusual or eccentric mannerisms or behaviors observed must be specifically documented and referred for further evaluation. Standardization. By routinely conducting a standardized screening process during booking, and by training staff in the screening procedure, one avoids an idiosyncratic process where a mentally ill inmate’s

Cohen (1998) also lists fifteen factors combining legal requirements with ideal components of a correctional mental healthcare program.

chances of being identified depend on who happens to be on duty when the inmate arrives.

Follow-up evaluations No matter who conducts screening for mental health service needs, it will be necessary to provide more extensive and detailed evaluations for those inmates identified as potentially in need of mental health services. These examinations must be timely and responsive to specific issues raised during the screening, and must result in treatment recommendations that are practical within the correctional setting. Since psychiatrists are difficult to recruit, and are a great deal more expensive than other mental health providers, it makes sense to have these ‘second-level’ follow-up evaluations routinely conducted by psychologists, social workers, or psychiatric nurses with advanced degrees. However, as these evaluations will be primarily diagnostic in nature, they will optimally be conducted by at least master’s-level staff with training in psychopathology (Dvoskin 1989). It is important to limit these evaluations to issues that have immediate and feasible treatment implications. Given the generally limited treatment resources in correctional settings, full-scale psychological test batteries should be limited to inmates whose symptoms raise diagnostic questions that can only be answered by psychological testing (Dvoskin 1989).4 For inmates who appear to require psychiatric services such as psychotropic medication, a referral to the psychiatrist will then be in order. Of course, in cases where a detainee enters the jail with psychotropic medication, or a long history of such treatment, it may be cost-effective to bypass this step and have the person referred directly to a psychiatrist. It is important to have some capacity for the emergency administration of medication during weekends and nights. On-call psychiatrists may provide telephone consultation with on-site non-psychiatric physicians, registered nurses, or physician’s assistants. Twenty-four-hour on-site psychiatric availability is a luxury likely to be found only in a few very large and well-funded settings.

4

There are of course other appropriate uses of routine psychological testing. Standardized tests have been used as part of the classification process. Various systems have been developed (see, e.g., Megargee 1976; Edinger, Reuterfors, and Logue 1982) that utilize computer-scored psychological tests such as the Minnesota Multiphasic Personality Inventory (MMPI) to make security and program classification decisions. Standardized testing may also prove useful in furthering research on the mental health need of inmates and detainees. It is not suggested that the use of psychological test batteries as a part of a component psychological assessment has no value. However, in the real world of inadequate resources, it is most unlikely that any jail would have enough psychologists to provide time-consuming clinically administered batteries to more than a small fraction of patients needing follow-up evaluation.

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In smaller jurisdictions, mobile crisis teams from the local community mental health provider or nearby general hospital emergency rooms may be able to provide services at the jail.

Psychotropic medications Psychiatrists who work in correctional settings must be aware of all of the usual issues surrounding emergency psychiatry (e.g., Anderson, Kuelmle, and Catanzano 1976; Dubin 1988; Salzman et al. 1986). There are several other considerations that are especially or even uniquely important in dealing with inmates who are being treated for a psychiatric condition. People who are put in jail are rarely especially compliant. It should therefore not be surprising that inmates may be unwilling to take their medication exactly as ordered by physicians (Smith 1989). Inmates who feel oppressed by the criminal justice system often view psychotropic medication ordered by an institutional physician as an instrument of that oppression. Alternately, it is possible that inmates who are not suffering from a mental disorder may seek psychotropic medication in hopes of alleviating some of the situational stresses associated with their incarceration, or in hopes of selling them for profit. Limitations in psychiatric resources are a significant issue in the provision of psychotropic medications to inmates. Busy physicians may spend an inadequate amount of time explaining the need for medication, its value to the inmates, or what to do about side effects. Moreover, systemic constraints on the flow of information may create protracted time periods between an inmate’s initial complaint of side effects and his or her appointment with a physician. If dosages are not carefully monitored and adjusted, the patient may experience a variety of unsettling, uncomfortable, and even dangerous side effects. As a result, correctional nurses need to take special care when administering medications in the jail to ensure that the inmates are not ‘cheeking’ medications to appear compliant or to save for later sale. Minor tranquilizers are especially prone to abuse and black market sale within the jail, and therefore are often not included in correctional formularies. Finally, at least some time should be devoted to explaining to inmate patients the need for psychotropic medication, beyond what may be typically provided for informed consent. More formal prison-based patient education programs, while still comparatively new, have shown an ability to significantly increase inmates’ knowledge of the symptoms and treatments of schizophrenia (Melville and Brown 1987).

Case management Active case management is invaluable, yet frequently underutilized, in correctional mental healthcare. Case

managers benefit inmates during their period of incarceration, as well as serving an essential role in the discharge planning process. For inmates who are confused and anxious, regular and surprisingly brief visits can provide reassurance that the inmate has not been psychologically abandoned. Often, the simple provision of accurate information about the criminal justice process can relieve a tremendous amount of anxiety and need not always be supplied by mental health professionals. Within the correctional setting, stressors may build up in the absence of supportive services. It therefore is important periodically to ‘check in’ with identified psychologically vulnerable and mentally ill inmates even during periods of apparently good adjustment. The establishment of a tracking mechanism identifying those inmates who are not receiving active mental health services, yet have a history of mental illness, can be of great benefit toward the maintenance of the inmate’s psychological fitness. Case managers are ideal providers of such a service. Even annual visits with a case manager will allow the inmate a sense of connectedness and security, while simultaneously providing the mental health department with an opportunity to monitor the inmate’s status. These very brief contacts are a worthwhile investment, especially if they prevent more serious exacerbations of an inmate’s condition, thereby forestalling more extensive and costly services. Therefore, the inclusion of case management services offers the facility a prophylactic tool, reducing financial burden, as well as mediating the potential for crises that disrupt normal facility functioning. Case management is even more effective in linking inmates to appropriate mental health services upon their release (Griffin 1990). Prior to discharge, case managers can play an integral role in the building or nurturing of social supports, such as helping the inmate to contact family or friends. Such collateral contact can be particularly helpful toward improving an inmate’s quality of life while incarcerated as well as upon return to the community (Jacoby and Kozie-Peak 1997). Perhaps most importantly however, case managers serve as a bridge, linking inmates with providers in the community. Continuity of care is critical to appropriate mental health service and falls well within the venue of case management service. Even the most impressive correctional mental healthcare program can be rendered futile if the inmate patient is not linked with appropriate services after discharge (Steadman, Morris, and Dennis 1995). Lamb and Weinberger (1998) assert that appropriate implementation of mental health services (and use of case managers) ‘would mean tailoring mental health services to meet the needs of mentally ill offenders and not treating them as if they were compliant, cooperative, and in need of minimum controls.’ Unfortunately, the criminal justice system is largely unprepared to provide case management services to mentally ill offenders upon release (Lamb and Weinberger 1998).

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Crisis intervention In the correctional setting, psychiatric crises may arise at any time, and involve virtually any offender. Crisis services must be readily accessible at all points during the intake and incarceration process. Even where the very best screening and evaluation services are present, it will still be impossible to identify on admission all of the inmates who will require psychiatric services during their incarceration or detention. No screen is perfect, and even ‘cutting-edge’ instruments will have some false-negative errors. Further, certain kinds of psychoses may allow the inmate to appear, at least temporarily, quite unimpaired even under stress. It is important to note, however, that there are a number of reasons why inmates will either be, or appear to be, psychologically intact upon intake, and later experience a psychiatric crisis within the jail setting. Jails and prisons can be extraordinarily stressful environments. Overcrowding, extremes of cold or heat, noise, filth, and the fear of assault may all contribute to the psychological deterioration of even the most ‘mentally healthy’ inmate. Jails may be even more distressing than prisons, since most jail inmates have recently arrived and have a great deal of uncertainty as to the outcome of their legal status. For first-time offenders especially, their expectations are likely to be colored by television or movie dramatizations stressing violence in jails. Perhaps most upsetting to first-time offenders is the simple truth that jail inmates are not always very nice to one another. Together, these various stressors can lead to psychiatric decompensation at any time during the course of incarceration. Another risk factor is any pre-existing psychological condition that makes a person vulnerable to psychiatric crisis or mental illness. Family histories of an affective disorder appear to increase the risk of severe depression, which could be triggered by the stresses associated with incarceration. Certain personality disorders, especially borderline personality disorder, create a variety of risks for psychiatric crises, including suicide gestures, emotional hyperreactivity, and acute psychoses, especially in response to being locked up (Metzner et al. 1998). Administration of psychotropic medications in emergency situations can be dangerous, especially with newly admitted inmates whose urine and serum blood toxicology results are pending. As the incidence of illegal drug abuse has increased, the likelihood of a psychiatric crisis being due to illicit drug use has also increased. The safe prescription of medications in emergencies involving newly admitted inmates should thus include a physical examination. Since the time of day will often preclude such safeguards, many physicians will elect such nonpharmacological treatment interventions as seclusion or constant observation to resolve the immediate crisis and keep the inmate safe until services can be obtained. Other facilities will elect to utilize local general hospital emergency rooms.

Every jail and police lockup that receives direct admissions from the street must have access to medically supervised alcohol and drug detoxification services. However, this detoxification is primarily medical in nature and is not a mental health service.5 Consultation services, when provided by mental health staff to correctional staff, can vary extensively, from sophisticated suggestions for handling difficult inmates to simply suggesting a cell change. The mental health staff must be viewed as supportive of the correctional staff ’s mission to make the facility safe for everyone. Special management precautions in response to psychiatric emergencies include moving the inmate to a different bed location, thereby separating violent inmates from others, possibly allowing for easier and more frequent observation or closer proximity to nursing or other services. Often inmates will be put on ‘special watches’ such as constant observation or one-to-one, especially where suicidal intent is suspected. The special management precautions are required for two reasons. Each facility has an overriding obligation to protect inmates or detainees from foreseeable and preventable harm. There is also a duty to provide medical or psychiatric treatment, although the two considerations will often overlap. In either case, the most important job in any correctional psychiatric crisis is to ensure the safety of all of the people who live and work there. Thus, crisis response is as much the responsibility of correctional staff as it is the mental health staff, even where 24-hour mental health staff is available. Verbal counseling in crises is not only the least intrusive intervention available, but often it is the most effective – especially when the crisis is in response to a specific event or the novelty of the incarceration itself. For any inmate, with or without longstanding mental illnesses, these crises are often a response to fear. Inmates fear many things, some real and some imagined. Often, simply providing information, spiking rumors, or offering support can significantly improve an inmate’s response to his situation. As with nearly all jail-based mental health services, it is imperative that adequate documentation and communication of crisis responses be maintained. When off-hour providers are contractors or are from other agencies, it is imperative that essential aspects of the crisis and actions taken in response to it be communicated to the mental health and correctional staff. Likewise, facility correctional and medical staff should, as standard policy, have a mechanism in place by which they can alert mental health staff of concerns about a given inmate. For instance, a third-shift officer might observe idiosyncratic behavior and should have a routine method of documenting his or 5 Obviously, once detoxification is safely accomplished, assessment should be made of any need for subsequent mental health service, but it is worth reiterating that the act of detoxification is a medical function.

The structure of correctional mental health services 495

her observations and informing the mental health department. Finally, the competent resolution of any crisis must include some reasonable effort to prevent its recurrence. While the provision of information itself can be effective, other steps may include supporting a psychologically fragile inmate through a crisis, or preventive steps such as ongoing supportive therapy, skill building (e.g., how to safely ‘do time’). Thus, correctional facilities, as a matter of law and sensible policy, must have some sort of ready access to crisis services. These services include psychotropic medication, special watch procedures, psychological or counseling services, detoxification (since drugs may be available inside the facility), information (such as when the inmate will get to see a lawyer or receive visits), and consultation with correctional staff about how to handle problematic inmates.

Suicide prevention Although suicide is clearly but one of several avenues of potential crisis in the correctional setting, its impact demands special consideration. Suicides in jails and prisons are often preventable and may exceed general population rates if a suicide prevention program is not established. Especially in local correctional facilities, suicide prevention has received a great deal of attention (Atlas 1989; Cox and Landsberg 1989; Cox, Landsberg, and Pavarotti 1989; Haycock 1989; Hayes 1989; O’Leary 1989; Rakis and Monroe 1989; Sherman and Morschauser 1989). In brief, research has shown that the period of greatest vulnerability is during the first 8 hours of incarceration, which may well occur during the evenings or weekends when no clinical professionals are present. Despite a dramatic increase in jail suicides across the nation during the past few years, a comprehensive statewide program in New York seems to have enabled sheriff and police departments actually to reduce suicides (Cox, Landsberg, and Pavarotti 1989). This state-funded program is a simple and locally implemented scheme of staff training and procedure development for identifying and managing inmates at high risk of suicide, and is described in greater detail in Chapter 51. The results of the New York program have been impressive. In upstate counties, for example, despite increasing admissions, censuses, and overcrowding, jail and lockup suicides dropped from a high of thirty during the year prior to the program’s inception in 1985 to successive years of twenty-five, sixteen, eight, and only five in 1989 (New York State Commission of Correction 1989). As will be discussed in a subsequent section, active training and involvement of correctional staff is an essential component of correctional mental health. This tenet is especially true of suicide prevention. All staff, administrative and/or security, that have contact with inmates should undergo specific training in suicide risk

assessment and intervention. Although the most common recourse for correctional staff will be to alert mental health personnel about an at-risk inmate, it is vital that they are at least cognizant of both risk factors and intervention strategies in the event that they become involved in a suicidal crisis situation. Laypersons without mental health training may harbor false beliefs regarding suicide potential. For example, many people wrongly believe that a person who is truly suicidal would never talk about it. Dispelling myths about suicide, and adopting an all-inclusive training policy for correctional personnel, can have a substantial impact on the psychological well-being of staff and inmates alike.

External hospitalization Although access to hospitalization for emergency psychiatric treatment is essential, it is often unavailable, especially to smaller jails. The ability to obtain brief psychiatric inpatient care when necessary is of tremendous importance not only to the inmate requiring the transfer but also to the other inmates and staff. The goal of emergency hospitalization is to reduce severe psychiatric symptoms and stabilize the patient. Follow-up treatment should continue either in the correctional facility or, if pre-trial release can be obtained, in the community. Jails often use inpatient hospitals by transferring the detainee to an outside psychiatric hospital or ward. However, some jurisdictions such as San Diego, California (Meloy 1985), and Westchester County, New York, provide inpatient treatment within the local jail itself. Prison systems may house psychiatric inmates (who are unable to function adequately in the general population) at an off-site correctional facility whose purpose is to provide inpatient psychiatric care. Such facilities are ideally staffed with correctional officers specially trained in mental health issues, or psychiatric technicians with some correctional training. Regardless of context, or locale, both jail and prison systems must have access to inpatient psychiatric services ranging from brief crisis intervention to long-term psychiatric hospitalization.

Telemedicine Telemedicine is essentially the transmission of electronic information, such as voice data and tele-images, across geographically distant communication facilities, thereby allowing for long-distance patient healthcare and/or diagnosis (Charles 2000). Telemedicine has been used to enhance treatment options for geographically remote patients for almost four decades (Stevens et al. 1999). More recently, however, the rising cost of healthcare, including mental healthcare, has generated heightened interest in telemedicine and its promise of increased accessibility coupled with decreased cost. Technological advances (Mair and Whitten 2000) and decreasing

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implementation expenses (Strode, Gustke, and Allen 1999) have enhanced the appeal of telecommunication as a viable alternate treatment modality. Complications surrounding geographic isolation and limited access to mental health professionals familiar with the correctional setting may, at times, compromise care for inmates (Magaletta, Fagan, and Ax 1998). In the correctional setting, access to any extra-institutional healthcare service (psychiatric or otherwise) often requires extraordinary transportation and security expenses. Through telemedicine, correctional facilities, frequently located in remote areas, can minimize costly inmate transport, while concurrently allowing even the most dangerous inmates access to services in a secure environment (Charles 2000). Additionally, when telemedicine allows an inmate more timely access to psychiatric care, the likelihood of agitation and volatility may be reduced, thereby creating a more secure institutional environment for all correctional staff and inmates (Magaletta, Fagan, and Ax 1998). Stevens et al. (1999) reported that non-incarcerated patients and their treating psychiatrists were able to develop rapport via televideo just as well as when they were in the same room. Similarly, preliminary data from the Federal Bureau of Prisons (BOP) telehealth pilot program indicated that virtually all inmate-patient participants, as well as treating psychologists and psychiatrists, have expressed satisfaction with telehealth services (Magaletta, Fagan, and Ax 1998). The BOP telemedicine and telepsychiatry programs have been successful to such an extent that the Bureau is in the process of implementing telehealth technology system-wide (I. Grossman, personal communication, August 29, 2000). The Texas Department of Criminal Justice, Institutional Division, in conjunction with the University of Texas Medical Branch and Texas Tech University Correctional Managed Care organizations, has likewise enjoyed a successful telemedicine program. The UTMB region telepsychiatry division alone serves over 200 inmates per month and has received overwhelmingly positive responses from inmates and psychiatrists alike (R. Stanfield, personal communication, August 23, 2000; P. Nathan, personal communication, September 7, 2000). Despite clear benefits associated with these technological programs, the advancement of telepsychiatry and psychology will be accompanied by several ethical and professional issues that must be examined and addressed by sound researchers, licensing boards, and by updating standards of practice.

1997). Even the most mentally healthy inmates may periodically find themselves in need of psychological services while incarcerated. Often, brief therapeutic contact is sufficient to alleviate situational stresses and transient difficulties encountered in the correctional setting. As previously discussed, case managers or social workers can be an invaluable resource for inmates in need of emotional support, information, or assistance with negotiating the daily demands of incarceration. In fact, the type of ‘therapy’ most valuable to jail inmates is often provided by staff who lack formal training but who have a natural ability simply to treat others with dignity and humanity. Often, jail and prison inmates report that they were most helped through a crisis by a particular correctional officer or nurse, or even a fellow inmate. However, for inmates not formally assigned to a mental health caseload, case managers can serve as the first line of intervention, referring the inmate onward if more extensive service is warranted. Moreover, for short-stay inmates, tenure in jail may be an important opportunity for case managers to ensure appropriate referral to the social service or mental health service delivery system in the community. For more extreme psychiatric crises, intervention might consist of longer sessions with higher-level mental health professionals. These sessions should focus on identifying personal strengths, which will help the inmate cope with the experience. Often, providing an understanding that others have gone through similar crises and survived can be reassuring. During periods of extreme psychological stress, a real part of the value of a therapist or counselor is to be a non-threatening source of company. It is comforting simply to be listened to, especially in the middle of what may be perceived as an abusive experience. Inmates who experienced physical or sexual abuse or torture as children may experience incarceration as a reenactment of this trauma (Dvoskin 1990), and may be especially responsive to such support. For those inmates suffering from severe mental illnesses, the immediate focus of therapy is to protect the inmate from deteriorating in response to the correctional environment. People with schizophrenia especially seem to have trouble adapting to environmental change and may require a great deal of support. One benefit of psychotherapy is to provide the seriously mentally ill inmate with a touchstone to aid in reality testing, to avoid withdrawal into psychosis in response to fear of staff or other inmates.

Group therapy PSYCHOLOGICAL THERAPIES Individual therapy Environmental pressures inherent to the correctional setting can engender mental distress (Lindquist and Lindquist

Group psychotherapy is the most cost-effective method of mental health treatment in corrections (Metzner et al. 1998). It is an ideal modality for providing much-needed services to large numbers of inmates despite the common paucity of resources. Moreover, group therapy sessions may be conducted independently, or co-facilitated

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by mental health staff with varying levels of professional training. Creative and thoughtful matching of mental health staff expertise with the subject matter of the therapy group can be of great benefit. For instance, practical and applied topics, such as anger and stress management, are ideal material for correctional group work. Utilizing a staff psychologist (Masters or Doctoral level) in combination with a social worker or case manager affords participants with complementary balance in perspective and feedback. Alternately, a psychiatric nurse may be the ideal candidate to run a medication education or life skills group. In the correctional setting, group therapy presents a unique set of challenges for participants and practitioners alike. Particularly when non-doctoral level practitioners facilitate groups, it may be quite useful to engage in active consultation and supervision processes (Morgan, Winterowd, and Ferrell 1999). For the participants, confidentiality is often a primary concern. Inmates must be counseled during pre-participation screening as to the importance of maintaining confidentiality of disclosures in the group setting. Other potential problem areas include security constraints, volatility and possible safety issues, and scheduling difficulties inherent to an institutional setting (Metzner et al. 1998).

Substance abuse As many as 75 per cent of all prisoners can be characterized as having a history of alcohol or illicit drug use (U.S. Department of Justice 1998). The high rate of comorbidity between substance abuse and mental illness (Carey 1989), may be nowhere more apparent than among the offender population (Abram and Teplin 1991; Edens, Peters, and Hills 1997; Swartz and Lurigio 1999). Abram (1990) demonstrated the high prevalence of inmates with co-occurring disorders, including substance abuse and depression, most often with antisocial personality disorder being the primary syndrome. For inmates with co-occurring mental health and substance abuse disorders, accurate diagnosis and subsequent treatment planning are complex, primarily as a result of the complicated symptom picture presented (American Psychiatric Association 2000). Symptoms of one syndrome often mask those of another, and abuse of alcohol and other drugs can exacerbate psychiatric symptoms and even bring about psychotic episodes that may persist after intoxication subsides. The unfortunate result is that the presence of co-occurring disorder is often missed during the screening process (Edens, Peters, and Hills 1997). Indeed, these co-occurring disorders are a growing concern among virtually all segments of the mental health system. The needs of the multiply disordered population continue to rise and clearly must be addressed (Abram and Teplin 1991). The greater the relevance of

substance abuse in an inmate’s criminal background, the more important it is to identify and treat the problem, and to continue services upon release (Rice and Harris 1997). However, despite a growing number of treatment options, correctional facilities do not appear to have kept up with the demand for services (Metzner et al. 1998; Swartz and Lurigio 1999). Toward the goal of improving treatment programming, the American Psychiatric Association (2000) offers the following strategies to address the issue of co-disorders in the correctional setting: 1 Integration of substance abuse and mental health treatment. 2 Treatment of each disorder as primary, while appreciating potential interactions. 3 Comprehensive assessment and consultation, focused on individualized planning for treatment of psychosocial issues and skill development. 4 Cautious use of psychotropic medication. 5 Context-specific interventions. 6 Extension of treatment services into the community. Abram (1990) concluded, ‘Intervention programs aimed at substance abusers or (persons with depression) which do not address the elements necessary for treating co-occurring character disorders may have a minimal impact on either the detainee or the crime rates’ (see also Mirsky 1988). Timely, comprehensive and integrated treatment of co-occurring disorders is essential toward the goal of ultimately disrupting the offense and criminalization cycle so common in this population.

STAFF TRAINING AND CONSULTATION ‘One of the biggest barriers to care for offenders is the mutual distrust that exists between mental health providers and the community correctional system’ (Roskes and Feldman 1999, p. 1615). Ongoing communication between mental health and correctional staff is an essential feature of effective treatment and intervention programs. Mentally ill offenders present a unique set of concerns in the correctional setting, and management difficulties may arise when correctional officers receive minimal or insufficient training about mental health issues (Versey et al. 1997). While screening is essential to identify inmates and detainees in need of clinical attention upon arrival, their subsequent mental health depends in large part on the ability of correctional officers to identify inmates in psychiatric distress and make appropriate referrals. It is therefore important to provide officers with basic training in identifying some of the signs of emotional disturbances, in addition to training the officers how to convey their observations to clinicians. With the welldocumented rise in the number of mentally ill inmates nationwide, correctional staff are increasingly likely to be

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confronted with issues surrounding mental illness in the course of their daily work.6 Ideally, all new employee orientation processes will include a mental health component, presented by a member of the mental health staff. This training is certainly not meant to make diagnosticians of correctional officers, although correctional officers can supplement the efforts of clinicians by learning to assist inmates in coping with the everyday stresses of incarceration (Lombardo 1985). As has been discussed elsewhere in this chapter, staff training can be beneficial for all parties, particularly in facilitating the early recognition of psychiatric decompensation, suicide risk, and crisis intervention. Perhaps the most influential feature of facility-wide staff training, however, is an understanding of how to access available mental health resources when they are needed. The importance of maintaining an open discourse and rapport between mental health and correctional staff cannot be overstated. The development of a trusting working relationship with officers allows mental health professionals the opportunity to offer opinions and/or suggestions that may diffuse potential psychiatric crises, thereby saving precious time, energy, and resources. Consultation between security and mental health staff will often revolve around the correctional management of inmates or detainees (Brodsky and Epstein 1982). A simple decision to separate two inmates can often prevent a dangerous assault or a psychiatric crisis, and administrators who learn to trust their clinical staff come to value advice in such decisions. Other common topics of consultation include, but are not limited to, assignment to appropriate housing or work detail, and appropriateness for various facility programs or educational opportunities. While mental health staff have much to offer security personnel in terms of consultation and information sharing, the benefits of communication are far from unilateral. Ensuring correctional personnel that their opinions and observations are meaningful and important, and welcomed by mental health staff, allows for virtually constant observation of inmate patients. Mental health staff are in direct contact with inmates for only a very brief period of time. Even those inmates participating in frequent therapy sessions still spend the vast majority of their days under the watch of correctional staff. Officers who observe and/or work with inmates on a daily basis often become very familiar with a given inmate’s regular presentation. Therefore, officers are likely candidates to note subtle or progressive deterioration in an inmate’s functioning. Allowing officers an opportunity to comfortably inform mental health staff of their concerns about an inmate is an effective method of heading off potential crisis. Finally, in addition to treating inmates, mental health professionals can also help to reduce job-related stress

among correctional line staff (Dembo, Williams, and Stafford 1986–87). Employing an open-door policy for correctional staff, providing literature on stress management, and/or offering consultation and referral services, allow officers an avenue of recourse when work stress becomes overwhelming. On the other hand, providing mental health services to fellow employees is not recommended, due to the high likelihood of conflicting relationships. Essentially, all persons who live and work in a correctional facility are faced with similar daily stresses in terms of danger, noise, temperature, and the like. Extreme stress in officers may inherently compromise officer–inmate relations, in turn leading to exacerbation of inmates’ psychological issues. Once again, open and active discourse, and simple human support may be among the most vital components of a successful program.

SPECIAL HOUSING AND MANAGEMENT OPTIONS The most common reason for referral of an inmate to mental health services is disruptive or violent behavior, either toward self or others. Frequently, mental health staff will be asked to make a judgment about the level of supervision required to keep the inmate and others safe. Alternatives include transfer to a psychiatric facility, one-to-one or constant observation status, movement to a safer or more isolated cell, or movement to a cell nearer to the observation post maintained by staff. Other creative approaches include the use of multibed dormitories for suicidal inmates. Company can help alleviate depression, and inmates who are ambivalent about their own suicidality may watch each other far more diligently than staff. Also, it is easier to watch a group of people in one room than in individual rooms. It is important to be realistic. It is unfair and clinically inappropriate to order a 5-minute watch when the clinician knows there are inadequate staff to perform it. These orders are perceived by staff as an attempt by clinicians to shift responsibility to less well-paid correctional staff. By working together, it is usually possible to work out an arrangement that is both reasonable and clinically appropriate. For example, an order for constant observation will require three staff to observe three inmates in adjoining cells. An order worded ‘observe every minute,’ on the other hand, would allow one officer to walk back and forth, and observe all three inmates quite frequently.

SPECIAL-NEEDS INMATES Minorities

6

Sowers, Thompson, and Mullins (1999) provide an excellent mental health resource for correctional officers.

For some ethnic minorities and non-English-speaking inmates, jails can be frightening and oppressive places.

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For example, Foster (1988) reports that traditional psychiatric approaches may not work well with Native Americans in the federal prison system. Similarly, Black and Hispanic people in jail are typically less often served by the mental health system (Steadman, Holobean, and Dvoskin 1991). This phenomenon may reflect an unwillingness to seek help from predominantly white providers, but may also reflect subtle and even unintentional racism among those same providers. Toch, Adams, and Greene (1987) found a number of ethnic differences in prison infractions, and concluded that subcultural and psychological predispositions may converge to produce prison adjustment problems.

Women Female detainees may have a variety of special problems in adapting to correctional settings (Sobel 1980). These include the possibility of pre-existing pregnancies, which require prenatal medical care, as well as recent mothers whose forced separation from their infant children can contribute to severe postpartum depression or even psychosis (see, e.g., McGaha 1986). Further, many more women than men are custodial parents at the time of their incarceration, often causing severe anxiety over the welfare of their children. For some women, being locked up in a very small space by intimidating male authority figures can be frighteningly reminiscent of childhood experiences. For female inmates, especially those who have survived traumas, being strip-searched and showering under observation can seem abusive.7 Incarcerated females in New York frequently reported long histories of sexual violence at the hands of fathers, husbands, boyfriends, and strangers (Browne 1987). This abuse is often directly linked to the instant offense, as in the case of women who kill abusive spouses to protect themselves or their children.

Older inmates The number of older inmates has increased rapidly over the past decade (Metzner et al. 1998). In the correctional context, due to histories of poor healthcare and multiple traumatic injuries, it has been suggested that age 50 years (rather than 65 as is the general population) can be considered a useful criterion for identifying geriatric inmates (American Psychiatric Association 2000). Generally speaking, the offender population is likely to have conducted their lives in a manner less conducive to good physical health, thereby lowering the threshold for common 7 Male victims of child sexual or physical abuse, as well as other crime victims and combat veterans, may also encounter symptoms of posttraumatic stress disorder while in jail or prison. Therefore, the discussion of trauma and abuse should not be interpreted as gender-specific.

ailments associated with aging. The elderly inmate is subject to the normal stresses of growing old, along with numerous exacerbating factors such as physical vulnerability to other inmates, estrangement or isolation, and a greater likelihood that they will die behind bars (American Psychiatric Association 2000). As this subset of incarcerated offender continues to grow, so too will the incidence of age-related psychiatric and medical disorders. Correctional mental health professionals should be aware of, and plan for, the special needs of the incarcerated elderly.

Physical disabilities Regardless of age, inmates – much like the general population – present with myriad medical and physical disabilities. Mental health service providers must be mindful of the special challenges posed to inmates who are physically disabled, deaf, or blind. This population may be especially vulnerable in a correctional setting. In addition to predatory peers, the occupational and recreational opportunities may be limited, exacerbating the normal stresses of incarceration.

CORRECTIONAL HEALTHCARE STANDARDS Numerous sets of standards and guidelines for correctional healthcare programs have been promulgated by national organizations such as the American Association of Correctional Psychologists (1999), American Bar Association (1985), American Correctional Association (1990), American Nurses’ Association (1985), American Psychiatric Association (2000), American Public Health Association (Dubler 1986), National Commission on Correctional Health Care (1996, 1997, 1999), National Institute of Corrections (Anno 1991), and the United Nations (1975). There is a clear trend that the various state Departments of Correction (DOC) are attempting to conform to some national set of standards (Hayes 1989; Metzner, Fryer, and Usery 1990; Metzner 1993). The most current and widely referenced standards and/or guidelines for correctional mental health services have been published by the American Psychiatric Association (APA) (2000) and the National Commission on Correctional Health Care (NCCHC) (1996, 1997, 1999). The NCCHC evolved from a program within the American Medical Association that published its first healthcare standards for prisons and jails in 1979. The NCCHC standards focus predominantly on general healthcare issues, although they have increased their focus on mental health issues in recent years (NCCHC 1999). The guidelines developed by the APA task force, which assume compliance with the NCCHC standards, provide more specificity relevant to mental health services. The American Correctional Association (ACA), through an annual Standards Supplement (American

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Correctional Association 2000), has significantly improved recommendations relevant to health services in correctional facilities. Although the ACA standards are less than comprehensive, they are to be applauded for current efforts to upgrade them. The ACA is in the process of developing performance based standards that will, hopefully, expand the current (American Correctional Association 1989; American Correctional Association 2000) recommendations pertinent to healthcare standards. The ACA project appears to be similar in scope to another pilot project, involving thirty-two facilities across the United States, established by the Office of Juvenile Justice and Delinquency Prevention (OJJDP) in cooperation the Council of Juvenile Correctional Administrators (CJCA). The OJJDP formulated twenty-two performance-based standards that include the areas of health and mental health, which are being tested in their pilot program (see www. Performance-standards.org/contact.htm). It is beyond the scope of this chapter to compare the various national standards and guidelines. Such a comparison has been carried out by Metzner (1993) and Cohen (1998). This section will highlight common areas that are found in these national guidelines with brief commentary relevant to particularly difficult issues. Guidelines provide a structure for correctional mental health systems by requiring the development of written policies and procedures that are to be reviewed/revised at least annually. They should include, but are not limited to, descriptions of the following characteristics of the mental health system:

• • • • • • • • • • • • •

mission and goals; administrative structure; staffing (i.e., personnel and training); reliable and valid methods for identifying and tracking inmates with severe mental illness (best done via a computerized management information system); availability of treatment programs; involuntary treatment including the use of seclusion, restraints, forced medications, and involuntary hospitalization; other medical-legal issues such as informed consent, right to refuse medications, and record release authorizations; limits of confidentiality during assessment evaluations and/or treatment sessions with relevant exceptions noted; mental health record requirements; quality improvement plan; training of mental health staff regarding security issues; training of correctional staff concerning mental health issues; and research protocols.

The APA guidelines recommend that the fundamental policy goal for correctional mental healthcare is to provide the same level of mental health services to each

patient in the criminal justice center that should be available in the community. APA and NCCHC both support a correctional healthcare system that integrates the medical, mental health, and dental systems under a central healthcare authority (at the DOC central office level for prison systems). However, it is clear that a variety of different administrative models are effective, depending on a variety of factors, including the size and type of correctional population to be served. The importance of establishing medical autonomy relative to clinical decisions (i.e., not compromised by security reasons) and having regular administrative meetings between the health care authority and the warden, sheriff, or official legally responsible for the correctional facility is emphasized by these standards. The NCCHC recommends that staffing levels include a sufficient number of health services staff of varying types to assure timely inmate access to evaluation and treatment consistent with contemporary standards of care. The APA recognizes the importance of a multidisciplinary mental health staff. The need for adequate staffing by psychiatrists is also emphasized due to the unique importance of psychotropic medication as a treatment modality. The APA suggests that in jails, for every 75–100 inmates with serious mental illnesses who are receiving psychotropic medications, there be one full-time psychiatrist or equivalent. In prisons, with fewer admissions, the caseload of each full-time psychiatrist equivalent can rise to a maximum of 150 patients on psychotropic medications. The APA recommends three levels of mental health screening for purposes of identifying newly admitted persons to the correctional facility:

•

• •

Receiving screening, which is frequently performed by trained custody staff upon booking, is a process designed to insure that every newly arrived person who may require mental health evaluation is appropriately referred and placed in the proper living environment. Intake mental health screening is performed by appropriately trained healthcare staff as part of the comprehensive medical evaluation provided to every inmate entering a correctional system. Mental health evaluation is performed by mental health staff in response to a referral from the screening process, other staff, or by self-referral.

The APA guidelines define mental health treatment as the use of a variety of mental health therapies, including biological, psychological, and social. Mental health treatment is described as occurring in a number of different settings, including:

• • •

acute care (e.g., crisis intervention, infirmary care); longer-term care; transitional care (e.g., residential treatment within the correctional facility);

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• •

outpatient treatment; and inpatient hospital treatment.

Program priorities described by the APA include recognizing and providing access to treatment for each inmate with serious mental illness and consulting with other healthcare staff and correctional staff. Both the NCCHC and the APA discuss the importance of adequate discharge planning, which has also recently been the focus of class action litigation in correctional systems. The NCCHC standards require regular review of inmates placed in segregation units for purposes of determining any medical contraindication for such placements and assuring reasonable access to needed healthcare. The APA guidelines expand these recommendations to include regular rounds by qualified mental health clinicians in all segregation housing units. Compliance with the guidelines recommended by the APA task force report and the NCCHC standards will help ensure that the correctional mental health system is able to obtain necessary resources in order to provide adequate mental health services to the inmate population.

SUMMARY AND CONCLUSIONS Jails and prisons are saturated with human service need, and the resources will never be adequate. Thus, administrators must take into account which services are most costly and sparse and use these resources judiciously. While prisons require a broad array of ‘community’ mental health services, in jails and lockups, resources must be focused on short-term crisis services designed to identify, protect, and treat those inmates who are most vulnerable to suicide, injury, or severe psychological distress. The boundaries between the mental health and criminal justice systems are rarely clear (Dvoskin and Patterson 1998). Nevertheless, each setting and discipline must focus on the necessary interface of services that relate to its population and mission. To this end, active interdisciplinary discourse and cooperation are essential to maintaining the integrity and goals of the mental health and criminal justice systems. This chapter outlines the basic legal requirements for correctional mental health, provides an overview of effective treatment delivery, and proposes a structure for meeting those requirements in a cost-effective manner. Above all, resources must be used efficiently, so that each inmate has timely access to the essential services that the law and human decency require.

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Abram, K.M., Teplin, L.A. 1991. Co-occurring disorders among mentally ill jail detainees, implications for public policy. American Psychologist 46, 1036–45. American Association of Correctional Psychologists. 1999: Standards for Psychology Services in Jails, Prisons, Correctional Facilities and Agencies, 2nd edition. American Association of Correctional Psychologists. American Bar Association. 1985: Criminal Justice Mental Health Standards. Washington, DC: American Bar Association. American Correctional Association. 1989: Certification Standards for Health Care Programs. Laurel, MD: American Correctional Association. American Correctional Association. 1990: Standards for Adult Correctional Institutions, 3rd edition. College Park, MD: American Correctional Association. American Correctional Association. 2000: 2000 Standards Supplement. Lanham, MD: American Correctional Association. American Nurses Association. 1985: Standards of Nursing Practices in Correctional Facilities. Kansas City, MO: American Nurses Association. American Psychiatric Association. 1989: Psychiatric Services in Jails and Prisons: Report of the Task Force on Psychiatric Services in Jails and Prisons. Washington, DC: American Psychiatric Association. American Psychiatric Association. 2000: Psychiatric Services in Jails and Prisons, 2nd edition. Washington, DC: American Psychiatric Association. Anderson, W.H., Kuelmle, J.C., Catanzano, D.M. 1976. Rapid treatment of acute psychosis. American Journal of Psychiatry 133, 1076–8. Anno, B.J. 1991: Prison Health Care: Guidelines for the Management of an Adequate Delivery System. Washington, DC: U.S. Department of Justice, National Institute of Corrections. Atlas, R. 1989. Reducing the opportunity for inmate suicide: a design guide. Psychiatric Quarterly 60(1), 161–71. Axelson, G. 1987: Psychotic Versus Non-Psychotic Misdemeanants in a Large County Jail. An Analysis of Pre-Trial Treatment by the Legal System. Doctoral dissertation. Fairfax, VA: George Mason University Psychology Department. Bowring v. Godwin, 55 1 F.2d 44 (4th Cir. 1977). Brodsky, C.M., Epstein, L.J. 1982. Psychiatric consultation through continuing education in correctional institutions. Comprehensive Psychiatry 23, 582–9. Browne, A. 1987: When Battered Women Kill. New York: Free Press. Carey, K.B. 1989. Emerging treatment guidelines for mentally ill chemical abusers. Hospital and Community Psychiatry 40, 341–2, 349. Charles, B.L. 2000. Telemedicine can lower costs and improve access. Healthcare Financial Management April, 66–9.

502 Correctional psychiatry Cohen, F. 1988: Legal Issues and the Mentally Disordered Prisoner. Washington, DC: National Institute of Corrections. Cohen, F. 1998: The Mentally Disordered Inmate and the Law. Kingston, NJ: Civic Research Institute. Cohen, R., Dvoskin, J.A. 1992. Inmates with mental disorders: a guide to law and practice. Part II. Mental and Physical Disability Law Reporter 16. Coleman, R. 1998: How to keep the mentally ill out of jail. Corrections Managers’ Report 4(3), 11–14. Coleman v. Wilson, 912 F. Supp. 1282 (E.D. Cal. 1995). Cox, J., Landsberg, G. 1989. Introduction to special issue on jail suicide. Psychiatric Quarterly 60. Cox, J., Landsberg, G., Paravotti, M.P. 1989. The essential components of a crisis intervention program for local jails: the New York local forensic suicide prevention crisis service model. Psychiatric Quarterly 60, 103–17. Dembo, I., Williams, L., Stafford, B. 1986–87. The impact of providing mental health and related services at a youth detention center on staff stress. Journal of Prison and Jail Health 6. Draine, J., Solomon, P. 1999. Describing and evaluating jail diversion services for persons with serious mental illness. Psychiatric Services 50, 56–61. Dubin, W.R. 1988. Rapid tranquilization: antipsychotics or benzodiazepines? Journal of Clinical Psychiatry 49, Suppl. 5–12. Dubler, N.N. (ed.). 1986: Standards for Health Services in Correctional Facilities, 2nd edition. Washington, DC: American Public Association. Dvoskin, J. 1989: The Palm Beach County, Florida, Forensic Program. In Steadman, H.J., McCarty, D.W., Morrissey, J.P. (eds), The Mentally Ill in Jail. Planning for Essential Services. New York: Guilford Press, 178–97. Dvoskin, J.A. 1990: Jail-based mental health services. In Steadman, H.J. (ed.), Effectively Addressing the Mental Health Needs of Jail Detainees. Boulder, CO: National Institute of Corrections. Dvoskin, J., Patterson, R.F. 1998: Administration of treatment programs for offenders with mental disorders. In Wettstein, R.M. (ed.), Treatment of Offenders with Mental Disorders. New York: The Guilford Press, 211–64. Edens, J.F., Peters, R.H., Hills, H.A. 1997. Treating prison inmates with co-occurring disorders: an integrative review of existing programs. Behavioral Sciences and the Law 15, 439–57. Edinger, J.D., Reuterfors, D.L., Logue, P.E. 1982. Crossvalidation of the Megargee MMPI typology: a study of specialized inmate populations. Criminal Justice and Behavior 9. Estelle v. Gamble, 429 U.S. 97 (1976). Farmer v. Brennan, 511 U.S. 825 (1994). Foster, D.V. 1988. Consideration of treatment issues with American Indians detained in the Federal Bureau of Prisons. Psychiatric Annals 18, 698–701.

Gibbs, J.J. 1987. Symptoms of psychopathology among jail prisoners: the effects of exposure to the jail environment. Criminal Justice and Behavior 14. Griffin, P.A. 1990: The back door of the jail: linking mentally ill offenders to community mental health services. In Steadman, H.J. (ed.), Jail Diversion for the Mentally Ill. Breaking Through the Barriers. Boulder, CO: National Institute of Corrections. Grossman, I. 2000: Personal Communication with I. Grossman, Chief, Psychology Service, Federal Correctional Institution, Federal Bureau of Prisons, Phoenix, Arizona. Haycock, J. 1989. Manipulation and suicide attempts in jails and prisons. Psychiatric Quarterly 60, 85–98. Hayes, L.M. 1989. National study of jail suicides: seven years later. Psychiatric Quarterly 60, 7–29. Hudson v. McMillan, 112 S. Ct. 995 (1992). Jacoby, J.D., Kozie-Peak, B. 1997. The benefits of social support for mentally ill offenders: prison-tocommunity transitions. Behavioral Sciences and the Law 15, 483–501. Lamb, H.R., Weinberger, L.E. 1998. Persons with severe mental illness in jails and prisons: a review. Psychiatric Services 49, 483–92. Langley v. Coughlin, F. Supp. 522, 538, 540-541 (S.D.N.Y. 1989) aff’d, 888 F.2d 252 (2d Cir. 1989). Lindquist, C.H., Lindquist, C.A. 1997. Gender differences in distress: mental health consequences of environmental stress among jail inmates. Behavioral Sciences and the Law 15, 503–23. Lombardo, L.X. 1985. Mental health work in prisons and jails: inmate adjustment and indigenous correctional personnel. Criminal Justice and Behavior 12. Madrid v. Gomez, 889 F. Supp. 1146 (ND CA) (1995). Magaletta, P.R., Fagan, T.J., Ax, R.K. 1998. Advancing psychology services through telehealth in the Federal Bureau of Prisons. Professional Psychology: Research and Practice 29, 543–8. Mair, F., Whitten, P. 2000. Systematic review of patient satisfaction with telemedicine. British Medical Journal 320, 1517–20. McGaha, G. 1986. Health care issues of incarcerated women. Journal of Offender Counseling, Services, and Rehabilitation 12. Megargee, E.I. 1976. The prediction of dangerous behavior. Criminal Justice and Behavior 3. Meloy, J.R. 1985. Inpatient psychiatric treatment in a county jail. Journal of Psychiatry and Law 13, 377–96. Melville, C., Brown, C. 1987. The use of patient education in a prison mental health treatment program. Journal of Offender Counseling, Services, and Rehabilitation 12. Metzner, J.L. 1993. Guidelines for psychiatric services in prisons. Criminal Behavior and Mental Health 3, 252–67. Metzner, J.L., Fryer, G.E., Usery, D. 1990. Prison mental health services: results of a national survey of

The structure of correctional mental health services 503 standards, resources, administrative structure, and litigation. Journal of Forensic Sciences 35, 433–8. Metzner, J.L., Cohen, F., Grossman, L.S., Wettstein, R.M. 1998: Treatment in jails and prisons. In Wettstein, R.M. (ed.), Treatment of Offenders with Mental Disorders. New York: The Guilford Press, 211–64. Miller et al. v. French et al. (99-224), 178 F.3d 437 (2000). Mirsky, K.A. 1988: Antisocial Personality, Substance Abuse Disorders, and Depression in an Urban County Jail. Doctoral dissertation. Chicago: Northwestern University. Morgan, R.D., Winterowd, C.L., Ferrell, S.W. 1999. A national survey of group psychotherapy services in correctional facilities. Professional Psychology: Research and Practice 30, 600–6. Muzekari, L.H., Lonigan, C.J., Hatton, A.Y., Rowe, C. 1999. Mental health services in the county jail: a critical partnership? Psychological Reports 84, 1099–104. Nathan, P. 2000: Personal communication with P. Nathan, M.D., Associate Division Director, Texas Department of Criminal Justice-Health Services, Huntsville, Texas. National Commission on Correctional Health Care. 1996: Standards for Health Services in Jails. Chicago, IL: National Commission on Correctional Health Care. National Commission on Correctional Health Care. 1997: Standards for Health Services in Prisons. Chicago, IL: National Commission on Correctional Health Care. National Commission on Correctional Health Care. 1999: Correctional Mental Health Care. Chicago, IL: National Commission on Correctional Health Care. New York State Commission of Correction. 1989: 1988 Annual Data Compendium. Albany. O’Leary, W.D. 1989. Custodial suicide: evolving liability considerations. Psychiatric Quarterly 60, 31–71. O’Neil, J.A., Wish, E.D. 1990: Drug use forecasting research update. Research in Action, December 1989. National Institute of Justice. Petrich, J. 1976. Rate of psychiatric morbidity in a metropolitan county jail population. American Journal of Psychiatry 133, 1439–44. Pogrebin, M. 1985. The crisis in mental health care in our jails: jail and the mentally disordered: the need for mental health services. Journal of Prison and Jail Health 5. Prison Litigation Reform Act. 1996: 18 U.S.C. Section 3626 (b)(2). Rakis, L., Monroe, R. 1989. Monitoring and managing the suicidal prisoner. Psychiatric Quarterly 60, 151–60. Rice, M.E., Harris, G.T. 1997. The treatment of mentally disordered offenders. Psychology, Public Policy and Law 3, 126–83. Roskes, E., Feldman, R. 1999. A collaborative communitybased treatment program for offenders with mental illness. Psychiatric Services 50, 1614–19. Ruiz v. Estelle, 53 F. Supp. 1265 (S.D. Texas 1980). Salzman, C., Green, A.I., Rodriguez-Villa, F., Jaskiw, G.I. 1986. Benzodiazepines combined with neuroleptics

for management of severe disruptive behavior. Psychosomatics 27, 17–22. Sherman, L.G., Morschauser, P.C. 1989. Screening for suicide risk in inmates. Psychiatric Quarterly 60, 119–38. Smith, L.D. 1989. Medication refusal and the rehospitalized mentally ill inmate. Hospital and Community Psychiatry 40, 497–502. Sobel, S.B. 1980: Women in prison: sexism behind bars. Professional Psychology 11. Sowers, W., Thompson, K., Mullins, S. 1999: Mental Health in Corrections. An Overview for Correctional Staff. Lanham, MD: American Correctional Association. Stanfield, R. 2000: Personal communication with R. Stanfield, BS, CSWII, University of Texas Medical Branch Correctional Managed Care, Huntsville, Texas. Steadman, H. (ed.). 1990: Jail Diversion for the Mentally Ill. Breaking Through the Barriers. Boulder, CO: National Institute of Corrections. Steadman, H., Fabisiak, S., Dvoskin, J., Holohean, E. 1987. A survey of mental disability among state prison inmates. Hospital and Community Psychiatry 38, 1086–90. Steadman, H., McCarty, D.W., Morrissey, J.P. 1989: The Mentally Ill in Jail. Planning for Essential Services. New York: Guilford Press. Steadman, H., Holohean, E., Dvoskin, J.A. 1991. Estimating mental health need and service utilization among prison inmates. Bulletin of the American Academy of Psychiatry and the Law 19, 297–307. Steadman, H., Steadman-Barbera, S., Dennis, D.L. 1994a. A national survey of jail diversion programs for mentally ill detainees. Hospital and Community Psychiatry 45, 1109–13. Steadman, H., Barbera, S., Dennis, D.L. 1994b: Developing Effective Jail Mental Health Diversion Programs. Delmar, NY: Policy Research Associates Inc. Steadman, H., Morris, S.M., Dennis, D.L. 1995. The diversion of mentally ill persons from jails to community-based services: a profile of programs. American Journal of Public Health 85, 1630–5. Steadman, H., Williams-Deane, M., Morrissey, J.P., et al. 1999. A SAMHSA research initiative assessing the effectiveness of jail diversion programs for mentally ill persons. Psychiatric Services 50, 1620–3. Stevens, A., Doidge, N., Goldbloom, D., Voore, P., Farewell, J. 1999. Pilot study of televideo psychiatric assessments in an underserviced community. American Journal of Psychiatry 156, 783–5. Strode, S.W., Gustke, S., Allen, A. 1999. Technical and clinical progress in telemedicine. Journal of the American Medical Association 281, 1066–8. Swartz, J.A., Lurigio, A.J. 1999. Psychiatric illness and comorbidity among adult male jail detainees in drug treatment. Psychiatric Services 50, 1628–30.

504 Correctional psychiatry Teplin, L., Swartz, J. 1989. Screening for severe mental disorder in jails. Law and Human Behavior 13. Toch, H., Adams, K., Greene, R. 1987. Ethnicity, disruptiveness, and emotional disorder among prison inmates. Criminal Justice and Behavior 14. United Nations, Fifth United Nations Congress on the Prevention of Crime and the Treatment of Offenders. 1975: Health Aspects of Avoidable Maltreatment of Prisoners and Detainees. New York: United Nations. United States Department of Justice. 1998 (December): Substance Abuse and Treatment, State and Federal Prisoners, 1997. Bureau of Justice Statistics, NCJ-172871. United States Department of Justice. 1999 (July): Mental Health Treatment of Inmates and Prisoners. Bureau of Justice Statistics, NCJ-174463.

United States Department of Justice. 2000a (April): Prison and Jail Inmates at Midyear 1999. Bureau of Justice Statistics, NCJ-181643. United States Department of Justice. 2000b (August): Prisoners in 1999. Bureau of Justice Statistics, NCJ-183476. Valdiserri, E.V., Carroll, K.R., Hartl, A.J. 1986. A study of offenses committed by psychotic inmates in a county jail. Hospital and Community Psychiatry 37, 163–6. Versey, B.M., Steadman, H.J., Morrissey, J.P., Johnsen, M.J. 1997. In search of the missing linkages: continuity of care in U.S. jails. Behavioral Sciences and the Law 15, 383–97. Wilson v. Seiter, 111 S. Ct. 2321 (1991).

50 Administrative and staffing problems for psychiatric services in correctional and forensic settings ROBERT T.M. PHILLIPS AND CAROL CAPLAN

DEFINING THE PROBLEMS Persons, both mentally ill and who are believed to have committed criminal acts (or have committed criminal acts and are believed to be mentally ill) have been enmeshed historically in a complex pattern of relationships and movement between mental health facilities, state correctional facilities, courts, local correctional centers, and ultimately, the mental health system. There are various statutory mechanisms under which an ‘offender’ may enter a state’s mental health service system. Each of these mechanisms and the types of services they require are generally guided by statute. The breadth and complexity of the statutes relate to the fact that the criminal justice system itself is complex and not always consistent in its determination of how, and in what manner, mental health services should be provided or required for an offender, regardless of the state in question. Literally, the mental health system may be asked to intervene anywhere in the ad judicatory process, with different statutory requirements determining both the ‘locus’ and the ‘focus’ of care. A state’s department of mental health often assumes the lead responsibility for its forensic population, but does not control critical aspects of the system, such as care of patients while in correctional facilities, and the movement of offenders into and out of various mental health services. In practice, forensic patients in a department of mental health can flow through a variety of its facilities, whereas the treatment of mentally ill offenders in correctional settings tends to be a more static process. In many states the department of correction is responsible for a large number of dangerous and mentally ill persons. Mentally ill offenders often are first contacted by the mental health system through community-based

competency evaluations that may occur in correctional centers or court clinic offices if the offender is out on bond. In some states correctional centers often do not have sophisticated mental health treatment services of their own but may provide some care in the case of potentially suicidal inmates. In these instances, mentally ill offenders are routinely transferred between the mental health and the correctional system. In other states, the department of correction is responsible for the management of the forensic patient and is quite capable of providing mental health services within its own system. The state departments of correction have a responsibility to maintain the custody of prisoners in a humane environment. Correctional institutions also have an obligation to provide necessary healthcare to prisoners in their custody. Healthcare clearly extends beyond physical health and includes the mental health of the incarcerated population (Bowring v. Godwin 1977). The standard of care provided in American jails and prisons has emerged from federal case law involving prisoners’ claims of violation of constitutional rights to freedom from cruel and unusual punishment guaranteed by the Eighth Amendment. This standard, defined as ‘the absence of deliberate indifference,’ remains a subject of great controversy within the field due to its apparent dichotomy with the concept of ‘quality clinical care.’ Nonetheless, in Estelle v. Gamble (1976) the U.S. Supreme Court found that if correctional institutions do not demonstrate deliberate indifference to the healthcare needs of inmates, no valid claim of medical mistreatment under the Eighth Amendment exists. Given this responsibility on the part of correctional authorities, and in light of such court rulings, mentally ill offenders have a significant impact on the management and fiscal resources of correctional budgets. Overcrowding, inmate violence, deteriorating environmental conditions,

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and lack of physical and mental healthcare have led to class action litigation resulting in numerous states operating under court order to provide improved clinical care. The increased incidence of acquired immune deficiency syndrome (AIDS), tuberculosis, and syphilis have further compounded this problem (Jones 1991). There appears to be little consensus on the most appropriate arrangement for delivering services to mentally disordered inmates (Steadman et al. 1982). Steadman’s survey revealed that sixteen states transferred most of their mentally disordered inmates (at least 75 per cent) into mental facilities or units administered by the state department of correction; twenty-eight states transferred the majority into hospitals or units run by the state department of mental health; and six states utilized a combination of correctional and mental health units. Perhaps the lack of consensus among the states regarding service delivery models for mentally disordered inmates reflects, in part, a lack of empirical data. There are no data regarding which service delivery arrangement is optimal for both inmates and facilities, what such an arrangement might look like, and under what circumstances one arrangement is to be preferred over others. As prison populations climb, as the number of beds in state mental hospitals continues to be limited, and as a legal right to adequate health and mental health treatment is confirmed by the courts, more information and resources are needed to facilitate the development of appropriate programs for mentally disordered inmates (Giampa 1990). The definition of mental health services needs for correctional inmates extends beyond traditional concepts of acute inpatient care into two broad categories: (i) persons who would be outpatients but are incarcerated; and (ii) persons who are involved with the criminal justice system but are living in the community. Incarcerated outpatients are those prisoners who are receiving services while in the jails and prisons of the nation. These services range from visits from local mental health providers, to transportation to local mental health facilities, to a fully staffed mental health unit within a correctional facility. These services also would include pre-trial services for those inmates who have been referred by the courts for evaluation of criminal competence and criminal responsibility, as well as pre-parole, pre-sentence, and prison diversion services for those who may be given the alternative of receiving mental health treatment in the community rather than in a correctional setting. Persons who are living in the community rather than in correctional settings comprise the other group involved in the forensic system who are in need of mental healthcare. These persons may include parolees and probationers who live in supervised homes, their own homes, or elsewhere in the community and as a condition of parole or probation are required to receive mental health services. These services also include pretrial services to inmates who are released on their own

recognizance or bond status awaiting trial. The need for evaluative services varies depending on the state; the need for consistent mental health follow-up for probationers and parolees is an essential part of the re-integration of the inmate into the community (Patterson, R.F., personal communication).

STAFFING CONCERNS Direct-care staff working in correctional and forensic settings are faced with the challenge of balancing conflicting goals and role functions. They are expected to provide holistic care to patients in the context of a therapeutic milieu while attending to security concerns. The special requirements of care for selected patient groups such as violent patients, insanity acquittees, and female patients complicate the provision of care (Nelson and Berger 1988). These factors must be considered when staffing facilities for mentally ill offenders, whether they are hospitalized in a freestanding forensic facility, a forensic unit in a general psychiatric hospital, a general psychiatric unit, or a correctional institution. The unique clinical and social history of the mentally ill offender (or the civil patient hospitalized in a forensic setting) creates the need for increased staffing to contain violent and aggressive behavior. Offenders who have demonstrated their potential for violent behavior prior to admission for treatment should be considered highrisk patients. Strategies for containment of violence should include early intervention, prevention, and de-escalation, and should support well-defined emergency response procedures. The actual physical restraint of a patient is a potentially dangerous procedure for both patient and staff. Once placed in mechanical restraints or seclusion, the patient must be closely monitored for behavioral and physiologic changes. Particularly impulsive or unstable patients may require special monitoring or treatment plans such as one-to-one observation in order to contain violent behaviors. Such interventions are expensive highly staff-intensive efforts. Additional staff resources may be needed for reasons other than containment of overt violence. When prisoners are hospitalized in the mental health system for psychiatric care, they may disrupt the therapeutic program and manipulate or victimize lower-functioning or regressed patients. Conversely, mentally ill patients treated in correctional settings are often victimized by other inmates. A study comparing civil and criminal patients at four state hospitals in Ohio following legislation allowing criminal patients to be committed to civil psychiatric hospitals found significant differences in their behaviors (Beran and Hotz 1984). This study found substantial agreement among staff members that forensic patients frighten, worry, and manipulate staff more than civil

Administrative and staffing problems for psychiatric services in correctional and forensic settings 507

patients, although civil patients tend to be more physically threatening and dangerous. Staff rotation presents another dilemma for the administrator. Direct-care staff are intimately familiar with patient behavior. Their observations and assessments are important factors in providing comprehensive treatment and care. When line staff are assigned to one treatment unit or team, they become familiar with the unit or team’s mission, as well as with the patients and the routine. It is wise, therefore, to include direct-care staff in the planning of care and the establishment of unit routines. Moreover, when direct-care staff have an active part in the planning phase, they understand the rationale for treatment and are better able to follow through with a plan of care. This fact presents a dilemma for the administrator when resources are limited. In order to adequately staff the hospital or clinical facility, it is often necessary to rotate staff as required by clinical needs. The staff member who is assigned temporarily to a unit is faced with unfamiliar patients and routines. Because it is not possible to learn all the subtleties of the unit routine or the quirks of individual patients, the staff member focuses on the minimum requirements of maintaining safety and performing tasks. The regularly assigned staff must spend time orienting the rotated staff member, which further reduces time spent in caring for patients. The result is a focus on minimum safety standards and tasks with treatment goals viewed as secondary or unnecessary. This scenario is further complicated by the fact that nursing staff cover the hospital seven days a week and may be off-duty during the traditional Monday through Friday workweek in order to be on duty on weekends. Consequently, an individual staff member may be absent from his or her duty station for multiple days in a row if days off are combined with rotation days. Staffing coordinators should be alert to staffing patterns and work to minimize rotations. When a long-term need for extra staff exists on a unit, efforts should be made to reassign staff on a temporary basis to minimize the disruption of multiple rotating staff. This can be done on a voluntary basis or by some other agreed-upon method such as seniority. Treatment of insanity acquittees also requires special staffing. Because of the high visibility of some crimes and the resulting public pressure for confinement, acquittees tend to remain in the hospital for extended treatment and observation beyond what is clinically indicated. As a result, they are often higher-functioning than other hospitalized patients. Special restrictions may be placed on their movement within the hospital or in the community, thus requiring increased staffing to escort them to off-ward activities. When these patients are allowed off the ward without staff escort, they require class assessment of their current mental status and potential for dangerousness prior to leaving the ward, which requires evaluation by a staff member who is familiar with the patient’s current behaviors and history.

BALANCING SECURITY AND TREATMENT Strict security standards must be agreed upon and maintained in order to provide a safe environment for both patients and staff (Scales, Phillips, and Crysler 1989). While security officers may be responsible for perimeter security, direct-care staff generally maintain safety in patient-care areas. Searches for contraband and weapons must be carried out on a routine basis. Since weapons can be easily fashioned from items found on the unit, it is necessary for staff to inspect all equipment and furniture kept on the unit, as well as the infrastructure for missing pieces or damaged areas of the environment. Patients’ personal possessions must also be checked. Additionally, nursing staff may be required to assist agency security officers in more thorough search procedures when contraband is suspected or found on the unit. These timeconsuming procedures, when carried out frequently, impact on staffing needs and patient care. Security and treatment needs must be combined in such a way as to prevent a ‘guard mentality’ from emerging as the culture in a therapeutic setting (Maier 1986; Scales, Phillips, and Crysler 1989). The patients’ history of violence, current potential for violence, and ability to manipulate staff or cover psychotic symptomatology are all factors that tend to trouble staff. Security and safety measures become paramount in the daily considerations of care. Forensic nurses have ranked the ability to maintain security as the most necessary competency required in their jobs (Niskala 1986) while recognizing it is also necessary to provide treatment with dignity to patients (Phillips 1983). These factors all combine to influence the direct-care staff ’s perception of their ability to maintain safety and security while providing therapeutic care. Direct-line staff tend to feel most comfortable when staffing levels are maintained at a low staff-to-patient ratio. Caplan (1993) found that in a maximum security hospital where staff-to-patient ratios were maintained between one-tothree and one-to-four, patients perceived a high level of staff control of the environment, while staff perceived they were barely maintaining control. Even these laborintensive staffing patterns were perceived by the directcare staff as nominally adequate. There tends to be pressure to maintain a labor-intensive environment, with continued requests for additional staff to meet treatment and security needs. Administrators in the public sector are increasingly constrained by diminishing resources, and cannot provide unlimited direct-care staff. It is helpful to establish a standard staffing pattern with the most intensive patterns allocated to units with the most disturbed patients and less intensive coverage allocated to units with higherfunctioning patients. These patterns should be established based on the clinical needs of the treatment program. Acuity scales that account for clinical and

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security needs might be useful to establish a standardized pattern. Fixed staff–patient ratios or an established formula weighing patient needs might also be used. Fixed guidelines should be established to specify when additional staff are needed or allowed, such as situations in which a patient requires one-to-one observation or escort out of the secure unit. Consideration also should be given to the type of staff allocated. Ratios of registered nurses to mental health technicians should be considered. While registered nurses provide leadership and care based on professional standards of practice, it may not be possible to staff every forensic unit with a registered nurse on each shift. Priorities of care must be established and in some cases it might be necessary to use licensed practical nurses or non-licensed technicians under the supervision of a registered nurse to manage a unit. It would seem reasonable to assign registered nurses to wards with the most disturbed or acutely ill patients; however, it is also necessary to utilize their professional expertise in assessing patients who are leaving the ward unescorted, as would be the case on a minimum security ward where patients are being reintroduced into the community. It is necessary, at the minimum, to assign a registered nurse to each ward in order to adequately plan for the holistic nursing care of each patient. Additionally, registered nurses provide supervision for non-professional staff that may help to keep the security–treatment continuum balanced.

ADMINISTRATIVE DILEMMAS ARISING FROM THE RIGHT TO REFUSE TREATMENT The medical appropriateness of forced treatment, the government’s interest in forcibly treating a forensic patient or correctional inmate, and the ensuing fair trial rights of such treated individuals is a debate that remains at the interstices of administrative policy, politics, and precedent. The evolution of forced medication and the right to refuse treatment have had an impact on forensic and correctional treatment institutions and practitioners far beyond the initial considerations of the United States Supreme Court in Washington v. Harper (1990). In Harper the court addressed the right of a convicted and competent prisoner to refuse treatment while it struggled to balance the defendant’s liberty interests with legitimate interests of the state. The court considered whether the involuntary administration of medication to a prisoner violated the Eighth Amendment’s prohibition against cruel and unusual punishment, and whether the prisoner possessed a significant liberty interest in avoiding such unwanted treatment. In holding that the due process clause permits the state to treat a prison inmate who has a serious mental illness with antipsychotic drugs

against his will if the inmate is dangerous to himself or others and the treatment is in the inmate’s medical interests, the court stressed the institutional concern for security and gave deference to policies of correctional facilities. A patient’s right to refuse psychiatric treatment has since evolved as a matter of public policy and state statutes. Historically, voluntary patients have always had the right to refuse treatment. However, patients committed involuntarily did not enjoy the same freedom of choice. In fact, such considerations were a non-issue in the bygone humanitarian era of parens patriae commitment criteria. It was not until the 1970s when commitment criteria shifted away from caring for the disabled toward insuring protection from persons who posed a threat of dangerousness that such considerations arose. If, in fact, the latter were now the sole purpose of civil commitment, then confinement alone would accomplish the goal. As a matter of due process, an individual’s right to refuse treatment is argued to be derived from the First Amendment’s protection of thought and expression, the Eighth Amendment’s prohibition against cruel and unusual punishment, the equal protection clause and the right to privacy, as well as the common law rights to control what is done to one’s body. The precise scope of this latter right is neither well defined nor universally agreed upon by physicians, legal scholars, or medical ethicists. States have varied in their approach to what can be categorized as either ‘treatment driven’ or ‘rights driven.’ Treatment-driven models recognize a patient’s interest in rejecting inappropriate medication but not in refusing appropriate treatment. Rights-driven models attempt to minimize the differences between involuntarily committed patients and other non-committed patients by introducing a mechanism for independent evaluation of the patient’s refusal as well as the need for treatment. Although philosophically divergent, both of these approaches take on extraordinary valence when being considered not just for the civil law purpose of treatment but for facilitating the government’s legitimate interest in bringing a defendant to trial. For psychiatrists in forensic and correctional settings this calls into question whether the physicians’ fiduciary responsibility includes helping patients achieve a successful trial outcome when their role is that of caregiver and not forensic evaluator. Conversely, should physicians engage in treatment that might compromise their patients’ chances of a successful trial outcome? What do employees/practitioners do if they believe the administrative mission or dicta of their institution compromises their professional ethics? As a matter of law, defendants who have a psychiatric disorder are presumed to be competent to stand trial (unless adjudicated otherwise) whether or not they require, are receiving, or have received psychotropic drugs, other medication, or treatment related to their illness. Even if a decision by a competent patient to stop taking medication in this context appears irrational, it does not

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necessarily follow that it is the physician’s responsibility to force treatment over the patient’s objection. Ethically, the choice to refuse treatment is considered to be that of the patient and not the physician. The decision to cease noxious chemotherapy and die with dignity, the refusal of treatment consistent with religious convictions, and the withholding of life-sustaining medical interventions are but a few examples of situations where the physicians’ ultimate duty is to respect the wishes of the patient and not what they believe to be the ‘right choice.’ When these issues arise amidst legal proceedings, the boundary is not always so sharply demarcated. Some courts have accepted the strategic importance of demeanor and presentation of a witness at trial and have ruled that the defendant does have a constitutional right to appear unmedicated. Others have insisted on continuing medication as a prophylaxis against the defendant becoming incompetent to stand trial. From the practitioner’s standpoint, the existence of a court order instructing treatment may pose an ethical dilemma that is different from a decision made by a patient absent a court order. In either scenario, the physician’s role in assisting a defendant to arrive at an informed choice regarding whether or not to accept or discontinue treatment further complicates the perception or reality of an ethical conflict. The decision as to whether a competent defendant should cease medication as a matter of trial strategy is a legal and not a medical matter. We, as physicians, have no dog in that fight and should not be looking to purchase one. The dilemma in which the rights and interests of the individual and the state are balanced on a fulcrum of forced medication on an incompetent defendant pose greater ethical, administrative, and public policy problems for which distance is not so readily achieved by either medicine or law.

TREATMENT TO RESTORE COMPETENCE TO BE EXECUTED Undoubtedly, the most complicated ethical dilemma facing practitioners in forensic and correctional settings is when a physician/employee is asked to treat an individual who has been found not competent to be executed for the express purpose of restoring the individual to competency for the purpose of execution (Phillips 1996). This is a unique problem that faces practitioners in state forensic and correctional institutions who may have limited options for refusal of this task. Indeed, these individuals who have been found not competent to be executed are most often severely mentally ill, experiencing acute psychosis, often manifesting self-destructive behavior, and posing great potential harm to themselves and others. Three positions have emerged that represent the spectrum of opinions held regarding the treatment of

persons deemed incompetent for execution: never treat; sometimes treat; and always treat (Heilbrun, Radelet, and Dvoskin 1972; Appelbaum 1990; Bonnie 1990). Those that espouse the ‘never treat’ philosophy believe that the relief of suffering is not a sufficient justification for providing treatment in large measure because such treatment would allow the infliction of greater harm. Critics of this position point immediately to the flaw in such reasoning, suggesting that by not treating one de facto creates a greater state of harm to the individuals in that their suffering escalates and they are subject to the ravages of their mental illness. The ‘sometimes treat’ position, most widely adopted among those engaged in this debate, believes the treatment should be provided only when the inmate wants to be treated. While this position seems most consistent with other ways of approaching clinical matters within the rubric of informed consent, by definition it raises the obvious question of the ability of an incompetent prisoner to give informed consent for treatment. The law has, however, addressed such dilemmas outside the capital arena with such documents as living wills and substituted judgments, including next friend determinations. The ‘always treat’ position functionally disregards the consequence of treatment by focusing solely on the delivery of clinical service as the appropriate and singular responsibility of the mental health practitioner. In this context, there is an adherence to the belief that the psychiatrist’s primary role as a physician is to relieve pain and suffering whenever and wherever it presents itself, and this position absents itself from the entrapment in the political discussion. This is the position espoused by the Section of Psychiatry and Behavioral Sciences of the National Medical Association inferring that ‘the treatment of a “death row” inmate’s mental illness does not imply that the treating psychiatrist agrees with capital punishment but rather is committed to the adequate health care of the correctional population, and realizes the nature of the sentence the inmate has to serve is a legal issue in the purview of jurisprudence and not psychiatry’ (National Medical Association 1986). The Section of Psychiatry and Behavioral Sciences of the National Medical Association in their position statement on the role of the psychiatrist in evaluating and treating death row inmates goes on to assert that, ‘an inmate facing execution deserves the same type of psychotherapy that a terminally ill patient deserves, i.e. psychotherapy designed to work through the psychological issues everyone grapples with when knowingly facing death (shock, anger, denial, depression, and acceptance). The fact that “death row” inmates would not be given the opportunity to engage in either psychiatric and/or religious counseling to prepare for their death is reprehensible.’ The position of the National Medial Association essentially is one that presumes the ‘always treat’ posture is rooted in a commitment towards the provision of clinical care and the restoring of human dignity.

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It should also be understood that the Section of Psychiatry and Behavioral Sciences of the National Medical Association is mindful of the disproportionate representation of persons of color on death row and their particular commitment to the service of that population. These issues, though somewhat tangential to the points under consideration in our discussion, are worthy of mention. The death penalty is the harshest manifestation of discrimination against persons of color in this country. In all the senior author’s years of experience in conducting forensic evaluations in capital sentencing proceedings, it has become clear that the color of one’s skin, the amount of money one has for an attorney, and the passions of the moment play a much greater role in determining who dies than do the circumstances of the crime involved or the background of the person on trial. There are currently over 3500 persons confined on death row throughout the United States. Almost all of them are poor, and a disproportionate number of them are persons of color. Racial disparities are particularly evident throughout the capital punishment system and particularly disproportionately so in the South. The quality of legal assistance, or the lack of it, is a critical problem for the poor who comprise the vast majority of those sentenced to die. The issues of race and poverty are at play whenever the state seeks the death penalty. It is likely, then, that these issues also complicate consciously and unconsciously positions that are assumed regarding psychiatry’s role in capital sentencing proceedings and most particularly the role of psychiatrists in the context of treating persons incompetent for execution. In the report of the Council on Ethical and Judicial Affairs of the American Medical Association (CEJA) regarding ‘Physician Participation in Capital Punishment: Evaluations of Prisoner Competence to be Executed; Treatment to Restore Competence to be Executed,’ CEJA concluded that it is acceptable for physicians to provide testimony regarding competence to be executed. ‘Physician participation in evaluations of a prisoner’s competence to be executed may be ethical when the physician’s medical opinion is just one aspect of the information taken into account by the ultimate decision maker, a role that legally should be assumed by a judge or hearing officers’ (American Medical Association 1995). With regard to the more complicated issue, when a condemned prisoner has been declared incompetent to be executed, it is the position of the American Medical Association that the physician ‘should not treat the prisoner to restore competence unless a commutation order is issued. However, if the incompetent prisoner is undergoing extreme suffering as a result of psychosis or any other illness, medical intervention intended to mitigate the level of suffering is ethically permissible. Reevaluation of the prisoner’s competence to be executed should be performed by an independent physician examiner. A physician cannot be compelled to participate in this evaluative process if it is contrary

to the physician’s personal beliefs’ (American Medical Association 1995). The conflict of conscience that arises when psychiatrists are engaged in both evaluation and treatmentrelated issues of individuals en route to and on death row, may be likened to the balancing of the principles of beneficence and non-malfeasance resting on the fulcrum of one’s personal beliefs. Such an analysis, then, would render this a discussion of moral acceptability as viewed by the practitioner rather than ethical conduct as defined by a profession.

GENDER ISSUES The treatment of female offenders on forensic wards or in maximum security hospitals raises specific staffing concerns. Since fewer female patients are admitted for treatment, housing is often an issue. If female patients are admitted to a mixed ward, the gender ratio of patients may be skewed by a higher proportion of male patients. Nursing staff will need to take special precautions to protect the female patients from harassment or sexual assault by male patients, and also to accommodate other special needs of the females. If a ward is opened specifically to house a few female patients, staff minimums must be maintained, with the result that staff are drawn from other areas in the hospital. When female patients are housed on non-forensic units, but are evaluated by forensic staff, clinicians must travel from one area to another within the hospital. These issues are less significant when treatment units are established within women’s correctional centers. Male–female staffing patterns are a sensitive issue for administrators. Depending on the culture of the institution, there may be a pressure to hire only large male psychiatric technicians who are capable of physically enforcing control of violent behavior, or the institution may ignore gender differences. One study of a maximum security hospital found that in spite of training in the management of violence for all staff, nursing staff may selectively excuse registered nurses and female psychiatric technicians from the containment of violence (Carmel and Hunter 1989). Such unofficial behavior may place pressure on supervisors to staff with gender as a hidden agenda. Gender should be a consideration in the personal care of patients. When intimate care is required, it should be provided by a staff member of the same gender or a licensed nurse. Staff members of the same gender should be provided for escorts out of the facility where bathroom escorts might be needed. Likewise, patients who need assistance with personal hygiene should receive this care from a staff member of the same gender or a licensed professional. In some cases this may require reassignment of staff from their normal duty station. This procedure may create angry and anxious feelings in the staff

Administrative and staffing problems for psychiatric services in correctional and forensic settings 511

affected. It is helpful to have a rotation procedure in place so that reassignments are made on an equitable basis. Advance orientation to the routines of the new duty station also helps to decrease staff anxieties.

COMPUTERS AND VIDEO TECHNOLOGY IN FORENSIC AND CORRECTIONAL SETTINGS The evolving potential of computer and video technology presents both a blessing and a curse to modern forensic and correctional institutions. For example, placement of patients and inmates can now be easily tracked online. Management of court scheduling and institutional transfer has greatly streamlined the administrative process. Staffing matrices are more easily developed and modified to accommodate changing institutional needs. Videoconferencing capabilities have reduced the need for external transport, legal visits, and certain court proceedings for institutions that have kept pace with emerging technology. How should institutions handle the question of patient or inmate access to computers or, more specifically, access to computers connected to the Internet? As institutions attempt to answer this question it becomes apparent that the balancing of patient rights and responsibilities with the security interests of the public and the facility has become more complicated. Decisions to limit patient and inmate use of computers in forensic and correctional settings may not withstand the test of time or legal challenge because of the inherent inability to isolate institutional computing and telecommunications technologies. Furthermore, it is difficult to imagine any educational programming for patients or inmates that would not incorporate such modern technologies in its curriculum. The challenge for institutional administrators will be to develop pathways of access for patients and inmates that employ secure application technologies including network firewalls, user identification, and external monitoring. Whatever advances are made in this area over the next decade, they will only be successful if the research and development for forensic and correctional institutions are tempered by a comprehensive understanding of security treatment risks.

CONCLUSIONS Jails and prisons are among the most extreme psychologically stressful environments in our society. The unique stressors associated with mental illness further compound one’s ability to adapt to such an extreme environment. Race, ethnicity, and gender are affected by cross-cultural and sexual transference–countertransference issues, which negatively impact treatment (Toch, Adams, and Greene 1987). In this context, mentally ill offenders often

exhibit behaviors that are difficult to tolerate over time. In addition to violence, these patients may display bizarre behaviors, including self-mutilation. Character-disordered patients may be able to manipulate and split staff over treatment issues. Consequently, staff in either correctional or mental health settings may experience feelings of anger and frustration, which if not countered lead to burnout, decreased productivity, and an increase in the cycle of violence. It is essential for time to be set aside for staff to discuss these issues. If an individual staff member is unable to tolerate the working conditions on a unit, it is often helpful to offer a temporary reassignment to another unit to help him or her gain perspective. The exigencies of ethical and moral dilemmas experienced by practitioners who must force or withhold treatment in various institutional scenarios serve to complicate administrative responsibilities and potentially alienate clinicians. Mentally ill offenders are in need of psychiatric services that include early identification, crisis intervention, acute inpatient psychiatric treatment, and an evolving continuum of care. Provision of psychiatric service within or external to the correctional setting itself, including community support services upon release from the correctional institution (Phillips et al. 1990), may be necessary.

REFERENCES American Medical Association Council on Ethical and Judicial Affairs. 1993. Physician participation in capital punishment. Journal of the American Medical Association 270, 365–8. American Medical Association Council on Ethical and Judicial Affairs. 1995: Physician Participation in Capital Punishment. CEJA Report 6-A-95. Chicago, IL: American Medical Association. Appelbaum, P.S. 1990. The parable of the Forensic Psychiatrist: ethics and the problem of doing harm. International Journal of Law and Psychiatry 13, 249–57. Beran, N.L., Hotz, A.M. 1984. The behavior of mentally disordered criminals in civil mental hospitals. Hospital and Community Psychiatry 35, 585–9. Bonnie, R.J. 1990. Dilemmas in administering the death penalty: conscientious abstention, professional ethics and the needs of the legal system. Law and Human Behavior 14, 67–90. Bowring v. Godwin, 55 1 F.2d 47 (4th Cir. 1977). Caplan, C.A. 1993. Nursing staff and patient perception of the ward atmosphere in a maximum security forensic hospital. Archives of Psychiatric Nursing 7, 23–9. Carmel, H., Hunter, M. 1989. Staff injuries from inpatient violence. Hospital and Community Psychiatry 40, 41–6. Estelle v. Gamble, 429 U.S. 97, 105-106 (1976).

512 Correctional psychiatry Giampa, F.G. 1990: Overview of Correctional Mental Health Concerns and Program Offerings. State of Michigan, Department of Corrections. Heilbrun, K., Radelet, M.L., Dvoskin, J. 1972. The debate on treating individuals incompetent for execution. American Journal of Psychiatry 149, 596–605. Jones, S.T. 1991: Proceedings of the National Conference on Substance Abuse and the Courts. Washington, DC: The State Justice Institute, National Center for State Courts, U.S. Department of Justice. Maier, G.J. 1986. Relationship security: the dynamics of keepers and kept. Journal of Forensic Sciences 31, 603–8. National Medical Association Section on Psychiatry and the Behavioral Sciences. 1986: Position Statement on the Role of the Psychiatrist in Evaluating and Treating “Death Row ” Inmates. Washington, DC: National Medical Association. Nelson, S.H., Berger, V.F. 1988. Current issues in state mental health forensic programs. Bulletin of the American Academy of Psychiatry and the Law 16, 67–75. Niskala, H. 1986. Competencies and skills required by nurses working in forensic areas. Western Journal of Nursing Research 8, 400–13.

Phillips, M.S. 1983. Forensic psychiatry: nurses’ attitudes revealed. Dimensions in Health Services 60, 41–3. Phillips, R.T.M. 1996. The psychiatrist as evaluator: conflicts and conscience. New York Law School Law Review 41, 189–99. Phillips, R.T.M., Patterson, R.F., Petrella, R., Silver, S., et al. 1990: Overview of correctional mental health concerns. Unpublished manuscript. Alexandria, VA: State Mental Health Forensic Directors Executive Committee. Scales, C.L., Phillips, R.T.M., Crysler, D. 1989. Security aspects of clinical care. American Journal of Forensic Psychology 7, 49–57. Steadman, H.L., Monahan, J., Hartstone, E., et al. 1982. Mentally disordered offenders: a national study of patients and facilities. Law and Human Behavior 6, 31–8. Toch, H., Adams, K., Greene, R. 1987. Ethnicity, disruptiveness, and emotional disorder among prison inmates. Criminal Justice and Behavior 14. Washington v. Harper, 110 S. Ct. 1028 (1990).

51 Issues in the prevention and detection of suicide potential in correctional facilities GERALD LANDSBERG AND PAMELA MORSCHAUSER

Since the 1980s, suicide prevention in correctional facilities has come to increasing prominence because correctional settings (police lockups, jails, and prisons) are incarcerating significantly higher numbers of high-risk populations (e.g., people with serious mental illness), and courts and oversight agencies are demonstrating a willingness to hold institutions liable for the failure to prevent suicide. Mental health and correctional facilities are taking important actions to address this concern. Yet, despite the progress much still remains to be accomplished. As we look forward to further program development and training initiatives, we should understand more clearly the dimensions of the issue and the options and limitations. The purpose of this chapter is to examine the problem of suicide in lockups, jails, and prisons, and to highlight crucial issues to be addressed as we move forward in our deliberations and plans.

WHY THE HEIGHTENED CONCERN? Liability is a major ongoing concern to all correctional institutions and to the governmental agencies that are responsible for them. Litigation regarding suicide in custody may occur in federal courts as civil rights action or in state courts as wrongful death actions. Actions in Federal Courts constitute the majority of the cases reported (Cohen 1998). Although Federal courts in recent years have appeared to be inconsistent in interpreting the criteria of ‘deliberate indifference’ in suicide cases, litigation has continued in regard to jail and lockup suicides (Cohen 1998; National Center on Institutions and Alternatives 1999). Correctional facilities of all types are incarcerating increasing numbers of high-risk populations, especially persons with mental illness. Although there is disagreement regarding whether the rate of arrest and incarceration for persons with mental illness has increased since

the initiation of deinstitutionalization, numerous studies have indicated that there has been a criminalization of mental illness (Abram and Teplin 1991; Lamb and Weinberger 1998). Research has indicated that between 5 per cent and 16 per cent of jail populations have a serious mental illness (Guy et al. 1985; Neighbors 1987; Steadman et al. 1987; Teplin 1990; Jemelka, Rahman, and Trupin 1993). A recent survey by the U.S. Department of Justice indicated that 25 per cent of jail inmates reported having received treatment for emotional or mental health problems at some time, and 10 per cent of males and 15 per cent of females reported having been admitted for at least one night to an inpatient psychiatric facility (Ditton 1999). Prisons have also seen an increase in the numbers of prisoners with mental illness and co-occurring disorders. Research has suggested that, in general, 10–15 per cent of persons in state prisons have a severe mental illness (Jemelka, Rahman, and Trupin 1993). At mid-year 1998, there were an estimated 283 800 inmates with mental illness incarcerated in United States jails and lockups (Gillard 1999). Bureau of Justice Statistics (BJS) survey results indicated that 16 per cent of state prison inmates, and 7 per cent of federal inmates reported a mental health condition or an overnight stay in a psychiatric hospital (Ditton 1999). Persons with mental illness who are the most likely to be incarcerated are those with co-occurring disorders. Abram and Teplin (1991) note that, ‘Mentally ill persons with co-occurring substance abuse or personality disorders (such as persons with schizophrenia who are alcoholic) are particularly vulnerable to arrest.’ Interviews of state prison inmates by the BJS indicated that 59 per cent of inmates with some mental illness were under the influence of alcohol or other drugs at the time of the current offense, and that over 30 per cent of males and 78 per cent of females with mental illness reported a history of physical or sexual abuse (Ditton 1999).

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TYPES OF CORRECTIONAL FACILITIES A clear description of the three different types of correctional institutions is critical to our understanding of correctional suicide. The detention facility or police lockup is usually operated by local (municipal) police departments, and usually detains persons who have been arrested and are awaiting arraignment. The detention period is brief, usually not exceeding 48 hours. Lockups tend to be small with one or two holding cells. Yet Cox et al. (1990) note that lockups are the most common type of correctional facility, with more than 12 000 existing in the United States. Jails are usually operated by counties or large municipalities. They provide both pretrial detention and shortterm commitment, usually less than one year. The BJS indicated that there were more than 4000 jails in the US in 1997; BJS survey data indicated that in 1996 the average daily census in these facilities was over 550 000 (Harlow 1998). The admissions to jail for that year were estimated to be between 10 and 13 million (O’Toole 1999). BJS data indicate that over half of the jails are quite small (fewer than twenty-one inmates). However, in 1990, jurisdictions with at least 100 inmates operated 832 jails holding a total of 327 917 inmates, or about 81 per cent of all U.S. jail inmates (Cohen 1991). Prisons are operated by state and federal jurisdictions and house inmates for longer terms of incarceration; 96 per cent of the inmates in prisons have sentences exceeding one year. On December 31, 1997, there were in excess of 1 190 000 inmates incarcerated in state and federal prisons – a 62 per cent increase over the same date in 1990 (Maguire and Pastore 1997). Prisons are usually large facilities with capacities in excess of 500 beds.

THE SCOPE OF THE SUICIDE PROBLEM Prior to discussing the actual extent of the suicide problem for correctional facilities, it is essential to discuss the issue of under-reporting. Suicides, in general, tend to be under-reported. Stigma, shame, and concern for loss of benefits are among the reasons for under-reporting. With respect to the under-reporting of lockup and jail suicides, Hayes (1989) cites sensitivity of the subject matter, fear of litigation, and lack of mandates for reporting as some reasons for under-reporting. Hayes also cites findings from a comprehensive study in Ohio which estimated that the number of reported suicides in Ohio’s jails and detention facilities was understated by about half on official suicide reports. Although there is some disagreement regarding the methodology utilized (O’Toole 1999), the National Center for Institutions and Alternatives reported that the rate of suicide in jails and lockups is approximately nine times

that of the general population (Hayes 1989). A South Carolina study cited in Hayes (1989) indicated that the suicide rate for inmates in that police lockup was about 250 times greater than the rate for that state’s general population. In contrast, the rates of suicide for prisons are lower than the rate for jails and lockups (Lester 1987). O’Leary (1989) reported that about four times as many suicides occurred in lockups and jails as in prisons. Based on this discussion, it is evident that suicide is a major problem for police lockups and jails, but a less significant problem for prisons. Why this differential? Knowledge of the role of jails and police lockups is crucial to understanding this disparity in suicide rate. Cox et al. (2000) observed that: ‘Jails and police lockups function primarily to address the short term detention needs of their host communities. These facilities are among the most neglected community institutions within our nation. Jails and police lockups are the central intake point for the entire criminal justice system and are a virtual microcosm of the problems faced by society as a whole. … The average jail population tends to be much more suicide-prone than the community at large. Concentrated within the hostile, non-supportive environment of a jail are many persons who would have to be considered as being of very high risk: individuals who by virtue of their age (20–24) are within the high overall suicide risk group; persons with psychotic and depressive disorders; individuals undergoing major life changes; persons who are about to lose a respected status within the community because of the nature of the charges pending against them; individuals who are intoxicated or under the influence of drugs at the time of their arrest.’ Arrest and incarceration can be a very stressful event. As Cox et al. (1990) indicate, the sudden shock of being separated from family and other sources of social support, anxiety over trial or sentencing outcomes, and doubts about one’s ability to meet self or peer-imposed standards of behavior can all induce feelings of intense helplessness or hopelessness. Shame over one’s past and despair for one’s future have driven inmates both with and without mental illness alike to view suicide as the only feasible way of ending the mental anguish that they are experiencing. Finally, in lockups and jails the individual is uncertain about the outcome of pending charges and the possibility of incarceration as well as the length of sentencing. In contrast, prisons are facilities for longer-term incarceration. The prisoners have gone through the initial shock of incarceration and are sentenced and aware of the future that awaits them.

FACTORS ASSOCIATED WITH SUICIDE DURING INCARCERATION The importance of alcohol and drug intoxication as a factor in suicides needs to be emphasized. Hayes, in his

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‘National Study of Jail Suicides: Seven Years Later’ (1989) indicated that in the study 60 per cent of persons committing suicide were under the influence of alcohol, drugs or both at the time of incarceration; that among this population 78 per cent of suicides occurred within the first 24 hours of detention; and that 48 per cent of the intoxicated persons who completed suicide did so within the first 3 hours of incarceration. The drug/alcohol factor is significant in understanding the different suicide rates for jails/lockups and prisons. In the latter facilities, acute drug and alcohol intoxication is not a significant problem. Size of the facility and availability of services are factors in the differential suicide rates in jails and prisons. At one end of the spectrum are prisons, which are large structured settings that most frequently have recreation, education, health, and often mental health services available on site. In prisons, staff have as their main responsibility supervision of prisoners. At the other end of the spectrum are police lockups; these are very small facilities with no on-site services where supervision is often carried out by police officers with other responsibilities. Jails, in contrast, fall in the middle ground. As already noted, more than one-half of jails are small and lack services and resources. However, 508 jurisdictions operated jails with over 100 inmates, and these housed more than 80 per cent of the jail inmates in the United States. These facilities are more likely to have specialized services and resources. In fact, some jails operated by urban jurisdictions are quite large and have more specialized services. In jail settings, the staff focuses primarily – if not exclusively – on inmate supervision. Lack of available resources and staff role diffusion are important factors in relation to suicide potential within the different types of correctional facilities.

SUICIDE PREVENTION PROGRAMS Since the mid-1980s, efforts to develop suicide prevention programs have been focused primarily on jails and lockups. Significant progress has been achieved in conceptualizing, developing, and implementing models with the following key elements:

• •

• • •

Structured intake screening to identify high-risk inmates. Appropriate policies and procedures for suicide prevention, including: (i) inmate monitoring; (ii) reporting and internal communication; and (iii) ongoing observation. Linkage/referral processes with mental health agencies. Training of police, correctional, medical, and mental health staff to fulfill their appropriate roles. Ongoing review of prevention program activities.

Among the best defined and implemented models of jail/lockup suicide prevention programs is the one developed in New York State (Cox et al. 2000). This model was initially developed and refined over an eighteenmonth period, in a process which involved state and local mental health providers, municipal and county correctional representatives, and representatives of the State Commission of Correction, an oversight agency. Since its introduction in 1985, the NYS Forensic Suicide Prevention Program has been updated and revised twice, most recently in 1999. The New York State model has a carefully delineated intake screening process to identify high-risk inmates. This intake is done at booking by means of a one-page screening guideline which is administered by a trained intake officer in an average time of approximately 5 minutes. The format contains three parts: 1 Administrative data, inmate demographics, and information on symptomatology during previous incarcerations. 2 Behavioral characteristics of the inmate carried out via observation or questioning, including alcohol/ drug intoxication, acute psychiatric symptoms, shame about arrest, suicidal thoughts, and serious personal problems. 3 Dispositional actions of the officer (e.g., referral for mental health evaluation, level of supervision required). Whether through reaching a threshold score, the presence of exceptionally high-risk factors (e.g., recent suicide attempt) or the officer’s ‘gut instinct,’ the designation of high risk leads to referral for evaluation and/or more intensive monitoring. Post-intake screening and observation is also an important component of the model. Responsibility for observation for suicide risk does not end at intake. Many jail suicides occur after the first 48 hours, requiring vigilance throughout confinement. The New York State model promotes this ongoing vigilance in several ways. First, officers are trained to observe inmates for behavioral and verbal indications of suicidal intent and/or mental illness during routine security checks. High-risk indicators commonly found among correctional populations include periods of crying, insomnia, and sluggishness; extreme restlessness; sudden change in mood, eating or sleeping habits; giving away personal property; loss of interest in activities or relationships; and refusal to take prescribed medication or a request for increased dosage of medication. Officers also monitor inmates by observing and interacting with them following sentencing or during other critical periods (e.g., following a death in their family). Officers specifically look for signs of depression and/or hopelessness at these times. Finally, officers who supervise the visiting and phone calls are expected to watch for possible disputes or problems that emerge.

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To ensure detailed compliance, policies and procedures are essential. Separate procedure guidelines were developed for county correctional facilities, police lockups, and mental health services. These manuals describe the crisis service model and specify detailed procedures for both administrative and line staff. The procedures guidelines have been designed to serve as a template for local officials to utilize in creating procedures to conform to their individual needs. Ongoing training for corrections officers, police, medical and mental health providers is also essential for suicide prevention. The training materials for the New York State model include a trainer’s manual that outlines the specific contents of a 7-hour training program for correctional or police officers. The manual identifies the specific topics to be covered and provides teaching strategies, training exercises, and information on how to integrate the project videotape into the curriculum. A videotape addresses basic issues on identification of high-risk inmates, demonstrates the use of the screening guidelines, and offers suggestions for effective interviewing and communication. The videotape presents information on the signs of suicide shown by newly admitted inmates and inmates who have been in jail for longer periods of time. An officer’s handbook provides an executive summary of the training program. The videotape content is also available in DVD format, including an interactive teaching segment on the use of the screening guidelines form. Linkages among mental health services, jails or police lockups and jail medical services are necessary to ensure readily available and coordinated mental health services. Under the New York State model, each jail or lockup is required to develop written agreements with mental health services. These agreements outline mental health responsibilities for assessing suicidal inmates, provision of crisis intervention including arranging for psychiatric hospitalization, if necessary, and provision of consultation to jail/lockup staff. The model also recognizes that training of mental health and medical personnel is important. To address this issue the project developed two educational opportunities:

•

•

The Mental Health Resource Handbook – a reference resource primarily to assist jail mental health practitioners in the application of New York State law and regulation regarding provision of mental health services to jail inmates. Mental Health Services in the Criminal Justice System – a two-day training program to prepare mental health practitioners to work effectively within the criminal justice system.

The New York State model is not an isolated illustration of program development initiatives. Numerous state and localities have developed suicide prevention programs

(Arboleda-Florez and Holley 1988; NCIA 1995). The National Institute of Corrections has also extensively promulgated information on jail/lockup suicide prevention programs. Research and experience have shown that these programs can be extremely successful. Data from New York State demonstrate the dramatic impact. A comparison of jail/lockup suicide data from the NYS Commission of Correction obtained before utilization of the suicide prevention program in 1984 with data from fourteen years later shows an actual reduction in suicides of over 40 per cent while the incarcerated population rose by more than 50 per cent. Despite these successes, issues remain. The National Institute of Corrections study of jails and lockups (1989) found that 49 per cent of the respondents did not know if their facility had a suicide prevention program. Furthermore, the findings also showed that, in holding facilities, almost 32 per cent of suicides occurred despite the presence of a prevention program. In contrast, 58 per cent of detention facility suicides occurred despite the presence of a suicide prevention program. Such findings are disturbing. In view of the fact that 89 per cent of the victims were not screened for suicide risk at intake, the findings call into question the effectiveness of the suicide prevention programming that does exist.

DEVELOPMENTS IN PRISON In comparison to jail/lockup suicide prevention programs, development of such programs in prisons has received less attention. Although there has been some increase in research on prison suicide since the mid1980s (Haycock 1991), reviews of the literature and contacts with key policy makers and trainers suggest that program development regarding prison suicide prevention has been limited. In some states, including New York State, and in individual prisons, materials developed for jail/lockup programs have been modified for use in training prison officers. Some jurisdictions have reported efforts to strengthen prison mental health services. The apparent lack of focus on this topic indicates a need for in depth study of prison suicide prevention. This is especially true considering that suicides in prison may be increasingly linked to the growing numbers of people with serious mental illness being incarcerated. Epidemiological data from the New York State Commission of Correction (1998) indicated that for completed suicides in New York State prisons during the period 1993–1997 (50 cases), 56 per cent had psychiatric evaluation or treatment prior to their incarceration, 38 per cent were taking psychotropic medication at admission, and 60 per cent had psychiatric encounters during the present incarceration. Additionally, with respect to prisons, the issue of suicide prevention is linked intrinsically to that of available

Issues in the prevention and detection of suicide potential in correctional facilities 517

mental health services. Jemelka, Rahman, and Trupin (1993) write: Mentally ill offenders present difficult operational issues, legal dilemmas, and philosophical paradoxes. They are viewed as different from the ‘typical inmate’ in a prison, the ‘typical patient’ at a state hospital, or the ‘typical client’ at a community mental health center. They are stigmatized by their mental illness and by their criminal behavior. Within prison settings, their presence creates a need for specialized housing, security, and health care services. Many have difficulty adapting to the structure, routine, and milieu of prison. Others become overly passive, withdrawn, and dependent.

THE CHALLENGE AHEAD The challenge ahead is significant. Although important steps have been taken, especially in relation to jails and lockups, suicide remains one of the leading causes of death in jails and lockups, and a significant problem in prisons. Specifically, there is a crucial need for further research and for an examination of our strategies for program implementation and maintenance. The research requires a continuing examination of suicides in lockups, jails and prisons, and a study of facilities that are implementing prevention strategies and programs. The latter is especially important; since we have now developed strategies that work, we need to understand how and when they are put into practice and why in so many correctional facilities, they are not. Research should also extend beyond the specific area of suicide prevention to examine strategies for delivering effective and coordinated mental health services in these facilities. Further, it is essential to concern ourselves with program implementation. How do we effectively implement our prevention activities in the nation’s lockups with their high rates of suicide and shortages of resources? How do we continue to ensure that the nation’s jails proceed with complete implementation? How do we increase prison implementation of suicide prevention programs and improve their availability of mental health services? Progress has occurred through our collective efforts and we remain hopeful that it will continue.

REFERENCES Abram, K., Teplin, L. 1991. Co-occurring disorders among mentally ill jail detainees: implications for public policy. American Psychologist 46, 1036–45. Arboleda-Florez, J., Holley, H.L. 1988. Development of a suicide screening instrument for use in a remand centre setting. Canadian Journal of Psychiatry 33, 595–8.

Cohen, F. 1998: The Mentally Disordered Inmate and the Law. Kingston, NJ: Civic Research Institute, 14-1–14-32. Cohen, R.L. 1991. Prisoners in 1990. Bureau of Justice Statistics Bulletin. Cox, J., McCarty, D., Landsberg, G., Paravati, M.P. 1990: Local jails and police lockups. In Rotherham-Boros, M., Bradley, J., Obolensky, N. (eds), Planning to Live: Evaluating and Treating Suicidal Teens in Community Settings. Norman, OK: National Resource Center for Youth Services, 317–32. Cox, J., Morschauser, P., Himmelsbach, J., Paravati, M.P., Leahy, L., Sherman, L.G., Taisey, J. 2000: Suicide Prevention and Crisis Intervention in County Jails and Police Lockups. New York State Office of Mental Health. Ditton, P. 1999: Mental Health and Treatment of Inmates and Probationers. Bureau of Justice Statistics Special Report, July. Gillard, D.K. 1999. Prison and Jail Inmates at Midyear 1998. Bureau of Justice Statistics Bulletin, March. Guy, E., Platt, J.J., Zwerling, I., Bullock, S. 1985. Mental health status of prisoners in an urban jail. Criminal Justice and Behavior 12, 29–53. Harlow, C.W. 1998: Profile of Jail Inmates 1996. Bureau of Justice Statistics Special Report, April. Haycock, J. 1991. Crimes and misdemeanors: a review of recent research on suicides in prison. Omega 23, 81–94. Hayes, L.M. 1989. National study of jail suicides: seven years later. Psychiatric Quarterly 60, 7–30. Jemelka, R.P., Rahman, S., Trupin, E.W. 1993: Prison mental health: an overview. In Steadman, J.J., Cocozza, J.J. (eds), Mental Illness in America’s Prisons. Seattle: National Coalition of the Mentally Ill in the Criminal Justice System. Lamb, R.H., Weinberger, L.E. 1998. Persons with severe mental illness in jails and prisons: a review. Psychiatric Services 49, 483–92. Lester, D. 1987. Suicide and homicide in USA prisons. Psychological Reports 61, 126. Maguire, K., Pastore, A.L. (eds). 1997: Bureau of Justice Statistics Sourcebook of Criminal Justice Statistics – 1997. Hindelang Criminal Justice Research Center, University at Albany. National Center on Institutions and Alternatives. 1995: Training Curriculum on Suicide Detection and Prevention in Jails and Lockups, 2nd edition. Mansfield, MA. National Center on Institutions and Alternatives. 1999. Spring: Special issue: The uncertain world of jail suicide litigation. Jail Suicide/Mental Health Update 8. Neighbors, H.W. 1987. The prevalence of mental disorder in Michigan prisons. Department of Psychiatry: Washington University School of Medicine, St. Louis. DIS Newsletter 7, 8–11. New York State Commission of Correction. 1998. Epidemiology of Suicides in New York State Correctional Facilities. Unpublished data.

518 Correctional psychiatry O’Leary, W.D. 1989. Custodial suicide: evolving liability considerations. Psychiatric Quarterly 60, 31–72. O’Toole, M. 1999: Jails and Prisons: The Numbers Say They Are More Different Than Generally Assumed. American Jails Website, March. Steadman, H.J., Fabsiak, S., Dvoskin, J., et al. 1987. A survey of mental disability among state prison

inmates. Hospital and Community Psychiatry 39, 1086–90. Teplin, L. 1990. Prevalence of severe mental disorder among male urban jail detainees: comparison with epidemiological catchment area program. American Journal of Public Health 80, 663–9.

52 The psychosocial basis of prison riots PHYLLIS HARRISON-ROSS AND JAMES E. LAWRENCE

There may be no prospect more frightful or abhorrent in modern criminal justice than the prison riot. This is true among prison inmates as well as among their keepers and service providers. While the catastrophic loss of the stability and control that literally define correctional institutions is viewed as the ultimate criminal justice management failure, many researchers in this field believe that there exists a similar, widespread aversion among inmates to upheaval and derangement of the delicately balanced prison microsociety (Shoham et al. 1989). Why then should American prisons and jails be approaching the height of a new cycle of major prison disturbances, incidents that had all but disappeared during the twenty years ending in 1970 but that have seen steady growth since that time (American Correctional Association 1990)? In New York alone, there were no fewer than five major prison riots during the 1980s. One answer is that, despite an enormous body of research into the sociology and psychology of violence in and out of prison, the psychosocial forces at work in prison insurrections remain poorly understood and, as yet, uncontrollable. While the brutality and fury that represent the sensational effects of prison rebellion spill out into the public view as ideal media events, the causative forces remain submerged in the insular, provincial world of prison life. With few exceptions (Wicker 1975), the histories of prison riots are written exclusively by prison administrators and managers, who tend to minimize their roles as causative agents (Murton 1976). This chapter discusses many of the inadequacies of traditional psychological and social theories of the causes of prison riots in light of the two benchmark riots of the modern era: Attica State Penitentiary, 1971; and New Mexico Penitentiary, 1980. The psychosocial forces that engender inmate rebellions are examined as illustrated by riots in Sing Sing Prison in 1983 and by more recent incidents at New York City’s Rikers Island complex and the New York State prisons at Southport and Rome. A framework is offered for understanding the nature of riots and the purposes they may serve in jails and prisons.

THEORIES OF PRISON RIOT CAUSATION The prevailing theories of causation were analyzed and grouped into two main categories by Larsen (1988). The grievance theory was originally postulated by Ohlin (1956), and emphasizes poor prison conditions as the major determinant in prison riots. It has been adopted and elaborated by the American Correctional Association (ACA 1990) and thus is widely credited among criminal justice practitioners. The grievance theory holds that prison riots are deliberate efforts to dramatize grievances arising out of intolerable conditions of confinement. A variant of this theory characterizes prisons as ‘powder kegs’; that is, nearly always in a pre-riot condition and awaiting only an ignition spark. The group conflict theory also dates to the major wave of prison riots of the 1950s, and is based on the widely held belief that prisons are dependent on the inmate subculture for maintenance of order and that riots result from unilateral alterations by the prison administration in relationships between inmates, particularly inmate leaders, and staff (Sykes 1958). The group conflict theory also has variants, among them the ‘gang war’ hypothesis, which explains riots in terms of violent settling of differences between rival racial or street gang factions. This theory is popular in the western United States where gang violence has long been endemic, but – notably – not in the East, where organized prison gang activity has been burgeoning since the early 1990s. The central problem with the mainstream theories of prison riot causation is that none satisfactorily accounts for the events of more than one or two major riots of the past twenty years. While some elements of the two traditional theories apply to aspects of major prison disturbances, recent examination of both reveal them to be too narrow to explain anything about all riots beyond their superficial features (Larsen 1988). The riot at Attica State Penitentiary in 1971 has served as the continuing object lesson in prison management in New York State and across the nation. It is now looked

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upon as a watershed event that legitimized the prison reform movement in the United States. While much is now made of the catalogue of oppressive and substandard conditions of confinement that grew out of the investigation of the Attica riot, the fact that the leaders of the riot were largely uninterested in redress of specific grievances went unnoticed. Russell Oswald, the newly appointed New York commissioner of correction, was widely regarded as a reform commissioner as measured by 1970s standards. His willingness early in the negotiations to act favorably on virtually all of the demands presented by the riot leaders had little positive effect on the course of events (Larsen 1988). The major concern of the inmates was to secure media coverage of the negotiations (an important point that is discussed later), and the situation did not begin to deteriorate until the inmates discovered that a correction officer injured at the outset of the incident had died (Wicker 1975, p. 151). The New Mexico state prison riot in 1980 is generally regarded as the most violent and destructive in recent history (Colvin 1982). Although inmate behavior during the riot was characterized by disorganization, inter-group conflict, and a sustained rampage of destruction and violence, a small group of inmates did manage to negotiate with officials only long enough to allow a television camera into the institution (Colvin 1982, p. 459). As in the Attica riot, a catalogue of longstanding grievances and management failures related to security, overcrowding, food services, meaningful work, and rehabilitation surfaced after the riot (Mahan 1985), but these were not pressing issues during the episode. What had occurred at the New Mexico Penitentiary, however, was a wholesale replacement of the prison administration after a corruption investigation in 1975 followed by profound changes in operations. Influenced by a tougher custodial philosophy, over the next five years the new management reduced inmate programs, abolished much of the underground inmate contraband economy, and discontinued the widespread use of inmate ‘trustys’ in positions of authority over other inmates (Larsen 1988). From the inmate point of view, a rapid wholesale transformation of life in the New Mexico Penitentiary was unilaterally imposed. While these changes, viewed in light of the intergroup conflict and score settling evidenced during the riot appear to illustrate the group conflict model of causation, the resemblance is superficial and is not reproduced in other major incidents. The inadequacy of existing theories to consistently explain prison riots is reflected in the popular criminal justice trade literature that has begun of late to excerpt and piece together appealing aspects of both theories, offering an amalgam asserting that riots are caused by overcrowding, idleness, inadequate security, substandard physical plants, lack of meaningful inmate programs, food, brutality, unfair treatment, racial leadership conflict, gang power struggles, and poor management (ACA 1990).

In effect, a satisfactory explanation of prison unrest appears to require a belief that nearly everything connected with prison life causes riots. This is the same as saying that nothing does, and leads to a dead end.

ADJUSTMENT BY AGGRESSION In his discussion of the utility of prison violence, Larsen (1988) refers pointedly to the early sociologist Emile Durkheim’s assertion that conflict is an integral part of all societies and that, far from being a destructive force, it often assists in the development of the parameters and norms that are necessary for the survival of any society. This relationship holds even more true for prison microsocieties composed of individuals more likely to adjust (or maladjust) to tension and conflict by aggression. It may therefore be useful to attempt to understand the causative forces underlying prison riots in terms of the personality dynamics of the frustration–aggression mechanism. Schneiders (1965) defines aggression as ‘a form of response that seeks the reduction of tension and frustration through the medium of behavior that is demanding, overpowering or possessive.’ Schneiders points to Maier’s assertion (1949) that aggression is not goal-directed, nor is it directed toward the solving of a problem. It is aimed at the relief of tension associated with frustration. In mob behavior, violence and destruction are an integral part of the act of aggression. Mobs seek to destroy perceived sources of frustration (Schneiders 1965). It is well established that the frustration–tension–aggression pattern taken to extremes often results in brutality and sadistic fury. The circumstances of the Attica and New Mexico riots may suggest extreme collective aggressive response. However, it might be more instructive to examine some recent incidents of the post-prison reform era in New York that are less infused with historical controversy in an attempt to determine whether prison riots may be understood in terms of extreme aggression as a collective adjustment to externally introduced frustration in the prison environment. We begin by reviewing Larsen’s model (1988) prison riot scenario to which we have taken the liberty of adding some important elements. Every prison riot:

• • • • •

is precipitated or ignited by an innocuous event; begins with a spree of violent destruction; enters a ‘housekeeping’ period marked by the rise of an inmate leadership cadre, the protection of hostages, and the opening of negotiations in which all demands are subordinated to media access; degenerates into disorganization, stalemate, and internecine inmate conflict; dissipates its energy, which becomes unsustainable, the remainder of which is then redirected toward shaping the return to prison norms; and

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•

is followed by official repression and an investigation which misinterprets the precipitating event(s) as the underlying cause.

Interpretation of this archetype with an adjustment-byaggression theory overlay suggests that the precipitating event is irrelevant; that the destructive spree is self-limiting after serving to relieve accumulated inmate tension; that the riot is not goal directed toward problem solving; and that once the initial violence and destruction abate and the media issue is settled, the riot is essentially over.

SING SING CORRECTIONAL FACILITY Sing Sing Correctional Facility (briefly named Ossining Correctional Facility during the early 1980s) is a truly mammoth maximum security prison. It was built by convict labor on a palisade overlooking the Hudson River in 1825 and has been used continuously as a state penitentiary since then. It was the subject of demands for its closure or replacement because of substandard conditions beginning in 1905, the most recent decision to abandon it having been announced by Governor Hugh Carey in 1981. It continues to operate today as it did in 1983 with a population of 2100 inmates. Sing Sing was still open in 1983 because the state Department of Correctional Services (DOCS), which operates the prison system, was unprepared for the extraordinary increase of new inmate commitments beginning in 1981 as a result of mandatory sentencing statutes enacted in 1978. Newly convicted inmates poured into the department’s downstate reception centers from New York City, were classified, and were assigned to upstate facilities that could not accept them until vacancies appeared. An unplanned, essentially ad hoc procedure evolved whereby classified inmates awaiting cells were held or ‘parked’ as transients at Sing Sing (Kurlander 1983, p. 74). The objective of every inmate serving a state prison sentence is early release on parole. Parole decisions are in turn predicated on an inmate’s record of adjustment to incarceration, including his or her attitude toward work, self-improvement, and his/her participation in programs to modify criminal behaviors. The ‘transient’ status of the inmates at Sing Sing actually meant they had no status: they were ‘on hold’ and would not be eligible to begin working their way out of prison until they settled at their assigned facility. Unlike all other inmates at Sing Sing, transients were not allowed holiday visits, food packages, typewriters, education, work, organizational membership, or access to civilian staff counselors. By January 1983, Sing Sing held 1400 of these inmates, many having been there for six months, some as long as one year (Kurlander 1983, pp. 74–5). Sing Sing’s B Block – a cavernous, five-storey, open-tiered cell house – held 618 transient inmates supervised by twenty-seven correction

officers. Among these officers, morale was poor and absenteeism was excessive (Kurlander 1983, p. 40). During the four months ending in January 1983, nearly 250 correction officers had transferred out of Sing Sing. During the previous year, fifteen officers had been involved in offduty firearms incidents, and eleven others had been charged with crimes off the job (Kurlander 1983, pp. 86–7). Sing Sing was a bad place to work and a frustrating place to do time. The inmates and correction officers thereby shared a negative value system. On January 8, 1983, inmates in B Block rioted and took seventeen correction officers hostage. The initial destructive rampage caused damage in excess of $50 000 in a housing area expressly designed to resist such mischief (Kurlander 1983, p. 178). Heavy bar grille gates were literally torn from their moorings. The inmates’ only initial demand was for access to network television, and they had to be pressured into formulating a list of grievances to be redressed. At some 48 hours into the disturbance, the inmates became disorganized, broke off negotiations, and splintered into groups with conflicting demands. When negotiations resumed the following day, all that was at issue was how the rioters were to be fed, the timing and content of an inmate radio broadcast justifying the riot, and how each side was to conduct itself when state forces reentered the cell block (Kurlander 1983, pp. 168–74). The inmates surrendered 24 hours after negotiations resumed. None of the seventeen hostages had been injured (Kurlander 1983). After a six-month investigation, the state published a 276-page investigative report that blamed the entire incident on an allegedly intoxicated correction sergeant who had arbitrarily altered the afternoon routine in B-Block (Kurlander 1983).

RIKERS ISLAND Notwithstanding the outcome of the official investigations of the Sing Sing riot, New York State moved assiduously to defuse the explosive transient population at Sing Sing. It simply stopped accepting these inmates, now referred to as ‘state readies,’ until space became available. These populations began to accumulate in local jails, most notably at New York City’s Rikers Island. The correctional complex on Rikers Island is the largest of its kind in the United States, housing nearly 11 000 inmates in 1986. By August 1986, inmates sentenced to state institutions but still held at Rikers Island numbered just under 1400 – the same number that had accumulated at Sing Sing Correctional Facility three years earlier [State Commission of Correction (SCOC) 1987, p. 140]. On October 13, 1986,‘state’ inmates at the Correctional Institution for Men on Rikers Island rioted in two large dormitories. No hostages were taken, but the dorms were effectively barricaded and within a very short period the

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inmates had caused $20 000 in property damage (SCOC 1987). Correction department officials rapidly solicited demands and capitulated to all but the demand for media access. On the following day, the entire correction officer day shift staged a wildcat strike with demands conflicting with the terms of the agreement made with the inmates. Disturbances erupted elsewhere in the facility in succeeding days, and then spread to dormitories in other Rikers Island facilities. The correction department finally resorted to use of assault forces at three facilities. Breakdowns in command and control resulted in injuries to more than fifty inmates, some serious (SCOC 1987, pp. xix–xxi). On October 18, 1986, after four days of rioting and combat with emergency assault teams, correction department officials hurriedly transferred nearly 300 stateready inmates to state prisons in New York City and upstate (SCOC 1987, p. 98). An interesting footnote to the events at Rikers Island comes from the SCOC investigation of the riot at Otis Bantum Correctional Center on Rikers Island in August 1990. This incident also occurred during a wildcat strike and blockade of Rikers Island by correction officers. Inmates began barricading dormitories throughout the facility moments after the New York news media announced a labor settlement that appeared to repeal restrictive rules on the use of force by correction officers. The housing areas were assaulted during the initial destructive phase, which abruptly cut off the riot’s development. Nearly 100 inmates were seriously injured and required hospitalization (SCOC 1991a, pp. 1–17). While the Rikers Island events support the thesis of adjustment by extreme aggression, two important variations emerge. One is the role of widespread insecurity in an inmate population as a precursor to violence. Insecurity is often seen as a collateral determinant of aggression (Schneiders 1965). The investigation of the 1990 riot revealed that scores of inmates silently watched television pictures of jubilant correction officers lauding the repeal of use of force guidelines. Without discussion or incitement, inmates throughout the institution armed themselves and donned homemade body armor (SCOC 1991a). The other, perhaps more important, factor is the extent to which the frustration, tension, and insecurity of the correctional staff is communicated to and acted out by the inmate population. Both riots appear intimately connected to wildcat job actions by a frustrated and latently aggressive security force. In both cases the inmates acted precipitately when tension among the correctional officers was at its peak (SCOC 1987; SCOC 1991a). The Sing Sing riot exhibits a similar phenomenon, and we shall see that the disturbance at Southport does as well.

SOUTHPORT CORRECTIONAL FACILITY The enormous expansion of New York State’s prison system between 1980 and 1990 created collateral problems.

One was a shortage of suitable space for punitive segregation of inmates who committed serious disciplinary infractions while incarcerated [Department of Correctional Services (DOCS) 1991, pp. 4–5]. Most of the thirty-four new correctional facilities established by the state between 1981 and 1989 were built according to a medium security design, which featured a punitive segregation unit with a capacity of thirty-two inmates. The capacity of these prisons was eventually expanded, first from 500 inmates to 750, then to a 1350-inmate capacity. Punitive segregation units were not expanded however, and correction officials were soon short of space – a shortage that impaired administration of discipline (DOCS 1991, pp. 4–5). In November 1990, the New York State Department of Correctional Services decided to establish a large central punitive segregation unit at Southport Correctional Facility near Elmira, New York. Over a four-month period, nearly 700 inmates serving long punitive segregation sentences in small units in forty institutions were transferred to Southport. They were locked in their cells for 23 hours most days. The security force, hitherto entitled to diversity and variety in job assignments, was summarily pressed into service as keeper of this dangerous and repressed population. A large portion of the programmatic support staff was transferred or laid off (DOCS 1991, pp. 11–21). The entire institution was dedicated not to security, as for example, was the federal super-secure institution at Marion, Illinois, but rather to punishment (DOCS 1991, p. 19). The correction officers’ union was strident and uncompromising in its opposition to the conversion of Southport. Correction officer morale deteriorated, with daily absenteeism exceeding 10 per cent and a largely ineffective supervisory corps (DOCS 1991, Appendix O). The delicately balanced officer– inmate relationship became polarized. Inmates threw excrement at officers, whilst officers retaliated by tampering with inmate food and soaking them with firefighting equipment (SCOC 1991b, p. 42). Shortly before noon on May 28, 1991, at least twentyeight inmates, some of whom were armed, broke out of metal mesh exercise pens in seven places in A-Yard at Southport. These inmates seized the lone yard security officer and his keys (two other officers were away from their posts) and released another forty inmates. Inmates entered the facility on two levels, captured four additional hostages, and began breaking into electronic control modules on two floors. Tear-gas was used to drive the inmates back into the yard. One hostage with potentially serious injuries was released immediately. After 26 hours of negotiations, the remainder were released. The only inmate demand ever voiced was to have their justification broadcast by the media, after which they surrendered (DOCS 1991, p. 1). Several rioters interviewed immediately afterward claimed to have done the staff a valuable favor by rioting. After an investigation lasting one month, state correction officials published a report that blamed seven correction officers who were absent

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from their posts (only two of whom were assigned to the riot area) for the entire incident (DOCS 1991, p. 3).

MOHAWK CORRECTIONAL FACILITY The proliferation of medium security architecture in New York’s prison establishment during the 1980s and the corresponding shortage of punitive segregation space for serious disciplinary infractions was the tip of a much larger and more ominous iceberg: most of the thirty-four expansion facilities were wide-open compounds which, absent the perimeter fencing, could be mistaken for junior college campuses. Many were originally constructed or converted (from New York’s enormous stock of abandoned mental institution housing) with a dozen or more freestanding barracks-style buildings, separated by extended outdoor spaces, connected by service roads and walkways. Gun towers with commanding views were not constructed as part of this expansion, in part to save capital and human resource cost (DOCS 1997, p. 24). Consequently, the new plant differed from maximum security prisons, which featured one or two huge masonry buildings, connected by narrow covered walkways or tunnels, each invested with multiple-gated chokepoints or ‘sally-ports,’ and small, walled outdoor yards continuously commanded by gun towers. Once outside of their housing units, inmates housed in these ‘medium’ security settings have access to most other areas of the prison, with easily scaled or penetrated fences subdividing the spaces between buildings. When large groups of inmates move of their own volition in these settings, it is difficult to control or stop that movement. This creates vulnerability to rapid grouping and mass movement of inmates. These vulnerabilities were not well appreciated in the early 1980s, when the plans for the largest prison expansion in New York State history were formulated. It was accepted doctrine that ‘medium security’ inmates did not require the single-cell housing, close custody and redundant security architecture generally reserved for violent felony offenders. The focus for the inmates for which these facilities were designed was on academic, vocational, drug treatment and work programs. Inmates assigned to these facilities in the early 1980s were typically non-violent, and they were required to have served sufficient time to be within three years of earliest release date before they were considered for placement in these facilities. They thereby demonstrated an adequate adjustment to incarceration which warranted placement in a more relaxed setting. As new medium security facilities were filled with prisoners while maximum security capacity remained static, the carefully crafted classification system that kept dangerous inmates in maximum security cells was no longer viable. Time-honored custom and practice derived from often bitter experience gradually gave way to the

exigencies of prison architecture. Inmates who hitherto were locked ‘behind the wall’ because their institutional and public threat scores showed them to be disruptive and dangerous found themselves assigned to medium security facilities such as Mohawk Correctional Facility in Rome, New York, in unprecedented numbers. They often refused to participate in or were found unfit for the programs and work assignments typical of these facilities, reverting to the idleness and troublemaking that had characterized their lives in the street. By 1997, inmates with much higher threat scores were sent to places like Mohawk, as were inmates with six years left to serve rather than the customary three years. The presence of violent, disruptive inmates in physical surroundings which were virtually unrestricted and where the disciplinary system was hamstrung by lack of lock-down space introduced instability into the daily routine and a sense of insecurity in the prison population-at-large. Here, as elsewhere, authority and control called into question created tension (DOCS 1997, p. 24). On July 18, 1997, a small cadre of inmates began spreading a story that the suicide of an inmate in the Special Housing Unit the previous day was a homicide at the hands of correction officers and warranted retaliation. The dinner meal was attended by more than 1000 inmates – an extraordinary number – who wore their prison-issued clothing (not required at this security level) and remained silent throughout the meal. After the meal, more than 300 inmates gathered around two correction officers who were being loudly harangued by an inmate. A correction officer was slashed with a razor blade. Inmates then moved en masse to a recreational yard, broke into equipment lockers, removed baseball bats and weightlifting equipment, then ran amok across the large prison compound. The correctional staff could only retreat to the main facility perimeter as the rampage progressed. Inmates broke into a program building, occupying it and its adjoining recreation yard. They were driven out by teargas. As emergency teams from facilities as far away as Attica began to arrive, inmates literally demanded to be allowed out of the yard they occupied. There were no negotiations, no demands, no grievances. The evening temperature fell to below 10°C (50°F). The prisoners complained of cold and demanded to be allowed to return to their housing. The post-riot investigation blamed misinterpretation of the circumstances of an inmate death, hot weather, a storm which knocked out telephone service and a use of physical force in full view of a large group of inmates, for the incident (DOCS 1997, p. 25).

THE PSYCHOSOCIAL BASIS OF PRISON VIOLENCE Notwithstanding their superficial differences, the major prison riots at Sing Sing, Rikers Island, and Southport and

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Mohawk exhibit important fundamental similarities, providing strong evidence that prison riots are collective adjustments by extreme aggression to tension and insecurity brought on by frustration introduced into the environment. Four of the five incidents described involved a disaffected, demoralized, frustrated correctional staff whose latent aggression was acted out by the inmates. Wherever possible, the inmates went on a destructive rampage in an attempt to obliterate the perceived source of frustration, but did not seek to inflict intentional injury on their hostages or other employees. Rioting inmates subordinate all needs and demands to that of media access, in which they seek feedback to affirm and validate their worldview and to draw outside world values into the post-riot order. Finally, the precipitating cause is mistaken for the underlying cause, which deflects blame, redirects culpability, and seeks to validate the status quo.

THE ROLE OF THE CLINICIAN It remains to explore briefly the implications of prison riot causation for the mental health practitioner. It may well be that professionals in a position to both evaluate inmates and observe the staff with a modicum of clinical detachment are in the best position to see trouble coming. The most reliable index may be a well-founded suspicion that inmate and staff value systems are converging in an atmosphere abundant in tension symptomatology. Since the causes of prison riots are unrelated to the precipitating or igniting incidents, an appreciation of the subtler but more powerful dynamics of staff–inmate frustration and sensitivity to signs of derangement of prison norms is suited to the capabilities of the seasoned professional. The mental health professional will find him/herself ideally suited to an appreciation of an emerging variant of destabilizing influences in prison life: the increasing prevalence of serious and persistent mental illness among prisoners. In 1998, an estimated 283 000 mentally ill offenders were incarcerated in U.S. prisons and jails (U.S. Department of Justice 1999). In 1987, Steadman and colleagues estimated the prevalence of serious mental illness in the New York State prison population at 8 per cent (Steadman, Fabisiak, and Dvoskin 1987). Nationally, 52 per cent of mentally ill state prison inmates were convicted of violent offences, and the mentally ill comprised 18.2 per cent of all violent offenders in state prison (U.S. Department of Justice 1999, p. 4). The Department of Justice reports that these prisoners are more likely to have been drug or alcohol abusers, to have been homeless, to have been victims of abuse. They were more likely to have been in fights in prison, and far more likely to have broken prison rules (U.S. Department of Justice 1999, p. 9). What these findings make clear is that deinstitutionalization of the mentally ill is largely mythical. The idea that advanced chemotherapy for mental disorder made it

both desirable and feasible to manage seriously and persistently mentally ill persons in their community environments, was never credited outside the community of mental health theoreticians. This, along with the collateral failure to reinvest the resources formerly bestowed on psychiatric institutions in community supports, has evolved the unintended consequence of transinstitutionalization, whereby a draconian institutional system – state prison – has replaced one that, while imperfect, to be sure, was positively benign by comparison. New York’s enormous prison expansion between 1980 and 1989 included the conversion of no fewer than six of the state’s closed inpatient psychiatric hospitals into prisons. The presence of significant numbers of mentally ill persons in prison populations causes massive stresses that are for the most part hidden until the tensions they produce demand release. The experienced clinician with a working understanding of riot causation can also be of invaluable service to decision makers early in the course of a prison riot. The inclusion of a subspecialist in prison psychiatry in the specialist resource pool or ‘think tank’ employed in a well-organized riot response yields tangible benefits. Consultants with experience in these situations report being able systematically to observe inmate negotiators and analyze the dynamics of the command authority and decision-making team. As negotiations progress, it is essential to measure the mental status and stress and fatigue level among the rioters. Clinicians familiar with the facility population can also provide important information about behavior patterns and the presence of psychiatric disorders among the inmates involved (Bell et al. 1991, p. 8). But, more importantly perhaps, the prison administrator who regularly avails himself or herself of expert perceptions and assessment of the psychosocial dynamics and mental hygiene of his/her institution may find him/herself better served indeed.

REFERENCES American Correctional Association (ACA). 1990: Riots and Disturbances in Correctional Institutions, 3rd edition. Washington, DC: St. Mary’s Press. Bell, R.A., Lanceley, F.J., Lanceley, M.S., Feldman, T.B., Worley, T.H., Fuselier, D., Van Zandt, C.A. 1991. Hostage negotiations and mental health: experiences from the Atlanta prison riot. American Journal of Preventive Psychiatry and Neurology 3(2), 8–11. Colvin, M. 1982. The 1980 New Mexico prison riot. Social Problems 29, 449–63. Kurlander, L. 1983. Report to Governor Mario M. Cuomo: The Disturbance at Ossining Correctional Facility. Albany, NY. Larsen, N. 1988. The utility of prison violence: an acausal approach to prison riots. Criminal Justice Review 13, 29–38.

The psychosocial basis of prison riots 525 Mahan, S. 1985: Orgy of brutality of Attica and the ‘killing ground’ at Santa Fe: a comparison of prison riots. In Braswell, M., et al. (eds), Prison Violence in America. Cincinnati, OH: Anderson. Maier, N.R.F. 1949: Frustration: The Study of Behavior Without Goal. New York: McGraw-Hill. Mutton, T. 1976: The Dilemma of Prison Reform. New York: Holt, Rinehart and Winston. New York State Commission of Correction (SCOC). 1987. Inquiry into Disturbances on Rikers Island. Albany, NY. New York State Commission of Correction (SCOC). 1991a. Investigation of Disturbance at Otis Bantum Correctional Center. Albany, NY. New York State Commission of Correction (SCOC). 1991b. Hearings into the Incident at Southport Correctional Facility. Albany, NY. New York State Department of Correctional Services (DOCS). 1991. Incident at Southport: The Report. Albany, NY. New York State Department of Correctional Services (DOCS). 1997. Commissioner’s Report on the

Incident at the Mohawk Correctional Facility. Albany, NY. Ohlin, R. 1956: Sociology and the Field of Corrections. New York: Russell Sage Foundation. Schneiders, A.A. 1965: Personality Dynamics and Mental Health-Principles of Adjustment and Mental Hygiene. New York: Holt-Rinehart and Winston. Shoham, S.G., Askenasy, J.J., Rahav, G., Chard, F., Addi, A. 1989. Social attitude correlates of violent prisoners. Personality and Individual Differences 10, 147–53. Steadman, H.J., Fabisiak, S., Dvoskin, J. 1987. A survey of mental disability among state prison inmates. Hospital and Community Psychiatry 38, 1086. Sykes, G. 1958: Society of Captives. Princeton, NJ: Princeton University Press. U.S. Department of Justice. 1999: Mental Health and Treatment of Inmates and Probationers. Bureau of Justice Statistics. Washington, DC. Wicker, T. 1975: A Time to Die. New York: New York Times Book Company.

53 The right to refuse treatment in a criminal law setting MICHAEL L. PERLIN

INTRODUCTION The question of the right to refuse antipsychotic medication remains the most important and volatile aspect of the legal regulation of mental health practice (Plotkin 1977; Gelman 1984; Brooks 1987; Perlin 1999, § 3B-2; Perlin 2000). The issues that are raised – the autonomy of institutionalized individuals with mental disability to refuse the imposition of treatment that is designed (at least in part) to ameliorate their symptomatology; the degree to which individuals subjected to such drugging are in danger of developing irreversible neurological side effects; the evanescence of terms such as informed consent or competency; the practical and administrative considerations of implementing such a right in an institutional setting; and the range of the philosophical questions raised (dealing with autonomy, freedom, self-governance, and utilitarianism) (Perlin 1990; Perlin 1991; Perlin and Dorfman 1996; Perlin 1999, § 3B-2) – mark the litigation that has led to the articulation of the right to refuse treatment as ‘a turning point in institutional psychiatry’ (Rhoden 1980) and ‘the most controversial issue in forensic psychiatry’ (Brant 1983). The conceptual, social, moral, legal, and medical difficulties inherent in the articulation of a coherent right to refuse treatment doctrine have been made even more complicated by the U.S. Supreme Court’s reluctance to confront most of the underlying issues (Mills v. Rogers 1982). As a result of the court’s decision in Mills (a case involving involuntarily committed civil patients) to ‘sidestep’ the core constitutional questions (Wexler 1982; Perlin 1999, § 3B-5.7, 237), and its concomitant articulation of the doctrine that a state is always free to grant more rights under its constitution than might be minimally mandated by the U.S. Supreme Court under the federal constitution (Mills v. Rogers 1982, p. 300; Perlin 1987a), two parallel sets of cases have emerged.

In one set, state courts have generally entered broad decrees in accordance with an ‘expanded due process’ model, in which the right to refuse treatment has been read broadly and elaborately, generally interpreting procedural due process protections liberally on behalf of the complaining patient. These cases have frequently mandated premedication judicial hearings, and have heavily relied on social science data focusing on the potential impact of drug side effects, especially tardive dyskinesia (e.g., Rivers v. Katz 1986; Riese v. St. Mary’s Hospital and Medical Center 1987; State ex rel. Jones v. Gerhardstein 1987; Virgil D. v. Rock County, 1994; Perlin 1991; Perlin and Dorfman 1996; Perlin 1999, § 3B-7.2c). Some cases have begun to explore ‘second-generation’ issues, such as the right to a jury trial in medication refusal hearings (e.g., In re Brazleton 1993) or whether a joint hearing on involuntary civil commitment and medication refusal is appropriate (e.g., In re Barbara H. 1998). In the other set, federal courts have generally entered more narrow decrees in accordance with a ‘limited due process model.’ These provided narrower administrative review and rejected broad readings of the Fourteenth Amendment’s substantive and procedural due process protections, relying less on social science data, which was frequently ignored or dismissed as part of an incomprehensible system allegedly beyond the courts’ self-professed limited competency (e.g., United States v. Charters 1988; Perlin 1990; Perlin 1991; Perlin 1999, § 3B-7.2e). Generally (but not always), the state cases involved civil patients; more frequently, the federal cases dealt with individuals originally institutionalized because of involvement in the criminal trial process (Perlin 1991).1 1 While the Supreme Court has not dealt squarely with a civil right to refuse treatment case since its 1982 remand decision in Mills, it has since decided a case involving the rights of convicted prisoners to refuse medication (Washington v. Harper 1990; Perlin 1999, § 3B8.2), and one on the question of whether an insanity-pleading

The right to refuse treatment in a criminal law setting 527

As this short overview should demonstrate, it is impossible to authoritatively articulate one doctrine to cover all rights to refuse treatment litigation. It is also impossible to state such a doctrine even for cases that arise in a ‘criminal law setting,’ since the simplest ‘unpacking’ of that category (Perlin 1989–90) reveals that there are at least seven major subcategories to which the right to refuse could be applied, to cases involving:

defendant was denied a fair trial because he was involuntarily medicated at trial, thus depriving the jury of a fair presentation of his ‘natural demeanor’ at the insanity stage (Riggins v. Nevada 1992; Perlin 1999, § 3B-8.3). Both of these cases are discussed extensively in this chapter.

of professional judgment standard’ (articulated by the Supreme Court in a case involving physical restraint of an individual with severe mental retardation [Youngberg v. Romeo 1982]) applied to antipsychotic medication cases, resurrected right-to-privacy and freedom-of-thoughtprocess arguments that had been generally abandoned in the years since the Supreme Court’s decision in Mills v. Rogers, established a right to be free from unwanted physical intrusion as an integral part of an individual’s constitutional freedoms, and articulated a complex substituted judgment–best interests methodology to be used in right to refuse treatment cases (Perlin 1990; Perlin 1999, § 3B-8.1a). Upon an en-banc rehearing,3 the full Fourth Circuit vacated the panel decision (Charters 1988) (Charters II), ‘suggesting that the panel was wrong, about almost everything’ (Perlin 1990, p. 965). Although it agreed that the defendant possessed a constitutionally retained interest in freedom from bodily restraint that was implicated by the forced administration of psychotropic drugs, and the defendant was protected ‘against arbitrary and capricious action by government officials’ (Charters II 1988, p. 306), it found that informal institutional administrative procedures were adequate to protect the defendant’s due process interests. It applied the ‘substantial professional judgment’ test of Youngberg, and limited questioning of experts to one matter: ‘Was this decision reached by a process so completely out of bounds as to make it explicable only as an arbitrary, nonprofessional one?’ (Charters II 1988, p. 313; Perlin 1998, § 3B-8.1b). The two views of the rights of pre-trial detainees to refuse medication reflected in Charters I and Charters II could not be more diametrically opposed. Also, the ultimate en-banc decision has led to some important strategic decision making for attorneys representing individuals who wish to resist the imposition of such medication. Although, as a federal detainee, Charters was forced to litigate in federal court, in cases where litigants do have an option of availing themselves of a state forum, the second Charters decision made it more likely they will choose the latter jurisdictional alternative. When Charters II was decided, it was seen to potentially ‘signal the death knell for the litigation of right-to-refuse treatment issues in the federal forum’ (Perlin 1990, p. 994) in cases in which litigants retain discretion as to where to sue. In the immediate following years, at least two state courts – albeit in civil cases – adhered to their endorsements of Charters I even after the Charters II decision (e.g., McConnell v. Beverly Enterprises-Connecticut, Inc. 1989; In re A. C. 1990; Perlin 1999, § 3B-8.1b); on the other hand, several post-Charters II state cases have not granted defendants broader rights in similar cases (e.g., State v. Otero 1989;

2 Beyond the scope of this chapter are yet other categories such as convicted defendants who are placed on probation or parole if they agree to comply with medication orders, and defendants found guilty but mentally ill (GBMI) (Perlin 1989, § 15.09; Perlin 1999, § 3B-9.7).

3 When cases in the federal court system are appealed, they are usually heard by a three-judge panel of a circuit court of appeals. On rare occasions, the entire membership of such a court will sit together (en banc) to rehear a case of significant public importance.

• • • • • • •

defendants awaiting incompetency to stand trial (IST) determinations; defendants found ‘permanently’ IST in accordance with the Supreme Court’s decision in Jackson v. Indiana (1972); defendants otherwise awaiting trial in jails; defendants seeking to proffer a not guilty by reason of insanity (NGRI) defense; defendants who have been institutionalized following an NGRI finding; convicted defendants in prison; and capital defendants whom state officials seek to medicate so as to make them competent to be executed.2

However, if each of these categories is considered briefly, it may better illuminate whether any strands of doctrinal coherency can be spelled out (cf. Perlin 1987b; Perlin 2000).

DEFENDANTS AWAITING TRIAL Awaiting an IST determination Prior to 1987, medication cases involving defendants awaiting IST determinations had ‘resulted in a series of apparently random decisions from which almost no doctrinal threads could be extracted,’ leading to ‘significant and genuine confusion’ in this area (Perlin 1990, p. 963; Perlin 1989, § 14.09; compare, e.g., State v. Hayes 1978, to Whitehead v. Wainwright 1978). Subsequently, though, two separate decisions in one case – with radically different opinions – have brought some measure of coherence to this area. In 1987, a panel of the Fourth Circuit Court of Appeals issued the first decision in United States v. Charters (Charters I) on the right of a federal pre-trial detainee to refuse psychotropic medication (Charters 1987). Charters I rejected the notion that the ‘exercise

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People v. Lopez 1990; Perlin 1989 [1999 Cumulative Supplement], § 14.09, 329). More recently, the Sixth Circuit has held that the ‘strict scrutiny’ standard of substantive due process review applied to this question, finding that the government must prove its case by clear and convincing evidence (United States v. Brandon 1998).4 But, notwithstanding Brandon (and other post-Charters federal cases rejecting its methodology; see e.g., Preston v. Gutierrez 1993; Kulas v. Valdez 1998; United States v. Weston 2000), the second Fourth Circuit decision in Charters remains important ‘jurisprudentially, constitutionally, and symbolically’ (Perlin 1999, § 3B-8.1b, 312).

Defendants permanently IST In Jackson v. Indiana, the Supreme Court held that it violated due process to commit an individual for more than the ‘reasonable period of time’ necessary to determine ‘whether there is a substantial chance of his attaining the capacity to stand trial in the foreseeable future’ (Jackson 1972, p. 733). If there were to be no such chance, a defendant originally committed pursuant to an IST finding would either be subjected to the civil commitment process or released; once having been ‘Jacksonized’ (that is, having had their criminal indictments dismissed but remaining in need of hospitalization), such patients must be treated like other civil patients (Perlin 1991). There has been virtually no case law on the rights of ‘Jacksonized’ patients to refuse medication; none of the three pertinent cases substantially illuminates the underlying doctrinal issues (DeAngelas v. Plaut 1980; Mannix v. State 1981; Woodland v. Angus 1993; Perlin 1999, § 3B9.5). Charters II should not have a significant impact on this population, who should be treated like other civil patients (due to the dismissal of the underlying indictments that triggered their entry into the criminal trial process). Thus, it can be expected that future developments here will track similar developments involving involuntarily committed civil patients (Perlin 1991), and will more closely adhere to the ‘expanded due process’ model.

Otherwise awaiting trial in jails Cases involving jailed pre-trial detainees have generally interpreted the right to refuse treatment broadly. In Bee v. Greaves, the Tenth Circuit ruled that ‘less restrictive alternatives’ should be ruled out before psychotropic medication is involuntarily administered to a jailed detainee (Bee 1984, p. 1396; Perlin 1999, § 3B-7.2d), other courts have similarly ruled that the availability of a less intrusive alternative that could have been employed by defendants must

4

For explanations of ‘strict scrutiny’ in a mental disability law context, see Perlin 1993–94; Perlin 1997.

be considered in the determination of such a case (Osgood v. District of Columbia 1983; Perlin 1999, § 3B-7.2a).

DEFENDANTS PLEADING INSANITY At trial In Riggins v. Nevada, the United States Supreme Court reversed the decision of the Nevada Supreme Court (on the involuntary administration of medication to a defendant at trial), holding that the use of antipsychotic drugs violated the defendant’s right to fair trial (Riggins 1992; Perlin 1998, § 3B-8.3). The Court cited language from its previous opinion in Washington v. Harper (1990) regarding the impact of drug side effects on constitutional decision making, and construing Harper to require ‘an overriding justification and a determination of medical appropriateness’ prior to forcibly administering antipsychotic medications to a prisoner (Riggins 1992, pp. 134–5). The Riggins Court focused on what might be called the ‘litigational side effects’ (Perlin 1994c, p. 251) of antipsychotic drugs, and discussed the possibility that the drug use might have ‘compromised’ the substance of the defendant’s trial testimony, his interaction with counsel, and his comprehension of the trial (Riggins 1992, p. 137). In a concurring opinion, Justice Kennedy (the author of Harper) took an even bolder position. He would not allow the use of antipsychotic medication to make a defendant competent to stand trial ‘absent an extraordinary showing’ on the state’s part, and noted further that he doubted this showing could be made ‘given our present understanding of the properties of these drugs’ (Riggins 1992, p. 139). Justice Thomas dissented, suggesting that: (i) the administration of the drug might have increased the defendant’s cognitive ability; (ii) since Riggins had originally asked for medical assistance (while a jail inmate, he had ‘had trouble sleeping’ and was ‘hearing voices’), it could not be said that the state ever ‘ordered’ him to take medication; (iii) if Riggins had been aggrieved, his proper remedy was a § 1983 civil rights action;5 and (iv) under the majority’s language, a criminal conviction might be reversed in cases involving … penicillin or aspirin’ (Riggins 1992, pp. 150–5). Riggins is the Court’s most expansive reading of the effect of psychotropic drugs’ side effects on an individual’s functioning (Perlin 1999, § 3B-8.3). Justice Kennedy’s concurrence highlights the ways that such side effects could imperil a fair trial: Behavior, manner, facial expressions, and emotional responses, or their absence, combine to make an 5 Individuals can file federal civil rights actions under 42 U.S.C. § 1983 if they allege that they have been harmed by a state official’s violations of federal law.

The right to refuse treatment in a criminal law setting 529 overall impression on the trier of fact, an impression that can have a powerful influence on the outcome of the trial. If the defendant takes the stand, as Riggins did, his demeanor can have a great bearing on his credibility, his persuasiveness, and on the degree to which he evokes sympathy. (Riggins 1992, p. 142).

This is the clearest articulation of this position in any opinion by any Supreme Court justice. Kennedy’s observations as to jurors’ responses to defendants who fail to display the proper ‘remorse and compassion’ is also telling: The prejudice can be acute during the sentencing phase of the proceedings, when the sentencer must attempt to know the heart and mind of the offender and judge his character, his contrition or its absence, and his future dangerousness. In a capital sentencing proceeding, assessments of character and remorse may carry great weight and, perhaps, be determinative of whether the offender lives or dies. (Riggins 1992, p. 144).

Kennedy’s reliance here on a law review article that reports on the experiences of real jurors in real cases (Geimer and Amsterdam 1987) reflects an important sensitivity to the ways that jurors process clues and cues about the persona of capital defendants, and his integration of that data into an analysis of the ways that jurors may potentially respond to medicated defendants demonstrates a similar sensitivity to the way that visual images of mentally disabled defendants may be dispositive of juror decision making on this question. On the other hand, Justice Thomas’s opinion raises grave issues for defense counsel (Perlin 1994a; Perlin 2000). Had his position prevailed, would concerned and competent defense lawyers feel as if they were assuming a risk in ever seeking psychiatric help for an awaiting-trial defendant (Perlin 1992)? His analogizing of antipsychotic drug side effects to penicillin or aspirin may be disingenuous, or it may be cynical. What is clear is that nowhere in the lengthy corpus of right to refuse treatment litigation is this position ever seriously raised (Perlin and Dorfman 1993; Perlin 1999, § 3B-8.3, 327).

Following an NGRI verdict While individuals who had been previously adjudicated NGRI were members of some early class actions challenging institutional drugging practices (e.g., Davis v. Watkins 1974; Davis v. Hubbard 1980; compare Rennie v. Klein 1979), there has been remarkably little litigation on behalf of this population (Perlin 1991, p. 47). The most important case, a Maryland state decision, construed a U.S. Supreme Court case that limits the treatment refusal rights of prisoners (Washington v. Harper 1990) to guard against the arbitrary administration of antipsychotic drugs in the context of NGRI insanity acquittees, and

declared unconstitutional a state statute that failed to provide such a patient with the rights for adequate notice, to be present, to present evidence, and to cross-examine witnesses at a drug refusal hearing, and to have the right to judicial review of an adverse decision at such a hearing (Williams v. Wilzack 1990). Williams, which relied on both state and federal constitutions, thus suggests that lower courts may limit Harper to the specific population in that case (convicted prisoners), even where the patient’s original confinement stems from the criminal trial process (Perlin 1999, § 3B-9.6, 342). More recently, a federal district court in Wisconsin struck down that state’s statute governing the administration of antipsychotic medication to insanity acquittees, finding the law unconstitutional because it did not require the court to make a determination that the incompetent insanity acquittee was dangerous and that the medication was in his best interests (Enis v. Department of Health & Social Serv. 1996).

CONVICTED PRISONERS The Supreme Court’s decision in Harper sharply limited the right of convicted felons to refuse treatment under the federal constitution. [For pre-Harper cases brought under constitutional law theories, see e.g., Keyhea v. Rushen (1986); Large v. Superior Court (1986).] While the court agreed that prisoners (like all other citizens) possessed a ‘significant liberty interest’ in avoiding the unwanted administration of antipsychotic drugs (Harper 1990, p. 221, quoting Vitek v. Jones 1980, pp. 488–91), it found that the need to balance this interest with prison safety and security considerations would lead it to uphold a prison rule regulating drug refusals as long as it was ‘reasonably related to legitimate penological interest,’ even where fundamental interests were otherwise implicated (Harper 1990, p. 222). Thus, a state policy – that provided for an administrative hearing (before a tribunal of mental health professionals and correctional officials) at which there was neither provision for the appointment of counsel nor regularized external review – passed constitutional muster (Harper 1990, pp. 223–4). In a sharply-worded opinion, Justice Stevens dissented, arguing that the refusal of medication was ‘a fundamental liberty interest deserving the highest order of protection,’ especially where the imposition of such medications might create ‘a substantial risk of permanent injury and premature death’ (Harper 1990, p. 237). But Harper clarifies an important strand of Supreme Court jurisprudence: ‘Prison security concerns will, virtually without exception, trump individual autonomy interests’ (Perlin 1999, § 3B-8.2, 320). Post-Harper cases have construed the decision in a wide variety of substantive and procedural contexts, with some courts relying upon it to order full hearings on

530 Correctional psychiatry

right-to-refuse claims, and others citing it to limit the scope of the applicant’s right to refuse (Perlin 1999, § 3B-8.2, 321–2 and cases cited at note 1286). Moreover, although the trend has been slowed down by the Supreme Court’s subsequent decision in Riggins v. Nevada (1992), Harper was the first Supreme Court case to ‘point … claimants to the state court door, and steer … them away from federal courts’ (Brian 1992, p. 282).

COMPETENCY TO BE EXECUTED Still undecided is the important question of whether a state can involuntarily medicate an individual under a death sentence so as to make him or her competent to be executed. After the Supreme Court determined that an incompetent defendant with mental illness cannot be executed (Ford v. Wainwright 1986) (a holding that it did not extend to cases involving individuals with mental retardation, see Penry v. Lynaugh 1989), it initially agreed to hear a case that posed this precise question (Perry v. Louisiana 1990a). In Perry, the Louisiana state courts had found that any due process right the capital defendant might have was outweighed by two compelling state interests: the provision of psychiatric care, and the carrying out of a valid death penalty (State v. Perry 1989). After the Supreme Court originally decided to hear the case (to determine whether the Eighth Amendment’s proscription against cruel and unusual punishment prohibits states from so medicating death-row inmates; Perry 1990a), it ultimately vacated the lower court’s decision and remanded for further proceedings in light of its decision in Harper on the scope of a convicted prisoner’s right to refuse (Perry v. Louisiana 1990b). The Supreme Court’s reasoning in this case is not clear. It may be that the justices felt, upon reflection, that the only issue presented was that of forcible medication (finding the execution consequences irrelevant), and it was thus necessary for the state court to consider, after Harper, whether the difference in long-term harm in a case such as Perry (his execution) outweighed the state’s interest in involuntarily medicating him (Perlin 1989 [1999 Cumulative Supplement], § 17.06B, 535; ‘Supreme Court Sidesteps Issue’ 1990). Interestingly, the Supreme Court had decided Harper a week before it chose to grant certiorari in Perry; its decision to vacate and remand for consideration of Harper may thus mean that the court could not – or would not – resolve the difficult tensions presented by such a case (Perlin 1994b). On remand, the Louisiana Supreme Court found, under state constitutional law, that the state was prohibited from medicating Perry to make him competent to be executed. Concluded the court: For centuries no jurisdiction has approved the execution of the insane. The state’s attempt to circumvent

this well-settled prohibition by forcibly medicating an insane prisoner with antipsychotic drugs violates his rights under our state constitution. …First, it violates his right to privacy or personhood. Such involuntary medication requires the unjustified invasion of his brain and body with discomforting, potentially dangerous and painful drugs, the seizure of control of his mind and thoughts, and the usurpation of his right to make decisions regarding his health or medical treatment. Furthermore, implementation of the state’s plan to medicate forcibly and execute the insane prisoner would constitute cruel, excessive and unusual punishment. This particular application of the death penalty fails to measurably contribute to the social goals of capital punishment. Carrying out this punitive scheme would add severity and indignity to the prisoner’s punishment beyond that required for the mere extinguishment of life. This type of punitive treatment system is not accepted anywhere in contemporary society and is apt to be administered erroneously, arbitrarily or capriciously. (State v. Perry 1992, pp. 747–8)

While the Supreme Court has not yet revisited this question, it can be expected that the question will inevitably arise again in the future, and that the Court will have a second chance to weigh the competing values (Perlin 1989 [1999 Cumulative Supplement], § 17.06B, 536).

CONCLUSION This issue remains one of the most volatile areas of mental disability law. The decisions in Charters II (1988) and Harper (1990) had made it appear that the federal courts would no longer be the voluntary forum of choice for persons seeking to assert their right to refuse medication. The Supreme Court’s decision in Riggins (1992), however, made it appear as if the federal forum would not necessarily be a hostile one for plaintiffs bringing such actions. Post-Riggins cases have been brought in both state and federal forums and, while results have been mixed, it can now be said that the complete exodus to state courts – predicted following the Charters and Harper decisions – has been halted, and that both state and federal courts now remain responsive to right to refuse medication actions (Perlin 1999, § 3B-8.4, 330). The growing conservatism of the federal judiciary will most likely result in more affirmative litigation being brought in state courts based on state constitutional theories. Many state courts appear willing to consider carefully the arguments of plaintiffs in right-to-refuse cases brought by individuals in the criminal trial process. It is necessary that the precise status of the patient – e.g., jail detainee, prisoner, insanity acquittee; Jacksonized permanently incompetent – be ‘unpacked’ so as to ‘decode’ the operative, controlling legal principles (Perlin 1991).

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If this is done, it is possible that some harmony might be brought to this most contentious area of litigation (Gelman 1983–84, p. 122) and that the dilemma at the heart of the controversy – ‘preserving patient dignity while maintaining allegiance to treatment needs’ (Roth 1986, p. 161) – might yet be resolved.

REFERENCES Bee v. Greaves, 744 F.2d 1387 (10th Cir. 1984), cert. den., 469 U.S. 1214 (1985). Brant, J. 1983. Pennhurst, Romeo and Rogers: The Burger Court and mental health law reform litigation. Journal of Legal Medicine 4, 323–48. Brian, J. 1992. The right to refuse antipsychotic drug treatment and the Supreme Court. Buffalo Law Review 40, 251–82. Brooks, A. 1987. The right to refuse antipsychotic medications: law and policy. Rutgers Law Review 39, 339–76. Davis v. Hubbard, 506 F. Supp. 915 (N.D. Ohio 1980). Davis v. Watkins, 384 F. Supp. 1196 (N.D. Ohio 1974). DeAngelas v. Plaut, 503 F. Supp. 775 (D. Conn. 1980). Enis v. Department of Health & Social Serv., 962 F. Supp. 1192 (W.D. Wis. 1996). Ford v. Wainwright, 477 U.S. 399 (1986). Geimer, W., Amsterdam, J. 1987. Why jurors vote life or death: operative factors in ten Florida death penalty cases. American Journal of Criminal Law 15, 1–54. Gelman, S. 1983–84. Mental hospital drugging – atomistic and structural remedies. Cleveland State Law Review 32, 221–61. Gelman, S. 1984. Mental hospital drugs, professionalism and the constitution. Georgetown Law Journal 72, 1725–84. In re A. C., 573 A.2d 1235 (D.C. 1990). In re Barbara H., 183 Ill. 2d 482, 702 N.E. 2d 555 (1998). In re Brazleton, 245 Ill. App. 3d 1028, 615 N.E. 2d 406 (1993). Jackson v. Indiana, 406 U.S. 715 (1972). Keyhea v. Rushen, 178 Cal. App. 3d 526.223 Cal. Rptr. 746 (1986). Kulas v. Valdez, 159 F. 3d 453 (9th Cir. 1998). Large v. Superior Court, 148 Ariz. 229, 714 P.2d 399 (1986). Mannix v. State, 621 S.W.2d 222 (Ark. 1981). McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 553 A. 2d 596 (1989). Mills v. Rogers, 457 U.S. 291 (1982). Osgood v. District of Columbia, 567 F. Supp. 1026 (D.D.C. 1983). Penry v. Lynaugh, 492 U.S. 302 (1989). People v. Lopez, 160 A.D.2d 335, 554 N.Y.S.2d 98 (1989), app’l den., 76 N.Y.2d 791, 559 N.Y.S.2d 996, 559 N.E.2d 690 (1990).

Perlin, M.L. 1987a. State constitutions and statutes as sources of rights for the mentally disabled: the last frontier? Loyola of Los Angeles Law Review 20, 1249–327. Perlin, M.L. 1987b. The Supreme Court, the mentally disabled criminal defendant, and symbolic values: random decisions, hidden rationales, or ‘doctrinal abyss.’ Arizona Law Review 29, 1–98. Perlin, M.L. 1989 (and 1999 cumulative supplement): Mental Disability Law: Civil and Criminal. Charlottesville, VA: Michie Co. Perlin, M.L. 1989–90. Unpacking the myths: the symbolism mythology of insanity defense jurisprudence. Case Western Reserve Law Review 40, 599–731. Perlin, M.L. 1990. Are courts competent to decide competency questions? Stripping the facade from United States v. Charters. University of Kansas Law Review 38, 957–1001. Perlin, M.L. 1991. Reading the Supreme Court’s tea leaves. Predicting judicial behavior in civil and criminal right to refuse treatment cases. American Journal of Forensic Psychiatry 12, 37–67. Perlin, M.L. 1992. Riggins v. Nevada: Forced medication collides with the right to a fair trial. Newsletter of the American Academy of Psychiatry and Law 17, 81–3. Perlin, M.L. 1993–1994. The ADA and persons with mental disabilities: can sanist attitudes be undone? Journal of Law and Health 8, 15–45. Perlin, M.L. 1994a. Therapeutic jurisprudence: understanding the sanist and pretextual bases of mental disability law. New England Journal of Criminal and Civil Confinement 20, 369–83. Perlin, M.L. 1994b: The Jurisprudence of the Insanity Defense. Durham, NC: Carolina Academic Press. Perlin, M.L. 1994c. The sanist lives of jurors in death penalty cases: the puzzling role of ‘mitigating’ mental disability evidence. Notre Dame Journal of Law, Ethics and Public Policy 8, 239–79. Perlin, M.L. 1997. ‘Make promises by the hour’: sex, drugs, the ADA, and psychiatric hospitalization. DePaul Law Review 46, 947–85. Perlin, M.L. 1999: Mental Disability Law: Civil and Criminal, 2nd edition. Charlottesville, VA: Lexis Law Publishing. Perlin, M.L. 2000: The Hidden Prejudice: Mental Disability on Trial. Washington, DC: American Psychological Association. Perlin, M.L., Dorfman, D.A. 1993. Sanism, social science, and the development of mental disability law jurisprudence. Behavioral Sciences and the Law 11, 47–66. Perlin, M.L., Dorfman, D.A. 1996. Is it more than ‘dodging lions and wastin’ time’? Adequacy of counsel, questions of competence, and the judicial process in individual right to refuse treatment cases. Psychology, Public Policy and Law 2, 114–36.

532 Correctional psychiatry Perry v. Louisiana, 498 U.S. 38 (1990a). Perry v. Louisiana, 498 U.S. 1075 (1990b), reh. denied, 498 U.S. 1075 (1991). Plotkin, R. 1977. Limiting the therapeutic orgy: mental patients’ right to refuse treatment. Northwestern University Law Review 72, 461–525. Preston v. Gutierrez, 1993 WL 280819 (W.D. Mo. 1993). Rennie v. Klein, 462 F. Supp. 1131 (D.N.J. 1978), supplemental opinion, 476 F. Supp. 1294 (D.N.J. 1979), modified, 653 F.2d 836 (3d Circ. 1981) (en banc), vacated & remanded, 458 U.S. 1119 (1982), on remand, 720 F.2d 266 (3d Circ. 1983) (en banc). Rhoden, N. 1980. The right to refuse psychotropic drugs. Harvard Civil Rights-Civil Liberties Law Review 15, 363–413. Riese v. St. Mary’s Hospital and Medical Center, 198 Cal. App. 3d 1388, 243 Cal. Rptr. 2431 (1987), app’l dismissed, 774 P.2d 698, 259 Cal. Rptr. 669 (1989). Riggins v. Nevada, 504 U.S. 127 (1992). Rivers v. Katz, 67 N.Y.2d 485, 495 N.E.2d 337, 504 N.Y.S.2d 74 (1986). Roth, L. 1986. The right to refuse psychiatric treatment: law and medicine at the interface. Emory Law Journal 35, 139–60. State v. Hayes, 118 N.H. 458, 389 A.2d 1379 (1978). State v. Otero, 238 N.J. Super. 649, 570 A.2d 503 (Law Div. 1989). State v. Perry, 543 So. 2d 487 (La. 1989), reheating den., 545 So. 2d 1049 (1989).

State v. Perry, 610 So. 2d 746 (La. 1992). State ex rel. Jones v. Gerhardstein, 141 Wis. 2d 710, 416 N.W.2d 883 (1987). Supreme Court sidesteps issue of restoring inmates’ competency to allow execution. Psychiatric News, December 21, 1990. United States v. Brandon, 158 F. 3d 947 (6th Cir. 1998). United States v. Charters, 829 F.2d 479 (4th Cir. 1987) (Charters I), on rehearing, 863 F.2d 302 (4th Cir. 1988) (en banc) (Charters II), cert. denied, 494 U.S. 1016 (1990). United States v. Weston, 206 F. 3d 9 (D.C. Cir. 2000). 42 U.S.C. § 1983. Virgil D. v. Rock County, 189 Wis. 2d 1, 524 N.W. 2d 894 (1994). Vitek v. Jones, 445 U.S. 480 (1980). Washington v. Harper, 494 U.S. 210 (1990). Wexler, D. 1982. Seclusion and restraint: lessons for law, psychiatry, and psychology. International Journal of Law and Psychiatry 5, 285–94. Whitehead v. Wainwright, 447 F. Supp: 898 (M.D. Fla. 1978), vacated & remanded on other gds., 609 F.2d 223 (5th Cir. 1980). Williams v. Wilzack, 319 Md. 485, 573 A.2d 809 (1990), reconsid. den. (1990). Woodland v. Angus, 820 F. Supp. 1497 (D. Utah 1993). Youngberg v. Romeo, 457 U.S. 307 (1982).

54 Psychiatric ethics in the correctional setting JAY E. KANTOR

INTRODUCTION Psychiatrists who step into a correctional setting enter a mire of ethical dilemmas. Many of these issues derive from the need to reconcile conflicting interests of the patient, society, and the profession. Of course, some of these ethical conflicts in psychiatry are not unique to practice in the correctional system. Of all categories of physicians, it is probably the psychiatrist working in the non-correctional setting who is most often called on by society to jeopardize the treatment interests of a patient and perhaps limit his or her rights, in order to protect society or individuals from the dangerous behavior of that patient. In fact, it might be argued (Szasz 1963) that in requiring that psychiatrists make decisions about involuntary commitments on grounds of dangerousness to others, or in demanding that they make Tarasoff-type decisions about dangerousness, society has involved all psychiatrists in correctional work, whether or not they are formally employed by a correctional system.

PUBLIC PERCEPTIONS OF PSYCHIATRY IN CORRECTIONS There are added ethical pressures as a result of the many misconceptions the public has about the relationship between mental illness and criminal behavior. For example, one recent study showed a substantial increase in the number of Americans who believed that the mentally ill are usually ‘violent, dangerous, frightening.’1 Yet the public also mistrusts psychiatric intervention when diminished capacity defenses are in the offing, or whenever psychiatrists have input into the sentencing or parole process. Many suspect that psychiatrists will be too lenient, and that psychiatry in general is too excusing.

These attitudes not only put direct pressures on the psychiatrist, but add other sorts of more indirect pressures. For example, the public misconceptions result in a reluctance to fund psychiatric treatment for criminals. Such other pressures2 may manifest in insufficient staffing, and needs to triage or give less than optimal treatment time to the patients. To add to the problems, these patients may be placed among the general prison population when they ought to be in a hospital setting. Thus, the ethical dilemmas inherent to the practice of psychiatry in general are compounded and added to in the context of psychiatric practice in a correctional system. Consider the following sample of issues that may arise in a correctional setting: 1 A psychiatrist may be asked to evaluate an arrestee in order to determine his or her competency to stand trial. In this case, the psychiatrist is not being called on to treat the detainee, nor has he or she entered into a formal treatment contract with the detainee. Does that free him/her from the ethical obligations (e.g., beneficence, confidentiality) that are inherent parts of the normal psychiatrist–patient treatment relationship? Does it follow that he or she has an obligation as a professional with a scientific expertise in doing such evaluations to give a truthful, impartial evaluation, whatever the consequences to the evaluee? Or does his/ her status as a healthcare professional mandate that he/she provide care to, do good for, and protect from harm, all those in need – even if those in need are not formally his/her patients? 2 Prior to undergoing the competency evaluation in a facility, the detainee may have been receiving psychiatric treatment at the same facility. During that treatment he or she may have revealed information that could adversely affect him/her if it were to be used in 2

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‘Study Probes Mental Illness,’ Rick Callahan, Associated Press, September 27, 2000.

Thus, The New York Times, December 5, 2000, ran an article describing the dumping of mentally ill and retarded juveniles into the prison system (‘Concern Rising Over Use of Juvenile Prisons to “ Warehouse” the Mentally Ill.’ p. A16).

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the competency evaluation or, perhaps, if it were later used during his/her sentencing hearing. Should the evaluating psychiatrist have access to the detainee’s prior treatment record? If so, should the treating psychiatrist warn the patient before the onset of treatment that information obtained in treatment could be used for other purposes, even if there is reason to believe that this warning will interfere with treatment? (Estelle v. Smith 1981). If the detainee has been found incompetent to stand trial and an insanity or mitigated responsibility plea is in the offing, the psychotic defendant may have a better chance if he or she appears before the jury in an untreated state. Should the psychiatrist push for medication if it is appropriate to treat the patient’s mental disorder, or does the physician’s duty to ‘keep patients from harm’ require not only that he or she not medicate but that he/she suggest to the accused or to an accused’s counsel that staying unmedicated and crazy may be in the accused’s best interests? During the course of treatment or evaluation, the patient or evaluee may reveal information to the psychiatrist about past, future, or ongoing crimes. With a patient population of prisoners, such information may not only be common, but also important to treatment. The patient or evaluee also may reveal information about ongoing or future activities that violate rules of the correctional facility. These violations may range the gamut from illegal cigarette smoking to planned murders or riots. What, if any, are the limits of confidentiality in these settings? The psychiatrist may be asked to forcibly administer neuroleptics to an unwilling prisoner – not because the prisoner needs treatment but because the prisoner is disruptive to the smooth running of the institution (Washington v. Harper 1990). Or, the prisoner may in fact need treatment, but may refuse it. What is the extent of a detainee’s or prisoner’s right to refuse treatment? What, if anything, differentiates the use of a neuroleptic as a restraint from its use as a treatment? Parole or privileges may be contingent on a prisoner’s agreeing to enter and comply with therapeutic group (usually substance abuse) programs. Many of these programs require that the patient cede substantial control to the program, often including requirements that he or she divulge information, such as a positive HIV status, to the group. Are there limits to what demands can justly be required of a prisoner who wishes to remain in the program but has objections to complying with or consenting to some of the requirements? A psychiatrist may be called on to take part in a sentencing hearing. This may range from being asked to offer an opinion about the appropriateness of diverting the convicted to a treatment program instead of a prison, to being asked to offer an opinion about the corrigibility of the convicted. In some jurisdictions, a determination of incorrigibility may result in a death

sentence for the prisoner. Would the psychiatrist who takes part in corrigibility hearings when execution is at issue be guilty of violating the American Medical Association (AMA) directive forbidding members to take part in executions, or violating the more basic ethical directive to do no harm? 8 The Supreme Court has ruled (Ford v. Wainwright 1986) that condemned prisoners must be competent to be executed. A prison psychiatrist may be asked to evaluate such competency. If the prisoner is found incompetent, the psychiatrist may be asked to treat the patient with the sole treatment goal not being to restore him or her to full mental health but simply to get him/her to a mental state in which he/she is competent to be executed. Is the psychiatrist who takes part in this process violating the AMA rule against taking part in executions? Would taking part on any level violate the ‘Do not harm’ obligation? If the prisoner is unwilling to be treated, does the state have the right to force treatment on him/her not for his/her benefit but for the benefit of the state’s interest in executing him or her? Should such a specific goal-directed ‘treatment’ really be characterized as treatment? 9 Psychiatrists may be hired by the defense or by the prosecution to testify in trials where the mental status of the defendant is an issue. What is the extent of and limits to their loyalties to those who have hired them?

DIVIDED LOYALTIES Many of these issues are concerns about so-called divided loyalties. They arise when the psychiatrist is asked to serve different masters under the same roof, each master assigning tasks that seem to have incompatible goals. Traditionally, physicians have been thought to owe their first loyalties to their patients. Once a person has been taken on as a patient, the physician should, in the words of the Hippocratic oath, ‘Keep him [the patient] from harm and injustice.’ More than just keeping the patient from harm (non-maleficence), the physician also has duties of beneficence to the patient. That is, there is a duty not only not to harm the patient, but also a duty to do good for the patient. These duties and the patient’s concomitant rights to their performance may be thought of as having their genesis in the fiduciary treatment contract, or ‘special relationship’ formed between physician and patient when the patient is accepted for treatment. In this narrow contractual view, a physician’s obligations and a patient’s corresponding rights come into existence only when a physician and a putative patient both agree to enter a treatment relationship. Presumably, under this model, without the formal, contractual treatment relationship, the physician has none of those special obligations to an individual. However, there is a broader contractual view holding that those duties of beneficence

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and non-maleficence are more general and may be conceived of as obligations that go along with being considered a healthcare professional. In this alternative view, a physician may have duties to help anyone who is in need whether or not that person has formally signed on as a patient.

THE VIEW OF PYSCHIATRY AS NON-PUNITIVE In traditional psychiatric care, the physician’s duties of beneficence are taken to include and stress requirements that the psychiatrist be supportive, non-judgmental, and non-punitive toward the patient. While these attitudes are generally useful in providing any type of effective and humane healthcare, they may be essential for enabling successful psychiatric treatment, which still depends so much on words and trust rather than on what is available at the pharmacy. The practice of keeping information given to the psychiatrist in confidence is crucial to this relationship of trust. Confidentiality is important to all healthcare relationships. It encourages people to seek treatment for complaints that could be perceived as embarrassing or stigmatizing or grounds for discrimination if revealed to persons not involved in treating the patient. It encourages patients not to withhold information that might be essential to determining their diagnosis and treatment, particularly if the treatment is psychiatric. It is the provider who has expertise to filter out from all of what the patient says which information is necessary for diagnosis and treatment. There are also more fundamental, theoretical reasons for those requirements that the psychiatrist be non-punitive to, and protective of, the patient. Historically, psychological theories have tended to look for deterministic explanations of human behavior (Lipkin 1990). These theories seek to locate the causes of persons’ behavior and the roots of their character in places or times that were not controlled or created by them. These original causes and the means to alter their effects are assumed to be generally inaccessible to, and unalterable by, persons without the help of a mental healthcare provider. That is, traditional psychological theory seemed to imply that persons are not really responsible for their own characters nor ever really in control of their actions, and thus they are not blameworthy for their bad behaviors.3 Even those theories that accept the possibility of personal control and responsibility imply that patients undergo psychiatric care precisely because, through no fault of their own, they lack those

features of character that permit fully autonomous action (Kantor 1989a). ‘To explain is to excuse,’ and this explanatory tendency is another source of the psychiatrist’s duties not to be punitive or judgmental toward patients. As far back as Plato’s primitive theories of the human mind, a person’s bad action was perceived as being caused by a defective psyche. Psychological theory tends toward determinism and, while sympathetic to rehabilitative goals in corrections, avoids ascribing moral blame; but the law and its servant, the correctional system, assume that persons have free will and are at least presumed to be responsible and thus blameworthy and deserving of punishment when they break the law. The psychiatrist who is trained to be a humane, caring, and non-judgmental advocate for patients who goes to work in a correctional setting, becomes the employee of an institution that owes its first loyalty to society at large, not to the individuals in its custody. Thus, a seeming paradox emerges: On the one hand, individual patients seek healthcare for themselves, not for society. They go to healthcare providers and they reveal intimate information about themselves to the providers because they think it may help their own care, not usually because they have a desire to help society to keep order, or to pursue justice, or to prosecute or punish them. The usual psychiatrist–patient relationship is based on those patient needs or wants. On the other hand, ‘society at large’ may assign to the psychiatrist-employee of a correctional institution those very tasks of keeping order, pursuing justice, and even the task of aiding in detecting what could be construed as harm-causing behavior. The type of ‘privileged’ information that is passed between patient and provider in the mental healthcare relationship often could be of great use to the correctional institution in performing these external tasks. Consequently, we have just some of the makings for ethical conflict for the psychiatrist who agrees to help a correctional institution in its functions. How should one approach these dilemmas? Some may say that ethical issues should be decided by simply adhering to the formal codes of ethics of one’s profession. However, it should be apparent from even a cursory examination of a number of the ethical issues cited here that codes of ethics may be too ambiguous to provide clear guidance. Thus, even ignoring questions about the underlying justifications for the contents of a profession’s codes of ethics, we are faced with questions about the very possibility of an unambiguous rigid adherence to their specific requirements.

3

Thus, The New York Times, in a front page article about a study claiming to correlate the probability of a juvenile exhibiting delinquency with the existence of immediate family members of the delinquent who are criminals, quotes Dr. Terrie Moffit, a professor of psychology at the University of Wisconsin: ‘This shows that where you really learn delinquency from is your family .… A criminal is made when a three-year-old is not given consistent discipline’ (The New York Times, January 31, 1992).

LIMITS OF TURNING TO THE LAW FOR SOLUTIONS In these days of concerns about malpractice, many would like to simply turn to the law for directions. But laws

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relevant to psychiatry can and do change through time and jurisdiction, as they have, for example, in regard to requirements for psychiatric examination prior to abortions, or in regard to the criteria for the insanity defense, and in the bounds of the right to refuse psychiatric treatment. Laws can be ambiguous and unclear, as they are in regard to delineating the specific exceptions to medical confidentiality in Tarasoff-type cases. Laws can be outright unethical, as most would say about laws that permitted slavery. Laws may be of questionable or disputable ethics, as some would say about pre-Donaldson (O’Connor v. Donaldson 1975) involuntary commitment criteria, and some others would say about post-Donaldson involuntary commitment criteria. There are others who suggest that some of the ethical issues can be solved or avoided if the psychiatrist tries to adhere strictly to the objective clinical–scientific requirements of the profession. This approach is sometimes presented as a suggestion that forensic psychiatrists, who are not working in treatment roles, distinguish themselves and their role in the correctional system from those psychiatrists whose role is to treat. Psychiatrists who believe that a physician’s obligations to treat those in need of treatment extend beyond those persons who are his or her formally contracted patients may have problems with this attempted escape route. That is, they would claim that any trained and licensed physician cannot avoid a professional obligation to treat anyone who appears before them seemingly in need of treatment, and have an obligation to look to the welfare of such persons. The author has also mentioned the dubiousness of this ‘hand-washing’ approach in another place (Kantor 1989b) when referring to Nazi physicians who made dispassionate scientific ‘professional’ evaluations about the fitness of concentration camp inmates to either continue working as slave labor, or to be killed. One cannot avoid responsibility for the foreseeable consequences or future uses of one’s ‘objective scientific findings.’ Nor would such an approach solve the issues of those psychiatrists working in a treatment role. There are those, like Stone (1984), who believe that the answers to unsolved philosophical issues such as the free will–determinism dispute are so crucial to deciding forensic issues like criminal responsibility as to make it impossible to carry out ethical forensic psychiatry until they are solved. Yet, for psychiatrists to withdraw entirely from the legal system might itself have unethical consequences. That route probably would leave mentally ill prisoners without treatment, would leave at least some accused criminals without adequate defense, and would hamper the chances for rehabilitation of many convicted criminals. None of this is meant to imply that the law, or codes of ethics, or the standards of clinical practice, are never ethical. It is meant to imply that the directives given by the law and by codes of ethics must be subject to examination, analysis, and conceptual justification. Like clinical

textbooks, good laws and good codes of ethics should be looked upon as quick and useful guides to refer to in the hurried circumstances of professional work. Like good clinical diagnoses, they should be based on sound and defensible theoretical principles. When a particular demand of the law, or of the codes of ethics, or of professional practice, seems to lead to an ethical dilemma, it is necessary to carry out further diagnosis – to go under the surface to a deeper level of conceptual analysis.

STEPS TOWARDS SOLUTIONS In this short space, it is possible only to suggest some steps to take toward analysis and resolution of ethical dilemmas. First, of course, is to realize that there do exist ethical and conceptual issues that cannot be ignored or rationalized out of existence. That is, there must be a recognition that there are issues that cannot be solved simply by looking to ‘good traditional clinical practice,’ or sidestepped by blindly trying to follow an unexamined code of ethics or law, or a directive issued by the employing institution. Second, the underlying conceptual source or sources of the ethical dilemma should be found and analyzed. Ethical dilemmas exist when there is real or perceived conflict between the demands of a few differing fundamental and persuasive ethical theories. Sometimes the dilemmas are simply the product of unclarity or confusion about the implications of just one persuasive ethical theory. In those latter instances, a dilemma may resolve itself once the issues and case facts are clarified. Psychiatrists should have a working knowledge of these important ethical theories that serve as the conceptual underpinnings of both our legal system and our professional codes of ethics. A conceptual analysis of the basic causes for feelings of ethical uneasiness and conflict will, at the minimum, clarify what is relevant to the issues involved and thus will direct any discussion of the issues in useful directions. At the least, psychiatrists should be familiar with those three or four major ethical theories that have the most impact on the structure of the healthcare provider-patient relationship. Among these theories are Kantian or Autonomy theory, Consequentialist or Utilitarian theory, and Social Contract theory.

RELEVANT ETHICAL THEORIES Very briefly, and with little justice to the fullness of each of the theories, they may be described as follows: Autonomy approaches, based on Kant’s (1959) philosophy, stress a primary and over-riding obligation to respect competent adults’ right to self-determination. Kant did not believe in a deterministic view of human nature and, on the contrary, believed that our very essence as persons is our capacity to be responsible for our actions.

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For Kant’s version of this approach, it is that capacity to be responsible, to govern our own behavior, that makes us persons and gives us infinite value. That capacity to be responsible and self-governing must be respected above all else. For example, an unconsenting person is never to be treated solely as a tool to be used in some project to achieve some end – whether that end is another individual’s benefit, the person’s own benefit, or the general interest and welfare of society. The person has the right and must always be given the opportunity to give or refuse consent to participate in such projects. Recognition of that right to self-determination and responsibility entails, for example, that persons have derivative rights to informed consent in regard to proposed medical treatment. In addition, they have a right that promises made to them are kept; that would include promises of confidentiality, for example. To deny a person his or her right to self-determination, even for his/ her benefit, is to infantilize them. Persons’ rights are not limitless, for we are all in reciprocal relations with one another. The person him/herself does not have the right to use others as unconsenting means towards some end, and is blameworthy and perhaps punishable if he or she does so. Crimes against person and property do usually involve using others as a means to promoting one’s own interests. In accord with that, and like the Social Contract theory described below, that responsibility may include being deserving of punishment under certain circumstances. In fact, for Kant’s version of the theory, at least, punishment actually is a mark of respect for the punished. It is to say, ‘You chose freely to do wrong, you knew the consequences of your choice, and now you must pay.’ Conversely, the theory would hold that it is wrong to blame or punish those who acted wrongly, but were not responsible for their actions such as the insane. For persons who lack the capacity to be selfdetermining, Autonomy theory recommends that decisions involving them be made according to what the person would have wished had he or she the capacity to decide for him/herself. This is termed substituted judgment. (That is opposed to the view that we should simply try to act in the person’s best interests.) The theory also entails that any obligations and rights that come with one’s status or role as a ‘patient,’ or a ‘psychiatrist,’ or a ‘prisoner,’ are subsidiary to, and must not conflict with, the fundamental rights and obligations that come with being a ‘person.’ For example, a physician qua physician has an obligation to do good for the patient, but cannot do so at the expense of the patient’s basic right as a person to refuse treatment. Consequentialist or Utilitarian (Mill 1961) approaches claim that the rightness of any proposed action, law, or policy is determined by the effect that the action, law, or policy will have on the general well-being of society. Every action has ripple effects that reach out in many directions, and those effects on society must be considered in moral reckoning. Thus, ethical thinking requires a

difficult and complex projection about the probable immediate, distant, and long-term effects of possible actions, laws and policies. The right action is one that best promotes total benefit to society or, given dismal alternatives, the action that produces the least pain for society. Because such analysis is so complex, some so-called Rule Utilitarians argue that we can generalize rules of behavior rather than having to analyze each instance. Thus, they might argue that one always ought to keep promises because promise-keeping tends to promote the general happiness even though it may not in an individual case. While Rule Utilitarians may believe that the recognition of rights generally promotes good for society, the bottom line is that, for this theory, individual rights and interests are subservient to the promotion of the general welfare of society. Social Contract theory4 conceives of many, if not all, rights and obligations as created by agreements made between individual persons, between persons and society, between persons and institutions, and between institutions and society. In Social Contract theory, parties to such agreements incur obligations in return for their gaining rights. We have already alluded to the theory when analyzing the source of the physician’s obligation to be beneficent. In a narrow contractual view, that obligation comes into existence when a treatment contract is created by a physician and a patient. In return for the physician’s obligations to the patient, the physician gains the right to a fee and, at least to some degree, a right to the patient’s cooperation in treatment. In a broader view, it could be argued that an obligation to treat anyone in need, whether or not they have entered into a formal contract with the physician, may derive from the profession’s contract with society. In this view, society demands that Good Samaritan obligation in return for licensing physicians the right to practice medicine, while excluding unlicensed persons from practicing medicine. In the same context, we hinted that Social Contract theory is useful, if not definitive, in analyzing the range of duties that society may justly demand of a professional in return for the right to practice a profession, and in analyzing the demands a professional organization or employer may justly make on a member or employee in return for the privileges of certification or the right to a pay check. Each of these theories seems to have at least some merit, but also seem to lead to different conclusions about what is ethically correct. It is often conflict, or seeming conflict among these approaches to actions or policies, that is the root of ethical unease. In some instances, ethical conflict may result from unclarity about the implications that a single theory has for a proposed course of action. Again, at the least, an examination of the implications of each of 4 There are really a number of Social Contract theories (e.g., Hobbes, Rousseau) with significant differences among them. What are noted here are those factors they share.

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these theories will clarify an issue. In some cases, a thinking through of the implications may dissolve the conflict, by showing that, if fully thought through, the different theories really come to similar conclusions about an issue.

SAMPLE ETHICAL ANALYSIS As an example, we can briefly analyze the issue of whether information given during treatment should be later used for competency evaluations or for sentencing evaluations. An Autonomy theory approach would demand that, at the minimum, patients have the right to be warned before the onset of treatment about any limits to confidentiality. More than that, there might be reason to believe that the very threat of information being later used against the prospective patient’s interests would really place the detainee in an untenable situation in which any decision he or she made about accepting or rejecting treatment could not be reasonably seen as voluntary. If that were true, then the theory would probably require that treatment information be entirely isolated from other uses, unless the patient gave uncoerced and voluntary consent for other uses of information. There are possible exceptions when information may be released without the patient’s consent while remaining consistent with Autonomy theory. One possible exception for the unconsented use of such information would be Tarasoff-type situations. While the right of self-determination is sacrosanct in the theory, the right to self-determination does not include the right to interfere with other persons’ selfdetermination by causing them serious harm. In those situations, patients have no right to expect that confidentiality will be kept (though Kant himself seemed to argue that a promise of confidentiality is sacrosanct). Utilitarian theory, with its primary concern for the general welfare of society, might seem to imply that the greater good might be served by allowing the information gleaned in treatment to be used in those other contexts. After all, that approach would simplify and keep down the expenses and complexity of record keeping, allow the hiring of fewer psychiatrists, and, perhaps, smooth the running of the correctional system. However, Utilitarian theory requires a very careful consideration of all the possible and likely consequences of a projected policy. A closer and fuller analysis along Utilitarian lines would have to take into account the long-term impact that any loosening of confidentiality would have. For example, would such a policy discourage prisoners from seeking treatment and thus result in large long-term costs and problems for the institution and for society? Would the loosening of rights to confidentiality jeopardize general trust in psychiatrist–patient relationships? Would the knowledge that they were serving as ‘doubleagents’ directly through testimony, or indirectly through the use of their notes, hamper psychiatrists’ own ability

to give adequate treatment? Considering those factors, it is possible that a fully considered Utilitarian analysis might also end with a recommendation that confidentiality in the treatment relationship be kept sacrosanct. In order to permit the use of information obtained in treatment to be used in other contexts, a Social Contract theory approach would probably demand disclosure about limits of confidentiality before the onset of a treatment relationship. Prospective prisoner patients would have to be told that the expectations in regard to confidentiality in a treatment relationship within the correctional facility differ from the reasonable expectations that persons may have in a ‘normal’ physician–patient relationship. However, like autonomy approaches, contract approaches imply that the parties to a contract should not only have information about the consequences of entering an agreement but should have the ability to agree to the contract with at least some degree of voluntariness. Perhaps exceptions to the necessity of voluntary acquiescence would be instances in which a very compelling societal interest could justify forcing obligations upon a person. Or, it might be argued that a prisoner loses some rights to confidentiality. Whether there was a compelling interest that would justify the unconsenting use of treatment information would be determined by doing an analysis of the probable consequences of such a policy that would resemble the Utilitarian analysis previously outlined. All things considered, it might be the case that Social Contract theory would also prohibit the unconsenting use of information obtained in treatment. These were by no means meant to be full ethical analyses of the issue, but only hints as to how a full analysis might proceed.

DEALING WITH ETHICS AND ETHICAL ISSUES More than just having a familiarity with basic ethical principles, psychiatrists should consider the task of keeping up with current ethics literature as an integral and inseparable part of their general obligation to keep up with developments in their profession. There is a great deal of sophisticated analysis and ongoing discussion of relevant issues such as confidentiality, consent, and divided loyalties present in the ethics and medical ethics literature.

Hospital ethics committees Ethics committees are now almost a requirement in hospitals. While correctional psychiatrists are often isolated from usual hospital practice, it still would be possible to use hospital ethics committees as a resource in dealing with issues. There is usually some type of affiliation between the correctional facility and area hospitals. On the wider front, the professional organizations, such as the American Psychiatric Association and the

Psychiatric ethics in the correctional setting 539

American Academy of Psychiatry and the Law, should be open to a constant vigilance for ethical issues and should possess a ready willingness to constantly reevaluate their codes of ethics. The fact that a professional organization has an ‘ethics committee’ solely set up to deal with complaints about ‘unethical’ behavior is not evidence that the organization is set up to consider ‘ethics’ in the sense that we use the term here. On the narrower front, each mental health unit within a correctional system should have a mechanism for enabling regular and ongoing discussion of ethical issues that come up in the unit. A hasty en passant ‘corridor consultation’ approach to handling these issues is not adequate. Such a mechanism should have a formal system for considering problematic cases and, as well, should create explicit unit policies to deal with ongoing and common issues on a prospective basis. If specific cases raise ethical issues, discussion and resolution of those issues should ordinarily be documented in the patient’s case record. If associated with a hospital, the unit should be represented on the hospital ethics committee. These unit structures should also have facilitated access to professional societies in order to be able to alert the profession about the existence of issues that are felt to be of general concern and, perhaps, to be able to make recommendations to the societies about ways to resolve these concerns. It may be that after all the ethical analysis has been performed a problem may remain intractable. In some instances, the intractability results from the unavailability of facts that would be needed to guide a satisfactory resolution of an issue. In other instances, it may be that a full ethical analysis does not eventuate with a reconciliation among seeming conflicting prescriptions of the various basic ethical theories. In the former case, compromise rather than reasonable certainty may be necessary in making decisions. In the latter case, one ultimately may

be forced to choose sides according to the basic ethical theory that seems most convincing. In either case and in any case, actions chosen after methodical examination of the nature of the ethical mire still give a better chance of eventual extrication than do actions taken blindly.

REFERENCES Estelle v. Smith, 451 U.S. 454 (1981). Ford v. Wainwright, 477 U.S. 399 (1986). Hobbes, T. 1958: Leviathan (Parts I and II). Indianapolis: Bobbs-Merrill. Kant, I. 1959: Foundations of the Metaphysics of Morals. Lewis White Beck (translation). Indianapolis: Bobbs-Merrill. Kantor, J.E. 1989a: Psychiatry in the service of the criminal justice system: some conceptual and ethical issues. In Rosner, R., Harmon, R.B. (eds), Correctional Psychiatry. New York: Plenum, 169–86. Kantor, J.E. 1989b: Medical Ethics for Physicians-inTraining: 1. New York: Plenum. Lipkin, R.J. 1990. The promise of forensic psychiatry. International Journal of Law and Psychiatry 13, 331–59. Mill, J.S. 1961: Essential Works of John Stuart Mill. In Lemer, M. (ed.). New York: Bantam. O’Connor v. Donaldson, 422 U.S. 563 (1975). Rousseau, J.J. 1947: The Social Contract. In Frankel, C. (translation, ed.). New York: Hafner. Stone, A.A. 1984: Law, Psychiatry and Morality. Washington, DC: American Psychiatric Press. Szasz, T.S. 1963: Law, Liberty, and Psychiatry. New York: Collier. Washington v. Harper, 110 S. Ct. 1028 (1990).

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PART

7

Special clinical issues in forensic psychiatry

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 Forensic uses of hypnosis 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

542 Special clinical issues in forensic psychiatry 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

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

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55 Malingering PHILLIP J. RESNICK

INTRODUCTION Malingering is defined in DSM-IV as ‘the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs.’ In contrast, factitious disorders involve the intentional production of symptoms in order to assume a patient role. Both disorders require a deceitful state of mind. False imputation refers to the ascribing of actual symptoms to a cause consciously recognized as having no relationship to the symptoms. For example, authentic psychiatric symptoms due to clearly defined stresses at home may be falsely attributed to a traumatic event at work in order to gain compensation (Resnick 1984). Persons usually malinger mental illness for one of the following five purposes: 1 Criminals may seek to avoid punishment by pretending to be incompetent to stand trial, insane at the time of the crime, worthy of mitigation at sentencing, or incompetent to be executed. 2 Malingerers may seek to avoid conscription into the military, be relieved from undesirable military assignments, or avoid combat. 3 Malingerers may seek financial gain from social security disability, veterans’ benefits, workers’ compensation, or damages for alleged psychological injury. 4 Prisoners may malinger to obtain drugs, or to be transferred to a psychiatric hospital in order to facilitate escape or do ‘easier time.’ 5 Malingerers may seek admission to a psychiatric hospital to avoid arrest or to obtain free room and board – known colloquially as ‘three hots and a cot.’

CLINICAL METHODS FOR DETECTING MALINGERING Clinicians should utilize multiple sources of data including interviews, collateral sources of information, and

psychometric tests in detecting malingering (Ziskin and Faust 1995; Resnick 1997). Reliance on clinical interviews alone will not allow the examiner to diagnose malingering in any but the most obvious cases. When a litigant is suspected of malingering, the clinician must look carefully for evidence of inconsistency in symptoms: 1 There may be inconsistency in the subject’s report itself. For example, a malingerer may articulately explain that he or she is confused and unable to think correctly. 2 There may be inconsistency in what a person reports and the symptoms that are observed. For example, a malingerer may state that he or she is hearing voices during the interview, but show no evidence of being distracted. 3 There may be inconsistency in observation of the symptoms themselves. For example, a hospitalized patient may behave in a confused manner with a psychiatrist, but then play excellent bridge on the ward with other patients. 4 There may be inconsistency between performance on psychological testing and a malingerer’s report of his or her level of performance. For example, a litigant may state on an intelligence test that he/she does not know how many legs are on a dog, but be performing well as an investment banker. 5 There may be inconsistency between what the malingerer reports and how genuine symptoms manifest themselves. For example, a defendant may report that visual hallucinations are seen in black and white, whereas genuine visions are seen in color.

APPROACHES TO DETECTING MALINGERING Clinicians should be particularly careful to ask open-ended questions in suspected malingerers and let evaluees tell their complete story with few interruptions. Details can be clarified later with specific questions. Inquiries about hallucinations should be carefully phrased to avoid giving clues about the nature of true hallucinations. The examiner

544 Special clinical issues in forensic psychiatry

should try to ascertain whether the subject has ever had the opportunity to observe psychotic people (e.g., during prior employment). Clinicians may feel irritation at being deceived, but any expression of irritation or incredulity is likely to make the malingerer more defensive (Miller and Cartlidge 1972). Clinicians may modify their interview style when defendants are suspected of malingering psychosis. The interview may be prolonged since fatigue diminishes the malingerer’s ability to maintain a counterfeit account (Anderson, Trethowan, and Kenna 1959). Rapid firing of questions increases the likelihood of getting contradictory replies from malingerers, but it may also create confusion among mentally impaired persons. The clinician may get additional clues by asking leading questions that emphasize a different illness than the malingerer is trying to portray (Ossipov 1944). Questions about improbable symptoms may be asked to see if the malingerer will endorse them. For example, ‘Have you ever believed that automobiles are members of an organized religion?’ (Rogers 1987). Another device is to mention, within earshot of the suspected malingerer, some easily imitated symptom that is not present. The sudden appearance of the symptom suggests malingering. Inpatient assessment should be considered in difficult cases of suspected malingering. Feigned psychotic symptoms are difficult to maintain 24 hours a day. After completing a detailed examination, the clinician may decide to confront an evaluee with his or her suspicions. The suspected malingerer should be given every opportunity to save face. Once malingering is denied, there is a risk that it will be harder to admit later. It is better to say,‘You haven’t told me the whole truth,’ than,‘You have been lying to me’ (Inbau and Reid 1967). Detailed knowledge about actual psychotic symptoms is the clinician’s greatest asset in recognizing simulated psychosis. Therefore, the phenomenology of genuine hallucinations, delusions, and other syndromes will be reviewed in this chapter.

MALINGERED HALLUCINATIONS Persons reporting hallucinations with any atypical features should be questioned in great detail about the nature of their symptoms. Both psychotic (Goodwin, Alderson, and Rosenthal 1971) and acute schizophrenic patients (Mott, Small, and Andersen 1965; Small, Small, and Andersen 1966) show a 76 per cent rate of hallucinations in at least one sensory modality. The reported incidence of auditory hallucinations in schizophrenic patients is 66 per cent (Mott, Small, and Andersen 1965; Small, Small, and Andersen 1966). Some 64 per cent of hallucinating patients describe hallucinations in more than one modality (Small, Small, and Andersen 1966). The incidence of visual hallucinations in psychotics is estimated at 24 per cent

(Mott, Small, and Andersen 1965) to 30 per cent (Small, Small, and Andersen 1966). Hallucinations are usually (88 per cent) associated with delusions (Lewinsohn 1970), and are also generally intermittent, rather than continuous (Goodwin, Alderson, and Rosenthal 1971).

Auditory hallucinations Goodwin, Alderson, and Rosenthal (1971) described the following characteristics of auditory hallucinations. Both male and female voices were heard by 75 per cent of the patients in their study. Two-thirds of hallucinating subjects could identify the person speaking (Goodwin, Alderson, and Rosenthal 1971; Kent and Wahass 1996; Leudar et al. 1997). The message was usually clear, being vague in only 7 per cent of the cases. The content of hallucinations was accusatory in about one-third of the cases. Small, Small, and Andersen (1966) reported that the major themes in auditory hallucinations of schizophrenic patients were persecution or instructions. Auditory hallucinations usually consist of single words or phrases, especially early in the disease process (Nayani and David 1996; Leudar et al. 1997). Hallucinated voices tend to become more complex over time, from single words to entire sentences, and the number of voices heard also increases (Leudar et al. 1997). The syntax of longstanding auditory hallucinations is usually in complete sentences, and mirrors the syntax typically used by the patient (Nayani and David 1996). In affective disorders, the content of the hallucination is usually mood-congruent and related to delusional beliefs (Asaad 1990). Schizophrenic hallucinations tend to consist of egodystonic, derogatory comments about the patient or the activities of others (Goodwin, Alderson, and Rosenthal 1971; Oulis et al. 1995; Leudar et al. 1997). Nayani and David (1996) reported that the most commonly encountered hallucinations were simple terms of abuse. Female subjects described terms of abuse conventionally directed at women suggesting promiscuity, while men described male insults such as those inputing homosexuality. About one-third of persons with auditory hallucinations reported that voices asked them questions. Voices never sought information such as ‘What time is it?’ or ‘What is the weather like?’ Instead, they asked questions such as ‘Why are you smoking?’ or ‘Why didn’t you do your essay?’ (Leudar et al. 1997). Leudar et al. (1997) found that most patients in their study engaged in an internal dialogue with their hallucinations. Many were able to cope with chronic hallucinations by incorporating them into their daily life as a kind of internal advisor. They considered their advice in the context of the moment. Interestingly, sometimes their hallucinated voices would insist on certain actions after the patient refused to carry them out. The voices would rephrase their requests, speak louder, or curse the patient for being non-compliant. In contrast, malingerers are

Malingering 545

more likely to claim that they were compelled to obey commands without further consideration. Some malingerers describe voices in a stilted manner, such as ‘Go commit a sex offense.’ Other malingerers describe far-fetched commands, such as a robber who alleged that (malingered) voices kept screaming, ‘Stick up, stick up, stick up!’ Hallucinated voices are usually perceived as benevolent or malevolent. In a study by Chadwick and Birchwood (1994), patients commonly said that evil commands were evidence that the voice was bad, and kind protective words were evidence that the voice was good. Malevolent voices evoke negative emotions (anger, fear, depression, anxiety). Patients often respond by arguing, shouting, noncompliance, and avoidance of cues that trigger voices. Benevolent voices usually provoke positive emotions (amusement, reassurance, calm, happiness). Patients often respond by elective listening, willing compliance, and doing things to bring on their benevolent voices. Persons suspected of feigning auditory hallucinations should be asked what they do to make the voices go away or diminish in intensity. Genuine patients are often able to stop auditory hallucinations when their schizophrenia is in remission, but not during the acute phase of their illness (Larkin 1979). Frequent coping strategies among actual schizophrenics are:

• • • •

specific activities (working or watching TV); changes in posture (e.g., lying down or walking); seeking out interpersonal contact; and taking medication (Falloon and Talbot 1981; Kanas and Barr 1984).

Schizophrenic hallucinations tend to diminish when patients are involved in activities (Goodwin, Alderson, and Rosenthal 1971). Patients with genuine malevolent hallucinations usually develop some strategies to decrease them. The suspected malingerer may also be asked what makes the voices worse. Some 80 per cent of persons with genuine hallucinations reported that being alone worsened their hallucinations (Nayani and David 1996). Voices were also made worse by listening to the radio and watching television (Leudar et al. 1997), with news programs being particularly hallucinogenic.

Command auditory hallucinations Command hallucinations are auditory hallucinations that instruct a person to act in a certain manner. Command hallucinations are easy to fabricate in order to support an insanity defense. The majority of commands to commit dangerous acts are not obeyed. Thus, the examiner must be alert to the possibility that a defendant may fake an exculpatory command hallucination or lie about an inability to refrain from a genuine or faked hallucination. Knowledge of the frequency of command hallucinations and the factors associated with obeying commands is helpful in looking at the authenticity of such claims.

Hellerstein, Frosch, and Koenigsberg (1987) found in a retrospective chart review that 38 per cent of all patients with auditory hallucinations reported commands. Studies of schizophrenic auditory hallucinations found that 30–64 per cent included commands or instructions (Mott, Small, and Andersen 1965; Small, Small, and Andersen 1966; Goodwin, Alderson, and Rosenthal 1971; Hellerstein, Frosch, and Koenigsberg 1987). Command hallucinations occurred in 30 per cent (Goodwin, Alderson, and Rosenthal 1971) to 40 per cent (Mott, Small, and Andersen 1965) of alcoholic withdrawal hallucinations. Patients with affective disorders reported that 46 per cent of their hallucinations were commands (Goodwin,Alderson, and Rosenthal 1971). Hellerstein, Frosch, and Koenigsberg (1987) reported that the content of command hallucinations was the following: 52 per cent suicide, 5 per cent homicide, 12 per cent non-lethal injury of self or others, 14 per cent nonviolent acts, and 17 per cent unspecified. The research method of reviewing charts, rather than making direct inquiries, probably increased the relative proportion of violent commands since these are more likely to be charted. Earlier research suggested that hallucinatory commands are generally ignored by patients (Goodwin, Alderson, and Rosenthal 1971; Hellerstein, Frosch, and Koenigsberg 1987). However, Junginger (1990) reported that 39 per cent of patients with command hallucinations obeyed them. Those patients with hallucination-related delusions and hallucinatory voices that they could identify were more likely to comply with the commands. Kasper, Rogers, and Adams (1996) reported that 84 per cent of psychiatric inpatients with command hallucinations had obeyed them within the last thirty days. Rogers et al. (1990) found that 44 per cent of a forensic population with command hallucinations reported that they frequently responded with unquestioning obedience. Among those reporting command hallucinations in a second forensic population, 74 per cent indicated that they acted in response to some of their commands during the episode of illness (Thompson, Stuart, and Holden 1992). Junginger (1995) studied the relationship between command hallucinations and dangerousness, and found that 43 per cent of subjects reported full compliance with their most recent command hallucination. Compliance with commands is much less likely if the commands are dangerous (Junginger 1995; Kasper, Rogers, and Adams 1996). A defendant alleging an isolated command hallucination in the absence of other psychotic symptoms should be viewed with great suspicion. Non-command auditory hallucinations (85 per cent) and delusions (75 per cent) are usually present with command hallucin-ations (Thompson, Stuart, and Holden 1992).

Visual hallucinations Visual hallucinations are usually of normal-sized people, and are seen in color, while alcohol-induced

546 Special clinical issues in forensic psychiatry

hallucinations are more likely to contain animals (Goodwin, Alderson, and Rosenthal 1971). Visual hallucinations in psychotic disorders appear suddenly and typically without prodromata (Asaad and Shapiro 1986). Psychotic hallucinations do not usually change if the eyes are closed or open. In contrast, drug-induced hallucinations are more readily seen with the eyes closed or in darkened surroundings (Asaad and Shapiro 1986). Occasionally, small (Lilliputian) people are seen in alcoholic, organic (Cohen, Alfonso, and Haque 1994), or toxic psychoses (Lewis 1961), especially anticholinergic drug toxicity (Asaad 1990). The little people are sometimes 1–2 inches (2.5–5 cm) tall, but at other times they may be up to 4 feet (1.3 meters) in height. Lilliputian hallucinations are rarely seen in schizophrenia (Leroy 1922). Only 5 per cent of visual hallucinations in a study reported by Goodwin, Alderson, and Rosenthal (1971) consisted of miniature or giant figures. Visual hallucinations are volunteered much more often (46 per cent versus 4 per cent) by malingerers than by genuinely psychotic individuals (Cornell and Hawk 1989). Dramatic, atypical visual hallucinations should definitely arouse suspicions of malingering (Powell 1991).

MALINGERED DELUSIONS Delusions are not merely false beliefs that cannot be changed by logic. A delusion is a false statement made in an inappropriate context and most importantly, with inappropriate justification. Normal people can give reasons, can engage in a dialogue, and can consider the possibilities of doubt. Persons with true delusions cannot provide adequate reasons for their statements. Delusions vary in content, theme, degree of certainty, degree of systematization, and degree of relevance to the person’s life in general. The more intelligent the person, the more elaborate his or her delusional system will usually be. According to Spitzer (1992), most delusions involve the following general themes: disease (somatic delusions), grandiosity, jealousy, love (erotomania), persecution, religion, being poisoned, and being possessed. Delusions of nihilism, poverty, sin, and guilt are commonly seen in depression. Technical delusions refer to the influence of such items as telephone, telepathy, and hypnosis. By technical means, signals and voices can be transmitted to patients. Delusions of technical content occur seven times more often in men than in women (Kraus 1994). A malingerer may claim the sudden onset of a delusion, but in reality systematized delusions usually take several weeks to develop. As true delusions are given up, they first become somewhat less relevant to the everyday life of the patient, but the patient still adheres to the delusional belief. A decrease in preoccupation with delusions may be the first change seen with adequate treatment.

Table 55.1 Suspect hallucinations and delusions Auditory hallucinations Continuous rather than intermittent hallucinations Vague or inaudible hallucinations Hallucinations not associated with delusions Stilted language reported in hallucinations Inability to state strategies to diminish voices Hallucinated questions seeking information Self-report that all command hallucinations were obeyed Visual hallucinations Black and white rather than color Dramatic, atypical visions Schizophrenic hallucinations that change when the eyes are closed Only visual hallucinations in schizophrenia Miniature or giant figures Visions unrelated to delusions or auditory hallucinations Delusions Abrupt onset or termination Eagerness to call attention to delusions Conduct not consistent with delusions Bizarre content without disordered thinking

In a later stage, the patient might admit to the possibility of error, but only as a possibility. Only much later will the patient concede that the ideas were, in fact, delusions (Sachs, Carpenter, and Strauss 1974). Thus, malingering should be suspected if a person claims that a delusion suddenly appeared or disappeared. In assessing the genuineness of delusions, the clinician should consider their content and the person’s associated behavior. The content of feigned delusions is generally persecutory, occasionally grandiose, but seldom selfdepreciatory (East 1927; Davidson 1952). Malingerers’ behavior usually does not conform to their alleged delusions, whereas acute schizophrenic behavior usually does. However, ‘burned out’ schizophrenic patients may no longer behave in a manner consistent with their delusions after several months. Details of suspect hallucinations and suspect delusions are summarized in Table 55.1.

CLINICAL INDICATIONS OF MALINGERED PSYCHOSIS All malingerers are actors who portray their psychoses as they understand them (Ossipov 1944). However, malingerers often overact their part (Wachpress, Berenberg, and Jacobson 1953), and sometimes mistakenly believe that the more bizarrely they behave, the more psychotic they will appear. Malingerers are eager to call attention to their illnesses; this is in contrast to schizophrenic patients, who are often reluctant to discuss their symptoms (Ritson and Forest 1970). One malingerer stated that he was an

Malingering 547

‘insane lunatic’ when he killed his parents at the behest of hallucinations that ‘told me to kill in my demented state.’ Malingering defendants may try to take control of the interview and behave in an intimidating, bizarre manner. The clinician should avoid the temptation to terminate such an interview prematurely. Malingerers sometimes accuse clinicians of regarding them as faking. Such behavior is extremely rare in genuinely psychotic persons. It is more difficult for malingerers to successfully imitate the form than the content of schizophrenic thinking (Sherman, Trief, and Sprafkin 1975). Derailment, neologisms and incoherent word salads are rarely simulated. Positive symptoms of schizophrenia are faked more often than negative symptoms. Malingerers give more approximate answers to questions than schizophrenic patients, such as ‘there are fiftythree weeks in the year’ (Bash and Alpert 1980; Powell 1991). Persons malingering psychosis also often choose to fake intellectual deficits (Bash and Alpert 1980; Schretlen 1988; Powell 1991). For example, a man who completed one year of college alleged he did not know the colors of the American flag. Malingerers are more likely to answer ‘I don’t know’ to detailed questions about psychotic symptoms, such as hallucinations and delusions. This response may simply mean that they do not know how to answer because they have never actually experienced the symptoms. When asked whether an alleged voice was male or female, one malingerer replied, ‘It was probably a man’s voice.’ A crime without apparent motive, such as killing a stranger, lends credence to the presence of true mental disease. Genuine psychotic explanations for rape, robbery, or check forging are unusual. Malingerers are more likely to have contradictions in their accounts of their illness. The contradictions may be evident within the story itself, or between the malingerer’s version and other evidence. Another indicator of malingered psychosis is evidence from family members and collateral sources that the global assessment of functioning (GAF) for the preceding year is inconsistent with the evaluee’s current presentation (Kucharski et al. 1998).

PSYCHOMETRIC TESTS FOR MALINGERING The detection of malingering by standardized psychometric testing has been the focus of considerable research in recent years. Although hundreds of psychometric tests are available to examiners, few have been validated in the detection of malingering.

Structured interview of reported symptoms (SIRS) Structured interviews demonstrate more reliability in detecting malingering than unstructured interviews

since they reduce the degree of variability between interviewers. The SIRS was designed by Rogers, Bagby, and Dickens (1992) specifically to detect malingered psychiatric illness. The test questions were designed on the basis of eight indicators derived from the empirical literature on malingering, and five indicators were derived intuitively. Eight primary scales on the SIRS provide indices of rare symptoms, uncommon symptom pairing, atypical symptoms, disproportionate numbers of obvious symptoms, excessive reporting of everyday problems as symptoms, abnormally high proportion of psychiatric symptoms, excessive reports of symptom severity, and self-reports discrepant with genuine patients. Administration of the SIRS takes between 30 and 60 minutes. Studies demonstrate high inter-rater reliabilities for all scales (r between 0.91 and 1.00). The SIRS has been tested with inpatient, forensic, and correctional samples with consistently high accuracy in discriminating malingerers from truthful evaluees (Rogers 1997).

Minnesota Multiphasic Personality Inventory, Revised (MMPI-2) The MMPI-2 is the most validated psychometric test for evaluating suspected malingering of psychopathology. The MMPI-2 may be reliably used to detect malingered psychopathology with acceptable accuracy and low rates of false-positive classification. Clinicians using the MMPI2 in this manner should consult the literature to determine appropriate cutting scores for the various scales to be used in their evaluation. For reviews of MMPI-2 use, see Greene (1997) and Graham (2000).

The M test The M test was developed as a brief screening instrument for malingered schizophrenia (Beaber et al. 1985). Initial validation studies were promising, but subsequent evaluations (Hankins, Barnard, and Robbins 1993; Smith, Borum, and Schinks 1993) have demonstrated an uncomfortably high false-positive rate in forensic populations. The accuracy can be improved with the use of Rule-In and Rule-Out scales as proposed by Smith, Borum, and Schinks (1993). In spite of these difficulties, the M test continues to be used as a screening instrument by some clinicians for malingered psychotic disorders because it is brief and easy to administer.

CLINICAL INDICATORS OF MALINGERED INSANITY DEFENSES In assessing defendants for criminal responsibility, clinicians must determine whether they report malingered symptoms at the time of the act, and/or malinger

548 Special clinical issues in forensic psychiatry Table 55.2 Malingering psychosis during the crime A Faking psychosis while actually committing the crime (rare) B Faking psychosis during the crime in the evaluation, and either: 1 Claiming to be well now 2 Still faking psychosis C Actually psychotic during the crime, but superimposing faked exculpatory symptoms at the evaluation. Either: 1 Still psychotic at the evaluation 2 No longer psychotic at the evaluation

symptoms at the time of the examination (Hall 1982) (Table 55.2). Some malingerers mistakenly believe that they must show ongoing symptoms of psychosis in order to succeed with an insanity defense. When defendants report psychiatric symptoms at the time of their examination, the clinician has the opportunity to see whether the alleged symptoms are consistent with genuine illness and current psychological testing results. Defendants who have true schizophrenia may malinger additional symptoms to escape criminal responsibility, and these are the most difficult cases to accurately assess. Clinicians have a lower index of suspicion for malingering because of the history of psychiatric hospitalizations and the presence of residual schizophrenic symptoms. These defendants are able to draw upon their prior experience with hallucinations and their observations of other psychotic people in hospitals. They know what questions to expect from clinicians. If they spend time in a forensic psychiatric hospital, they are likely to learn how to modify their story to fit the exact criteria for an insanity defense. Clinicians should not think of malingering and psychosis from an ‘either/or’ perspective (Rogers, Sewell, and Goldstein 1994). Defendants with genuine psychosis must be scrutinized for superimposed malingered exculpatory symptoms. Several clues can assist clinicians in the detection of fraudulent NGRI defenses (see Table 55.3). A psychotic explanation for a crime should be questioned if the new offense fits the same pattern as the defendant’s previous convictions. Malingering should be suspected in defendants pleading insanity if a partner was involved in the crime. In a study at the Michigan Center for Forensic Psychiatry, 98 per cent of successful NGRI acquittees acted alone (Thompson, Stuart, and Holden 1992). Most accomplices of normal intelligence will not participate in psychotically motivated crimes, and the clinician may explore the validity of such a claim by questioning the codefendant. A malingerer may tell a far-fetched story to fit the facts of a crime into a mental disease model. One malingerer with prior armed robbery convictions claimed that he robbed only upon the commands of auditory hallucinations, and gave away all the stolen money to ‘bums’ in the street.

Table 55.3 Clues to malingered insanity defenses Malingering should be suspected if any of the following are present: 1 A non-psychotic, alternative, rational motive for the crime 2 Suspicious hallucinations or delusions (see Table 55.1) 3 Current crime fits an established pattern of prior criminal conduct 4 Absence of any active or subtle signs of psychosis during the evaluation 5 Presence of a partner in the crime 6 Double denial of responsibility (e.g., disavowal of the crime plus attributing the crime to psychosis) 7 Alleged intellectual deficit coupled with alleged psychosis 8 Alleged illness inconsistent with documented level of functioning

Malingering defendants are more likely to present themselves as blameless within their feigned illness (Resnick 1984). This tendency was demonstrated by a man who pleaded not guilty by reason of insanity to a charge of stabbing an 11-year-old boy sixty times with an icepick. The man reported that for one week prior to the homicide, he was constantly pursued by an ‘indistinct, human-like, black blob.’ He stated that he was sexually excited and intended to force homosexual acts on the victim, but abandoned his plan when the boy began to cry. When he started to leave, ten faces in the bushes began chanting, ‘Kill him, kill him, kill him.’ He yelled, ‘No,’ and struck out at the faces with an icepick. The next thing he knew, ‘the victim was covered with blood.’ The autopsy showed a cluster of stab wounds in the victim’s head and neck – which was inconsistent with the defendant’s claim that he struck out randomly at multiple faces in the bushes. His visual hallucination was atypical as his version showed a double avoidance of responsibility: first, the faces told him to kill; and second, he claimed to have attacked the hallucinated faces, not the victim. In other words, if even half of his story was believed he could avoid criminal responsibility. After his conviction, he confessed to six unsolved sadistic homosexual killings.

MALINGERING IN POSTTRAUMATIC SITUATIONS When litigants claim personal injury, especially psychological symptoms after an accident, the public often suspects that they are malingering. Suspicions of malingering help to explain why damages awarded for posttraumatic psychological symptoms are substantially less than those for physical injury, in spite of the fact that limitations on the litigant’s life may be actually greater (Trimble 1981). There are few personal injury cases that

Malingering 549

reach the courts where no allegation of malingering is expressed, or at least implied (Lipman 1962). The primary motivation to malinger after an accident is financial gain. Once an individual becomes a litigant in a personal injury suit or files a Workers’ Compensation claim, the efforts of attorneys for both the plaintiff and defendant may alter the claimant’s attitudes and the course of the illness. The plaintiff ’s lawyer may overdramatize the client’s impairment to the point of being ‘a salesman of pain, sorrow, agony and suffering’ (Averbach 1963, p. 195). In contrast, defense attorneys often assume an attitude of disbelief and imply that the individual is not suffering from any genuine psychiatric symptoms. Litigants may understandably become angry, believing they are going to be cheated and exaggerate to get what they believe they deserve (Enelow 1971). The types of psychiatric disorders that most commonly occur after a traumatic experience include posttraumatic stress disorder (PTSD), depressive disorders, conversion disorders, post-concussion syndromes, and, occasionally, psychoses. Plaintiffs’ attorneys strongly favor the diagnosis of PTSD because the diagnosis itself includes evidence that the symptoms are due to the traumatic event in question. In contrast, depression after a traumatic event could be attributed to multiple other causes.

POSTTRAUMATIC STRESS DISORDER Assessment of PTSD symptoms The diagnosis of PTSD is based almost entirely on the claimant’s self report of subjective symptoms. Therefore, the accessibility of specific DSM-IV criteria permit the resourceful malingerer to report the ‘right’ symptoms. The assertion that individuals dream or think about a traumatic event should be verified by others who have heard them talk about it in situations that are not related to the litigation. In addition, the clinician must obtain a detailed history of living patterns preceding the stressor. For example, symptoms such as difficulty concentrating or insomnia may have been present before the traumatic event. Baseline activity in a typical week before the stressor should be compared with reported impairment at the time of the evaluation. The clinician must carefully examine the reasonableness of the relationship between the symptoms and the stressor, the time elapsed between the stressor and symptom development, and the relationship between any prior psychiatric symptoms and current impairment. Clinicians who simply inquire about specific symptoms of PTSD and other diagnostic criteria in the DSM-IV will be easily fooled. Lees-Haley and Dunn (1994) found that 97 per cent of untrained college students were able to endorse symptoms of checklists to meet the diagnosis

of major depression and generalized anxiety disorder, while 86 per cent were able to meet the criteria for PTSD. The clinician should insist on detailed illustration of PTSD symptoms. Coached claimants may know which PTSD symptoms to report, but may not be able to elaborate on them with convincing personal life details. Invented symptoms are more likely to have a vague or stilted quality (Pitman et al. 1996). The examiner should see if litigants minimize other causes of their symptoms or exaggerate the severity of the compensable accident. Clinicians should also look for actual evidence in the mental status exam of irritability, difficulty concentrating, and an exaggerated startle response. Third parties should be excluded from the actual evaluation of the subject for two reasons. First, the presence of relatives precludes using them to verify the accuracy of symptoms. Second, should the clinician wish to gently confront the evaluee with the possibility of malingering, the absence of a third party will reduce loss of face. A sympathetic understanding of the temptation to exaggerate symptoms of PTSD increases the likelihood that a person will acknowledge it, whereas trying to shame the person is likely to increase anger and denial. Once malingering is denied, it will usually be harder to admit later. The clinician who suspects malingering may use certain stratagems based on the belief that use of subterfuge in assessing deceit is justified. When inquiring about the symptoms of PTSD, the clinician may ask about symptoms that are not typically seen in this disorder. For example, inquiry could be made about symptoms such as increased talkativeness, inflated self-esteem, or decreased need for sleep. Or the clinician could mention, within ear-shot of the litigant, a very atypical symptom, implying that it is usually present, to see if the person then complains of this symptom.

Clues to malingered PTSD A person who has always been a responsible and honest member of society is not likely to malinger PTSD (Davidson 1952). Malingerers are more likely to be marginal members of society with few binding ties or committed longstanding financial responsibilities, such as home ownership (Braverman 1978). The malingerer may have a history of spotty employment, previous incapacitating injuries, and extensive absences from work. Although the presence of antisocial personality disorder is listed in DSM-IV as an indication to consider malingering, no scientific evidence shows that persons with antisocial personality malinger more than others who face the same highly adversarial circumstances (Clark 1997). Malingerers frequently depict themselves and their prior functioning in exclusively complimentary terms (Layden 1966). The malingerer may incongruously assert an inability to work, but retain the capacity for recreation (e.g., enjoyment of theater, television, or athletic

550 Special clinical issues in forensic psychiatry

activities). In contrast, the person with genuine PTSD is more likely to withdraw from recreational activities as well as work. The malingerer may pursue a legal claim tenaciously, while alleging depression or incapacitation due to symptoms of PTSD (Davidson 1952). Malingerers are unlikely to volunteer information about sexual dysfunction (Sadoff 1978; Chaney et al. 1984), although they are generally eager to emphasize their physical complaints. Malingerers are also unlikely to volunteer information about nightmares unless they have read the diagnostic criteria for PTSD. Genuine nightmares in PTSD show variations on the theme of the traumatic event (Garfield 1987). For example, a woman who was raped may have dreams in which she feels helpless and is tortured without being raped. The malingerer who does not know the expected dream patterns may claim repetitive dreams that always re-enact the traumatic event in exactly the same way. After a traumatic event, the event may be dreamed about almost literally a few times; other elements are then gradually included as the event becomes woven into the rest of the person’s dream life. Posttraumatic nightmares, as contrasted with lifetime nightmares unrelated to trauma, are almost always accompanied by considerable body movement (van der Kolk et al. 1984). Body movement may be confirmed by the sleeping partner or disarray of sheets and covers. The posttraumatic nightmares of civilian adults usually fade fairly rapidly in a few weeks. Psychotherapy hastens the resolution and is usually helpful. By contrast, in veterans’ posttraumatic nightmares, the encapsulated traumatic combat scene may become isolated, so that, when activated, it runs off in an almost identical fashion for many years. The reason for these differences in dream responses to civilian and military stressors is unclear. The veterans’ sleep phenomena may be nighttime flashbacks rather than rapid eye movement (REM) dreams. After the fading of the initial posttraumatic nightmares, the veteran may begin to wake up terrified and report that he or she has dreamed of the horrible event exactly or almost exactly as it happened (van der Kolk et al. 1984). Veterans with PTSD generally report awakening from a dream that involves reliving the trauma, experiencing strong emotions that would have been appropriate reactions to the original traumatic event (usually rage, intense fear, or grief). Less often, they describe awakening in terror without recalling any of the actual dream (Ross et al. 1989). [See Resnick (1997) for additional details distinguishing genuine and faked combat PTSD.]

POST-CONCUSSION SYNDROMES Symptoms of post-concussion syndrome Approximately 2 000 000 closed head injuries occur each year in the United States (Department of Health and Human Services 1989). Post-concussive syndrome is

manifested by emotional, cognitive, and physical symptoms. The DSM-IV proposed the following criteria after a cerebral concussion that lasts for at least three months: becoming easily fatigued; disordered sleep, headache; vertigo or dizziness; irritability or aggression on little or no provocation; anxiety, depression, or affective lability; changes in personality; apathy or lack of spontaneity. The patient must also show difficulty in attention or memory. Epidemiological studies indicate that a considerable number of minor head trauma patients report memory impairment, difficulty concentrating, a low threshold for fatigue, and abnormal levels of irritability (Wrightson and Gronwall 1980). Neuropsychological assessment three months after minor head injury (i.e., unconsciousness less than 20 minutes) showed reduced cognitive efficiency in patients who were not involved in litigation (Barth et al. 1983). Mild dysphoria, general psychological discomfort, and problems returning to previous employment were associated with this cognitive dysfunction. In assessing cognitive changes, Wechsler intelligence scores are not particularly sensitive to subtle changes in information processing (Rutherford, Merrett, and McDonald 1977; Wrightson and Gronwall 1980). Neuropsychological assessment, with its focus on attention and concentration skills, visuomotor functioning, memory abilities and emotional status is more useful in the differential diagnosis of head injury and PTSD.

Assessment of malingered post-concussive syndrome Some 25–50 per cent of claimants of cognitive dysfunction are found to use suboptimal effort when given neuropsychological assessment (Guilmette et al. 1994; McAllister 1994; Youngjohn, Burrows, and Erdal 1995). The examiner must also not assume that symptoms reported after an accident are caused by the accident. It is common for symptoms reported by head-injured claimants to be present before their head injury. The percentage of headinjured patients and control patients who alleged symptoms are indicated on a checklist in Table 55.4. Considerable research has been conducted regarding faked memory loss. Although actual retrograde amnesia is Table 55.4 Frequency of symptoms reported after head injury

Anxiety or nervousness Sleeping problems Headaches Back pain Fatigue (mental or physical) Dizziness

Claimants (%)

Controls (%)

93 92 88 80 79

54 52 62 48 58

44

26

Modified from Lees-Haley and Brown (1993).

Malingering 551

characteristically brief in mild head injury, malingerers tend to overplay their memory loss. They may give implausible answers to questions regarding over-learned autobiographic data, such as their own name, age, gender, and social security number (Levin et al. 1992; Brandt 1992). Several clues may be helpful in distinguishing faked from genuine ongoing memory problems. Brain injury does not impair procedural memory, such as driving a car or riding a bicycle. If memory is impaired for new learning, recollection of the head injury itself suggests faking. If a litigant volunteers several examples of memory failure, the degree of recollection itself suggests faking. Malingering is also suggested if the subject scores more poorly on questions labeled ‘memory testing’ than on other questions that also require memory. Forced-choice tests are useful in assessing faked memory impairment. Forced-choice testing for memory is based on: (i) presenting a large number of items in a twochoice format; and (ii) comparing the person’s performance to the likelihood of success based on chance alone (i.e., no ability). The probability of purely guessing the correct response is 50 per cent. The compelling conclusion is that the patient who scores below probabilities is deliberately motivated to perform poorly (Frederick et al. 1994). Two of the more commonly used forced-choice memory tests are the Portland Digit Recognition Test (PDRT) and the Test of Malingered Memory (TOMM) (Brandt, Rubinsky, and Lassen 1985; Binder 1990; Binder and Willis 1991). Persons with faked anterograde amnesia often score worse than chance on forced-choice recognition of words they have been shown. In one study, only the malingerers did worse than chance compared to head trauma patients and normals (Brandt, Rubinsky, and Lassen 1985). Persons faking retrograde amnesia for an event may also fake anterograde ongoing memory difficulties. Forcedchoice recognition psychological testing showing faked anterograde memory difficulties leads to a strong inference that the retrograde amnesia is also faked (Brandt, Rubinsky, and Lassen 1985). Among the three components of post-concussive syndrome – emotional, cognitive, and physical – emotional symptoms are the most subjective and easiest to malinger. Malingerers usually do not consider complaining of intolerance to loud noises or bright lights, unless they have been coached. These symptoms only occur in individuals with demonstrable impairment in information processing on neuropsychological testing (Bohnen et al. 1991). This association allows the examiner to couple assessment of a subjective emotional complaint to a testable neuropsychological parameter.

by organic pathology. The differential diagnosis includes malingering, conversion disorder, and pain disorder. Both malingerers and patients with conversion disorder may avoid unpleasant activity (e.g., disliked work) and seek support (e.g., financial) from the environment. The critical element that distinguishes conversion disorder from malingering is that conversion symptoms are not under voluntary control. That is, patients with conversion disorder deceive themselves as well as others; whereas malingerers consciously deceive others, but not themselves. In contrast to the malingerer, the person with conversion disorder is agreed to be ill in the eyes of the law. If the illness can be shown to be caused by a particular injury, it is compensable (Cole 1970). For example, if a man developed hysterical paralysis of the legs (conversion disorder) after a frightening automobile accident in which he was not physically injured, the disability would be a direct result of the accident. The paralysis would not be voluntary or a conscious choice for the injured victim. The following clinical characteristics may assist in the differential diagnosis between malingering and conversion disorder:

CONVERSION DISORDER

Depression may be malingered by defendants pursuing an insanity defense and by civil litigants seeking compensation. The Beck Depression Inventory (BDI) and the Hamilton Depression Rating Scale (HDRS) rely solely on self report and thus are quite easy to malinger. The

Patients may have persistent pain or loss of motor or sensory functioning after an injury that cannot be explained

1 The malingerer often presents as sullen, ill-at-ease, suspicious, uncooperative, resentful (Huddleston 1932), aloof, secretive, and unfriendly (Engel 1970). Patients with conversion disorder are more likely to be cooperative (Trimble 1981), appealing, clinging, and dependent (Engel 1970). 2 The malingerer may try to avoid examination, unless it is required as a condition for receiving some financial benefit (Soniat 1960; Engel 1970), but the patient with conversion disorder welcomes examinations (Rosanoff 1920; Hofling 1965). While the malingerer may decline to cooperate with recommended diagnostic or therapeutic procedures, patients with conversion disorder are typically eager for an organic explanation for their symptoms (Trimble 1981) and are anxious to be cured (Rosanoff 1920; Hofling 1965). 3 The malingerer is more likely than the patient with conversion disorder to refuse employment that could be handled in spite of some disability (Davidson 1952). 4 The malingerer is likely to give every detail of the accident and its sequelae; the patient with conversion disorder is more likely to give an account that contains gaps, inaccuracies (Huddleston 1932) and vague generalized complaints (Chaney et al. 1984).

MALINGERED AFFECTIVE DISORDERS

552 Special clinical issues in forensic psychiatry

MMPI-2 successfully classified 88 per cent of mental health professionals seeking to fake depression compared to genuinely depressed patients, the FB scale being the most useful (Bagby et al. 2000). Although malingerers of depression will claim depressed mood, they are less likely to report subtle symptoms such as poor concentration, early morning awakening, diurnal variations in mood, psychomotor retardation, or loss of interest in sex. Malingerers may report difficulty falling asleep, while sleep disturbances in genuine depression more typically involve multiple awakenings, especially in the early morning hours. Malingerers rarely present the furrowed brow and restricted range of affect seen in severe depression. Malingering of mania is unusual. Litigants may claim a history of manic symptoms, but it is difficult to sustain the flight of ideas, pressured speech, grandiose mood, increased psychomotor activity, and decreased need for sleep seen in true mania. Inpatient evaluation of suspected malingerers will usually reveal that these symptoms are absent, or present only during periods of face-to-face evaluation. The person most likely to succeed with malingered mania is the genuinely bipolar defendant who falsely claims he or she was manic at the time of the act. Close scrutiny of witness and police accounts is critical in these cases.

CONCLUSION The detection of malingered mental illness is sometimes quite difficult. The decision that an individual is malingering is made by assembling all of the clues from a thorough evaluation of a litigant’s past and current functioning with corroboration from clinical records and other people. Clinicians must be thoroughly grounded in the phenomenology of the mental disease being simulated. Although the identification of a malingerer may be viewed as a distasteful chore, it is critical in forensic assessments. Indeed, clinicians bear a heavy responsibility to assist society in differentiating true disease from malingered madness.

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stress disorder. American Journal of Psychiatry 146, 697–707. Rutherford, W.H., Merrett, J.D., McDonald, J.R. 1977. Sequelae of concussion caused by minor head injuries. Lancet i, 1–4. Sachs, M.H., Carpenter, W.T., Strauss, J.S. 1974. Recovery from delusions. Archives of General Psychiatry 30, 117–20. Sadoff, R.L. 1978: Personal Injury and the Psychiatrist. Weekly Psychiatry Series. Princeton, NJ: Biomedia, Lesson 38. Schretlen, D.J. 1988. The use of psychological tests to identify malingered symptoms of mental disorder. Clinical Psychology Review 8, 451–76. Sherman, M., Trief, P., Sprafkin, Q.R. 1975. Impression management in the psychiatric interview: quality, style and individual differences. Journal of Consulting and Clinical Psychology 43, 867–71. Small, I.F., Small, J.G., Andersen, J.M. 1966. Clinical characteristics of hallucinations of schizophrenia. Diseases of the Nervous System 27, 349–53. Smith, G.P., Borum, R., Schinks, J.A. 1993. Rule-out and rule-in scales for the M test for malingering. Bulletin of the American Academy of Psychiatry and the Law 21, 107–10. Soniat, T.L. 1960. The problem of ‘compensation neurosis’. South Medical Journal 53, 365–8. Spitzer, M. 1992. The phenomenology of delusions. Psychiatric Annals 22, 252–9. Thompson, J.S., Stuart, G.L., Holden, C.E. 1992. Command hallucinations and legal insanity. Forensic Reports 5, 29–42. Trimble, M.R. 1981: Post-Traumatic Neurosis from Railway Spine to the Whiplash. New York: John Wiley & Sons. van der Kolk, B., Blitz, R., Burr, W., Sherry, S., Hartmann, E. 1984. Nightmares and trauma: a comparison of nightmares after combat with lifelong nightmares in veterans. American Journal of Psychiatry 141, 187–90. Wachpress, M., Berenberg, A.N., Jacobson, A. 1953. Simulation of psychosis. Psychiatric Quarterly 27, 463–73. Wrightson, P., Gronwall, D. 1980. Time off work and symptoms after minor head injury. Injury 12, 445–54. Youngjohn, J.R., Burrows, L., Erdal, K. 1995. Brain damage or compensation neurosis? The controversial post-concussion syndrome. The Clinical Neuropsychologist 9, 112–23. Ziskin, J., Faust, D. 1995: Coping with Psychiatric and Psychological Testimony, Volume I, II, and III, 5th edition. California: Law and Psychology Press.

56 Antisocial personality, psychopathy and forensic psychiatry WILLIAM H. REID AND MARIA S. RUIZ-SWEENEY

In this chapter, the diagnosis, assessment, forensic relevance, and treatment of antisocial personality disorder (APD) and its more severe subtype, psychopathy, will be discussed. In previous reviews, these two terms have, in general, been equated, but in the present chapter they will clearly be separated, with APD being referred to in terms of its DSM-IV-TR criteria (American Psychiatric Association 2000), while ‘psychopathy’ is reserved for persons who meet other, specific criteria described by Hare and others (Hare, Hart, and Harpur 1991; Hare 1999). The terms ‘antisocial syndromes’ or ‘antisocial disorders’ will be used to refer to a broad range of antisocial behaviors and conditions not limited to APD or psychopathy. Appropriate assessment and accurate diagnosis are the keys to understanding (and managing when possible) the syndromes discussed below. The relevant issues, which are deceptively simple, include appreciating what is and is not APD or psychopathy, the interface of APD and psychopathy with various forensic topics (e.g., violence, criminality, recidivism, substance abuse, sex offenses), and the erroneous assumption that those with these disorders respond to the same motivators and stimuli as the rest of society.

FORENSIC EVALUATION AND DIAGNOSIS Although not always in concert with DSM diagnostic criteria, Cleckley’s The Mask of Sanity (Cleckley 1976) remains a brilliant clinical and practical description of psychopathic lives and behaviors. Other authors also contributed during the 1970s and 1980s (e.g., Hare and Cox 1978; Reid, H.C. 1978; Reid, W.H. 1978), adding to important earlier psychodynamic studies (e.g., Karpman 1948); however, the next excellent summary of the meaning and depth of this disorder is found in Meloy’s The

Psychopathic Mind (1988). In the early 1980s, the APA diagnostic criteria strayed into broader, more behaviorally based criteria which are reflected in DSM-IV (see below).

Diagnosis The DSM-IV criteria for APD are summarized in Table 56.1. Some authors attack the diagnostic validity and reliability of APD in DSM-IV. Although DSM-IV reliability is better than that of previous DSM editions, Cunningham Table 56.1 Antisocial personality disorder: a summary of DSM-IV criteria A A pervasive pattern of disregard for, and violation of the rights of, others occurring since age 15 years, as indicated by three or more of the following: (1) repeated unlawful behaviors, as indicated by repeatedly performing acts that are grounds for arrest; (2) deceitfulness, as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure; (3) impulsivity or failure to plan ahead; (4) irritability and aggressiveness, as indicated by repeated physical fights or assaults; (5) reckless disregard for safety of self or others; (6) consistent irresponsibility, as indicated by repeatedly inconsistent work behavior or failure to honor financial obligations; (7) lack of remorse, as indicated by indifference to or rationalizing hurting, mistreating, or stealing from others. B Age at least 18 years. C Evidence of a DSM-IV conduct disorder with onset before age 15 years. D The antisocial behavior is not exclusively during the course of schizophrenia or a manic episode.

556 Special clinical issues in forensic psychiatry

and Reidy (1998) note that its criteria largely neglect important interpersonal and affective issues (see below for comparisons with psychopathy), do not allow weighting of symptoms, create many combinations which can result in an APD diagnosis, and lack reliability in several studies. They also note that DSM-IV’s behavioral focus comes at the expense of understanding personality dynamics, widely viewed as the foundation of the personality disorder. In addition, DSM-IV does not adequately differentiate substance abuse and personality diagnoses, and the overlap artificially increases any association between the two. Several authors suggest APD subtypes of some forensic interest, though none has gained widespread acceptance. Lykken (1995), for example, suggested that aggressive, dyssocial, alienated, and common subtypes are related to underlying causes of the disorder (e.g., genetic predisposition, childhood trauma/neglect, neurological deficit, cultural background).

OVERDIAGNOSIS Perhaps the most common misunderstanding of these principles comes when professionals and laypersons alike mislabel people with chronic antisocial behavior. The DSM and the International Classification of Diseases (ICD) clearly distinguish even chronic or heinous behavior alone from APD (American Psychiatric Association 2000). Overdiagnosis serves neither courts nor evaluees, and hampers fair handling of cases as well as treatment planning for patients.

ANTISOCIAL PERSONALITY AND PSYCHOPATHY Some generally accepted differences between DSM-IV APD and true psychopathy are detailed in Table 56.2.

CHILDREN AND ADOLESCENTS Although childhood antisocial behavior and adult APD are correlated, one cannot draw a line from every antisocial child to an adult with APD. Chronic antisocial behavior in children and adolescents should be taken seriously, and sometimes can reasonably be predicted to continue into later life, though one should not diagnose APD or psychopathy until symptoms and signs are evident in adulthood. Similarly (but less reliably), several studies have

examined statistical links between childhood attention deficit hyperactivity disorder (ADHD) and chronic adult antisocial behavior; however, prospective predictability is poor. It is difficult to predict the extent of future antisocial behavior from childhood findings, and the children destined to have the worst social outcomes are very difficult to identify (Klein and Mannuzza 1991; Langbehn et al. 1998; Robins and Price 1991).

Assessment HISTORY The primary hallmarks of APD are more clearly found in the history than in interview or physical examination. Corroboration of the history is very important, especially if it verifies absence of antisocial behavior or suggests rationalizations for apparently antisocial acts. The history should come from as many other sources as feasible (e.g., family and friends, victim and witness reports, law enforcement documents, court and institutional records, school and employment records).

INTERVIEWS General forensic interview technique is addressed elsewhere in this book. The examiner/interviewer should give more time to forensic interviews than to many kinds of non-forensic assessments. The evaluee routinely has an interest in the outcome of the evaluation, and is usually quite capable of misrepresenting his history and mental status. We suggest at least 3 hours (but often more), spread over at least two sessions. This allows some time to become familiar with the evaluee’s style, develop whatever relationship is possible in an effort to see through the superficial presentation, and listen for inconsistencies. If one must opine without appropriately examining the evaluee, then care must be taken not to overstep the bounds of validity and ethics. Suitable disclaimers about lack of examination (or evaluation limitations) and the potential effect on one’s opinions should be supplied in any report or testimony. Antisocial evaluees often downplay the parts of their histories that they believe incriminate them, whether with lies, rationalizations, or subtle choices of words. Discounting the effects of their acts, blaming others, and

Table 56.2 Antisocial personality disorder (APD) versus psychopathy APD (DSM-IV)

Psychopathy (Cleckley, Hare, etc.)

Broader, more inclusive

Narrower, more severe, more likely to be reflected in criminality (especially Hare/PCL) Personality deficit approach Largely based on personality dynamics (and perhaps brain deficit), with a callous, remorseless style of relating to others Includes many characteristics of DSM narcissistic, histrionic, paranoid, and borderline syndromes

Phenomenologic approach Largely based on visible consequences of unsocialized behavior (‘conduct’) Focuses on antisocial issues and behaviors

Antisocial personality, psychopathy and forensic psychiatry 557

other ways of avoiding responsibility are common. Sometimes the lies are obvious and immature [cf., ‘pseudologia fantastica’ (Cleckley 1976) or Talley’s ‘puerile’ character (Talley 1978)]. The following example is from a defendant accused (later convicted) of robbery and murder to avoid prosecution (i.e., eliminate the witness). The defendant has just learned that his victim was pregnant: I didn’t kill her. When I left the house, she was alive. I didn’t hit her or nothin’. I put a sheet over her face so she couldn’t identify me. Why would I need to kill her if she couldn’t identify me? That doesn’t make any sense, does it? I have a theory. Most murders are committed by victims (sic) who know the victim, right? I didn’t know her, so that makes me a lot less likely than her boyfriend or somebody. He knew she’d got herself pregnant, not me. When you think about it, there’s nothing they’re accusing me of that he couldn’t have done himself. And he had a motive, Doc. I didn’t have any motive.

Antisocial evaluees often have a friendly, even charming demeanor which can disarm the interviewer and interfere with objectivity. One such approach is to gloss over important topics with vague or incomplete answers and a dismissive smile. Another is to make the evaluator feel silly about asking certain questions, as if the questions are so obvious or unimportant that a ‘good’ interviewer would not bother with them, or would already know the answer. Other evaluees are sometimes threatening or frightening, tempting uncomfortable evaluators to gloss over important questions, skip details, and shorten interviews. Each of these styles tends to shift control of the interview from the interviewer to the evaluee, and decrease the amount of information elicited. Some examinations contain an element of danger. We suggest being certain that criminal evaluations, particularly, take place in safe, secure environments. All clinicians, not just female or inexperienced ones, should pay close attention to safety.

GENERAL MEDICAL WORK-UP Subtle, but potentially important, brain and brain chemistry abnormalities have been found in some antisocial syndromes, including APD and psychopathy, but these have been difficult to replicate and have not been very useful in day-to-day forensic settings. The search for reliable markers of psychopathy has been disappointing, with findings of research interest but little practical use thus far in clinical or forensic diagnosis. Routine neurological consultation in the absence of a suggestive history is rarely fruitful. When it is done, one should try to consult a forensically experienced behavioral neurologist rather than a solely clinical one. Most positive findings tend to support diagnoses other than APD, and may or may not be useful in the forensic matter. One routinely looks for the effects of drugs or other substances, systemic illness, congenital or developmental conditions, and sequelae of (especially head) trauma.

Stalenheim, von Knorring, and Wide (1998) replicated limited correlation between thyroid hormone markers [e.g., high tri-iodothyronine (T3)] and some kinds of criminals, including those with APD. Free thyroxin, particularly, was associated with psychopathy in a forensic population. Testosterone, some other steroids, and low platelet monoamine oxidase levels are correlated with aggression and impulsive violence (Stalenheim et al. 1998), but specific association with APD and psychopathy is not clear, and no causative influence in the formation or maintenance of the personality disorder per se is implied. Raine et al. (2000) commented on the statistical association between APD and taller subjects, those with (an average of 11 per cent) less prefrontal gray (but not white) matter, electrodermal deficit and stress-related cardiovascular reactions. The study focused on magnetic resonance imaging (MRI) measures of brain matter volume. The authors note that causality was not demonstrated, and the findings should not be used to predict APD.

PSYCHOLOGICAL TESTING Common objective personality inventories [such as the Minnesota Multiphasic Personality Inventory (MMPI-2)] are often useful to reveal antisocial traits and styles, but should not be the foundation for an APD diagnosis. Carl Gacono (Gacono and Meloy 1994; Gacono et al. 2001) has written extensively about using the Rorschach to assess antisocial traits, but cautions that experience with severe antisocial syndromes and with the Hare Psychopathy Checklist (PCL; Hare 1991; Bodholdt, Richards, and Gacono 2000) is important in evaluating the results. The Hare Psychopathy Checklist is highly correlated with criminal recidivism and treatment failure. Gacono and others suggest that some patients who meet DSM criteria for APD may be amenable to treatment if their PCL scores are fairly low (Cunningham and Reidy 1998). PCL scores above about 25 are more ominous with respect to treatment or recidivism (Rice, Harris, and Cormier 1992). Neuropsychological testing may suggest noncharacterologic sources for antisocial behavior, but one must remember that careful testing uncovers some nuance of abnormality in a great many subjects. The presence of an abnormality may or may not imply by itself that the deficit is significant, or that it is convincingly related to specific antisocial behaviors. A 23-year-old man with a long background of antisocial traits and substance abuse was convicted of capital murder. In the sentencing phase of the trial, the prosecution cited many criteria for antisocial personality and a history of escalating ‘senseless’ violence. Antisocial personality, they said, was not a ‘mitigating’ mental illness, and indicated that the defendant’s danger to others was completely voluntary and likely to continue indefinitely. The defense did not challenge the prosecution’s allegations of dangerousness, but introduced strong

558 Special clinical issues in forensic psychiatry neuropsychological evidence of frontal brain damage from early inhalant abuse (solvents and spray paint). The damage was convincingly associated with the murder, through personality change and decreased impulse control. Although not exculpating, this mitigating factor cast doubt on the prosecution’s allegation of antisocial personality and presented an ‘illness’ (clearly visible brain damage) for the jury to consider. The defendant was spared the death penalty, and later juror interviews indicated that the strong evidence of ‘real brain damage’ was important in their decision.

Forensically experienced psychologists and neuropsychologists should perform, or supervise, the testing. Instruments validated solely on non-forensic populations or interpreted based on non-forensic norms, should not be relied upon for diagnosis or program placement of severely antisocial persons. More detailed discussion of forensic psychological testing is found elsewhere in this book.

MALINGERING Some types of testing can address the probability of malingering, common in APD and psychopathy. Well-validated tests for specific types of malingering are available for some kinds of presentations; others do not lend themselves to a psychometric or actuarial approach. Good corroboration by outside information sources remains a mainstay of establishing the truth. Some psychological tests, such as the MMPI-2, control somewhat for malingering through their validity scales. Others rely on subtest integrity (cf., most neuropsychological batteries). Malingered brain injury is often reliably spotted by simple actuarially based tests such as the Portland Digit Recognition Test (PDRT; Pankratz and Binder 1997) or Pritchard tests (1998). The best validated test for malingered psychosis is Rogers’ Structured Interview of Reported Symptoms (SIRS; Rogers 1997). Without well-validated tests, even experienced interviewers are not particularly good at differentiating truth from dissimulation in fairly intelligent antisocial evaluees. Commonly relied-upon signs such as eye contact, blink rates, and length and detail of answers are myth for the most part. Hypnosis should not be used to uncover malingering (or, except in extraordinary circumstances, with highly competent investigators, to probe the memories of corroborating witnesses); it can produce very misleading findings and often alters memory and credibility.

FORENSIC RELEVANCE OF ANTISOCIAL PERSONALITY Behavior and legal rules Forensic relevance is related more to social function, statute, and legal rules than to diagnosis. Very few mental

disorders or defects are always or continuously exculpating or disabling. Legal terminology and purposes often differ from, and occasionally even contradict, psychiatric ones.

General criminality Why is there such a common association between APD and criminality? First, of course, many behaviors associated with indiscriminate seeking of pleasure and stimulation are illegal. Those with APD are more likely than the general population to disregard legality when pursuing them. But there are also other reasons. The personal qualities that lead a person to brush aside the concept of illegality can also keep him or her from giving proper regard to the consequences of his/her actions, including those that increase the chances of getting caught. In addition, both mental health professionals and laypersons tend to use criminal behavior per se as a definition of APD. Not all criminals, however – even chronic ones – have APD. Several studies indicate that 50–80 per cent of male prison inmates qualify for a diagnosis of APD (Widiger and Corbitt 1995), while only about one-third meet PCL-R criteria for psychopathy (Meloy 1988). About 11 per cent of female felons in North Carolina were found to have APD (Jordan et al. 1996); this group was demographically different from male inmates of the same prison system, with only 11 per cent of the women having been incarcerated for a violent offense. It is more difficult to ascertain the proportionate number of crimes committed by those groups, compared to all crimes. Are persons with APD or psychopathy caught less often, for example, which would make the inmate percentage an underestimate of overall criminal impact? For those who are caught and convicted, different crimes have differing proportions of APD/psychopathy involvement. Many kinds of murder, for example, rarely involve these diagnoses (but others do). Several generally non-violent crimes, such as forgery and confidence games, regularly involve them (but others, such as incest, do not). Some crimes and approximate proportions of convicted defendants who meet APD criteria are summarized in Table 56.3. It is important to note the potential for variation among studies. Table 56.3 should be interpreted with caution, since the various studies used different methodologies and different prison populations; they are limited to people caught and convicted; and different lengths of sentence may skew the results of cross-sectional studies. The converse query – what portion of people with APD and psychopathy actually commit crimes? – is arguably more relevant, but more difficult to answer. It is clear that not all those with APD are criminals, but it is difficult to refer to percentages or large groups of examples, since these people rarely come to psychiatric or psychological attention except in criminally related situations. Robins,

Antisocial personality, psychopathy and forensic psychiatry 559 Table 56.3 Crime and approximate proportion of defendants with antisocial personality disorder (APD) Crime

Proportion with APD* (%)

Comment

Reference(s)

Arson, 1st offense Arson+violent history Arson, non-violent history Incest Sexual homicide Sex offense (generic, serious, non-homicide) Sex offense (generic, serious, non-homicide)

2 8 14 0 35 17

– – – – – Few/no incest

Repo et al. 1997 (Finland) Repo et al. 1997 Repo et al. 1997 Firestone et al. 1998 (Canada) Firestone et al. 1998 Curtin and Niveau 1998 (Swiss)

72

DSM APD; paraphilia same as non-paraphilia

McElroy et al. 1999

* Proportions vary among studies, are approximate, and may not distinguish between APD and psychopathy.

Tipp, and Przybeck (1991) quoted data from the NIMH Epidemiologic Catchment Area study that found no significant arrest record for 53 per cent of community residents who met DSM-III-R criteria for APD.

defendant’s fate. This is particularly true in capital sentencing, in which many states require juries to consider violence potential before sentencing defendants to death.

Criminality, APD, and mental retardation Criminal sentencing, recidivism, and the death penalty APD and psychopathic offenders are associated with far more criminal recidivism (and in some groups violent recidivism) than other offender groups (Cunningham and Reidy 1998; Hare 1999; Hemphill, Hare, and Wong 1998; Hill, Rogers, and Bickford 1996), although studies of psychopathy and recidivism in females, children, and some ethnic minorities are limited. Psychopathy, as defined or suggested by the PCL-R, predicts even higher rates of recidivism, violent recidivism, failure to complete parole, and the like (Serin and Amos 1995; Salekin, Rogers, and Sewell 1996; Serin 1996). Part of the increase is simply due to including repeated illegal acts in the definition of APD. The reasoning is not entirely circular, however, since people with APD actually choose to commit the acts, seek the stimulation associated with them, do not delay the gratification presumed to occur with them, and lack some of the judgment and allowance for future consequences that prevents others from committing them. The presence of studies indicating higher rates of recidivism for APD and psychopathy suggests that courts should sentence criminals accordingly (cf., Hill, Rogers, and Bickford 1996 on psychopathy). The diagnosis should be made carefully, however, and the role of the personality disorder in the crime should be considered (i.e., whether or not some other, perhaps mitigating, factor was involved). Although research supports the validity of the PCL-R for assessing post-release criminal and violent recidivism in many populations, relying on only one test to demonstrate increased risk is unwise. It would seen more prudent to use a negative PCL-R result to mitigate against psychopathy (and its attendant potential for violence and recidivism) than to use a positive one to seal a

The combination of APD and low intelligence is associated with increased visible criminal behavior. This is probably due to a combination of the APD, impaired intellectual judgment, the relative ease with which intellectually impaired criminals are caught and convicted, and their relatively decreased access to effective defense counsel. In spite of some older opinions to the contrary (Heilbrun 1990), the authors believe the combination of APD and intellectual deficit per se, rarely associated with serious violence, should not be assumed to predict future dangerousness in the absence of other factors.

Sex offenses It is important to differentiate APD and psychopathy from the paraphilias and specifically sexual offenses. Some sex offenders (more violent ones than non-violent ones) meet DSM criteria for APD, but there is little evidence that APD or psychopathy per se is routinely associated with sex offenses per se. The somewhat archaic term ‘sexual psychopath,’ which is now becoming associated with sexual predator laws, has little psychiatric meaning. Certainly there are unfeeling, sadistic, and/or predatory people who chronically and unrelentingly pursue paraphilic careers, but they often do not meet APD criteria (and rarely those of APD alone). Their different disorders, criminal careers, behaviors, and responses to certain treatment modalities make it important that clinicians not mistake their primary problem for APD. When APD and sex offenses are combined, the offenders’ response to treatment or rehabilitation is generally poorer than the response by primary sex offenders (Abel et al. 1988). Rape is often a non-paraphilic crime. Whether its perpetrators are more often, or less often, psychopathic or

560 Special clinical issues in forensic psychiatry

APD is a matter for conjecture. However, the impulsiveness of gratification, poor judgment, and lack of caring for the victim characteristic of APD all suggest that those with APD or psychopathy will commit a disproportionate number of rapes.

In criminal law, no U.S. jurisdiction accepts antisocial personality alone as a limiting factor in a defendant’s ability to form intent or take responsibility for his or her actions. Although psychopaths and people with APD are ‘abnormal,’ defense arguments that they cannot control their behavior are almost always futile. Cases in which heinous behaviors have been found to be mitigated by the defendant’s mental state tend to contain strong evidence of Axis 1 and/or general medical disorders (e.g., psychosis, morbid depression, dementia, intoxication), or mental retardation.

populations suggest that substance abuse alone is poorly correlated with the core personality features of psychopathy (Smith and Newman 1990), and is only slightly more common among inmates with APD than among those with other diagnoses (Chiles et al. 1990). Antisocial traits have predictive value for histories of substance abuse, but do not reliably predict most forms of addiction, in our view. Similarly, the traits associated with substance abuse do not confer APD on substance abusers. Such an argument would imply that APD can be acquired through external influences (such as drug abuse or social environment) in late adolescence or adulthood, which is not the case. APD and psychopathy have their roots in complex brain and environmental conditions early in life. Substance abuse, like many other things, may cause one to behave antisocially, but it does not give one a personality disorder.

Violence and sadism

Civil cases

For most people with APD who do not meet criteria for psychopathy, violence arises primarily from self-serving behavior and disregard for others, and not usually because of specific pleasure in hurting them. Violence is still common, however. Aggression and danger may be stimulating and/or an uncaring means to an end; they do not consider others’ feelings or (often) the consequences of their acts. Their reasons for violence, sexual assault, or placing others at risk, however, are usually secondary, and different from those of primarily predatory, paraphilic, or explosive persons. This fact is important when a forensic clinician is asked to try to predict future behavior, assess ability to form intent, assess ability to control one’s actions, or discuss treatment and potential treatment response. Persons with many indices of psychopathy (such as high PCL-R or PCL-SV scores) have a higher probability of violence (Serin and Amos 1995; Salekin, Rogers, and Kewell 1996; Serin 1996; Hare 1999), often ‘instrumental’ (purposeful) rather than reactive or emotional (Cornell et al. 1996). Psychopathy is often seen in people with sadistic characteristics and violent or sadistic sexual offenders (Brown and Forth 1997; Stone 1998; Hare 1999). The converse (i.e., the rate of sadism in psychopaths) is more difficult to estimate.

The association between APD and poor impulse control is frequently used in civil cases (rarely in criminal matters) to explain, or justify, such things as substance abuse, gambling, or violence. In our view, issues such as compulsive gambling or so-called ‘sex addiction’ should be seen as separate from APD. There is rarely any question about an APD evaluee’s legal capacity to perform ordinary social functions such as contracting, making financial or business decisions, or keeping promises, provided that he or she chooses to do so. The forensic professional should help the attorney or court separate behavior from personality disorder or mental illness (the latter as defined by the relevant jurisdiction). In most cases, antisocial behavior in a person with APD should not be construed as stemming from a mental illness or incapacity. To view him or her otherwise is clinically and forensically inaccurate, and serves neither the individual nor the court.

Insanity and diminished capacity defenses

Substance abuse APD and substance abuse populations overlap significantly; however, they should not be assumed to be synonymous nor generally causally related except insofar as antisocial traits are consistent with trying and using intoxicating substances, and the acts of obtaining and using them may be illegal in themselves (and thus one of the generic criteria for APD). Several studies of offender

TREATMENT AND OUTCOME APD is very difficult to treat, and the prognosis with almost every approach is poor. In addition, the treatments that occasionally do work – such as highly specialized residential behavioral and psychotherapeutic programs that control every aspect of the patient’s life for a long and indefinite period – are so expensive and time-consuming that they are rarely employed. There is a modicum of good news, however, since most antisocial behavior is not due to APD, and patients who are mentally ill and commit antisocial acts often respond to appropriate treatment. After careful work-up, many chronic, seemingly characterologically antisocial adults and (especially) juveniles can be placed in

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programs tailored to their needs – assuming that the programs are available – with some hope of success. The range of disorders and treatments is beyond the purview of this chapter, but well described in recent articles and texts (e.g., Dolan 1998; Hansen 1998; von Knorring and Ekselius 1998; Ashford, Sales, and LeCroy 2001; Becker and Johnson 2001; Day and Berney 2001; Edens and Otto 2001; Gacono et al. 2001; McNeece, Springer, and Arnold 2001; Rutherford, Griller-Clark, and Anderson 2001). The widespread belief that those with APD and psychopathy ‘burn out’ as they pass middle age is probably a myth. Folk wisdom implies that they slow down, cannot muster the energy to ‘hustle’ anymore, and often suffer from years of injury or substance abuse. Careful studies, however, indicate that although antisocial activity may change with age, it does so in complex ways, and rarely ceases. The prevalence of violence in APD and psychopathy probably decreases after age 40 years, but many other antisocial behaviors (including criminal ones, the most studied antisocial correlates) often continue into the seventh or eighth decade (Arboleda-Florez and Holley 1991).

CONCLUSION It is important to separate persons with psychopathy and/or APD from other people who commit antisocial acts. One should understand that even chronic criminality is not synonymous with APD nor with psychopathy, that many kinds of crimes have limited (sometimes almost no) relationship to APD, that the sources of most antisocial and counter-social behaviors (e.g., violence, substance abuse) are multi-determined, and that some people with APD are not criminals at all. Forensic clinicians who explain appropriate diagnosis, differential diagnosis, and potential relationships between diagnosis and behavior can help courts to make difficult legal decisions. When clinical issues arise, they can increase the probability of appropriate treatment or management, often making the difference between potential effectiveness and therapeutic frustration. Well-meaning people who seek the ‘answer’ to psychopathy and APD often make an important, but defective, assumption that people with these disorders respond to the same motivators and stimuli as the rest of society, that they are amenable to the same logic that guides the behavior of ordinary people, or that their antisocial characteristics are merely extensions of normal behavior (perhaps brought out by environmental factors). We strongly disagree, and would point out basic and substantial differences between psychopaths and ‘the rest of us’ that have little to do with environment or opportunity. It is foolhardy to assume otherwise. Perhaps the psychopath’s most severe damage to society comes from his twisting the very things that civilize us – trust, empathy, appropriate guilt, fairness, civil rights, concern for the less fortunate, appreciation

of the greater good, and the use of structure and law to prevent chaos – into things to be invoked only when they benefit him or her, and otherwise to be ignored (Reid 1998).

REFERENCES Abel, G.W., Mittelman, M., Becker, J.V., Rathner, J., et al. 1988. Predicting child molesters’ response to treatment. Annals of the New York Academy of Sciences 528, 223–34. American Psychiatric Association. 2000: Diagnostic and Statistical Manual of Mental Disorders, 4th edition text revision. Washington, DC, 701–6. Arboleda-Florez, J., Holley, H.L. 1991. Antisocial burnout: an exploratory study. Bulletin of the American Academy of Psychiatry and the Law 19, 173–83. Ashford, J.B., Sales, B.D., LeCroy, C.W. 2001: Aftercare and recidivism prevention. In Ashford, J.B., Sales, B.D., Reid, W.H. (eds), Treating Adult and Juvenile Offenders With Special Needs. Washington, DC: APA Press, 373–400. Becker, J.V., Johnson, B.R. 2001: Treating juvenile sex offenders. In Ashford, J.B., Sales, B.D., Reid, W.H. (eds), Treating Adult and Juvenile Offenders With Special Needs. Washington, DC: APA Press, 273–90. Bodholdt, R.H., Richards, H.R., Gacono, C.B. 2000: Assessing psychopathy in adults: the Psychopathy Checklist-Revised and Screening version. In Gacono, C.B. (ed.), The Clinical and Forensic Assessment of Psychopathy: A Practitioner’s Guide. Mahwah, NJ: Lawrence Erlbaum, 55–86. Brown, S.L., Forth, A.E. 1997. Psychopathy and sexual assault: static risk factors, emotional precursors, and rapist subtypes. Journal of Consulting and Clinical Psychology 65, 848–57. Chiles, J.A., von Cleve, E., Jemelka, R.P., Trupin, E.W. 1990. Substance abuse and psychiatric disorders in prison inmates. Hospital and Community Psychiatry 41, 1132–4. Cleckley, H. 1976: The Mask of Sanity, 5th edition. St. Louis: C.V. Mosby. Cornell, D.G., Warren, J., Hawk, G., Stafford, E., Oram, G., Pine, D. 1996. Psychopathy in instrumental and reactive violent offenders. Journal of Consulting and Clinical Psychology 64, 783–90. Cunningham, M.D., Reidy, T.J. 1998. Antisocial personality disorder and psychopathy: diagnostic dilemmas in classifying patterns of antisocial behavior in sentencing evaluations. Behavioral Sciences and the Law 16, 333–51. Curtin, F., Niveau, G. 1998. Psychological profile of Swiss sexual offenders. Journal of Forensic Sciences 43, 755–9. Day, K., Berney, T. 2001: Treatment and care for offenders with mental retardation. In Ashford, J.B.,

562 Special clinical issues in forensic psychiatry Sales, B.D., Reid, W.H. (eds), Treating Adult and Juvenile Offenders With Special Needs. Washington, DC: APA Press, 199–220. Dolan, B. 1998: Therapeutic community treatment for severe personality disorders. In Millon, T., Simonsen, E., Birket-Smith, M., Davis, R.D. (eds), Psychopathy: Antisocial, Criminal, and Violent Behavior. New York: Guilford Press, 407–30. Edens, J.F., Otto, R.K. 2001: Release decision making and planning. In Ashford, J.B., Sales, B.D., Reid, W.H. (eds), Treating Adult and Juvenile Offenders With Special Needs. Washington, DC: APA Press, 335–72. Firestone, P., Bradford, J.M., Greenberg, D.M., Larose, M.R. 1998. Homicidal sex offenders: psychological, phallometric, and diagnostic features. Journal of the American Academy of Psychiatry and the Law 26, 537–52. Gacono, C.B., Meloy, J.R. 1994: The Rorschach Assessment of Aggressive and Psychopathic Personalities. Hillsdale, NJ: Lawrence Erlbaum. Gacono, C.B., Nieberding, R.J., Owen, A., Rubel, J., Bodholdt, R.H. 2001: Treating conduct disorder, antisocial, and psychopathic personalities. In Ashford, J.B., Sales, B.D., Reid, W.H. (eds), Treating Adult and Juvenile Offenders With Special Needs. Washington, DC: APA Press, 97–129. Hansen, H. 1998: Treating the ‘untreatable’ in Denmark: past and present. In Millon, T., Simonsen, E., Birket-Smith, M., Davis, R.D. (eds), Psychopathy: Antisocial, Criminal, and Violent Behavior. New York: Guilford Press, 458–62. Hare, R.D. 1991: The Hare Psychopathy Checklist, Revised. Toronto, ON: Multi-Health Systems. Hare, R.D. 1999. Psychopathy as a risk factor for violence. Psychiatric Quarterly 70, 181–97. Hare, R.D., Cox, D.N. 1978: Psychophysiological research on psychopathy. In Reid, W.H. (ed.), The Psychopath: A Comprehensive Study of Antisocial Disorders and Behaviors. New York: Brunner/Mazel, 209–22. Hare, R.D., Hart, S.D., Harpur, T.J. 1991. Psychopathy and the DSM-IV criteria for antisocial personality disorder. Journal of Abnormal Psychology 100, 391–8. Heilbrun, A.B. 1990. The measurement of criminal dangerousness as a personality construct: further validation of a research index. Journal of Personality Assessment 54, 141–8. Hemphill, J.F., Hare, R.D., Wong, S. 1998. Psychopathy and recidivism: a review. Legal and Criminological Psychology 3, 141–72. Hill, C.D., Rogers, R., Bickford, M.E. 1996. Predicting aggressive and socially disruptive behavior in a maximum security forensic psychiatric hospital. Journal of Forensic Sciences 41, 56–9. Jordan, B.K., Schlenger, W.E., Fairbank, J.A., Caddell, J.M. 1996. Prevalence of psychiatric disorders among

incarcerated women: II. Convicted felons entering prison. Archives of General Psychiatry 53, 513–19. Karpman, B. 1948. The myth of the psychopathic personality. American Journal of Psychotherapy 104, 523. Klein, R.G., Mannuzza, S. 1991. Long term outcome of hyperactive children: a review. Special Section: Longitudinal Research. Journal of the American Academy of Child and Adolescent Psychiatry 30, 383–7. Langbehn, D.R., Cadoret, R.J., Yates, W.R., Troughton, E.P., Stewart, M.A. 1998. Distinct contributions of conduct and oppositional defiant symptoms to adult antisocial behavior: evidence from an adoption study. Archives of General Psychiatry 55, 821–9. Lykken, D.T. 1995: The Antisocial Personalities. Hillsdale, NJ: Erlbaum. McElroy, S.L., Soutullo, C.A., Taylor, P., Nelson, E.B., Beckman, D.A., Brusman, L.A., Ombaba, J.M., Strakowski, S.M., Keck, P.E. 1999. Psychiatric features of 36 men convicted of sexual offenses. Journal of Clinical Psychiatry 60, 414–20. McNeece, C.A., Springer, D.W., Arnold, E.M. 2001: Treating substance abuse disorders. In Ashford, J.B., Sales, B.D., Reid, W.H. (eds), Treating Adult and Juvenile Offenders With Special Needs. Washington, DC: APA Press, 131–70. Meloy, J.R. 1988: The Psychopathic Mind. Northvale, NJ: Jason Aronson. Pankratz, L., Binder, L.M. 1997: Malingering on intellectual and neuropsychological measures. In Rogers, R. (ed.), Clinical Assessment of Malingering and Deception. New York: Guilford Press, 223–36. Pritchard, D.A. 1998: Tests of Neuropsychological Malingering, Version 2.0. Boca Raton, FL: CRC Press (software and user’s manual). Raine, A., Lencz, T., Bihrle, S., LaCasse, L., Colletti, P. 2000. Reduced prefrontal gray matter volume and reduced autonomic activity in antisocial personality disorder. Archives of General Psychiatry 57, 119–27. Reid, H.C. 1978: The psychopath in rural areas: special considerations. In Reid, W.H. (ed.), The Psychopath: A Comprehensive Study of Antisocial Disorders and Behaviors. New York: Brunner/Mazel, 66–75. Reid, W.H. 1978. The sadness of the psychopath. American Journal of Psychotherapy 32, 496–509. Reid, W.H. 1998: Antisocial character and behavior: threats and solutions. In Millon, T., Simonsen, E., Birket-Smith, M., Davis, R.D. (eds), Psychopathy: Antisocial, Criminal, and Violent Behavior. New York: Guilford Press, 110–21. Repo, E., Virkkunen, M., Rawlings, R., Linnoila, M. 1997. Criminal and psychiatric histories of Finnish arsonists. Acta Psychiatrica Scandanavica 95, 318–23. Rice, M.E., Harris, G.T., Cormier, C.A. 1992. An evaluation of a maximum security therapeutic community for psychopaths and other mentally disordered offenders. Law and Human Behavior 16, 399–412.

Antisocial personality, psychopathy and forensic psychiatry 563 Robins, L.N., Price, R. 1991. Adult disorders predicted by childhood conduct problems: results from the NIMH Epidemiologic Catchment Area Project. Psychiatry 54, 116–42. Robins, L.N., Tipp, J., Przybeck, T. 1991: Antisocial personality. In Robins, L.N., Regier, D. (eds), Psychiatric Disorders in America. New York: Free Press, 258–80. Rogers, R. 1997: Current status of clinical methods. In Rogers, R. (ed.), Clinical Assessment of Malingering and Deception. New York: Guilford Press, 373–97. Rutherford, R.B., Griller-Clark, H.M., Anderson, C.W. 2001: Treating offenders with educational disabilities. In Ashford, J.B., Sales, B.D., Reid, W.H. (eds), Treating Adult and Juvenile Offenders With Special Needs. Washington, DC: APA Press, 221–45. Salekin, R.T., Rogers, R., Sewell, K.W. 1996. A review and meta-analysis of the Psychopathy Checklist and Psychopathy Checklist – Revised: predictive validity of dangerousness. Clinical Psychology: Science and Practice 3, 205–13. Serin, R.C. 1996. Violent recidivism in criminal psychopaths. Law and Human Behavior 20, 207–17. Serin, R.C., Amos, N.L. 1995. The role of psychopathy in the assessment of dangerousness. International Journal of Law and Psychiatry 18, 231–8. Smith, S.S., Newman, J.P. 1990. Alcohol and drug abuse-dependence disorders in psychopathic and

nonpsychopathic criminal offenders. Journal of Abnormal Psychology 99, 430–9. Stalenheim, E.G., von Knorring, L., Wide, L. 1998. Serum levels of thyroid hormones as biological markers in a Swedish forensic psychiatric population. Biological Psychiatry 43, 755–61. Stalenheim, E.G., Eriksson, E., von Knorring, L., Wide, L. 1998. Testosterone as a biological marker in psychopathy and alcoholism. Psychiatry Research 77, 79–88. Stone, M.H. 1998: Sadistic personality in murderers. In Millon, T., Simonsen, E., Birket-Smith, M., Davis, R.D. (eds), Psychopathy: Antisocial, Criminal, and Violent Behavior. New York: Guilford Press, 346–58. Talley, J.E. 1978: A Jungian viewpoint. In Reid, W.H. (ed.), The Psychopath: A Comprehensive Study of Antisocial Disorders and Behaviors. New York: Brunner/Mazel, 118–31. von Knorring, L., Ekselius, L. 1998: Psychopharmacological treatment and impulsivity. In Millon, T., Simonsen, E., Birket-Smith, M., Davis, R.D. (eds), Psychopathy: Antisocial, Criminal, and Violent Behavior. New York: Guilford Press, 359–71. Widiger, T.A., Corbitt, E. 1995: Antisocial personality disorder. In Livesley, W.J. (ed.), The DSM-IV Personality Disorders. New York: Guilford Press, 103–34.

57 Dangerousness GREGORY B. LEONG, J. ARTURO SILVA AND ROBERT WEINSTOCK

INTRODUCTION Psychiatrists and other mental health professionals are often asked to assess an individual’s dangerousness, whether in the context of a forensic or treatment relationship. Laws concerning dangerousness flow from the state’s police powers in an attempt to promote public safety. As a result of a myriad of laws, dangerousness evaluations can be encountered in a variety of clinical or legal situations. Of critical importance is the application of a legal dangerousness standard that preserves due process. First, what is dangerousness? A typical dictionary defines dangerousness as ‘full of danger or risk, causing danger, perilous, hazardous, unsafe’ (The Random House College Dictionary, New York 1973). In other words, dangerousness is the quantification of danger or its synonyms – hazard, peril, risk, or jeopardy. Dangerousness refers to a state marker that precedes the actualization of a harmful action. In other words, dangerousness can be conceptualized as the potential for harm or injury. However, potential is not always actualized, so only through the commission of a harmful act can an individual’s dangerousness be confirmed. Quantification of danger cannot simply be identified as a numerical value on a single axial scale, but involves several elements, including, but not limited to:

• • • •

the magnitude, imminence, type of potential harm; the capacity of an individual to carry out harmful behaviors; the likelihood that an individual will perpetrate the harmful behaviors; and identification of the likely recipients of the potential harm.

While ‘quantification’ of danger may imply a more ambitious endeavor than ‘assessment’ of danger, the comprehensive assessment of danger relies in part on mathematical underpinnings as discussed later in this chapter.

There are three basic types of potential harm not directed at the self: physical harm to others; physical harm to property; and psychological harm to others. Depending on the legal context, physical harm to animals might be subsumed under either physical harm to others or property. Although psychological harm has significance in cases involving tort claims involving mental injury, workers’ compensation, and disability, assessments of dangerousness almost always focus on an individual’s destructive potential to physically injure or harm others or damage property. In other words, the legal system generally requests measurement or quantification of potential harm from physical aggression and not verbal aggression alone. This legal emphasis on physical aggression has also driven clinical research and practice and forms this chapter’s primary focus on the assessment of dangerousness. Often embedded in the legal language are adjective modifiers preceding the word danger. For example, ‘substantial’ or ‘serious’ can precede the word danger in a specific law. In other words, the law appears to set a threshold at which a danger becomes legally relevant. However, statutes and case law often fail to specify criteria to define or clarify the adjectives preceding the word danger. Moreover, in cases in which a jury has to render a decision on whether an individual crosses a certain dangerousness threshold, little guidance is forthcoming from jury instructions. Rather, expert witness testimony about the quantification of danger can assume substantial importance to the legal decision-making process. On the other hand, a lack of rigorous definitions allows the legal decision maker a certain degree of flexibility.

COMMON CONTEXTS OF PSYCHIATRIC DANGEROUSNESS EVALUATIONS Civil commitment Exposure to the concept of dangerousness in the civil commitment process occurs early during medical training

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while the future physician rotates through the required medical school psychiatry clerkship. In psychiatric practice, the civil commitment process embodies the most common clinical application of the dangerousness concept. The law has legitimized the concept of dangerousness most prominently in civil commitment statutes. Although in O’Connor v. Donaldson (1975), many psychiatrists had hoped that the U.S. Supreme Court would legitimize the right to treatment for public sector psychiatric patients, it instead became a pivotal case in fostering the dangerousness criterion as the principal basis for involuntary commitment. About a quarter of a century ago, Alan Stone recommended replacing the dangerousness requirement with a need for treatment, a lack of capacity to consent to treatment, and the presence of a treatable condition (Stone 1976). This approach, known as the ‘thank you theory,’ has been universally ignored by all states. The law appears to be more interested in controlling dangerous individuals or dangerous behaviors than providing treatment for mental illness. Although all states recognize dangerousness to others as a criterion to initiate civil commitment, dangerousness to property alone can be a sufficient basis for involuntary commitment (see e.g., Revised Code of Washington section 71.05). In Addington v. Texas (1979), the U.S. Supreme Court set the minimum standard of proof required to maintain civil commitment at the clear and convincing level. However, states are permitted to utilize a higher level of proof. For example, in California, to make an initial application for emergency commitment, ‘probable cause,’ a standard of proof below preponderance of the evidence is used. However, for a judicial ruling granting a 180-day civil commitment as a ‘demonstrated’ danger to others (California Welfare and Institutions Code section 5300 et seq.) the standard of proof required is beyond a reasonable doubt. Notwithstanding the required legal burden of proof, clinical opinions are offered with reasonable medical probability (certainty).

Insanity acquittees Although a showing of dangerousness is not part of the M’Naghten or ALI criteria used to absolve a defendant of criminal responsibility, the dangerousness criterion plays a significant, if not defining, role in the post-trial disposition course for the insanity acquittees. The persistence of dangerousness is a necessary factor in the continuing hospitalization of insanity acquittees. For example, in California, insanity acquittees are not granted unconditional release unless they can show by a preponderance of the evidence that they are no longer a danger to the health and safety of others (California Penal Code section 1026.2). Attainment of restoration (recovery) of sanity by an insanity acquittee would thus appear to be difficult given that the statutorily required level of nondangerousness (‘no longer a danger’) appears unachievable

since everyone poses some, however minimal, potential to act harmfully toward others, unless in a coma or similar vegetative state. Although the length of an insanity commitment in some states such as Washington is absolute and unless at the time of maximum commitment, insanity acquittees meet the civil commitment criteria, they are discharged into the community. However, in states like California, insanity acquittees can remain indefinitely hospitalized beyond the time of the original insanity commitment, if they pose ‘substantial danger of physical harm to others’ (California Penal Code section 1026.5). The U.S. Supreme Court in Jones v. U.S. (1983) has upheld the continuing commitment of an insanity acquittee who remains mentally ill and dangerous. However, in the subsequent case of Foucha v. Louisiana (1992), the U.S. Supreme Court held that continuing an insanity commitment based solely on dangerousness resulting from an antisocial personality was not permissible.

Treatment refusal The U.S. Supreme Court utilized dangerousness as a necessary condition for involuntary psychiatric treatment in both pre-trial defendants and convicted felons. In Washington v. Harper (1990), the U.S. Supreme Court held that substantive due process was not violated when prisoners are involuntarily treated if they are dangerous to themselves or others and the treatment was in their medical interest. The Court ruled that an administrative review of the involuntary medication order was sufficient to meet procedural due process requirements. Although dangerousness posed by a pre-trial defendant has no imaginable bearing on an individual’s competency to stand trial, dangerousness can play a role in the restoration process after the defendant has been found not competent to proceed. The U.S. Supreme Court in Riggins v. Nevada (1992) has ruled against involuntary administration of antipsychotic medications during trial absent medical appropriateness and dangerousness. However, the subsequent D.C. Circuit Court of Appeals case of U.S. v. Weston (2001) may signal a shift in judicial thinking in which the prosecution’s interest in restoring a criminal defendant’s competency to stand trial takes precedence.

Violent offenders There are two broad categories of quasi-civil commitment of offenders: the violent sexual predator, and the violent mentally disordered. For the most part, Mentally Disordered Sexual Offender statutes disappeared by the mid-1980s. However, the new category of the Violent Sexual Predator assumed its place, beginning in Washington State in 1990 (see Revised Code of Washington section 71.09), allowing for possible

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indefinite commitment of certain individuals based on their propensity to commit acts of predatory sexual violence. The U.S. Supreme Court upheld the commitment of violent sexual predators in the case of Kansas v. Hendricks (1997). Despite considering Foucha v. Louisiana, the Supreme Court ruled that the commitment criteria consisting of a ‘mental abnormality’ and propensity to commit acts of sexual violence did not violate due process or ex post facto laws. In essence, the Supreme Court’s ruling permits indefinite commitment of some non-mentally disordered individuals based solely on dangerousness. Except for individuals classified as Violent Sexual Predators, since the U.S. Supreme Court decision in Baxstrom v. Herold (1966), states have generally relied upon the standard civil commitment process to involuntarily detain mentally disordered and potentially violent individuals upon release from state prison. However, since 1986, California law (California Penal Code section 2960 et seq.) has allowed detention in a psychiatric facility for certain mentally disordered felons who are adjudicated to be dangerous after expiration of their prison terms, even though they may not meet dangerousness criteria for involuntary hospitalization as applicable to the general population. A legal challenge to this Mentally Disordered Violent Offender commitment statute failed in People v. Gibson (1988). In fact, the same statutorily required level of danger used to retain insanity acquittees in California beyond their maximum commitment date, i.e., ‘substantial danger of physical harm to others’ is utilized for the violent mentally disordered felons for their post-sentence commitment.

Capital cases The United States Supreme Court in Jurek v. Texas (1976) has sanctioned the use of juries to decide on the issue of dangerousness in the sentencing phase of capital trials, arguably the most serious application of the determination of dangerousness. In a subsequent case, the Supreme Court ruled in Barefoot v. Estelle (1983) that an expert witness may offer an opinion about a defendant’s future dangerousness during the penalty phase of a capital case despite objections raised by the American Psychiatric Association as to the inaccuracy of such a forecast.

Tarasoff-type situations Beginning with the celebrated case of Tarasoff v. Regents of the University of California (1976) and subsequently followed by a flurry of judicial and legislative activity in other states (Felthous 1989; Felthous and Kachigian 2001), when treating mental health clinicians encounter potentially violent patients who pose a danger to third parties, a duty to warn and/or protect can arise. Ten years after

the 1976 Tarasoff decision enunciating the duty to protect, California enacted a statute that spelled out the duty and what steps a psychotherapist should take in order to be immunized against professional liability (California Civil Code section 43.92). Other states enacted similar statutes, but some other states such as Texas have rejected the Tarasoff reasoning (Thapar v. Zezulka 1999). In California, a psychotherapist’s duty to warn and/or protect an ‘identifiable’ third party arises when the psychotherapist’s patient poses a ‘serious’ threat of physical harm to the third party. California law thus infers that all psychotherapists should know how to assess what constitutes a ‘serious’ danger. Moreover, the question of what constitutes a ‘serious’ danger could conceivably be at issue in a subsequent tort claim involving professional negligence if a third party is harmed or in a breach of confidentiality allegation by the patient. California law gives no guidance as to what constitutes a ‘serious’ danger. Although Tarasoff-type dilemmas are generally thought of as occurring in general clinical practice, such situations may arise in the context of a forensic psychiatric evaluation and create complicated scenarios involving confidentiality and privilege that surround the legal context in which the evaluation occurs. In these cases, the assessment of dangerousness, and the subsequent actions taken, may differ from the usual response in the clinical context (Weinstock, Leong, and Silva 2001).

ACCURACY OF DANGEROUSNESS ASSESSMENTS A serendipitous naturalistic experiment After the U.S. Supreme Court ruling of Baxstrom v. Herold (1966), which required convicted felons be given a judicial hearing equivalent to that of a member of the general population to determine dangerousness and an ensuing civil commitment, the state of New York released 967 of these putatively dangerous mentally disordered prisoners into the community creating a naturalistic study of individuals opined to be dangerous. After a four-year follow-up period, about half of the released required psychiatric hospitalization, and less than 3 per cent were imprisoned or committed to a forensic hospital (Steadman and Keveles 1972; Steadman 1973). These findings suggest that while the released Baxstrom prisoners as a group had significant psychiatric morbidity, the false positive problem was substantial as reflected by about one-half of the prisoner group incorrectly forecasted to be dangerous (at least for the four-year period). However, these results probably make the assessment of dangerousness to appear excessively inaccurate, since those Baxstrom inmates who were believed to be more dangerous probably continued to be incarcerated under the revised post-Baxstrom commitment procedures.

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Limitations to accuracy The assessment of dangerousness has several limitations. One major inherent limitation arises from the sensitivity–specificity dichotomy. There are four possible outcomes of a prediction: (i) true positive (predicting an act will occur and it actually occurs); (ii) true negative (predicting an act will not occur and it does not actually occur); (iii) false positive (predicting an act will occur and it does not actually occur); and (iv) false negative (predicting an act will not occur and it actually occurs). The more sensitive the assessment, the more accuracy that is attained in identifying the true positives and minimizing the number of false negatives. The more specific the assessment, the more accuracy in identifying the true negatives and minimizing the number of false positives. However, an assessment cannot be totally sensitive and specific at the same time as these measures of accuracy vary inversely with each other. Therefore, an extremely high degree of accuracy would not be possible. Nonetheless, both the medical and legal systems lean toward minimizing the number of false negatives. One cautious position is to err on the side of public safety and overestimate future harmful acts which in turn aggravates the false positive problem (Petrunik 1982). Another major limitation in the assessment of dangerousness involves the low base rate problem (Monahan 1981). There is a low base rate of violence, or else more of the population would be imprisoned or committed to psychiatric facilities. The often used example is to assume that we have an extremely accurate test (i.e., a test more accurate than any existing one) to predict violence, so that for 95 per cent of the time a clinician can prognosticate who will be violent. We then assume a low base rate of a particular violent act, such as killing another person, occurs at the rate of one per 1000 population (i.e., higher than actually occurs). Then, out of a population group of 100 000 persons, we can correctly identify 95 of the 100 potential killers. While this is quite respectable, of the 99 900 who do not kill, we would correctly identify 95 per cent of those who will not kill, but also misidentify 4995 persons as potential killers. While some societies might tolerate identifying these 4995 false positives and taking steps to incapacitate them, this approach is not consistent with American legal values. In summary, even if psychiatry did possess a test to accurately forecast future behavior at the 95 per cent rate, the number of false positives for a low base rate phenomenon would be significant. The above calculation understates the low base rate problem, because the number of false positives increases with a less accurate test and a lower base rate. The most accurate prediction would be to always predict that an individual would be non-dangerous since the prediction would be inaccurate in only 1 out of 1000 times. The low base rate problem, however, might be reduced if a subgroup of putatively dangerous persons can be identified who have a higher base rate of a target behavior.

Notwithstanding the limitations posed by the sensitivity–specificity and low base rate problems as outlined above, the application of a sophisticated mathematical tool called receiver-operating characteristic (ROC) analysis upon prior studies of violence prognostication found that violence predictions were more accurate than chance, that short-term forecasts did not appear more accurate than long-term predictions, and that past behavior is the best indicator for future behavior (Mossman 1994). Until recently, the single agreed-upon predictor for future violent behavior was a history of past violent behavior (Monahan 1981; Mossman 1994; Steadman 2000). The impression of psychiatric inpatients (with no criminal history) as being more ‘dangerous’ than the general population is not consistently supported and highlights the pitfalls in dangerousness/violence studies as well as a likely bias against the mentally disordered. The research literature on violence prognostication until recently suffered from four fundamental deficiencies: impoverished predictor variables, weak criterion variables, constricted validation samples, and unsynchronized research efforts (Monahan 1988). Even without using this categorization of shortcomings, a superficial examination of the research literature on violence can readily reveal its limitations. The studies have varying criteria of what constitutes a dangerous or violent act. Some studies focus on shouting or similar behaviors not clearly indicative of violence in order to reach statistical significance. Studies have focused largely on groups of persons that can be followed and who have already committed or are viewed as likely to perpetrate violent acts in the future. Such groups include involuntarily civilly committed patients, insanity acquittees, and various criminal offender groups. However, rigorous controlled studies are not possible, as the obviously dangerous person should remain under social control. Thus, studies would revolve around the errors in psychiatric prediction of a dangerous act in those cases in which the psychiatrist forecasted the released patient as harming another and no harm actually occurred in the study period, i.e., they are likely to focus on the false-positive problem. Moreover, these studies could make assessments appear less accurate than they actually are because of the effort to retain the highrisk person in a supervised setting. Arguably the easiest group to study are the civil committees who have been detained on an emergency basis and generally remain hospitalized for a short period of time. However, the results of these studies are not readily generalizable to settings that are not well structured and for time periods further in the future.

Risk assessment paradigm The clinical–legal assessment of dangerousness can be practically distilled as a probability or dispositional concept detailing under what circumstances and conditions

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are likely to raise an individual’s level of dangerousness (Pollack 1982; McNeil and Binder 1991). More recently, the focus has shifted from assessment of dangerousness as a clinical description or simplistic quantification to a systematic identification of risk factors. Although this may reflect only a semantic shift, it appears to reflect incorporation of the insurance industry concept of ‘risk management.’ While useful for the insurance industry, the clinician should also not become overly dependent on this actuarial type approach and consider casespecific factors. When assessing an individual for dangerousness, the forensic psychiatrist can indicate from which mental disorder(s) the individual is suffering, the prognosis of each mental disorder with treatment and without treatment, the likelihood the person will comply with treatment, the static and dynamic factors that play a role in future maladaptive behaviors, and the possible interaction of the mental disorders and ecological factors in giving rise to the dangerous behaviors in question. This assessment cannot obviously account for the effects of significant intervening events or other unforeseen influences on a person’s future behavior. Nonetheless, using this approach a forensic psychiatrist can offer a reasoned opinion with regard to the magnitude, likelihood, and relative immediacy of a particular threat. Of particular relevance to the legal system is the identification of the various risk factors that heighten an individual’s probability for violent acts. The risk factors can be divided into static and dynamic factors. Static factors are those, such as age, gender, and low intellectual capacity, that cannot be changed. Dynamic factors are those, such as active substance abuse, current psychotic symptoms, and possession of weapons, which can be addressed either clinically or legally. Use of the risk assessment approach can provide to the legal system a template for crafting a disposition for the individual in question by highlighting specific areas that merit attention. The risk assessment approach would also be useful for the non-forensic clinician in the specific instance of assessing patients for dangerousness to third parties (Ferris et al. 1997).

Recent research Two prominent U.S. studies have produced several publications. The first set came out of the Epidemiologic Catchment Area (ECA) Surveys conducted between 1980 and 1983 at five sites in the U.S. (Swanson et al. 1990). The ECA Survey’s data on violence was a byproduct of the larger survey and whose definitions of violence were not especially systematic. To have a positive response for violence, there would need to be a report of one of the following actions by the subject: 1 Hitting or throwing things at the subject’s significant other. 2 Harsh spanking of a child by the subject.

3 Fighting as an adult with another outside of the subject’s significant other. 4 Use of a weapon during a fight as an adult. 5 Fighting while drinking. The ECA Survey work found increased risks of violent behavior connected with several mental disorders (Swanson et al. 1990). The contributions of alcohol abuse (Swanson 1993) and psychosis (Swanson et al. 1996) on violence risk have been also explored. Besides the increased violence risk associated with alcohol or substance abuse and certain psychotic symptoms, there was increased risk of violence associated with lack of ongoing psychiatric treatment (Swanson et al. 1997). The second recent set of U.S. research on violence comes from the MacArthur Violence Risk Assessment Study. The MacArthur study set out to address the previous research shortcomings by the following: 1 Disaggregation of dangerousness into its component parts of risk factors (variables used to predict violence), harm (the specific type and quantification of potential violence), and risk (likelihood of harm). 2 Identification of risk factors. 3 Measuring harm in terms of seriousness and assessed by multiple measures. 4 Treating risk as a probability varying over time and by context. 5 Priority of actuarial research establishing a relationship between risk factors and harm. 6 Using large and representative samples of subjects. In addition to assessing risk, they identified managing risk as an important research goal (Monahan and Steadman 1994a; Steadman et al. 1994). In the MacArthur study, 1136 recently discharged psychiatric patients from three sites across the country were followed for one year. The study has produced findings about the role of alcohol consumption (Steadman et al. 1998) and delusions (Appelbaum, Robbins, and Monahan 2000) in the perpetration of violent behavior. It must be cautioned that the MacArthur research addresses a specific sample of individuals (i.e., those who were followed for one year post-psychiatric hospitalization) and the findings may not necessarily find applicability to other groups, such as sex offenders, violent felons, insanity acquittees, etc. Nonetheless, the MacArthur study has developed the Iterative Classification Tree, a decision tree model, which would have application in discharge decisions from acute psychiatric inpatient units and possibly in communitybased settings (Monahan et al. 2000; Steadman 2000; Monahan et al. 2001). As with the U.S. studies, the recent dangerousness research in Canada has an actuarial focus. Meta-analyses of criminal and violent recidivism among mentally disordered offenders and relapse among sex offenders has highlighted a statistical approach to examining risk factors (Bonta, Law, and Hanson 1998; Hanson and Bussiere

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1998). The study of individuals at a Canadian maximum security psychiatric facility has led to some pioneering efforts in the development of the risk assessment guides [such as the Violence Risk Appraisal Guide (VRAG) and Sex Offender Risk Appraisal Guide (SORAG)] (Quinsey et al. 1998).

THE CURRENT STATE OF DANGEROUSNESS ASSESSMENTS Research findings versus case-specific analysis Even if there were extremely accurate tests to predict violence or other harms, the legal system would likely be reluctant to make a ruling based on statistics or mathematical formula alone. The dominance of clinical prediction over mathematical prediction emanates from the following: the view that legal decisions are intrinsically individualized; actuarial predictions explicitly acknowledge the possibility of errors (even if fewer than a clinical approach); concerns that some important case-specific factors will not be included in a mathematical calculation; and insufficient time or data to make the accurate mathematical calculations (Monahan 1981). Nonetheless, prognostications using actuarial models are more accurate (i.e., have lower false-positive and false-negative errors) than the clinical method (Gardner et al. 1996), but they may be less sensitive to unusual or even unique factors in a specific individual. Although the actuarial method may find limited acceptance in the legal arena and should be used with caution in these settings, it remains a useful clinical research tool (Harris and Rice 1997) and continues to be at the forefront of clinical research in the area of dangerousness (risk) assessment (Monahan et al. 2000; Monahan et al. 2001). The assessment of dangerousness, even when the mental status of the individual can be delineated and the relevant risk factors can be identified, remains a formidable task. Assuming for the moment an extremely accurate mathematical formula upon which to calculate the probability of a future event, the law would not likely be convinced that this satisfies the due process requirements by which to meet a legal standard of dangerousness. The law generally prefers to know case-specific factors upon which an opinion regarding a person’s dangerousness were based, especially when the law sanctions loss of liberty. Despite limited scientific validation of the specific association between mental disorder and the commission of harmful acts in the future, the psychiatrist should be able to describe the individual’s mental condition and how it is likely to be connected with potential future harm, including wherever possible under which contexts and conditions. Recent research in the area in a variety of settings and types of individuals has suggested that a

structured clinical judgment approach incorporating both the empirical research along with clinical judgment constitutes the optimal approach (Dolan and Doyle 2000).

Uncoupling risk factors General trends, like a past history of violence, while useful in formulating an opinion on future dangerousness, do not necessarily flow from a person’s mental disorder. Also, a description of the particular harm needs to be described in terms of its magnitude, likelihood, and imminence. In addition to the emphasis on the identification of exacerbating factors, protective (ameliorating) factors should not be de-emphasized or disregarded (Rogers 2000). In addition, even if the risk and protective factors can be accurately accounted for and the base rate of the action is known for the general population and a particular individual, unforeseen ecological factors or events can contribute to the inaccuracy of an assessment. Nonetheless, with an adequate database, the psychiatrist should be able to arrive at a reasonable description of the dangerousness of a particular individual as well as what clinical interventions are possible and their likely effects upon the mental disorder and mental state of the individual.

The limits of clinical–legal opinions Arriving at the level of dangerousness posed by an individual even when describing the case’s unique and highly defined parameters remains somewhat elusive. In spite of the voluminous risk factor research and development of useful clinical tools, assignment of an overall (summary) risk level often does not appear to go beyond the broad categories of low, moderate, or high (Webster et al. 1997). Perhaps more important than offering an overall dangerousness opinion is to highlight the aggravating and mitigating risk factors in an individual. Indeed, the case-specific analysis remains the cogent approach, both clinically and legally. While the trier of fact may repeat the false-positive problem and overestimate the degree or dangerousness in deciding whether an individual meets a specific legal dangerousness criterion, psychiatrists should avoid compounding the false positive problem by offering definitive opinions to ‘help’ the court with its problem when they are at best a probability assessment under certain conditions.

Ethical issues in the assessment of dangerousness The clinical studies, including those that follow patients for a limited amount of time in the hospital after emergency commitment, lack the exacting degree of accuracy that the law might desire. So the psychiatrist who is honest needs to acknowledge the shortcomings when offering opinions on dangerousness. In many respects, ethical

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guidelines may be particularly important when offering these forensic opinions on the issue of dangerousness. The case of Barefoot v. Estelle mentioned previously in this chapter provides a heuristic example of the potential misuse of psychiatric testimony about dangerousness that has no empirical basis beyond the claimed personal clinical experience of an individual psychiatrist as well as lacking support from the available published knowledge base at that time. Moreover, the claim of absolute certainty in the expert opinion about future dangerousness violates current forensic psychiatric ethical guidelines requiring honesty and striving for objectivity and current research. Offering an opinion supporting dangerousness for civil commitment in which continued treatment would result differs quantitatively and qualitatively from offering the opinion in a capital case as in Barefoot v. Estelle. Nonetheless, offering a dangerousness opinion even in a therapeutic context can present ethical dilemmas, particularly in cases in which long-term commitment is at issue. In the final analysis, a thorough and thoughtful clinical evaluation is the best remedy to potential ethical problems when assessing dangerousness. Assessments should be made with the care and knowledge that subtle and not so subtle influences exist to distort assessments. The appropriate use of the risk assessment approach as a foundation for dangerousness opinion may reduce the likelihood of creating confounding ethical dilemmas.

The biopsychosociocultural approach Forecasting of violent behavior, or the assessment of dangerousness in general, has been the focus of active research in North America and elsewhere. The mental health research efforts have focused on the psychological part of biopsychosociocultural aspects of violent/dangerous behavior, as such topics as anger, impulsivity, psychopathy, mental disorder, substance abuse, psychotic symptoms, delusions, hallucinations, personality disorders (Monahan and Steadman 1994b). The social component has been studied from the mental health perspective (Monahan and Steadman 1994b; Silver, Mulvey, and Monahan 1999) as well as in from sociological and criminological viewpoints. Biological risk factors have been the subject of intense research activity (Volavka 1995), though with the increasing diversification of the U.S. population, cultural factors should not be underappreciated (Volavka et al. 1997). The multi-modal approach of the biopsychosociocultural model may be especially relevant to quantification of dangerousness in some individuals.

OTHER DANGEROUSNESS ASSESSMENTS This chapter has focused on dangerousness assessments that arise from statutory or case law. However, forensic psychiatrists may be involved in dangerousness

assessments in which specific targets are at risk and outside of those mentioned herein. Examples include stalking by ex-intimates, employee-generated workplace violence, and Secret Service protectees. Although much of the risk assessment research may be applicable to these situations, the different contextual elements, both legal and ecological, merit further inquiry (Palarea et al. 1999; Borum et al. 1999).

REFERENCES Addington v. Texas, 441 U.S. 418 (1979). Appelbaum, P.S., Robbins, P.C., Monahan, J. 2000. Violence and delusions: data from the MacArthur Violence Risk Assessment Study. American Journal of Psychiatry 157, 566–72. Barefoot v. Estelle, 463 U.S. 880 (1983). Baxstrom v. Herold, 383 U.S. 107 (1966). Bonta, J., Law, M., Hanson, K. 1998. The prediction of criminal and violent recidivism among mentally disordered offenders: a meta-analysis. Psychological Bulletin 123, 123–42. Borum, R., Fein, R., Vossekuil, B., Berglund, T. 1999. Threat assessment: defining an approach for evaluating risk of targeted violence. Behavioral Sciences and the Law 17, 323–37. Dolan, M., Doyle, M. 2000. Violence risk prediction: clinical and actuarial measures and the role of the Psychopathy Checklist. British Journal of Psychiatry 177, 303–11. Felthous, A.R. 1989: The Psychotherapist’s Duty to Warn or Protect. Springfield, IL: Charles C. Thomas. Felthous, A.R., Kachigian, C. 2001. The fin de millénaire duty to warn or protect. Journal of Forensic Sciences 46, 1103–12. Ferris, L.E., Sandercock, J., Hoffman, B., et al. 1997. Risk assessments for acute violence to third parties: a review of the literature. Canadian Journal of Psychiatry 42, 1051–60. Foucha v. Louisiana, 112 S.Ct. 1780 (1992). Gardner, W., Lidz, C.W., Mulvey, E.P., Shaw, E.C. 1996. Clinical versus actuarial predictions of violence in patients with mental illness. Journal of Consulting and Clinical Psychology 64, 602–9. Hanson, R.K., Bussiere, M.T. 1998. Predicting relapse: a meta-analysis of sexual offender recidivism studies. Journal of Consulting and Clinical Psychology 66, 348–62. Harris, G.T., Rice, M.E. 1997. Risk appraisal and management of violent behavior. Psychiatric Services 48, 1168–76. Jones v. U.S., 463 U.S. 354, 103 S.Ct. 3043 (1983). Jurek v. Texas, 428 U.S. 262 (1976). Kansas v. Hendricks, 117 S.Ct. 2072 (1997). McNeil, D.E., Binder, R.L. 1991. Clinical assessment of the risk of violence among psychiatric inpatients. American Journal of Psychiatry 148, 1317–21.

Dangerousness 571 Monahan, J. 1981: The Clinical Prediction of Violent Behavior. (DHHS Publication No. (ADM) 81-921). Rockville, MD: U.S. Department of Health and Human Services. Monahan, J. 1988. Risk assessment of violence among the mentally disordered: generating useful knowledge. International Journal of Law and Psychiatry 11, 249–57. Monahan, J., Steadman, H.J. (eds). 1994a: Violence and Mental Disorder: Developments in Risk Assessment. Chicago: University of Chicago Press. Monahan, J., Steadman, H.J. 1994b: Toward a rejuvenation of risk assessment research. In Monahan, J., Steadman, H.J. (eds), Violence and Mental Disorder: Developments in Risk Assessment. Chicago: University of Chicago Press, 1–17. Monahan, J., Steadman, H.J., Appelbaum, P.S., et al. 2000. Developing a clinically useful actuarial tool for assessing violence risk. British Journal of Psychiatry 176, 312–19. Monahan, J., Steadman, H.J., Silver, E., Appelbaum, P.S., Robbins, P.C., Mulvey, E.P., Roth, L.H., Grisso, T., Banks, S. 2001: Rethinking Risk Assessment: The MacArthur Study of Mental Disorders and Violence. New York: Oxford University Press. Mossman, D. 1994. Assessing predictions of violence: being accurate about accuracy. Journal of Consulting and Clinical Psychology 64, 783–92. O’Connor v. Donaldson, 422 U.S. 563; 95 S.Ct. 2486 (1975). Petrunik, M. 1982. The politics of dangerousness. International Journal of Law and Psychiatry 5, 225–53. Palarea, R.E., Zona, M.A., Lane, J.C., LanghinrichsenRohling, J. 1999. The dangerous nature of intimate relationship stalking: threats, violence, and associated risk factors. Behavioral Sciences and the Law 17, 269–83. People v. Gibson, 204 Cal. App. 3d 1425 (1988), rehearing denied 2 Feb. 1989. Pollack, S. 1982: The concept of dangerousness for legal purposes. In Gross, B.H., Weinberger, L.E. (eds), The Mental Health Professional and the Legal System. San Francisco: Jossey-Bass, 45–54. Quinsey, V.L., Harris, G.T., Rice, M.E., Cormier, C.A. 1998: Violent Offenders: Appraising and Managing Risk. Washington, DC: American Psychological Association. Riggins v. Nevada, 504 U.S. 127, 112 S.Ct. 1810 (1992). Rogers, R. 2000. The uncritical acceptance of risk assessment in forensic practice. Law and Human Behavior 24, 595–605. Silver, E., Mulvey, E.P., Monahan, J. 1999. Assessing violence risk among discharged psychiatric patients: toward an ecological approach. Law and Human Behavior 23, 237–55. Steadman, H.J. 1973. Follow-up on Baxstrom patients returned to hospitals for the criminally insane. American Journal of Psychiatry 130, 317–19.

Steadman, H.J. 2000. From dangerousness to risk assessment of community violence: taking stock at the turn of the century. Journal of the American Academy of Psychiatry and the Law 28, 265–71. Steadman, H.J., Keveles, G. 1972. The community adjustment and criminal activity of the Baxstrom patients: 1966–1970. American Journal of Psychiatry 129, 304–10. Steadman, H.J., Monahan, J., Appelbaum, P.S., et al. 1994: Designing a new generation of risk assessment research. In Monahan, J., Steadman, H.J. (eds), Violence and Mental Disorder: Developments in Risk Assessment. Chicago: University of Chicago Press, 297–318. Steadman, H.J., Mulvey, E.P., Monahan, J., et al. 1998. Violence by people discharged from acute psychiatric inpatient facilities and by others in the same neighborhoods. Archives of General Psychiatry 55, 393–401. Stone, A.A. 1976: Mental Health and Law: A System in Transition. New York: Jason Aronson. Swanson, J.W. 1993. Alcohol abuse, mental disorder, and violent behavior. Alcohol Health Research World 17, 123–32. Swanson, J.W., Holzer, C.E., III, Ganju, V.K., Jono, R.T. 1990. Violence and psychiatric disorders in the community: evidence from the Epidemiologic Catchment Area Surveys. Hospital and Community Psychiatry 41, 761–70. Swanson, J.W., Borum, R., Swartz, M.S., Monahan, J. 1996. Psychotic symptoms and disorders and the risk of violent behaviour in the community. Criminal Behaviour and Mental Health 6, 309–29. Swanson, J., Estroff, S., Swartz, M., et al. 1997. Violence and severe mental disorder in clinical and community populations: the effects of psychotic symptoms, comorbidity, and lack of treatment. Psychiatry 60, 1–22. Tarasoff v. Regents of the University of California, 17 Cal. 3d 425 (1976). Thapar v. Zezulka, 994 S.W. 2d. 635 (Tex. 1999). U.S. v. Weston, 255 F. 3d 873 (2001). Volavka, J. 1995: The Neurobiology of Violence. Washington, DC: American Psychiatric Press. Volavka, J., Laska, E., Baker, S., et al. 1997. History of violent behaviour and schizophrenia in different cultures: analyses based on the WHO study on determinants of outcome of severe mental disorder. British Journal of Psychiatry 171, 9–14. Washington v. Harper, 110 S.Ct. 1028 (1990). Webster, C.D., Douglas, K.S., Eaves, D., Hart, S.D. 1997: HCR-20: Assessing Risk for Violence, Version 2. Burnaby, BC: Mental Health, Law, and Policy Institute, Simon Fraser University. Weinstock, R., Leong, G.B., Silva, J.A. 2001. Potential erosion of psychotherapist-patient privilege beyond California: dangers of ‘criminalizing’ Tarasoff. Behavioral Sciences and the Law 19, 437–49.

58 Violence: causes and non-psychopharmacological treatment KENNETH TARDIFF

INTRODUCTION This chapter presents guidelines for the evaluation and management of violent patients. It focuses on the clinical aspects of this area and is a condensation and update of earlier, more extensive writings on the subject (Tardiff 1996; Tardiff 1999). Most litigation this author has seen in this area has involved wrongful management of violence with injury to the violent patient or a clinician’s failure to evaluate violence potential with subsequent injury of others by a patient. Despite the injuries, cases usually have been decided in favor of clinicians if proper procedures and standards have been followed (American Psychiatric Association 1985; Beck 1985). Most violence in society is committed by persons who are not psychiatric patients, and thus is beyond the reach of psychiatry and other mental health professionals. The causes of criminal violence have been explored from a number of perspectives. Some have argued that blacks live in a violent subculture (Wolfgang 1981), whilst others maintain that there is no racial difference if socioeconomic status is considered (Centerwall 1984). Among those researchers who believe that low socioeconomic status is related to high rates of violent crime, there is disagreement as to whether it is relative economic inequality (Blau and Blau 1982) or absolute poverty and social disintegration (Messner and Tardiff 1986). Greater availability of guns in our society has increased the lethality of violence (Cook 1982). Since the early 1980s, drugs – particularly cocaine (Goldstein 1989) – have increasingly played a major role in violent crime, primarily from the business of dealing drugs but also from a pharmacological effect.

PSYCHIATRIC CAUSES OF VIOLENCE Drug abuse is a bridge from criminal violence to psychiatric violence. Stimulants, particularly cocaine, produce

violence at first through irritability and agitation and later through paranoid delusional thinking and delirium (Lowenstein et al. 1987; Honer, Gewirtz, and Turey 1987; Giannini, Miller, and Lioselle 1993; McCormick and Smith 1995). This is particularly true for crack cocaine, which is characterized by frequent, prolonged use so as to avoid withdrawal symptoms. Hallucinogens, especially phencyclidine, can cause bizarre behaviors, violence, and suicide (Budd and Lindstrom 1982). Alcohol intoxication through disinhibition, emotional liability, and impaired judgment can produce violence (Holcomb and Anderson 1983; Swanson et al. 1990; Eronen, Hakila, and Tiihonen 1996). Withdrawal from alcohol and the short-half-life benzodiazepines can produce irritability, agitation, and violence. Ecstasy (MDMA), which is popular at dance clubs and college scenes, can produce violence as well as confusion, paranoia, severe anxiety and depression (National Institute on Drug Abuse 1999). There have been a number of case reports of violence by athletes using anabolic steroids (Choi, Parrott, and Cowan 1989; Pope and Katz 1990). Indeed, an experimental study of normal volunteers showed an increase in hostility and impulsivity when they were given anabolic steroids (Su, Pagliaro, and Schmidt 1993). Organic brain disease can result in violence which, in temporal lobe epilepsy is not frequent. However, when it occurs it may do so during the ictal period and, if so, is often aimless in nature. Violence has also been found in the inter-ictal period in these patients. In the post-ictal period following generalized seizures, violence can occur. Infections of the brain including viral encephalitis, AIDS, tuberculosis and fungal meningitis, syphilis and herpes simplex can be associated with violent behavior. Other diseases of the brain associated with violence include head trauma, normal pressure hydrocephalus, cerebrovascular diseases, tumors, Huntington’s chorea, multiple sclerosis, Pick’s disease, multiinfarct dementia, Alzheimer’s disease, Parkinson’s disease, and Wilson’s

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disease, as well as post-anoxic or post-hypoglycemic states with brain damage (Tardiff and Sweillam 1980; Kay, Wolkenfeld, and Murrill 1988; Weiger and Bear 1988; Krakowski et al. 1989; Kutzer 1990; Patel and Hope 1992). A number of medical disorders have been associated with violence through delirium and/or delusional thinking. These disorders include hypoxia, electrolyte imbalances, hepatic disease, renal disease, vitamin deficiencies, systemic infections, hypoglycemia, Cushing’s disease, hyperthyroidism, hypothyroidism, systemic lupus erythematosus, poisoning by heavy metals, insecticides, and other substances, and porphyria (Reid and Balis 1988). There is evidence from a number of studies that schizophrenic patients are at increased risk of violence (Tardiff and Sweillam 1980; Craig 1982; Tardiff 1984b; Taylor and Gunn 1984; Karson and Bigelow 1987; Lindquist and Allebeck 1990; McNiel and Binder 1991). Paranoid schizophrenic patients attack people whom they believe to be threatening them, and any schizophrenic patient can be violent because of psychotic disorganization, excitability, or even akathisia secondary to neuroleptic medication. Schizophrenic patients may be violent for reasons not related to the psychotic process per se, for example organic brain disorders, all of which do not point to increased dosing with neuroleptics in an effort to diminish violence. Manic patients have been found to have sudden severe violent episodes. Often, violence erupts in the early phase of treatment of the acute manic state. The patient responds violently to any form of containment or limit setting, be it physical or otherwise, as in a nurse insisting that the patient take a dose of medication (Tardiff and Sweillam 1980; Yesavage 1983; Tardiff 1984b; Binder and McNiel 1988; Miller, Zadolinnyi, and Hafner 1993). Borderline and antisocial personality disorders are associated with violence (Tardiff and Sweillam 1980; Hare and McPherson 1984; Tardiff 1984b; Tardiff and Koenigsberg 1985; Bland and Orn 1986; Benjamin 1993; Eronen, Hakila, and Tiihonen 1996). In the case of the borderline personality disorder, in addition to frequent displays of anger and recurrent physical violence toward others, the patients manifest a number of behavioral problems and severe psychological problems. Violence manifested with antisocial personality disorder is one of many antisocial behaviors. These patients repeatedly get into physical fights and manifest a number of other antisocial behaviors. Patients often lie and show no guilt or remorse for violence and other antisocial behavior. These disorders should be differentiated from another nonpsychotic episodic violence disorder that has a better prognosis in regard to treatment. Intermittent explosive disorder is manifested by recurrent outbursts of violence that are grossly out of proportion to any precipitating psychosocial stressor. Following a violent episode there is often remorse. In the intervening period between these violent episodes, there is little evidence of other behavioral problems.

Children and adolescents may be violent due to disruptive behavioral disorders or mental retardation (Pfeffer, Plutchnik, and Miziuchi 1983; Tardiff 1984b; Tardiff and Koenigsberg 1985; Ghaziuddin and Ghaziuddin 1992; Bouras and Drummond 1992). There can be physical violence toward others, cruelty to animals, stealing, robbery, and other antisocial behaviors. This violence and other antisocial behaviors usually are not accompanied by guilt or remorse. Although children with conduct disorders may grow up to be antisocial violent adults, most children and adults with mental retardation are not violent. When violence does occur, however, it is difficult to manage. Violence in the mentally retarded is associated with frustration and anger when the patient is unable to achieve goals and cannot verbalize conflicts, concerns, and feelings adequately. Posttraumatic stress disorder patients can have violence as one of many symptoms (Jordan, Marmar, and Fairbank 1992; Lasko, Gurvits, and Kuhne 1994). The violence may be diffuse as part of increased arousal with irritability and anger, or it may be part of intense distress in response to external cues that symbolize or resemble an aspect of the traumatic event.

EVALUATION OF THE VIOLENT PATIENT The evaluation of the patient with problems of violence should proceed along the same lines as the evaluation of other problems in psychiatry (Reid and Balis 1988; Tardiff 1996; Tardiff 1999). Sometimes emotional reactions of clinicians to potential or actual violence distorts the evaluation. The evaluation of the patient who presents with problems of violence should include an assessment of the chief complaint, history of the present illness, family history, personal and developmental history, medical history, the mental status, physical examination, and laboratory tests and imaging. In gathering information about the patient, the clinician should use as many sources as possible, including talking to the patient as well as the police, relatives, the patient’s therapist, and the primary-care physician. Past medical and criminal records should be obtained. The evaluation will determine the underlying cause and thus the proper treatment. Another goal of the evaluation is to determine the patient’s potential for violence.

PREDICTION OF VIOLENCE The ability to predict violence is limited to the short term, that is, for days or a week at most. The process is analogous to the prediction of suicide potential (Tardiff 2001). As with the evaluation of suicide potential, evaluation of violence potential includes assessment of how well planned is the threat or idea. Vague threats of killing

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someone are not as serious as well-formulated threats against a specific person. As with suicide, the availability of means of inflicting injury is important. If the patient has recently purchased or owns a gun, one should take the threat more seriously. A past history of violence or other impulsive behavior is predictive of future violence. This includes destruction of property, suicide attempts, reckless driving, reckless spending, criminal offenses, sexual acting out, and other impulsive behaviors. One should assess the degree of past injuries as well as toward whom violence has been directed and under what circumstances. There is a repetitive pattern of violent behavior and escalation between family or friends or in similar settings, for example, in bars. Alcohol and drug abuse should be assessed. Substances that can produce violent behavior as a result of the intoxicated state as well as during withdrawal include alcohol, benzodiazepines, and other sedatives. Other substances can produce violence when the patient is intoxicated, namely cocaine, hallucinogens, and amphetamines. Organicity (e.g., hypoxia, trauma) increases the risk of violence. Central nervous system disorders have been associated with violent behavior and have been described earlier, as have some systemic disorders affecting the central nervous system. As with suicide, the presence of psychosis should make one take threats of violence very seriously, and it makes the assessment of violence potential essential, even if threats are not apparent. All of these factors are considered in the final assessment of whether the patient poses such a significant risk to others that some action is necessary. Action may include changing the treatment plan, hospitalizing the patient, or warning the intended victim and/or the police. All of the data on which the decision about violence is based should be documented in writing, and the rationale in arriving at the decisions should be reflected in written documentation. Reassessment of violence potential should be made at short intervals, for example, from visit to visit within a few days, if the patient is to continue being treated outside of hospital or other institution. This assessment and documentation will be very useful in cases of litigation.

PREVENTION OF VIOLENCE Before turning to the management of violence, one should consider prevention of violence. The inpatient ward environment, treatment program, and staff should be structured so as to prevent violence. The staff should be caring and non-authoritarian, yet be able to set limits in regard to the patient’s behavior. They should be available to talk with and listen to the patient. It is important that the staff recognize the warning signs of violence for an individual patient. A patient may have manifested specific patterns of behavior or speech before a violent episode. As escalation

begins, medication may be offered and increased staff attention and support is indicated. There should be a program of treatment and activity aimed at promoting social behavior. There should also be educational programs for staff – not only in the use of physical restraints but also in the sensitive, non-provocative use of verbal means of dealing with violence or impending violence.

SAFETY A Task Force of the American Psychiatric Association has made recommendations to increase the safety of staff who work with violent patients (American Psychiatric Association 1993). One should consider the physical aspects of the office or other setting in which violent patients will be interviewed. There should be solid heavy furniture that would be difficult to move or throw, and there should be no heavy objects that could be thrown (e.g., ashtrays). There should be a method for the clinician to indicate that he or she is in danger, which may be in the form of a ‘panic button’ or a prearranged message to one’s secretary or receptionist. When interviewing in seclusion those patients who have been violent or who are potentially explosive, the clinician should pay attention to his or her attire. Glasses may be removed before interviewing such patients, and in the case of men, the necktie may be removed or tucked into the shirt. For women, jewelry such as necklaces and earrings should be removed. Likewise, if the patient has been violent and is to be put into seclusion, proper attention should be paid to removing from the patient any dangerous clothing such as belts and neckties, and dangerous objects such as pens, jewelry, and matches.

OVERALL MANAGEMENT In managing violence by patients one must consider the balance between medication, seclusion, and restraint. The correct use of medication in emergencies and for the long-term treatment of violence are covered in Chapter 59. It must be said here that if an ineffective type or dose of medication is used, the risk of violence grows and/or the need of other physical means of control such as seclusion and restraint increases. Patients should not be in prolonged seclusion or restraint because of inadequate medication. On the other hand, patients should not be overmedicated to keep them out of seclusion or restraint. Instead, the treatment plan must be reviewed with consideration to changing the medication and/or adding other treatment such as behavior therapy.

Seclusion and restraint Seclusion and restraint prevent harm to the patient or other persons when other means of control are not

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effective or appropriate, or prevent serious disruption of the treatment program or significant damage to the physical environment. In addition, seclusion may be used to decrease the stimulation a patient receives, possibly at the patient’s request. Guidelines for seclusion and restraint have been formulated by a task force of the American Psychiatric Association (Tardiff 1984a; American Psychiatric Association 1985; Tardiff 1996). These guidelines represent minimal standards, and each institution should at least meet these standards or be more rigorous in its own standards. The decision on whether to use seclusion, restraint, medication, or any combination of these controls is made on the basis of the clinical needs of the individual case. For example, if the etiology of the violent behavior is unknown, restraint may be indicated so as to maintain the patient drug-free for purposes of evaluation. In addition, a violent patient may be preferentially managed in seclusion and restraint because of medical illness or drug allergies that would preclude the use of certain medications to control violent behavior. Another issue for seclusion and restraint is whether these controls should be used only once a patient is actually in the process of manifesting dangerous behavior or whether these procedures may be used in anticipation of imminent dangerous behavior. Once they are familiar with a particular patient, staff may rely on past patterns of verbal or non-verbal phenomena that have occurred before violent episodes. The use of previous patterns of behavior to justify seclusion or restraint must be documented clearly. The regulations of one’s institution and state may not allow seclusion or restraint to be used in this manner. There are contraindications to the use of seclusion and restraint. They should never be used for punishment when no danger exists to the patient or others, and they may be inadvisable because of the patient’s medical condition. The patient’s unstable medical status, resulting from infection, cardiac illness, disorders of thermoregulation, or metabolic illness may require close monitoring and close physical proximity of staff, making seclusion impossible. Restraint may be useful in delirium and dementia, where reduced sensory input from seclusion may lead to worsening of the clinical state. Other relative contraindications to seclusion include cases of patients who have just taken overdoses and require close monitoring; patients presenting with the symptoms of serious and uncontrollable self-mutilation; and when seclusion rooms cannot be sufficiently cooled on hot days for patients receiving drugs such as neuroleptics, which impair thermoregulation. A patient should never be secluded or restrained for the convenience of the staff. Whereas protection of other patients from harm is an indication for seclusion, mild obnoxiousness, rudeness, or other unpleasantness to others is not. If prolonged seclusion or restraint occurs for such a reason, the treatment plan and/or setting should be reviewed by an external consultant.

With physical restraint, one must guard against circulatory obstruction, which can be minimized by temporarily releasing one of four point restraints every 15 minutes. Another adverse effect with restraints is aspiration; if a patient is lying on his or her back while restrained, one must guard against aspiration by constant monitoring. Deaths from strangulation have resulted from camisoles and vest restraints. Initiating seclusion or restraint is an emergency procedure carried out by the nursing staff on an inpatient unit. This requires a physician’s review and order for its continuation. Each institution has specific time parameters regarding review, and the psychiatrist should be familiar with them. While the patient is in seclusion or restraint, there should be observations by the nursing staff, with detailed observations being written in a log. These visual checks are important so as to minimize the chances of a patient harming himself or herself in the seclusion room. Patients should be visited periodically. In the case of very violent patients, it is advisable that adequate number of staff accompany the nursing staff. During these visits, vital signs should be taken and food and fluids provided, and toileting and other care of the patient accomplished. All observations should be documented in the patient’s record. The seclusion room should be free of hazards, and usually kept empty except for a mattress. The mattress should not be constructed from fiber or other materials that the patient could use to hang or suffocate him/herself, and should not be flammable. Patients should be searched for matches prior to being placed in seclusion. The ceiling of the seclusion room should be high, with recessed light fixtures. All walls and ceilings should be constructed of material that cannot be gouged out by patients, and there should be no sharp edges to windows and no protuberances such as oxygen jets. Staff should be able to observe every portion of the seclusion room, though this may require the use of reflectors. A patient may be released from seclusion or restraint when their behavior is under control and they no longer pose a danger to self or others. The patient’s ability to control his or her behavior and cooperate is evaluated throughout the seclusion episode. For example, during each visit the patient’s ability to respond to a verbal request should be judged. Release from seclusion is a gradual process. The first step may be to open the seclusion room door for brief periods of time, followed by complete opening, and spending time alone in the patient’s room, until they can be released to the general ward environment. Any evidence of loss of control or lack of cooperation should result in movement back to more restrictive steps in the procedure. The patient in restraints may be transferred to seclusion when there appears to be adequate self-control and stabilization. The same process of gradual release from seclusion is used at the appropriate time. Following the episode of seclusion or restraint, the patient should be allowed to voice his

576 Special clinical issues in forensic psychiatry

or her feelings about the episode and should be questioned as to what led up to the behavior requiring seclusion or restraint, as well as what could have been done to prevent the escalation. Recently in the United States, the Health Care Financing Administration (HCFA) has made many of the recommendations of the APA Task Force mandatory (HCFA 2000). A personal examination by a physician must be carried out within 1 hour of a patient being placed in seclusion or restraint. A person designated by the patient must be notified that he or she has been placed in seclusion or restraint. The HCFA specifies which information must be contained in an order for seclusion or restraint, and in forms that monitor vital signs, injury, nutrition, hydration, patient behavior and release from seclusion or restraint. The HCFA requires that both staff and patients be debriefed after an episode of either seclusion or restraint.

Long-term psychotherapy Long-term psychotherapy can be useful for violent patients who are not psychotic and primarily have personality disorders or intermittent explosive disorders (Lion and Tardiff 1987; Tardiff 1996). If spouse abuse is the problem, couples sessions may be indicated as long as the spouse’s safety can be ensured. The first goal of therapy is to evaluate whether the patient is really motivated. The patient must identify patterns of escalation in violence and learn to disengage at the early phase of escalation. Often, the early phase involves a physical feeling as an anger builds, for example, flushing of the face. In the therapy, the therapist should monitor transference and be prepared to deal with negative thoughts or threats by the patients. Counter-transference must be monitored, since violence can evoke inappropriate feelings and reactions to patients. Psychotherapy should provide insight as to why the patient must use violence as a means of expression. Often these patients have difficulty verbally expressing their feelings and conflicts. Themes common in the treatment of violent patients often involve low self-esteem.

Behavioral therapy Behavioral treatment programs have been used for the management of violent behavior in severely impaired institutional populations. This approach may be used for chronic schizophrenics or mentally retarded patients in conjunction with other treatment approaches. The basic principles have been described elsewhere (Libermann and Wong 1984; Wong et al. 1988). In setting up a behavioral treatment program on an inpatient unit, the services of a trained, experienced behavioral analyst should be obtained. It is the responsibility of the behavioral analyst to plan the treatment program in conjunction with the interdisciplinary staff and to train and supervise staff in

the implementation of the treatment program. Behavioral treatment programs should be reviewed periodically by persons other than the ward personnel to ensure their quality and ethical standards. In addition, the patient should be involved as much as possible in the formulation of the plan, and informed written consent should be obtained if the patient is competent to offer it. The goals and process of the treatment program should be discussed with the patient and an assessment should be made of the patient’s desires in considering privileges and rewards that may be used to motivate positive behavior.

CONCLUSION One must differentiate violence that is in the realm of psychiatry from violence that is not. Psychiatric and medical disorders associated with violence include drug and alcohol abuse, organic brain and systematic medical disorders, schizophrenia, mania, certain personality disorders, and mental retardation. The evaluation process for violence should follow that for other problems in psychiatry. This should include an assessment of the short-term potential for violence, which is analogous to the short-term prediction of suicide potential. Attention must be paid to prevention of violence by patients and the safety of all concerned. There are standards for the management of violent patients and all staff should be familiar with them.

REFERENCES American Psychiatric Association. 1985: Seclusion and Restraint; The Psychiatric Uses. Task Force Report No. 22. Washington, DC: American Psychiatric Association. American Psychiatric Association. 1993: Clinician Safety. Task Force Report No. 33. Washington, DC: American Psychiatric Association. Beck, J. 1985: The Potentially Violent Patient and the Tarasoff Decision in Psychiatric Practice. Washington, DC: American Psychiatric Press. Benjamin, L. 1993: Interpersonal Treatment of Personality Disorders. New York: Guilford Press. Binder, R.L., McNiel, D.E. 1988. Effects of diagnosis and context on dangerousness. American Journal of Psychiatry 145, 728–32. Bland, R., Orn, H. 1986. Family violence and psychiatry. Canadian Journal of Psychiatry 31, 129–37. Blau, J.R., Blau, P.M. 1982. The cost of inequality: metropolitan structure and violent crime. American Sociological Review 47, 114–29. Bouras, M., Drummond, C. 1992. Behavior and psychiatric disorders of people with mental handicaps living in the community. Journal of Intellectual Disability Research 36, 349–55.

Violence: causes and non-psychopharmacological treatment 577 Budd, R.D., Lindstrom, D.M. 1982. Characteristics of victims of PCP-related deaths in Los Angeles County. Journal of Toxicology and Clinical Toxicology 19, 997–1004. Centerwall, B.S. 1984. Race, socioeconomic status and domestic homicide: Atlanta, 1971–1972. American Journal of Public Health 74, 813–15. Choi, P., Parrott, A.C., Cowan, D. 1989. High dose anabolic steroids in strength athletes: effects upon hostility and aggression. Journal of Psychopharmacology 3, 102–12. Cook, P.J. 1982: The role of firearms in violent crime: an interpretive review of the literature. In Wolfgang, M.E., Weiner, N.A. (eds), Criminal Violence. Beverly Hills: Sage, 75–93. Craig, T.J. 1982. An epidemiological study of problems associated with violence among psychiatric inpatients. American Journal of Psychiatry 139, 1262–6. Eronen, M., Hakila, P., Tiihonen, J. 1996. Mental disorders and homicidal behavior in Finland. Archives of General Psychiatry 53, 497–501. Ghaziuddin, M., Ghaziuddin, N. 1992. Violence against staff by mentally retarded inpatients. Hospital and Community Psychiatry 43, 503–11. Giannini, A.J., Miller, N.S., Lioselle, R.H. 1993. Cocaine-associated violence and relationship to route of administration. Journal of Substance Abuse Treatment 10, 67–78. Goldstein, P.J. 1989: Drugs and violent crime. In Wolfgang, M.E., Weiner, N.A. (eds), Criminal Violence. Beverly Hills: Sage, 16–48. Hare, R.O., McPherson, L. 1984. Violent and aggressive behavior by criminal psychopaths. International Journal of Law and Psychiatry 7, 35–50. HCFA. 2000: JCAHO Comprehesive Accreditation Manual for Hospitals. Washington, DC, November. Holcomb, W.R., Anderson, W.P. 1983. Alcohol and multiple drug use in accused murderers. Psychological Reports 52, 159–64. Honer, W.E., Gewirtz, E., Turey, M. 1987. Psychosis and violence in cocaine smokers. Lancet i, 451. Jordan, B.K., Marmar, C.R., Fairbank, J.A. 1992. Problems in families of male Vietnam veterans with posttraumatic stress disorder. Journal of Consulting and Clinical Psychology 60, 916–23. Karson, C., Bigelow, L.B. 1987. Violent behavior in schizophrenic inpatients. Journal of Nervous and Mental Diseases 175, 161–4. Kay, S.R., Wolkenfeld, F., Murrill, L.M. 1988. Profiles of aggression among psychiatric patients. Journal of Nervous and Mental Diseases 176, 547–57. Krakowski, M., Convit, A., Jaeger, J., et al. 1989. Neurological impairment in schizophrenic patients. American Journal of Psychiatry 146, 849–53. Kutzer, N.B. 1990: Psychobiological factors in violent behavior. In Hertzberg, L., et al. (eds), Violent Behavior. Volume I: Assessment and Intervention. New York: PMA Publishing.

Lasko, N.B., Gurvits, T.V., Kuhne, A.A. 1994. Aggression and its correlates in Vietnam veterans with and without chronic posttraumatic stress disorder. Comprehensive Psychiatry 35, 373–85. Libermann, R.P., Wong, S.E. 1984: Behavioral analysis and therapy procedures related to seclusion and restraint. In Tardiff, K. (ed.), The Psychiatric Uses of Seclusion and Restraint. Washington, DC: American Psychiatric Press. Lindquist, P., Allebeck, P. 1990. Schizophrenia and crime: a longitudinal follow-up of 644 schizophrenics in Stockholm. British Journal of Psychiatry 157, 345–50. Lion, J.R., Tardiff, K. 1987: The long-term treatment of the violent patient. In Hales, R.E., Francis, A.J. (eds), The American Psychiatric Association Annual Review. Washington, DC: American Psychiatric Press, 537–48. Lowenstein, D.H., Massa, S.M., Rowbotham, M.C., et al. 1987. Acute neurologic and psychiatric complications associated with cocaine abuse. American Journal of Medicine 83, 841–6. McCormick, R., Smith, M. 1995. Aggression and hostility in substance abusers: the relationship to abuse patterns, coping style, and relapse triggers. Addictive Behaviors 20, 555–67. McNiel, D., Binder, R. 1991. Predictive validity of judgments of dangerousness in emergency civil commitment. American Journal of Psychiatry 148, 1317–21. Messner, S., Tardiff, K. 1986. Economic inequality and levels of homicide: an analysis of urban neighborhoods. Criminology 24, 297–317. Miller, R., Zadolinnyi, K., Hafner, R.J. 1993. Profiles and predictors of assaultiveness for different psychiatric ward populations. American Journal of Psychiatry 150, 1368–73. National Institute on Drug Abuse. 1999: Facts About Ecstasy. NIDA Notes. Volume 14, Number 4. Bethesda: National Institute on Drug Abuse. Patel, V., Hope, R. 1992. Aggressive behaviour in elderly psychiatric inpatients. Acta Psychiatrica Scandinavica 85, 131–40. Pfeffer, C., Plutchnik, R., Miziuchi, M. 1983. Predictors of assaultiveness in latency age children. American Journal of Psychiatry 140, 31–5. Pope, H., Katz, D. 1990. Homicide and near-homicide by anabolic steroid users. Journal of Clinical Psychiatry 51, 28–31. Reid, W.H., Balis, E.U. 1988: Clinical evaluation of the violent patient. In Tardiff, K. (ed.), The Psychiatric Clinics of North America. Philadelphia: W. B. Saunders, 527–37. Su, T., Pagliaro, M., Schmidt, P.J. 1993. Neuropsychiatric effects of anabolic steroids in male normal volunteers. Journal of the American Medical Association 269, 2760–4. Swanson, J.W., Holzer, C.E., Ganju, V.K., et al. 1990. Violence and psychiatric disorder in the community: evidence

578 Special clinical issues in forensic psychiatry from the Epidemiologic Catchment Area surveys. Hospital and Community Psychiatry 41, 761–70. Tardiff, K. (ed.). 1984a: The Psychiatric Uses of Seclusion and Restraint. Washington, DC: American Psychiatric Press. Tardiff, K. 1984b. Characteristics of assaultive patients in private hospitals. American Journal of Psychiatry 141, 1232–5. Tardiff, K. 1996: Assessment and Management of Violent Patients, 2nd edition. Washington, DC: American Psychiatric Press. Tardiff, K. (ed.). 1999: Medical Management of the Violent Patient: Clinical Assessment and Therapy. New York: Marcel Dekker. Tardiff, K. 2001: The past as prologue: the assessment of future violence in individuals with a history of past violence. In Simon, R., Shuman, D. (eds), Predicting the Past: The Retrospective Assessment of Mental States in Civil and Criminal Litigation. Washington, DC: American Psychiatric Press.

Tardiff, K., Koenigsberg, H.W. 1985. Assaultive behavior among outpatients. American Journal of Psychiatry 142, 960–3. Tardiff, K., Sweillam, A. 1980. Assault, suicide and mental illness. Archives in General Psychiatry 37, 164–9. Taylor, P.L., Gunn, J. 1984. Violence and psychosis. British Medical Journal 288, 1945–9. Weiger, I., Bear, D. 1988. An approach to the neurology of aggression. Journal of Psychiatric Research 22, 85–98. Wolfgang, M.E. 1981: Sociocultural overview of criminal violence. In Hays, J.R., Roberts, T.K., Solway, K.S. (eds), Violence and the Violent Individual. New York: S. P. Medical and Scientific Publications. Wong, S., Woolsey, J.E., Innocent, A.J., Liberman, R.P. 1988: Behavioral treatment of violent psychiatric patients. In Tardiff, K. (ed.), The Psychiatric Clinics of North America. Philadelphia: W. B. Saunders, 569–80. Yesavage, J.A. 1983. Bipolar illness: correlates of dangerous inpatient behavior. British Journal of Psychiatry 143, 554–7.

59 Pharmacological treatment of violent behaviors1 ROBERT H. GERNER INTRODUCTION Treatment interventions for the purpose of controlling violent behavior have been considered for centuries (Ray 1838) and have always been controversial. Effective pharmacological agents to achieve this control have only been available for several decades. Two main classifications of groups appropriate for intervention in violent behavior are generally accepted. First are individuals who have an accepted psychiatric disorder (DSM-IVR) (American Psychiatric Association, in press) that is associated with the behavior, such as persons in a psychotic state who commit a crime out of a delusion or command hallucination. Second are individuals whose behavior can be affected by use of medication, which through central or peripheral mechanisms reduces selected behaviors independent of the subject having an axis I disorder. Although it has been documented that the mentally ill are more likely to be victims than perpetrators of crime, there is no doubt that some individuals who are mentally ill do commit crimes or are violent when they are actively ill and not after their illness is treated (Krakowski, Volavka, and Brizer 1986; Krakowski, Jaeger, and Volavka 1988; McNiel and Binder 1991; Smith and Humphreys 1997; Bhui et al. 1998; Hodgins 1998; Modestin 1998; Matson et al. 1999). Such clinical situations naturally are anecdotal and cannot be studied using controlled experiments. Arguments that patient groups are not more violent than the general population are of interest but are not relevant to the issue of whether proper treatment will reduce violent or criminal behavior by a particular patient (Graham, Thienhaus, and Somoza 1990; Tardiff and Sweillarn 1980). The major diagnostic categories associated with this situation are schizophrenia, mania (Stueve and Link 1997),

1

The opinions herein do not necessarily reflect the official position of the Veterans Administration.

depression (Korn, Plutchik, and Van Praag 1997), dementias, and attention deficit disorder. Seriously mentally ill inmates rarely have been treated before their arrest (Lamb and Grant 1983), suggesting that barriers to access and support for mental healthcare contribute to their deviant behaviors. One study found that crimes committed by this group of inmates have been directly and specifically associated with psychotic symptoms in 46 per cent and indirectly in another 36 per cent (Taylor 1985), and a positive association of degree of violence and psychotic symptomatology has been found (Woodward et al. 1999; Morgan and Lilienfeld 2000). Others have found that neurological abnormalities (especially those affecting integrative sensory and motor functions) are greater in violent schizophrenics (Krakowski et al. 1989). Use of alcohol (Yesavage and Zarcone 1983), phencyclidine (Brecher et al. 1988; Convit, Nemes, and Volavka 1988), or stimulants such as phenylpropanolamine (Cornelius, Soloff, and Reynolds 1984) have been associated with exacerbation of psychotic symptoms and violence. Violent behavior by schizophrenics has been shown to be inversely correlated with serum levels of at least one neuroleptic, thiothixene, strongly supporting the argument that in this group of patients it is the uncontrolled illness that reduces the threshold for criminal violent behavior (Yesavage 1992). Antiaggressive medications per se do not exist. Numerous case reports discuss the use of various medications on populations that have inappropriate episodic or impulsive aggressivity, but most of these are methodologically flawed because thorough psychiatric evaluations were not done (or were not feasible). It is therefore difficult to compare one report to another with regard to population diagnosis, treatment efficacy, optimal dosage/blood level, duration of treatment, as well as definitive outcome criteria. However, even with such limitations, several agents have a large body of clinical support:

•

Phenytoin has been studied at low (100 mg/day) and high (300 mg/day) doses with placebo control and has

580 Special clinical issues in forensic psychiatry

•

been found to be quite effective in reducing aggressive acts in a non-epileptic prison population at the 300 mg/day dose (Barratt et al. 1991). Lithium (Sheard et al. 1976; Schiff et al. 1982) and carbamazepine in non-mood-disordered patients (Luchins 1983; Mattes, Rosenberg, and Mays 1984), high-dose beta blockers (especially propranolol 200–800 mg/day), nadolol, and pindolol have a broad range of antiaggressive effects and are well tolerated (Greendyke and Kantner 1986; Polakoff, Forgi, and Ratey 1986; Greendyke, Schuster, and Wooton 1984), as are combinations of the former agents (Buck and Havey 1986).

More recently, studies have explored the neurobiologic correlates of human aggression (focusing on serotonin, dopamine and norepinephrine) (Berman and Coccaro 1998). In a pilot study looking at antiaggressive responses to treatment with 5-hydroxytryptamine (5-HT) agents in human subjects, Coccaro’s research suggested a direct correlation to the responsiveness of central 5-HT synapses, reduced number of serotonin receptors using pharmacological challenges and positive response to selective serotonin reuptake inhibitors (SSRIs), reporting that the addition of fluoxetine reduced both acts and fantasies of aggression in violent/aggressive males. Another group that conducted brain single photon emission tomography (SPECT) studies observing significantly increased activity in the anteromedial portions of the frontal lobes of aggressive individuals (Amen et al. 1996) notes that serotoninergic medications are known to decrease activity in this part of the brain. The 5HT1a agonist/antagonist buspirone has demonstrated moderate reduction in aggression in elderly and adolescent patients (Pfeffer, Jiang, and Domeshek 1997). The latency of onset of these agents may be several weeks during which other supportive measures may be needed. While some schemas have been proposed for decision making (Yudofsky, Silver, and Hales 1990), clinical judgment and a systematic approach to clinical trials of several agents remain the mainstay of effective interventions. Dose and duration of treatment is not systematized, although if one hypothesizes that an underlying neuronal dysfunction is being stabilized, then a maintenance treatment strategy is very compelling.

SCHIZOPHRENIA The implications specifically relevant for schizophrenia are that lack of diagnosis, inadequate treatment, and non-compliance to treatment will increase the probability of this group becoming involved in criminal behavior or violence (Kienlen et al. 1997; Flannery et al. 1998). Specific treatment for schizophrenics who have been criminal or violent should initially be directed at use of proven antipsychotic medication used as indicated by the clinical

factors. Hence, depot preparations (haloperidol or fluphenazine and others in the future) guarantee compliance and are at least as effective as other neuroleptics (Van Putten et al. 1991). Active treatment of side effects is necessary, since some extrapyramidal syndromes, especially akathisia (Herrera et al. 1988), have been associated with an increase in violent behavior. Although relatively common with the potent neuroleptics, sophisticated assessment of akathisia requires a high index of suspicion in the clinician’s mind since restless legs per se is not an absolute diagnostic marker of this condition. Rather, upon direct questioning, patients may be able to acknowledge that they have an inner sense of restlessness, agitation, or tension felt in the body cavity. Patients who are not able to communicate due to their illness require a clinical judgment to be made on the basis of observation. Propranolol is considered the treatment of choice for the duration of neuroleptic treatment at a dose of approximately 20 mg three to four times a day or 120–200 mg/day of the extended-release preparation. A second choice has been lorazepam at 1–2 mg twice a day (Dumon et al. 1992). The anticholinergic agents trihexyphenidyl, biperiden, and benztropine are not very effective for akathisia. The newer antipsychotic agents (quetiapine, olanzapine, and risperidone) have an infrequent incidence of extrapyramidal side effects. Clozapine has been used as a specific antiaggressive agent with some success (Buckley et al. 1995; Glazer and Dickson 1998). However, these agents may only be relatively indicated in this population unless compliance can be assured. The use of amantadine as an anti-Parkinson agent may be relatively contraindicated in patients with a criminal assaultive history because it is a dopamine agonist and there is considerable case report literature of it exacerbating psychotic symptoms (Gerner 1992). Benzodiazepines (Victor, Link, and Binder 1984; Raines and Greenspan 1987) are also used as adjunctive treatment. The range and type of benzodiazepine vary greatly. Clonazepam at 0.25–10 mg/day or the equivalent of other benzodiazepines may be tried. Carbamazepine at usual clinical doses/blood levels has been used for adjunctive antiaggressive effects in schizophrenics with chronic (Neppe 1983) or atypical features (Neppe, Bowman, and Sawchuk 1991). If assaultive behavior continues after a neuroleptic trial of several months, and the patient is in a therapeutic setting, then adjunctive medications should be considered.

MOOD DISORDERS Mood disorders have a complex relationship to violence. Dysthymia and depression have been associated with robbery and repeated fighting, and mania has been associated with violence (Collins and Bailey 1990). Both

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mania and depression are common and are underdiagnosed in prison populations, with an incidence of 10 per cent being found by Good (1978). Murder-suicides are particularly associated with males who are depressed (Rosenbaum 1990). Irritability in mania, associated drug/alcohol use (in 50 per cent of bipolar patients; Goodwin and Jamison 1990), stimulus-seeking behavior, hypersexuality, and impulsivity lead to high-speed and reckless driving, inappropriate sexual advances and acts, embezzlement of money, fraudulent behavior, fighting, threats, and so forth. Usually, these are symptoms of the active phase of the illness, and although the behavior is criminal, the treatment is no different than that for noncriminal affective disorder. Particular attention must be given for non-responders to standard treatments both for depression and bipolar disorders (mood stabilizers such as lithium, valproate, lamotrigine and/or carbamazepine), and rational polypharmacy will often be indicated (Kahn et al. 2000). Kleptomania used to be considered a psychological manifestation of neurotic etiology (Goldman 1992). However, McElroy et al. (1991) reported that all of twenty kleptomanic patients had a lifetime diagnosis of major mood disorder (with a high comorbidity for anxiety and eating disorder) and that the kleptomanic behaviors abated when specific treatment was given for the mood disorder. Hollander (1999) has found that many such patients have obsessive-compulsive spectrum disorder. Obsessive-compulsive disorder (OCD) may also manifest in criminal acts such as pyromania, stalking, the full range of sexually perverse acts, and defacing. Only a thorough history and open-minded evaluation is likely to discover this subset of patients/criminals. Treatment, of course, should initially be directed at the OCD through use of serotoninergic agents: clomipramine and/or the SSRI group. In addition to addressing the OCD disorder, SSRIs may non-specifically reduce libido for sexual compulsions. Of the SSRIs, fluoxetine – because of its extended half-life – may be converted to weekly dosing, if compliance is questionable. Refractory cases may require high doses of SSRIs and/or augmentation. Two studies (Koran, Ringold, and Elliott 2000; McDougle et al. 2000) have seen improvement in refractory OCD patients when low-dose risperidone has been added to an SSRI. One small series found similar results with olanzapine augmentation (Weiss et al. 1999), while another group (Fallon et al. 1998) found that intravenous clomipramine was an effective treatment for OCD patients with a history of inadequate response to oral clomipramine (not available in the U.S.).

potential relationship with etiology and avoiding generalizing from the disorder to the behavior on a wider scale. Complex Partial Seizures (temporal lobe epilepsy) does indeed manifest as aggression/irritability in some individuals, more often perhaps during inter-ictal periods than ictal ones (Devinsky and Bear 1984; Gerard et al. 1998; Kanemoto, Kawasaki, and Mori 1999; van Elst et al. 2000). Such individuals may not respond to simple anticonvulsant treatments. Most case reports, however, reveal that aggressive treatment strategies were not carried out such as using two anticonvulsants, adding benzodiazepines or propranolol, or using antipsychotics or antiandrogens (below). Although all anticonvulsant agents have been tried and reported to work in some individuals, since the limbic structures are considered to be the most likely pathophysiological site, carbamazepine (Mattes 1986) or valproate (Giakas, Scibyl, and Mazure 1990), lamotrigine, oxcarbazepine, topiramate, or levetiracetam would be reasonable choices. Atypical features in the epileptic spectrum are often found in violent criminals. Electroencephalograms (EEGs) may be non-specific, and clinical judgment remains a valid standard for initiating a treatment trial (Fenwick 1989; Lewis and Pincus 1989). A German study of 222 defendants referred for psychiatric evaluation found no connection between violent behavior and EEG abnormalities in general, but their findings suggest that focal abnormalities, especially of the left hemisphere, were related to a significantly higher number of violent offenses (Pillmann et al. 1999). Research with positron emission tomography (PET) evaluating regional brain glucose metabolism in violent psychiatric patients showed significantly lower relative metabolic values in medial temporal and prefrontal cortices than did normal subjects (Volkow et al. 1995). Few systematic data are available using any of these procedures, but topographic EEGs, as well as SPECT and PET imaging, are very promising for identifying potentially treatable central nervous system dysfunctions in this population. Anticonvulsants are often effective in this population, and empirical treatment trial is warranted. There is some controversy whether phenytoin slows cognitive processes in a greater percentage of patients (Gerner 1992; Aldenkamp and Vermeulen 1995). For non-responders, use of lowto standard-dose adjunctive antipsychotics is not contraindicated in patients on anticonvulsants (Gerner 1992; Brodtkorb, Sand, and Strandjord 1993). Somnambulism can manifest itself as violent behavior (Oswald and Evans 1985). Treatment is the use of agents that block stages III and IV sleep, usually imipramine or a similar tricyclic at doses adjusted by clinical response.

NEUROPSYCHIATRIC DISORDERS CENTRAL NERVOUS SYSTEM (CNS) INJURIES The association of neuropsychiatric disorders and aggression has been controversial, and the same concerns apply as with the primary psychiatric disorders with regard to a

Non-specific CNS injuries may predispose individuals to violence. These injuries may be due to open or closed

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trauma, concussion, stroke, encephalitis, or alcohol abuse (Rosenbaum and Hoge 1989; Paradiso, Robinson, and Arndt 1996; National Institutes of Health 1998; Mathias and Coats 1999). No specific treatments are available since the injuries may affect many neural substrates and hence response to medications varies greatly. Treatments are judged by clinical response and are similar to those for ADHD or epilepsy and additionally include verapamil (approximately 480 mg/day divided q.i.d.) (Greendyke, Webster, and Gulya 1990), propranolol (100–800 mg/day) (Elliot 1977; Schreier 1979; Yudofsky, Williams, and Groman 1981; Yudofsky et al. 1984; Ratey, Morrill, and Oxenkrug 1983), other lipophilic beta blockers such as metoprolol (Mattes 1987), and buspirone (15–45 mg/day) (Ratey et al. 1991). Benzodiazepines with high potency may be useful (Griffity 1985; Bond, Mandos, and Kurtz 1989), although there are rare reports of these agents and amytal inducing psychiatric syndromes of agitation through disinhibition (Pulman and Lal 1982; French 1989).

DEMENTIA Dementia of the Alzheimer type is often accompanied by delusions or misidentifications that are significantly associated with episodes of aggression, although not at a level that predicts behavior for an individual (Deutsch et al. 1991; Harwood et al. 1998). Pharmacotherapies (Yudofsky, Silver, and Hales 1990) traditionally include low doses of potent neuroleptics, although potent benzodiazepines (Fritz and Stewart 1990), buspirone (Colenda 1988), and carbamazepine (Chambers, Bain, and Rosbottom 1982; Marin and Greenwald 1989) are often useful. The non-potent typical neuroleptics have a high anticholinergic activity, and at normal clinical doses are likely to increase confusion and disinhibited behaviors (Masand 2000). Therefore, chlorpromazine and thioridazine are relatively contraindicated in this population (Devanand, Sackeim, and Mayeux 1988). The newer atypical antipsychotics olanzepine, quetiapine and risperidone have all demonstrated positive antiaggressive/agitation effects in the aged and are relatively free of extrapyramidal and anticholinergic side effects (De Deyn et al. 1999; Katz et al. 1999; Stoppe, Brandt, and Staedt 1999; MacKnight and Rojas-Fernandez 2000; Edell and Tunis 2001). Propranolol has been used effectively to treat aggressive behavior in dementia (Haspel 1995). One group using low-dose propranolol monotherapy (10–80 mg/day) in a small series showed a significant reduction in aggression, agitation and in wandering (Shankle, Nielson, and Cotman 1995). Although there are no controlled trials, serotoninergic agents are reported as useful in nursing homes for treatment of hypersexuality or paraphilias (Levitsky and Owens 1999) in older populations or cognitively impaired populations.

ATTENTION DEFICIT DISORDER Attention deficit disorder (ADD) may be due to infection, trauma, heredity, or unknown causes. ADD individuals are at high risk for developing criminal behaviors, conduct disorders, and secondary substance abuse, especially when the primary ADD is untreated or treatment is discontinued during adolescence (Borland and Heckman 1976; Satterfield, Hoppe, and Schell 1983; Gittelman et al. 1985; Biederman et al. 1998; Crowley et al. 1998; Dalteg, Gustafsson, and Levander 1998; Levin, Evans, and Kleber 1998; King et al. 1999). Aggressivity in these individuals is related to their biological/genetic status and not to the families in which they are raised (Cadoret and Stewart 1991). Although controlled studies are lacking in the criminal behavior subgroup, continued use of tricyclic drugs and/or stimulants such as methylphenidate, dexedrine, and possibly bupropion has been shown to reduce aggression and behavior dysfunction and to result in better long-term outcomes generally (Stringer and Josef 1983; Paternite et al. 1999). Dosages of stimulants that are effective have a wide interindividual range (e.g., 10–80 mg/day of methylphenidate) as do the antidepressant bupropion (75–400 mg/day in divided doses) and the tricyclic antidepressants (25–200 mg/day imipramine equivalents). Perhaps counterintuitively, the risk of substance abuse is reduced when these subjects are treated (Biederman et al. 1998).

SEXUAL VIOLENCE Many criminal acts involve sexual crimes. There is an extensive literature on the linkage of androgens and sexual offenses and indeed, with aggression separate from sexual crimes per se. Exogenous testosterone increases mood and aggressivity in male humans (Mazur and Lamb 1980; Pope, Kouri, and Hudson 2000), although a simple correlation of serum testosterone with violent or sexual criminal behavior is probably not present (Bradford and McLean 1984). However, the data supporting the consensus of the effect of decreasing male hormones on violence, sexual crimes, and criminality are overwhelming in breadth and consistency in studies from many countries and over several decades of investigations. Also of interest is research on the testosterone modulation of 5HT1A and 5HT1B receptor agonists and the subsequent effects on inter-male aggression (Simon et al. 1998). Two medications have usually been used to decrease testosterone: medroxyprogesterone acetate (Provera oral, or Depo-Provera) and cyproterone acetate:

•

Medroxyprogesterone dosages can be individualized using serum testosterone levels as an objective criterion, with levels of less than 100 ng/dl being reasonable.

Pharmacological treatment of violent behaviors 583

•

Medroxyprogesterone acetate is usually given as a depot intramuscular injection on a weekly basis at doses of 200–400 mg. It increases the metabolism and decreases the production of testosterone via pituitary inhibition of luteinizing hormone (LH). Male sexual interest and physiological arousal is inhibited, sometimes completely. Sexual fantasies are also markedly reduced or eliminated. Loss of male secondary sex characteristics and feminization are not associated with treatment. The synthetic progesterone, cyproterone acetate, blocks androgenic effects at genital target organs and not the brain, although serum testosterone levels are also reduced. Oral doses are usually 50 mg b.i.d.-q.i.d., and depot injection forms (300 mg q. 1–2 weeks) are available in some countries (not in the United States).

Side effects are rare for both medroxyprogesterone acetate and for cyproterone acetate, although medroxyprogesterone, like other female hormones, can exacerbate fluid retention and is rarely associated with thrombotic phenomena. Cyproterone acetate may produce gynecomastia, a decrease in body hair, and an increase in head hair in a significant minority of subjects. These effects and anti-aggressive and sexual inhibitory effects are reversible over several weeks as the drug is eliminated. Other oral antiandrogens are available and are used for cancer therapy (flutamide), although use for criminal/ aggressive behaviors has not been explored. The length of treatment has usually been considered to be for years or lifelong since the purpose is not punishment but to prevent the individual from committing a crime (Fuller 1989). These agents are notably successful (approximately 80 per cent) (Bradford 1983) in follow-up studies when compliance is ensured (Laschet and Laschet 1971; Laschet 1973; Laschet and Laschet 1975; Ortmann 1980; Gagne 1981), especially when compared to monotherapy with behavioral or punitive (prison) treatments (Abel et al. 1988; Becker, Kaplan, and Kavoussi 1988; Marshall and Barbaree 1988; Pithers et al. 1988; Rice, Quinsey, and Harris 1991), a factor that may markedly result in enhancing the cost/benefit analysis of pharmacotherapy over other or no treatments (Prentky and Burgess 1990). Compliance in a non-structured setting is a serious problem, however (Kiersch 1990), and is beyond the scope of this chapter. These treatments are effective for males who commit crimes related to sex with or without an association with violence or dementia or retardation and without regard to the sexual object (i.e., pedophiles, homosexual crimes, heterosexual rape, sexual fetishes, dementiaassociated sexual behavior) (Money 1970; Cooper et al. 1972; Berlin and Neinecke 1981; Cooper 1981; Bradford and Pawlak 1987; Cooper 1987; Ross et al. 1987). Concerns that such treatment may alter sexual orientation are unfounded (Cordoba and Chapel 1983). Drug abuse and especially alcohol are acknowledged to be highly associated with crime and/or violence, both

sexual and non-sexual (Mezzich et al. 1997). Although not directly acting to block criminal behavior, the use of disulfiram, methadone or levomethadyl acetate (LAAM), and more recently naltrexone, does reduce criminal behavior from either a lowering of impulse thresholds, CNS irritability, or drug-seeking behavior. Of these agents, disulfiram may paradoxically produce manic or schizophrenic exacerbation, because in addition to blocking alcohol dehydrogenase, it blocks dopamine beta hydroxylase, the enzyme that converts dopamine to norepinephrine, thus causing a relative increase in dopamine. All three of these agents can be thoughtfully combined with the others listed in this chapter. Some researchers have posited that a relative reduction of serotonin metabolism may play a role in vulnerability to alcohol abuse and dependence, and other substance use disorders (Brady, Myrick, and McElroy 1998; Heinz et al. 1998). This chapter has made no attempt to deal with the political or ethical issues of treatment of felons, prisoners, or those whose capacity to give consent for treatment is impaired or coerced. However, many pharmacological Table 59.1 Agents of potential use in reducing violent behaviors Anti-androgens: criminal aggressive behavior associated with sexual drive, fantasies, compulsions or impulses Anticonvulsants: (carbamazepine, lamotrigine, oxcarbazepine, valproate): criminal aggressive behavior associated with mood disorders, schizophrenia, impulsivity, brain damage, or epilepsy Antidepressants/antiobsessive-compulsives: criminal aggressive behavior associated with depression, compulsions, or attention deficit disorder Atypical antipsychotics: behavior in mania, schizophrenia, brain injury/dementia Benzodiazepines: criminal aggressive behavior associated with mania, schizophrenia, brain damage, dementia, or epilepsy Beta-blockers: criminal aggressive behavior associated with schizophrenia, neuroleptic side effects, brain damage, or dementia Buspirone: aggression associated with dementia or central nervous system damage Disulfiram/naltrexone: alcohol-associated disinhibition and violent or sexual crimes Lithium: criminal aggressive behavior associated with mania or impulsivity Methadone/LAAM: opiate-drug-seeking crimes Neuroleptics: criminal aggressive behavior associated with mania or schizophrenia Stimulants: criminal aggressive behavior associated with attention deficit disorder or brain damage Verapamil: criminal aggressive behavior associated with mania or dementia

584 Special clinical issues in forensic psychiatry

agents are likely to be effective in reducing criminal behavior whether or not such are due to Axis I disorders, neuropsychiatric disorders, or sexual deviance. The research data permit us to choose among several agents with clinical correlation to history and appropriate laboratory testing to make a prescription. Those agents commonly used, together with their potential indications, are detailed in Table 59.1.

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588 Special clinical issues in forensic psychiatry Sheard, M.H., Marini, J.L., Gridges, C., et al. 1976. The effects of lithium in impulsive aggressive behavior in Man. American Journal of Psychiatry 133, 1409–13. Simon, N.G., Cologer-Clifford, A., Lu, S.F., McKenna, S.E., Hu, S. 1998. Testosterone and its metabolites modulate 5HT1A and 5HT1B agonist effects on intermale aggression. Neuroscience and Biobehavioral Review 23, 325–36. Smith, A.D., Humphreys, M. 1997. Characteristics of in-patients transferred to a locked ward in a Scottish psychiatric hospital. Health Bulletin (Edinburgh) 55, 77–82. Stoppe, G., Brandt, C.A., Staedt, J.H. 1999. Behavioral problems associated with dementia: the role of newer antipsychotics. Drugs and Aging 14, 41–54. Stringer, A.Y., Josef, N.C. 1983. Methylphenidate in the treatment of aggression in two patients with antisocial personality disorder. American Journal of Psychiatry 140, 1365–6. Stueve, A., Link, B.G. 1997. Violence and psychiatric disorders: results from an epidemiological study of young adults in Israel. Psychiatry Quarterly 68, 327–42. Tardiff, K., Sweillarn, A. 1980. Assault, suicide, and mental illness. Archives in General Psychiatry 37, 164–9. Taylor, P.J. 1985. Motives for offending among violent psychotic men. British Journal of Psychiatry 147, 491–8. van Elst, L.T., Woermann, F.G., Lemieux, L., Thompson, P.J., Trimble, M.R. 2000. Affective aggression in patients with temporal lobe epilepsy: a quantitative MRI study of the amygdala. Brain 123, 234–43. Van Putten, T., Marder, S.R., Wirshing, W.C., Aravagiri, M., Chabert, N. 1991. Neuroleptic plasma levels. Schizophrenia Bulletin 17, 197–216. Victor, B.S., Link, N.A., Binder, R.L. 1984. Use of clonazepam in mania and schizoaffective disorders. American Journal of Psychiatry 141, 1111–12. Volkow, N.D., Tancredi, L.R., Grant C., et al. 1995. Brain glucose metabolism in violent psychiatric patients: a preliminary study. Psychiatry Research 61, 243–53. Weiss, E.L., Potenza, M.N., McDougle, C.J., Epperson, C.N. 1999. Olanzapine addition in obsessive-compulsive disorder refractory to selective serotonin reuptake inhibitors: an open-label case series. Journal of Clinical Psychiatry 60, 524–7. Woodward, M., Williams, P., Nursten, J., Badger, D. 1999. The epidemiology of mentally disordered offending:

a systematic review of studies, based in the general population, of criminality combined with psychiatric illness. Journal of Epidemiology and Biostatistics 4, 101–13. Yesavage, J.A. 1992. Inpatient violence and the schizophrenic patient: an inverse correlation between danger-related events and neuroleptic levels. Biological Psychiatry 17, 1331–7. Yesavage, J.A., Zarcone, V. 1983. A history of drug abuse and dangerous behavior in inpatient schizophrenics. Journal of Clinical Psychiatry 44, 259–61. Yudofsky, S., Williams, D., Groman, J. 1981. Propranolol in the treatment of rage and violent behavior in patients with chronic brain syndromes. American Journal of Psychiatry 138, 218–20. Yudofsky, S.C., Stevens, L., Silver, J., Barsa, J., Williams, D. 1984. Propranolol in the treatment of rage and violent behavior associated with Korsakoff’s psychosis. American Journal of Psychiatry 141, 114–15. Yudofsky, S.C., Silver, J.M., Hales, R.E. 1990. Pharmacologic management of aggression in the elderly. Journal of Clinical Psychiatry 51(suppl.), 22–8.

Suggested reading Gawin, F.H., Allen, D., Hurnblestone, B. 1989. Outpatient treatment of crack cocaine smoking with flupenthixol decanoate. Archives of General Psychiatry 46, 322–5. Gerner, R. 1991. Rational polydrug use in psychiatry. Western Journal of Medicine 155, 5–18. Gerner, R.H., Stanton, A. 1992. Algorithm for patient management of acute manic states: lithium, valproate, or carbamazepine. Journal of Clinical Psychopharmacology 12(suppl. 1), 5–63. Linden, R.D., Pope, H.G., Jonas, J.M. 1986. Pathological gambling and major affective disorder: preliminary findings. Journal of Clinical Psychiatry 47, 201–3. McCormick, R.A., Russo, A.M., Ramirez, L.F., et al. 1984. Affective disorders among pathological gamblers seeking treatment. American Journal of Psychiatry 141, 215–18. Rosenlicht, N.Z., Gerner, R.H. 1990. Systematic approach to the psychopharmacologic treatment of resistant depression. Annals in Clinical Psychiatry 2, 57–65.

60 Violence and epilepsy: an approach to expert testimony DAVID M. TREIMAN

Actus non facit reum nisi mens sit rea. (The deed does not make a man guilty unless his mind is guilty.)

Neurologists and psychiatrists are frequently asked to provide expert testimony as to whether a violent criminal act could have been caused by an epileptic seizure. This is because of the belief held by many psychiatrists and some neurologists that violent and aggressive behavior can occur as a symptom of epilepsy. Defense attorneys have learned that an ‘epilepsy defense’ may be the best means of obtaining acquittal for their client, especially if there is little doubt that the client committed the aggressive act of which he or she is accused. Because of these issues it becomes worthwhile to consider a number of questions relating to whether or not ictal aggression can occur and what should be the proper role of the neurologist or psychiatrist asked to provide expert testimony. The following questions need to be considered: 1 What are the fundamental characteristics of epileptic seizures? How do we determine if a paroxysmal event is an epileptic seizure? 2 Under what circumstances could ictal aggression or violence occur? What is the pathophysiology of ictal aggression, if it occurs at all? 3 Is there evidence from the medical or legal literature that ictal aggression has actually occurred? What is that evidence? 4 Is there evidence that inter-ictal aggression occurs as a part of an epilepsy syndrome? Is epilepsy more frequent in violent prisoners than in the general population? 5 Are there other causes of paroxysmal violence which should be considered in a differential diagnosis of ictal aggression? 6 What guidelines should be followed by an expert witness when considering the possible relationship between a violent event and an epileptic seizure?

An epileptic seizure can be defined as ‘a clinical manifestation of a [transient, usually hypersynchronous, abnormal electrical discharge in the cerebral cortex] consisting of sudden and transitory abnormal [behavioral] phenomena, which may include alterations of consciousness; motor, sensory, autonomic or psychic events; perceived by the patient or an observer’ (International League Against Epilepsy 1993). Epilepsy is defined as a condition characterized by recurrent spontaneous seizures not due to active cerebral disease or injury. In 1969, the International League Against Epilepsy (ILAE) adopted an International Classification of Epileptic Seizures (Gastaut 1970). This classification, which was modified in 1981 (Commission on Classification and Terminology of the International League Against Epilepsy 1981), makes a fundamental distinction between seizures which are generalized from onset (the initial behavioral and electrical manifestations are bilaterally symmetrical) and those which are partial (focal) in onset (the initial behavioral and electrical manifestations are attributable to seizure activity in one area of the brain) which may or may not secondarily generalize (Table 60.1). Although another revision is now under consideration by the ILAE (Engel 2001), the 1981 classification continues to be valuable for clinical purposes. Each of the six kinds of primarily generalized epileptic seizures and three kinds of partial onset seizures listed in this classification has well-defined characteristics. Recognition of these characteristics is useful, both in determining the proper seizure classification and in determining whether or not a paroxysmal event was an epileptic seizure. There is a set of common characteristics which all epileptic seizures share: 1 Epileptic seizures are usually discrete, time-limited events with an identifiable onset and termination. 2 Most epileptic seizures, particularly those types which possibly could be implicated as a cause of ictal

590 Special clinical issues in forensic psychiatry Table 60.1 International classification of epileptic seizures Partial (onset) seizures Simple partial seizure Complex partial seizures Partial seizures evolving to secondarily generalized seizures Generalized (from onset) seizures Absence seizures Atypical absence seizures Myoclonic seizures Clonic seizures Tonic seizures Tonic-clonic seizures Atonic seizures Modified from Commission (Commission on Classification and Terminology of the International League Against Epilepsy 1981).

violence, have a well-defined and predictable evolution of behavior from beginning to end. 3 After termination of most seizures, there is a progressive recovery of consciousness and neurological function. 4 Epileptic seizures may be expressed as a variety of behaviors within one seizure type, but epileptic seizures are generally stereotyped within the same individual. The first challenge to the physician who is trying to determine if a paroxysmal act of violence was epileptic in nature is to identify whether or not the event fulfilled the characteristics of an epileptic seizure and, if so, to classify that seizure. This is best done by having a thorough familiarity with the characteristics of each of the nine defined types of epileptic seizures and by obtaining a detailed description of the sequence of events which occurred during the event. It is important to insist on a second-by-second description of the event. What was the accused doing before the violent act, at the start of the act, during the act, and after the event? What happened, in exactly what sequence? Of crucial importance: did the violent act occur after the start of behavior characteristic for the seizure type alleged to have occurred or was the violent event the very first abnormal behavior? Was there any premeditation regarding the violent act? Was the accused provoked, even in some slight way, to commit violence? It is worthwhile here to consider the types of epileptic seizures which have been implicated in violent or aggressive behavior. There are only three: primarily or secondarily generalized tonic-clonic and complex partial seizures. In simple partial and myoclonic seizures there is no loss of consciousness. Thus, directed aggression for which the accused later claims amnesia cannot, by definition, occur. During such a seizure the patient is fully capable of differentiating right from wrong. There have been many reports of simple or complex partial seizures manifested as feelings of fear or anger, starting with reports by three of the giants of early epileptology: Hughlings

Jackson (1931, see Taylor, Holmes and Walshe 1931), Sir William Gowers (1881), and Wilder Penfield (1951). Even if a simple partial seizure is manifested by intense feelings of anger or fear, the patient retains the capacity to suppress the impulse to act on such feelings with directed violence (assuming, of course, that the patient has the capacity to suppress such impulses under normal circumstances). Tonic, clonic, and atonic seizures occur almost exclusively in mentally retarded children and are so brief and/or stereotyped that it is difficult to imagine directed aggression occurring as a part of such a seizure. This is also true of primarily or secondarily generalized tonic-clonic seizures, but resistive violence (which will be discussed further below) has been reported during the postictal recovery phase after the end of generalized tonic-clonic seizures. Postictal psychosis, which may occur after tonic-clonic and complex partial seizures, may also give rise to directed aggression. This also will be discussed further below. Both simple partial and complex partial seizures may spread to engage diencephalic structures, at which time the patient will exhibit generalized tonic and/or clonic behavior. The sequence is predictable: initial tonic posturing, followed by clonic jerking of the face, trunk, and/or extremities which increases in amplitude and decreases in frequency, until there is an abrupt cessation of the jerking and the patient remains in a motionless, comatose state from which there is usually gradual recovery (although recovery may be rapid following frontal lobe seizures). During the recovery period (the postictal phase) the patient may be confused and disoriented and may experience an impairment of normal social inhibitions. A complex partial (psychomotor) seizure is the only type of seizure with behavior compatible with the possibility of truly ictal directed aggression. Therefore, it is important to consider in detail the clinical characteristics of this seizure type. Delgado-Escueta and colleagues (1977, 1979, 1982) suggested that complex partial seizures typically exhibit two or three distinct behaviors, which occur in a predictable sequence. In complex partial seizures of mesial temporal origin the seizure begins with a motionless stare, followed by stereotyped, usually oroalimentary, automatisms, followed by reactive automatisms. In complex partial seizures of lateral temporal or extratemporal origin the stare is omitted, so the seizure starts with stereotyped automatisms followed by reactive automatisms. ‘Stereotyped automatisms’ refer to automatic behavior which is more or less the same from seizure to seizure within the same patient. ‘Reactive automatisms’ refer to automatic behavior for which the patient is also amnestic and which occurs during the ictal phase of the seizure (the EEG still shows epileptiform discharges). However, the behavior is not constant from seizure to seizure but rather is modified by external influences such as being led by a nurse or given a glass of water to drink. A number of other investigators have also contributed to our understanding of the semiology

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of complex partial seizures, including Theodore, Porter, and Penry (1983) Williamson et al. (1985), Williamson and Spencer (1986), Quesney (1986), Bancaud (1981, 1987), and Wieser (1983b). Kotagal (2001) recently provided a comprehensive review of the various clinical presentations of complex partial seizures.

PATHOPHYSIOLOGY OF ICTAL AGGRESSION Given this description of the behavioral patterns of the nine seizure types recognized in the International Classification (Commission on Classification and Terminology of the International League Against Epilepsy 1981), is it possible that an individual could commit a violent or aggressive act, for which he or she has little or no memory, as the result of a seizure? For simple partial seizure the answer is clearly no, because consciousness and memory are retained during the duration of the seizure. If complex partial and primarily or secondarily generalized tonic and/or clonic seizures are considered, how could ictal aggression occur? Treiman (1991) suggested five circumstances under which ictal violence or aggression theoretically could occur. However, as will be discussed below there is little evidence that some of these possible types of ictal aggression ever actually happen: 1 Primary ictal aggression: aggressive behavior which is directly stimulated by the epileptic discharge, as was suggested by some of the early human brain stimulation studies (Delgado, Halim, and Chapman 1952; Heath 1955; Chapman 1958; Ursin 1960; Chatrian and Chapman 1960; King 1961; Heath 1962; Heath 1964; Delgado et al. 1968; Ervin, Mark, and Stevens 1969; Mark et al. 1969; Mark and Ervin 1970; Kalyanaraman 1975; Mark, Sweet, and Ervin 1975). However, for a critical review of these reports see Treiman (1991). 2 Secondary ictal aggression: aggressive behavior released by disinhibition of normal social controls by a seizure discharge or which occurs in response to an epileptic discharge which produces a noxious or aversive stimulus. Mendez (1998) reported a case of a 37-year-old man who experienced an overwhelming sense of threat which began during post-ictal confusion, but persisted for about 24 hours after a seizure. He focused these feelings on anyone who was in his immediate environment, on a number of occasions physically attacked such people, and on several occasions was charged with aggravated assault. These episodes abated with control of his complex partial seizures. There also is evidence that patients in spike-wave stupor (absence status epilepticus) (Treiman and DelgadoEscueta 1980) or in what Treiman (1990) termed ‘subtle complex partial status epilepticus’ are capable of performing complex acts for which they subsequently have

little or no memory. There are no documented cases of acts of directed violence or aggression occurring during such an attack. However, Goldensohn and Gold (1960) reported five cases of prolonged behavioral, emotional and intellectual disturbances associated with generalized discharges on the EEG. Three exhibited agitated and aggressive behavior in reaction to others, especially if restrained, but none was reported to have exhibited organized directed aggressive acts. 3 Non-aggressive violent automatisms: violent behavior which occurs as a stereotyped automatism but which is not directed toward a person or object and has no aggressive intent. 4 Resistive violence: violent behavior which occurs at the end of a well-documented seizure while the patient is still exhibiting reactive automatisms or is in a postictal confused state. 5 Post-ictal psychosis: violence or aggression which occurs in the context of post-ictal psychosis. Fenwick (1989) also has suggested that ‘prodromal aggression’ may occur in some patients who experience psychological symptoms of irritability, anxiety, or depression for minutes, hours, or even days prior to a seizure. These psychological symptoms frequently terminate with the seizure.

ICTAL VIOLENCE – DOES IT OCCUR? Medical literature What is the evidence that ictal aggression has actually occurred under any of these circumstances listed above? Over fifty cases of possible ictal aggression or violence have been reported in the medical literature. Treiman and Delgado-Escueta (1983) reviewed twenty-nine of these in detail, and in their opinion, only three of the twentynine cases were strongly suggestive of a relationship between ictal epileptic attacks and violent automatisms. In 1980, an international panel of eighteen epileptologists reviewed videotapes and EEGs of thirty-three epileptic attacks in nineteen patients who were believed to have exhibited aggressive behavior during the recorded seizures (Delgado-Escueta et al. 1981). In the opinion of the panel, seven patients exhibited ictal aggression ranging from violence toward property to mild aggression directed toward a person. Of the remaining twelve patients, six had only pseudoseizures and six had minimal or no aggression. Five of the patients in this series have been described in greater detail elsewhere (Ashford, Schulz, and Walsh 1980; Saint-Hilaire et al. 1980; Treiman and Delgado-Escueta 1981). These five cases, two reported subsequently by Wieser (1983a), and one reported by Gerard et al. (1998) are the only patients who are known to have clear histories of assault and whose epileptic

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attacks have been studied by closed-circuit television and electroencephalography. Fenwick (1989) described four cases of apparent ictal aggression. There have been two relatively recent reports of ictal ambulatory automatism that were perceived to be assaultive and led to criminal charges. Borum and Appelbaum (1996) described a 31-year-old male with a long history of nocturnal complex partial seizures which characteristically evolved into ambulatory automatisms and ictal or post-ictal wandering and confusion, during which frequently he would urinate in inappropriate places in the house. One evening he consumed some beer and vodka and then went to bed. He next was aware of being awakened by two police officers for having allegedly pounded on the door of a shared access bathroom when a fellow boarder, a young woman, was bathing, yelling ‘open it, open it.’ When she did, he was wearing only a towel around his waist, a struggle ensued, and he was charged with indecent assault and battery and assault with intent to rape but was acquitted because the epileptic nature of his behavior was recognized. He fulfilled all of the criteria suggested at the end of this chapter for determination of epilepsy as the cause of a violent crime except for the lack of documentation by video. Treiman (1999) recently reported a case of an ictal ambulatory automatism that was also perceived to be assaultive and which also resulted in acquittal because of the epileptic nature of the attack. Thus, there are only a few patients reported in the medical literature who have been observed to exhibit aggressive behavior and in whom there is reasonable evidence that their aggressive behavior may have been related temporally to an ictal event. It is, therefore, worthwhile to review these cases in some detail. Two cases were described by Gunn and Fenton (1971) where violent behavior may have been related to an ictal event. One was a 49-year-old alcoholic who had seizures since the age of 25 years. One evening, after having been drinking, he left the pub and had a seizure. He was recovering from the seizure when a policeman tried to remove him for being a nuisance. The patient lashed out and tried to hit the policeman. In the other case, a 32-yearold man developed generalized convulsion at the age of 18 years. Two years later, when staying at his girlfriend’s house, he had a generalized convulsion early in the morning. While still in a post-ictal confused state, he violently attacked his girlfriend, and an elderly couple who also lived in the house. On admission to the hospital shortly thereafter he was mentally confused and amnestic for all events following the seizure. He was incarcerated in an institution for the criminal insane. Thereafter he had a generalized tonic-clonic seizure once every one to two years. Each seizure was followed by a period of confusion lasting 15–60 minutes during which the patient appeared perplexed and frightened and if restrained in any way would become dangerously aggressive. Both of these cases are examples of ‘resistive violence’ in which attempts to restrain a patient while still in a post-ictal confused state

produce violent reactive automatisms for which the patient is completely amnestic. Knox (1968) reported six patients who exhibited resistive behavior if an attempt was made to restrain them at the end of a seizure. One patient, a 50-year-old man, had several episodes of automatisms while under observation. During these episodes he would stagger about and if assisted would shout, ‘Leave me alone.’ On one occasion he grabbed an orderly by the throat, held him for several minutes and yelled, ‘I’ll kill you.’ He kicked the doctor on another occasion. He reported that if he had a seizure at work, his colleagues knew not to approach him: ‘It seems I don’t attack them if I’m not touched.’ Resistive violence has also been observed in other series of patients with complex partial seizures (Delgado-Escueta et al. 1977; King and Ajmone Marsan 1977; Delgado-Escueta et al. 1982; Fenwick 1989). In Ashford’s patient (Ashford, Schulz, and Walsh 1980) and in Treiman’s two patients (Treiman and DelgadoEscueta 1981), fear apparently induced automatic destruction of property, defensive kicking and flailing. These behaviors observed on the CCTV-EEG were similar to those described in the patients’ histories. Of the 19 patients reviewed by the international panel, only one (one of Saint-Hilaire’s patients) (1980) exhibited ictal aggressive acts which could have resulted in serious harm to another person. This was a mentally retarded young woman of 20 who at the age of 3 years had ‘a generalized infection with encephalopathy and henceforth manifested unmotivated aggressive paroxysms … .’ Saint-Hilaire and colleagues further described her history as follows: ‘The aggressive outbursts happen suddenly, without any warning. She quickly moves toward a target and physically assaults it… . When the targets are objects, she breaks them and/or throws them. When she directs these behaviors toward humans, she will often grab the eyeglasses and break them; if a person does not wear glasses, she will direct her attack toward the face while grabbing and/or hitting … . The outbursts suddenly abate and the patient declares herself tired, she “does not feel well”, but her contact with the environment is restored to its usual level. These paroxysms happen many times a week despite heavy medication.’ During scalp EEG observations a secondarily generalized tonic-clonic seizure was recorded without evidence of aggressive behavior. During depth stereo electroencephalography (SEEG) observations several ‘absences’ were noted during which the patient lost contact with the environment and exhibited epileptiform activity limited to the right amygdala and right temporal cortex. Stimulation of the right hippocampus only produced a local after discharge without behavioral change. On one occasion, stimulation of the left hippocampus was followed 95 seconds later by loss of contact with the environment, irregular movements and breathing at 104 seconds after the end of the electrical stimulation, and an aggressive outburst at 117 seconds after the stimulation, in which she rose suddenly from a

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prone position, attempted to grab the neuropsychologist’s eyeglasses and verbally accused him: ‘It’s your fault, it’s not right, you’ve done it.’ Apparent epileptiform activity is seen in the right hippocampus throughout the 67 seconds of recording presented in the figure – unfortunately the complete recording from the time of the electrical stimulation throughout the entire aggressive episode is not presented, so the time the epileptiform activity began cannot be seen and is not reported in the text. Saint-Hilaire’s other patient was a 30-year-old bachelor sheet-metal worker, who began having seizures at the age of six, one year after head trauma. During adolescence his seizures assumed their adult pattern. They began with an aura consisting of a shiver at the level of the thorax, followed by loss of consciousness. The patient then would talk or yell or insult people and spit in their faces. He remained ambulatory and was able to carry out relatively complex activities during these seizures, after which he would be amnestic. This patient was studied with SEEG. During a typical seizure the patient warned the staff that an aura was beginning at the time low voltage fast activity could be seen in the right amygdala and right anterior temporal leads. Seven seconds later the patient whistled and struck his right thigh with his right hand at the time when the EEG frequency in the amygdala and anterior temporal cortex slowed. At 20 seconds after onset of the initial EEG change and behavioral warning, the patient yelled vulgar insults toward a nurse in the adjacent room. Insults directed toward the nurse (even though an EEG technician was closer to him) continued when, 26 seconds after the onset of the seizure, rhythmic spike activity was seen not only from the amygdalar and anterior temporal leads but also the right perihippocampal gyrus. The seizure stopped 1 minute 15 seconds after onset, and the patient was amnestic for all events. Wieser (1983a) described a boy with a socially disabling behavior disorder and frequent rage attacks sometimes starting with fear and gastric sensations. There was left frontal temporal flattening on the EEG at the start of these episodes. SEEG exploration was not performed because of the severe aggressive outbursts. However, selective left amygdalohippocampectomy stopped all seizures and the rage attacks. The boy was described as seizure-free and a calm and good student over two and one-half years of follow-up. Wieser’s other patient was a 16-year-old male with ‘psychomotor’ seizures from age 9 years, characterized by paroxysmal speech disturbances and fits of rage leading to brawls. During his attacks he was said to abruptly raise his hand and rave or suddenly become speechless or indiscriminately attack and hit everyone around. A pneumoencephalogram showed a left temporal basal cyst communicating with the temporal horn. During SEEG exploration several rage attacks were observed and long-lasting ‘clonic discharges’ in the left periamygdalar region were recorded which were not evident on the surface EEG. However, no data were presented regarding the

exact temporal relationship between the periamygdalar discharges and the rage behavior. The patient underwent a left temporal lobectomy. The pathology specimen demonstrated a small periamygdalar capillary hemangioma. Over four and one-half years of follow-up, the patient remained seizure-free and was described as a ‘calm and peaceable’ man. Fenwick (1989) reported ten cases of aggression related to seizures, including prodromal aggression (three cases), ictal aggression (four cases), peri-ictal aggression (two cases) and aggression related to post-ictal psychosis (one case). Only one patient exhibited criminal aggression. This was the case of Regina v. Sullivan, which has been discussed extensively in the British medical and legal literature (Anonymous 1983; Brahams 1983a; Brahams 1983b; Brahams 1983c; Swan 1984; Brahams 1984; Golding and Golding 1985; Fenwick 1987; Fenwick 1988; Fenwick 1989; Gunn 1991). Sullivan was a 55-year-old man who had suffered from complex partial seizures with occasional secondary generalization since childhood. While talking with two elderly neighbors he suddenly stood up, appeared to stare without focus, and appeared angry. He then lunged at one of the neighbor men, knocked him to the ground, and kicked him repeatedly. He abruptly stopped the attack, walked away, picked up a newspaper, and, after a few minutes recovered to a normal mental state. When he noticed his friend on the floor he asked, ‘What have you done to your face, Eddie?’ All who have evaluated this case have been convinced this was an example of ictal aggression. The case became somewhat of a rallying point for legal reform in the United Kingdom because Sullivan was faced, under British law, with the choice of either pleading not guilty by reason of insanity – which would have meant taking the risk of indefinite incarceration in a mental hospital, or pleading guilty of assault, which he did reluctantly. The option of pleading not guilty by reason of non-insane automatism was not allowed by the trial judge nor the appellate judge. He received three years’ probation. Hindler (1989) reported a 19-year-old nanny who was accused of murdering a 20-month-old baby in her care. The accused described intense feelings of hate and aggression directed toward the child, these being precipitated by the baby laughing and terminated by the baby crying. During these episodes she would swing the baby violently and on one occasion bit the child’s leg. On the day of the offense she swung the child by the legs and hit its head on a cabinet and perhaps the floor. The accused called an ambulance but the baby died eight days later. Hindler postulated that the accused had reflex epilepsy, and provided as evidence: (i) the recording of epileptiform activity on the EEG; and (ii) the observation of three episodes similar to those precipitated by the laughing baby and one episode diagnosed as a generalized convulsion while she was in prison, even though there was not, of course, the trigger of a baby laughing. Because this was a recent case the real proof of the episode being epileptic would have been to monitor the accused on an epilepsy monitoring

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unit, and arranged to have a baby’s laughter presented as a trigger to attempt to reproduce the aggressive behavior claimed by the accused to have been epileptic. Most of the episodes of aggression or violence which have occurred in relation to epileptic attacks are examples of resistive violence at the end of documented complex partial or generalized tonic-clonic epileptic seizures. This is true for the two cases described by Gunn and Fenton (1971), six cases reported by Knox (1968) including his one case described in detail above, and in examples reported in other series of complex partial seizures cited above. In those cases where violent activity occurred at (or nearly at) the beginning of behavioral seizures, the behavior consisted of random violence and not directed aggression. For example, in Treiman’s two cases (Treiman and Delgado-Escueta 1981), Ashford’s patient (Ashford, Schulz, and Walsh 1980), and perhaps in one of Wieser’s patients (1983a), the stereotyped automatisms exhibited consisted of random flailing movements, bicycling behavior or, in the case of Ashford’s patient, whirling movements while holding onto the draperies in the room. In each case the violent behavior was not directed toward any individual and was stereotyped from seizure to seizure in the same patient. Such examples then are examples of non-aggressive violent automatisms. In the two cases described by Saint-Hilaire et al. (1980), in which directed aggressive behavior appeared to be associated with ictal discharges recorded during SEEG, the aggressive behavior began after the onset of the seizure. This was true for the 20-year-old patient, in whom one episode of aggressive behavior was recorded on the SEEG. In this patient, the aggressive outburst associated with right hippocampal activity occurred 117 seconds after electrical stimulation of the left hippocampus. Furthermore, the aggressive behavior was preceded 22 seconds earlier by an alteration of contact with the environment. In SaintHilaire’s other patient, the history presented suggests that the patient’s habitual seizures always included episodes in which he yelled, insulted people, and spat in their faces. Again, the aggressive behavior in the example reported did not occur until 20 seconds after the onset of the seizure. In all the cases reviewed above in which violent or aggressive behavior may have been associated with ictal activity, the exhibited behavior consisted of either:

• • •

non-aggressive violent automatisms which were stereotyped and repetitive from seizure to seizure within the same patient; reactive automatisms manifested by directed aggression after the onset of a clearly identifiable complex partial seizure; or resistive violence at the end of a complex partial or generalized tonic-clonic seizure when the patient was being restrained while still in a confused state.

There are no documented cases of ictal aggression in which an organized directed attack toward another individual or object occurred as the initial or sole manifestation of

an epileptic seizure, which could not otherwise be diagnosed on the basis of at least some typical features of complex partial or generalized tonic-clonic seizures. Some patients – particularly those with medically intractable seizures – may exhibit a transient psychosis after prolonged clusters of seizures or status epilepticus. This phenomenon is most often seen after a period of frequent repetitive complex partial seizures, and may represent an impairment of normal function of the limbic system. The patient may become floridly psychotic, may experience hallucinations, or may be capable of directed aggression as may occur in other forms of psychosis. However, such aggressive acts are not ictal events but appear to be due to altered psychological function (a ‘Todd’s post-ictal paralysis of the frontal lobe’) in which the patient has a marked impairment of contact with reality and perhaps also a marked impairment of impulse control. Gerard and colleagues (1998) recently described six patients, out of their database of 1300 epileptics, who exhibited what they termed ‘subacute post-ictal aggression,’ occurring hours to days after the acute confusional post-ictal period of a seizure. They attribute the aggressive behavior to post-ictal psychosis. In one case, an EEG obtained during the post-ictal psychotic state showed diffuse intermixed slowing but no epileptiform discharges. None of their six patients had a history of aggressive or violent behavior other than during the post-ictal period, except for one who also had violent and aggressive behavior associated with alcohol intoxication. Kanemoto, Kawasaki, and Mori (1999) studied the incidence of well-directed violent behavior in patients with temporal lobe epilepsy, with special attention to post-ictal psychosis. They compared fifty-seven episodes of post-ictal psychosis with sixty-two episodes of acute inter-ictal psychosis and with 134 complex partial seizures. The incidence of well-directed violent behavior against human beings was significantly higher (23 per cent) during post-ictal psychotic episodes than during acute interictal episodes (5 per cent) and post-ictal confusion (1 per cent). These authors concluded that well-directed violent behavior is not a feature of inter-ictal epileptic psychosis in general, but rather a specific hallmark of post-ictal psychosis. Antipsychotic drugs can be useful in the management of the acute transient post-ictal psychosis; curtailment of seizure flurries by sublingual or oral lorazepam has also been effective in the management of such patients.

Legal literature A consideration of the legal literature may provide further insight into the question of whether ictal violence has ever been satisfactorily documented. Treiman (1986) reviewed the seventy-five cases in the United States appellate literature in which some form of an epilepsy defense was attempted. In none of these cases was convincing evidence providing that the alleged crime had been an ictal event.

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In only one case (In re Torsney 1979) was the epilepsy defense successful. This case is instructive because it dramatically illustrates inherent problems with the way the epilepsy defense has been developed in Anglo-Saxon law. Since 1843, when Daniel M’Naghten was tried for the assassination of Edward Drummond, the secretary to Prime Minister Robert Peel (whom he mistook for Peel), the concept of legal insanity in use today has been defined in English law. The M’Naghten rule (that ‘at the time of committing the act the party accused was labouring 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 as not to know that what he was doing was wrong’ (M’Naghten’s Case 1843)) or subsequent modifications, unfortunately, has been used as the basis for an epilepsy defense in British and American courts for at least 100 years, as it was in the Torsney case. Robert H. Torsney was a New York City policeman. He and five fellow officers were called to a Brooklyn housing development on Thanksgiving evening, 1966. On the way out of the complex, 15-year-old Robert Evans asked, ‘Did you just come from Apartment 7D?’ Torsney had not, but said ‘You’re damn right I did,’ drew his service revolver, and shot Evans in the head. He then holstered his pistol and walked on to his car to the great consternation of his fellow officers. Torsney was indicted for second-degree murder. At trial, Torsney claimed no memory for the event and alleged that it was the result of a ‘psychomotor seizure,’ even though he had no prior history of epilepsy and his EEG was normal. He was found not guilty by reason of insanity and sent to a New York State psychiatric hospital where he immediately set to work to prove that he was not insane. Five weeks after the verdict, an examining physician observed that ‘neither before or after the offense [had Torsney] shown any signs of epilepsy.’ Six months later, his lawyers arranged a hearing on Torsney’s insanity and the prosecution and defense positions reversed. At trial, the prosecutor had argued that Torsney was not insane, and therefore should be found guilty of murder, whereas the defense had argued Torsney was insane and therefore should be found not guilty by reason of insanity. At the competency hearing the prosecution argued that Torsney was insane and therefore needed to be retained in the psychiatric hospital. The defense now argued that Torsney was sane and therefore should be released, which is what ultimately happened. A similar conundrum has existed in British law and is best illustrated by the case of Patrick Sullivan discussed above. Sullivan, who attacked an elderly man during a complex partial seizure, was charged with assault. Because he had assaulted his victim during an epileptic seizure, he wished to use the defense of sane automatism (automatism simpliciter) and enter a plea of not guilty. The trial judge ruled that this plea was not available to the defense and that if Sullivan carried out the act during an epileptic seizure he must plead not guilty because of automatism due to disease of the mind (Fenwick 1988). Had

he done so, he would have been in the same position as Torsney of arguing for release as soon as he was remanded to hospital, but for different reasons. Torsney appears never to have had epilepsy, but used the epilepsy defense to avoid punishment for his crime. Sullivan clearly had epilepsy, but was not insane – because people with epilepsy are not insane – but was forced by British law either to argue that he was insane in order to plead not guilty, or to plead guilty to a crime which he could not remember committing and over which he had no control (Fenwick 1988). A more rational legal approach to the problem of the epileptic who inadvertently commits an act of violence as part of an epileptic seizure was provided by the California State Supreme Court in People v. Freeman (1943). The court wrote: No principle of criminal jurisprudence was ever more zealously guarded than that a person is guiltless if at the time of his commission of an act defined as criminal he has no knowledge of the deed. … And to hold that a man shall be held criminally responsible for an offense of the commission of which he was ignorant at the time would be intolerable tyranny.

On the basis of this argument the court reversed Freeman’s conviction for negligent homicide. There is no doubt that this is a more reasonable legal response to criminal violence, should it occur as part of an epileptic seizure during which there is impairment or loss of consciousness, and this is the case taken in non-common law countries, where the artificial distinction between sane automatism and insane automatism is not made (FalkPedersen 1997). Fortunately, epileptic patients are infrequently prosecuted for criminal acts when it is clear that violent behavior occurred as a part of a seizure, although there have been recent exceptions, as discussed above. Unfortunately, the epilepsy defense has been used most often when criminal violence occurred independent of a seizure and epilepsy is being viewed as an excuse for, rather than the cause of, the violent act. This is the type of case for which neurologists and psychiatrists are most often called on to provide expert testimony, and guidelines for providing such testimony are provided later in this chapter. More detailed reviews of legal issues regarding epilepsy and violent behavior have been provided by Treiman (1993, 1999).

INTER-ICTAL VIOLENCE – DOES IT OCCUR? Although only a few case reports in the medical literature are at all suggestive of ictal violence, there is still a prevailing belief by many physicians that epilepsy, particularly temporal lobe epilepsy, is associated with an increased incidence of violent crimes. As recently as 1982 Kolb and Brodie, writing in Modern Clinical Psychiatry,

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stated with regard to psychomotor epilepsy, ‘… clinically the clouded state suggests a delirium with liberation of aggressive and occasionally self-destructive impulses. Acts of violence may be committed in the automatisms and may be of a strikingly brutal nature, the patient pursuing his crime to a most revolting extreme.’ This view, which is stated as fact but for which no evidence is provided, has continued to influence the approach of many physicians (particularly psychiatrists) to patients with complex partial epilepsy, and has encouraged the inappropriate use of the epilepsy defense in crimes of violence. The epilepsy defense has been discussed above. Here we need to consider what evidence exists that violent behavior is more frequent in patients with epilepsy in general and with complex partial or temporal lobe epilepsy in particular. Treiman and Delgado-Escueta (1983) and Treiman (1986) reviewed studies of the prevalence of violence in patients with epilepsy. A number of such studies have reported an increased prevalence of violent and aggressive behavior. Most (James 1960; Serafetinides 1965; Ounsted 1969; Taylor 1969) concentrated on selected small populations of patients with severe intractable seizures and associated behavior disorders. Rodin (1973) surveyed 700 unselected, non-institutionalized patients with epilepsy; of these, thirty-four (4.8 per cent) were coded as ‘destructive-assaultive’ during their initial evaluation. Most were young men with below-average intelligence who had more behavioral and psychiatric problems, poorer employment records, and more evidence of organic brain disease on neurological examination than a nondestructive-assaultive control group of patients matched for age, sex, and intelligence. Mungas (1983) studied 138 patients attending a neurobehavior clinic. Using cluster analysis he found, in this highly selected population, an association between seizure disorders and a high frequency of impulsive violent acts. No relationship was found between temporal lobe abnormalities and aggression. Surveys of large groups of unselected patients with epilepsy by Currie et al. (1971) and Juul-Jensen (1964) found no greater predilection for violent behavior in patients with temporal lobe epilepsy than in patients with other types of epilepsy. A number of studies of aggressive personality traits (Hermann et al. 1980; Hermann and Riel 1981; Hermann 1982; Whitman et al. 1982) also failed to demonstrate any relationship between seizure type and aggressive personality traits. Taken as a group these studies do not support an increased incidence or prevalence of violent behavior in patients with epilepsy in general or temporal lobe epilepsy in particular. All the violent and aggressive personality traits which occur in such groups can be accounted for by other neurological and psychiatric deficits. Nonetheless, it has been suggested that seizures may, under some circumstances, result in inter-ictal personality changes which may be clinically significant (Engel, Caldecott-Hazard, and Bandler 1986). Griffith, Engel, and Bandler (1987) described an experimental model for limbic-epilepsy-induced disturbances in inter-ictal

defensive reactivity. Seizures are induced in cats by microinjection of kainic acid into the dorsal hippocampus. This induces an acute phase that lasts for two to three days and is characterized by recurrent partial onset seizures, some of which secondarily generalize. Between seizures, during this acute phase, the cats demonstrate an exaggerated defensive rage response to mild threat or handling. Because the cats exhibit normal behavior once the seizures stop, it may be that this model is really one of postictal psychosis. There are patients whose behavior changes markedly during seizure flurries but who, like the cats, exhibit normal behavior between seizure flurries.

EPILEPSY IN CRIMINALS Treiman and Delgado-Escueta (1983) and Treiman (1986) also reviewed the evidence that epilepsy occurs with greater prevalence in convicted criminals than in the normal population. A series of studies of epilepsy in the British prison system carried out by Gunn and his colleagues as well as by earlier workers have been detailed in a monograph (Gunn 1977). These studies demonstrated a two- to four-fold increase in the prevalence of epilepsy in prisoners compared with the non-incarcerated population. Two subsequent studies by Gunn’s group (Gunn and Bonn 1971; Gunn and Fenton 1971) found a prevalence rate for epilepsy in the prison population (0.87 per cent and 0.88 per cent) – twice the value of 0.45 per cent reported for Britain in a survey of the College of General Practitioners (1960). Several American studies (Chronic Disease Branch 1977; Novick et al. 1977; King and Young 1978) also investigated epilepsy in prison populations and observed prevalence rates of 1.8–1.9 per cent, more than three times the prevalence of 0.59 per cent reported by Hauser and Kurland (1975) in the population of Rochester, Minnesota. A number of studies have thus shown that epilepsy is two to four times more prevalent in prison populations than in the non-prison, generally middle class, populations that form the basis of most prevalence studies in the general population. However, the prison prevalence rates are similar to those found in a number of lower socioeconomic communities, such as those from which most British and American prisoners come. A prevalence rate of 1.9 per cent in black children has been reported for an inner city population in New Haven, Connecticut (Shamansky and Glaser 1979). Similar prevalence rates have been found in populations surveyed in rural Alabama counties (Hollingsworth 1978), Iceland (Gudmundsson 1966), Carlisle, England (Brewis et al. 1966), Serbia (Korbar and Berkovic 1974), Bogota, Columbia (Gomez, Arciniegas, and Torres 1978), a rural Appalachian community (Baumann, Marx, and Leonidakis 1977; Baumann, Marx, and Leonidakis 1978), Melipilla, Chile (Chiofalo et al. 1979), Pakistan (Aziz et al. 1994), west Uganda (Kaiser et al. 1996), and Senegal (Agbohoui et al. 1999). A relationship between socioeconomic status and epilepsy

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would explain the higher incidence of epilepsy among criminals and prisoners. King and Young (1978) observed that some etiologic factors for epilepsy are more prevalent among poor urban populations, including inadequate prenatal care and a higher incidence of head trauma. These data thus suggest epilepsy has no immediate relationship to violence or crimes. Instead, the two- to fourfold increase in prevalence of epilepsy in prisoners most likely reflects the prevalence of epilepsy among economically deprived urban populations rather than an increased frequency of criminal activity among epileptics.

DIFFERENTIAL DIAGNOSIS Many patients are referred to epilepsy monitoring units for evaluation of episodes of rage because of the assumption that rage is a symptom of complex partial seizures. However, almost all such patients turn out to be suffering from ‘episodic dyscontrol syndrome.’ This is a term applied to a behavioral disorder in which there are paroxysmal outbursts of violence and rage of a magnitude far in excess of that appropriate to the precipitating stimulus. Frequently, there is an alleged loss of contact with the environment during the outburst. Following the rage attack the patient may exhibit remorse and may express feelings of depression and fatigue or need to sleep. Many of the features of the syndrome were first described by Karl Menninger (1963). The term episodic dyscontrol syndrome was first used by Monroe in a monograph published in 1970. Subsequently, a number of other investigators have published studies of episodic dyscontrol syndrome (Lion, Bach-Y-Rita, and Ervin 1968; Lion and Bach-Y-Rita 1970; Bach-Y-Rita et al. 1971; Lion 1972; Maletzky 1973; Elliott 1984; Nunn 1986; Elliott 1990; Gordon 1999; McElroy 1999). Four types of behavior are included in the syndrome: 1 2 3 4

Physical assault, especially wife and child beating. Pathologic intoxication resulting in senseless violence. Impulsive sexual behavior including sexual assaults. A history of many traffic violations and serious automobile accidents (Goldstein 1974).

A number of authors have suggested that episodic dyscontrol syndrome represents a type of complex partial seizure. However, the violent outbursts are almost always provoked, although the provoking stimulus is frequently so mild as to be discounted by the examining physician unless specifically sought when evaluating the patient’s history. There have been no reports of such violent outbursts in these patients associated with ictal changes on the EEG, even though a number of these patients have been studied on epilepsy monitoring units. The behavioral sequence observed in violent rage reactions is not that which has been described by Delgado-Escueta and colleagues for complex partial seizures (Delgado-Escueta et al. 1977; Delgado-Escueta et al. 1979; Delgado-Escueta et al. 1982).

Patients with episodic dyscontrol syndrome frequently have a history of past head injuries, childhood seizure disorders, EEGs with non-specific abnormalities, and a variety of ‘soft’ neurological signs. They may have evidence of frontal lobe dysfunction. Such patients appear to lack the capacity to inhibit violent impulses which exists in most of the population. It is likely that their poor impulse control is related to structural or (in the case of pathological intoxication) toxic abnormalities, particularly of the frontal lobes, which impair the patient’s capacity for impulse control, so that even minor provoking stimuli induce a violent reaction. However, Leicester (1982) reported seventeen patients with temper tantrums referred from psychiatrists for possible epilepsy or episodic dyscontrol syndrome. None had an organic cause for their outbursts; the final diagnosis in every case was temper tantrums due to psychological causes. A number of other conditions that could be confused with epileptic seizures manifested by fear or anger that may result in episodic psychic experiences that could lead to violent and sometimes directed aggression are listed in Table 60.2. Several points require emphasis: 1 Normal individuals frequently report transient symptoms identical to those associated with partial seizures with psychic manifestations (Roberts et al. 1990; Ardila et al. 1993). Thus, even frequent episodes of such psychic phenomena as déjà vu perceptions, feelings of fear, anger, or doom, or visual hallucinations are not necessarily indicative of an epileptic seizure, especially if the behavior is not stereotyped from event to event. 2 Inter-ictal epileptiform discharges (paroxysmal spikes or sharp waves with a physiological field) on electroencephalographic recording have been observed in

Table 60.2 Conditions other than seizures that may cause symptoms of fear or anger Normal experiences Migraine Psychological disorders Panic attacks Hyperventilation attacks Recurrent intermittent psychoses Other psychiatric conditions Hallucinations/illusions due to loss of a primary sense Drug-induced flashbacks Sleep disorders Nightmares Night terrors REM sleep behavior disorder Toxic/metabolic disorders Recurrent drug abuse Hypoglycemia Porphyria Acute CNS disorders Modified from Fish (1998).

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3.5 per cent of the population in a large communitybased study of children (Cavazzuti, Cappella, and Nalin 1980). Only 5 per cent of the affected children subsequently developed epilepsy. This suggests that the presence of an epileptiform abnormality on EEG is not sufficient to make the diagnosis of epilepsy, unless the description of the seizure-like event is good enough to diagnose epilepsy, even if the EEG is normal. The evidence discussed above suggests that directed aggression is unlikely to occur as an ictal manifestation and particularly not at the beginning of a complex partial seizure. Violence and aggressive behavior that does occur at the time of an ictal event is most likely to be nondirected ‘resistive’ violence while the patient is exhibiting reactive automatisms, is in a post-ictal confusional state at the end of a complex partial or generalized tonic-clonic seizure, or is having an episode of post-ictal psychosis after a flurry of seizures. For example, in Case 6 cited by Fenwick (1989) a 39-year-old man with a history of complex partial seizures suddenly stood up, walked across the room, picked up his young son and threw him out an open first-floor window; the child broke his arm in the fall. The man then wandered around the room in a confused manner and sat down on the sofa. The patient’s wife had apparently been the victim of similar attacks (although she was not thrown out of the window). Treatment with antiepileptic drugs abolished these episodes. In a recent case cited by Treiman (1999) described above, a 35-year-old man grabbed a woman’s arm as part of an ambulatory automatism while riding on a subway. The behavior began after the onset of the seizure, there was no aggressive intent, and the man had no recollection for the event afterward.

CRITERIA FOR ESTABLISHING EPILEPSY AS THE CAUSE OF VIOLENT CRIMES A careful analysis of video-recorded seizures, such as that carried out by the international panel at the Epilepsy Foundation of America (EFA) workshop (DelgadoEscueta et al. 1981), emphasizes the need for rigorous criteria when considering whether a violent or aggressive act could have been an epileptic automatism. The natural history and clinical presentation of complex partial seizures is now well recognized. A paroxysmal behavioral change should not be called a complex partial seizure unless the pattern of behavior is fully consistent with modern concepts of the natural history and patterns of complex partial seizures. Documented ictal or even post-ictal aggression is rare. Most recorded cases have shown resistive violence while being restrained at the end of a seizure rather than directed aggression. Those aggressive acts which have been observed as part of a documented seizure have been stereotyped, simple, unsustained, unplanned, never a part of a consecutive series of complex acts, have not occurred in response

to pre-ictal provocation, and have not been premeditated. Some examples of directed aggression, however, have occurred during episodes of post-ictal psychosis, as described above. What then should be the criteria for determining whether a violent crime was the result of an epileptic seizure? The eighteen neurologists who participated in the EFA international workshop on aggression and epilepsy suggested five relevant criteria for consideration (DelgadoEscueta et al. 1981). A modification of these criteria, which takes into account more recent data, is provided here: 1 The diagnosis of epilepsy should be established by at least one neurologist with special competence in epilepsy. 2 The presence of epileptic automatisms should be documented by the history and CCTV-EEG. 3 The presence of aggressive behavior during epileptic automatisms, similar to the behavior alleged to have occurred during the criminal act, should be verified in a video-recorded seizure in which ictal epileptiform patterns are also recorded on the EEG. While it is not reasonable to subject epilepsy monitoring unit staff to attack, it should be possible to set up conditions to ascertain the nature of potentially aggressive behavior alleged to occur during epileptic seizures, and make a judgment as to whether such behavior might have occurred during a criminal aggressive act. 4 The aggressive or violent act should be characteristic of the patient’s habitual seizures, as elicited in the history. The act should occur suddenly and not in response to any external stimulus except, perhaps, restraint. It should be of short duration, fragmentary and unsustained and it should be associated with other features typical of a complex partial seizure. 5 If post-ictal psychosis is considered a possible cause of directed aggression following a seizure or seizure flurry, both the precipitating seizure(s) and the psychotic nature of the patient’s behavior should be well documented. 6 A clinical judgment should be made by the neurologist attesting to the possibility that the act was part of a seizure. In making such a judgment, the neurologist should consider whether the act followed the known sequence of behavioral changes in complex partial seizures or whether it was too complex to have been carried out by an individual suffering from an epileptic automatism. The use of these criteria should protect epileptic patients from punishment for accidental aggression they truly cannot prevent, and also protect epileptic patients as a group from the stigma of indiscriminate generalizations about violence and epilepsy. Although Hindler (1989) suggested the use of less stringent criteria for determining the relationship between an act of aggression and a seizure, ictal (or peri-ictal) violence should be a defense only in the rare case of criminal aggression which meets the

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criteria provided here. Epilepsy should not be used as a defense for ictal violence, even if the defendant has a welldocumented history of epileptic seizures and the crime appears motiveless and unpremeditated and is out of character with the accused person’s previous personality, unless it is clear that aggressive behavior was temporally related to other evidence that an epileptic seizure occurred, and was consistent with what is known about the natural history of that type of epileptic seizure. Furthermore, epilepsy should never be used as a defense for inter-ictal violence. Although a number of studies suggest that violence may occur more frequently in epileptics than in control populations, this is probably due to associated brain lesions or to adverse social factors rather than epilepsy directly. Although epilepsy and violence may occur in the same individual and share common etiologies, one does not necessarily cause the other. Therefore, even well-documented epilepsy should not be considered in the defense of criminal aggression unless the aggressive episode occurred with a precise temporal relation to an unequivocal epileptic seizure, with characteristics such as those described in this chapter.

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600 Special clinical issues in forensic psychiatry automatisms in temporal lobe epilepsy: a video tape analysis. Neurology 27, 144–55. Delgado-Escueta, A.V., Nashold, B., Freedman, M., Keplinger, M.D., Waddell, G., Miller, P., Carwille, S. 1979. Videotaping epileptic attacks during stereo electroencephalography. Neurology 29, 473–89. Delgado-Escueta, A.V., Mattson, R.H., King, L., Goldensohn, E.S., Spiegel, H., Madsen, J., Crandall, P., Dreifuss, F., Porter, R.J. 1981. Special report. The nature of aggression during epileptic seizures. New England Journal of Medicine 305, 711–16. Delgado-Escueta, A.V., Enrile-Bacsal, F., Treiman, D.M. 1982. Complex partial seizures on closed-circuit television and EEG: a study of 691 attacks in 79 patients. Annals of Neurology 11, 292–300. Elliott, F.A. 1984. The episodic dyscontrol syndrome and aggression. Neurologic Clinics 2, 113–25. Elliott, F.A. 1990. Neurology of aggression and episodic dyscontrol. Seminars in Neurology 10, 303–12. Engel, J., Jr. 2001. A proposed diagnostic scheme for people with epileptic seizures and with epilepsy: report of the ILAE Task Force on Classification and Terminology. Epilepsia 42, 796–803. Engel, J., Jr., Caldecott-Hazard, S., Bandler, R. 1986. Neurobiology of behavior: anatomic and physiological implications related to epilepsy. Epilepsia 27(suppl. 2), S3–13. Ervin, F.R., Mark, V.H., Stevens, J. 1969: Behavioral and affective responses to brain stimulation in man. In Zubin, J., Shagass, C. (eds), Neurobiological Aspects of Psychopathology. New York: Grune & Stratton, 54–65. Falk-Pedersen, J.K. 1997. Automatisms in non common law countries. Medicine and Law 16, 359–65. Fenwick, P. 1987: Epilepsy and the law. In Hopkins, A. (ed.), Epilepsy. London: Chapman & Hall Ltd., 553–62. Fenwick, P. 1988: Epilepsy and the law. In Pedley, T.A., Meldrum, B.S. (eds), Recent Advances in Epilepsy. Edinburgh: Churchill Livingstone, 241–51. Fenwick, P. 1989. The nature and management of aggression in epilepsy. Journal of Neuropsychiatry and Clinical Neurosciences 1, 418–25. Fish, D.R. 1998: Psychic seizures. In Engel, J., Jr., Pedley, T.A. (eds), Epilepsy. A Comprehensive Textbook. Philadelphia: Lippincott-Raven Publishers, 543–8. Gastaut, H. 1970. Clinical and electroencephalographical classification of epileptic seizures. Epilepsia 11, 102–13. Gerard, M.E., Spitz, M.C., Towbin, J.A., Shantz, D. 1998. Subacute postictal aggression. Neurology 50, 384–8. Goldensohn, E.S., Gold, A.P. 1960. Prolonged behavioral disturbances as ictal phenomena. Neurology 10, 1–8. Golding, A.M., Golding, A.M.B. 1985. The law relating to epilepsy and allied disorders. Community Medicine 7, 278–82. Goldstein, M. 1974. Brain research and violent behavior. Archives of Neurology 30, 1–35. Gomez, J.G., Arciniegas, E., Torres, J. 1978. Prevalence of epilepsy in Bogota, Columbia. Neurology 28, 90–4.

Gordon, N. 1999. Episodic dyscontrol syndrome. Developmental Medicine and Child Neurology 41, 786–8. Gowers, W. 1881: Epilepsy and Other Chronic Convulsive Disorders. London, England: Churchill. Griffith, N., Engel, J., Jr., Bandler, R. 1987. Ictal and enduring interictal disturbances in emotional behaviour in an animal model of temporal lobe epilepsy. Brain Research 400, 360–4. Gudmundsson, G. 1966. Epilepsy in Iceland, a clinical and epidemiological investigation. Acta Neurologica Scandinavica 43(suppl. 25), 1–124. Gunn, J. 1977. Criminal behaviour and mental disorder. British Journal of Psychiatry 130, 317–29. Gunn, J. 1991: Legal implications of behavioral changes in epilepsy. In Smith, D.B., Treiman, D.M., Trimble, M.R. (eds), Neurobehavioral Problems in Epilepsy. Advances in Neurology, Volume 55. New York: Raven Press, 461–71. Gunn, J., Bonn, J. 1971. Criminality and violence in epileptic prisoners. British Journal of Psychiatry 118, 337–43. Gunn, J., Fenton, G. 1971. Epilepsy, automatism, and crime. Lancet i, 1173–6. Hauser, W.A., Kurland, L.T. 1975. The epidemiology of epilepsy in Rochester, Minnesota, 1935–1967. Epilepsia 16, 1–66. Heath, R.G. 1955. Correlations between levels of psychological awareness and physiological activity in the central nervous system. Psychosomatic Medicine 17, 383–95. Heath, R.G. 1962: Brain centers and control of behavior – man. In Nodine, J.H., Moyer, J.H. (eds), Psychosomatic Medicine: The First Hahnemann Symposium. Philadelphia: Lea & Febiger, 228–40. Heath, R.G. 1964. Developments toward new physiologic treatments in psychiatry. Journal of Neuropsychiatry 5, 318–31. Hermann, B.P. 1982. Neuropsychological functioning and psychopathology in children with epilepsy. Epilepsia 23, 545–54. Hermann, B.P., Riel, P. 1981. Interictal personality and behavioural traits in temporal lobe and primary generalized epilepsy. Cortex 17, 125–8. Hermann, B.P., Schwartz, M.S., Whitman, S., Karnes, W.E. 1980. Aggression and epilepsy: seizure-type comparisons and high-risk variables. Epilepsia 22, 691–8. Hindler, C.G. 1989. Epilepsy and violence. British Journal of Psychiatry 155, 246–9. Hollingsworth, J.S. 1978: Mental Retardation, Cerebral Palsy and Epilepsy in Alabama: A Sociological Analysis. Tuscaloosa, AL: University of Alabama Press. In re Torsney, 47 N.Y. 2d 667 (1979). International League Against Epilepsy. 1993. Guidelines for epidemiologic studies on epilepsy. Epilepsia 34, 592–6. James, I.P. 1960. Temporal lobectomy for psychomotor epilepsy. Journal of Mental Sciences 106, 543–58.

Violence and epilepsy: an approach to expert testimony 601 Juul-Jensen, P. 1964. Epilepsy: a clinical and social analysis of 1020 adult patients with epileptic seizures. Acta Neurologica Scandinavica 40(suppl. 5), S1–148. Kaiser, C., Kipp, W., Asaba, G., Mugisa, C., Kabagambe, G., Rating, D., Leichsenring, M. 1996. The prevalence of epilepsy follows the distribution of onchocerciasis in a west Ugandan focus. Bulletin of the World Health Organization 74, 361–7. Kalyanaraman, S. 1975. Some observations during stimulation of the human hypothalamus. Confinia Neurologica 37, 189–92. Kanemoto, K., Kawasaki, J., Mori, E. 1999. Violence and epilepsy: a close relation between violence and postictal psychosis. Epilepsia 40, 107–9. King, D.W., Ajmone Marsan, M.C. 1977. Clinical features and ictal patterns in epileptic patients with EEG temporal lobe foci. Annals of Neurology 2, 138–47. King, H.E. 1961: Psychological effects of excitation in the limbic system. In Sheer, D.E. (ed.), Electrical Stimulation of the Brain. Austin: University of Texas Press, 477–86. King, L.M., Young, Q.D. 1978. Increased prevalence of seizures disorders among prisoners. Journal of the American Medical Association 239, 2674–5. Knox, S.J. 1968. Epileptic automatism and violence. Medicine, Science and Law 8, 96–104. Kolb, L.C., Brodie, H.K.H. 1982: Modern Clinical Psychiatry. Philadelphia: Saunders. Korbar, K., Berkovic, K. 1974. Epilepsy and delinquency. Neuropshijatirja 22, 6–75. Kotagal, P. 2001: Complex partial seizures. In Wyllie, E. (ed.), The Treatment of Epilepsy: Principles and Practice. Philadelphia: Lippincott, Williams & Wilkins, 309–27. Leicester, J. 1982. Temper tantrums, epilepsy and episodic dyscontrol. British Journal of Psychiatry 141, 262–6. Lion, J.R. 1972: Evaluation and Management of the Violent Patient. Springfield, IL: Charles C. Thomas. Lion, J.R., Bach-Y-Rita, G. 1970. Group psychotherapy with violent outpatients. International Journal of Group Psychotherapy 20, 185–91. Lion, J.R., Bach-Y-Rita, G., Ervin, F.R. 1968. The selfreferred violent patient. Journal of the American Medical Association 205, 503–5. Maletzky, B.M. 1973. The episodic dyscontrol syndrome. Diseases of the Nervous System 34, 178–85. Mark, V.H., Ervin, F.R. 1970: Violence and the Brain. New York: Harper & Row. Mark, V.H., Ervin, F.R., Sweet, W.H., Delgado, J.M.R. 1969. Remote telemeter stimulation and recording from implanted temporal lobe electrodes. Confinia Neurologica 31, 86–93. Mark, V.H., Sweet, W.H., Ervin, F.R. 1975: Deep temporal lobe stimulation and destructive lesions in episodically violent temporal lobe epileptics. In Fields, W.S., Sweet, W.H. (eds), Neural Bases of Violence and Aggression. St. Louis: Warren H. Green, 379–91.

McElroy, S.L. 1999. Recognition and treatment of DSM-IV intermittent explosive disorder. Journal of Clinical Psychiatry 60(suppl. 15), 12–16. Mendez, M.F. 1998. Postictal violence and epilepsy. Psychosomatics 39, 478–80. Menninger, K. 1963: The Vital Balance. New York: Viking Press. M’Naghten’s Case, 10 Cl. & Fin. 200, 8 Engl. Rep. 718 (1843). Monroe, R.R. 1970: Episodic Behavioral Disorder: A Psychodynamic and Neurophysiological Analysis. Cambridge, MA: Harvard University Press. Mungas, D. 1983. An empirical analysis of specific syndromes of violent behavior. Journal of Nervous and Mental Disease 171, 354–61. Novick, L.F., Penna, R.D., Schwartz, M.S., Remmlinger, E., Loewenstein, R. 1977. Health status of the New York City prison population. Medical Care 15, 205–16. Nunn, K. 1986. The episodic dyscontrol syndrome in childhood. Journal of Child Psychology and Psychiatry and Allied Disciplines 27, 439–46. Ounsted, C. 1969. Aggression and epilepsy rage in children with temporal lobe epilepsy. Journal of Psychosomatic Research 13, 237–42. Penfield, W., Kristiansen, K. 1951: Epileptic Seizure Patterns. A Study of the Localizing Value of Initial Phenomena in Focal Cortical Seizures. Springfield, IL: Charles C. Thomas. People v. Freeman, 61 Cal. App. 2d 110 (1943). Quesney, L.F. 1986. Clinical and EEG features of complex partial seizures of temporal lobe origin. Epilepsia 27(suppl. 2), S27–45. Roberts, R.J., Varney, N.T., Hulbert, K.R., et al. 1990. The neuropsychology of everyday life: the frequency of partial seizure symptoms among normals. Neuropsychology 4, 65–85. Rodin, E.A. 1973. Psychomotor epilepsy and aggressive behavior. Archives of General Psychiatry 28, 210–13. Saint-Hilaire, J.M., Gilbert, M., Bouvier, G., Barbeau, A. 1980: Epilepsy aggression. Two cases with depth electrode studies. In Robb, P. (ed.), Epilepsy Updated: Causes and Treatment. Miami: Symposia Specialists, 145–76. Serafetinides, E.A. 1965. Aggressiveness in temporal lobe epileptics and its relation to cerebral dysfunction and environmental factors. Epilepsia 6, 33–42. Shamansky, S.L., Glaser, G.H. 1979. Socioeconomic characteristics of seizure disorders in the New Haven area: an epidemiologic study. Epilepsia 20, 457–74. Swan, M. 1984. Epilepsy and insanity. Lancet 2, 756. Taylor, D.C. 1969. Aggression and epilepsy. Journal of Psychosomatic Research 13, 229–36. Taylor, J.G., Holmes, G., Walshe, F.M.R. (eds). 1931: Selected Writings of John Hughlings Jackson, Volume 1. On Epilepsy and Epileptiform Convulsions. London: Hodder and Stoughton. Theodore, W.H., Porter, R.J., Penry, J.K. 1983. Complex partial seizures: clinical characteristics and differential diagnosis. Neurology 33, 1115–21.

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61 Brain disease: forensic neuropsychiatric issues MACE BECKSON AND GEORGE BARTZOKIS Behavioral abnormalities can be a central issue in criminal and civil legal proceedings. Typical examples could include the case of a young woman claiming no recollection for alleged shoplifting; an unusual, problematic contract signed by a wealthy elderly gentleman; a confessed murderer with a recent history of impulsive violent acts; and an otherwise respectable family man accused of sexually deviate behavior. Issues of competence, responsibility, insanity, and mitigating factors require the careful evaluation of behavioral abnormalities. Brain disease is frequently the basis for behavioral abnormalities involving disturbances of thinking, perceptions, emotions, and actions. In the examples above, the shoplifter may have had a temporal lobe seizure; the elderly gentleman may be suffering from dementia; the murderer may have an undetected frontal lobe tumor, and the family man may have undiagnosed multiple sclerosis. The lay public, attorneys, and even physicians commonly judge the behavior as volitional or as ‘mental illness’ and fail to consider a medical cause for the behavior or the potential for treating the underlying disease. Of great importance, any distinctly altered behavior or significantly changed personality must be considered evidence of organic brain disorder until ruled out by thorough and appropriate neuropsychiatric evaluation.

THE DIAGNOSTIC PROCESS: AN OVERVIEW Neuropsychiatry is a medical discipline that specializes in the evaluation and treatment of behavioral disturbance that results from brain disease. Those neurologists and psychiatrists who have specialized training in brain– behavior relationships are capable of undertaking such an investigation and making appropriate determinations. Diagnostic work-up usually includes a detailed medical and behavioral history, complete neurological/physical examination, a thorough psychiatric interview, and an organic mental status examination, augmented by appropriate laboratory tests, such as structural and/or functional

brain imaging, electrophysiological testing, neuropsychological testing, and/or other specialized medical tests. Expert assessment of the data and formulation of a probable diagnosis complete this process.

The neuropsychiatric history: clues As in all of medicine, the history of the current problem is of prime importance in making the proper diagnosis of a behavioral abnormality. Sources of the history may include the individual with the behavioral problem, family members, involved friends, treating physicians, medical records, school records, and legal records. Evidence that a brain disorder has been acquired at some point or has existed from birth should be sought from symptoms, events, illnesses, family history, and growth and developmental history. Certain important historical clues increase the likelihood of brain disorder: 1 Cognitive difficulties: • alertness, attention, or concentration problems; • difficulty with comprehension, speech, reading, or writing; • memory problems; • getting lost or misplacing things; or • new difficulty balancing checkbook or handling money. 2 Personality change: • apathy or loss of motivation; or • socially inappropriate or impulsive behavior. 3 Unusual behavior or change in emotions: • agitation; • wandering; • emotional liability; • hallucinations; or • paranoia. 4 Recent difficulty doing usual work at job or at home. 5 Known, diagnosed neurological illness, for example, multiple sclerosis, seizures, Alzheimer’s disease, encephalitis, stroke.

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6 Family history of a familial neurological illness, for example, Huntington’s disease, epilepsy. 7 Known head trauma or brain injury, for example, motor vehicle accident resulting in a coma, being knocked unconscious with a blunt object, multiple fights, neurosurgery. 8 Diagnosed psychiatric illness, for example, schizophrenia, manic-depressive illness, especially if: • no family history of the illness; • atypical age of onset or course of the illness; • atypical symptoms or signs for the psychiatric diagnosis; • poor response to treatment; or • no thorough neuropsychiatric assessment ever performed. 9 Diagnosed or family history of medical illness known to have neurological sequelae, for example, diabetes, liver disease, hypertension, thyroid disease. 10 Family history of psychiatric illness. 11 Treatment with a medication known to have neurological side effects, for example, blood pressure medication, appetite suppressants. 12 Abuse of psychoactive substances, for example, alcohol, stimulants, hallucinogens. 13 Illness or trauma associated with the pregnancy or birth of the individual. 14 Delayed developmental milestones, for example, walking, talking. 15 Poor school achievement, especially known learning disabilities or markedly poorer performance than siblings. 16 Poor social development, for example, behavioral problems in school, fighting with peers.

THE NEUROLOGICAL/PHYSICAL EXAMINATION The neurological examination may uncover both obvious and subtle signs of brain dysfunction: visual disturbances or other cranial nerve abnormalities; asymmetric or pathologic deep tendon reflexes; lateralized loss of strength, coordination, or sensation; abnormal balance or gait; or abnormal involuntary movements. Physical examination may demonstrate cranial or spinal abnormalities, centers of chronic pain, evidence of congenital or developmental defects, and other signs of underlying disease. The neurological findings may also allow anatomic localization of the dysfunction within the nervous system; this, combined with the other data, may provide clues as to the disease process involved. Both anatomic localization and the disease process may prove pivotal to understanding the associated behavioral abnormalities. Neurological ‘soft signs’ refer to non-specific abnormalities, for example, posturing while walking. Such signs do not have a definitive anatomic correlate and therefore differ from ‘hard’ findings (e.g., lateralized hyperreflexia and weakness indicative of a lesion in the motor pathways of the spinal cord or brain), which are clear indicators of

specific acquired neurological damage. Isolated soft signs are only weak evidence of neurological disorder.

The mental status examination for organic brain disease A key aspect in the evaluation of aberrant behavior is the mental status examination with particular stress on those elements reflecting abnormal brain function. This examination includes: 1 Observation of appearance and behavior. 2 Questions regarding the individual’s thoughts, perceptions, and emotions. 3 Assessment of insight and judgment. 4 Determination of attentional capabilities and concentration. 5 Assessment of basic language and comprehension abilities. 6 Testing of orientation, learning, and memory. 7 Testing of visuospatial skills, such as copying diagrams. 8 Tests of calculations and abstract interpretation (e.g., proverbs). 9 Testing of ability to perform sequencing tasks, inhibit impulses, and other so-called frontal systems tests. The results may reveal a wide variety of abnormalities consistent with brain dysfunction. Data from the mental status examination can discover or confirm a confusional state, aphasia, amnesia, a frontal lobe syndrome, and so on. This exam can also provide crucial data for determining which brain structures are malfunctioning, the nature of the disease process affecting them, and the abnormal behaviors that could be anticipated. Abnormalities on the mental status examination can be quantitated with formal neuropsychological testing.

Laboratory tests In most instances, the diagnosis of behavioral abnormality caused by brain disease is derived from data obtained from the history, the neurological/physical examination, and the mental status examination. Appropriate laboratory tests can be selected to provide confirmatory evidence or to rule out various diagnostic possibilities. In general, laboratory tests function only as supportive adjuncts to the neuropsychiatric examination. Positive results that confirm clinical impressions are of considerable value; the opposite, laboratory tests that disagree with the neuropsychiatric diagnosis, are of questionable value and negative laboratory results are usually of no consequence. ‘Normal’ brain images [computed tomography (CT) or magnetic resonance imaging (MRI)] or EEGs do not indicate an absence of brain disease. On the other hand, if results of these tests agree with the clinical impression, the diagnosis is probable.

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Brain imaging Brain imaging studies can provide structural or functional information. CT and MRI are structural imaging techniques; positron emission tomography (PET) and single photon emission computed tomography (SPECT) are functional imaging techniques that are used clinically. Structural brain imaging assesses the integrity of brain tissue. Loss of brain tissue or damage to particular structures becomes visually evident with such a procedure. Current clinically available functional imaging assesses metabolism or blood flow. A functional image may reveal loss of function in a brain area; however, it cannot determine whether a particular area has been damaged. Comparison with a structural image would be needed to answer this question. CT scanning is the least expensive, followed by MRI and SPECT, with PET being most expensive. All imaging studies must be interpreted with caution. Significant functional changes may occur in the absence of abnormality on the structural image and small areas of damage on a structural image are often correlated with wide areas of abnormality on functional image. Which image more accurately reflects the brain basis of the behavioral syndrome demands knowledge of the techniques, as well as the probable pathophysiology of the behavior. A structural imaging study is performed as part of most neuropsychiatric evaluations. A functional image may be added in certain circumstances. Imaging can be helpful for evaluation in the following:

• • • • • • • • • • •

Abnormal neurological/physical examination. Abnormal mental status examination. New onset or atypical features of psychiatric disorder such as psychosis or mood disorder (including atypical age of onset, symptoms, course, or treatment response). Personality change. New onset of seizures. Unexplained confusional state. Dementia. Movement disorder (e.g., chorea). Catatonia. Weight loss and behavioral abnormality. Abnormal childhood or adolescent development or chronic social or occupational dysfunction.

CT SCAN The CT scan utilizes ionizing radiation (X-rays) and computed reconstruction to provide a structural image in three dimensions (Oldendorf 1980; Adams and Ropper 2001). The image is produced in a series of thin horizontal slices through the brain (tomograms), outlining structures by their relative specific density. The CT scan can demonstrate acute hemorrhages, old strokes, tissue loss secondary to aging, trauma or degeneration, most tumors, calcified lesions, excessive build-up of cerebrospinal fluid, and lateral pressure causing shift of brain structures.

Iodine contrast material, injected intravenously, enhances the image by outlining blood vessels, areas of breakdown of the blood–brain barrier, and extravasations of blood. Contrast enhancement also helps highlight arteriovenous malformation, certain tumors, meningoencephalitis, subarachnoid hemorrhage, abscess, hematoma, contusion, and neoplastic metastases. CT scan, both with and without contrast, is used in most neuropsychiatric work-ups.

MRI Magnetic resonance imaging also produces threedimensional tomograms of the brain, but without ionizing radiation. Instead, the image is constructed by a computer from magnetic resonance signals produced by the brain tissue’s hydrogen nuclei when ‘energized’ by radio waves (Garber et al. 1988). Bone is visualized as a black void because it is relatively ‘inert’ (very short relaxation times). MRI can visualize areas obscured by bone artifacts on the CT scan, particularly the anterior temporal lobes (typical source area for seizures), deep subcortical structures (often involved in neuropsychiatric disorders), the cerebellum, and the brainstem. The MRI can also be enhanced by the addition of intravenous gadolinium to mark breakdown of the blood–brain barrier, tumors and metastases, abscess, hematoma, and stroke. MRI requires use of a powerful magnetic field, and so is contraindicated if there is metal within the skull, a cardiac pacemaker is fitted, or internal ferromagnetic surgical clips or devices have been used.

MRI VERSUS CT In general, MRI is preferable to CT for soft tissue structural imaging unless specific contraindications for MRI are present (Garber et al. 1988). It is more sensitive in detecting stroke, seizure focus, tumors, vascular malformations, and degenerative changes. As noted above, MRI shows structures frequently involved in neuropsychiatric syndromes that are obscured by bone in the CT scan. Also, midline structures often involved in neuropsychiatric syndromes (medial temporal lobes, limbic areas) can be imaged with the MRI by utilizing different orientations of tomograms (e.g., sagittal and coronal), which the CT scan cannot provide. White matter lesions (small infarcts, demyelinating lesions, infiltrating tumors) are visualized particularly well with MRI. MRI avoids exposure to ionizing radiation and, in most cases, intravenous contrast is not required. The CT scan is routinely used in emergency situations, such as acute head trauma or intracranial hemorrhage. MRI is often preferred if brain disease is suspected and a CT scan has been normal. The cost of an MRI scan is about the cost of a CT with contrast enhancement.

PET AND SPECT SCANS PET and SPECT are functional imaging techniques that can be used to detect brain dysfunction that may

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not appear as structural damage (Volkow, Brodie, and Bendriem 1991; Holman et al. 1991). By measuring energy emitted by rapidly decaying radiolabeled compounds, conclusions can be drawn about the relative functioning of brain areas. For example, labeled glucose can reveal aspects of cellular metabolism, while inhaled inert gases or other tracers carried by the circulatory system can demonstrate characteristics of blood flow. The intensity of activity can be color-coded to more easily visualize abnormalities of metabolism or blood flow. The early stages of dementia (e.g., Alzheimer’s disease or multiinfarct dementia) and other degenerative diseases such as Huntington’s disease can be demonstrated with these techniques. Small lesions, such as a seizure focus, may appear on a functional but not structural image. Functional imaging can be considered when the history and/or examination imply brain dysfunction, but structural imaging does not reveal pathology.

can improve proximity to deep brain structures and thus improve detection of seizure foci. Primarily a research tool, quantitative EEG (QEEG) (sometimes referred to as EEG brain mapping) mathematically processes digitally recorded EEG in order to highlight specific waveform components or transform the EEG into a format that elucidates relevant information (Nuwer 1997). QEEG can provide topographic representation of quantified brain cortical electrical activity that is considerably easier for the non-expert to visualize (Zappulla 1991). Unfortunately, there are many ways in which the data can be misleading. ‘Abnormal’ results in normal subjects and incorrect diagnoses in patients, i.e., false positives, remain a major disadvantage to QEEG and can create confusion, abuse, and false impressions if used in court, where it has not been accepted under Frye or Daubert rules (Nuwer 1997). The standard EEG, interpreted by an expert, remains the ‘gold standard.’

FUNCTIONAL MRI AND MR SPECTROSCOPY

Neuropsychological testing

Based on the same nuclear magnetic resonance technology as MRI, functional MRI (fMRI) and magnetic resonance spectroscopy (MRS) are exciting research tools that hold great promise for the elucidation of normal and pathological brain function and, ultimately, clinical diagnostic applications (Prichard and Cummings 1997). fMRI non-invasively detects increased neuronal activity when the brain is activated; increased blood flow (which correlates with increased activity) causes an increase in T2-weighted signal when newly arriving oxyhemoglobin dilutes the paramagnetic deoxyhemoglobin that suppresses the NMR signal from nearby water molecules (Castelijns et al. 2000). MRS provides chemical information on metabolites and offers clues to normal and pathological cerebral metabolic processes (Rudkin and Arnold 1999). Neither fMRI nor MRS has a role in the courtroom at this time.

EEG AND BRAIN MAPPING The brain transmits information through electrical signals. Voltage potentials can be measured with scalp electrodes. The electroencephalogram (EEG) provides a sensitive recording of brain cortical (surface) electrical activity (Adams and Ropper 2001). EEG is useful for suspected seizure disorder, confusional states, and altered states of awareness. It may be useful for assessing degenerative disorders (slowing of activity) and structural lesions (focal abnormal electrical activity). Because seizures are paroxysmal, an individual EEG record can be normal because no seizure activity occurred at the time of the recording. Furthermore, many seizure foci that lie in deep structures and cause behavioral abnormalities cannot be detected from the scalp. EEG telemetry can be used to provide continuous EEG recording over days or weeks. Special leads, such as sphenoidal or depth eletrodes,

Neuropsychological testing and interpretation by a trained neuropsychologist (a clinical psychologist with specialized training in brain function and cognition) can provide a quantitative report of cognitive deficits as compared with age- and sex-adjusted normative values, providing strong evidence of brain disease (Strub and Black 1985). Neuropsychological testing is covered in depth in Chapter 62.

Additional laboratory tests A wide variety of laboratory tests can be selected, based on the history, examination, and other test results. Such tests include, for example, examination of the cerebrospinal fluid in cases of suspected neurosyphilis; analysis of urine toxicology in suspected substance abusers; HIV serology; blood cell count for evidence of vitamin deficiency; plasma ammonia level as a reflection of liver failure; hormone levels to assess effects of certain brain tumors; continuous cardiac monitoring for evidence of abnormal rhythms; sleep electroencephalography to demonstrate periodic apnea during the night. Although it is beyond the scope of this chapter to detail indications and usefulness of all such tests, they may prove crucial to the establishment of a definitive diagnosis.

TYPICAL SITUATIONS REQUIRING NEUROPSYCHIATRIC EVALUATION Memory loss and amnesia The claim by an accused individual of no recollection of an illegal event requires careful consideration. Memory impairment can occur in many disorders, only one of

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which is amnesia. By definition, amnesia has four characteristics: (i) normal immediate recall; (ii) serious impairment in learning new information; (iii) relatively intact ability to recall old information (except for a variable period of retrograde amnesia); and (iv) relatively unimpaired cognition and personality (Benson and Blumer 1982). Events occurring during the period of amnesia are not recalled later. A frequent claim is one of loss of recall of events during a circumscribed period of time in the past, although currently the individual is able to learn and recall new information. Transient, short-lived episodes of memory loss, usually lasting a few hours or less, can occur in a variety of conditions (Cummings 1985). Most of these are not amnesias by definition: they primarily involve alteration of attention during a confusional state. Lesions that produce amnesia involve the limbic structures necessary for new learning and recent memory: the hippocampal formation of the medial temporal lobe, the fornix, and the mammillary bodies of the hypothalamus. In the confusional state or dementia, more widespread processes cause multiple brain dysfunctions. The neuropsychiatric evaluation of possible amnesia proceeds as discussed previously, focusing on elements of history, neurological/physical examination, and mental status examination. Neuropsychological testing can accurately document memory dysfunction as well as the presence or absence of other cognitive deficits. Structural brain imaging and EEG are generally required because of the specific etiologies that must be considered. Other specificlaboratory tests may be required as part of the diagnostic work-up for toxic and metabolic abnormalities. The following discussion covers common circumstances of memory loss. Alcoholic blackouts can produce transient memory loss and should be suspected in the setting of alcohol abuse. Physical examination may elicit the classic findings of alcoholism with or without the typical denial of abuse. The mental status examination may be normal except for recall of the events that transpired during the blackout period (usually hours to days in duration). Not infrequently, however, mental status examination will reveal impaired cognition reflecting chronic alcohol abuse. Blood alcohol testing can detect current use of alcohol, while blood cell count and serum chemistries may demonstrate pathophysiological effects of chronic alcoholism. Structural brain imaging may reveal cortical atrophy in the chronic alcoholic. The confusional state, defined by impairment in attention, will produce subsequent memory loss for the period in which the confusional state was present. Toxic and metabolic causes are most common (Cummings 1985; Yudofsky and Hales 1997). In particular, drug or medication ingestion is frequently the cause of confusional state and associated memory lapse. Commonly responsible substances include, among a host of others, barbiturates, tranquilizers, and sleeping pills; analgesics; illicit psychotropic drugs; atropine or related agents;

steroids; and anti-parkinsonism medications. The sudden withdrawal of drugs and medications can precipitate a transient confusional state. Medical conditions, such as hypoglycemia, cardiac rhythm abnormalities with compromised cerebral blood flow, hepatic or renal failure, or other metabolic disorders may produce transient confusional states. Most seizures produce altered consciousness followed by confusion, and seizure must be considered as a potential cause of memory loss – particularly in individuals with previous head trauma or a known diagnosis of epilepsy. The presence of symptoms commonly associated with seizures, such as aura, automatic behaviors, incontinence, or confusion, should be sought. Integrated, purposeful behavior or appropriate responsiveness to questions or commands is not characteristic of seizure states, which produce an alteration of awareness or consciousness. History may reveal previous occurrences of other seizures or an underlying medical condition or injury associated with seizures. Neurological examination and structural brain imaging may determine an underlying condition, for example, brain tumor or stroke. Routine EEG may identify seizure activity or abnormal electrical activity consistent with a seizure focus. PET scanning may identify a seizure focus. Migraine headache may also be associated with transient confusional state and memory loss. Migrainous symptoms, including headache, nausea, photophobia, and visual hallucinations, should be sought. Memory problems occur in dementia syndromes where the memory deficits are part of an overall loss of intellectual function, and are thereby distinguished from the amnesias. Transient disorders of learning include posttraumatic amnesia, transient global amnesia, and psychogenic amnesia. Head trauma routinely produces an amnestic syndrome that is usually short-lived and resolves spontaneously. A history is pivotal for such a circumstance; other signs or symptoms of brain injury may or may not be present upon physical or mental status examination or upon laboratory testing such as brain imaging. Transient global amnesia is a disorder of the middle-aged or elderly in which memory loss persists for hours and then resolves. This condition may be associated with cerebrovascular disease in the posterior circulation, but it has also been reported in association with other etiologies including diazepam overdose, tumors, and seizures; in almost half of reported cases, however, no specific cause is demonstrated. Psychogenic amnesia is a conversion symptom in which personally emotionally charged information is selectively lost. It is generally short-lived, remitting spontaneously, but almost invariably indicates a significant underlying psychiatric disorder. It may be overcome with the help of amobarbital (Amytal) interview or hypnosis. This diagnosis should be considered only when the memory disorder involves personal data (e.g., name) with little or no problem learning other information. The

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temptation may be great to assume that a memory loss is the result of a psychological process, especially if it appears that the patient stands to gain psychologically or monetarily by not remembering. This temptation must be resisted pending a formal evaluation. Feigned memory loss, involving purposeful deceit, is another distinct possibility. Mental status examination may reveal no abnormalities, or may reveal inconsistencies suggestive of lying. For example, severe deficits may be shown on mental status examination despite objectively intact behavioral function; new learning may be demonstrated while the individual claims no recall of recent events. Neuropsychological testing may be helpful in making this determination. In addition to cognitive evaluation, other psychological test instruments such as the Minnesota Multiphasic Personality Inventory (MMPI) and Rorschach Ink Blot may reveal a conscious effort to deceive. All of these tests, however, must be validated against the clinical impression: the neuropsychological tests can be manipulated sufficiently to provoke misinterpretation. Other laboratory tests demonstrate only normal findings in cases of feigned memory loss.

Acquired neurological disorders and dementia An individual may demonstrate clear abnormalities of intellectual functioning, leading to questions regarding competence, or may demonstrate behavioral abnormalities, which upon closer examination are part of a syndrome produced by acquired neurological disease. An individual may suffer a loss of cognitive or behavioral function as a result of focal structural lesions (e.g., tumor, stroke) or more diffuse or global processes (e.g., degenerative disease, head trauma, infection). The loss may be specific and demarcated, for example, a loss of memory function (amnesia) as discussed above, or it may be more progressive and generalized, simultaneously involving multiple cognitive domains (dementia). Depending on lesion localization, a variety of neuropsychiatric syndromes have been described (Beckson and Cummings 1991). Mental retardation is not an acquired loss; it refers to a diminished level of functioning from birth that may nevertheless be associated with behavioral abnormalities of legal consequence. Language disorder (aphasia) presents in many forms, sometimes simplified as disturbances of comprehension (fluent aphasia) or verbal output (non-fluent aphasia). Specific areas of the temporal and frontal cortices, usually in the left hemisphere, are crucial for the comprehension and output of language, respectively. Fluent aphasias, in which the individual produces nonsense jargon and cannot comprehend what others are saying or what is written, are easily confused with psychotic illness because of inappropriate responses and agitated or paranoid behavior. There may be no gross neurological deficit

that might otherwise prompt neurological suspicions. Non-fluent aphasias are frequently associated with severe depression. While the individual understands some written and spoken language, his or her difficulty communicating, further complicated by depressive withdrawal and apathy, may suggest dementia. Aphasic patients are not necessarily demented; in fact, their other cognitive domains may be perfectly intact if tested in a way that allows appropriate responses. A depressed, non-fluent aphasic patient may improve sufficiently with speech therapy and antidepressant medication to be self-reliant in a way that a demented patient could not. Disturbances in language should be addressed by a thorough neuropsychiatric evaluation to determine the nature of the clinical syndrome, particularly to establish whether other cognitive domains are involved, and to identify the causative etiology of the disturbance. The testamentary capacity of aphasics has been studied and relatively firm guidelines have been established (Critchley 1970; Benson 1992). Visuospatial disturbances, often reflecting parietal lobe disease, may disrupt an individual’s ability to properly perceive or work with spatial orientation and relationships, thereby causing substantial functional impairment. The functional ramifications for the patient’s occupation and life can be significant but, like language deficit, can exist in the absence of dementia or any other additional cognitive deficit. Frontal lobe injury routinely produces marked behavioral disorders, often in the absence of any obvious neurological findings (Stuss and Benson 1986). Orbitofrontal injury may lead to marked personality change with emotional lability, poor insight and judgment, and disinhibited behavior, including antisocial acts. Medial frontal damage leads to apathy and indifference, which may be easily mistaken for depression, though there may also be short-lived outbursts of aggression. Lateral convexity lesions produce distractibility, sequencing and categorization difficulties, and loss of ability to effectively plan and execute complex tasks. Despite the intactness of basic areas such as language, frontal brain damage produces severe functional limitations. Neuropsychological testing often fails to demonstrate any basic cognitive deficits. The most common source of frontal injury is blunt head trauma. Tumors such as gliomas, meningiomas, and pituitary adenomas, as well as anterior communicating artery aneurysms, also cause frontal dysfunction. The dementia syndrome consists of acquired deficits in at least three of the following cognitive domains: speech/language, memory, visuospatial, calculation/ abstraction, and personality (Cummings and Benson 1992). The deficits are greater than the mild intellectual decline often associated with normal aging. The early stages may be insidious, with personality change or behavioral abnormalities dominating the clinical picture and the problem may be confused with psychiatric disorders such as depression and psychosis. Some dementia

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syndromes are reversible, depending on the underlying cause. Once the dementia syndrome has been established from the history and mental status examination, a correct determination of etiology follows from combining these data with the results of neurological/physical examination, blood tests, cerebrospinal fluid analysis, EEG, structural and functional brain imaging. Neuropsychological testing can quantitate the severity of the cognitive deficits and provide a baseline for future assessment for evidence of a progressive, deteriorating course. While dementia most commonly results from Alzheimer’s disease or cerebrovascular disease (multiinfarct dementia), other less frequent etiologies include extrapyramidal diseases, hydrocephalus, demyelinating diseases, and toxic-metabolic, traumatic, infectious (including HIV), and neoplastic causes. Treatment and prognosis follow from correct diagnosis.

Violence Violence, aggression, impulsive acts, and conduct disorders are of great forensic import. Various neuropsychiatric disorders have been associated with violent behavior. Human aggression can result from hypothalamic, temporolimbic, and frontal cortical lesions (Weiger and Bear 1988; Elliott 1992). The episodic dyscontrol syndrome is marked by attacks of explosive rage and violence directed at people or objects, often with a primitive quality and remarkable displays of strength (Rickler 1982; Elliott 1990). The attacks are recalled and remorse is usually expressed. Some (Mark and Ervin 1970) have included as part of the syndrome episodes of pathological intoxication (relatively small quantities of alcohol produce bizarre behavior and amnesia), reckless driving, and sexual impulsiveness. Episodic dyscontrol has been related to a number of different etiologies including traumatic brain injury, temporal lobe epilepsy, minimal brain dysfunction, encephalitis, meningitis, midline tumors, multiple sclerosis, stroke, subarachnoid hemorrhage, normal pressure hydrocephalus, hypoglycemia, hyponatremia, and premenstrual syndrome, but in many instances no specific etiology is determined. Frontal lobe disease and violent behavior have a clear association. Orbitofrontal brain damage leads to irritability, disinhibition, and impulsiveness. Trivial provocation may cause outbursts of anger and impulsive actions that are short-lived but leave no resentment or remorse. Closed-head trauma is the most common etiology of frontal brain damage, but tumors, aneurysms, subarachnoid hemorrhage, encephalitis, and multiple sclerosis can also cause this syndrome. Aggressive behavior in dementia and mental retardation may reflect frontal involvement. In the Vietnam Head Injury Study of veterans who had suffered penetrating head injuries, patients with frontal ventromedial lesions consistently scored higher on aggression and violence scales compared

with controls and patients with lesions in other brain areas (Grafman et al. 1996). Some have hypothesized that impulsive aggression and violence arise as the consequence of dysfunctional frontal lobe function relating to serotonergic dysregulation (Davidson, Putnam and Larson 2000). A study of community violence and inpatient assaults found that violence was related to poor performance on neuropsychological tests of frontal lobe function (Krakowski et al. 1997). Basal ganglia disorders, such as Huntington’s Disease, which produce deficits in frontal systems function, have been associated with psychosis and violence (Beckson and Cummings 1992). Mass lesions or brain tumor of the left temporal lobe can present as rage attacks (Piacente 1986). Tumor invasion of the hypothalamus has been associated with violent behavior in response to minimal provocation. Epilepsy may be a source of violent behavior and is considered in Chapter 60. Sleep-related violent behavior can be associated with parasomnias. In one study, serious and harmful violent acts were more likely to occur with males who showed sleep schedule disorder and abused drugs (Moldofsky et al. 1995). Intoxication with alcohol or drugs is a common circumstance for violent behavior with impaired judgment and poor impulse control as hallmarks (see Chapter 70). Any metabolic derangement producing confusion can potentially be associated with violent behavior; the behavior is a result of poor judgment, and is not premeditated or organized. Psychotic paranoid delusional disorders resulting from brain disease may result in violent behavior consistent with the individual’s delusional system. Minimal brain dysfunction, often combined with attention deficit disorder as a syndrome complex, is found frequently in individuals who are prone to violence. The syndrome consists of deficits in attention, impulsivity, specific learning disabilities, and neurological soft signs, despite normal or even superior intelligence. It has been postulated to indicate a scatter of developmental or acquired areas of brain dysfunction (Elliott 1990). A number of studies have examined the neurological signs, neuropsychological tests, EEGs, CT scans, and PET scans in violent offenders, most often producing evidence of non-specific abnormalities, often within the frontal and temporal lobes. A review of fourteen studies assessing EEG abnormalities in prison inmates and patients with antisocial behavior revealed increased frequency of EEG changes, in most studies ranging from 24 per cent to 78 per cent, and more commonly found in subjects who had committed violent acts and done so more than once, particularly if there was no apparent motive (Cummings 1985). EEG abnormalities have included generalized and focal slowing, as well as epileptiform irregularities, most often found in limbic areas including temporal and frontal lobes. A retrospective study of 372 male patients in a maximum-security mental hospital revealed that in the group of most violent patients, 20 per cent had focal temporal electrical abnormalities on EEG and 41 per

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cent had structural abnormalities localized to temporal lobe on CT scan; such findings were relatively infrequent in the least violent group (Wong et al. 1994). Neurological soft signs and poorer performance on neuropsychological testing (especially frontal lobe tasks) have also been reported in criminally violent or impulsive populations. Whether the abnormalities reflect the sequelae of head trauma or some other underlying congenital, developmental, or acquired brain disease that results in personality and behavioral disturbance remains unclear (Cummings 1985). Lewis et al. (1986) reported a series of fifteen death row inmates, finding a history of severe head injury in all fifteen, major neurological impairment in five, and less serious neurological impairment (e.g., blackouts, soft signs) in seven others; neuropsychological testing also revealed impairment. In a recent study of sixteen inmates on death row in California, twelve had histories of traumatic brain injury (Freedman and Hemenway 2000). Tancredi and Volkow (1988) demonstrated frontal and temporal lobe abnormalities on the PET scans of four violent patients; all four had neurological examinations that were normal, while two of the four had abnormal CT scans and abnormal EEGs. Additional hypotheses and investigation has been conducted on other biologic aspects of violence, but are beyond the scope of this chapter. Neuropsychiatric evaluation of the violent offender is often indicated to assess for evidence of brain disease; in some cases the disorder is treatable. Brain imaging and EEG should complement the history and neurological and mental status examination in attempting to discern brain dysfunction and its etiology. Neuropsychological testing may reveal mild but pertinent cognitive deficits.

REFERENCES Adams, R.D., Ropper, A.H. 2001: Adam and Victor’s Principles of Neurology, 7th edition. New York: McGraw-Hill. Beckson, M., Cummings, J.L. 1991. Neuropsychiatric aspects of stroke. International Journal of Psychiatry in Medicine 21, 1–15. Beckson, M., Cummings, J.L. 1992. Psychosis in basal ganglia disorders. Neuropsychiatry, Neuropsychology, and Behavioral Neurology 5, 126–31. Benson, D.F. 1992: Psychiatric aspects of aphasia. In: Yudofsky, S.C., Hales, R.E. (eds), American Psychiatric Association Textbook of Neuropsychiatry, 2nd edition. Washington, DC: American Psychiatric Association Press. Benson, D.F., Blumer, D. 1982: Aphasia: a clinical approach. In Benson, D.F., Blumer, D. (eds), Psychiatric Aspects of Neurologic Disease. Volume 2. New York: Grune & Stratton, 251–78. Castelijns, J.A., Lycklama, A., Nijeholt, G.J., Mukherji, S.K. 2000. Functional MRI: background and clinical

applications. Seminars in Ultrasound CT and MR 21, 428–33. Critchley, M. 1970: Testamentary capacity in aphasia. In Critchley, M. (ed.), Aphasiology. London: Edward Arnold Limited, 288–95. Cummings, J.L. 1985: Clinical Neuropsychiatry. Orlando: Grune and Stratton. Cummings, J.L., Benson, D.F. 1992: Dementia: A Clinical Approach, 2nd edition. Boston: ButterworthHeinemann Medical. Davidson, R.J., Putnam, K.M., Larson, C.L. 2000. Dysfunction in the neural circuitry of emotion regulation: a possible prelude to violence. Science 289, 591–4. Elliott, F.A. 1990. Neurology of aggression and episodic dyscontrol. Seminars in Neurology 10, 303–12. Elliott, F.A. 1992. Violence: the neurologic contribution. An overview. Archives of Neurology 49, 595–603. Freedman, D., Hemenway, D. 2000. Precursors of lethal violence: a death row sample. Social Science and Medicine 50, 1757–70. Garber, H.J., Weilburg, J.B., Buonanno, F.S., Manschreck, T.C., New, P.F.J. 1988. Use of magnetic resonance imaging in psychiatry. American Journal of Psychiatry 145, 164–71. Grafman, J., Schwab, K., Pridgen, A., Brown, H.R., Salazar, A.M. 1996. Frontal lobe injuries, violence, and aggression: a report of the Vietnam Head Injury Study. Neurology 46, 1231–8. Holman, L.B., Nagel, J.S., Johnson, K.A., Hill, T.C. 1991. Imaging dementia with SPECT. Annals of the New York Academy of Sciences 620, 165–74. Krakowski, M., Czobor, P., Carpenter, M.D., Libiger, J., Kunz, M., Papezova, H., Parker, B.B., Schmader, L., Abad, T. 1997. Community violence and inpatient assaults: neurobiological deficits. Journal of Neuropsychiatry and Clinical Neuroscience 9, 549–55. Lewis, D.O., Pincus, J.H., Feldman, M., Jackson, L., Bard, B. 1986. Psychiatric, neurological, and psychoeducational characteristics of 15 death row inmates in the United States. American Journal of Psychiatry 143, 838–45. Mark, V.H., Ervin, F.R. 1970: Violence and the Brain. New York: Harper and Row. Moldofsky, H., Gilbert, R., Lue, F.A., MacLean, A.W. 1995. Sleep-related violence. Sleep 18, 731–9. Nuwer, M. 1997. Assessment of digital EEG, quantitative EEG, and EEG brain mapping: report of the American Academy of Neurology and the American Clinical Neurophysiology Society. Neurology 49, 277–92. Oldendorf, W.H. 1980: The Quest for an Image of the Brain. New York: Raven Press. Piacente, G.J. 1986. Aggression. Psychiatric Clinics of North America 9, 329–39. Prichard, J.W., Cummings, J.L. 1997. The insistent call from functional MRI. Neurology 48, 797–800. Rickler, K.C. 1982: Episodic dyscontrol. In Benson, D.F., Blumer, D. (eds), Psychiatric Aspects of Neurologic

Brain disease: forensic neuropsychiatric issues 611 Disease. Volume 2. New York: Grune and Stratton, 49–74. Rudkin, T.M., Arnold, D.L. 1999. Proton magnetic resonance spectroscopy for the diagnosis and management of cerebral disorders. Archives in Neurology 56, 919–26. Strub, R.L., Black, W.F. 1985: The Mental Status Examination in Neurology, 2nd edition. Philadelphia: F.A. Davis Company. Stuss, D.T., Benson, D.F. 1986: The Frontal Lobes. New York: Raven Press. Tancredi, L.R., Volkow, N.D. 1988. Neural substrates of violent behavior: implications for law and public policy. International Journal of Law and Psychiatry 11, 13–49. Volkow, N.D., Brodie, J., Bendriem, B. 1991. Positron emission tomography: basic principles and applications in psychiatric research. Annals of the New York Academy of Sciences 620, 128–44. Weiger, W.A., Bear, D.M. 1988. An approach to the neurology of aggression. Journal of Psychiatric Research 22, 85–98.

Wong, M.T., Lumsclen, J., Fenton, G.W., Fenwick, P.B. 1994. Electroencephalography, computerized tomography, and violence ratings of male patients in a maximum-security mental hospital. Acta Psychiatrica Scandinavica 90, 97–101. Yudofsky, S.C., Hales, R.E. 1997: American Psychiatric Association Textbook of Neuropsychiatry, 3rd edition. Washington, DC: American Psychiatric Press. Zappulla, R.A. 1991. Fundamentals and applications of quantified electrophysiology. Annals of the New York Academy of Sciences 620, 1–21.

Suggested reading Cummings, J.L. 1985: Clinical Neuropsychiatry. Orlando: Grune and Stratton. Cummings, J.L., Benson, D.F. 1992: Dementia: A Clinical Approach, 2nd edition. Boston: ButterworthHeinemann Medical. Miller, B.L., Cummings, J.L. 1999: The Human Frontal Lobes: Functions and Disorders. New York: Guilford Press.

62 Forensic neuropsychology CHARLES H. HINKIN, DELANY THRASHER AND WILFRED G. VAN GORP

INTRODUCTION Clinical neuropsychology can be defined as the scientific study of the behavioral effects of brain function and dysfunction. Grounded in psychometric theory and technique, a neuropsychological evaluation focuses on the detection and quantification of cognitive and emotional dysfunction caused by abnormalities in brain structure or function. Questions regarding the etiological basis of such dysfunction, prognosis, treatment recommendations, and the ‘real-world’ implications of these deficits also fall within the purview of a neuropsychological evaluation. Although the neuropsychological evaluation is based upon multiple sources of data such as patient selfreport, clinical observation and interview, and review of medical records, it is the use of objective psychological tests that lies at the heart of the examination. Historically, neuropsychologists have focused on explicating the behavioral effects of neurological disease such as Alzheimer’s disease, neurotoxic exposure, or head injury. However, there has been an increasing awareness of the applicability of neuropsychological theory and technique in the evaluation of patients with psychiatric disorders as well. Indeed, the field of clinical neuropsychology has witnessed a dramatic period of growth over the past twenty to thirty years. Paralleling this increase as a clinical specialty, the subspecialty of forensic neuropsychology has experienced a similar increased presence in the legal arena. Unfortunately, coupled with the increased usage of forensic neuropsychologists as experts in legal proceedings has come the potential for abuse. Individuals purporting to be neuropsychologists may lack necessary training and/or experience and may be asked by others to render opinions that do not fall squarely within their domain of expertise. This chapter seeks to outline what neuropsychology is, what constitutes a thorough neuropsychological evaluation, and what it can offer the legal system in general and the forensic psychiatrist in particular. Specific emphasis

will be devoted to an overview of the neuropsychological domains characteristically assessed in a thorough evaluation, as well as a description of the types of neuropsychological tests that are typically employed. The chapter will close with some cautions for consumers of forensic neuropsychology.

WHAT COMPRISES A FORENSIC NEUROPSYCHOLOGICAL EVALUATION? Although the exact structure of a forensic neuropsychological report can vary considerably across practitioners, the following sections are typically included: 1 Reason for referral and history of the present illness. 2 Relevant background information, especially neurological, psychiatric and medical history, current medications, and psychosocial background. 3 Review of records. 4 Behavioral observations/mental status evaluation. 5 Cognitive functioning, as measured by tests of intelligence, attention/concentration, language, visuospatial functioning, learning and memory, executive functions, and gross motor/sensory function. 6 Emotional functioning, including measures of mood, personality, and major psychopathology. 7 Summary and impressions, including a distillation of key findings, diagnostic impressions, prognostic implications, and if warranted, treatment recommendations. With regards to the specifics of testing, neuropsychologists apply standardized, psychometrically validated tests of cognitive, intellectual, and behavioral function to assess how the patient in question performs relative to a comparison group of unimpaired (‘normal’) individuals of a similar age range and educational level (see Table 62.1). Neuropsychologists typically utilize one of two approaches toward the assessment of individuals

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suspected of having a central nervous system disturbance or disability: 1 A fixed battery of tests administered in the same way to all patients, producing a summary impairment index, score, or profile [e.g., the Halstead–Reitan Neuropsychological Battery (Reitan and Davison 1974) and the Luria Nebraska Neuropsychological Battery (Christensen 1975)]. 2 A flexible battery of neuropsychological tests tailored to answer the specific referral question and the needs of the particular patient to be assessed. While fixed batteries are often very time consuming (typically 6 hours or more), the administration of the identical tests to all patients can aid in comparisons across patients. Flexible batteries offer the advantage of tailoring the battery in such a way as to take into account the unique features of a particular patient or disease process, which can help focus the evaluation and increase the validity of interpretation. A novel test battery that may combine strengths of both approaches is currently in development (The Modular Neuropsychological Test Battery), though this test has yet to be fully standardized and validated. Regardless of exact approach, the cornerstone of the neuropsychologic evaluation is the use of standardized, reliable, and valid psychometric test instruments that must be interpreted in light of a given patient’s age, education, socioeconomic status, gender, ethnicity, and so on. Since it is a rare patient who has received premorbid neuropsychological testing, determination as to whether a patient has suffered a decline in cognitive functioning requires comparison of their test data with that of a demographically matched control group. This comparison with normative data is analogous to the use of normal reference ranges that accompany laboratory results. This approach has been advanced by the publication of demographically corrected norms by Heaton, Grant, and Matthews (1991). Interested readers are referred to Lezak (1995) and Spreen and Straus (1998) for a review of the measures discussed in this chapter.

Premorbid cognitive functioning Neuropsychologists are often asked to render opinion as to whether an illness or injury has caused a significant decline in a person’s cognitive functioning. When considering a person’s neuropsychological test results, we are therefore interested in whether their current test performance is consistent with their premorbid level of ability. Ideally, patients would have prior test scores to use as a baseline, but in most cases this information has not been collected, so the individual’s level of premorbid functioning must be estimated. In addition to collecting self-report and collateral information regarding: (i) vocational and academic achievement, (ii) prior adaptive functioning;

and (iii) pre-existing developmental limitations, neuropsychologists also use standardized test procedures to assist them in estimating level of premorbid functioning. Several methods are currently in use, although debates continue regarding which approach is best. Regression formulas using demographic information (i.e., the ordinal scaling of age, education, occupation, gender, race, and region) have been shown to be helpful in estimating IQ using a strictly empirical approach (Barona, Reynolds, and Chastain 1984). However, this ‘formula’ was developed for the Wechsler Adult Intelligence Scale – Revised and not the WAIS-III, which is currently in use. Another drawback to the ‘Barona equation’ is that it is less accurate for persons with very high or very low premorbid IQ scores, and these are often the most frequently encountered needs in forensic neuropsychological practice. Table 62.1 Suggested forensic neuropsychological tests Intelligence Wechsler Adult Intelligence Scale – Third Edition National Adult Reading Test – American Version (estimates pre-morbid IQ) Achievement Wide Range Achievement Test – Third Edition Attention Digit Span Auditory Consonant Trigrams Paced Auditory Serial Addition Test Language Boston Naming Test Verbal Fluency Tests (FAS, Animal naming) Western Aphasia Battery Visuospatial Block Design Object Assembly Rey-Osterrieth Complex Figure Hooper Visual Organization Test Memory Wechsler Memory Scale – Third Edition California Verbal Learning Test – Second Edition Rey Auditory Verbal Learning Test Hopkins Verbal Learning Test Brief Visual Memory Test Executive/Frontal Systems Functions Wisconsin Card Sorting Test Category Test Stroop Color–Word Interference Test Trail-Making Test Motor Functions Finger Tapping Test Grooved Pegboard Test Mood/Affect Minnesota Multiphasic Personality Inventory-2 Symptom Checklist 90 – Revised Malingering Measures Rey Fifteen Word Recognition Test Symptom Validity Testing (e.g., Test of Memory Malingering) Structured Interview of Reported Symptoms

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Another approach in estimating premorbid IQ is to use scores from vocabulary and word reading tests (WAIS-III Vocabulary, North American Adult Reading Test; Blair and Spreen 1989; WRAT3 Reading; Wilkinson 1993) that are relatively preserved in neurological illness or injury (i.e., people with neurologic disease, unless it results in an aphasia, do not generally lose the ability to read or pronounce words). Formulas using both demographic information and current performance scores to enhance the accuracy of premorbid estimates are also used (Oklahoma Premorbid Intelligence Estimation; Scott et al. 1997). Lastly, ‘best performance’ estimates are sometimes employed (Lezak 1995) where the entire neuropsychological battery is examined and the highest score or set of scores is used as a benchmark of premorbid functioning. Each method has advantages and limitations (see Wilson and Stebbins 1991 or Putnam et al. 1999 for comments). The neuropsychologist who utilizes one or more of these approaches must be prepared to defend his/her choice when explaining and defending their practice in the forensic arena. Understanding patients’ premorbid psychological (emotional and psychiatric) status and personality functioning is also important to the accurate interpretation of a patient’s test results. Psychological damage caused by illness may arise de novo or may reflect an exacerbation of pre-existing traits. In addition to the systematic review of records, self- and collateral report, neuropsychologists use standardized measures such as the Minnesota Multiphasic Personality Inventory-Second Edition (MMPI-2; Hathaway et al. 1989), and the Personality Assessment Inventory (PAI; Morey 1991) to make judgments regarding acute versus longstanding personality characteristics.

Malingering Accurate interpretation of neuropsychological test results assumes adequate effort to do well on the part of the test-taker. Whenever secondary gain is a possibility it becomes especially important to assess whether a patient has put forth adequate effort and has not attempted to feign or exaggerate cognitive and/or emotional symptoms. It has been noted that patients embroiled in legal proceedings, either as plaintiffs alleging brain injury or criminal defendants claiming cognitive limitations rendering them incompetent to stand trial or as mitigating circumstances in the criminal act, may be motivated to exaggerate cognitive deficits (Schretlen et al. 1991). Neuropsychologists use several approaches to determine whether a test-taker has exerted appropriate effort on the tests administered. First, neuropsychologists observe test behavior and assess whether the pattern of test results and behavior correspond with the nature and degree of current complaints, as well as whether the results fit expected patterns based upon the specific injury or illness alleged. They also consider the consistency between a patient’s overall level of impairment

suggested by their test performance/behavior and their everyday adaptive abilities. A number of neuropsychological tests have been designed to detect exaggeration or feigning of cognitive impairment. Most often, neuropsychologists combine the information above with test results on formal ‘malingering tests,’ that are specifically designed to detect poor effort or exaggeration of symptoms. Malingering is frequently associated with below-chance performance on forced-choice measures, unexpectedly low scores on measures of recognition memory, or unusual discrepancies between recognition and free recall, and performance inconsistency (i.e., across similar measures, within measures or from testretest). Formal test instruments to detect dissimulation have been developed and refined over time, using one or several of these principles. More recently, test developers have collected normative information for head injured litigants and non-litigants, patients with amnestic syndromes, chronic pain patients, recruited ‘feigners’ and even highly coached ‘sophisticated’ feigners to make dissimulation-like performances easier to distinguish from true impairment. Early measures of dissimulation include the Rey 15-item (Rey 1964), and Rey Dot Counting (Rey 1941), though subsequent research has shown the sensitivity, specificity, and error rate of these tests to be lacking (Schretlen et al. 1991; Vallabhajosula and van Gorp 2001). Several dissimulation measures have been adapted from the Symptom Validity Technique (Pankratz, Fausti, and Peed 1975; Pankratz 1983) and use a forced-choice paradigm wherein subjects are asked to make either/or judgments about stimuli. Based on the binomial probability theory, even test-takers who guess should answer correctly about 50 per cent of the time. In this approach, the person’s actual score can be compared to the statistical likelihood they would have obtained these scores based upon random or chance responding, or whether the obtained results are actually statistically below that which would be expected by chance alone. Thus, scores significantly below chance levels suggests intentional poor effort. Although specific stimuli (e.g., words, digits) and methods (e.g., varying inter-trial latency and perceived difficulty) vary, several malingering measures are based on the force-choice paradigm [e.g., Hiscock Digit Memory Test (Hiscock and Hiscock 1989); Portland Digit Recognition Test (Binder 1993); Word Memory Test (Green, Allen, and Astner 1995); Victoria Symptom Validity Test (Slick et al. 1998); and Test of Memory Malingering (Tombaugh 1997)]. Other tests have been developed that use sophisticated assessment approaches to determine whether the pattern – not just level – of test performance fits expected patterns based upon the person’s level of ability. These instruments (e.g., Validity Indicator Profile; portions of the California Verbal Learning Test – Second Edition; Delis et al. 2000) offer reasonable sensitivity and specificity and can add to the determination of level of effort

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by the test taker in the forensic setting (Millis et al. 1995; Vallabhajosula and van Gorp 2001). Personality measures, such as the MMPI-2 and the MCMI-III (Millon 1993) have validity indices that are used to judge the degree to which a person has either underreported or over-reported their current psychological symptoms, and each have suggested cut-off scores over which a profile is considered invalid. Simply put, self-disclosure on personality measures can be placed on a continuum, ranging from overly defensive to overly self-disclosing – either may be of interest in a forensic examination depending on the context of the case. The MMPI-2 validity scales include L, F, and K. These scales are typically interpreted as a triad, the configuration of which suggests a person’s test-taking attitude. L-scale items deal with common flaws or weakness that most people are willing to admit, and extremely low scores (especially with low K scores) suggest that a person has emphasized negative characteristics, while elevations may indicate an unsophisticated attempt to present oneself in a positive light. The K scale was developed as a more subtle measure of a person’s test-taking attitude. Low K scores suggest a deliberate attempt to present oneself unfavorably, while elevated scores suggest defensiveness. The F scale consists of unusual symptoms and attitudes that the majority of people do not endorse. As such, it is also useful for measuring test-taking attitude, and in a valid profile, indicates the level of psychopathology a person may be exhibiting. Response inconsistency and all-true or all-false response biases can also be evaluated with the MMPI-2 (i.e., TRIN, Fb and VRIN scales). It is important to recognize that no measure of malingering possesses perfect sensitivity and specificity and some degree of symptom exaggeration is not uncommon among litigants, even among those who have suffered documented neurologic injury. Thus, a clinician must always use multiple sources of evidence and his or her own clinical judgment before arriving at a diagnosis of malingering. This has prompted some (Slick, Sherman, and Iverson 1999) to propose operationally defined determinations of ‘definite,’‘probable,’ and ‘possible’ malingering conclusions based upon the nature of the test results.

Intelligence Most neuropsychological batteries include a measure of general intelligence. The most widely used measure is the Wechsler Adult Intelligence Scale-Third Edition (WAISIII), which renders an overall intellectual quotient [Full Scale Intellectual Quotient (FSIQ)] that is used as the basis for judging a patient’s global functioning and to which other neuropsychological tests (including premorbid estimates) are typically compared to evaluate for loss of functioning. In addition, it includes domain scores [Verbal Intellectual Quotient (VIQ) and Performance Intellectual Quotient (PIQ)], as well as specific index, or factor, scores (Perceptual Organization; Verbal

Comprehension; Working Memory; Processing Speed) that allow the clinician to determine relative strengths and weaknesses in the profile that can guide conclusions as to the nature of a patient’s disorder. Normative data for specific populations (e.g., Alzheimer’s disease, Parkinson’s disease, learning disability, attention deficit/hyperactivity disorder) are available in the manual, which may be useful for interpretation as well. One drawback to the WAIS-III is its lengthy administration (usually in excess of 1 hour). To address this issue, an abbreviated form of the WAIS-III has recently been developed [Wechsler Abbreviated Scale of Intelligence (WASI)].

Attention and concentration Disruption in attention and sustained concentration is a very common complaint in persons with a history of either neurological or psychiatric disorder. Basic auditory attention can be measured by administering digit repetition tasks, such as the Digit Span subtest from the WAISIII. There is also a spatial analog to this task that measures basic visual attention (WMS-III, Spatial Span). Divided attention tasks measure a patient’s efficiency at the simultaneous mental processing and manipulation of information in working memory. Measures of divided attention include Letter-Number Sequencing (random numbers and letters are presented: ‘9T3C5’ that must be mentally ordered: ‘359CT’) and Arithmetic from the WAIS-III, Auditory Consonant Trigrams (Brown 1958), and the Paced Auditory Serial Addition Task (Gronwall and Sampson 1974). Sustained concentration is commonly measured using the Stroop Word and Color Reading, but computerized measures of vigilance such as the Continuous Performance Test, the California Computerized Assessment Package (CalCAP (Miller 1991)), or the Test of Variables of Attention (TOVA) are also used. On these latter tasks patients depress a key pad or button in response to targets that appear under varying conditions. Errors of omission (inattention) and commission (impulsivity) as well as response time variability are measured. Comparison between a patient’s attention and memory ability can provide important information regarding the nature of a patient’s disorder. For example, in early Alzheimer’s disease basic attention is typically intact while memory is clearly deficient. In contrast, individuals who are attempting to feign memory disorder will often produce the opposite pattern of performance (e.g., Mittenberg et al. 1993).

Language Judgments regarding a person’s language ability in a neuropsychological evaluation are based both on clinical observations of their casual conversation and test behavior, as well as standardized language measures. Commonly used screening measures of language dysfunction include tests of confrontation naming ability (e.g., Boston Naming

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Test; Kaplan, Goodglass, and Weintraub 1983) and sentence repetition (MMSE: ‘no ifs, ands, or buts’), as well as simple sentence reading, comprehension (following three-, four-, and five-step commands), spontaneous writing and writing to dictation. When basic problems are detected, more extensive batteries exist [Boston Diagnostic Aphasia Examination (Goodglass and Kaplan 1983) or the Western Aphasia Battery (Shewan and Kertesz 1980)] to assess symptoms of aphasia more comprehensively.

Visuospatial functioning Behavioral observations are an important part of a clinician’s judgment regarding visuospatial functioning in their patients. Before and during testing, clinicians observe the manner in which patients guide their body in space; perceives, reaches for, orients or positions test materials; as well as the ease with which they navigate to and from the office/restroom, always alert for indications of inattention, neglect or geographical disorientation that may warrant more extensive exploration in this domain. Formal tests of visuospatial ability are most sensitive to non-dominant hemisphere pathology, particularly the parietal lobe (although dominant hemisphere damage can also lead to poor performance on visuospatial testing). Specific tests include WAIS-III Block Design, Matrix Reasoning and Object Assembly subtests, the Tactile Performance Test from the Halstead-Reitan Neuropsychological Battery, and the Rey-Osterrieth Complex Figure Copy (Corwin and Bylsma 1993). Sometimes patients perform poorly on these measures because of the speed and/or motor component inherent in them, and thus clinicians may also choose to administer non-motor and un-timed visuospatial measures such as the Benton Judgment of Line Orientation (Benton et al. 1983), the Hooper Visual Organization Test (Hooper 1958), or the Test of Visual Perceptual Skills (Gardner 1982) in order to disentangle this issue.

Executive functioning Executive functions enable a person to plan, initiate, program, sequence and maintain goal-directed behavior. These processes also allow a person to monitor their behavior, often in the face of distraction, in order to modify actions to meet task demands or potential consequences. These are the skills one uses to successfully respond to new problems/situations/expectations in their environment. Such behaviors are often deficient in those with dementia, brain injury (particularly to the frontal lobe), or psychosis. Executive dysfunction may be so severe that a person is rendered incompetent to consent to medical treatment, to assist in his or her own legal defense or to enter into legal contracts, which frequently is how they come to the attention of a forensic examiner.

Sometimes a patient’s deficits in this domain can be difficult to observe during a standard neuropsychological evaluation because of the high degree of structure that is present during testing. However, concrete thinking and poor problem solving can be measured using novel, unstructured measures such as the Wisconsin Card Sorting Test or the Booklet Category Test wherein the patient is not told specifically how to perform successfully, but must deduce the principle from the responses provided by the examiner. Other measures of executive functioning that are not problem solving tasks per se, but are adversely affected in frontal lobe dysfunction, include measures of set shifting (Trail Making B; Partington and Leiter 1949), selective attention/response inhibition (Stroop Interference), verbal (Controlled Oral Word Association Test; Spreen and Benton 1977) and figural (Ruff Figural Fluency Test; Ruff 1988) fluency, as well as verbal (WAIS-III Similarities) and non-verbal (WAIS-III Matrix Reasoning) abstraction ability. Lastly, neuropsychologists observe the degree of awareness a person exhibits regarding their disability and what accommodations, if any, they use, both of which indicate judgment. They are also sensitive to the degree of structure a person requires in order to meet task demands, whether they become derailed and lose cognitive set, and whether they tend to become stuck in set and perseverate, all of which are characteristic of executive dysfunction.

Memory Memory impairment is common across a broad range of central nervous system disorders, injuries and diseases, and therefore, assessment of memory functioning is an integral part of a thorough neuropsychological assessment. Primary, recent and remote memory should be assessed. At the outset, neuropsychologists are sensitive to the ease and accuracy with which a person can recount their history (including educational, vocational and medical history), and current events, as well as derailment during casual conversation that may indicate recent and remote memory impairment. Neuropsychological evaluations should include measures of both verbal and non-verbal memory. In the verbal domain, rote memory is measured using list-learning tasks such as the California Verbal Learning Test-II or the Word List subtest from the Wechsler Memory Scale-III (WMS-III). For older or more impaired patients, the Hopkins Verbal Learning Test may be more appropriate, as there are fewer words to recall. These tasks have free recall and recognition components that allow the clinician to disentangle encoding versus retrieval deficits. The CVLT-II specifically measures one trial learning, learning slope, recall consistency, primacy/middle/recency effects and semantic/serial clustering which are useful for differentiating different memory disorders. Immediate and delayed recall information presented in context

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(i.e., story memory) can be measured using WMS-III Logical Memory. Non-verbal memory tasks include Visual Reproduction I & II and Faces I & II from the WMS-III, recall of the Rey-Osterrieth Complex Figure, and the Brief Visual Memory Test (Benedict 1997). When a comprehensive measure of memory functioning is necessary, the Wechsler Memory Test can be given in its entirety, which yields composite scores for immediate, delayed and recognition verbal and non-verbal memory.

Motor functioning Neuropsychologists are commonly interested in obtaining measures of motor functioning. Particular attention is devoted to the detection of any lateralized motor slowing or weakness as this can often be of use in issues such as lesion detection and differential diagnosis. Commonly used measures include tests of upper extremity fine motor dexterity (Grooved Pegboard, Purdue Pegboard; Tiffin and Asher 1948), grip strength (Hand Dynamometer; Reitan and Davison 1974) and motor speed (Finger Tapping Test; Reitan 1969).

WHEN IS A FORENSIC NEUROPSYCHOLOGICAL EVALUATION INDICATED? A forensic neuropsychological evaluation is usually requested whenever a litigant asserts complaints of cognitive or emotional symptomatology relating to an injury or illness and there exists a need to establish the range, severity, veracity, and likely cause of said complaints. While cognitive complaints are most commonly seen in the context of physical injury to the brain, complaints of difficulty with concentration, memory disturbance, and other higher-order cognitive abilities are frequently seen in persons alleging emotional damages, particularly anxiety and depression. A neuropsychological evaluation is often used in both criminal and civil litigation. Within the criminal realm, neuropsychologists are frequently asked to offer opinions regarding mens rea issues such as whether a defendant had the cognitive capacity to form intent or could reasonably anticipate the effects of their actions at the time of the offense. Increasingly, case law has expanded the ‘not guilty by reason of insanity’ defense to include not only psychiatric illness but also neurocognitive impairment. As such, neuropsychological testing can help identify mentally retarded or demented defendants who, by virtue of their cognitive deficits, could not form intent or reasonably anticipate or understand the effects of their actions. While such retrospective analysis regarding mental state in the past is by its very nature inexact, a neuropsychological evaluation is particularly well-suited for addressing whether defendants currently have cognitive deficits that could impact upon ability to stand trial or assist with their

defense. Neuropsychological evaluation can help determine whether a defendant has the cognitive capacity to understand legal proceedings and the implications of various pleas, as well as to engage in activities such as assisting counsel and tracking testimony for inconsistencies. Opining on mitigating issues such as history of mental retardation, neurological disease, or psychiatric illness, especially in the penalty phase of capital cases, is yet another role for the forensic neuropsychologist. Within the civil realm, neuropsychologists are frequently retained as experts in personal injury lawsuits, particularly if complaints of cognitive or emotional dysfunction are in question. Civil litigation often involves the question of the degree of an individual’s loss of cognitive, intellectual, and psychological function secondary to a disease or injury. In these instances, neuropsychological assessment can offer information regarding whether cognitive dysfunction is present or not, the specific cognitive function(s) that have been affected, the severity of this loss relative to estimated premorbid levels, and the potential for recovery of cognitive function over time. If the individual has been tested on more than one occasion, data on stability, improvement, or decline will be available. A typical scenario would be assessment of a patient who has suffered a brain injury in a motor vehicle accident in order to determine the presence and severity of any resultant neuropsychological deficits. Other civil litigation questions in which a neuropsychological evaluation would be indicated include disability evaluations, competency issues (such as whether a patient with a progressive dementia is able to competently enter into a legal agreement or alter their will), detection of impaired professionals, and determination whether an individual requires a guardian or conservator by virtue of neurologic or psychiatric disease.

WHO IS A FORENSIC NEUROPSYCHOLOGIST? The forensic psychiatrist or attorney who wishes to consult with a forensic neuropsychologist must first be cognizant of what training and credentials distinguish an expert clinical neuropsychologist. Typically, clinical neuropsychologists first obtain a doctorate in clinical psychology or clinical neuropsychology. A minority, however, will obtain their doctorate in a related field such as cognitive psychology or counseling psychology. After completing their coursework and dissertation, a year-long clinical internship followed by a postdoctoral residency of usually two years’ duration then follows. This fellowship training is perhaps the most critical component in the training of a competent clinical psychologist. Failure to complete such postdoctoral training, particularly in a neuropsychologist who has matriculated in the last ten to fifteen years, should be cause for concern. In an attempt to formally define what training and experience

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represent minimal standards for the practice of clinical neuropsychology, the neuropsychology division (Division 40) of the American Psychological Association (APA) adopted the following statement: A Clinical Neuropsychologist is a professional psychologist who applies principles of assessment and intervention based upon the scientific study of human behavior as it relates to normal and abnormal functioning of the central nervous system. The Clinical Neuropsychologist is a doctoral-level psychology provider of diagnostic and intervention services who has demonstrated competence in the application of such principles for human welfare following: A Successful completion of systematic didactic and experiential training in neuropsychology and neuroscience at a regionally accredited university; B Two or more years of appropriate supervised training applying neuropsychological services in a clinical setting; C Licensing and certification to provide psychological services to the public by the laws of the state or province in which he or she practices; D Review by one’s peers as a test of these competencies. Attainment of the ABCN/ABPP Diploma in Clinical Neuropsychology is the clearest evidence of competence as a Clinical Neuropsychologist, assuring that all of these criteria have been met. (Division 40 of the APA, 1989, p. 22)

The American Board of Professional Psychology (ABPP) is the umbrella organization that oversees eleven specialty boards in psychology, including the American Board of Clinical Neuropsychology (ABCN). Its analog in medicine is the American Board of Medical Specialties, under whose aegis falls the American Board of Psychiatry and Neurology. While possession of the ABPP diplomate assures consumers of competence in the practice of clinical neuropsychology, the American Board of Professional Neuropsychology (ABPN) also offers a diplomate in clinical neuropsychology that is considered by many neuropsychologists to be a commensurate credential. As is true in many other disciplines, there exist a number of ‘vanity’ boards that grant board certification to virtually anyone who pays their fee, regardless of actual training or competence. Caution must be exercised to not be misled in this regard.

LIMITATIONS OF NEUROPSYCHOLOGICAL TESTS As described by Lezak (1995), many neuropsychological tests were developed within the clinical arena, and as such, some do not yet have the reliability and validity studies common to more traditional psychological measures such

as the MMPI-2. Until these studies are accomplished, the forensic neuropsychologist must be careful not to place excessive reliance on any new measure, as promising as it may be. A second limitation of forensic neuropsychological practice is that test scores alone do not allow the determination of whether or not an individual has sustained brain damage as a result of an injury. The tests must be interpreted in light of an individual’s history, current affective state, and so forth. Many neuropsychological tests are quite sensitive to many factors, only some of which may be related to actual brain injury or dysfunction. For instance, psychiatric disorders, such as depression and anxiety can be responsible for lowered neuropsychological performance on many measures. Hence, it is important to take such factors into account when interpreting neuropsychological test scores on a given individual. Finally, although the forensic neuropsychologist is often asked to relate an individual’s test scores to day-today functioning such as occupational performance, it is important to remember that most tests have not been studied in relation to specific job performance. Rather than being validated on specific occupations or performance criteria, test results provide areas of cognitive strength, weakness, and overall level of dysfunction or retention of general abilities. Hence, when asked, ‘Given these scores, Doctor, can Mr. X still function as an airline pilot?’ unless cognitive impairment is profound, neuropsychological test data alone cannot provide a definite answer. In order to answer such a question, the neuropsychological test data must be integrated with a broader assessment of an individual’s aptitudes, strengths, and limitations.

SUMMARY AND CONCLUSIONS The role of clinical neuropsychology in the forensic arena has grown in recent years, and can be expected to do so in the future. Data relating to the nature, extent, cause, and likely prognosis of deficits suffered secondary to central nervous system injury and disease can be garnered from a careful and comprehensive neuropsychological evaluation. Competency to stand trial, the ability to assist in one’s own defense, mens rea at the time of offense, and the ability to enter into contracts are also domains in which neuropsychological evaluation can prove to be valuable. With such rapid growth in the use of clinical neuropsychologists as expert witnesses comes the attendant risk of poorly trained individuals purporting to be skilled in clinical neuropsychology. Accordingly, triers of fact must be alert to this issue and thus must only rely on clinical neuropsychologists who meet objective criteria for competence such as those explicated above. With this caveat in mind, the utilization of competent and credible clinical neuropsychologists as expert

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witnesses can prove invaluable in the legal system’s goal of establishing truth.

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Hiscock, M., Hiscock, C.K. 1989. Refining the forced-choice method for the detection of malingering. Journal of Clinical and Experimental Neuropsychology 11, 967–74. Hooper, H.E. 1958: The Hooper Visual Organization Test. Manual. Beverly Hills, CA: Western Psychological Services. Kaplan, E.F., Goodglass, H., Weintraub, S. 1983: The Boston Naming Test, 2nd edition. Philadelphia: Lea & Febiger. Lezak, M.D. 1995: Neuropsychological Assessment, 3rd edition. New York: Oxford University Press. Miller, E.N. 1991: California Computerized Assessment Package (CalCAP). Los Angeles, CA: Norland. Millis, S., Putnam, S., Adams, K., Ricker, J. 1995. The California Verbal Learning Test in the detection of incomplete effort in neuropsychological evaluation. Psychological Assessment 7, 463–71. Millon, T. 1993: Millon Clinical Multiaxial Inventory, 4th edition. Minneapolis, MN: National Computer Systems. Mittenberg, W., Azrin, R., Millsaps, C., Heilbronner, R. 1993. Identification of malingered head injury on the Wechsler Memory Scale – Revised. Psychological Assessment 5, 34–40. Morey, L.C. 1991: Personality Assessment Inventory. Odessa, FL: Psychological Assessment Resources, Inc. Pankratz, L. 1983. A new technique for the assessment and modification of feigned memory deficit. Perceptual and Motor Skills 57, 367–72. Pankratz, L., Fausti, S.A., Peed, S. 1975. A forced choice technique to evaluate deafness in the hysterical or malingering patient. Journal of Consulting and Clinical Psychology 43, 421–2. Partington, J.E., Leiter, R.G. 1949. Partington’s Pathway Test. The Psychological Service Center Bulletin 1, 9–20. Putnam, S.H., Ricker, J.H., Ross, S.R., Kurtz, J.E. 1999: Considering premorbid functioning: beyond cognition to a conceptualization of personality in postinjury functioning. In Sweet, J.J. (ed.), Forensic Neuropsychology: Fundamentals and Practice. Lisse: Swets & Zeitlinger. Reitan, R.M. 1969: Manual for Administration of Neuropsychological Test Batteries for Adults and Children. Indianapolis. Reitan, R.M., Davison, L.A. 1974: Clinical Neuropsychology: Current Status and Applications. New York: Wiley. Rey, A. 1941. Psychological examination of traumatic encephalopathy. Archives de Psychologie, 28, 286–340; sections translated by Corwin, J., Bylsma, F.W. The Clinical Neuropsychologist 1993, 4–9. Rey, A. 1964: L’examen Clinique en Psychologie. Paris: Presses Universitaires de France. Ruff, R. 1988. Ruff Figural Fluency Test. San Diego: Neuropsychological Resources. Schretlen, D., Brandt, J., Krafft, L., van Gorp, W. 1991. Some caveats in using the Rey 15-Item Memory Test to detect malingered amnesia. Psychological Assessment 3, 667–72.

620 Special clinical issues in forensic psychiatry Scott, J.G., Krull, K.R., Williamson, D.J.G., Adams, R., Iverson, G. 1997. Oklahoma Premorbid Intelligence Estimation (OPIE): Utilization in a clinical sample. The Clinical Neuropsychologist 11, 146–54. Shewan, C.M., Kertesz, A. 1980. Reliability and validity characteristics of the Western Aphasia Battery (WAB). Journal of Speech and Hearing Disorders 45, 308–24. Slick, D., Hopp, G., Strauss, E., Thompson, G.B. 1998: The Victoria Symptom Validity Test. Lutz, FL: Psychological Assessment Resources. Slick, D.J., Sherman, E.M., Iverson, G.L. 1999. Diagnostic criteria for malingered neurocognitive dysfunction: proposed standards for clinical practice and research. Clinical Neuropsychologist 13, 545–61. Spreen, O., Benton, A.L. 1977: Neurosensory Center Comprehensive Examination for Aphasia (NCCEA). Victoria: University of Victoria Neuropsychology Laboratory. Spreen, O., Strauss, E. 1998: A Compendium of Neuropsychological Tests: Administration, norms, and commentary, 2nd edition. New York: Oxford University Press. Tiffin, J., Asher, E.J. 1948. The Purdue Pegboard: norms and studies of reliability and validity. Journal of Applied Psychology 32, 234–47.

Tombaugh, T. 1997. The test of memory malingering: normative data from cognitively intact and cognitively impaired individuals. Psychological Assessment 9, 260–8. Vallabhajosula, B., van Gorp, W.G. 2001. Post-Daubert admissibility of scientific evidence on malingering of cognitive deficits. Journal of the American Academy of Psychiatry and the Law 29, 207–15. Wechsler, D. 1997: Wechsler Adult Intelligence Scale, 3rd edition. San Antonio, TX: The Psychological Corporation. Wechsler, D. 1997: Wechsler Memory Scale, 3rd edition. San Antonio, TX: The Psychological Corporation. Wechsler, D. 1999: Wechsler Abbreviated Scale of Intelligence. San Antonio, TX: The Psychological Corporation. Wilkinson, G.S. 1993: WRAT3 Administration Manual. Delaware: Wide Range. Wilson, R.S., Stebbins, G.T. 1991: Estimating premorbid ability and preexisting neuropsychological deficits. In Doerr, H.O., Carlin, A.S. (eds), Forensic Neuropsychology: Legal and Scientific Bases. New York: The Guilford Press.

63 Psychological and psychiatric measures in forensic practice RICHARD ROGERS AND DIANE GRAVES-OLIVER

This chapter provides a succinct overview of standardized measures for the forensic expert who offers testimony on psycho-legal issues. It is especially designed for those experts without psychometric training. Its primary objectives are two-fold: (i) to review standard psychological tests and their potential relevance to forensic evaluations; and (ii) to introduce experts to structured interviews and specialized psycho-legal measures. For the latter category, psychiatrists and other mental professionals may be trained in their clinical use. In achieving these twin objectives, specific measures must be scrutinized to consider their admissibility in light of the Daubert standard (Daubert v. Merrell Dow Pharmaceuticals, Inc. 1993). This chapter is intended to facilitate experts’ knowledgeable use of forensic psychologists as consultants. In addition, several specialized measures require only modest levels of self-training and are available to psychiatrists and other qualified mental health professionals. For these measures, experts are provided with resource information for enhancing their forensic practice.

APPLICATION OF DAUBERT TO PSYCHOLOGICAL MEASURES Rogers and Shuman (2000) provide a valuable summary of Daubert and its relevance to assessment methods. Briefly, Daubert outlined four criteria to test whether the methods used are scientifically valid. First, the method or technique must be testable and capable of being disproved (i.e., falsifiability). Second, it must withstand scientific scrutiny as evidenced by peer review and publication. Third, its ‘known or potential rate of error’ (p. 594) must be evaluated. Fourth, its general acceptance in the relevant scientific community must be considered. Forensic psychologists have taken a proactive stance in evaluating whether specific measures are likely to meet the Daubert standard. For example, Rogers, Salekin, and

Sewell (1999) examined whether the Millon Clinical Multiaxial Inventory-III (MCMI-III; Millon 1994; Millon, Davis, and Millon 1997) would likely be admissible. Regarding Axis II diagnoses, these authors found the MCMI-III lacked adequate construct validity and produced unacceptably high error rates (e.g., a false-positive rate of approximately 80 per cent). Despite a spirited defense (see Dyer and McCann 2000), further examination by Rogers, Salekin, and Sewell (2000) revealed additional problems with the MCMI-III, including a fundamental flaw in their methodology (i.e., criterion contamination). One lesson from the MCMI-III example is that psychiatrists cannot blithely assume that psychologists are conversant with Daubert or the growing literature on its clinical applications. In selecting consultants, psychiatrists are obliged to examine their expertise on tests and their likely admissibility. Especially for cases in the criminal arena, Conducting Insanity Evaluations (Rogers and Shuman 2000) provides an easily read summary of psychological tests and Daubert issues.

STANDARD PSYCHOLOGICAL TESTS This section provides a very brief overview of the mostly commonly used tests in forensic evaluations. Experts should be aware that dozens of additional tests are available, many with substantial validation. This section addresses standard psychological measures, such as intelligence tests, projective techniques, and multiscale inventories. For each category, potential pitfalls will be outlined.

Adult tests A number of adult tests have been devised, including the following: 1 Weschler Adult Intelligence Scale-3rd edition (WAISIII; Weschler 1997): this is a highly reliable measure of

622 Special clinical issues in forensic psychiatry

2

3

4

5

6

intellectual ability that is divided into previously acquired verbal abilities and novel tasks for assessing non-verbal abilities. Potential pitfall: Its subtests cannot be equated with forensic competencies. For example, the Comprehension subtest has no direct relevance to comprehension of Miranda warnings. The Halstead-Reitan Battery (HRB; Reitan and Wolfson 1993): this is a group of at least five neuropsychological measures that are combined to derive an impairment index. Despite its widespread use, questions have been raised about its reliability, norms, and diagnostic validity (see Lezak 1995). Potential pitfall: While good at assessing discrete abilities, it was not intended to assess prior functioning as needed in personal injury and workers’ compensation cases. Luria-Nebraska Neuropsychological Battery (LNNB; Golden, Purisch, and Hammeke 1985): this ambitiously attempts to evaluate eleven summary scales covering a wide range of neurocognitive functioning. Psychologists are deeply divided about its validation; relatively few forensic neuropsychologists use either partial or full LNNBs (Lees-Haley et al. 1995). Potential pitfall: Caution must be taken in interpreting summary scales because their titles may not accurately characterize the cognitive abilities. The Minnesota Multiphasic Personality Inventory-2 (MMPI-2; Butcher et al. 1989): this is the most widely used multiscale inventory for forensic populations. Extreme elevations on its validity scales can be used to identify potential malingerers or persons denying their mental disorders (see Greene 1997). The MMPI2 is not intended as a diagnostic measure; instead, its clinical profile describes patterns of psychopathology. Potential pitfall: Clinical profiles without any elevations cannot be interpreted as ‘unimpaired’ since these are often found in chronic populations of mentally disordered. The Personality Assessment Inventory (PAI; Morey 1991): this is a new-generation multiscale inventory that may eventually eclipse the MMPI-2 in forensic settings. It has generally superior validation to the MMPI-2 and can be used with forensic populations that have modest reading levels (i.e., 4th grade). Current research strongly supports its use in forensic consultations, especially criminal cases (see Rogers and Shuman 2000). Potential pitfall: None has been identified. The MCMI-III (Millon, Davis, and Millon 1997): this is a multiscale inventory designed to assess Axis II disorders and clinical syndromes associated with Axis I. As previously noted, its validation does not appear sufficient for forensic consultations. When compared with experienced clinicians’ ratings, MCMI-III scales generally accounted for less than 5 per cent of the variance.

Potential pitfalls: First, the MCMI-III was not intended to be used with non-clinical populations (e.g., plaintiffs without established psychiatric histories). Second, the MCMI-III cannot be used to establish Axis II disorders. Third, computer-generated interpretations are tentative judgments and not definitive conclusions (see Millon 1994, p. 4). 7 The Rorschach: this is composed of inkblots, and is conceptualized as either a projective technique or a perceptual-cognitive task (Erdberg 1990). Its interpretation can be either subjective (generation of hypotheses) or objective (quantitative comparisons of scored indices). Exner (1991) developed his own scoring system and initiated extensive research on the Rorschach. Despite his efforts, psychologists remain deeply divided over its validation and clinical applications. Obstacles to establishing validity are the sheer complexity of its scoring system (i.e., 91 unique variables and 64 ratios and derivations) and the formidable challenges in establishing criterion-related validity. Potential pitfall: The Rorschach should not be used in cases where malingering is suspected. 8 Thematic Apperception Test (TAT; Murray 1943): this consists of a series of vague pictures, most involving one or several persons, about which the patient narrates a story. Reliability is challenging to establish because its administration (e.g., number and sequencing of cards) is not standardized. Most studies address personality functioning rather than diagnostic assessment. Potential pitfall: TAT inferences should be treated as preliminary hypotheses rather than clinical findings. 9 Human figure drawings: these refer to a constellation of related techniques that involve the patient drawing one or more persons which are then interpreted by the clinician. Especially with adult populations, these techniques lack sufficient validity to be used in forensic cases. Potential pitfall: Interpretation of these drawings is likely to be confounded by artistic ability.

Child and adolescent tests The forensic assessment of children and adolescents presents several unique challenges, including the youth’s chronological age and developmental level. Age and developmental level are relevant to criminal (e.g., level of culpability) and civil (e.g., participation in child custody proceedings) issues. The youth’s gender also has implications for assessment, with sex differences affecting the rates and expression of childhood pathology (ZahnWaxler 1993; Kavanagh and Hops 1994). Cultural factors may confound assessment tools, thereby producing differential results for various ethnic groups (Catarino 1991; Rogers 1998). Given these challenges, the most

Psychological and psychiatric measures in forensic practice 623

commonly used child and adolescent tests are summarized: 1 Wechsler Intelligence Scale for Children (WISC-III; Wechsler 1991): this assesses the intelligence of children aged from six to sixteen years. The WISC-III measures verbal and non-verbal abilities. Its scores have acceptable reliability and validity and are good predictors of academic achievement. Potential pitfall: Like the WAIS-III, its scores cannot be equated with forensic competencies. 2 Stanford-Binet Intelligence Scale (SB-IV; Thorndike, Hagen, and Sattler 1986): this can be used with children as young as two years of age through to adolescence. It assesses four areas of intellectual functioning: verbal reasoning; abstract/visual reasoning; quantitative reasoning; and short-term memory. Potential pitfall: Because of problems with standardization, the SB-IV should not be used with older adolescents or adults. 3 Kaufman Assessment Battery for Children (K-ABC; Kaufman and Kaufman 1983): this is a process-based approach to intelligence testing measuring both verbal and non-verbal abilities. An important strength is its attention to cultural issues. Potential pitfall: A revision and restandardization of the K-ABC is forthcoming that will need to be closely evaluated. 4 Minnesota Multiphasic Inventory for Adolescents (MMPI-A; Butcher et al. 1992) is an adolescent version of the MMPI-2. Substantial changes were made in its items, scales, and norms. Potential pitfall: Most of the MMPI-A interpretations are extrapolated from the adult literature despite major differences between the measures. Cashel et al. (1998) found that most of these interpretations were inaccurate when applied to delinquent youth. 5 Roberts Apperception Test for Children (RATC; McArthur and Roberts 1982): this is a thematic picture test for children aged six to fifteen years that depicts common stresses, conflicts, and situations in children’s lives. The RATC has a comprehensive scoring system, with adequate reliability. Potential pitfall: Evidence for its validity is quite limited (Sines 1985) and may not be sufficient for forensic practice. 6 Child Behavior Checklist (CBCL; Achenbach 1991): this is a 138-item checklist completed by parents for assessing behavioral problems and social competence. With extensive validation, the CBCL evaluates two general dimensions: internalizing and externalizing problems. Potential pitfall: Like other rating scales, the CBCL is vulnerable to ‘halo effect’ with parents sometimes rating pervasive problems in their children. This tendency can be partially addressed by also using the teacher’s version. 7 Behavioral Assessment System for Children (BASC; Reynolds and Kamphaus 1992): this is a group of

specific instruments designed for personality assessment in children and adolescents aged from four to eighteen years. Its adaptive and clinical scales address clinical, school and personal domains. BASC components include a structured observation system, structured developmental history, and rating forms (teacher, parent, and self). Potential pitfalls: None has been identified.

STRUCTURED INTERVIEWS The American Psychiatric Association (2000) recognized the importance of standardized assessments for psychiatrists and other mental health professionals in its publication, Handbook of Psychiatric Measures. Featured prominently, many structured interviews were developed by psychiatrists and can often be administered with only modest training. This section provides a selective overview of Axis I and Axis II interviews. It also features the Structured Interview of Reported Symptoms (SIRS; Rogers, Bagby, and Dickens 1992) because feigning is frequently an important issue in forensic evaluations. For a comprehensive review of structured interviews, see Rogers (2001). For information about the availability of structured interviews, see Table 63.1. The Structured Clinical Interview of DSM-IV Disorders (SCID; First et al. 1997b), published by the American Psychiatric Press, is a well-validated Axis I interview for the evaluation of common mental disorders. Essential for court purposes, the inter-rater reliability of SCID diagnoses range from moderately high to superb. The SCID is less well-suited for establishing the reliability of specific symptoms, which is sometimes required in forensic assessments. Designed to be entirely compatible with DSM-IV, validation studies have generally produced positive to very positive results for mood, psychotic, and substance abuse disorders. In summary, the SCID can be administered with modest training and produce reliable DSM-IV diagnoses. Schedule of Affective Disorders and Schizophrenia (SADS; Spitzer and Endicott 1978), while older than the SCID, has been studied extensively in forensic populations. The SADS has several major advantages over other Axis I interviews for forensic practice: (i) exceptionally high reliability for both diagnoses and symptoms; (ii) reliable gradations of symptom severity; and (iii) validation for retrospective diagnoses. The first two advantages are often critical to forensic consultations when the clinician wants to go beyond simple diagnosis and establish specific symptoms and their severity. For example, psychiatrists in personal injury evaluations may want to establish how the patient’s symptoms worsened or did not worsen following the accident. The retrospective use of the SADS is especially relevant for both insanity and personal injury cases because of the need to establish

624 Special clinical issues in forensic psychiatry Table 63.1 Availability of structured interviews for forensic experts Axis I interviews SCID is an excellent Axis I interview with direct correspondence with DSM-IV and broad diagnostic coverage. It is available through American Psychiatric Press, 1400 K Street, NW, Washington, DC 20005-2403; Phone: (800) 368-5777; FAX: (202) 789-2648; Internet: www.appi.org SADS is an Axis I interview with superb reliability and direct applications to forensic practice. It is available through Dr. Jean Endicott, Dept. of Research and Training, New York State Psychiatric Institute, Unit 123, 1051 Riverside Drive, New York, NY 10032 or by phone at (212) 543-5536. Axis II interviews SIDP is one of the best validated Axis II interviews with excellent reliability and validity. It is available through American Psychiatric Press, 1400 K Street, NW, Washington, DC 20005-2403; Phone: (800) 368-5777; FAX: (202) 789-2648; Internet: www.appi.org IPDE is a well-validated Axis II interview that is useful for those patients without severe Axis I disorders. It is available through Psychological Assessment Resources (PAR) by phone at (800) 331-8378, by FAX at (800) 727-9329, by internet at www.parinc.com, or by mail via P.O. Box 998, Odessa, FL 33556. SCID-II is an Axis II interview with satisfactory validity that is best utilized for investigating a specific personality disorder. It is available through American Psychiatric Press, 1400 K Street, NW, Washington, DC 20005-2403; Phone: (800) 368-5777; FAX: (202) 789-2648; Internet: www.appi.org Specialized interview for malingering SIRS is a structured interview with impressive reliability and validity that is designed to assess feigning and related response styles. It is available through Psychological Assessment Resources (PAR) by phone at (800) 331-8378, by FAX at (800) 727-9329, by internet at www.parinc.com, or by mail via P.O. Box 998, Odessa, FL 33556.

functioning at a prior period. Besides these advantages, the SADS has been studied with reference to response styles. As summarized by Rogers (1997), screens are available for patients either feigning or denying their symptomatology. For Axis II interviews, Structured Interview for DSMIII Personality Disorders-IV (SIDP-IV; Pfohl, Blum, and Zimmerman 1995) is published by the American Psychiatric Press and represents one of the best validated measures for personality disorders. Through its topical organization, patients typically feel comfortable in describing their Axis II symptoms. The SIDP-IV is distinguished in its ability to assess personality disorders in establishing clear diagnostic boundaries and minimizing diagnostic overlap. Two other Axis II interviews should be considered by forensic clinicians for the evaluation of personality disorders: International Personality Disorder Examination (IPDE; Loranger 1999) and the Structured Clinical Interview for DSM-IV Personality Disorders (SCID-II; First et al. 1997a). The IPDE is best used with outpatients that do not have psychotic disorders or severe depression. It has good diagnostic reliability and has been tested cross-culturally. With satisfactory validity, the SCID-II is organized by diagnosis with questions about symptoms presented typically in the same order as delineated in DSM-IV. This organization facilitates the ease of clinician use but renders the measure comparatively transparent and potentially vulnerable to response styles. The SCID-II is best used in forensic cases when the clinician wants to administer only particular sections to investigate further specific personality disorders.

The best estimates of feigning in forensic assessments were provided by more than 500 forensic experts (Rogers 1997). Prevalence rates varied substantially across settings, but averaged approximately 16.4 per cent. More recently, Cochrane, Grisso, and Frederick (2001) examined the clinical records of 1710 criminal defendants in criminal courts and found that malingering was reported as V diagnosis in 10.9 per cent of the cases. Whether the rates are 1:7 or 1:10, mental health professionals should systematically assess malingering in their forensic practices. The SIRS was designed to assess feigning based on empirically developed detection strategies. With impressive inter-rater reliability, the SIRS has been validated across multiple settings with use by psychologists and other clinicians. Through the use of an indeterminate category, the SIRS minimizes false-positives and demonstrates a high accuracy for those classified as feigning.

PSYCHO-LEGAL MEASURES Heilbrun, Rogers, and Otto (in press) provide a contemporary review of psycho-legal measures and their development across the past four decades. For criminal issues, the primary focus has been two-fold, namely competency to stand trial and risk assessment for the sentencing and release of convicted offenders. Secondary interests involve the Miranda warnings and criminal responsibility. For civil issues, the primary focus is child custody with secondary interests including guardian-ship and child abuse cases.

Psychological and psychiatric measures in forensic practice 625 Table 63.2 Availability of key psycho-legal measures for forensic experts Competency to stand trial McCAT-CA is a semi-structured interview for competency to stand trial that is especially useful for evaluating rational understanding. It is available through Psychological Assessment Resources (PAR) by phone at (800) 331-8378, by FAX at (800) 727-9329, by internet at www.parinc.com, or by mail via PAR, P.O. Box 998, Odessa, FL 33556. ECST-R is a semi-structured interview that addresses both the components of the Dusky standard and feigned incompetency. Based on current plans, it should be available through Psychological Assessment Resources (PAR) by phone (800) 331-8378, by FAX (800) 727-9329, by internet www.parinc.com, or by mail via PAR, P.O. Box 998, Odessa, FL 33556. Risk assessments PCL-R and PCL:SV are closely-related highly-reliable semi-structured interviews for the assessment of psychopathy. It is available through Multi-Health Systems by internet at www.mhs.com, by phone at (800) 456-3003, by FAX at (888) 540-4484, or by mail via MHS 908 Niagara Falls Blvd., North Tonawanda, NY 14120-2060. HCR-20 and SVR-20 are closely related clinical guides for risk assessment; they involve predictions for general aggression and sexual assault respectively. They are available by internet at www.sfu.ca/psychology/groups/mhlpi, by phone at (604) 291-5868, by FAX at (604) 268-6695, or by mail via Mental Health, Law, and Policy Institute, Psychology Department, Simon Fraser University, 8888 University Drive, Burnaby, BC, Canada V5A 1S6. VRAG is an actuarial model for risk assessment. It is published and described in the book, Violent Offenders: Appraising and Managing Risk, available from the American Psychological Association via internet at www.apa.org/books, by phone at (800) 374-2721, by FAX at (202) 336-5502, or by mail via APA Book Order Department, P.O. Box 92984, Washington, DC 20090-2984. Other criminal and civil issues Miranda Measures by Grisso refer to four closely related scales for assessing the understanding of a defendant’s understanding of Miranda rights. They are available by internet at www.prpress.com/order.html, by phone at (800) 443-3364, by FAX at (941) 343-9201, or by mail via Professional Resource Press, P.O. Box 15560, Sarasota, FL 34277-1560. MFAQ is a scale for assessing cognitive and functional capacities related to guardianship. It is published and described in the book, Multidimensional Functional Assessment of Older Adults, available by internet at www.erlbaum.com/index.htm, by phone at (800) 926-6579, by FAX at (201) 236-0072, or by mail via LEA, 10 Industrial Avenue, Mahwah, NJ 07430-2262. R-CRAS is a systematic decision model for the assessment of insanity. It is available through Psychological Assessment Resources (PAR) by phone (800) 331-8378, by FAX (800) 727-9329, by internet at www.parinc.com, or by mail via PAR, P.O. Box 998, Odessa, FL 33556. Child custody Bricklin measures refers to a family of specific scales used in child custody evaluations. They are available through Village Publishing by internet at www.comcat.com/⬃elliot/ custody-vp/index.html, by phone at (800) 553-7678, by FAX at (215) 794-3386, or by mail via Village Publishing, 73 Valley Drive, Village of Furlong, PA 18925. ASPECT is a test battery for child custody determinations that relies heavily on standard psychological tests. It is available through Western Psychological Services (WPS) by internet at www.wpspublish.com/catalog2001, by phone at (800) 648-8857, by FAX at (310) 478-2061, or by mail via WPS, 12031 Wilshire Blvd., Los Angeles, CA 90025-1251.

This section is organized into five subsections with three devoted to criminal matters (i.e., competency to stand trial, risk assessment, and other issues) and two focused on civil matters (i.e., child custody and other issues). A summary of the key psycho-legal measures and information on their availability is provided in Table 63.2.

Competency to stand trial In criminal-forensic cases, competency to stand trial is the most common pre-trial issues, with an estimated 50 000 evaluations being conducted annually in the United States. As articulated by the U.S. Supreme Court decision in Dusky v. United States (1960), the basic standard for

competency to stand trial is uniform, although some jurisdictions have expanded its legal criteria. The first generation of competency measures [e.g., Competency Screening Test (McGarry 1971); Competency Assessment Instrument (McGarry 1971); Georgia Court Competency Test (Wildman et al. 1979)] provide rapid screens but lack comprehensive test manuals detailing their validation and forensic application. Therefore, this subsection features the two second-generation competency measures. The MacArthur Competency Assessment ToolCriminal Adjudication (MacCAT-CA; Poythress et al. 1999) represents a second-generation competency measure that attempts to address the Dusky prongs directly and is commercially published. The McCAT-CA is a semi-structured interview consisting of twenty-two

626 Special clinical issues in forensic psychiatry

items, with sixteen addressing a hypothetical case of aggravated assault between two men. The McCAT-CA has good reliability and extensive norms based on 729 defendants. In addition, the McCAT-CA does not require extensive training in order to develop competence in its administration and interpretation. Whether used routinely, forensic mental health professionals will likely need to have a thorough background on its applications to competency determinations. Despite its advantages, the McCAT-CA also has two notable limitations. First and foremost, its three scales do not correspond directly to the Dusky standard. Dusky requires that defendants’ capacities apply to their own case and not to a hypothetical situation. Second, the McCAT-CA is vulnerable to feigning but does not have any indices for its detection (see Rogers et al. 2002). Given these limitations, its greatest strength is its assessment of rational understanding as required by Dusky. The Evaluation of Competency to Stand TrialRevised (ECST-R; Rogers and Tillbrook 1998) is a semistructured interview, designed to address the Dusky standard and screen for feigned incompetency. Current plans are for the ECST-R to be published commercially in 2003 via Psychological Assessment Resources. To ensure its correspondence with Dusky, five national experts rated the prototypicality of items indicative of the required capacities. The ECST-R is composed of two sections: twenty-five items to address the three Dusky prongs, and twenty-eight items designed to screen for feigned incompetency. The ECST-R has been researched at three forensic centers with additional research underway. With excellent reliability, the current data demonstrate two robust dimensions (i.e., factual understanding and rational abilities). Research on the ECST-R as a screen for feigning has been very promising with several scales evidencing high sensitivities (⬎0.90). Forensic experts should seriously consider the ECST-R as an integral component of competency evaluations.

Risk assessment Concerns about the sentencing and eventual release of convicted offenders has led to a dramatic rise in measures designed for risk assessment. Methodology, retooled from the maligned period of dangerousness predictions, is now applied to probabilistic judgments for reoffending. The resulting tools include trait-based, clinical-correlate, and strictly actuarial models. The Psychopathy Checklist-Revised (PCL-R; Hare 1991) represents the pre-eminent trait-based risk assessment measure. The PCL-R is a semi-structured interview for assessing the dimensions of psychopathy that are traditionally viewed as core traits and antisocial practices. Psychopathic traits are viewed as predictors of general and violent recidivism. Several meta-analyses (Salekin, Rogers,

and Sewell 1996; Hemphill, Hare, and Wong 1998) have found psychopathy to be a moderate to strong predictor for reoffending. Three cautions must be applied to the use of the PCL-R for risk assessments. First, its predictive ability may not apply to women and certain minorities. Second, clinicians should be concerned about PCL-R scores near to its cutoff (i.e., ⭓30); because of variability in measurement (technically, SEM ⫽ 3.25), only scores ⭓33 should be considered indicative of psychopathy. Third, the PCL-R requires that consultants have considerable training in its administration and scoring. Several clinical-correlate measures are available for risk assessments. This chapter features the Historical-ClinicalRisk 20 (HCR-20; Webster et al. 1997) that has become the template for additional measures: Sexual Violence Risk-20 (SVR-20; Boer et al. 1997), and the Spousal Assault Risk Assessment Guide (SARA; Kropp et al. 1999). The HCR-20 identifies: (i) ten historical variables related to prior violence, diagnoses, and maladjustment; (ii) five clinical variables addressing treatment and symptoms; and (iii) five risk management variables involving stressors and lack of support/stability. Its three scales appear reliable and have predictive validity, at least with civilly committed patients. An important caution with the HCR-20 is that the authors simply assume its criteria are additive without taking into consideration the likelihood of high intercorrelations. Actuarial measures of risk assessment attempt to calculate mathematically the likelihood of recidivism. These measures remove the clinicians’ judgment from the equation as adding unnecessary variability. The most prominent actuarial measure is the Violence Risk Assessment Guide (VRAG; Quinsey et al. 1998) that identified twelve predictor variables including demographic variables (e.g., never married), criminal history (e.g., serious victim injury), and diagnostic data (e.g., schizophrenia or psychopathy). The VRAG has a moderate predictive power. As an important caution, most data on the VRAG were collected on maximum security patients at Oak Ridge. Therefore, its results are unlikely generalizable to nonpsychiatric offenders. In addition, Oak Ridge programs previously used non-standardized treatments such as psychedelic drugs and nude marathons. Forensic clinicians should be concerned that these experimental treatments may have affected patients’ outcome.

Other criminal issues Grisso (1981) developed four closely related measures for the assessment of a defendant’s capacity to comprehend the Miranda warnings. These measures were recently published and made commercially available (Grisso 1998). Whilst having substantial validity, these measures focus primarily on cognitive abilities and do not take into account how severe psychopathology might affect the defendants’ ability to apply their comprehension to

Psychological and psychiatric measures in forensic practice 627

their current arrest. For an excellent review of Miranda comprehension and Grisso’s measures, see Oberlander and Goldstein (2001). Rogers (1984) developed the Rogers Criminal Responsibility Assessment Scales (R-CRAS), as a structured decision model to facilitate insanity evaluations. Built primarily on the American Law Institute standard, the R-CRAS has good reliability and excellent validity in providing relevant ratings of insanity-related criteria. Commercially published, Rogers and Sewell (1999) found excellent support for its construct validity. For the use of the R-CRAS and other measures for conducting insanity evaluations, see Rogers and Shuman (2000).

Child custody Quinall and Bow (2001) provide a recent overview of psychological measures commonly employed in child custody evaluations. For psycho-legal measures, the most common methods were the Bricklin scales and the AckermanSchoendorf Parent Evaluation of Custody Tests (ASPECT; Ackerman and Schoendorf 1992). The review by Melton et al. (1997) of these measures is strongly critical. For the Bricklin scales, they observed: (i) untested or unrealistic assumptions; (ii) a lack of adequate reliability and validity; and (iii) an absence of peer-reviewed scientific research. Based on the review by Melton et al., the Bricklin scales do not appear to meet the Daubert standard because their error rate is not known and their research has not been subjected to rigorous peer-reviewed research. Moreover, the Daubert criterion of falsifiability is also difficult to satisfy, given the Bricklin scales’ suppositions about unconscious responses to specific stimuli. Unlike the Bricklin scales, the ASPECT is a complex test battery that relies heavily on standard psychological tests (e.g., Rorschach, MMPI, TAT, and WAIS-R). The limitations of these measures are compounded by integration into single battery. Melton et al. (1997) found the ASPECT to be wanting based on the lack of sound peerreview research and the inadequacies of its conceptual underpinnings. In summary, psycho-legal measures for child custody evaluations should either be avoided completely or relegated to an ancillary role.

Other civil issues Relatively little research has investigated other civil issues considered by the courts. For example, we found no established measures for evaluating psychological impairment arising from personal injury or workers’ compensation. This subsection highlights efforts to establish psycholegal measures for the evaluation of child abuse and guardianship. For the evaluation of child physical abuse, Child Abuse Potential Inventory (CAP; Milner 1994) is a forcedchoice 160-item inventory written at a grade 3 level.

Importantly, elevated scores do not necessarily indicate abuse since they are also found with problematic children. Because of its potential for false-positives (i.e., misclassifying a parent as abusive), Melton et al. (1997) recommended against its forensic use in evaluating child abuse. Decisions about an individual’s capacity for selfcare and self-determination are typically found in civil cases involving guardianship and conservatorship. The Multidimensional Functional Assessment Questionnaire (MFAQ; see Fillenbaum and Smyer 1981; Fillenbaum 1988) was developed at Duke University to five domains of functioning: social resources (e.g., friendships and caretakers); economic resources (e.g., sources of income); mental health (e.g., depression); physical health (e.g., type and extent of disability); and activities of daily living (ADL; e.g., financial transactions and meal preparations). According to Grisso (1986), adequate inter-rater reliability and discriminant (impaired versus unimpaired) validity are reported. Forensic mental health professionals may find the MFAQ to be useful as a template for conducting evaluations about the need for guardianship/ conservatorship. The Community Competence Scale (CCS; Loeb 1983) was devised to address specific capacities required by legal guardianship cases. The CCS is composed of 166 items organized into nineteen scales that address such basic capacities as cognitive skills, memory, financial issues, and maintaining a household. Conceptually, the CCS was developed by reviewing statutes from all states, major case law, and legal writings. Probate judges and clinical experts rated their importance with scales being operationalized for the nineteen most relevant issues. According to Grisso (1986), the CCS has excellent reliability but only mixed evidence of predictive validity. Likely, its real strength lies in content validity in its sampling of relevant issues. As observed by Melton et al. (1997), the CCS is a well-conceptualized measure that provides behavioral samples of basic real-world tasks (e.g., writing checks).

CONCLUDING REMARKS The American Psychiatric Association (2000) embraced the use of standardized assessments for diagnostic and treatment purposes. Forensic psychiatrists and other mental health professionals must consider the use of psychological measures at several levels. While traditional tests require considerable psychometric expertise, experts without such training must still be conversant in their development, applications, and limitations. Otherwise, these experts become vulnerable on cross-examination in not being able to explain convincingly the bases of their opinions. The refinement of structured interviews and psycholegal measures provides additional opportunities to

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forensic experts. These standardized methods will likely improve the diagnostic data, quantify the level of impairment, and address clinical issues relevant to the legal standard. Entering the twenty-first century, such advances in forensic assessment represent the maturation of forensic psychiatry and psychology.

REFERENCES Achenbach, T.M. 1991: Manual for the Child Behavior Checklist. Burlingame: University of Vermont, Department of Psychiatry. Ackerman, M., Schoendorf, K. 1992: The AckermanSchoendorf Parent Evaluation of Custody Tests (ASPECT). Los Angeles: Western Psychological Services. American Psychiatric Association. 2000: Handbook of Psychiatric Measures. Washington, DC: American Psychiatric Press (www.appi.org). Boer, D.P., Hart, S.D., Kropp, P.R., Webster, C.D. 1997: Manual for the Sexual Violence Risk-20. Burnaby, BC: Mental Health, Law, & Policy Institute, Simon Fraser University. Butcher, J.N., Williams, C.L., Graham, J.R., Tellegen, A., Kaemmer, B. 1989: MMPI-2: Manual for Administration and Scoring. Minneapolis: University of Minnesota Press. Butcher, J.N., Dahlstrom, W.G., Graham, J.R., Archer, R.R., Tellegen, A., Ben-Porath, Y.S., Kaemmer, B. 1992: MMPI-A: Manual for Administration, Scoring and Administration. Minneapolis: University of Minnesota Press. Cashel, M.L., Rogers, R., Sewell, K.W., Holliman, N. 1998. Preliminary validation of the MMPI-A for a male delinquent sample: an investigation of clinical correlates and discriminant validity. Journal of Personality Assessment 71, 49–69. Catarino, L.C. 1991: Step-by-step procedures for the assessment of language minority children. In Barona, A., Garcia, E.E. (eds), Children at Risk: Poverty, Minority Status, and Other Issues in Educational Equity. Washington, DC: National Association of School Psychologists, 269–82. Cochrane, R.E., Grisso, T., Frederick, R.I. 2001. The relationship between criminal charges, diagnoses, and psycholegal opinions among federal pretrial defendants. Behavioral Sciences and the Law 19, 565–82. Daubert v. Merrell Dow Pharmaceuticals, Inc., U.S. 113 S.Ct. 2786 (1993). Dusky v. United States, 362 U.S. 402 (1960). Dyer, F.J., McCann, J.T. 2000. Millon clinical inventories: research critical to their forensic application and Daubert criteria. Law and Human Behavior 24, 487–98. Erdberg, P. 1990: Rorschach assessment. In Goldstein, G., Hersen, M. (eds), Handbook of Psychological Assessment, 2nd edition. New York: Pergamon, 387–99.

Exner, J.E. 1991: The Rorschach: A Comprehensive System. Volume 1. Basic Foundations, 2nd edition. New York: Wiley. Fillenbaum, G.G. 1988: Multidimensional Functional Assessment of Older Adults: The Duke Older Americans Resources and Services Procedures. Mahwah, NJ: Lawrence Erlbaum. Fillenbaum, G.G., Smyer, M. 1981. The development, validity and reliability of the OARS Multidimensional Functional Assessment Questionnaire. Journal of Gerontology 36, 428–34. First, M.B., Gibbon, M., Spitzer, R.L., Williams, J.B.W., Benjamin, L. 1997a: The Structured Clinical Interview for DSM-IV Axis II Personality Disorders (SCID-II). Washington, DC: American Psychiatric Association. First, M.B., Spitzer, R.L., Williams, J.B.W., Gibbon, M. 1997b: Structured Clinical Interview of DSM-IV Disorders (SCID). Washington, DC: American Psychiatric Association. Golden, C.J., Purisch, A.D., Hammeke, T.A. 1985: The Luria-Nebraska Battery Manual. Palo Alto, CA: Western Psychological Services. Greene, R.L. 1997: Assessment of malingering and defensiveness on multiscale inventories. In Rogers, R. (ed.), Clinical Assessment of Malingering and Deception, 2nd edition. New York: Guilford, 169–207. Grisso, T. 1981: Juveniles Waiver of Rights: Legal and Psychological Competence. New York: Plenum. Grisso, T. 1986: Evaluating Competencies: Forensic Assessments and Instruments. New York: Plenum. Grisso, T. 1998: Instruments for Assessing Understanding and Appreciation of Miranda Rights. Manual. Sarasota, FL: Professional Resource Press. Hare, R.D. 1991: Manual for the Revised Psychopathy Checklist. Toronto: Multi-Health Systems. Heilbrun, K., Rogers, R., Otto, R.K. Forensic assessment: current status and future directions. In Ogloff, J.R.P. (ed.), Psychology and Law: Reviewing the Discipline. New York: Plenum (in press). Hemphill, J.F., Hare, R.D., Wong, S. 1998. Psychopathy and recidivism: a review. Legal and Criminological Psychology 3, 139–70. Kaufman, A.S., Kaufman, N.L. 1983: Kaufman Assessment Battery for Children: Manual. Circle Pines, MN: American Guidance Service. Kavanagh, K., Hops, H. 1994: Good girls? Bad boys? Gender and development as contexts for diagnosis and treatment. In Ollendick, T.H., Prinz, R.J. (eds), Advances in Clinical Child Psychology. Volume 16. New York: Plenum, 45–79. Kropp, P.R., Hart, S.D., Webster, C.D., Eaves, D. 1999: Manual for the Spousal Assault Risk Assessment Guide. Vancouver, BC: British Columbia Institute on Family Violence. Lees-Haley, P.R., Smith, H.H., Williams, C.W., et al., 1995. Forensic neuropsychological test usage: an empirical survey. Archives of Clinical Neuropsychology 11, 45–51.

Psychological and psychiatric measures in forensic practice 629 Lezak, M.D. 1995: Neuropsychological Assessment, 3rd edition. New York: Oxford University Press. Loeb, P. 1983: Validity of the Community Competence Scale with the Elderly. Unpublished doctoral dissertation, St. Louis University. Loranger, A.W. 1999: International Personality Disorder Examination (IPDE) Manual. Odessa, FL: Psychological Assessment Resources. McArthur, D.S., Roberts, G.E. 1982: Roberts Apperception Test for Children: Manual. Los Angeles: Western Psychological Services. McGarry, A. 1971: Competency to Stand Trial and Mental Illness. Rockville, MD: Department of Health, Education and Welfare. Melton, G.B., Petrila, J., Poythress, N., Slobogin, C. 1997: Psychological Evaluations for the Courts: A Handbook for Attorneys and Mental Health Professionals, 2nd edition. New York: Guilford (http://www. guilford.com). Millon, T. 1994: The Millon Clinical Multiaxial Inventory-III Manual. Minneapolis: National Computer Systems. Millon, T., Davis, R., Millon, C. 1997: The Millon Clinical Multiaxial Inventory-III Manual, 2nd edition. Minneapolis: National Computer Systems. Milner, J. 1994. Assessing physical child abuse risk: The Child Abuse Potential Inventory. Clinical Psychology Review 14, 547–57. Morey, L.C. 1991: Personality Assessment Inventory: Professional Manual. Tampa: Psychological Assessment Resources, Inc. Murray, H.A. 1943: Thematic Apperception Test Manual. Cambridge, MA: Harvard University Press. Oberlander, L.B., Goldstein, N.E. 2001. A review and update on the practice of evaluating Miranda comprehension. Behavioral Sciences and the Law 19, 453–71. Pfohl, B., Blum, N., Zimmerman, M. 1995: The Structured Interview for DSM-IV Personality: SIDP-IV. Washington, DC: American Psychiatric Press. Poythress, N.G., Nicholson, R., Otto, R.K., Edens, J.F., Bonnie, R.J., Monahan, J., Hoge, S.K. 1999: Professional Manual for the MacArthur Competence Assessment ToolCriminal Adjudication. Odessa, FL: Psychological Assessment Resources. Quinall, F.A., Bow, J.N. 2001. Psychological tests used in child custody evaluations. Behavioral Sciences and the Law 19, 491–501. Quinsey, V.L., Harris, G.T., Rice, M.E., Cormier, C.A. 1998: Violent Offenders: Appraising and Managing Risk. Washington, DC: American Psychological Association. Reitan, R.M., Wolfson, D. 1993: The Halstead-Reitan Neuropsychological Test Battery: Theory and Clinical Interpretation. Tuscon, AZ: Neuropsychological Press. Reynolds, C.R., Kamphaus, R.W. 1992: Behavior Assessment System for Children: Manual. Circle Pines, MN: American Guidance Services.

Rogers, M.R. 1998: Psychoeducational assessment of culturally and linguistically diverse children and youth. In Vance, H.B. (ed.), Psychological Assessment of Children, 2nd edition. New York: Wiley, 355–84. Rogers, R. 1984: Rogers Criminal Responsibility Assessment Scales (RCRAS) and Test Manual. Odessa, FL: Psychological Assessment Resources, Inc. Rogers, R. (ed.). 1997: Clinical Assessment of Malingering and Deception, 2nd edition. New York: Guilford Publications (http://www.guilford.com). Rogers, R. 2001: Handbook of Diagnostic and Structured Interviewing. New York: Guilford Publications (http://www.guilford.com). Rogers, R., Sewell, K.W. 1999. The R-CRAS and insanity evaluations: a re-examination of construct validity. Behavioral Sciences and the Law 17, 181–94. Rogers, R., Shuman, D.W. 2000: Conducting Insanity Evaluations. New York: Guilford Publications (http://www.guilford.com). Rogers, R., Tillbrook, C.E. 1998: Evaluation of Competency to Stand Trial-Revised (ECST-R). Unpublished test, University of North Texas, Denton. Rogers, R., Bagby, R.M., Dickens, S.E. 1992: Structured Interview of Reported Symptoms (SIRS) and Professional Manual. Odessa, FL: Psychological Assessment Resources, Inc. Rogers, R., Salekin, R.T., Sewell, K.W. 1999. Validation of the Millon Multiaxial Inventory for Axis II disorders: does it meet the Daubert standard? Law and Human Behavior 23, 425–43. Rogers, R., Salekin, R.T., Sewell, K.W. 2000. The Millon Clinical Multiaxial Inventory: separating rhetoric from reality. Law and Human Behavior 24, 501–6. Rogers, R., Sewell, K.W., Grandjean, N.R., Vitacco, M.J. 2002. The detection of feigned mental disorders on specific competency measures. Psychological Assessment 14, 177–83. Salekin, R.T., Rogers, R., Sewell, K.W. 1996: A review and meta-analysis of the Psychopathy Checklist and the Psychopathy Checklist-Revised: predictive validity of dangerousness. Clinical Psychology: Science and Practice 3, 203–15. Sines, J.O. 1985: Review of the Roberts Apperception Test for Children. In Mitchell, J.V. (ed.), The Ninth Mental Measurements Yearbook. Volume 11. Lincoln: University of Nebraska Press, 1289–91. Spitzer, R.L., Endicott, J. 1978: Schedule of Affective Disorders and Schizophrenia, 3rd edition. New York: Biometrics Research. Thorndike, R.L., Hagen, E.P., Sattler, J.M. 1986: The Stanford-Binet Intelligence Scale: Fourth Edition. Chicago: Riverside Publishing. Webster, C.D., Douglas, K.S., Eaves, D., Hart, S.D. 1997: Manual for the HCR-20: Assessing Risk for Violence (Version 2). Burnaby, BC: Mental Health, Law, & Policy Institute, Simon Fraser University.

630 Special clinical issues in forensic psychiatry Wechsler, D. 1991: Wechsler Intelligence Scale for Children – Third Edition: Manual. San Antonio, TX: The Psychological Corporation. Weschler, D. 1997: Weschler Adult Intelligence Scale – Third edition. San Antonio, TX: The Psychological Corporation. Wildman, R., Batchelor, E., Thompson, L., Nelson, F., Moore, J., Patterson, M., de Laosa, M. 1979. The Georgia Court Competency Test. Newsletter of the American Association of Correctional Psychologists 2, 4 (abstract). Zahn-Waxler, C. 1993. Warriors and worriers: gender and psychopathology. Development and Psychopathology 5, 79–89.

Suggested reading American Psychiatric Association. 2000: Handbook of Psychiatric Measures. Washington, DC: American Psychiatric Press (www.appi.org). Rogers, R. (ed.). 1997: Clinical Assessment of Malingering and Deception, 2nd edition. New York: Guilford Publications (http://www.guilford.com). Rogers, R. 2001: Handbook of Diagnostic and Structured Interviewing. New York: Guilford Publications (http://www.guilford.com). Rogers, R., Shuman, D.W. 2000: Conducting Insanity Evaluations. New York: Guilford Publications (http://www.guilford.com).

64 Culture and ethnicity J. ARTURO SILVA, GREGORY B. LEONG AND ROBERT WEINSTOCK

INTRODUCTION Cultural psychiatry has attained increasing stature and visibility during the past few decades. The impressive growth of this field can be most certainly traced to the ongoing process of globalization that is bringing about substantial changes in the United States and abroad. This process is associated with a wave of powerful trends such as urbanization, rapid social changes, the growth of information technology as well as political and economic changes that result in ongoing major adjustments for the numerous cultural groups around the world (Desjarlais et al. 1995). Ideological, academic, and political trends within the field of psychiatry have not only facilitated the development of concepts, tools, and research in cultural psychiatry but also have generated intensive dialogue regarding important issues involving culture, ethnicity, and race (Okpaku 1998). The United States has a long and tumultuous history for attracting members of numerous cultural backgrounds. A richness of cultural backgrounds has been a defining feature of U.S. society and has positively and decisively contributed to many complex and varied developments in that society. At the same time, unequal access to economic resources, educational opportunity and political power have led to the marginalization and disenfranchisement of many cultural and ethnic groups (White 1991). Viewed from a historical context, this situation has contributed to considerable friction between various ethnic, cultural, and racial groups. Furthermore, inequality in opportunities has contributed to worsening violence, numerous chronic stressors, psychiatric morbidity and serious problems of a legal nature. This multiplicity of social, economic, cultural, psychiatric and legal problems, continually intersect, helping create some of the most challenging dilemmas faced by contemporary U.S. society. Therefore, psychiatry will likely encounter many sociocultural dilemmas as it strives to define itself and further clarify the relationship with the law. The demand for culturally informed specialists who can function competently at the interface of psychiatry and the law gives rise to an

area of forensic psychiatry that integrates with cultural psychiatry. This emerging area of psychiatric endeavor has been termed transcultural forensic psychiatry (Silva et al. 1997; Silva, Leong, and Derecho 2000). This chapter provides a brief overview of some of the most important issues germane to the interface between forensic and cultural psychiatry. For the purpose of clarity, we utilize Griffith and Gonzalez’s definition of culture: ‘shared patterns of belief, feeling, and knowledge that ultimately guide everyone’s conduct and definition of reality. Culture refers to a multiplicity of elements that define human life, such as social relationships, religion, technology and economics’ (Griffith and Gonzalez 1994, p. 1379). Therefore, culture applies to all cultural groups regardless of racial or ethnic-related categorizations. We use the term ‘ethnic’ as referring to members of a minority group with respect to a dominant group for a specific society (Silva, Leong, and Weinstock 1994).

CULTURE, DIAGNOSIS, AND TREATMENT The two most recent versions of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV, DSM-IVTR) developed by the American Psychiatric Association (APA) (APA 1994; APA 2000) were intended to be atheoretical instruments. This position, has been extensively critiqued because reductionistic approaches to diagnosis and treatment can be readily and uncritically applied to psychiatric problems embedded in multiple levels of meaning related to psychological, social, and cultural experience (Stein 1993; Twemlow 1995). The resulting situation has led to incomplete appraisals and confusion of categories of meaning and experience in both psychiatric and nonpsychiatric contexts. The tendency to confuse and misuse nosological categories without adequately considering the psychosociocultural settings in which these are used, has been termed the ‘category fallacy’ (Kleinman 1988). In psychiatric-legal contexts the category fallacy can also result in serious misuse of diagnostic categories. This problem can be readily visualized in the diagnosis of

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antisocial personality disorder (APD) because it relies on a history of behavioral patterns without providing explicit criteria for the systematic consideration of social, ecological, and sociocultural contexts in which antisocial behavior patterns originate and are maintained (Wulach 1983; Weinstock and Nair 1984; Alarcon and Foulkes 1995). For example, a pattern of failing to sustain consistent work behavior may be misinterpreted as an APD trait, but may in fact result from demoralization due to poor occupational preparation, poor educational attainment, and/or depressed economic conditions in the specific geographical area where the individual in question lives. Likewise, failure to plan ahead may also be interpreted as an APD trait but may also be related to poor educational preparation or feeling appropriately discouraged about prospects for the future or may be due to a mood disorder which escapes the detection of a clinician poorly prepared in establishing adequate rapport with a member of a cultural minority. An APD diagnosis may discourage the clinician from searching for other psychopathologies that may better explain antisocial or seemingly antisocial behaviors. Although these considerations can apply to members of any minority or culture, they are especially relevant for many ethnic minorities who due to poverty, lack of familiarity with the mainstream culture, living in adverse ecological conditions or having poor command of English may present with behavioral presentations that result in an APD diagnosis. Sometimes, antisocial personality is loosely diagnosed without following DSM IV criteria in individuals an examiner does not like if the individual has committed an illegal act. Cultural differences and lack of understanding of these issues may lead to negative feelings in a forensic examiner that place such individuals at high risk for receiving an incorrect antisocial personality diagnosis (Weinstock and Nair 1984). The evaluation of constructs related to psychopathy may eventually become standardized across different cultural settings, allowing for less problematic evaluations from a transcultural perspective (Hare et al. 2000). Although we have focused on APD from a diagnostic viewpoint, many other categories of mental disorder can be mistaken for entirely different psychopathologies and other behaviors. Members of cultural minorities who experience job-related stress tend to express their emotional concerns under a rich canopy of somatic complaints (Escobar 1987; Van Moffaert 1998), which can then lead to diagnoses of pre-existing somatoform disorders or even malingering, but who may in fact be suffering from a depressive or anxiety disorder. Consequently, the affected individual may be provided with inappropriate psychiatric treatment and a psychiatric-legal issue such as causation, which may not be accurately addressed.

Language Given the multicultural nature of our society, the continued influx of new immigrants of many cultural

backgrounds into the U.S., and the dearth of mental health professionals with diverse cultural backgrounds, language interpreters are frequently necessary in both therapeutic and forensic contexts. In the civil-legal area for example, the increasing presence of ethnic minorities in the work force has created a demand for well-trained language interpreters in order to evaluate stress-related mental claims. In the criminal justice area the disproportionate presence of defendants from some ethnic and racial groups makes it imperative that the courts, clinicians, and prison staff have access to a group of competent interpreters and become familiar with the ways in which different cultural factors become relevant in a legal case. Vasquez and Javier list five errors frequently committed by untrained interpreters, namely omission, addition, condensation, substitution and role exchange (Vasquez and Javier 1991). Eliminating these errors may be especially critical in forensic psychiatric evaluation in which the evaluation process may involve only a single interview. Forensic psychiatric issues may be particularly problematic for the language-interpreting process because of the frequent involvement of emotionally charged issues. Cases involving child abuse, rape, domestic violence, or more heinous crimes can elicit profound emotional reactions and difficulties in dealing objectively with these issues. Unfortunately, even with extensive training, language translators do not receive nor can be expected to learn the nuances of transference and counter-transference phenomena. Language interpreters may, for example, involve themselves in role exchange issues such as unwittingly protecting victims of serious crimes by failing to inquire about information that is potentially embarrassing and otherwise psychologically painful to an evaluee. A well-meaning language interpreter may inadvertently serve as a cultural interpreter, potentially biasing the assessment of culturally relevant evaluations. This can occur when language interpreters implicitly volunteer their own personal opinions that mistakenly pass as an objective ‘cultural perspective’ on a psychiatric-legal issue. Finally, it should be emphasized that even forensic psychiatrists who have excellent command of a particular language, including their own native language, may not fully understand local language variants. A psychiatrist whose native language is Spanish may for example not fully understand Pachuco Argot (a form of Spanish used by some Hispanic groups in the American southwest). This may create a cognitive as well as an emotional barrier between the psychiatrist and the interviewee. Furthermore, Spanish-speaking psychiatrists may also react negatively to Argot since they may associate it with antisocial behaviors or impoverished upbringings, further compromising objectivity. A second example is ‘Black English.’ Here again, failure by the mental health professional to optimally understand the syntactic and semantic productions of this English variant, may lead to considerable frustration for both mental health professionals and evaluees, resulting in serious inhibition in communication, interpersonal conflict and in suboptimal

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forensic psychiatric evaluations. Forensic mental health professionals may also strive to evaluate bilingual evaluees in both languages because the expression of psychopathology and the development of rapport may vary substantially depending on the meaning and associations that an individual may have when communicating in a specific language (Oquendo 1996).

The transcultural-forensic evaluation Although the DSM cultural formulation was first introduced in DSM-IV, it has received increasing attention in the psychiatric literature (Alarcon 1995; Mezzich et al. 1999). The cultural formulation should be considered a work in progress and represents only one potential form for developing a culturally informed psychiatric evaluation; it shows considerable promise as a way to facilitate culturally sensitive psychiatric assessments for diagnostic and therapeutic purposes. In this section, we provide a brief overview of this and discuss it from a psychiatriclegal context. The DSM cultural formulation consists of five sections. The first section encompasses the cultural identity of the individual. In this section not only the cultural identity of the individual, but also the degree of cultural involvement and language abilities and preferences are explored. In psychiatric-legal contexts, the cultural identity of the individual may explain important factors such as views and tolerance toward violence involving behaviors such as corporal punishment and domestic violence, disagreements in role expectations in marriage resulting in marital discord and divorce, child custody issues, and cultural beliefs, expectations and tolerance about workrelated behaviors that may be relevant to understanding sexual harassment or attitudes toward authority figures at work or elsewhere. A recent example of one of these issues is the ongoing transracial adoption debate as to whether non-African American families should be allowed to adopt African American children (Griffith 1995). The second section involves cultural explanations of the individual illness, idioms, and symptoms of distress or symptoms related to cultural norms. Culture-bound syndromes, if present, are included in this section. In forensic situations the specific cultural meaning ascribed to a symptom or behavior may be relevant to contentrelated legal categories such as mens rea. For example, a culture-bound syndrome involving certain beliefs in witchcraft may encourage the affected individual to physically attack the person putatively responsible for the bewitchment, thereby helping explain a violent act from a culturally informed perspective. The section on cultural factors related to psychosocial environment and levels of functioning helps define cultural meaning of social stressors, social supports and disability. These factors find particular relevance in the areas of civil litigation such as workers’ compensation and personal injury. Immigration legal cases is another

area where relevant stressors and cultural factors may be important considerations (Fromkin and Friedland 1995). In the criminal area, social stressors are known to be associated with violent behaviors. From a cultural perspective, for example, the nature of a given stressor must pass through the cultural lens of the person. Whether or not a person reacts to stress with violence may depend on the specific cultural meaning that the affected individual attaches to the stressor and on culturally mediated help seeking behavior that may or may not encourage further expression of violence (Manson 1996). The fourth section deals with cultural elements of the relationship between the evaluee and the clinician. This area assumes importance because cultural differences between clinician and evaluee may compromise trust and communication. Given that forensic psychiatric evaluations generally take place over a limited number of interviews, identification of cultural factors that may facilitate or impede a reasonable bi-directional flow of accurate information may attain critical significance. The final part of the DSM-IV/DSM-IV-TR cultural formulation deals with the overall assessment of the role that cultural factors may have on diagnosis and treatment. A transcultural forensic psychiatric analysis not only ferrets out cultural factors that influence diagnosis and treatment, but also how these cultural influences may canalize psychiatric phenomena across forensic settings. For example, a cultural perspective may allow the clinician to understand that some Native American tribes have traditionally incorporated the use of reduced alcohol content beverages into their customs. The introduction of high alcohol-content liquors in some Native American communities by members of European cultures may have resulted in more disorganized and antisocial behaviors and a greater risk for serious violence in some of the relevant communities. The culturally competent forensic psychiatrist may be better prepared to explain to the courts that the effect of alcohol-associated violence in some Native Americans may be partially the result of the exogenous introduction of high alcohol-based beverages into a given culture coupled with other relevant neurological, social, political, economic and ecological factors. The systematic application of the cultural formulation of DSMIV-TR to transcultural forensic psychiatric problems presently remains in the early stages of development. However, preliminary case studies suggest that the cultural formulation can be effectively used to analyze complex cases of a biopsychosociocultural and legal nature such as parental child killing behavior (Silva et al. 1997; Silva et al. 1998) and dissociative identity disorder associated with aggression (Silva, Leong, and Derecho 2000).

THE CLINICAL INTERVIEW The psychiatric interview is a multidimensional informational system where cognitive, perceptual and affective factors interact in a complex manner and flow

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bi-directionally between clinician and evaluee. When the psychiatric interview takes place between a clinician and evaluee of different cultural backgrounds, culturally affected factors can complicate the communication process by introducing different shades of meaning and potential confusion in the assessment of symptoms, signs and other indicators of mental disorder and clinical formulation. From a psychiatric-legal perspective, the mental health professional must attempt to understand how the sociocultural identity of the evaluee may affect the interview (evaluation). Furthermore, the psychiatric interviewer should also identify the cultural factors that have potential bearing on the interview process. Often, the forensic psychiatric interview differs from the clinical psychiatric interview because of the lack of primacy of a therapeutic objective by which a longitudinal process allows for the opportunity for clinician and the interviewee. In addition, an increase in comfort due to familiarity and reclarification of information are not an option. From the standpoint of cultural psychiatry, one of the most problematic situations involves a mental health professional who harbors biases toward members of another group with resultant distorted data gathering and opinions. In the U.S., not only do mainstream groups exhibit their unfounded biases, but members of minority groups are not immune to such biases. Many clinicians often make a concerted effort to provide well-balanced and objective psychiatric-legal evaluations on members of cultural backgrounds different from the clinician. However, even in these situations clinicians may experience discomfort due to a lack of knowledge regarding the cultural background of the interviewee. Additionally, factors partially operating below the conscious level can include cultural differences in making eye contact, body language, acceptable body spacing between people, and speech differences. A clinician’s lack of familiarity with a specific culture coupled with emotional discomfort toward a defendant can result in impaired communication flow and suboptimal forensic evaluations. In situations where the clinician and the evaluee belong to the same ethnic group, the mental health professional may erroneously assume that the evaluee presents with other similarities in social, psychological or cultural attributes. For example, an African-American man raised in a large urban center may present with very different ethnocultural attributes to those of an African-American man raised in a small isolated mountain community. Griffith (1998) has discussed the need for minority forensic psychiatrists who will be aware of power imbalances and the narrative of an individual who is not part of the majority culture and be able to give adequate recognition to such issues. Counter-transference issues involving ethnic minority evaluees (Comas-Diaz and Jacobsen 1991) may cause significant problems during the forensic psychiatric interview. For example, ethnic minority evaluees may view a Caucasian psychiatrist as a representative of the

dominant group that had helped oppress the evaluee and the ethnic group to which the evaluee belongs. In this situ-ation, the evaluee may find it difficult to trust the evaluating psychiatrist and may openly express feelings of hostility that can seriously compromise the evaluation. Minority forensic psychiatrists may also not be trusted by minority defendants who may question their allegiance to a ‘minority’ viewpoint. Some defendants may internalize the idea that minorities are inferior and then may proceed to project their feelings onto ethnic psychiatrists. Thus, they become hostile and mistrustful toward the ethnic forensic psychiatrist, viewing him or her as a symbol of inferiority and also as a confirmation of how the ethnic defendant receives suboptimal forensic services. Minority defendants and evaluees may also harbor unrealistic expectations of minority forensic psychiatrists whom they view as well meaning and understanding of their plight. In this situation the minority person may mistakenly infer that shared ethnic background may help him or her receive a more favorable opinion. This could result in the evaluee believing that a therapeutic situation exists, despite being informed otherwise. This type of transference may lead to the evaluee volunteering excessive or even legally detrimental information in the hope of acquiring more help. At the same time, such a defendant may withhold key cultural information helpful to the case due to a belief that a psychiatrist of the same ethnic group would necessarily already have that knowledge or might disapprove of certain motivations or actions. As previously noted, another important aspect of the forensic psychiatric assessment of members of ethnic minorities is that the evaluee be carefully interviewed not only in regard to specific forensic issues but also within the context of the evaluee’s sociocultural milieu and development. This situation not only requires a psychiatric interview but also a careful assessment of the role that cultural, economic, sociological, and even historical factors have played in the cognitive, emotional, and moral development of the minority evaluee. It is important to obtain information from evaluees regarding their understanding of the relevant behaviors that triggered the forensic evaluation. If culturally mediated explanations are offered, independent verification from sources other than the evaluee must be sought. Family members and acquaintances can provide important information regarding the cultural identity of an evaluee. However, possible biases inherent in using the evaluee’s family members as sources of cultural information may be of dubious value. This situation may be partially alleviated if forensic clinicians make a concerted effort to acknowledge their limitations and proceed to become more culturally knowledgeable with those cultural groups that tend to make a significant proportion of their forensic psychiatric practice. In this regard, the forensic psychiatric consultant may benefit by undertaking in-depth study of the relevant culture either in formal

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educational settings such as completion of a course or through self-study. Some mental health professionals may also make effective use of objective sources of cultural information such as census information, international law, ethnographies and sociocultural and historical studies as methods that may facilitate understanding of the forensic psychiatric evaluee of a cultural minority (Inciardi, Block, and Hallowell 1977; Silva and Liederman 1986). Whenever possible, cultural interpreters should be used to verify information of forensic and cultural relevance. Cultural interpreters are frequently members of the same culture as that of the evaluee who may be able to critically assess the validity of the defendant’s statements regarding cultural norms. Cultural interpreters may also include those who have expert knowledge via formal education in a specific culture not necessarily their own. An example of such an interpreter may be an anthropologist with field work experience in a specific culture. Cultural interpreters who are not related to the evaluee, in contrast to family members, are more likely to provide objective and unbiased information. Nonetheless, utilizing a family member of the evaluee, may provide valuable culturally relevant information associated with family dynamics, social, political and ecological factors for a specific evaluee.

intoxication) to successfully assert a diminished responsibility or diminished capacity strategy. Proponents of the cultural defense take the position that it derives from the highly valued societal ideals of cultural pluralism and individualized justice. They also recognize that the use of a cultural defense should be limited for reasons of equity to others and to avoid giving a message excusing antisocial behaviors (Anonymous 1986). Also, the cultural defense should be firmly based on the idea that even for a given cultural group, successful use of the defense should not merely result from the presence of cultural factors, but rather in the totality of circumstances and parameters surrounding the incident at issue. Regardless of the extent to which cultural factors are formalized in a jurisdiction’s statutes, cultural factors as evidence of mitigation are, and will likely continue to be, an important consideration in the U.S. legal process (Anonymous 1986; Renteln 1987–88). The extent to which cultural factors play a role in this process likely depends not only on the country’s racial and ethnic composition but also on the prevailing national and local sociopolitical climate at a given moment. On the other hand, prejudices and fears may adversely affect the legal process and lead to an increased likelihood of a legally negative result for minority defendants.

THE CULTURAL DEFENSE

THE JUDICIAL SYSTEM

In 1978, Diamond considered the role that social and cultural factors should have for possible mitigation in criminal cases, as he stated, ‘I expect that sooner or later appellate courts must recognize the thesis that evidence of social and cultural factors, entirely separate from the medical model of mental illness or defect, is relevant to the administration of the existence of a specific intent.’ Since that time, the viability of such a ‘cultural defense’ as a bona fide legal strategy remains a topic of considerable discussion (Diamond 1978). Those who oppose a defense based on cultural considerations often note that ignorance of the law should not be excusable. Cultural defense opponents further argue about potential misuse of such a cultural defense by permitting individuals various and sometimes obscure cultural factors (Renteln 1987–88). Opponents also believe that allowing immigrants and ethnic minorities to claim non-responsibility based on their cultural background would violate fundamental fairness, as others would not be given this leeway (Sams 1986). Furthermore, they also argue that the U.S. legal system already offers alternative defense strategies such as the diminished responsibility defense, diminished capacity, or the ‘mistake of fact’ defense, that adequately substitute for a cultural defense (Sams 1986). However, this line of reasoning ignores the necessity for the presence of a bona fide mental condition (e.g., mental illness, mental retardation, or

By its very nature, forensic psychiatry interfaces with the judicial system and the surrounding complex social infrastructure. Given the unequal balance of power allocated to different ethnic groups in the United States, it is not surprising that discrimination occurs in the administration of justice. Racial and ethnic prejudice may occur at different levels of the judicial system, but often the problem is difficult to document from a scientific perspective. Culturally based discrimination permeates the criminal justice system all the way up to the ultimate legal sanction, namely the imposition of capital punishment. In the 1987 case of McClesky v. Kemp, the U.S. Supreme Court considered the issue of racial discrimination. Briefly, McClesky, an African-American man, had been convicted and sentenced to death for robbery of a store and at the same time homicide of a police officer in Georgia. McClesky eventually appealed his sentence to the Supreme Court, alleging that Georgia’s capital sentencing was discriminatory on the basis of race. McClesky based his contention on a statistical study of over 2400 murder cases in Georgia from 1973 to 1980 conducted by Baldus and his colleagues (Baldus, Woodworth, and Pulaski 1985; Baldus, Pulaski, and Woodworth 1986). The Baldus study found that a defendant convicted of killing white persons received the death penalty in 11 per cent of the cases, whereas defendants charged with killing

636 Special clinical issues in forensic psychiatry

African-Americans received the death sentence in only 1 per cent of the cases. Baldus also found that prosecutors sought the death penalty in 70 per cent of the cases involving African-American defendants and white victims, but in cases involving white defendants and African-American victims, the prosecution pursued this only 19 per cent of the time. Upon analyzing thirty-nine non-racial variables, the Baldus group found that defendants convicted of killing whites were 4.3 times more likely to receive the death penalty than those charged with killing black persons. Although the Supreme Court majority recognized statistical validity of the Baldus study, they concluded that these results did not demonstrate conclusively that racial considerations affected sentencing decisions in Georgia. In his analysis of the empirical jurisprudence of the McClesky case, Appelbaum noted that the Supreme Court misunderstood the statistical evidence (Appelbaum 1987). In essence, although the Supreme Court acknowledged that racial discrimination adversely affects death penalty proceedings with statistical significance, it also concluded that equal protection was not violated unless it could be demonstrated ‘that the decision maker acted with discriminatory purpose.’ However, the likelihood that a defendant could prove that the prosecutorial process is acting in a discriminatory fashion is slight, resulting in a situation where scientifically verified racial discrimination can be conveniently ignored by the courts. The Supreme Court also appeared to imply that implicit institutional racism inherent in the judicial system was an acceptable avenue in the administration of justice. Other instances of discrimination have been found in non-capital crimes and involving other ethnic groups (Klein, Petersilia, and Turner 1990). At the level of the jury – itself a purported microcosm of modern society – racial and ethnic prejudice can also be encountered, though this problem can be difficult to identify and eradicate (Fukurai, Butler, and Krooth 1993). The purpose of discussing racial and ethnic prejudice in the judicial system is not to promote an advocacy role for the forensic psychiatrist, but to raise our awareness that racial and ethnic prejudice in the judicial system may adversely affect ethical and objective evaluations. This may occur when the forensic psychiatrist decides to participate in legal proceedings where the law itself may be ethnocentrically biased and the opinions of the forensic psychiatrist are by necessity provided within that legal context. Culturally based discrimination may be facilitated by social forces that canalize mentally ill ethnic minority individuals into prison settings that are neither adequate from the perspective of mental healthcare delivery nor sensitive to the special needs of members of some ethnic minorities. In these situations, the forensic psychiatrist runs the risk of becoming an agent for a system that serves poorly the needs of inmates from some culturally defined minorities.

SUMMARY The evaluation of ethnic minorities for psychiatric-legal purposes requires not only careful attention to psychiatric and legal issues but also an approach that seeks to clarify how cultural factors affect a person at different levels of biological and psychosocial organization. Trans-cultural forensic psychiatry involves a balanced inter-play of theoretical and practical approaches seeking to clarify a multiplicity of issues interfacing psychiatry, culture and the law. This emerging field derives its methodology from several fields that include anthropology, sociology, political science, economics, linguistics, biology, and history. Ultimately, transcultural forensic psych-iatry relies on a biopsychosociocultural approach for optimal understanding of each specific case (Engle 1977; Silva and Liederman 1986; Silva et al. 1998). By adopting such an approach, the forensic psychiatrist can optimize the validity and comprehensiveness of psychiatric-legal assessment, especially in those where cultural factors play a role.

REFERENCES American Psychiatric Association. 1994: Diagnostic and Statistical Manual of Mental Disorders, 4th edition. Washington, DC: American Psychiatric Association. American Psychiatric Association. 2000: Diagnostic and Statistical Manual of Mental Disorders, 4th edition, text revision. Washington, DC: American Psychiatric Association. Anonymous. 1986. The cultural defense in the criminal law. Harvard Law Review 19, 1293–311. Alarcon, R.D. 1995. Culture and psychiatric diagnosisimpact on DSM-IV and ICD-10. Psychiatric Clinics of North America 18, 449–65. Alarcon, R.D., Foulkes, E.F. 1995. Personality disorders and culture: contemporary clinical views (part A). Cultural Diversity and Mental Health 1, 3–17. Appelbaum, P.S. 1987. The empirical jurisprudence of the United States Supreme Court. American Journal of Law and Medicine 13, 335–49. Baldus, D.C., Woodworth, G., Pulaski, C.A. 1985. Monitoring and evaluating contemporary death sentences. University of California – Davis Law Review 18, 1375–407. Baldus, D.C., Pulaski, C.A., Woodworth, G. 1986. Arbitrariness and discrimination in the administration of the death penalty: a challenge to state supreme courts. Stetson Law Review 15, 133–261. Comas-Diaz, L., Jacobsen, F.M. 1991. Ethnocultural transference and countertransferance in the therapeutic dyad. American Journal of Orthopsychiatry 61, 392–402. Desjarlais, R., Eisenberg, L., Good, B., Kleinman, A. 1995: World Mental Health: Problems and Priorities

Culture and ethnicity 637 in Low-Income Countries. New York: Oxford University Press. Diamond, B.L. 1978. Social and cultural factors as a diminished capacity defense in criminal law. Bulletin of the American Academy of Psychiatry and the Law 6, 195–208. Engle, G.L. 1977. The need for a new medical model: a challenge for biomedicine. Science 196, 129–36. Escobar, J.I. 1987. Cross-cultural aspects of the somatization trait. Hospital and Community Psychiatry 38, 174–80. Fromkin, I.B., Friedland, J. 1995. Forensic evaluations in immigration cases: evolving issues. Behavioral Sciences and the Law 13, 477–89. Fukurai, H., Butler, E.W., Krooth, R. 1993: Race and the Jury: Racial Disenfranchisement and the Search for Justice. New York: Plenum Press. Griffith, E.E.H. 1995. Forensic and policy implications of the transracial adoption debate. Bulletin of the American Academy of Psychiatry and the Law 23, 501–12. 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. Griffith, E.E.H., Gonzalez, C.A. 1994: Essentials of cultural psychiatry. In Hales, R.E., Yudofsky, S.C., Talbot, J.A. (eds), American Psychiatric Press Textbook of Psychiatry. Washington, DC: American Psychiatric Press, 1379–404. Hare, R.D., Clark, D., Grann, M., Thornton, D. 2000. Psychopathy and the predictive validity of the PCL-R: an international perspective. Behavioral Science and the Law 18, 623–45. Inciardi, J.A., Block, A.A., Hallowell, L.A. 1977: Historical Approaches to Crime: Research Strategies and Issues. Beverly Hills, CA: Sage Publications. Klein, S., Petersilia, J., Turner, S. 1990. Race and imprisonment decisions in California. Science 247, 812–16. Kleinman, A.K. 1988: Rethinking Psychiatry: From Cultural Category to Personal Experience. New York: The Free Press. McClesky v. Kemp, 107 S.Ct. 1756 (1987). Manson, S.M. 1996. The wounded spirit: a cultural formulation of post-traumatic stress disorder. Culture, Medicine and Psychiatry 20, 489–98. Mezzich, J.E., Kirmayer, L.J., Kleinman, A., et al. 1999. The place of culture in DSM-IV. Journal of Nervous and Mental Disease 187, 457–64. Okpaku, S.O. (ed.). 1998: Clinical Methods in Transcultural Psychiatry. Washington, DC: American Psychiatric Press.

Oquendo, M.A. 1996. Psychiatric evaluation and psychotherapy in the patient’s second language. Psychiatric Services 47, 614–18. Renteln, A.D. 1987–88. Culture and culpability: a study of contrasts. Beverly Hills Bar Association Journal 22, 17–27. Sams, J.P. 1986. The availability of the ‘cultural defense’ as an excuse for criminal behavior. Georgia Journal of International and Comparative Law 14, 335–54. Silva, J.A., Liederman, P.H. 1986: The life-span approach in individual therapy: an overview with case presentation. In Baltes, P.B., Featherman, D.L., Lerner, R.M. (eds), Life-Span Development and Behavior. Volume 7. Hilldale, NJ: Erlbaum Associates, 113–34. Silva, J.A., Leong, G.B., Weinstock, R. 1994: Cultural and ethnic minorities. In Rosner, R. (ed.), Principles and Practice of Forensic Psychiatry. New York: Chapman & Hall, 479–84. Silva, J.A., Leong, G.B., Yamamoto, J., et al. 1997. A transcultural forensic psychiatric perspective of a mother who killed her children. American Journal of Forensic Psychiatry 18, 39–58. Silva, J.A., Leong, G.B., Dassori, A., et al. 1998. A comprehensive typology for the biopsychosociocultural evaluation of child-killing behavior. Journal of Forensic Sciences 43, 1112–18. Silva, J.A., Leong, G.B., Derecho, D.V. 2000. Dissociative identity disorder: a transcultural forensic psychiatric analysis. American Journal of Forensic Psychiatry 21, 19–36. Stein, D.J. 1993. Cross-cultural psychiatry and the DSM-IV. Comprehensive Psychiatry 34, 322–9. Twemlow, S.W. 1995. DSM-IV from a cross-cultural perspective. Psychiatric Annals 25, 46–52. Van Moffaert, M.M.M.P. 1998: Somatization patterns in Mediterranean migrants. In Okpaku, S.O. (ed.), Clinical Methods in Transcultural Psychiatry. Washington, DC: American Psychiatric Press, 301–20. Vasquez, C., Javier, R.A. 1991. The problem with interpreters: communicating with Spanish-speaking patients. Hospital and Community Psychiatry 42, 163–5. Weinstock, R., Nair, M. 1984. Antisocial personalitydiagnosis or moral judgment? Journal of Forensic Sciences 29, 557–65. White, R. 1991: A New History of the American West: It’s Your Fortune and None of My Own. Norman, OK: University of Oklahoma Press. Wulach, J.S. 1983. Diagnosing the DSM-III antisocial personality disorder. Professional Psychology: Research and Practice 14, 330–40.

65 Hypnosis and dissociation DAVID SPIEGEL

Hypnosis has had a long but checkered career in the courtroom, repeatedly being either overvalued or undervalued as the cause of crime, an instrument of truth telling, or a contaminant of testimony (Scheflin and Shapiro 1989). Original debates about hypnosis in the forensic setting involved whether or not hypnotic suggestion could be considered exculpatory in criminal defense. This point of view is no longer taken seriously. More recently, hypnosis has been used as a means of refreshing the memories of witnesses and victims, resulting in considerable medical, psychological, and legal debate about the veracity of hypnotically refreshed testimony. There was a period during which hypnosis was used much more promiscuously as a memory-enhancement technique with the premise that the mind was something like a video recorder and all that was needed was a brief hypnotic session to obtain a veridical recount of facts not otherwise available to consciousness (Reiser 1974; Reiser 1980). This approach has come in for considerable criticism both from mental health professionals and the court (Scheflin and Shapiro 1989; People v. Shirley 1982). Today, hypnosis is also being used as a diagnostic tool in assessing the criminal responsibility of defendants with dissociative disorders. There is nothing particularly arcane or mysterious about hypnosis. It can be thought of as a state of aroused, attentive focal concentration with a relative suspension of peripheral awareness (Spiegel and Spiegel 1987). It has three main components: 1 Absorption, which is a tendency to narrow the focus of attention and suspend peripheral awareness, such that the experience of concentration becomes intense and self-altering (Tellegen and Atkinson 1974). 2 Dissociation, which is a disaggregation of the elements of consciousness, memory, and identity (Janet 1920; Hilgard 1970). 3 Suggestibility, which is a heightened responsiveness to social cues (Orne 1959). Thus, a hypnotized individual pays maximal attention to what is at the center of awareness and tends to suspend

awareness of the periphery, thereby dissociating, or keeping out consciousness, information that otherwise might be processed within the continuum of conscious attention. This ability to suspend peripheral awareness facilitates a suspension of critical judgment or evaluation of new information, thereby rendering the hypnotized person more suggestible or willing to accept uncritically cues provided by someone else. This does not mean that the hypnotized person is deprived of the ability to choose, but rather that he or she is less likely to be aware of it and to utilize it to break with the social context. This heightened suggestibility or receptiveness to social cues, coupled with a suspension of critical judgment and absorption during hypnosis, does increase the chances that a witness can be contaminated by a leading, coercive, or deceptive hypnotic interrogation. Such a witness could believe the truth of a false statement, making him or her a more compelling, but misleading, witness. This phenomenon has been called the ‘honest liar syndrome’ (Spiegel, H. 1980) to underscore the vulnerability of some highly hypnotizable individuals to leading interrogation, even without formal hypnotic induction (Spiegel and Spiegel 1984). Recent research suggests that spontaneous hypnotic and dissociative phenomena may especially be elicited by traumatic experiences either in childhood (Hilgard 1970; Terr 1991) or in adulthood (Spiegel, Hunt, and Dondershine 1988; Spiegel and Cardena 1991). The essence of this research is that individuals subjected to physical trauma may shift into spontaneous hypnoticlike states during and immediately after such episodes as a defense against the helplessness and pain engendered by the experience. It is not uncommon for trauma victims to feel detached from their own bodies, or to see the world as unreal or dreamlike (Spiegel and Cardena 1990; Spiegel and Cardena 1991; Bremner et al. 1992; Marmar et al. 1994; Butler et al. 1996). Subsequently, such trauma victims may use the same mental process to keep at bay both the content and the emotions associated with the content of traumatic memories (Butler et al. 1996). Thus,

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it makes sense that techniques such as hypnosis might be useful in obtaining access to such warded-off memories. This is frequently the rationale given for the use of hypnosis to refresh the memories of witnesses and victims, particularly of violent crimes or other events in which there would be strong and negative emotion attached to the recollection and some degree of functional amnesia. The case law on hypnotically induced testimony has changed dramatically over the past decades, most notably in California, where the California Supreme Court initially took an extreme stand against hypnosis. Strongly influenced by Diamond’s California Law Review article (Diamond 1980), the court ruled that the fact that hypnosis had been used to refresh the memory of a witness or victim of a crime limited the admissibility as well as the weight of any and all testimony from that person. Diamond had opined that the use of hypnosis could produce either confabulation (that is, the making up of information to please the examiner rather than as true recall) or ‘concreting’ (becoming artificially convinced of the veracity of one’s testimony because it had been elicited under hypnosis). Diamond held the belief that if such events were possible they should be treated as probable, and indeed it would be impossible for the court to determine the extent to which such events had occurred. In turn, this would mean that such a witness would be relatively invulnerable to the leveling effect of crossexamination and would become an artificially compelling witness. The California Supreme Court, in People v. Shirley (1982), therefore decided that a witness or victim who had undergone hypnotic refreshing of their recollection could not testify. The ruling was quite appropriate in the incident case. This was a rather dubious rape prosecution to begin with in which the victim had met the perpetrator at a bar, invited him to her apartment, spent hours drinking with him, had sex with him, remained in the apartment when he left to buy more liquor, and did not call the police; only hours later did she decide that she had been sexually assaulted. Her testimony was hypnotically refreshed by a member of the prosecution team the night before she was to go on the stand, and her rather shaky testimony improved. The court held quite rightly that such testimony should be excluded, but then made it a far more general rule that would exclude all such testimony. This ruling led to the rather unusual circumstance that if a defendant were hypnotized, his right to testify was preserved out of respect for the constitutional right to mount a defense on one’s own behalf, whereas a witness or victim in the same case who was hypnotized about the facts of the crime could not testify. In subsequent cases, People v. Guerra (1984) and People v. Hayes (1989), the California Supreme Court has moderated its position, now confining testimony to prehypnosis recollections. In the Hayes case, two men broke into an apartment, brutally raped a woman, and murdered her husband. After describing the assailants to the

police several times, the police recommended that the surviving victim use hypnosis to provide further information. Some minor new details were added. The defense appealed the conviction on the grounds of the Shirley decision. Even though the hypnosis had been conducted before the Shirley decision had been reached, the defendants claimed that their rights had been violated by the use of hypnosis. The court, sensibly, was unwilling to dispense with the victim’s testimony, but confined it to prehypnosis recollections. The U.S. Supreme Court held in Rock v. Arkansas (1987) that a defendant who had been hypnotized could nonetheless testify regarding pre-hypnosis recollections. This case law makes it clear that the use of hypnosis in an attempt to refresh recollection may allow the other side to challenge the weight, if not the admissibility, of a witness’s testimony. Such risks to the involvement of the witness in the case must be weighed against possible benefits from the use of hypnosis. Situations in which hypnosis is most likely to be worth the risk include those in which the witness’s or victim’s response to a traumatic experience may be impairing his or her ability to recollect important details, for example, psychogenic amnesia in the wake of a rape. Hypnosis may be helpful in reversing the amnesia, although there are estimates that in the forensic setting hypnosis is capable of uncovering information in no more than a third of cases (Spiegel and Spiegel 1991). Hypnosis is not especially helpful in simply adding details in routine situations, especially in view of the challenges to the credibility of a witness with whom it is used (Orne et al. 1985). The laboratory literature on hypnosis in memory enhancement suggests that while a hypnotized witness may provide more correct information (Dywan and Bowers 1983), he or she also provides more incorrect information (Laurence and Perry 1983) and is not good at detecting his/her poor accuracy (Sheehan and Tilden 1983). It should also be borne in mind that there are several important ways in which the laboratory studies cannot apply to the real forensic situation. First, they do not involve the intense emotional distress of a witness or victim of a real crime. Second, the import of a correct or incorrect identification does not carry the weight of an identification in a real criminal proceeding. Third, the time between hypnotic interrogation and recall is usually a matter of hours to weeks at most in laboratory experiments, whereas years may pass between a hypnotic interrogation and testimony in the real-life setting, thereby diminishing the effects of hypnosis. In summary, both the advantages and the dangers of hypnosis have been oversold (Scheflin and Spiegel 1998). There are situations in which it can help to provide additional information, and there are risks to testimony that may occur (People v. Shirley 1982; People v. Guerra 1984; Rock v. Arkansas 1987; People v. Hayes 1989). According to the California Evidence Code Section 795, a legislative response to the Shirley decision, the testimony of a witness

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is not inadmissible in a criminal proceeding by reason of the fact that the witness has previously undergone hypnosis for the purpose of recalling events that are the subject of the witness’s testimony, if all of the following conditions are met: 1 2

3

4a

4b

The testimony is limited to those matters which the witness recalled and related prior to the hypnosis. The substance of the pre-hypnotic memory was preserved in written audiotape or videotape form prior to the hypnosis. The hypnosis was conducted in accordance with all of the following procedures: • A written record was made prior to hypnosis documenting the subject’s description of the event, and information which was provided to the hypnotist concerning the subject matter of the hypnosis. • The subject gave informed consent to hypnosis. • The hypnosis session, including the pre- and posthypnosis interviews, was videotape-recorded for subsequent review. • The hypnosis was performed by a licensed medical doctor, psychologist, or licensed clinical social worker, experienced in the use of hypnosis, or licensed marriage, family, and child counselor certified by the Board of Behavioral Science Examiners and independent of and not in the presence of law enforcement, the prosecution, or the defense. Prior to admission of the testimony, the court holds a hearing pursuant to Section 402 of the Evidence Code at which the proponent of the evidence proves by clear and convincing evidence that the hypnosis did not so affect the witnesses to render the witness’s pre-hypnosis recollection unreliable or to substantially impair the ability to cross-examine the witness concerning the witness’s pre-hypnosis recollection. At the hearing, each side shall have the right to present expert testimony and to cross-examine witnesses. Nothing in this section shall be construed to limit the ability of a party to attack the credibility of a witness, or to limit other legal grounds to admit or exclude the testimony of that witness.

The product of a hypnotically conducted interrogation of a witness has been held, in most jurisdictions, not to meet the standard of general reliability and acceptance in the relevant scientific community (People v. Kelly 1976; Frye v. United States 1923; Daubert v. Merrell Dow Pharmaceuticals 1993; Hess 1999). Under these rules there is insufficient agreement among relevant professionals and published scientific evidence that the result of hypnotic interrogation is sufficiently reliable that it can be generally accepted for use in court. While the product has not been accepted, hypnosis has been useful in the process of uncovering information despite the genuine risks involved. Dissociative disorders have been defined as a failure in the usually integrative aspects of memory, identity, and consciousness (American Psychiatric Association 2000).

This pathological compartmentalization of experience has been conceptualized as spontaneous, undisciplined use of self-hypnosis (Bliss 1984; Spiegel and Spiegel 1987). Furthermore, dissociative disorders have been conceptualized as chronic posttraumatic stress disorders (Spiegel and Cardena 1990; Butler et al. 1996) since a history of trauma is commonly reported among patients with many of the dissociative disorders (Spiegel 1984; Kluft 1987). A more extreme form of the hypnotic state occurs spontaneously in individuals with dissociative disorders. The dissociative disorders are reviewed briefly as they appear in the fourth edition of the Diagnostic and Statistical Manual of the American Psychiatric Association (APA 2000). Dissociative amnesia is a time-limited loss of memory too extensive to be explained by ordinary forgetfulness, usually following an episode of acute trauma. Dissociative fugue is a loss of customary identity sometimes associated with adoption of a new identity, frequently accompanied by unexplained travel away from home. Multiple personality disorder (renamed ‘dissociative identity disorder’ in DSM-IV) involves the existence of more than one personality or personality state, each with its own enduring pattern of memory and identity. Each of the personalities recurrently takes control of the person’s behavior, and there is a requirement for amnesia that is more extensive than that which can be explained by ordinary forgetfulness. Other major dissociative diagnoses include depersonalization disorder, which is often transient and may occur with a variety of other psychiatric illnesses, in which there is a sense of detachment from one’s own body often accompanied by derealization, a sense of the world as unreal or dreamlike. In an acknowledgement of the connection between traumatic stress and dissociation, a new diagnostic category has been introduced into the DSM-IV, namely acute stress disorder. This defines cases occurring within one month of a traumatic stressor in which there is stupor, amnesia, depersonalization, derealization, numbing, or other dissociative symptoms, as well as one intrusion symptom such as nightmares or flashbacks, one avoidance symptom, and one hyperarousal symptom, such as irritability or sleeplessness, and accompanied by distress and dysfunction (APA 2000). It is meant to provide a diagnostic category for an acute and severe response distress that occurs before posttraumatic stress disorder can occur and involves severe dissociative features. In addition, there is a diagnostic entity entitled ‘dissociative trance disorder’ in the appendix to accommodate the prevalence of dissociative symptoms in non-Western cultures (APA 2000). Attempts have been made to use the diagnosis of a dissociative disorder, especially dissociative identity disorder (multiple personality disorder), as grounds for a not guilty by reason of insanity defense in serious crimes including murder (Aldridge-Morris 1989). In such settings two issues are often confounded. The first is the veracity of the diagnosis of dissociative identity disorder;

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the second is the relevance of that diagnosis to the not guilty by reason of insanity (NGRI) plea. Orne and others have made much of the misdiagnosis of dissociative identity disorder on the basis of the Hillside Strangler case (Orne et al. 1985; Aldridge-Morris 1989), noting, for example, that there were many signs that this multiple murderer had read extensively about the diagnosis, making it seem plausible that he had contrived it in the interest of his defense. Kluft (1987) has pointed out that many patients who genuinely have dissociative identity disorder and are not using the diagnosis to facilitate a legal defense likewise read a great deal about the disorder and would therefore seem suspect when they are not. Many defendants attempt to use other diagnoses such as schizophrenia as part of an NGRI defense, and yet no one claims that this practice raises doubts about the veracity of the diagnosis of schizophrenia. The more serious question is the extent to which a true diagnosis of a dissociative disorder does indeed constitute grounds for an NGRI defense. This defense can be conceptualized as the exception that proves the rule. In order to hold a defendant legally culpable, the law makes certain assumptions regarding the mens rea, the presumption that the perpetrator had the capacity and did indeed plan to conduct a criminal act, such as a murder, with malice aforethought. The law holds in the rather conservative M’Naghten rule that if a defendant is not able to understand the meaning and nature of his or her act, and to know that it is wrong, he or she cannot be held to the same standard and be considered guilty of premeditated murder. Dissociative identity disorder provides many such temptations. Since personality A may claim – as did the Hillside Strangler – that he had no idea that personality B had taken over his body and committed the crimes in question, there is the possibility of a claim that personality A was not able to appreciate the meaning and nature of his acts, even though he might know that they were wrong. The judge in the Hillside Strangler case was in no mood for such arguments and opined that he was going to take the personality that committed the crime, put him in jail, and throw away the key and let the other personalities do what they wished. Having reviewed several cases like this, including one in which an NGRI claim on the basis of dissociation was upheld by a California court, I would recommend analysis of this problem in the following manner. First, does the defendant meet diagnostic criteria for a dissociative disorder? If so, does the personality or personality state, who was in control at the time the crime was committed, meet the M’Naghten criteria? That is, did that personality know the meaning and nature of his act and know that it was wrong? If so, the patient may have a dissociative or personality disorder, but does not meet NGRI criteria. This leaves open the possibility that there may be situations in which a patient with a dissociative disorder might also meet NGRI criteria, for example, if a child alter is out at the

time the crime was committed. This should be an exceedingly rare situation. The mere presence of a dissociative disorder, even an extreme one like dissociative identity disorder, would not be per se grounds for an NGRI defense. To do otherwise would seem to establish a rather dangerous precedent in which any patient with a dissociative disorder could claim amnesia and therefore lack of criminal responsibility for crimes. This fails to take into account the fluctuating and reversible nature of dissociation. Information is kept out of consciousness but is potentially available to consciousness, even in a dissociated state. Dissociative amnesia can usually be reversed with techniques such as hypnosis, meaning that the information was potentially available to consciousness even if not actually present during a crime. Just as failure to be aware of, or think through, the consequences of a criminal act is not a defense, failure to access dissociated aspects of the personality is not per se a defense either, and thus the M’Naghten standard works fairly well with people who have dissociative disorders because it narrows the focus of the question asked to one that can be answered even if only a personality fragment is in charge. Thus, dissociative disorders are an intriguing, spontaneous manifestation of the intersection between an altered mental state, hypnosis, and trauma. It is not uncommon for the victims of trauma to undergo spontaneous dissociative experiences (Spiegel and Cardena 1991). Rarely, the perpetrators of trauma claim dissociation as a defense, but it is not common that such a defense is either appropriate or effective.

CONCLUSION Hypnosis is a fascinating phenomenon that involves a normal process of focusing of attention, with constriction of peripheral awareness and responsiveness to social cues. Hypnotic and related dissociative phenomena are often mobilized in stressful and traumatic situations, and thus are at times of concern in cases involving psychological or physical trauma. Both the dangers and benefits of hypnosis in the forensic setting have been exaggerated. Our current ability to measure hypnotic responsiveness increases the empirical basis for evaluating the role and usefulness of hypnosis in the forensic setting. Hypnosis can assist in managing trauma-related problems, and can intensify social influence on witnesses and victims. It deserves a measured and carefully evaluated place in legal process.

REFERENCES Aldridge-Morris, R. 1989: MPD. An Exercise in Deception. Hillside, NJ: Lawrence Erlbaum Associates.

642 Special clinical issues in forensic psychiatry American Psychiatric Association. 2000: Diagnostic and Statistical Manual of Mental Disorders, 4th edition, text revision. Washington, DC: American Psychiatric Press. Bliss, E.L. 1984. Spontaneous self-hypnosis in multiple personality disorder. Psychiatric Clinics of North America 7, 135–48. Bremner, J.D., Southwick, S., Brett, E., Fontana, A., Rosenheck, R., Charney, D.S. 1992. Dissociation and posttraumatic stress disorder in Vietnam combat veterans. American Journal of Psychiatry 149, 328–32. Butler, L.D., Duran, R.E.F., Jasiukaitus, P., Koopman, C., Spiegel, D. 1996. Hypnotizability and traumatic experience: a diathesis-stress model of dissociative symptomatology. American Journal of Psychiatry 153(suppl. 7), 42–63. Daubert v. Merrell Dow Pharmaceuticals (113 S.Ct. 2786 1993). Diamond, B.L. 1980. Inherent problems in the use of pretrial hypnosis on a prospective witness. California Law Review 68, 313–49. Dywan, L., Bowers, K.S. 1983. The use of hypnosis to enhance recall. Science 222, 184–5. Frye v. United States, 293 F. 1013, 34 A.L.R. 145 (D.C. Cir. 1923). Hess, A.K. 1999: Serving as an expert witness. In Hess, A.K., Weiner, I.B. (eds), The Handbook of Forensic Psychology. New York: John Wiley & Sons, 521–58. Hilgard, J.R. 1970: Personality and Hypnosis. A Study of Imaginative Involvement. Chicago: University of Chicago Press. Janet, P. 1920: The Major Symptoms of Hysteria. New York: Macmillan. Kluft, R.P. 1987. The simulation and dissimulation of multiple personality disorder. American Journal of Clinical Hypnosis 30, 104–18. Laurence, J.R., Perry, C. 1983. Hypnotically created memory among highly hypnotizable subjects. Science 222, 523–4. Marmar, C.R., Weiss, D.S., Schlenger, W.E., Fairbank, J.A., Jordan, B.K., Kulka, R.A., Hough, R.L. 1994. Peritraumatic dissociation and posttraumatic stress in male Vietnam theater veterans. American Journal of Psychiatry 151, 902–7. Orne, M.T. 1959. The nature of hypnosis: artifact and essence. Journal of Abnormal and Social Psychology 58, 277–99. Orne, M.T., Axelrod, D., Diamond, B.L., et al. 1985. Scientific status of refreshing recollection by the

use of hypnosis. Journal of the American Medical Association 253, 1918–23. People v. Guerra, C-41916 S. Ct. Orange Co. (1984). People v. Hayes, 49 Cal. 3d 1260 (1989). People v. Kelly, 17 Cal. 3d 24 (1976). People v. Shirley, 31 Cal. 3d 18. 641 P.2d 775 (1982). Reiser, M. 1974. Hypnosis as an aid in homicide investigation. American Journal of Clinical Hypnosis 17, 84–7. Reiser, M. 1980: Handbook of Investigative Hypnosis. Los Angeles: Law Enforcement Hypnosis Institute. Rock v. Arkansas, 107 S.Ct. 2704, 97 L.Ed. 2d 37 (1987). Scheflin, A.W., Shapiro, J.L. 1989: Trance on Trial. New York: Guilford Press. Scheflin, A.W., Spiegel, D. 1998. From courtroom to couch. Working with repressed memory and avoiding lawsuits. Psychiatric Clinics of North America 21, 847–67, vii. Sheehan, P.W., Tilden, J. 1983. Effects of suggestibility and hypnosis on accurate and distorted retrieval from memory. Journal of Experimental Psychology, Learning, Memory, and Cognition 9, 283–93. Spiegel, D. 1984. Multiple personality as a posttraumatic stress disorder. Psychiatric Clinics of North America 7, 101–10. Spiegel, D., Cardena, E. 1990. New uses of hypnosis in the treatment of posttraumatic stress disorder. Journal of Clinical Psychiatry 51, 39–43. Spiegel, D., Cardena, E. 1991. Disintegrated experience: the dissociative disorders revisited. Journal of Abnormal Psychology 100, 366–78. Spiegel, D., Spiegel, H. 1984. Uses of hypnosis in evaluating malingering and deception. Behavioral Sciences and the Law 2, 51–65. Spiegel, D., Spiegel, H. 1987: Trance and Treatment. Clinical Uses of Hypnosis. Washington, DC: American Psychiatric Press. Spiegel, D., Hunt, T., Dondershine, H.E. 1988. Dissociation and hypnotizability in posttraumatic stress disorder. American Journal of Psychiatry 145, 301–5. Spiegel, H. 1980. Hypnosis and evidence: help or hindrance? Annals of New York Academy of Sciences 347, 73–85. Terr, L.C. 1991. Childhood traumas: an outline and overview. American Journal of Psychiatry 148, 10–20. Tellegen, A., Atkinson, G. 1974. Openness to absorbing and self-altering experiences (‘absorption’), a trait related to hypnotic susceptibility. Journal of Abnormal Psychology 83, 268–71.

66 Amnesia, amytal interviews and polygraphy JOHN BRADFORD AND VICTORIA L. HARRIS

INTRODUCTION Despite the advances that have been made in research on memory, there remains a major problem in understanding amnesia. This is even more complex when amnesia is evaluated in a forensic psychiatric setting. There is a lack of clinical studies of amnesia in forensic psychiatric settings, and as a result the incidence of organic amnesia (amnestic disorder) and psychogenic amnesia (dissociative amnesia) is not clear. Malingered amnesia is also seen frequently in forensic settings, as well as being the arguably most common manifestation of all malingering. The true incidence of amnesia in forensic settings, in specific clinical situations such as homicide, and in many other instances is poorly understood or there is insufficient research available to provide an expert opinion. It is also very difficult to design studies that can answer some of these complex issues. Research into the biological aspects of memory has shown that it is fundamental to all human cognitive functioning. It is recognized that there are three complex components to memory: (i) registration of information; (ii) storage by reinforcement; and (iii) retrieval. Personality development is based mostly on life experiences that are memorized and learned. As there are repeated experiences that occur in a dynamic fashion throughout life, the processes of memory and learning are integrated.

MEMORY AND BRAIN STRUCTURE From a biological perspective, it is believed that memory results from a structural neuronal change (Squire and Paller 2000), with the memory trace being laid down through changes in the neuronal architecture of the brain. Although there are anatomical areas of the brain associated with memory, there does not appear to be any single cortical area involved (Squire and Paller 2000). Further, the memory traces for individual sensory experiences appear to be separate with visual, auditory, tactile, emotional, spatial, and temporal sensation stored separately (Squire

and Paller 2000). The study of memory impairment has been very useful in understanding the organization of memory in the brain. The medial temporal lobe has a number of structures involved in memory. In this area, there is the hippocampus as well as the entorhinal cortex, the perirhinal cortex and the parahippocampal cortex. The medial temporal lobe has centers for both memory and emotion (the amygdala). The key anatomic regions for registration and storage of memory traces are in the cortical area often referred to as the Papez circuit. The fornix connects the hippocampus to the mamillary bodies, which in turn connect to the anterior nuclei of the thalamus by the mamillothalamic tract. The anterior thalamic nuclei project to the cingulate gyri, which then connect with the hippocampus, completing the circuit. The memory system is primarily cholinergic. Verbal memory is most often associated with the left medial temporal lobe. The right medial temporal lobe is associated with visual memory (Netter 1992).

AMNESTIC DISORDER AND DISSOCIATIVE AMNESIA In this brief review, the focus is on the relationship of amnesia to clinical forensic psychiatric practice. In common parlance, amnesia is used generally to describe any loss or impairment of memory. However, psychiatrists distinguish between types of amnesia, based on etiology. The DSM-IV-TR recognizes organic amnesia and psychogenic amnesia. Organic amnesia is now defined as one of the broad group of cognitive disorders in the Diagnostic and Statistical Manual of Mental Disorders (DSM) as amnestic disorder. Amnestic disorders are defined in DSM IV as amnestic disorder due to a general medical condition; substance-induced persisting amnestic disorder and amnestic disorder not otherwise specified. The DSM IV definition of amnestic disorder is: Individuals with an amnestic disorder are impaired in their ability to learn new information or are unable to recall previously learned information or past events

644 Special clinical issues in forensic psychiatry (Criterion A). The memory disturbance must be sufficiently severe to cause marked impairment in social or occupational impairment and must represent a significant decline from a previous level of functioning (Criterion B). The memory disturbance must not occur exclusively during the course of a delirium or a dementia (Criterion C). (DSM IV 1994, p. 156)

The acquired impaired ability to learn and recall new information is a symptom of an underlying acute or chronic brain disorder, medical disorders, substance use, or other disorders. The prototype of amnestic disorder due to general medical condition is Korsakoff ’s syndrome, seen in chronic alcoholism and other vitamin B12-deficient states. There is an extensive clinical and research literature on this type of amnesia (Forrest 1987; Squire 1987; Shimamura and Gershberg 1992; Hassing et al. 1999). The amnesia can be either anterograde or retrograde, and this has various degrees of clinical significance. Psychogenic amnesia (Abeles and Schilder 1935) is known as dissociative amnesia in DSM IV, and defined therein as: The essential feature of dissociative amnesia is an inability to recall important personal information, usually of a traumatic or stressful nature, that is too extensive to be explained by normal forgetfulness (Criterion A). This disorder involves a reversible memory impairment in which memories of personal experience cannot be retrieved in a verbal form (or, if temporarily retrieved, cannot be wholly retained in consciousness). This disturbance does not occur exclusively during the course of dissociative identity disorder, dissociative fugue, posttraumatic stress disorder, acute distress disorder, or somatization disorder and is not due to the direct physiological effects of a substance or a neurological or other medical condition (Criterion B). The symptoms must cause clinically significant distress or impairment in social, occupational, or other important areas of functioning (Criterion C). (DSM IV 1994, p. 478)

Dissociative amnesia is very common in clinical forensic psychiatric settings and is mostly retrograde amnesia of various lengths of time prior to the precipitating event. The precipitating event is most commonly the alleged crime committed by the individual undergoing the forensic psychiatric assessment. The amnesia could be dissociative or malingered in this setting. Further, as dissociative and malingered amnesia are not caused by underlying brain pathology, the ability to recall the events of the amnestic period is a theoretical possibility. As there is no underlying neurological deficit, anterograde amnesia in this type of case is extremely rare. Although the type of amnesia encountered in clinical forensic settings is typically regarded as being psychogenic, the clinician must be vigilant as there are often mixed dissociative amnesias and amnestic disorder. There is a

strong association between crimes of violence and acute states of intoxication. It is the violent crime that is most likely to be linked with dissociative amnesia as the individual dissociates from the traumatic event, usually the crime that he or she has just committed (Schacter 1985). Similarly, the motivation for malingering amnesia is also the highest under these circumstances as the individual hopes to escape criminal responsibility. Dissociative amnesia is also lacking comprehensive research in both forensic as well as clinical settings (Kluft 1988). Amnesia results as a failure of some component of the memory process. In medical terms and in a simplified form it can be classified in the following way: 1 Failure of registration: amnesia secondary to delirium (e.g., epilepsy, concussion, intoxication). 2 Failure of retention: amnestic disorder (e.g., Korsakoff’s psychosis). 3 Failure of recall: dissociative amnesia, malingered amnesia, and amnestic disorder. There is a high degree of amnesia in a forensic psychiatric population. The condition is especially common in homicide, where between 40 per cent and 70 per cent of offenders have it to some degree (Hopwood and Snell 1931; O’Connell 1960; Bradford and Smith 1979; Lipian and Mills 2000). Dissociative amnesia is often present with an underlying brain disorder; this, in theory, makes it possible to differentiate amnesia secondary to brain disorder or substance use disorder from dissociative amnesia, though in practical terms it is very difficult to distinguish between the two. When it comes to differentiating dissociative amnesia from malingered amnesia, it is almost impossible at times. It is also very difficult – if not impossible – to test the validity of what is recalled once the psychogenic amnesia has been treated. One means of treating dissociative amnesia is with drugassisted interviews (sodium amytal or benzodiazepines), though hypnosis can also be used to alleviate some symptoms and to facilitate recall. Group and individual psychotherapy may also be used. Polygraphy is theoretically useful in differentiating alcohol- or drug-induced amnesia from psychogenic or malingered amnesia (Lynch and Bradford 1980).

THE AMYTAL INTERVIEW: BACKGROUND The Amytal interview was introduced in the 1930s as a treatment for patients suffering from psychosis (Bleckwenn 1930; Bleckwenn 1931). Its use in other conditions was subsequently nurtured by Lindemann (1932). The Amytal interview has been used in non-psychotic persons and has been mostly used as a diagnostic tool in catatonia, hysterical states usually with muteness and various stupors (Stoudemire 1982; Tollefson 1982). It is also used in abreactions and to recover memory in dissociative amnesia and fugue states (Perry and Jacobs 1982;

Amnesia, amytal interviews and polygraphy 645

Steinberg 2000), the latter being the most controversial application. Herman (1938) first described its use in this condition when he reported on a group of six patients that would not respond to interview techniques or to hypnosis, but responded dramatically to an Amytal interview within minutes. Sargent and Slater (1940) also reported the rapid recovery of memory with Amytal in troops acutely distressed by battle conditions. In fact, they claimed it to be more effective than hypnosis when measured by the rate of return to battle. In another study, Sargent and Slater (1941) described one-third of a group of hospitalized patients with psychogenic amnesia in World War II as malingering. In over 200 patients, Lambert and Rees (1944) found that the Amytal interview was the best method of recovering memory when compared with suggestion and hypnosis, producing a success rate of 82 per cent. A double-blind, placebo-controlled study on Amytal interviewing was completed by Dysken et al. (1979b), though these authors had some reservations on the use and effectiveness of the procedure. They were supportive of the use of Amytal interviews in catatonia to aid in the diagnosis of intellectual impairment and to reduce the negative affect related to stress. The main issue in the recovery of memories in psychogenic amnesia and fugue states is that an element of suggestion is present, and this confabulates the memories and makes the recall unreliable. The value of Amytal interviews for clinical purposes is acceptable, and recent studies with sodium amytal have used intracarotid infusion to examine left hemisphere speech and memory function in right-handed persons. This is carried out preoperatively in cases of temporal epilepsy. Fackler, Anfinson, and Rand (1997) conducted a study of serial amytal interviews in a variety of clinical conditions and concluded that it was a useful clinical and therapeutic tool. Ahern et al. (1993) reported that the intracarotid administration of sodium amytal precipitated the various personalities in a case of dissociative identity disorder and temporolimbic epilepsy. A recent literature review by Kavirajan (1999) which detailed seven controlled amytal studies against placebo referred to only one study that was superior to placebo in promoting verbalization and alertness. The use of Amytal as an adjunct to psychotherapy is known as narcotherapy (Naples and Hackett 1978) and there are four basic techniques: 1 Simple abreaction: the recall of suppressed memories with relief of associated negative affect. 2 Narcosuggestion: treatment with the use of suggestion while the patient is under the influence of Amytal. 3 Narcoanalysis: abreaction accompanied by posthypnotic suggestion. 4 Narcosynthesis: repressed material and abreaction forming part of a more comprehensive psychotherapeutic approach where the repressed memories

obtained in the Amytal interview are integrated in the ongoing psychotherapeutic sessions.

THE AMYTAL INTERVIEW: METHODOLOGY The usual procedure is to have the patient in a slightly darkened quiet room on a couch or chair that allows him or her to recline. As part of the preparation, fully informed consent should be obtained and the individual must also specifically give consent to the audio taping or videotaping of the procedure. The patient must be relaxed, and a suggestion is given by the person conducting the interview that the medication will allow the patient to relax and to remember the repressed memories and to talk about them. A butterfly needle or narrow-bore scalp vein needle is inserted into a superficial vein, usually on the hand, and a solution of 5 per cent Amytal (500 mg Amytal in 10 ml of sterile water) is injected at a rate of 0.5 ml/min or 25 mg/min, taking care not to put the patient to sleep or to precipitate respiratory depression. The use of an intravenous drip would be preferred for several reasons:

• • •

in the rare circumstance where an individual becomes excited or agitated with the administration of barbiturates; as a direct result of the physician’s hand movements, the individual is forewarned concerning the injection of the drug; and should circulatory access be required for emergency resuscitation.

Amytal can be easily administered through a ‘piggy-back’ line, or second port. As all barbiturates cause respiratory depression, the physician must inquire initially about any other medication that the patient might currently be taking, and the presence of any other factors that could precipitate or potentiate respiratory depression. In addition, resuscitation equipment to deal with respiratory depression must be readily available to assist with ventilation if this becomes necessary. All barbiturates depress the respiratory drive and cause hepatic enzyme induction, thereby having the potential for serious drug interactions. It is recommended that initial discussions focus on emotionally neutral topics. The topic sets can be gently shifted to more emotionally charged areas, eventually reaching the specific topic of inquiry (Piper 1993). The sedated patient is engaged with the suggestion that he or she either will remember or will be able to talk about the suppressed memories. While the infusion is continuing, the physician must look for rapid lateral nystagmus, drowsiness, and slight slurring of speech, since the desired sedation threshold occurs at this point. Normally, a dose of between 150 and 350 mg Amytal is required to achieve this optimum state, after which the level of sedation can be maintained with about 0.5 mg of Amytal being given every 5 minutes.

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The interview itself has no specialized technique, except that a degree of suggestion of relaxation is maintained. The amnesia and any traumatic material are approached slowly with the suggestion of relaxation and recovery of any repressed memories continuing all the time. The interview is terminated when the goals of the session have been obtained. The patient must be observed continually during the post-interview period for at least 30 minutes in order to ensure that recovery has occurred. The patient’s respiration should be monitored during this time, and they should be made to lay until they are ready to walk unaided without risk of injury (Perry and Jacobs 1982). Although not specifically referred to in the current literature, a prudent physician would most likely strongly dissuade an individual from driving within 4–6 hours of intravenous administration of the barbiturate.

AMYTAL INTERVIEW, HYPNOSIS AND POLYGRAPHY The combination of hypnosis and Amytal – known as narcoanalysis – has been described by Horsley (1936) as a seven-stage technique. As even more suggestion is involved than with the Amytal interview alone, the same problems of credibility of recall remain. Redlich et al. (1951), while following-up the earlier investigations of Gerson and Victoroff (1948), attempted to assess the credibility of recalled memories in an experiment which aimed at determining whether subjects could maintain ‘artificial lies’ while undergoing an Amytal interview. The conclusion was that in normal subjects Amytal had no effect on the ability to conceal the truth. In the many uncontrolled studies that have been completed, Amytal interviewing has been consistently described as a useful technique, although expectations of outcome from the subject with regard to the drug being used or the expertise of the interviewer are important predictors of success (Dysken et al. 1979a). In order to study amnesia in a forensic setting, polygraphy or a lie detection technique was used to evaluate alcohol- and drug-induced amnesia as opposed to psychogenic amnesia that was either malingered or dissociative in origin (Lynch and Bradford 1980). Although the question of amnesic states and their assessment and treatment remains poorly understood, the use of Amytal interviews, hypnosis, and polygraphy has the potential of being a valuable clinical tool in this area. However, none of these techniques is free of suggestion and therefore the credibility of recalled memories cannot be guaranteed. As such, they have no place in the courtroom (Council on Scientific Affairs, AMA 1985). Despite the opinion offered by the American Medical Association, guidelines to gather information under hypnosis in preparation for trial testimony have been established (State v. Hurd 1980). The New Jersey State Supreme

Court offered the following guidelines to safeguard the integrity and accuracy of the recovered information:

• • • • • •

the interview be conducted by a trained psychologist or psychiatrist; the qualified individual be independent and not responsible to the prosecutor, investigators, or defense; written information from law enforcement personnel be reviewed; prior to the hypnosis, a written account of the alleged events be obtained; all contact with the individual be recorded (preferably with audio and video); and only the hypnotist and subject should be in the room during the interview.

Importantly, no opinion was offered on what constitutes sufficient or necessary training. Notwithstanding this decision, other State Supreme Courts were to later opine on the issue of admissibility of hypnotically refreshed memories. In the opinion from People v. Shirley (1982), all matters relating to the alleged event from the victim’s memory were deemed inadmissible from the time of the hypnotic session. That is, all hypnotically refreshed testimony was to be excluded per se, except where put forth by the defense on behalf of the accused. In Rock v. Arkansas (1987), the issue before the court was the relative importance of the examiner’s notes from interview(s) with the defendant prior to the hypnotic session undertaken to refresh memory of a recent homicide. While the court did not comment specifically on this issue, it was found that the Arkansas per se rule excludes the introduction of all hypnotically refreshed testimony. Such testimony was found to infringe on the Fifth, Sixth and Fourteenth Constitutional Amendments. Specifically, the court noted that refreshed memories would have to be subject to the same level of verification as [easily retrieved] memories. Amytal interviews, non-chemically induced hypnotic states and polygraphy all share the same problem of lack of widely accepted methodology and interpretation (MacDonald 1955). The accuracy of information obtained during hypnotic states has three main potential limitations: 1 It is easily possible to lie while under the effects of barbiturates. 2 Hypnotics are well known to increase an individual’s suggestibility. 3 The cognitive effects of the drug are such that information obtained while under the effects of the drug is likely distorted and therefore inherently unreliable (Piper 1993). As such, it is unlikely that the process of refreshing memories and therefore the information obtained will ever reach the level of ‘scientific acceptability’ necessary to pass the Frye Test for admissibility of scientific evidence (Frye v. U.S. 1923). Ironically, for the past 75 years, polygraphy has been a main topic of legal controversy about the admissibility of

Amnesia, amytal interviews and polygraphy 647

scientific evidence. The 1923 Frye precedent arose from a question about the admissibility of an early version of the currently used polygraph test. Legal admissibility was conditioned on the acceptance of a technique by the relevant scientific community. However, the limited scope of admissibility of scientific evidence was significantly expanded in 1993 when the U.S. Supreme Court rendered a decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993). While admissibility of scientific evidence was not seen to rest upon general acceptance by a relevant scientific community, trial judges were assigned to ‘… ensure that an expert’s testimony both rests on a reliable and relevant foundation … ’ (Daubert v. Merrell Dow Pharmaceuticals, Inc. 1993, p. 2790). As foreshadowed by Chief Justice Rehnquist in his cautionary opinion1 in Daubert, Courts must now struggle with complex validity and reliability arguments concerning scientific evidence. Certainly the U.S. Supreme Court clearly stated that the District Court did not abuse its discretion in excluding expert testimony concerning epidemiological studies in a case involving exposure to polychlorinated biphenyls and the alleged causal association with cancer (General Electric v. Joiner 1997). In short, the epidemiological studies were found to be potentially inaccurate and misleading when considering an individual member of a particular population. The implications of this decision increase the likelihood that while admissibility of polygraphy may continue to be litigated, the procedure is unlikely to be found reliable by triers of fact.

Polygraphic technique The polygraph technique is usually referred to as the ‘lie detector,’ but it has also been referred to in the same context as other ‘lie detection techniques’ such as narcoanalysis, hypnosis, and voice stress analysis (psychological stress evaluation) (Hollien, Geison, and Hicks 1987). The history of the modern polygraph dates back to Lombroso who, in 1895, experimented with a machine which recorded blood pressure and pulse in order to detect deception in criminals. The machine was called a hydrosphygmograph, and the psychologist Marston used a similar device during World War I in cases of espionage to detect deception. In 1921, Larson included the monitoring of respiration rate, whilst in 1939 Keeler added skin conductance to the array of tests. This was the final development of what constitutes the modern-day polygraph. There are two schools of thought as to the reliability of the polygraph in detecting deception. One school sees it as a reliable technique and reports that studies have shown it to be about 90 per cent reliable in detecting deception. The other school sees the polygraph as 1

‘I defer to no one in my confidence in federal judges … . But I do not think [we should impose on them] … the obligation or the authority to become amateur scientists’ (Daubert v. Merrell Dow Pharmaceuticals, Inc. 1993, pp. 600–1).

unreliable and based on assumptions that are flawed scientifically (Iacano 2001).

Use of polygraphy The polygraph today is used by law enforcement agencies throughout the United States, including the Federal Bureau of Investigation as well as various intelligence agencies in order to ensure the loyalty of their staff. It is also being used by some companies for pre-employment screening. As a result of the Frye decision, most jurisdictions maintain that polygraphy is inadmissible in any criminal trial based on a stare decisis position (which means ‘let the precedent stand’). The Fifth Amendment prevents any forcing of a defendant to submit to a polygraph examination, though under certain circumstances the prosecution and the defense may agree to submit a polygraph examination by a prior stipulation agreed to by both parties. In addition, the Supreme Court has ruled (United States v. Scheffer 1998) that a defendant’s Constitutional rights were not infringed when a military court refused to admit polygraph results. A fundamental issue was the reliability of the testing procedure itself, the results, and the interpretations. In the decision for the majority, Justice Thomas noted: ‘there is simply no consensus that polygraph evidence is reliable.’ In a concurring opinion, Justice Kennedy noted that ‘the continuing, good-faith disagreement among experts and courts on the subject of polygraph reliability counsels against our invalidating a per se exclusion.’ However, the rationale underlying the per se exclusion of polygraph evidence was reopened when the Fifth Circuit Court of Appeals reversed and remanded a lower court decision. In United States v. Posado, the defendants sought to admit polygraph evidence in the pre-trial phase which would corroborate their version of events preceding their arrest for possession of cocaine. At ultimate issue was the admissibility of the defendants’ luggage allegedly containing the cocaine. The Court noted: ‘Our precedent, with few variations, has unequivocally held that polygraph evidence is inadmissible in a federal court for any purpose’ (United States v. Posado 1995). However, given the ongoing debate concerning reliability, the Court held that the per se exclusion of the evidence did not survive the ruling held in Daubert. The 1997 ruling in United States v. Cordoba addressed the issue of sufficient examination of the reliability of the polygraph prior to admission during trial. The defendant sought to admit the results of an unstipulated polygraph examination which supported his contention that he was innocent of knowledge that he was driving a van containing 300 kilograms of cocaine. The district court ‘held a two-day evidentiary hearing, held extensive briefing, and reviewed numerous affidavits and reports supplied by the parties’ (United States v. Cordoba 1999). It was found that the polygraph test was inadmissible both under the Federal Rules of Evidence 702, and

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Rule 403. The former codifies the Daubert and the latter requires that the probative value of the evidence outweigh its prejudicial effects. In the decision upheld by the Supreme Court, the District Court found that polygraphy failed to meet the Daubert standard, that its ‘questionable reliability’ undermines its relevance, and that the probative value was outweighed by its prejudicial value. In brief, the polygraph works on the principle that deceptive subjects use physiological and emotional energy to lie. It is this physiological stress to the body, manifested by autonomic hyperarousal, which is measured by the polygraph. The actual physiological measures are respiration, electrodermal or galvanic skin response, blood pressure and pulse rate, and these are interpreted by the polygraph examiner. The test procedure is carried out in three phases:

• • •

Phase 1: the pre-test interview. Phase 2: the measurement of the physiological arousal to various questions. Phase 3: the post-test interview.

There is considerable preparation prior to the administration of the test. In criminal proceedings, this would be a review of the summary of the facts against the defendant taken from police reports and witness statements. The examiner would prepare test questions based on this information. In general, these relevant questions focus on a single incident and narrowly defined facts. The pre-test interview also involves an explanation of the test, and a discussion about validity. In addition, control questions are developed: these are not related to the alleged offense but are related to similar behavior such as minor misdeeds from a person’s past. Irrelevant questions are those that can only be answered truthfully: for example, ‘are you sitting on a chair?’ Usually, ten questions are prepared and are asked with 10–20 seconds between each one. The questions are usually repeated three times. The interpretation of the tracing provides the basis to whether deception has occurred. Narcoanalysis using drugs such as sodium amytal, sodium pentothal, or a benzodiazepine (e.g., midazolam) have also been used for lie detection. All courts have refused to admit any testimony established by narcoanalysis based on a case from New Jersey using sodium amytal (New Jersey v. Pitts 1989).

Psychological stress evaluation Psychological stress evaluation or voice stress analysis was developed about forty years ago, and is a technique which measures changes in the voiceprint in response to a series of test questions. It is not admissible in any court proceedings although it is used by some police enforcement agencies and by intelligence services. A technique known as brain wave fingerprinting was developed in the mid-1990s. The technique is intended to detect information related to events a subject has experienced, despite

the subject’s efforts to conceal that knowledge. The accuracy and reliability of the memory and encoding was found to be highest in the P300 wave region of the electroencephalogram. The findings are based on a theory that when people tell the truth or lie different regions of the cerebral cortex are activated (Farwell and Smith 2001).

Scientific validity of polygraph testing The scientific validity of polygraph testing was the subject of a technical review in 1983 for the U.S. Congress which was conducted by The Office of Technology Assessment of the government of the United States. By 1983, there had been a dramatic increase in the use of polygraph tests by the U.S. federal government, with approximately 23 000 such examinations being conducted each year, compared with about 8000 in 1973. Except for the security services, more than 90 per cent of the polygraph tests conducted in 1982 were for criminal investigations. The National Security Agency and the Central Intelligence Agency used the polygraph for preemployment security screening of personnel, for enhanced security clearance, and also periodically to ensure ongoing security clearance for highly classified information. The conclusion of this review was that there is some evidence for the validity of polygraph testing in criminal investigations, but there is very little scientific support for its validity in screening situations of any type (Scientific Validity of Polygraphy Testing 1983; Saxe and Gen-Shakhar 1999). The most significant criticism of the validity of the polygraph technique relates to a lack of any scientific basis of the technique itself (Horvath 1997). First, there is a lack of standardization in the procedure which, in general, combines interview techniques with physiological recording. The procedure is neither standardized in the nature of interview, nor in the development of the questions and how the results of the test are scored. It is quite clear that there is no specific or characteristic physiological response to a lie. The technique therefore depends on comparing a response to a relevant question to that for another question. The first polygraph tests compared relevant questions with irrelevant questions, for example ‘Is today Saturday?’ and ‘Is your name John?’ This technique is flawed because the relevant question, which is usually emotionally charged, is likely to be more physiologically arousing than the irrelevant one. In fact, arguably innocent non-violent individuals, when exposed to a question that involved violence, show a greater physiological response than does a person who was in fact exposed to violence. This meant the early testing was biased against innocent individuals (Horowitz et al. 1997). The Control Question technique was introduced to counter the problems with the Relevant/Irrelevant Question technique, but also has significant problems. The control questions are intended to elicit a lie by posing a question of a minor breach of the law such as, ‘Have you

Amnesia, amytal interviews and polygraphy 649

ever lied to anyone in authority?’ The theory of the Control Question Technique is that this would provide a sample of a physiological reaction to a lie in the subject being tested. The theory assumes that people have lied to people in authority, and therefore gives an idea of what a physiological reaction to lies looks like. The theory is that innocent persons, when answering ‘No’ to the relevant question will show no arousal and are answering it truthfully. In theory, an innocent person would be more concerned about their response to the control question and so would show a greater physiological response. Individuals who were considered deceptive are supposed to show a larger response to the relevant questions, and are most likely lying to both relevant and control questions. It is this hypothetical difference that is interpreted as deception. The problem with this theory is that it is based on assumptions that have to be valid in order for the theory itself to have any validity. The first assumption is that innocent individuals would be more responsive to the control questions and less responsive to relevant questions. The second assumption is that guilty or deceptive persons would respond more strongly to the relevant question because it would carry a higher emotional significance to them. There is a considerable scientific literature that shows these assumptions to be problematic. In practice, what does occur is that individuals based on the interpretation of the test tend to confess at the post-test interview. The problem remains however that the polygraph using the Control Question Technique is based on assumptions that are not scientifically valid, and so it is biased against innocent individuals. Moreover, it can be beaten by simply artificially augmenting responses to control questions.

REFERENCES Abeles, M., Schilder, P. 1935. Psychogenic loss of personal identity. Archives of Neurology and Psychiatry 34, 587–604. Ahern, G.L., Herring, A.M., Tackenberg, J., et al. 1993. The association of multiple personality and temporolimbic epilepsy. Intracarotid amobarbital test observations. Archives of Neurology 50, 1020–5. Bleckwenn, W.J. 1930. Narcosis as therapy in neuropsychiatric conditions. Journal of the American Medical Association 95, 1168–76. Bleckwenn, W.J. 1931. The use of sodium amytal in catatonia. Research Publication Association of Nervous and Mental Disorders 10, 224–9. Council on Scientific Affairs, American Medical Association (J. Bradford, resource person). 1985. Scientific status of refreshing recollection by the use of hypnosis. Journal of the American Medical Association 253, 1918–23.

Bradford, J.M.W., Smith, S.M. 1979. Amnesia and homicide. The Padola case and a study of thirty cases. Bulletin of the American Academy of Psychiatry and the Law 7, 129–31. Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993). Diagnostic and Statistical Manual of Mental Disorders (DSM). 1994. 4th edition. Washington, DC: American Psychiatric Association. Dysken, M.W., Steinberg, J., Davis, J.M. 1979a. Sodium amobarbital response during simulated catatonia. Biological Psychiatry 14, 995–1000. Dysken, M.W., Chang, S.S., Casper, R.C., Davis, J.M. 1979b. Barbiturate-facilitated interviewing. Biological Psychiatry 14, 421–34. Fackler, S.M., Anfinson, T.J., Rand, J.A. 1997. Serial Amytal interviews in the clinical setting. Psychosomatics 38, 558–64. Farwell, L.A., Smith, S.S. 2001. Using brain MERMER testing to detect knowledge despite efforts to conceal. Journal of Forensic Science 46, 135–43. Forrest, D.V. 1987: Psychosocial treatment in neuropsychiatry. In Hales, R.E., Ydofsky, S.C. (eds), The American Textbook of Neuropsychiatry. Washington, DC: American Psychiatric Press, 387–409. Frye v. U.S, 293 F. 1013 (1923). General Electric v. Joiner, 118 S.Ct. 512 (1997). Gerson, M.L., Victoroff, V.M. 1948. Experimental investigations into the validity of confessions obtained under sodium amytal narcosis. Clinical Psychopathology 9, 359. Hassing, L., Wahlin, A., Winblad, B., Backman, L. 1999. Further evidence on the effects of vitamin B12 and folate levels on episodic memory functioning: a population-based study of healthy very old adults. Biological Psychiatry 45, 1472–80. Herman, M. 1938. The use of intravenous sodium amytal in psychogenic amnestic states. Psychiatric Quarterly 12, 738–42. Hollien, H., Geison, L., Hicks, J. 1987. Voice stress evaluators and lie detection. Journal of Forensic Sciences 32, 405–18. Hopwood, J.S., Snell, H.K. 1931. Amnesia in relation to crime. Journal of Mental Science 79, 27–41. Horowitz, S.W., Kircher, J.C., Honts, C.R., Raskin, D.C. 1997. The role of comparison questions in the physiological detection of deception. Psychophysiology 34, 108–15. Horsley, J.S. 1936. Narcoanalysis. Lancet i, 55–6. Horvath, F. 1997. The effect of selected variables on the interpretation of polygraph records. Journal of Applied Psychology 62, 127–36. Iacano, W.G. 2001. Forensic ‘lie detection’: procedures without scientific basis. Journal of Forensic Psychology Practice 1, 75–86.

650 Special clinical issues in forensic psychiatry Kavirajan, H. 1999. The amobarbital interview revisited: a review of the literature since 1966. Harvard Review of Psychiatry 7, 153–65. Kluft, R.P. 1988: The dissociative disorders. In Hales, R.E., Ydofsky, S.C. (eds), The American Textbook of Neuropsychiatry. Washington, DC: American Psychiatric Press, 560–9. Lambert, C., Rees, W.L. 1944. Intravenous barbiturates in the treatment of hysteria. British Medical Journal 2, 70–3. Lindemann, E. 1932. Psychological changes in normal and abnormal individuals under the influence of sodium amytal. American Journal of Psychiatry 88, 1083–91. Lipian, M.S., Mills, M.J. 2000: Malingering. In Sadock, B.J., Sadock, V.J. (eds), Comprehensive Textbook of Psychiatry, 7th edition. Philadelphia: Lippincott, Williams & Wilkins, 1898–907. Lynch, B.E., Bradford, J.M.W. 1980. Amnesia: its detection by psychophysiological measures. Bulletin of the American Academy of Psychiatry and the Law 8, 288–97. MacDonald, J. 1955. Truth serum. Journal of Criminal Law and Criminology 46, 259–63. Naples, M., Hackett, T.P. 1978. The Amytal interview: history and current uses. Psychosomatics 19, 98–105. Netter, F.H. 1992: The CIBA Collection of Medical Illustrations: Volume I. Nervous System; Part II. Neurologic and Neuromuscular Disorders. New Jersey: CIBA-Geigy Corporation, 37. New Jersey v. Pitts, 116 N.J. 580; 562 A.2d 1320 (1989). O’Connell, B.A. 1960. Amnesia and homicide. British Journal of Delinquency 10, 262–76. People v. Shirley, 181 Cal. Rptr. 243 (1982). Perry, J.C., Jacobs, D. 1982. Overview: clinical applications of the Amytal interview in psychiatric emergency settings. American Journal of Psychiatry 139, 552–9. Piper, A. 1993. ‘Truth serum’ and ‘recovered memories’ of sexual abuse: a review of the evidence. The Journal of Psychiatry and the Law 21, 447–71. Redlich, F.C., Ravitz, L.J.Jr., Dession, G.H. 1951. Narcoanalysis and truth. American Journal of Psychiatry 107, 586–93. Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704 (1987).

Sargent, W., Slater, E. 1940. Acute war neuroses. Lancet ii, 2. Sargent, W., Slater, E. 1941. Amnestic syndromes in war. Proceedings of the Royal Society of Medicine 34, 47–54. Saxe, L., Gen-Shakhar, G. 1999. Admissibility of polygraph tests: the application of scientific standards postDaubert. Psychology, Public Policy and Law 5, 203–23. Schacter, D.L. 1985: Amnesia and violent crime: how much do we really know? In Ben-Aron, M.H., Hucker, S.J., Webster, C.D. (eds), Clinical Criminology: The Assessment and Treatment of Criminal Behaviour. Toronto: M & M Graphics, 107–28. Scientific Validity of Polygraph Testing: A Research Review and Evaluation. A Technical Memorandum. 1983. Washington, DC: U.S. Congress Office of Technology Assessment. Shimamura, A.P., Gershberg, F.B. 1992: Neuropsychiatric aspects of memory and amnesia. In Yudofsky, S.C., Hales, R.E. (eds), The American Psychiatric Press Textbook of Neuropsychiatry, 2nd edition. Washington, DC: American Psychiatric Press, 345–62. Squire, L.R. 1987: Memory and Brain. New York: Oxford University Press. Squire, L.R., Paller, K.A. 2000: Biology of memory. In Sadock, B.J., Sadock, V.J. (eds), Comprehensive Textbook of Psychiatry, 7th edition. Philadelphia: Lippincott, Williams & Wilkins, 425–36. State v. Hurd, 173 N. J. Super 333, 414 A.2d 291 (1980). Steinberg, M. 2000: Dissociative amnesia. In Sadock, B.J., Sadock, V.J. (eds), Comprehensive Textbook of Psychiatry, 7th edition. Philadelphia: Lippincott, Williams & Wilkins, 1544–8. Stoudemire, A. 1982. The differential diagnosis of catatonic states. Psychosomatics 23, 245–51. Tollefson, G.D. 1982. The amobarbital interview in the differential diagnosis of catatonia. Psychosomatics 23, 437–8. United States v. Cordoba, 194 F.3d 1053 (9th Cir. 1999). United States v. Posado, 57 F.3d 428 (5th Cir. 1995). United States v. Scheffer, 118 S.Ct. Supp. 1261 (D. Washington, 1998). United States Court of Appeals for the Armed Forces, 1998 CAAF LEXIS 2557, November 25, 1998.

67 Geriatric psychiatry and the law DANIEL J. SPREHE

The rapid growth of geriatric psychiatry is due as much to the ‘graying of America’ as it is to the growth of science of geriatrics. The U.S. Bureau of the Census states that in 1945 America’s young outnumbered the old by almost three to one; by 2025, the old will outnumber the young (using the definition of the elderly as anyone past age sixty years and using the definition of the young as ages zero to nineteen years). Pervasive ageism is one of the ills of an American society that emphasizes youth and beauty. The Gray Panthers and the American Association of Retired Persons (AARP) have been successful in sensitizing many people to this problem and combating the perception of the elderly as feeble and demented. Actually, the mentally ill elderly comprise only 20 per cent of the people over sixty-five years of age, or around five million individuals. They are still a minority among their aged peers. Most people past the age of sixty years are cognitively intact and not depressed. There are a number of misconceptions about the elderly (Palmore 1977). Old people are generally just as happy as other age groups; older workers are as effective as younger ones; old people can change, adapt, and learn new things; most old people do not report being bored; and about 80 per cent are sufficiently healthy to engage in their normal activities. Old people react more slowly in psychomotor tests and take longer to learn something new, but there are no data proving that mental deterioration is a normal aspect of aging. Between 5 and 10 per cent of old people suffer from dementing illness using the DSM-III criteria of loss of intellectual abilities, memory impairment, impaired abstract thinking, impaired judgment or other disturbance of higher cortical function such as aphasia, apraxia, or agnosia (American Psychiatric Association 1987, p. 107). The severely demented patient is seldom a problem for the expert witness in the legal arena. However, moderate dementia frequently triggers a legal inquiry into the mental status of the elderly person requiring a careful evaluation. In 1994–95, of the age 65-plus population, 14 per cent had difficulty with Activities of Daily Living (dressing, eating, etc.) and 21 per cent, with Instrumental Activities

of Daily Living (taking medication, shopping, etc.). Of the age 85-plus population, 27.5 per cent had difficulties with ADLs, and 40.4 per cent with ADDLES (The U.S. Bureau of the Census and the National Center for Health Statistics, Washington, DC).

THE GERIATRIC FORENSIC EXAMINATION The most important test of early and moderate dementia is the mental status examination by a trained psychiatrist. The computed tomography (CT) scan and the electroencephalogram (EEG) need not be routine examinations in a work-up for suspected dementia, particularly in longstanding, gradually progressive dementia with no focal findings. However, imaging should certainly be performed when the history of cognitive impairment involves: (i) abrupt onset or rapid deterioration (weeks or months, as opposed to years); (ii) a fluctuating or abnormal state of consciousness; or (iii) focal deficiencies or any other unusual or puzzling facets to the presentation. These are the patients most likely to have reversible dementia, delirium, or pseudodementia. Neuropsychological testing, while helpful in delineating cognitive impairments, does not directly address the question to be answered in court. Test instruments are a way of quantifying impairment but do not address the important issue of incapacity. The forensic psychiatric examination of the elderly is almost always focused on some aspect of mental incapacity. There are a number of psychological aspects to aging that present special interview problems. They include:

• • • • •

reticence regarding personal money or financial affairs; reticence about relationships with children and family; strongly held political or religious views; denial of death; and fear of abandonment by loved ones, which includes the fear of nursing homes.

All these factors and others make the aged person somewhat guarded and standoffish, and present a problem

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in achieving rapport to carry out a proper psychiatric examination. The first axiom of the psychiatrist who is examining an elderly person for legal purposes should be that advanced age alone does not equate with incompetence. Eccentricity itself certainly does not represent incompetency or incapacity. The aged do have an image problem, and this may create anger and distancing between them and younger generations. Their body image changes as they develop a shortened, stooped stature and posture, dental problems, skin problems, aches and pains, and diminished sensory functions. Hearing and visual impairments are most frustrating to the aged whose minds may well stay quite clear. Psychopathology is frequently the first sign of severe physical illness in the elderly and, likewise, masked and atypical depressions are frequently seen first with somatic symptoms. The interviewing psychiatrist must be aware of aberrations of self-psychology that may be encountered in the elderly, including:

• • • • • • • •

exquisite sensitivity to perceived slights and insults; reactive anger and rage and withdrawal or depression in response to disappointment or rejection (experienced as a narcissistic injury); wide-based vacillations in self-esteem; a propensity to self-consciousness, shame, and embarrassment; hypochondriasis (which may represent a hypercathexis of bodily parts and thus a temporary discohesiveness of the self); overdependency on others for approval; a tendency to view other persons not as objects separate from the self but as self-objects or extensions of the self that serve to stabilize the precarious self; and an overemphasis on physical attractiveness, possessions, and past accomplishments to cope with the feelings of diminished self-esteem, emptiness, and depletion (Lazarus 1988).

The special technique of a forensic examination in an elderly person includes adjusting the speed of the interview to the flow of information. Taking time to achieve rapport is critical, as is addressing the assets and accomplishments in the person’s life as well as pathology. As questions get into the more sensitive, personal areas, there should be some preparatory statements or questions so that the elderly person can get braced for what is coming. It is important to avoid a hurried manner and not automatically assume that the individual understands the thrust of the interview. Obtain a clear idea of the subject’s personality assets as well as physical assets and get an idea of his or her philosophy of life, sense of humor, survival skills, and coping mechanisms. It is important to bring out whether or not the individual can understand how to use professional help (e.g., bankers, attorneys, etc.) to shore up his/her limitations, and whether or not he/she knows someone that he/she can trust. Have the person describe

how he or she knows they can trust someone. With regard to memory deficits, it is also important to bring out whether or not the person is able to utilize memory aids (e.g., lists, notes, phone book yellow pages, etc.).

SCREENING FOR COGNITIVE IMPAIRMENT In screening for cognitive impairment, three main approaches are available: 1 Orientation-Memory-Concentration Test: this is a sixitem screening instrument that assesses concentration and memory. Sensitivity, specificity, and diagnostic value of this brief instrument are acceptable and comparable to those of longer instruments. 2 Mini-Mental State Examination (MMSE): this is a thirty-item instrument that is widely used to screen for cognitive impairment and to assess the severity of impairment (Folstein, Folstein, and McHugh 1975). The examination takes about 10 minutes and provides a reliable overall cognitive score. Sensitivity for mild impairment is limited, and older individuals with low ‘normal’ scores are at high risk for developing dementia over subsequent years. Age and educational level must be considered in interpreting the MMSE score. 3 Mattis Dementia Rating Scale: this assesses a wider range of cognitive skills, including executive abilities (Mattis 1976). The instrument requires about 30–45 minutes to complete with an impaired patient. It provides an overall cognitive score, with a maximum of 144 points. (Sultzer, D.L. Mental status examination. The American Psychiatric Press Textbook of Geriatric Neuropsychiatry, 2nd edition, p. 138.) The forensic geropsychiatric examination should certainly include a functional assessment, which is a way of emphasizing day-to-day functions of an individual rather than diagnosis. Diagnosis alone cannot define the type or level of service needed (Pfeiffer 1991). There are a number of instruments available to use, including the highly sophisticated and detailed Older Americans Resources and Services Multidimensional Functional Assessment (OARA) (R) as well as the simple screening Mental Status Questionnaire (MSQ) (Kahn et al. 1960). The MSQ has a total of ten points, one for each of the following: current date, current month, current year, age, date of birth, year of birth, address, city, president, immediate past president. Dementia is considered severe if the patient makes nine or ten errors; moderate if three to eight; mild or absent if there are two or less errors. A similar instrument is the Short Portable Mental Status Questionnaire for Assessment of Organic Deficit in Elderly Patients (Pfeiffer 1976). Functional assessment instruments have their limitations and are not a substitute for clinical judgment. They enhance rather than replace the value of diagnosis, as they

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are not precise enough to form the sole basis for clinical or placement decisions. An inventory of activities of daily living should include an assessment of:

• • • • • • • • • • • • •

mobility; personal hygiene, which includes urination, defecation, bathing, ability to stay in clean clothes; eyesight and hearing; nutrition, including cooking and shopping; ability to obtain medical help; any substance abuse; ability to take prescribed medication; hedonic outlets; sleep patterns; ability to read and use television and radio; awareness of daily news; ability to assure safety and security; and ability to socialize.

The normal psychology of aging includes some acceptance of limitations, but at times also some ‘rage against the dying of the light.’ There is loneliness as the number of peers diminishes. There is the fear of accidents and illness. There are regrets at missed opportunities, bad deeds, and failures. There is sometimes eagerness to be done with it all. There is a certain amount of living in the past. There is a fear of embarrassing oneself and a clinging to dignity. There is a tendency of old people to nurse grudges. However, they also have a remarkable accumulated wisdom. Most old people do not complain of boredom, which is a misconception that the young have about old age.

COMPETENCY IN CIVIL LAW

or transaction, but proof of mental incompetence can void a transaction. The U.S. Supreme Court (Dexter v. Hall 1972) states, ‘The fundamental idea of a contract is that it requires the assent of two minds, but a lunatic or a person non compos mentis has nothing which the law recognizes as a mind, and it would seem, therefore, upon principle, that he cannot make a contract which may have any efficacy as such.’ Though Justice Brandeis has opined that the most precious of all human rights is the ‘right to be let alone,’ the question of competence or capacity to make a decision is probably the most common legal question in geriatric psychiatry. The test is two-fold for lack of mental capacity: 1 The person must be suffering from a mental illness or defect. 2 The illness or defect affects his or her understanding of the transaction of the degree stated. For incompetence to contract, cognitive and not merely affective deficits usually are necessary. Sometimes courts also apply an insane delusion test, which is a belief in the reality of facts that do not exist and that no rational person could believe, which motivates the making of the contract. The burden of proving incompetence is upon the party claiming it. However, once incompetence has been shown, the party asking that the contract be enforced has the burden of proving unfairness and lack of knowledge of the other person’s incompetence (Slovenko 1973a). The most common reason for initiating a guardianship proceeding is the concern of family members who have noted a loss or a change in judgment of an aged person in matters of money. However, many state laws do distinguish between guardianship of the person and guardianship of property. This concern for the ability to care for oneself as well as the ability to manage one’s property is part of probate code.

The types of civil competency most likely to concern geriatric neuropsychiatrists are competency to:

Standards of general competence

• • • • • •

General competence is a somewhat global term in guardianship procedures as opposed to specific competence for a particular act. The definition of general competence is the capacity to handle all one’s affairs in an adequate manner. In many states, guardianship only takes place with the finding of general incompetence, although more enlightened states now use some version of the Uniform Probate Code that includes a ‘laundry list’ of partial competencies (Florida Guardianship 1987). General incompetence is defined under the Uniform Probate Code: ‘A mentally incompetent person is one who is so affected mentally as to be deprived of sane and normal action or who lacks sufficient capacity to understand in a reasonable manner the nature and effect of the act he is performing.’ Merely having the presence of a severe mental illness or a psychosis or dementia is not sufficient by itself to constitute incompetence. A functional assessment is also necessary

•

give informed consent for medical care; execute an advance directive; give informed consent for enrollment in a study; enter into (and be held accountable for) a contract (contractual capacity); execute a will (testamentary capacity) or trust; provide self-care (provide oneself with food, clothing, shelter, and medical care); and manage one’s finances (Spar 2000).

Guardianship and contractual consent The essence of civilization is the contract: an agreement between two persons for the performance by each in exchange for the performance of the other. The law presumes competence of any adult who enters into a contract

654 Special clinical issues in forensic psychiatry

to delineate specific ways in which the individual lacks capacity. Appelbaum and Gutheil (1991) suggest five factors in considering general competence: 1 Awareness of situation. This involves a general orientation to the major elements of life. The individual should be aware of the circumstances of his or her living, sources of support, extent of resources, significant supportive relationships, limitations on natural functions, and threats to immediate security (e.g., funds running out or lawsuit pending). 2 Factual understanding of the issues. This requires some memory and judgment faculties being present. 3 Appreciation of the likely consequences. This is an understanding of the hypothetical situation,‘If X happens, then what next?’ For the rational manipulation of information, the psychiatrist will need to give various hypothetical questions to assess this ability to rationally manipulate possibilities. The basic components of the patient’s mental status, that is orientation, memory, intellectual functioning, judgment impairment, and rationality (delusions), and alterations of mood will be important. 4 Functioning in one’s own environment. Many older persons structure their natural environment in such a way that support exists there to aid in their essential tasks, so that the ecology of a person’s functioning must be taken into account during a competence evaluation. It is always important to inquire about the existence of natural supports. 5 The extent of demands on the patient. This entails a realistic evaluation of what tasks the individual may be called on to perform. A large, complicated estate might require the use of bankers, lawyers, accountants, and the ability to manipulate information derived from those sources, whereas a simple handling of a Social Security check does not require a comparable level of ability. A potentially important step toward resolution of this problem was taken by Grisso and colleagues (1994), who developed the MacArthur Competence Assessment ToolTechnique, a semistructured interview procedure that guides clinicians and patients through a process of disclosure of information related to informed consent, and an assessment of patients’ capacities to make decisions based on the information. Information specific to the patient’s situation is used, and only 15–20 minutes are required for the procedure. Preliminary data obtained using this instrument in patients with schizophrenia and schizoaffective disorder suggest that it has acceptable reliability, validity, and clinical feasibility. However, the authors recognized that the elements of decisional competence assessed by this instrument ‘are not the only factors in ultimate clinical or legal judgments of competence,’ and anticipated that the main use for the tool would be in ‘the midrange of ambiguous cases of competence … especially when clinicians have reason to believe that their

judgments might later be questioned – for example, in legal proceedings about a patient’s capacity to decide or about the reasonableness of a clinician’s decision to accept a patient’s decision or to turn instead to a surrogate’ (Grisso et al. 1994, p. 1419; Spar 2000, p. 947).

Specific competence There is a wide variety of specific competencies delineated in the law, such as the competency to consent to voluntary hospitalization, to consent or refuse medical treatment, to make a living will or advance directive, to create a durable power of attorney, to consent to electroconvulsive therapy (ECT), to marry, to divorce, and to drive an automobile. The standards are, in most states, directed by statute for each of the specific competencies. There are basically four elements in all of these standards (Appelbaum 1991): 1 A communication of a choice. This choice should be stable, without vacillation of such a degree that precludes its implementation. 2 Factual understanding of the issues. This includes understanding the information required to make the decision, including the nature and purpose of the proposed intervention, the risks and benefits involved, and possible alternatives, along with their risks and benefits. 3 Appreciation of the situation and its consequences. This requires the psychiatrist exploring the subject’s conceptions of the situation at hand, the likely outcomes of alternative courses of action, and the motives of those involved. 4 Rational manipulation of information. This involves the use of logical processes to compare benefits and risks of various courses of action. Reasonableness of the outcome is not what is being tested here, but the process of the reasoning involved. Examination of the person’s chain of reasoning from input of information to the conclusion is the essence of rational manipulation of information. Whether or not the examiner happens to agree with the individual’s decision is not relevant, since personal value judgments often play a part in legitimate decision making. There are generally some social policy considerations used by the court in weighing competency matters. For instance, competence to contract is judged more rigorously because interests of a living incompetent may outweigh his wishes as reflected in the contract. In wills, on the other hand, there is little point in trying to protect a dead testator’s interests as distinct from his or her express wishes, and there is little ability to do that fairly. In treatment decisions, a sliding scale approach is sometimes used. For example, patients consenting to lowrisk, high-benefit treatment would be allowed to do so even if fairly impaired on most measures of competence, because both their autonomy interests and physical

Geriatric psychiatry and the law 655

well-being would benefit. They might be considered competent if they could merely communicate a choice. This was the case in civil commitment statutes as a stand for voluntary admission prior to Zinermon v. Burch (Winick 1991), which has now made more specific rules for determining competency for voluntary admission. In contrast, patients refusing treatment might be held to higher standards since they run the risk of serious physical harm. Standards for competence employed in their case might require understanding, appreciation, and rational manipulation.

Procedure for determining competence for purposes of guardianship Any interested party can initiate a petition to the court, usually a probate court, alleging that the individual in question is incompetent and in need of a guardian. The usual language is ‘incapable of managing his affairs’ or ‘unable to care for his property or himself.’ The court will usually appoint a committee, including a psychiatrist, to examine the alleged incompetent and report to the court. States vary as to their rules for a hearing, but in general, testimony of witnesses, the psychiatrist, and medical experts, and sometimes the testimony of the alleged incompetent, is taken in a hearing. A guardian of the person and a guardian of the property are appointed by the court if a finding of incompetency is made. In most states these two guardianships are embodied in one person, though if the estate warrants professional supervision, sometimes a lawyer, banker, or accountant is appointed the guardian of the property and a family member becomes the guardian of the person. In most states, there are public guardianship organizations willing to assume the guardianship of those individuals who do not have immediate family members or interested parties.

Consent for treatment In non-emergent situations, courts have ruled that physicians have the responsibility to exercise ‘therapeutic privilege’ – that is, to approach the process of obtaining informed consent in a clinically sensitive and appropriate manner. Natanson v. Kline (1960) established that a clinician should provide the information that the hypothetical ‘reasonable medical practitioner’ would provide to his or her patient. However, in Canterbury v. Spence (1972) the court turned this reasoning around, concluding that the person receiving the information (the hypothetical ‘reasonable person’) should determine what information is provided. In both of these landmark cases, the notion of reasonableness was used in setting lower and upper limits on the information imparted; that is, too much information was considered possibly to be as unreasonable as too little information. In Natanson v. Kline, the court noted that disclosure ‘could so alarm the patient

that is would, in fact, constitute bad medical practice,’ and in Canterbury v. Spence the court recognized that, for some patients, disclosing certain information could ‘foreclose a rational decision, or complicate or hinder the treatment, or perhaps even pose psychological damage to the patient’ (Spar 2000, pp. 947–8). Competency for consent or refusal of medical treatment relies on the general rule of law enunciated by Justice Cardozo that, ‘Every human being of adult years and sound mind has a right to determine what shall be done with his or her body’ (Schloendorff v. Society of New York Hospital 1914). While practicing mental health professionals tend to focus on psychopathology in their assessment of competency, legal standards tend to be tied more specifically to the actual decision and the patient’s capabilities surrounding it (Stanley 1983) (see Chapter 13). Organized psychiatry, as expressed through opinions of the American Psychiatric Association (1991), has generally discouraged having judges make substitute decisions in cases of extraordinary procedures, such as sterilization, psychosurgery, ECT, or neuroleptic medications. Use of professional decision makers and family members has been considered clinically more effective and more in the best interest of sick patients.

Other specific consents There are specific consent laws for use of ECT, usually involving obtaining consultation by other clinicians. Consent for research has been addressed by the 1981 National Institute of Aging, which developed guidelines for addressing the ethical and legal issues involved in clinical research and senile dementia of the Alzheimer’s type (Melnick et al. 1984). ‘The determination of the subject’s capacity to consent to participate in research should not be dependent upon an assessment of the subject’s overall state of competency.’ Both Appelbaum (1991) and Stanley (1983) have suggested numerous clinical ways of dealing with questionable competence for informed consent such as using teaching and review methods coupled with testing, involving the patient’s family members in the consent process so that they may use language more familiar to the patient, developing better clinical rapport, tailoring the consent information to the needs of the patient, and making consent material more readable. The consulting psychiatrist in an informed consent case should always have available to him either on the chart or in some other written form a statement by the treating physician as to exactly what the proposed treatment is. In an uncooperative patient, one must be sure to inform the patient of the consequences of an incompetency finding so that he has an opportunity to disprove his incompetency. Advance directives are legal instruments intended to ensure that appropriate decisions regarding medical care are made when a patient becomes incompetent to give informed consent. The Patient Self-Determination Act,

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which became federal law on December 1, 1991, mandates that hospitals, nursing homes, and other healthcare organizations provide information to patients concerning availability and use of these instruments. There are generally two types of advance directives: (i) proxy directives, such as the durable power of attorney for healthcare (DPAHC) or healthcare proxy; and (ii) instruction directives, such as the living will. DPAHC allows an individual (the principal) to authorize another person, usually a family member or spouse (the attorneyin-fact), to give or withhold consent for medical care for the principal if the principal becomes incompetent: ‘A durable Power of attorney is a power of attorney by which a principal designates another his attorney in fact and the writing contains the words, “This power of attorney shall not be affected by disability of the principal,” or “This power of attorney shall become effective upon the disability or incapacity of the principal” or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal’s subsequent disability or incapacity’ (Uniform Durable Power of Attorney Act). Some states have enacted similar laws creating the healthcare proxy. A living will – a document that is created by an individual when he or she is of sound mind – specifies the limits of care to be given by healthcare providers if the individual ‘become[s] unable to participate in decisions regarding … medical care’ (Spar 2000, pp. 948–9).

FLUCTUATING INCOMPETENCE Psychodynamic, psychopathological, and situational influences on competence can be varied and modified if the clinician is aware of those influences. Simply assuming that incompetence is a fixed characteristic can be clinically erroneous. There are treatable psychiatric conditions such as anxiety, depression, polypharmacy, metabolic imbalance, and undiscovered medical conditions. Psychotic levels of defense, such as extreme denial, can be modified with treatment. Power struggles can be resolved with interpretation. Dementia can be a fluctuating condition so that there can be lucid intervals, depending on time of day, medications consumed, and other physical illnesses. Situational influences such as physicians’ rapport with the patient, the nature of the setting, the patient’s perception of the purpose of the examination, and hidden agendas of the patient need to be identified and resolved if possible. The Glasgow Coma Scale (GCS) remains the ‘gold standard’ because of its quick and convenient numerical quantification of level of consciousness and its widespread use in trauma data banks (Diringer and Edwards 1997). The GCS is a 15-point global index of consciousness that assesses functioning in three domains (eye opening, verbal response, and motor response) (Table 67.1). GCS

Table 67.1 Glasgow Coma Scale Eye opening response Spontaneous To voice To pain None Best verbal response Oriented Confused Inappropriate words Incomprehensible sounds None Best motor response Obeys commands Localizes pain Withdraws (pain) Flexion (pain) Extension (pain) None

4 3 2 1 5 4 3 2 1 6 5 4 3 2 1

From Fields, Cisewski, and Coffey 2000.

scores are generally interpreted as follows: 13–15, mild; 9–12, moderate; and 3–8, severe. Although the GCS has been found to have high inter-rater reliability and to be a reasonable predictor of poor outcome in TBI (i.e., death or vegetative state), it appears to have limited predictive power in terms of functional and cognitive outcome (Zafonte et al. 1996; Diringer and Edwards 1997) and is also limited when used with selected populations (e.g., children, patients with chronic disabilities, elderly patients with hearing loss, and patients whose injuries affect the eyes and mouth). These limitations are becoming more pronounced as prehospital treatment (i.e., pharmacological paralysis, sedation, and intubation) increases, thereby limiting the ability to obtain accurate GCS scores for many individuals. The legal finding of incompetence frequently changes the clinical picture. There is a certain amount of reinfantilization of the patient and a reversal of the separation individuation process. The patient essentially becomes a minor child so that the legal finding may deal a regressive blow to him or her. In addition, there becomes a crowding as the clinician–patient relationship becomes a committee–patient relationship, with judges, lawyers, guardians, and court observers all taking part in control of the patient, making therapeutic alliances difficult. There is an impact on self-esteem in almost all people who are found incompetent if they have any awareness of the finding. Much has been written about the question of which rules should govern the decisions of substitute decision makers such as attorneys-in-fact. The court in a New Jersey case (In re Conroy 1985) spelled out a three-step protocol for analyzing the patient’s wishes. First, consider any statements or other directives made by the patient. If these are not conclusive, then attempt to deduce the

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patient’s wishes from his or her more generally held values, religious beliefs, and so on. Finally, if these steps leave the issue in doubt, revert to what a person in the patient’s situation might reasonably choose (Spar 2000, p. 949). When a claim of contractual or donative incompetency is adjudicated, courts tend to give substantial weight to facts besides the degree of mental impairment of the grantor, such as the substantive fairness (i.e., the terms of the contract or gift, as opposed to the procedural fairness) of the transaction in question. In other words, the fact that the grantor agreed to an obviously bad deal may be regarded as evidence supporting the claim that the grantor was incompetent (Spar 2000, p. 951). For example, in Citizen’s National Bank v. Pearson (1978), the court stated: ‘Greater mental capacity is required to make a deed than is required to execute a will.’ … The creator of the trust should process contractual capacity (Spar 2000, p. 952).

TESTAMENTARY CAPACITY Unlike contracts and other issues involving competency to consent, the last will and testament always requires judicial approval. It is admitted to probate. In a will contest, the capacity of the testator is questioned, so the usual determination is a post-mortem perusal of records, witness statements, and sometimes psychological autopsies. Most recently, attorneys are becoming aware of the possibility of will contests at the time of making the will and are attaching a psychiatric examination to the will to assure the probate court of the individual’s competency at the time of making controversial provisions in his or her will. It is very important that the examining psychiatrist in these pre-death examinations have available to him or her a copy of the proposed will, as well as a conversation with the attorney drawing up the will in addition to his/ her examination of the testator. Slovenko (1973b) comments that of all wills probated, not more than 3 per cent are contested, and of these contests, not more than 15 per cent are successful. There are witnesses at the signing of a will, but these usually are witnesses to the fact of the testator personally signing the will and witnesses to his or her understanding of the provisions of the will. Most attorneys who are experienced in making wills attach a memo in their file explaining that they thoroughly went over the provisions of the will and satisfied themselves that the testator understood all aspects of the will and met the basic provisions for testamentary capacity. Some attorneys are also attaching a videotape of their interview with the testator to further document the testamentary capacity. The standard test for testamentary capacity in most states involves: (i) the person understanding that he or she is making a will; and (ii) understanding the natural objects of his or her bounty. Wills are usually challenged by disgruntled family members who have been left out or slighted in a later will after an

earlier will named them in what they felt to be a more appropriate way. Occasions for these will contests include: 1 A later will differs from an earlier will, since any will acts to revoke prior wills, with different relatives or beneficiaries. 2 An older person disposes of his or her property in a way that is ‘detrimental’ to family members who expect the property to be left to them. 3 The older person marries or becomes involved affectionately with a person whom family members question. 4. The older person becomes mentally incapacitated or shows evidence of severe physical incapacity before a will is made. 5 The older person becomes more susceptible to the influence of others by virtue of a change in his or her circumstances, that is, either physical or mental disability or unusual dependence on the influencing person. 6 The older person refuses a medical intervention or procedure that may be necessary to prolong his or her life, which brings up a question of competence. In general, the rules for testamentary capacity are not affected by other competencies, so that a person could be under guardianship and still be competent to make a will. Also, mental hospitalization is not a reason to consider a person incompetent to make a will. In some states, a delusion that bears directly on the individual’s reasoning for provisions of his or her will would affect testamentary capacity, whereas a delusion that does not bear directly on the provisions of the will is not usually considered as a reason to negate it. Generally, courts will lean favorably in the direction of protecting the family integrity if there is a balance of testimony, since it is in the state’s interest that families care for themselves and not become wards of the state. The court in the interest of family maintenance is unlikely to uphold a will that pauperizes a helpless member of the family. Distant relatives who have not seen a person for many years, but who are the only natural relatives, will seldom prevail in a will contest where the testator has willed his or her possessions to a church or Moose Lodge or other meaningful organization in his/her life. Undue influence is frequently the basis on which wills are contested. However, to successfully contest a will on the basis of undue influence, the objectors must show that the heirs had the opportunity and disposition to unduly influence a susceptible person to obtain a coveted result. The issue of susceptibility is usually in the province of a psychiatrist who reviews documents, witness reports, and so forth, and renders an opinion as to susceptibility to undue influence. Greist and Nelson (1977) have contended that most dying individuals who execute deathbed wills have an increased susceptibility to influence for good or ill because of common psychological reactions to the process of dying. Simple influence, however, differs from undue influence.

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Undue influence implies the concept of influence that comes from the outside and is applied unfairly with the intent of benefiting the person who exercised the influence. The questions most often arise when there is someone in constant attendance in the last days of the testator and then that person is made the beneficiary of a changed will. The dying process includes regressing to earlier levels of mental functioning and over-utilizing denial, anger, and bargaining. Many appellate cases involving undue influence originate in Florida since it is a retirement haven to which old people move in their final years, leaving their family in the North behind and making new acquaintances and associates in their last years. The court in In re Lamberson (1981) held that, ‘Evidence that beneficiary moved decedent into beneficiary’s home, failed to notify the decedent’s family of move, refused to notify his friends of his whereabouts, and never told decedent of his wife’s death two weeks before his own, together with evidence of testator’s diminished mental capacity, was sufficient to sustain trial court’s finding that beneficiary of will procured its execution by undue influence.’ Six additional factors have been identified that ‘are prominent in undue influence situations. They are the production of isolation, the creation of the “siege mentality,” the fostering of dependence, the creation of powerlessness, the use of fear and deception, and keeping the victim unaware of the manipulative program put into place to influence and control the person and to obtain the signing of documents which benefit the manipulators at the cost of the signer’ (Spar 2000, p. 953). The concept of lucid interval is brought up as a defense of a will being contested in an individual who is known to have been severely demented for some time. The expert psychiatrist who is reviewing documents, medical records, and so on should establish some repeated observations of a particular time of day for fluctuation in a person’s cognitive state and correlate that with the claimed lucid interval in order to provide good evidence of a lucid interval. This is especially true in dementia cases in which medication, changing environmental stress, or other factors may well cause an individual to have different lucid times.

COMPETENCY TO HOLD A JOB Competency to maintain a job is an issue in geriatric psychiatry because of changing ideas about arbitrary ages of retirement. Age alone is being increasingly viewed as a discriminatory basis for mandatory retirement from the workplace. Psychiatry is sometimes involved in determining the competency of elderly people to continue to work productively in their particular job. Frequently these issues arise in the hidden context of determining safety to others or actual competency to perform certain operations that require unusual physical or mental skills. Boards of medicine, for instance, frequently refer elderly

doctors for mandatory psychiatric evaluation to determine continued competency to practice medicine with the requisite degree of skill and care. These determinations almost always require that the examining psychiatrist avail himself of information from collateral sources about the actual job performance of the individual and they may require extensive environmental psychological testing.

COMPETENCY TO DRIVE The proportion of the American population that drives is rapidly aging, and it is estimated that by the year 2024, one in four drivers in the United States will be over age 65 years. Declining competency among these drivers is well documented: among older drivers, as a group, the frequency of crashes per mile is approximately twice that among younger drivers, and older drivers incur more fatalities per mile driven than any other group except males under age 25 (Spar 2000, p. 956). As is suggested by the latter finding, dementia is a well-established risk factor for crashes among elderly patients. Scores on the Mini-Mental State Exam and on the Sternberg test (another test of short-term memory), along with measures of visual tracking, were the best predictors (Spar 2000, p. 957).

CRIMINAL ISSUES IN THE ELDERLY The entire range of crimes in the criminal code are within the capability of elderly people. Geriatric psychiatrists will be involved in determination of all the issues for which psychiatrists are utilized in the criminal courts. Issues of mental status at the time of the offense, competency to proceed, competency to give a confession and to understand Miranda warnings, competency to be a witness, and even competency to be a juror may well be issues to be determined on elderly men accused of child molestation. This is the ‘grandfather–grandchild syndrome’ in which a sudden impulsive act by an elderly person is viewed with alarm and is attributed to onset of senility. Many of these cases are handled within families as the ‘family secret,’ without ever seeing the light of a court of law. Dementia can be involved in the sudden impulsive act of an elderly person toward a small child. The forensic psychiatrist must be mindful that a psychodynamic explanation of the elderly person’s act does not necessarily serve as an insanity defense. In cases of elder abuse the psychiatrist might be called on to examine both the abused person as well as the perpetrator. Some states now require mandatory reporting of elder abuse, similar to mandatory child abuse reporting. Another major area of concern for the elderly that impacts the criminal courts is the issue of suicide. Suicide

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pacts by elderly couples are certainly not uncommon. Frequently the forensic psychiatrist is called on to conduct a psychological autopsy. Was this a murder/ suicide or was this a joint intention of suicide? The highest suicide rate in American is among those age 50 years and over (Finkel 1991). This age group represents 26 per cent of the total U.S. population but accounts for 39 per cent of the suicides nationwide. Over 8500 older Americans kill themselves each year (see Chapter 12). Misdemeanor crimes that are victimless are frequently harbingers of senile dementia in the elderly. Psychiatric input is frequently necessary in order to get these individuals into misdemeanor diversion programs that will deal with their underlying illness rather than taking a punitive approach. Physician-assisted suicide and physician aid in dying (Misbin 1991) are new forensic and ethical issues that may be resolved by market forces as the elderly population increases. The specter looms of a computer making the decisions based on some mathematical score of ‘quality-adjusted life years’ (QALYs) (La Puma and Lawlor 1990). Psychiatrists will be called on to add their expertise in the geriatric ethical issues of the future. It is apparent from this brief discussion that geriatric psychiatry and the law will be a burgeoning field in the future. Pfeiffer (1991) states that the way to approach older persons is to think of them as people, ‘who constitute a group of elite survivors and pioneers, laboring at the last great frontier, confronting their own aging experiences.’

REFERENCES American Psychiatric Association. 1987: Diagnostic and Statistical Manual of Mental Disorders, 3rd edition, revised. Washington, DC: American Psychiatric Press. American Psychiatric Association Council on Psychiatry and Law. 1991: Position Statement on Right to Refuse Treatment – Judicial Model. Washington, DC. Appelbaum, P. 1991. Advance directives for psychiatric treatment. Hospital and Community Psychiatry 42, 983–4. Appelbaum, P., Gutheil, T. 1991: Competence and substitute decision making. In Clinical Handbook of Psychiatry and the Law, 2nd edition. Baltimore: Williams & Wilkins, 214–57. Canterbury v. Spence 464f. 2nd pp. 772–87 (1972). Dexter v. Hall, 15 Wall. (U.S.) 918 (1972). Diringer, M.N., Edwards, D.F. 1997. Does modification of the Innsbruck and the Glasgow Coma Scales improve their ability to predict functional outcome? Archives of Neurology 54, 606–11. Fields, R.B., Cisewski, D., Coffey, C.E.: The American Psychiatric Press Textbook of Geriatric Neuropsychiatry, 2nd edition. Washington, DC.

Finkel, S. 1991: Old people and suicide. Psychiatric News, November 15, p. 3. Florida Guardianship Law of 1987. FSA 744. Florida Statutes Annotated, 1992, West FS 744, 23–86. Folstein, M.F., Folstein, S.E., McHugh, P.R. 1975. Mini-Mental State: a practical method for grading the cognitive state of patients for the clinician. Journal of Psychiatric Research 12, 189–98. Greist, J., Nelson, W. 1977: Deathbed wills: the case of general susceptibility to the influence of others. Current Concepts in Psychiatry, November/ December, 6–13. Grisso, T. 1994: Clinical assessment for legal competence of older adults. In Storandt, M., Van der Bos, G.R. (eds), Neuropsychological Assessment of Dementia and Depression in Older Adults: A Clinician’s Guide. Washington, DC: American Psychological Association, 119–40. In re Conroy 98 nj 321, 486a 2nd 1209 (1985). In re Lamberson. Estate of William R. Lamberson, deceased. 1981. 407 So. 2d. 358–363. Kahn, R.L., et al. 1960. Brief objective measures for the determination of the mental status in the aged. American Journal of Psychiatry 117, 329. La Puma, J., Lawlor, E. 1990. Quality-adjusted life-years. Ethical implications for physicians and policy makers. Journal of the American Medical Association 263, 2917–21. Lazarus, L.W. 1988. Self-psychology in the elderly. Geriatric Psychiatry 2, 109–23. Mattis, S. 1976: Mental status examination for organic mental syndrome in the elderly patient. In Bellak, R., Karasu, T.E. (eds), Geriatric Psychiatry. New York: Grune & Stratton, 77–121. Melnick, V.L., et al. 1984. Clinical research in senile dementia of the Alzheimer’s type: suggested guidelines addressing the ethical and legal issues. Journal of the American Geriatric Society 32, 531–6. Misbin, R. 1991. Physicians aid in dying. New England Journal of Medicine 325, 1307–11. Natanson v. Kline 300 P 2nd pp. 1093, 1104, 1106 (1962). Palmore, E. 1977. Facts on aging: a short quiz. Gerontologist 17, 315. Pfeiffer, E. 1976. A short portable mental status questionnaire for the assessment of organic deficit in elderly patients. Journal of the American Geriatric Society 23. Pfeiffer, E. 1991. Comprehensive geriatric assessment. Southern Medical Journal 84(suppl. 1), 433–41. Schloendorff v. Society of New York Hospital, 2/22/11 N.Y. 125, 105 N.E. 92 (1914). Slovenko, R. 1973a: Contractual Capacity in Psychiatry and Law. Boston: Little Brown & Co., 313–15. Slovenko, R. 1973b: Testamentary capacity. In Psychiatry and Law. Boston: Little Brown & Co., 336–45. Spar, J.E. 2000: Competency and related forensic issues. In Coffey, C. (ed), The American Psychiatric Press

660 Special clinical issues in forensic psychiatry Textbook of Geriatric Neuropsychiatry, 2nd edition. Washington, DC: American Psychiatric Press. Stanley, B. 1983. Senile dementia and informed consent. Behavioral Sciences and the Law 1, 57–71. Winick, B. 1991. Competency to consent to voluntary hospitalization: a therapeutic jurisprudence analysis of Sinermon v. Burch. International Journal of Law and Psychiatry 14, 169–214. Zafonte, R.D., Hammond, F.M., Mann, N.R., et al. 1996. Relationship between Glasgow Coma Scale and functional outcome. American Journal of Physical and Medical Rehabilitation 13, 364–9. Zinermon v. Burch, 975 110 S.Ct. (1990).

Suggested reading Acker, M.B. 1990: A review of the ecological validity of neuropsychological tests. In Tupper, D.E., Cicerone, K.D. (eds), The Neuropsychology of Everyday Life. Boston, MA: Kluwer Academic, 19–55. Annas, G. 1990. Nancy Cruzan and the right to die. New England Journal of Medicine 323, 670–2. Appelbaum, P., Grisso, T. 1988. Assessing patient’s capacities to consent to treatment. New England Journal of Medicine 319, 1635–8. Applegate, W., Blass, J., Williams, T.F. 1990. Instruments for the functional assessment of older patients. Current Concepts in Geriatrics 322, 1207–14. Coffey, C.E. 1994: Anatomic imaging of the aging human brain. In Coffey, C.E., Cummings, J.L. (eds), Textbook of Geriatric Neuropsychiatry. Washington, DC: American Psychiatric Press, 159–94. Council on Ethical and Judicial Affairs, AMA. 1991. Guidelines for the appropriate use of do-not-resuscitate orders. Journal of the American Medical Association 265, 1868–71. Council on Scientific Affairs and Council on Ethical and Judicial Affairs, AMA. 1990. Persistent vegetative state and the decision to withdraw life support. Council report. Journal of the American Medical Association 263, 426–30.

Curran, W. 1985. Defining appropriate medical care: providing nutrients and hydration for the dying. New England Journal of Medicine 313, 940–2. Dobbs, A.R. 1997. Evaluating the driving competence of dementia patients. Alzheimer’s Disease and Associated Disorders 11(suppl. 1), 8–12. Dress, R.S. 1992: Autonomy revisited: the limits of anticipatory choices. In Binstock, R.H., Post, S.G., Whitehouse, P.J. (eds), Dementia and Aging: Ethics, Values, and Policy Choices. Baltimore, MD: Johns Hopkins University Press, 71–85. Dusky v. United States, 362 US 402; 80 S Ct 788 (1960). Golden, C.J., Hammeke, T.A., Purisch, A.D. 1980: The Luria-Nebraska Neuropsychological Battery Manual. Los Angeles, CA: Western Psychological Services. Hallagan, J. 1986: Natural death acts and right to die legislation (a state by state review). Medical Trial Technique Quarterly, Winter. Levin, H.S., High, W.M., Goethe, K.E., et al. 1987. The Neurobehavioral Rating Scale: assessment of the behavioral sequelae of head injury by the clinician. Journal of Neurology, Neurosurgery and Psychiatry 50, 183–93. Mattis, S. 1988: Dementia Rating Scale (DRS). Odessa, FL: Psychological Assessment Resources. Orentlicher, D. 1990. The right to die after Cruzan. Journal of the American Medical Association 264, 2444–6. Reitan, R.M., Wolfson, D. 1985: The Halstead–Reitan Neuropsychological Test Battery. Tempe, AZ: Neuropsychology Press. Roth, L., Meisel, A., Lidy, C.W. 1977. Tests of competency to consent to treatment. American Journal of Psychiatry 134, 279–84. Sultzer, D.L., Levin, H.S., Mahler, M.E., et al. 1992. Assessment of cognitive, psychiatric, and behavioral disturbances in patients with dementia: the Neurobehavioral Rating Scale. Journal of the American Geriatric Society 40, 549–55. Wechsler, D. 1981: Weschler Adult Intelligence Scale – Revised. San Antonio, TX: Psychological Corporation. Wyatt v. Stickney, 344 F. Supp. 373, 387 (M.D. Ala. 1972).

68 Terrorism and forensic psychiatry WILLIAM H. REID AND CHRIS E. STOUT

INTRODUCTION This chapter will address several kinds of terror-violence – a term coined during the 1970s by Professor M. Cherif Bassiouni, Loyola University Law School, Chicago – but will generally separate ‘terrorism’ from conventional criminal acts, war, and victims of conventional crime or warfare. Nevertheless, some specialized topics related to forensic psychiatry which highlight the terrorizing of victims will be included [e.g., terrorist strikes during a state of war, psychological effects of war on civilians (especially children), and state-sponsored attacks or terrorizing strategies]. Related topics such as imprisonment and/or torture per se, prisoners of war and concentration/internment camps, stalking, ‘ordinary’ criminal hostage-taking (e.g., as part of a robbery), and most oppressive government acts will not be addressed here. Torture and torture victims are discussed elsewhere in this text. Terrorism has been a part of human conflict since well before the birth of Christ. Many current English words that describe terror-violence come from ancient terms (e.g., berserk, assassin). The berserkers were legendary Norse warriors who fought with frightening zeal. The hassassim (literally, hashish-eaters) were a fanatic Moslem sect employed by their leaders during the Middle Ages to spread terror among prominent Christians and other religious enemies. Their fearsome activities entered European folklore by way of the Crusaders and the writings of Marco Polo. They were ultimately destroyed by the Mongol invaders, but their use of murder as a political instrument provided a grim inheritance for the modern world (Troini 2000). One’s personal view affects whether or not one defines various violent or fear-inducing acts as ‘terrorism.’ Professor J.K. Zawodny, a Polish underground combatant during World War II, wrote, ‘One man’s terrorist is another man’s freedom fighter.’ It is sometimes hard to tell whether a bombing is a political act or ‘senseless violence,’ or whether a military or police action meets common criteria for terrorism. Many would say that such

distinctions may not matter very much in the long run, especially to the victims. In October, 1999, U.S. Secretary of State Madeline Albright designated twenty-eight Foreign Terrorist Organizations (FTOs), deleting three from the 1997 list and adding one. Such identifying, researching, categorizing and cataloging allows the government to freeze the U.S. funds of identified FTOs and makes members and representatives of those groups ineligible for U.S. visas. It is a criminal offense for U.S. citizens or persons within U.S. jurisdictions knowingly to provide material support or resources to an FTO (U.S. Department of State 2000, p. v).

GENERAL KNOWLEDGE ABOUT TERRORISM Many years ago, Hacker (1976) differentiated terrorists into ‘criminals, crusaders, and crazies’ (Simmons and Mitch 1985). Criminal activities are those based primarily on personal gain for the perpetrator(s). Crusading refers to terrorism that attempts to support social or political causes. Crazies refers to those perpetrators whose violence or extortion arises from highly personalized, often delusional, roots that, although sometimes seemingly related to social causes or personal gain, have more to do with mental disorder than with the real world. Hacker’s classification is still useful today, given a few caveats, and helps define some of the roles psychiatrists and other mental health professionals should, or should not, assume in the field of terror-violence. Troini (1999) describes several categories of terror (criminal, irrational, political, state, religious, and ethnic/ cultural/tribal) and derives a typology for terrorism against a state: 1 Resistance to colonial rule (e.g., recently in Cyprus, Algeria, and Palestine). 2 Separatism (the desire to create a group’s own state). 3 Internal-Political actions to control the state (e.g., revolutionary or quasi-revolutionary actions by the

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Irish Republican Army or – before they succeeded – Fidel Castro or Mao Tse-Tung). 4 Anarchist-Ideological actions to destroy the state system (e.g., 1960s acts of the U.S. Weather Underground). 5 Support for external takeover (e.g., in Korea during the 1950s or Vietnam in the 1960s). The success of a terrorist act is often measured not by number of casualties, but by its psychological effect on the larger population (Applewhite and Dickins 1997). In addition, it may preoccupy a government and provoke governmental response. Terrorism can thus serve myriad functions, including publicity, displaying power, demonstrating government weakness, manipulating government and citizens, increasing repression (through either direct action or government reaction), revenge, and broader effects such as economic sabotage (e.g., by discouraging foreign tourism and investments). Domestic terrorism by U.S. citizens may involve any of Hacker’s categories (above), but we will focus on violence on behalf of some social cause. Such acts include the 1995 Oklahoma City Federal Building bombing, bombings or ambushes at abortion clinics, so-called eco-terrorism carried out against companies (including relatively minor acts such as tree-spiking), and antivivisectionist or ‘animal rights’ extremists (Skolnick 1992; Report to Congress 1993; Teasenfitz 1999–2000). Foreign terrorism within the U.S. usually appears crusader-like (i.e., political); however, one should note that much terrorist activity is simply criminal, carried out by profiteering intermediaries (e.g., Osama bin Laden’s group in the New York World Trade Center bombing) at the order of a political entity that finances the act. Thus, they may be thought of as simply heinous criminal acts of the direct perpetrators rather than arising from any ‘political’ or pseudo-altruistic motivation.

Extent of the problem Although U.S. civilians are insulated from most effects of terrorism, injury or death from foreign terrorist acts have become a fairly frequent occurrence (Clark 1998). The victim may be part of a larger U.S. target (cf., the 2000 bombing of the USS Cole in Yemen), sought out individually, or caught coincidentally in a non-U.S. target. In 1999, according to the most current U.S. statistics available, the number of individuals killed declined from the prior year because there were no mass casualties; the number of incidents, however, rose. In 1998, 741 U.S. citizens were killed, and 5952 wounded, in 274 terrorist attacks. In 1999, 706 died and 233 were wounded in 392 incidents (an increase of 43 per cent in the number of incidents) (US Department of State 2000, p. 1). For some forms of terrorism, such as clinic bombings, the perceived threat is much greater than the actual danger. The ancient adage ‘Kill one, scare 10 000’ still works well to frighten, and thus influence or control with little terrorist

expenditure. There is growing concern, however, about the realistic (as contrasted with ‘perceived’) threat to large numbers of people. Much of that concern comes from the availability, portability, affordability, and ‘importability’ of nuclear and biochemical weapons. The ‘scare’ value of real and implied threats is increasingly accompanied by the realistic prospect of great destruction.

State-sponsored terrorism Far more people have been killed by their own governments in recent decades than by either acts of war or non-state-sponsored terrorism. Wherever one draws the distinction between terrorism and other forms of violence, terrorizing and slaughter of citizens by governmentauthorized groups is an enormous problem, especially in developing countries. Although the so-called ‘death squads’ and other excesses of established governments in, for example, Haiti and apartheid-era South Africa garner much media attention, it is often post-revolution governments that, for whatever reasons, wreak the most havoc on their people [cf., Mozambique (Nordstrom 1998), Argentina (Hollander 1992), Guatemala (Melville and Lykes 1992; Summerfield 1997), and Uganda (Rummel 1994)]. The example closest to the U.S. is not postrevolutionary, however, and involves abuses of Guatemalan refugees in a relatively isolated part of Mexico (apparently authorized by local, not federal, Mexican officials) (Miller 1996).

Children It is often difficult to separate war from terrorism, and thus create some difference between their civilian victims. Modern warfare in all its variants, including terrorism and guerilla tactics, kills more civilians than soldiers (Troini 1999). To the victim, it does not matter whether the source of injury was ‘war’ or not, although the form of injury and ability to predict danger is often different for that which most people would call ‘terrorism.’ Husain (1999) estimates that in the past decade, two million children have been killed, four to five million disabled, twelve million left homeless, over one million orphaned, and ten million severely psychologically traumatized as the result of terrorism, war, and guerilla tactics. Horrible examples abound. In the Burundi Tutsi and Hutu conflict, virtually every Rwandan girl that survived an attack was raped, and those who became pregnant were then ostracized by their families and communities. This led in turn to many abandoned babies and suicides. In Bosnia, snipers aiming at small groups of adults and children would shoot the children first, ‘for when you lose a parent, you lose the past; when you lose a child, you lose the future.’ Children in Sarajevo became afraid of the light rather than the dark, because in the light one could

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be seen and shot. Childhood resiliency can help somewhat: many children use magical thinking to perceive themselves as self-styled artillery experts, then use the perceived expertise to reassure themselves about the proximity of artillery and create a feeling of control over their lives. In Stockholm, Sweden, very young refugee children from Chile and the Middle East were studied prospectively during their first eighteen months of exile. Almost half were rated as having poor mental health early in the study – a proportion which did not improve very much over the next eight months. Political violence in the home country and stress in the family sphere in exile were identified as the major causes (Hjern, Angel, and Jeppson 1998). Baker and Shalhoub-Kevorkian (1999) reviewed studies of political and military trauma on children, focusing on Palestinian victims, and the relationships among their traumata, cultures, and personalities. Boothby and Knudsen (2000) report that some 300 000 children are actively participating in thirty-six ongoing or recently ended wars. In Sierra Leone, 80 per cent of all rebel soldiers are between seven and fourteen years old. In the Cambodian hostilities that nominally ended in the early 1980s, one-fifth of the wounded soldiers were between ten and fourteen years old.

Biomedical terrorism Medicine, and to some extent the mental health professions, has a role in prevention, treatment, and amelioration of chemical and biological threats, often through military and other government resources. There are many relevant reports in the emergency medicine and infectious disease literature (Kadivar and Adams 1991; Carus 1998; Sharp et al. 1998; Henderson 1999; Benjamin 2000; CDC Strategic Planning Workgroup 2000; Leggiadro 2000; Pellerin 2000; Wheelis 2000). Specific psychiatric or psychological aspects of chemical/biological terrorist threat are less prominent in the literature; however, one may refer to Holloway et al. (1997) and DiGiovanni (1999).

BIOTERRORISM AND ASSAULT WITH CHEMICAL AGENTS These have assumed a very high priority in terrorism discussions, in part because they are a substantial and worsening danger, possess a huge potential for damage, and involve insidious subtlety. Some chemical-biological terrorist agents and strategies are aimed directly at people. For example, during the late 1990s members of Shoku Asahara’s Japanese cult, Aum Shinrikyu, apparently released Serin nerve gas in a Tokyo subway, killing ten people and injuring over five thousand. Others are aimed at limiting food and water supplies (e.g., crop damage in Third-World countries).

MEDICAL/EPIDEMIOLOGIC PREPAREDNESS AND ORGANIZED RESPONSE Clinicians’ familiarity with the nature and effects of chemical and biological weapons is important for dealing with limited attacks. City disaster plans coordinate medical and other facilities and professionals in ways outside the purview of this chapter. Research and limited human experience with, for example, some forms of nerve gas have led to acute treatment and public health recommendations. Longer-term consequences have been reviewed by, for example, Fullerton and Ursano (1990) and Simon (1997). In the authors’ view, the threat from chemical or biological weapons designed for mass destruction is far greater. Broad release of certain toxins or infectious agents would probably be devastating in our present state of knowledge and preparedness (and perhaps in any event). Prevention of such an attack is very difficult, and rests largely on political-diplomatic, covert intelligence, and military factors rather than medical or mental health expertise.

Terrorist ‘psychology’ Since there are many kinds of terrorist behavior, and most terrorists do not demonstrate serious psychopathology, it is a mistake to search for a single personality type or uniform ‘terrorist mindset’ without defining a particular kind of activity. If we limit our comments to organized, quasi-political groups (and eliminate activities that are frankly psychotic, simply criminal, and/or motivated by individual revenge), we may note that people with particular personality traits and tendencies are disproportionately drawn to terrorist roles or careers. Most, of course, are so generic as to be useless for early predictions of terror-violence behaviors, but it is useful to monitor known individuals or groups for conditions which are correlated with destructive action. Those who are actionoriented, aggressive, stimulus hungry, excitement seeking, and externalizing are associated with a greater likelihood of overt action. Other kinds of people often support group efforts, making eventual action possible but not participating directly in it. The personality traits most often seen are narcissistic, antisocial (including the truly psychopathic), borderline, and paranoid. The Japanese FTO United Red Army stated that ‘We intend to recruit young people who have lost hope in living, and their families, as well as in society. We want their explosive energy.’ One analysis of their known members indicated that 25 per cent had lost one or both parents by the age of fourteen, with the loss of father being most disruptive. Of those whose parents were still living, 79 per cent reported severe conflict with them. Over 33 per cent had prior juvenile court convictions (Troini 1999). Members of FTOs – as contrasted with their leaders – often submerge their own identities into that of the group. Such organizations routinely have little tolerance for

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differences of opinion about goals and actions; disagreement can be dangerous (cf., the saying that ‘the best way to get rid of doubt is to get rid of the doubters – by way of the graveyard’). In addition, the group, by ironic definition, needs to commit acts of terrorism in order to justify its existence. This suggests a group dynamic which presses for the perpetuation, and often escalation, of violence. There is a small literature which describes conversion of the victims of war or terrorism themselves into instruments of violence for terrorist leaders. Post (2000) outlines the trial of a former Palestinian refugee recruited by the Abu Nidal organization to participate in the bombing of an Egyptian airliner. He discusses the virtual intractability of generational transmission of nationalist-separatist hatred and revenge. The phenomenon of ‘groupthink’ (Janis 1972) also operates in such organizations. Not being caught (or being quickly released) can lead to omnipotent illusions of group invulnerability, which leads in turn to excessive optimism and excessive risk taking by members. False presumptions of group ‘morality’ are often counterbalanced with one-dimensional perceptions of the ‘enemy’ as evil, which subsidizes the perspective that violent behavior, even against innocent victims, is justified.

ROLES FOR MENTAL HEALTH PROFESSIONALS Victim assistance Work with victims is by far the largest role for mental health professionals. Much of the necessary skill and many of the syndromes encountered, such as posttraumatic stress disorder, are already part of the average clinician’s experience. Other situations require some degree of special training and sensitivity (some extensive, such as for intensive care of torture victims).

INDIVIDUAL VICTIMS Victim response to terror-violence is not random; there are patterns which, once understood, can contribute to more effective care. Applewhite and Dickins (1997) discuss the value of incorporating critical incident debriefing and experienced mental health consultation to military command when faced with terrorist acts against military targets, and integrating them into comprehensive counterterrorist programs. General disaster response principles apply to most situations, including preparedness, understanding traumatic stressors and disaster response, and recognizing high-risk groups among current victims (Norwood, Ursano, and Fullerton 2000). Acute reactions to sudden terrorist acts are not unlike those associated with other community disasters. Psychiatrists and other mental health professionals often participate in community response teams. Brief, effective

training in victim support is available from a number of organizations. One should realize that the best efforts are those that are expertly coordinated, cooperate with local emergency response agencies, and lay the groundwork for more lasting support (such as the ongoing presence of community mental health services after the crisis has passed). Victims of very recent violence require special understanding. A gentle approach, offering basic help such as food and a soft word, is the best place to start. Rapid-fire questioning of the sort frequently seen in debriefing (especially in movies or on television) should be avoided. Therapeutic actions that depend on the therapist’s identifying with the victim (i.e., assuming he or she understands the victim’s feelings and can act accordingly) are often ill-advised. Experienced counselors may be very helpful, but they must have good counseling skills, not merely ‘victim’ skills (Kleinman 1989). The care of hostage victims and persons who have been tortured is particularly specialized. The authors strongly recommend special study for those faced with such patients, whether their trauma is recent or in the distant past (e.g., holocaust survivors) (Winther and Petersen 1988; Van der Ploeg and Kleijn 1989; Thompson 1991). Civilians who have experienced war or terrorism firsthand, such as some children in Israeli schools and kibbutzim, Southeast Asian villagers, and refugees from other battle-torn areas are also complex, having suffered both acute and chronic terror (Moutet 1984; Curran 1988), which may be perceived – rightly or wrongly – as perpetrated by the state itself (Corrado and Tomkins 1989; Suarez-Orozco 1990; Rummel 1994). They often respond well to specific interventions described elsewhere (Dreman 1989). Other things being equal, intensity of trauma appears to be directly related to the intensity and duration of its effects. Desivilya, Gal, and Ayalon (1996) interviewed and tested Israeli survivors of a terrorist hostage incident that involved over 100 Israelis, primarily adolescents, some seventeen years after the event. Their findings suggest that very intense victimization, particularly in terms of physical injury, had the strongest effect on long-term adjustment compared to moderate or minimal victimization during the same extended traumatic event. On the other hand, many victims have fairly good emotional recovery from sudden physical injury of terrorviolence. In a follow-up survey of 254 French survivors of terrorist attacks, posttraumatic stress disorder (PTSD) was present in 11 per cent of uninjured victims, only 8 per cent of the moderately injured, and 31 per cent of severely injured victims. There was no difference in the incidence of major depressive disorder (about 13 per cent for all groups). Age and sex did not discriminate psychiatric diagnoses (Abenhaim, Dab, and Salmi 1992). In ordinary disasters, the majority of victims recover without long-lasting substantial posttraumatic effects (Ursano, Fullerton, and Norwood 1995), although media exposure and personal

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injury litigation can exaggerate both perceived symptoms and claims of distress.

VICTIMS’ FAMILIES Families of victims are also victims (Dreman and Cohen 1990). Families of hostages, for example, suffer acute trauma and sometimes chronic adaptive syndromes. Release of hostages who have been held for months or years brings a new and unexpected set of problems, including guilt about some feelings and behaviors while the victim was away, disruption of the family equilibrium established in the victim’s absence, and denial of the many issues that must be faced once release is secured. Divorce is extremely common after a hostage-spouse returns. The offspring of victims of war and concentration camps bear stigmata that may or may not be seen as symptoms. There is a large literature that describes, for example, the development and upbringing of children of holocaust survivors (Dreman 1989).

MILITARY AND LAW ENFORCEMENT PERSONNEL Law enforcement professionals, military personnel and others who deal with terrorism and its victims also become victims. Qualified post-shooting counseling and other forms of intervention by experienced professionals, sometimes as simple as stress management, are important.

SOCIETAL VICTIMS Large segments of the population who are not physically touched by terror-violence may nonetheless bear substantial effects (Merari and Friedland 1985; Austin 1989; Reid 1989). Fears of airplane hijacking or bombing, government (or self-imposed) travel restrictions (even when the probability of injury is low), restricted exchange of scientific information, and bias against entire countries and cultures associated – perhaps only by the news media – with terrorism all contribute to a general feeling that the world is a dangerous place, in which one must constantly be on guard. Reasonable caution notwithstanding, such feelings are reminiscent of the Eriksonian choice of basic trust versus mistrust (Erikson 1963). The former implies a realistic, positive outlook and social adaptation; the latter is associated with great limitation of one’s views and opportunities.

Law enforcement training and support Qualified mental health professionals can offer basic clinical training to law enforcement and military response teams that may be useful in crisis intervention, assessment of perpetrators and victims, victim support, stress management, departmental risk management, and a number of other areas. The reader should note that this does not mean

clinicians should become field intervenors or negotiators, or that police officers will acquire the skills and experience of clinicians. Our purpose is to impart basic knowledge that will be useful to field personnel during hostage or terrorist incidents. Experienced law enforcement and military professionals often possess considerable intuition and psychological skill. On the one hand, the teacher should not assume that he or she always knows more than the student; on the other, one should not mistake bravado or ‘street smarts’ for deeper knowledge. Clinicians are occasionally called upon to assess perpetrators in absentia in the midst of incidents (such as hostage situations) or between crimes (e.g., to help ‘profile’ serial murderers or rapists). One should be cautious about inferring psychopathology in persons who are not available for examination, even when supplied with background information. If the person is a psychiatric patient for whom records are available (or perhaps one’s own patient), the clinician’s inference may be fairly accurate; however, applying clinical knowledge to real-life crisis settings is not as straightforward as one might assume. Predicting specific behavior is, as most professionals know, primarily the stuff of movies and other fictions. Some professional profiling teams, such as those trained and maintained by the Federal Bureau of Investigation (FBI) and a few private groups, have limited success in identifying perpetrators and assessing and predicting criminal behavior; however, they draw extensively from social and criminological expertise and experience, not just clinical psychology. The issue of ‘agency’ is very important when working with police and the military. Is the doctor or counselor an agent of the organization? The person being seen? Neither? Therapists who work within law enforcement and military organizations must be familiar with – and accept – their particular rules and expectations (e.g., regarding confidentiality and others’ access to clinical information). The limits of doctor–patient/client privacy, for example, must be discussed at the beginning of evaluation or treatment, whether with victims, perpetrators, defendants, or staff.

Perpetrator evaluation and treatment It is important to note first that this section refers to post-arrest evaluations, and not necessarily to field consultations. One should follow the same principles and procedures in perpetrator evaluations as in other forensic matters with similar presentations: be aware of the uses to which evaluation findings may be put; notify the evaluee of one’s intent and any constraints on confidentiality, and the like. If the person has recently been arrested, the clinician should verify that counsel has been retained and the evaluee’s rights have been appropriately protected. Cases involving terrorism are often sensationalized in the media. Being asked to participate in them may be

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flattering, and may feed one’s narcissism. Evaluators should take pains not to treat suspected terrorist defendants as ‘special’ (either positively or negatively), to work professionally, and to accord them the rights and forensic procedures appropriate for all defendants. One should be careful not to step outside the bounds of his or her expertise or ethics (Soskis 1983a). Forensic mental health professionals working within law enforcement, intelligence agencies, or the military should be familiar with the parameters of their sometimes-unique roles, but nevertheless retain their posture as ethical clinicians. Terrorists sometimes require psychiatric or psychological treatment in jails or prisons. They should be treated by someone other than a person who is evaluating them for a lawyer or court, in order to avoid conflict of interest and protect the legal usefulness of the forensic evaluation (Reid 1998). Treatment itself is addressed elsewhere, in the chapter(s) on correctional psychiatry.

Roles to avoid Psychiatrists and other mental health professionals occasionally work with military and law enforcement teams, with duties generally consistent with their clinical traditions and expertise. In some parts of the world, they are also trained for, and given, roles such as interrogator or hostage negotiator, outside their usual professional tenets (Soskis 1983a; Soskis 1983b). The reader should be aware of roles that mental health professionals should almost always avoid. Psychiatrists and psychologists are almost never law enforcement officers. If one wants to be a policeman, one should change career. Just as a law enforcement posture is not very useful in clinical settings, neither is it appropriate to ‘play cop’ when situations call for law enforcement expertise and professionalism. It is a seductive fantasy for some, but a potentially dangerous one. Physicians and other clinicians may legitimately participate in military and law enforcement operations; however, it is very important that our roles be clear and within carefully developed ethical guidelines (Soskis et al. 1982). This is not merely a matter of weighing one ethic against another, or of replacing traditional ethics with situational ones. If a police or military commander asks a psychiatrist what drug might be surreptitiously placed in a hostage-taker’s food to sedate him, the doctor must not be tempted by the so-called ‘greater good’ of ‘protecting innocent hostages.’ The ‘greater good’ may or may not be truly greater, and may or may not really protect the hostages. The only certainties are the immediate ethical breach and the slippery slope on which the professional then finds himself. Role confusion is another reason to separate law enforcement from clinical activity: Dr. A. had an interest in military and police work which was initially expressed in collecting weapons and

enjoying a law enforcement ‘ride-along’ program. When the police department developed a citizen auxiliary group, he joined and participated in such things as crowd control and emergency traffic duty. He eventually had red and blue lights installed behind the grill of his car. A few months later, he was censured for trying to make late-night hospital rounds wearing his uniform and handgun. Several years later, he was censured for leaving a handgun in plain sight in his car, while parked on the grounds of a government hospital. Dr. B. introduced himself to one of the authors at a professional meeting by saying he was a ‘member of the (city) S.W.A.T. team.’ After some discussion, it became clear that he had been a police consultant and liked to view himself as part of the terror-violence and hostage response team. He said he was carrying a concealed handgun during the meeting, and implied that he had to be prepared for dangerous duty at all times. A later conversation with a local law enforcement executive revealed that Dr. B. was not authorized to carry the weapon (that state had no concealed-carry permit statute), and he was considered something of a ‘kook’ by area cops.

CONCLUSION Terrorism is a complex topic that, contrary to a few published papers and much media attention, supports few absolutes and defies ‘unified’ theories of cause or cure. Many of its facets are irrelevant to psychiatry and the other mental health professions, and vice versa, but there are clinical and forensic roles for psychiatrists and other qualified mental health professionals. The authors would caution colleagues to pay particular attention to special training needs, issues of role and agency (i.e., what and whom does the clinician represent?), and ethics. The canons of our professions and the mantle of professional identity cannot be shed without serious consequences.

REFERENCES Abenhaim, L., Dab, W., Salmi, L.R. 1992. A study of civilian victims of terrorist attacks (France 1982–1987). Journal of Clinical Epidemiology 45, 103–9. Applewhite, L., Dickins, C. 1997. Coping with terrorism: the OPM-SANG experience. Military Medicine 162, 240–3. Austin, W.T. 1989. The impact of terrorism upon Philippine villagers. International Journal of Offender Therapy and Comparative Criminology 33, 103–19. Baker, A., Shalhoub-Kevorkian, N. 1999. Effects of political and military traumas on children: the

Terrorism and forensic psychiatry 667 Palestinian case. Clinical Psychology Review 19, 935–50. Benjamin, G.C. 2000. Chemical and biological terrorism: planning for the worst. Physician Executive 26, 80–2. Boothby, N.G., Knudsen, C.M. 2000. Children of the gun. Scientific American, June, 62–5. Carus, W.S. 1998. Biological warfare threats in perspective. Critical Reviews in Microbiology 24, 149–55. CDC Strategic Planning Workgroup. 2000. Biological and chemical terrorism: strategic plan for preparedness and response. Recommendations of the CDC Strategic Planning Workgroup. Morbidity and Mortality Weekly Report (MMWR) 49(RR-4), 1–14. Clark, M.A. 1998. The pathology of terrorism. Acts of violence directed against citizens of the United States while abroad. Clinical and Laboratory Medicine 18, 99–114. Corrado, R.R., Tomkins, E. 1989. A comparative model of the psychological effects on the victims of state and anti-state terrorism. International Journal of Law and Psychiatry 12, 281–93. Curran, P.S. 1988. Psychiatric aspects of terrorist violence: Northern Ireland 1969–1987. British Journal of Psychiatry 153, 470–5. Desivilya, H.S., Gal, R., Ayalon, O. 1996. Extent of victimization, traumatic stress symptoms, and adjustment of terrorist assault survivors: a long-term follow-up. Journal of Traumatic Stress 9, 881–9. Dreman, S. 1989. Children of victims of terrorism in Israel: coping and adjustment in the face of trauma. Israeli Journal of Psychiatry and Related Sciences 26, 212–22. Dreman, S., Cohen, E. 1990. Children of victims of terrorism revisited: integrating individual and family treatment approaches. American Journal of Orthopsychiatry 60, 204–9. DiGiovanni, C., Jr. 1999. Domestic terrorism with chemical or biological agents: psychiatric aspects. American Journal of Psychiatry 156, 1500–5. Erikson, E.H. 1963: Childhood and Society, 2nd edition. New York: W.W. Norton. Fullerton, C.S., Ursano, R.J. 1990. Behavioral and psychological responses to chemical and biological warfare. Military Medicine 155, 54–9. Hacker, F.J. 1976: Crusaders, Criminals, Crazies: Terror and Terrorism in Our Time. New York: Norton. Henderson, D.A. 1999. The looming threat of bioterrorism. Science 283, 1279–82. Hjern, A., Angel, B., Jeppson, O. 1998. Political violence, family stress and mental health of refugee children in exile. Scandinavian Journal of Social Medicine 26, 18–25. Hollander, N.C. 1992. Psychoanalysis and state terror in Argentina. American Journal of Psychoanalysis 52, 273–89; discussion 291–2.

Holloway, H.C., Norwood, A.E., Fullerton, C.S., Engel, C.C., Jr., Ursano, R.J. 1997. The threat of biological weapons. Prophylaxis and mitigation of psychological and social consequences. Journal of the American Medical Association 278, 425–7. Husain, S.A. 1999. Stress reactions of children and adolescents in times of war. Psychiatric Times, June, p. 54. Janis, I. 1972: Victims of Groupthink. Boston: Houghton Mifflin Company. Kadivar, H., Adams, S.C. 1991. Treatment of chemical and biological warfare injuries: insights derived from the 1984 Iraqi attack on Majnoon Island. Military Medicine 156, 171–7. Kleinman, S.B. 1989. A terrorist hijacking: victims’ experiences initially and nine years later. Journal of Traumatic Stress 2, 49–58. Leggiadro, R.J. 2000. The threat of biological terrorism: a public health and infection control reality. Infection Control and Hospital Epidemiology 21, 53–6. Melville, M.B., Lykes, M.B. 1992. Guatemalan Indian children and the sociocultural effects of governmentsponsored terrorism. Social Science and Medicine 34, 533–48. Merari, A., Friedland, N. 1985. Social psychological aspects of political terrorism. Applied Social Psychology Annual 6, 185–205. Miller, K.E. 1996. The effects of state terrorism and exile on indigenous Guatemalan refugee children: a mental health assessment and an analysis of children’s narratives. Child Development 67, 89–106. Moutet, H.P. 1984. Reactions Psychiatriques au Terrorisme Urbain. Soins, December (443–444), 35–45. Nordstrom, C. 1998. Terror warfare and the medicine of peace. Medical Anthropology Quarterly 12, 103–21. Norwood, A.E., Ursano, R.J., Fullerton, C.S. 2000. Disaster psychiatry: principles and practice. Psychiatric Quarterly 71, 207–26. Pellerin, C. 2000. The next target of bioterrorism: your food. Environmental Health Perspectives 108, A126–9. Post, J.M. 2000. Terrorist on trial: the context of political crime. Journal of the American Academy of Psychiatry and the Law 28, 171–8. Reid, W.H. 1989. Terrorism and the social sciences. Violence, Aggression and Terrorism (Israel) 3, 101–17. Reid, W.H. 1998. Treating clinicians and expert testimony. Journal of Practical Psychiatry and Behavioral Health 4, 121–3. Report to Congress. 1993. Report to Congress on the extent and effects of domestic and international terrorism in animal enterprises. Physiologist 36, 207, 247–59. Rummel, R.J. 1994: Death by Government. New Brunswick, NJ: Transaction Press.

668 Special clinical issues in forensic psychiatry Sharp, T.W., Brennan, R.J., Keim, M., Williams, R.J., Eitzen, E., Lillibridge, S. 1998. Medical preparedness for a terrorist incident involving chemical or biological agents during the 1996 Atlanta Olympic Games. Annals of Emergency Medicine 32, 214–23. Simmons, C.H., Mitch, J.R. 1985. Labeling public aggression: when is it terrorism? Journal of Social Psychology 125, 245–51. Simon, J.D. 1997. Biological terrorism. Preparing to meet the threat. Journal of the American Medical Association 278, 428–30. Skolnick, A.A. 1992. Terrorists strike again as US Congress considers bills to outlaw attacks on animal research centers. Journal of the American Medical Association 267, 2577–8. Soskis, D.A. 1983a. Behavioral scientists and law enforcement personnel: working together on the problem of terrorism. Behavioral Sciences and the Law 1, 47–58. Soskis, D.A. 1983b: Law enforcement and psychiatry: forging the working alliance. In Eichelman, B.S., Soskis, D.A., Reid, W.H. (eds), Terrorism: Interdisciplinary Perspectives. Washington, DC: American Psychiatric Press, 129–45. Soskis, D.A., Apter, N.S., Eichelman, B.S., Lion, J.R., Reid, W.H., Symonds, M. 1982. Ethical dimensions of psychiatric intervention in terrorism and hostage situations. American Journal of Psychiatry 139, 1529–30. Suarez-Orozco, M.M. 1990. The heritage of enduring a ‘dirty war’: psychosocial aspects of terror in Argentina 1976–1988. Journal of Psychohistory 18, 469–505 (special issue).

Summerfield, D. 1997. The Mayas of Guatemala: surviving terror. Lancet 349, 130. Teasenfitz, J. 1999–2000. Managing the threat of terrorism in abortion facilities. Journal of Healthcare Protection Management 16, 25–30. Thompson, J. 1991. Kuwait Airways hijacking: psychological consequences for survivors. Stress Medicine 7, 3–9. Troini, J.E. 1999: The Psychology of Terrorism. REQ 511 Counter-terrorism Policy and Intelligence Issues Course. Joint Military Intelligence College, Washington, DC. Troini, J.E. 2000: Understanding the Psychology of Terrorism for the Counter-Terrorism Intelligence Analyst. Masters Thesis, Joint Military Intelligence College, Washington, DC, 15. United States Department of State. 2000: Patterns of Global Terrorism, Washington, DC, April. Ursano, R.J., Fullerton, C.S., Norwood, A.E. 1995. Psychiatric dimensions of disaster: patient care, community consultation, and preventive medicine. Harvard Review of Psychiatry 3, 196–209. Van der Ploeg, H.M., Kleijn, W.C. 1989. Being held hostage in The Netherlands: a study of long-term after-effects. Journal of Traumatic Stress 2,153–69. Wheelis, M. 2000. Investigating disease outbreaks under a protocol to the Biological and Toxin Weapons Convention. Emerging Infectious Diseases 6, 595–600. Winther, G., Petersen, G.O. 1988. Group-psychotherapy of terror victims. Nordisk Psykiatrisk Tidsskrift 42, 55–9.

69 Torture and brainwashing RAHN KENNEDY BAILEY New accounts of torture and brainwashing came to the forefront during the 2000 presidential campaign, when Arizona Senator John McCain described his experiences as a Vietnamese prisoner of war. His experiences while imprisoned impacted the American consciousness with their vividness and horror. However, these experiences are not unique in the human experience, and history is full of such similar accounts. Historically, humans in their attempts to control others’ behavior have developed unimaginable types of physical torture (e.g., the rack, guillotine, crucifixion, and impalement) (Cunningham and Cunningham 1997). Despite cultural and human evolution, these practices have continued in the human experience for years. The accounts of psychological torture and coercion as well as the resultant psychological/psychiatric disturbances of torture are similarly of recent concern. The emergence of cults and the study of those victims have increased the knowledge base in this area. The study of cult victims has led to the development of evidence that people who seemingly voluntarily enter into these controlled situations, suffer psychological, as well as physical, financial, and other harms as a consequence of their having been manipulated, influenced, and controlled (West and Langone 1985). Psychological methods of captors as well as the subsequent psychological disturbances associated with torture will be further examined in the ensuing sections.

HISTORICAL EVIDENCE OF MANIPULATION AND CONTROL Survivors of torture provide fertile research in the area of the psychopathology. Survivors of the Holocaust have left behind case examples, which have been analyzed by the psychiatric and psychological community for over fifty years. More recently, survivors of Southeast Asian torture and manipulation have provided further case studies of the phenomenon, showing they have been a highly traumatized group, suffering from major affective disorders and posttraumatic stress disorders (Mollica, Wyshak, and Lavelle 1987).

Amnesty International regularly identifies nations and regimes that are engaging in the torture of prisoners, showing torture is routinely used while detaining individuals, even before they are charged or sentenced. These abuses can range from deliberate neglect and overall mistreatment, to exacting physical torture (including blows to the head, prolonged blindfolding, forced awakenings, electrical shocks, burns, near-drowning, rupturing the eardrums, amputations and other mutilations, starvation, sexual abuse, sham execution), and threats of death. Some regimes merely use threats of torture to control entire populations. Some groups today engage in political terrorism to accomplish their goals. With events now occurring worldwide, affecting even the population of the United States as evidenced by the recent World Trade Center bombing in 1993 and total destruction in 2001, and bombing of the Federal Building in Oklahoma City, Oklahoma. Terrorist groups engage in assassinations, random bombings, suicide missions, biological/disease warfare and hostage taking. The survivors of these violent occurrences (like torture victims) are found to suffer from physical, mental, emotional, and behavioral problems that are difficult to understand and/or treat (Basoglu et al. 1997).

Brainwashing The American journalist, Edward Hunter coined the term brainwashing, in 1951 from the Chinese ideographs hsi nao. These words literally mean to ‘wash brain.’ Brainwashing was also used by Hunter to describe the psychosocial indoctrination technique known as szuhsaing kai-tsao. This is in reference to the thought reform method used by Mao Tse-Tung to eliminate from the Chinese people all forms of ‘wrong thinking,’ and instead, convert them to communism or to be sympathetic to Marxist values and beliefs (Lifton 1961). Torture, as previously described, was not an adjuvant factor in this process of thought reform. During the 1950s, however, the American use of the term brainwashing began to encompass a wider range of meanings, referring to any process used to change beliefs, even via force.

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Similarity to cult behavior Dependency on the captor, particularly with regard to the flow of information and interpersonal support, is a significant technique used in the psychological control or influence of cults over their victims, resulting in totally separating a recruit from his social support network (West 1989). The similarities in the methods used by the Chinese communists and cults are remarkable (Schein 1961), with the following techniques being used on both prisoners of war and cult new recruits: communication channel control; sleep/food deprivation; self-degradation; induction of uncertainty; alteration of leniency and harshness; peer pressure; repetitive tasks; insistence that survival depends on group identification; and symbolic acts of renunciation.

THE PSYCHOLOGICAL EFFECTS OF TORTURE Survivors of such conditions are likely to experience a wide range of physical and psychiatric disorders subsequent to the trauma, and are in general at increased risk for a variety of physical illnesses, including infectious diseases, malignancies, strokes, and heart disease. Neurological and sensory symptoms, gastrointestinal complaints, pain of the musculoskeletal system and various cutaneous signs are also manifested. In addition, virtually all victims display significant symptoms of posttraumatic stress disorder (Allodi 1991). Child and adolescent victims display a wide variety of manifestations from torture and brainwashing. The child frequently re-enacts the traumatic event or similar events while playing. They may display a distorted sense of time, have visual disturbances, express a pessimistic view of the future, suffer sleep disturbances, and display apprehension in addition to other personality changes, resulting in problems with development processes. Civilian victims of terrorism, like prisoners of war, often become dependent upon the captor for physical and psychological needs when in situations from which there is no escape. The ‘Stockholm Syndrome’ has been used to describe the paradoxical attachment that can develop between the captors and captives (Strentz 1980). Following an attempted bank robbery in 1974, several employees and customers were held hostage in a Stockholm bank for several days. One female hostage fell in love with a captor during the ordeal, and her feelings remained intact for a period of time after her release. Similarly, in 1975, during a thirteen-day seizure of a Dutch train by South Moluccan terrorists, a number of the hostages expressed affection for their murderous captors, coupled with a distrust of their own government’s authorities. West coined the phrase, ‘identification with the aggressor’ for this phenomenon rather than ‘Stockholm Syndrome’ (West 1964). This concept is often useful in understanding the paradoxical attitudes and behaviors, not only among former hostages,

but also battered wives, abused children, and prisoners under various conditions of captivity. These feelings of sympathy for as well as attachment to the captor, have been described by such former victims as the Italian Judge Giuseppe Digennaro, who was held by members of the Red Brigade, and Dr. Herrema, who was captured by the Irish Republican Army.

TREATMENT OF VICTIMS OF TORTURE AND BRAINWASHING Posttraumatic stress disorder has been know by various other labels throughout history, including traumatic neurosis, war neurosis, shell shock, combat fatigue, operational fatigue, and combat exhaustion (Allodi 1994). During the Civil War, the United States government first began treating soldiers who suffered from ‘nerve disease’ and ‘wounds of the nerves’ when Dr. S. Weir Mitchell devised his now famous ‘rest cure.’ In 1863, Surgeon General Joseph K. Barnes changed the War Department’s common practice of simply discharging mentally ill soldiers without making provisions for both their safety and after care. Subsequently, the government began providing funds for both asylum treatment and further care. American psychiatric casualties were first acknowledged as a major health problem during World War I, and base hospitals accepted patients in their newly created psychiatric wards. Medical care was assumed by the Veterans Administration Hospital (VAH) in 1930, and the Department of Veterans Affairs in 1989. Deutsch (1944) reported that at the start of World War II, three out of every five beds in the VAH were occupied by psychiatric disabilities.

CLINICAL CONCERNS Death, either at the hands of the captor or by suicide, is a common end of victims of captivity. For example, the incarcerated in the United States show a three- to thirteen-fold higher rate of suicide than the populace (Burtch and Ericson 1979). Indeed, prison conditions often promote isolation, dehumanization, and a general lack of social support, often leading to feelings of hopelessness, helplessness, and suicidal ideations. When combined with abuse or torture, the suicide risk dramatically rises. Thus, clinicians should be aware of the need for effective and immediate treatment immediately following the traumatic event. Clinicians should also understand that the memories of the traumatic events will never be erased, and therefore the primary focus of treatment is one of intervention to: (i) reduce the frequency and intensity of the victim’s symptoms; (ii) assist in reducing the duration of each episode; and (iii) lessen the resultant disability, thereby decreasing factors related to morbidity.

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REFERENCES Allodi, F.A. 1991. Assessment and treatment of torture victims: a critical review. Journal of Nervous and Mental Disease 179, 4–11. Allodi, F.A. 1994. Post-traumatic stress disorder in hostages and victims of torture. Psychiatry Clinics of North America 17, 278–88. Basoglu, M., Mineka, S., Paker, M., et al. 1997. Psychological preparedness for trauma as a protective factor in survivors of torture. Psychology Medicine 27, 1421–33. Burtch, B.E., Ericson, R.V. 1979: The Silent System: An Inquiry into Prisoners who Suicide and Annotated Bibliography. Toronto: Center of Criminology, University of Toronto. Cunningham, M., Cunningham, J.D. 1997. Patterns of symptomatology and patterns of torture and trauma experiences in resettled refugees. Australia New Zealand Journal of Psychiatry 31, 555–65. Deutsch, A. 1944: Military psychiatry: World War II, 1941–1943. In Hall, J.K., Zilboorg, G., Bunker, H.A. (eds), One Hundred Years of American Psychiatry. New York: Columbia University Press, 419–41.

Lifton, R.J. 1961: Thought Reform and the Psychology of Totalism. New York: W.W. Norton and Co. Mollica, R.F., Wyshak, G., Lavelle, J. 1987. The psychosocial impact of war trauma and torture on Southeast Asian refugees. American Journal of Psychiatry 144, 1567–72. Schein, E.H. (ed.). 1961: Coercive Persuasion. New York: W.W. Norton. Strentz, T. 1980. The Stockholm syndrome: law enforcement policy and ego defenses of the Hostage. Annals of the New York Academy of Science 347, 137–50. West, L.J. 1964. Psychiatry, ‘brainwashing,’ and the American character. American Journal of Psychiatry 120, 842–50. West, L.J. 1989: Persuasive techniques in contemporary cults. In Galanter, M. (ed.), Cults and New Religious Movements. Washington, DC: American Psychiatric Press, 165–92. West, L.J., Langone, M. 1985: Cultism: a conference for scholars and policy makers. Proceedings of ‘The wingspread conference on cultism.’ The Johnson Foundation, Racine, Wisconsin. American Family Foundation. Weston, MA.

70 Substance abuse and addiction MACE BECKSON, GEORGE BARTZOKIS AND ROBERT WEINSTOCK

In a society in which approximately one in five Americans will have a problem with substance abuse during their lifetime, an understanding of the basic issues of substance abuse is a necessity for forensic psychiatrists as substance dependence, abuse, and addiction may be relevant in many forensic evaluations. Because of denial by many if not most substance abusers, knowledge of this area is especially essential so that its role can be recognized.

PSYCHOACTIVE SUBSTANCES AND ‘ADDICTION’ Psychoactive substances are chemicals that affect the way an individual feels. This chapter will focus on those psychoactive substances that are abused, including alcohol, illicit drugs, and certain prescribed medications, such as painkillers. In addition to affecting mood states, psychoactive substances may have profound effects on cognition, behavior, and physiology, and therefore they influence how we function in an interpersonal and social context. Use of alcohol and other drugs can produce acute intoxication, withdrawal states, substance-induced psychiatric syndromes, and lead to syndromes of substance abuse and dependence (i.e., addiction). The commonly used term ‘addiction’ has become ever more ambiguous as it has been applied to everything from shooting heroin to playing video games and has been called ‘the troublesome concept’ (Achers 1991). The term has political and moral meaning, and reflects social modes of consumption, the limits of normative behavior, and the constitution of deviance (Quintero and Nichter 1996). The expert who communicates to judge or jury should remain sensitive to these semantic issues and specify the meaning intended.

SOCIAL HISTORY AND EPIDEMIOLOGY OF ALCOHOL AND DRUGS Mankind has utilized psychoactive substances throughout history. Examples in the United States include the heavy

use of hard liquor in colonial America; the widespread use of narcotic-containing patent medicines in the nineteenth century; the cultural embrace of the cigarette in the middle of the twentieth century; the widespread use of marijuana in the 1960s; the ‘crack epidemic’ of the 1980s; and the success of Starbuck’s coffee in the 1990s. Moral considerations have long colored the social view of alcohol and other substances of abuse. Victorians saw alcoholism as a disease of the will, while the temperance movement saw alcohol as being corrupting and evil and hence sought its outright removal from society. Largely ineffectual efforts to curb substance abuse have included the Pure Food and Drug Act of 1906, the Harrison Narcotics Act of 1914, prohibition under the Eighteenth Amendment to the U.S. Constitution and the Volstead Act of 1919, harsh criminal sentences for substance abusers, and the ongoing ‘war on drugs.’ A more detailed view of the historical and social context of substance abuse can be found elsewhere (Westmeyer 1998; Belenko 2000). The National Institute of Mental Health Epidemiologic Catchment Area study, conducted in five cities in the United States, found lifetime prevalence rates of 13.5 per cent for alcohol disorders alone, 6.1 per cent for drug disorders alone, 22.5 per cent for mental disorder alone, and 29 per cent for comorbid mental and addictive disorders (Robins and Regier 1991). It was seven times more likely for an alcoholic or drug addict to suffer from the other addictive disorder. Some 37 per cent of those with alcohol disorders and 53 per cent of those with drug disorders had comorbid mental disorder – almost five times the likelihood of the general population. Those with bipolar disorder had almost 61 per cent prevalence of comorbid substance abuse; those with schizophrenia had 47 per cent comorbidity, and those with mood disorders had 32 per cent comorbidity. In another study, among those with antisocial personality disorder, 39 per cent had definite alcoholism and 12 per cent had possible alcoholism; borderline personality had a 43 per cent prevalence of alcoholism (Cloniger, Bayon, and Przybeck 1997).

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PHARMACOLOGY Psychoactive substances are usually consumed by ingestion, sniffing, inhalation, or by intravenous injection. Characteristic pharmacodynamic and pharmacokinetic features are important in understanding the acute and chronic effects of a substance in any given individual, as well as usual patterns of use and the time window of detection in bodily fluids. In addition, it must be appreciated that there are individual differences among users based on the user’s own physiology and psychology. Furthermore, the effects of any given psychoactive substance will be influenced by the setting in which the substance is consumed, as well as the individual’s expectations (or mind ‘set’) pertaining to the psychoactive substance use. Psychoactive substances can be broadly classified as central nervous system (CNS) stimulants and CNS depressants. In such a scheme, cocaine, amphetamines (and the amphetamine-derivative Ecstasy), caffeine, and nicotine are CNS stimulants; alcohol, barbiturates, opiates, and benzodiazepines are CNS depressants (marijuana, PCP, LSD, inhalants, and anabolic steroids fall outside such a division). The specific pharmacodynamic and pharmacokinetic features of the various psychoactive substances are discussed in detail elsewhere (Hardman and Limbird 1996).

DETERMINANTS OF SUBSTANCE ABUSE Addiction is a highly complex biopsychosocial phenomenon, with a growing body of data and hypotheses reflecting research in genetics, biochemistry, animal behavior, psychology, psychotherapy, pubic health, economics, and sociology (see Lowinson et al. 1997 for more detailed discussion). Animal research has provided self-administration paradigms and the demonstration of the importance of mesocorticolimbic dopamine pathways in reinforcement in such models (Koob 2000). Addiction is theorized to be a neuroadaptational result of over-stimulation of ‘pleasure pathways’ in the CNS, in which down-regulation of hedonic brain mechanisms results in craving and relapse (Di Chiara, Acquas, and Carboni 1992). Genetic research on substance abusers is increasing; the dopamine receptor gene has been hypothesized to play a role in the development of addiction (Reich et al. 1999; Noble 2000). Substance-induced frontal lobe dysfunction has been hypothesized to explain the impairment of self-control described in addictions (Lyvers 2000). The frontal lobes are thought to provide ‘executive functions’ such as abstract reasoning, insight and judgment, planning, execution and evaluation, and inhibition of inpulses (Stuss and Benson 1986). Brain imaging studies have demonstrated acute and chronic effects of alcohol and some drugs on the frontal lobes (Volkow et al. 1994; Volkow et al. 1996). Furthermore, recent reports suggest that cocaine, which has powerful vasoconstrictive effects,

does seem to change brain morphology (Bartzokis et al. 1999; Bartzokis et al. 2002; Lim et al. 2002). These studies suggest that chronic abuse may result in reduced brain myelination in adulthood and thus contribute to deficits in impulse control (Bartzokis et al. 2002). Brain imaging studies have demonstrated acute and chronic effects of alcohol and some drugs on the frontal lobes, which are thought to provide ‘executive functions’ such as abstract reasoning, insight and judgment, planning and evaluation, and inhibition of impulses (Stuss and Benson 1986; Volkow et al. 1994; Volkow et al. 1996). Genetic research on substance abusers is increasing; the dopamine receptor gene has been hypothesized to play a role in the development of addiction (Reich et al. 1999; Noble 2000). The ‘self-medication hypothesis’ posits that individuals predisposed by biological or psychological vulnerabilities use substances as a partially successful attempt to relieve psychological suffering; a person’s preference for a particular drug involves some degree of psychopharmacological specificity (Khantzian 1999a). Case studies of substance abusers in treatment have emphasized selfregulation vulnerabilities: addicts have problems regulating feelings and demonstrate self-esteem deficits that result in an inability to get needs met or to establish satisfying relationships. They are also deficient in self-care capacities that otherwise would protect them against harm by utilizing reality-testing, judgment, control, signal anxiety, and the ability to draw cause-consequence conclusions (Khantzian 1999b). Such difficulties help elucidate how Alcoholics Anonymous successfully provides a method of recovery (Khantzian and Mack 1999). Cognitive approaches emphasize dysfunctional beliefs that revolve around drugs or alcohol; faulty thinking and maladaptive beliefs present major obstacles to quitting (Beck et al. 1993). ‘Intrapersonal factors’ have been noted to help determine aspects of the social environment, which in turn alter the probability of drug use. Furthermore, intrapersonal factors alter chances of initiation, as well as the transition from initiation to regular use of a drug, and the transition from regular drug use to problem use (Newcomb and Earleywine 1996). Such factors include personality, cognitions, affect, problem behaviors, biogenetics, demographics, and bonding (Newcomb and Earleywine 1996). Contextual variables (i.e., availability or utilization of other competing reinforcers and associated environmental constraints), in applying behavioral theories of choice, have predictive validity with regard to drug use behavior: as positive reinforcement from drug-free activities diminishes, the frequency of drug use increases (Correia et al. 1998). Economic theories of ‘rational choice’ and ‘constrained utility maximization’ have been demonstrated to apply to substance abusers, and even in the case of addictive commodities, the law of demand still applies (Chaloupka and Pacula 2000).

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ADDICTION: DISEASE OR SYMPTOM? Despite the diagnostic cataloguing of substance use disorders by national and international medical organizations, there still remains controversy about whether addiction is a symptom or disease. The American Medical Association states that drug dependencies are diseases (American Medical Association 2001a) while the American Psychiatric Association and the World Health Organization define ‘substance dependence’ as a mental disorder, preferring to avoid the much confused and stigmatized label of ‘addiction’ (World Health Organization 1992; American Psychiatric Association 1994). The disease model proclaims addiction as a ‘brain disease’ like schizophrenia and Alzheimer’s disease: this may reflect both the concept that the individual cannot and will never be able to use substances moderately (genetic or quasi-genetic neurophysiological deficiency), as well as the concept that the disease reflects the profound effects of the abused substances on the individual’s neurophysiology. Such theory fuels hope that a pharmacological treatment for addiction can be determined based on such a biological understanding. In the psychological model, alcohol and drugs are viewed as agents used by vulnerable individuals to self-regulate their internal state. The ‘cultural constructivist model’ argues that addiction is an environmentally specific, culturally relative behavioral adaptation, while the ‘political economy model’ ties the ‘diagnosis of addiction to bourgeois medicine and drug use to alienation, poverty, global markets, and labor forces that render drug use a dysfunctional form of coping in a chaotic world where instant gratification has strong appeal’ (Quintero and Nichter 1996). Finally, the utilitarian model argues that while addiction may not be a biomedical disease, providing such a designation offers sufferers legitimate access to the sick role, reduces stigma, and enables treatment (Acker 1993; Quintero and Nichter 1996). Despite a growing body of biological research and theory, there is a dearth of effective pharmacological treatment for substance dependence. In fact, addiction specialists still rely heavily on the non-medical self-help fellowships such as Alcoholics Anonymous to support the initiation and maintenance of sobriety in alcoholics and drug addicts. Extrapolation from animal models to the complexity of human behavior remains a problem, while brain imaging studies of humans, despite producing intriguing pictures, suffer from the lack of normative databases regarding human emotional states and behavioral patterns (Kulynych and Jones 2001). The specificity of dopaminergic pathways for drugs of abuse is blurred by research in which stress causes dopamine release in the rat nucleus accumbens, in seeming contradiction to the theory that such release reflects pleasure or positive reinforcement (Gray, Young, and Joseph 1997). Indeed, others have suggested that this pathway is correlated with stimulus novelty or relevance, or is involved in reward

learning or ‘incentive salience’ (Frenk and Dar 2000). Food, water, and sexual opportunity also cause mesolimbic pathway activation; furthermore, clinical addictionlike syndromes have been described for gambling, eating, and sexual behavior (Damssma et al. 1992; Young, Joseph, and Gray 1992; Wickelgren 1997). In this light, addiction has been hypothesized to be one of many related behavioral conditions that make up ‘obsessive-compulsive spectrum disorders’ (Hollander and Wong 1995; Stein 2000). Contrary to a scenario in which biological need solely dictates substance consumption, there is a negative price elasticity associated with the price of alcohol and drugs, in which substance ‘consumers’ use correspondingly less quantity when the price is raised; when inconvenience and legal sanctions raise the ‘price’ of using, consumption goes down (Chaloupka et al. 1999). Social restrictions on smoking in the workplace, in restaurants, and in bars in California has been associated with the lowest smoking rates in the country; furthermore, a growing percentage of California smokers are ‘discretionary’ smokers, who smoke only on occasion, when convenient (Gilpin, Cavin, and Pierce 1997). While the brain is an integral part of substance dependence, the proclamation by some that addiction is a ‘brain disease’ is overly reductionistic and does not explain the complexity of addiction. The psychiatric tradition calls for examining biological, psychological, and social factors as critical in understanding addictive phenomena in an individual human being. The forensic expert should function within a broad, multifaceted conceptual model, ever sensitive to the range of orientations and beliefs among lay people and experts.

DIAGNOSIS The text revision of the fourth edition of the Diagnostic and Statistical Manual (DSM-IV-TR) of the American Psychiatric Association provides operational criteria for making a diagnosis of substance dependence, the term used to encompass pathologically compulsive substance use, in the past variously referred to as addiction, habituation, physical dependence, and psychological dependence (American Psychiatric Association 2000). It should be noted that the DSM is a so-called ‘consensus’ document, meaning it is drafted by committees of experts, to reflect the current state of clinical and scientific understanding, subject to both compromise and revision. Nevertheless, the DSM-IV-TR provides the most common nomenclature. In the current DSM-IV-TR, substance dependence is described as a mental disorder. It is considered a ‘cluster of cognitive, behavioral, and physiological symptoms indicating that the individual continues use of the substance despite significant substance-related problems … there is a pattern of repeated self-administration that usually results in tolerance, withdrawal, and compulsive drug-taking

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behavior.’ The diagnosis is made when there is a ‘maladaptive pattern of substance use, leading to clinically significant impairment or distress.’ As part of such a maladaptive pattern, at least three of seven criteria must occur at any time in the same twelve-month period. The seven criteria include: tolerance; withdrawal; taking the substance in larger amounts or over a longer period than intended; persistent desire or unsuccessful efforts to cut down or control use; spending a great deal of time obtaining, using, or recovering from the substance; reducing or giving up important social, occupational, or recreational activities; continued use despite knowledge of having a persistent or recurrent physical or psychological problem caused or exacerbated by the substance. In addition, DSM-IV-TR provides criteria for a diagnosis of substance abuse, in which there is a maladaptive pattern of use manifested by recurrent adverse consequences such as risk of physical injury or legal, social, or interpersonal problems. Individuals may be diagnosed with substance abuse when they fulfill the appropriate criteria and have never met the criteria for substance dependence. There are also DSM-IV diagnoses of intoxication and withdrawal, which reflect the particular features of the syndrome for each individual substance. It is important to note that in the DSM-IV-TR, the diagnosis of substance dependence does not depend on how many drinks an individual consumes, or how frequently during the week the drug is taken. Furthermore, the dependence criteria do not include craving, a commonly used term which is difficult to define and operationalize. DSM-IV-TR utilizes a single definition to fit all substances of abuse, emphasizing the commonality of the syndromes. This choice is controversial and does not mean that there are not differences between different substances of abuse. Nor do the diagnostic criteria predict treatment response in an individual. Generally speaking, an individual with all of the criteria is more severely dependent than someone with only a few. The DSM-IV has ‘course-specifiers’ referring to early or late, partial or sustained remission. The chronicity and relapsingremitting nature of the disorder are captured by these terms. In Alcoholics Anonymous, individuals are considered either sober or relapsed (there is no partial sobriety) and the term relapse is only used when it follows a significant period of sobriety.

USE OF DSM-IV-TR IN FORENSIC SETTINGS As noted in the Introduction to the DSM-IV-TR, ‘there are significant risks that diagnostic information will be misused or understood’ … due to ‘the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis. In most situations, the clinical diagnosis of a DSM-IV-TR mental disorder is not sufficient to establish the existence

for legal purposes of a “mental disorder,”“mental disability,” “mental disease,” or “mental defect.” In determining whether an individual meets a specified legal standard (e.g., for competence, criminal responsibility, or disability), additional information is usually required beyond that contained in the DSM-IV-TR diagnosis. This might include information about the individual’s functional impairments and how the impairments affect the particular abilities in question’ (American Psychiatric Association 2000, p. xxiii). With regard to substance use disorders in particular, there may be important questions about the implications of a substance dependence diagnosis for such issues as an individual’s ability to quit using the substance; the voluntariness of drug-using and associated behaviors; and responsibility for such behaviors. These must be specifically addressed and clarified for the trier of fact. Further discussion follows in this chapter.

PROCESS ADDICTIONS AND ADDICTIVE BEHAVIORS Recently, certain compulsive behaviors have begun to be viewed by some as similar in their phenomena to psychoactive substance abuse, e.g., pathological gambling, sexual addiction, compulsive overeating. These have been called ‘process addictions’ as opposed to ‘chemical dependency’ (Burglass 1997; Goodman 1999; Rosenthal and Lesieur 1996). These behaviors have been noted to involve phenomena of euphoria, tolerance, withdrawallike syndromes, craving, and compulsive use despite adverse consequences. Just as there are self-help fellowships such as Alcoholics Anonymous for dependence on substances, there are many for dependence on various behaviors, such as Gamblers Anonymous, Sex Addicts Anonymous, and Overeaters Anonymous. Whether these behavioral problems are best classified as addictions is controversial, although history has already witnessed that important early advances in the treatment of alcoholism took place in lay, rather than medical settings. Since such problem behaviors may also present in forensic contexts they are noted here. The DSM-IV includes only pathological gambling as an official diagnosis, listed under the category of Impulse Control Disorders, as distinguished from Substance-Related Disorders.‘Obsessive-compulsive spectrum disorders’ has been proposed as a concept that links a variety of impulsive-compulsive behavioral disorders, including substance dependence and the process addictions (Hollander and Wong 1995; Stein 2000).

ASSESSMENT Unfortunately, most medical and graduate programs devote limited time to substance abuse and addiction

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issues. Psychiatrists may train in subspecialty fellowship programs approved by the Accreditation Council for Graduate Medical Education and can earn subspecialty certification from the American Board of Psychiatry and Neurology as recognition of their expertise. Other physicians, as well as psychiatrists, may earn certification by the American Society of Addiction Medicine. Psychologists may receive certification through the American Psychological Association. Alcoholics and substance abusers do not usually present themselves for diagnosis or treatment to addiction specialists. In medical settings, typically they present to primary care clinicians for complications of their addiction or unrelated medical problems. Alcoholics and addicts present to psychotherapists, counselors, or clergy for mood, relationship, and work difficulties. Failure to diagnose a substance abuse problem is common. The clinician must be sensitive to clinical indicators and make specific assessment. Alcoholics and addicts experience shame and denial regarding their substance abuse problems, which are stigmatized as reflecting poor moral character, weakness of will, or criminality. As a result, the individual may not self-identify alcohol or drugs as an issue. Furthermore, family members may themselves be in denial of the seriousness of the problem, may facilitate the addict’s continuing use, and may rescue the addict from predicaments created by the substance abuse. Of course, in some forensic contexts, intoxication or addiction may be purposefully put forth by a defendant as an excuse for an illegal act, or by a plaintiff as an example of disability or damages, or may be falsely denied because of psychological denial of the problem or a wish to hide something that could create problems in a legal setting. Assessment requires thorough review of the psychiatric and medical history, as well as mental status examination and toxicological testing. All available records and collateral sources of information should be obtained, as substance abusers are frequently a poor source for reliable history. Subjective questionnaires may be used for screening purposes (e.g., Michigan Alcohol Screening Test; Selzer 1971). Neuropsychological testing can be valuable in determining cognitive deficits in chronic abusers or in assessing for psychosis, depression, and personality disorder. Physical examination and laboratory testing can often provide evidence of the medical sequelae of chronic substance abuse. A substance abuse problem should be suspected in anyone with a psychiatric history, as substance use is more common in the psychiatric than in the general population. Mood disorders, schizophrenia, posttraumatic stress disorder, and personality disorders are commonly complicated by substance abuse. Furthermore, alcohol and drugs can produce mood syndromes, paranoia, and psychosis. Medical complications, such as gastritis or fractures, may result from alcohol and drug abuse. Addiction may result in poor or deteriorating psychosocial functioning, including marital and employment problems. There may be a family history

of substance abuse. Review of legal history may reveal arrests for driving under the influence or possession of a controlled substance. Memory, concentration, problemsolving, and abstract reasoning may be adversely affected by chronic alcohol or drug use. Toxicology utilizing urine, blood, hair, or breath may be positive for alcohol or illicit drugs and should be obtained if there is a suspicion of substance use. Similarly, other laboratory testing may reveal serum hepatitis or HIV, which can result from intravenous drug abuse, or evidence of macrocytic anemia or cirrhosis of the liver, both consistent with chronic alcoholism. Physical examination may reveal the perforated septum of the cocaine sniffer, burns on the fingers of crack smokers, the track marks of the heroin addict, or the ascites of the alcoholic.

TREATMENT AND TREATMENT PLANNING While relapse rates are high in substance abusers (25 to 97 per cent after one year), there is ample evidence that treatment works, and is comparable to treatment results found in the chronic medical disorders (Daley and Marlatt 1992; McLellan et al. 2000). Contrary to old notions, compulsory treatment, as mandated by the Court, has been found to be as effective as treatment obtained voluntarily by a highly motivated individual (Miller and Flaherty 2000). Substance abuse treatment is associated with reduction in crime (Wald, Flaherty, and Pringle 1999). Forensic psychiatrists may be called upon to make treatment recommendations regarding substance abuse problems; for example, in order to help the judge set appropriate terms of probation. A good rule of thumb is to suggest multiple modalities of treatment and surveillance. Residential treatment may be required in an addict who has not demonstrated an ability to initiate abstinence or has failed previous outpatient programs. These controlled settings provide individual and group treatment in a drug-free environment that conducts ongoing random drug testing. Day hospital treatment or intensive evening programs provide less structure, but are consistent with living at home or maintaining employment. At the completion of a residential program, such outpatient programs provide an appropriate step-down level of care. Participation in Alcoholics Anonymous, Narcotics Anonymous, or similar self-help fellowships provides an important parallel modality while an individual is in residential or outpatient treatment. Individual psychotherapy in the outpatient setting can provide additional attention to emotional or cognitive problems. Medication therapy can include, where indicated, antidepressants or antipsychotics for associated psychiatric comorbidity, or include prescription of medications specific for supporting abstinence, such as methadone for opiate dependence, or naltrexone or antabuse for alcohol dependence.

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A minimum of one year of treatment in one form or another is prudent, given the high rates of relapse within the first year of recovery. The progression from more structure to less structure over the course of the year allows the initiation of abstinence, education about addiction, development of relapse prevention skills, comfort with Alcoholics Anonymous, definition of appropriate medication regimens, education and involvement of the family, and gradual transition to greater levels of responsibility and stress in everyday life. Ongoing evaluation of the individual’s participation and success in treatment is important because of the high rates of relapse; surveillance and re-evaluations provide additional incentive. Random urine toxicological testing on a twice-weekly basis is a relatively good compromise of cost and yield in detecting drug use. Attendance of required treatment activities is also an indicator that the individual has not relapsed. Re-examination by a forensic consultant on an intermittent basis (e.g., every six or twelve months) can re-assess the participation and success of the individual in question. A comprehensive review of substance abuse treatment can be found elsewhere (Galenter and Kleber 1999).

VIOLENCE, CRIME, AND SUBSTANCE ABUSE Crime and substance abuse frequently co-occur (White 1997). Some 80 per cent of the nearly two million incarcerated adult Americans are or have been involved with drugs (Belenko 2000). It is estimated that 60 per cent of arrestees are incarcerated for drug-related charges, and 70 per cent of arrestees test positive for an illegal substance at the time of arrest (Sinha and Easton 1999). Within inmate populations, those who abuse alcohol are more likely to have been imprisoned for a violent offense; nearly three-fourths of all inmates who had ever used drugs used them in the month prior to arrest (Belenko 2000). Studies of homicides have reported that 45 to 80 per cent of offenders had been drinking at the time of the crime (Bradford, Greenberg, and Motayne 1992). Assault, robbery, and rape have a high correlation with alcohol presence in both offender and victim; marital assault has a high correlation with alcohol consumption; property crimes and arson are associated with a high rate of alcohol use (Bradford, Greenberg, and Motayne 1992). Recent research has demonstrated that the comorbidity of substance abuse with psychiatric disorders has been implicated as a particularly strong risk factor for violence. Such dually disordered individuals are more violent as a group than individuals with a psychiatric illness alone; those with a psychiatric disorder but without substance abuse are no more violent than the general population in their own neighborhood (Steadman et al. 1998; Monahan et al. 2001). What is less clear from the literature is the issue of causality. Goldstein (1989) proposed three ways that drugs

and violence could be related: (i) the pharmacological effects of the drug on the user induces violent behavior; (ii) the high cost of the drugs leads to economic compulsive violent crime to support continued use; or (iii) systemic violence reflects the nature of the drug distribution network. Substances of abuse do directly affect the human CNS: alcohol can disinhibit impulses, affect attention and cognition, impair judgment regarding risk, or increase aggressive tendencies (Quigley and Leonard 2000). Experimental research has demonstrated an increase in aggression among subjects exposed to alcohol under controlled conditions (Quigley and Leonard 2000). Stimulants can lead to paranoia and associated violence. However, in experimental settings marijuana reduces aggression, even though its use also is widespread in offender populations. A similar contradiction applies to opiates. It is possible that the illegality of these drugs is the relevant connection. Overall, the evidence that drugs induce violence is limited; the pharmacological model probably accounts for a relatively small percentage of violence, while the systemic model may be the most relevant (Collins 1990; White 1997). The so-called ‘spurious model’ holds that there is no direct causal link of substance abuse and violence, rather they may share common causes or occur coincidentally (White 1997). Young males account for a great deal of violent behavior and they also tend to be the heaviest substance abusers as a group. Both crime and substance abuse tend to occur in similar demographic settings in which delinquent behavior is the norm. Some hypothesize that drugs do not cause violence, rather violence itself leads to substance abuse as evidenced by the tendency of aggressive individuals to migrate towards subcultures in which there is heavy substance abuse, or for criminals to utilize intoxicants to calm their nerves prior to committing a crime (White 1997). In addition, individuals with antisocial personality or adolescent histories of delinquency have a high incidence of substance abuse (Cloninger, Bayon, and Przybeck 1997). Collins (1990) has proposed that violence is a complex phenomenon which involves interaction of many types of factors: developmental (early abuse or neglect, socialization experiences); cultural (norms, values, beliefs); drug pharmacology (cognitive impairment, emotional lability); social (community disorganization, social control); economic (opportunity, compulsion); and situational (location, environment).

CORRECTIONAL SETTINGS The period between 1980 and 1996 saw a tripling of the prison population in the United States, and substance abuse-related crimes provided the main impetus for this surge (Wald, Flaherty, and Pringle 1999). Lifetime substance abuse is reported in approximately three-fourths

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of inmates (Belenko 2000). Drug and alcohol treatment successfully reduces rearrest, conviction, and incarceration, particularly when therapeutic community modalities of treatment are utilized (Wald, Flaherty, and Pringle 1999).

DIVERSION, DRUG COURT, AND COERCED TREATMENT Diversion describes a process whereby individuals arrested for drug-related offenses, typically of a non-violent nature, may engage in a treatment program in order to avoid or reduce criminal charges. The underlying concept is that treatment of underlying addictive problems will reduce criminal recidivism in this population by both addressing the underlying behavioral problem and avoiding exposure of such individuals to the hardened criminals in state prison. Furthermore, diversion programs reduce the burden on local courts and reduce the expansion of prison populations. Typically, the individual must comply with treatment participation and remain substance-free in order to avoid criminal sanctions. The literature demonstrates that coerced addiction treatment can have just as good outcome as voluntary treatment (Miller and Flaherty 2000). Sentencing may involve requirements regarding treatment and sobriety, as may terms of probation and parole. Progress reports, treatment participation, and urine toxicological surveillance are generally part of such requirements.

ADDICTIVE BEHAVIOR: INVOLUNTARY OR VOLITIONAL? In addressing behavior in the context of substance intoxication and addiction, controversy exists regarding whether such conduct is volitional and willfully intended or whether it is automatic and beyond control, resurrecting philosophical debate about ‘free will’ versus ‘determinism.’ The disease model uses the term ‘loss of control’ to characterize the fact that an addict will compulsively use despite knowing that the use is causing a variety of negative consequences. Substance-induced pathophysiology and frontal lobe dysfunction are the suspected reasons. A variety of arguments hold that the compulsion to get drunk is so disabling that an individual is deprived of the ability to avoid risk-creating intoxication; that ‘denial’ prevents recognition of the lack of control; that alcoholism destroys the capacity to foresee the consequences of drinking; and that the compulsion overwhelms behavioral control creating an equivalent of coercion (Watterson 1991). A corollary argument holds that because addiction is inaccessible to the will, alcoholics and addicts cannot control the problem (i.e., their use is involuntary) (Lehman 1990).

However, an individual that has claimed that he ‘could not stop’ is typically an individual that simply did not stop, reflecting that individual’s level of motivation and commitment. There is great difficulty in distinguishing between an allegedly ‘irresistible’ desire and one simply not resisted (Morse 1999). Individuals frequently do not believe that they could have controlled some action and have blamed others; empirically, a belief in lack of choice is more likely to be associated with antisocial conduct (Reid 1978; Halleck 1992). Perception of self-efficacy increases the likelihood of behavioral control (Carbonari and DiClemente 2000). There is no doubt that in the course of addiction, the use of the psychoactive substance of choice achieves a higher and higher priority in the individual’s life, relative to other choices. Until there develops sufficient motivation to make a change, the substance use continues. Change is difficult even in nonaddicts, as is clear from the annual ritual of ‘earnest’ New Year’s resolutions quickly abandoned in succeeding days and weeks. Clinicians generally acknowledge that the choice to abstain is a difficult one for the addict, and consequently they attempt to make it easier by providing hospitalization and detoxification (Halleck 1992). Frequently, addicts who ‘could not’ stop using subsequently do so in the face of legal difficulties or medical complications, as these consequences have raised the priority of not using to a greater level than that of using. Addicts respond to social, economic, and legal constraints consistent with rationality, which forms, in part, the basis of governmental intervention. It is argued that possessing and using the substance in question is intentional action; the addict does so to achieve pleasure of intoxication or avoid the pain of inner withdrawal and inner tension, or both (Morse 1999). Similarly, the compulsion excuse is problematic: the addict’s choices are not so difficult that the ‘wrong’ choice should be excused by society (Morse 1986; Morse 1999). Actually, neither the addict, despite great fear of physical or psychological withdrawal symptoms or dysphoria, nor the pedophile, despite strong desires for sexual contact with children that produce distress or dysfunction, can demonstrate fear of death or grievous bodily injury that would be required for a duress defense (Morse 1999). In the absence of cognitive impairment of the processes involved in obtaining, retaining, and utilizing knowledge (a possible result of chronic alcoholism, for example), the addict is assumed to have the capacity to behave rationally (Halleck 1992). It has been argued that the alcoholic has control over whether he or she begins to drink each day; similarly, the alcoholic engages in a large variety of other conscious, purposive actions (Watterson 1991). Many states in considering drunk driving killings consider the state of mind when the first drink is taken as relevant to a charge of murder. Addicts obviously are in control of their behavior when they go to an Alcoholics Anonymous meeting instead of seeking out their drug of choice. Furthermore, treatment professionals rely

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on the fact that addicts can make decisions and change their behavior, as the alternative would be hopelessness and pity. A variety of other terms have been coined to reflect compromise between volitional and involuntary labels, including ‘diminished choice’ and ‘impairment of the will.’ ‘Habit’ has also been proposed as a term more appropriately centered than disease or freedom (Valverde 1998). Another amalgam of concepts is reflected in Alcoholics Anonymous: although AA uses the term ‘disease,’ alcoholics nevertheless are expected to take action, such as attending meetings and practicing the twelve steps, as the appropriate response to their ‘powerlessness’ over alcohol.

CRIMINAL RESPONSIBILITY, INSANITY, AND DIMINISHED CAPACITY In response to the addict’s typical abdication of responsibility and projection of blame, the recovery program of Alcoholics Anonymous requires that the addict be accountable for his behavior, including its negative consequences. Furthermore, once aware of the problem with substances and the consequences of abuse, the addict must accept responsibility for taking the steps necessary to achieve and maintain sobriety. This approach is not different from the legal system’s position on the responsibility of the addicted offender. In American and English common law, voluntary intoxication does not fully excuse an offender who has committed a crime and is not a defense under a not guilty by reason of insanity plea in a general intent crime, although it may result in a diminished verdict or sentence (Slovenko 1995). Involuntary intoxication, on the other hand, can be totally exculpatory. This requires that the individual has consumed the substance due to duress or trickery; or behaved violently due to a previously unknown susceptibility to a recognized atypical reaction to a substance; or the intoxication resulted from previously unknown side effects of a drug prescribed as a treatment (Slovenko 1995; Pandina 1996; Burglass 1997). If chronic substance abuse has caused permanent and irreversible brain damage resulting in mental illness or cognitive dysfunction, an insanity defense may be possible in some jurisdictions under the concept of ‘settled insanity’ (Slovenko 1995; Kermani and Castaneda 1996). Toxic psychoses caused by voluntary ingestion, if only temporary in duration, do not qualify for ‘settled insanity’ (Slovenko 1995). Under the concept of diminished capacity, a mens rea partial defense, voluntary intoxication could negate the capacity of an offender to form a specific intent required by the definition of the criminal charge in a specific intent crime (Weinstock, Leong, and Silva 1996). If the requisite specific intent were nullified, guilt could be found only for a lesser included crime that does not require that specific intent (e.g., manslaughter instead of

second-degree murder); this contrasts with the insanity defense, a complete defense which can result in a finding of ‘not guilty’ by reason of insanity (Weinstock, Leong, and Silva 1996). The mere fact of intoxication does not automatically mean that the defendant lacked the requisite specific intent; if the opinion is based solely on the defendant’s intoxicated condition, a qualified expert on the effects of intoxication may opine in some jurisdictions on the issue of capacity to form the requisite intent (Slovenko 1995). A diminished capacity defense would argue, for example, that because of intoxication, the defendant could not deliberate (if a necessary element to constitute the particular crime) (Weinstock, Leong, and Silva 1996). California now has replaced diminished capacity with ‘diminished actuality’ in which the psychiatrist cannot testify about the ultimate issue, but the trier of fact can use the psychiatric information to decide whether the person did or did not harbor a requisite specific intent (Weinstock, Leong, and Silva 1996). Diminished capacity and diminished responsibility have also been used in sentencing, where intoxication and addiction issues may be raised as mitigating factors. However, with courts being given less discretion in sentencing, such evidence is often brought out in plea-bargaining prior to trial or during trial in determination of guilt or innocence (Slovenko 1995).

CHILD CUSTODY, PARENTAL RIGHTS, AND CHILD ABUSE Parental substance abuse has adverse effects on children. Child abuse and neglect is more prevalent in families in which one or both parents abuse substances, and are estimated in heroin addicts to be almost sixteen-fold higher than that in the general population (Sowder and Burt 1980). While the presence of substance abuse does not automatically mean that a parent is unfit, it may be a contributing factor in such a finding. Custody evaluations in divorce, adoption proceedings, and revocation of parental rights may require a thorough evaluation by a substance abuse expert, usually in consultation with a child and adolescent psychiatrist. The Court is interested in such issues as: the presence of a substance use disorder; impairment of an individual’s capacity to perform parental duties; potential for behavior that would jeopardize the child; cooperation and participation in drug rehabilitation; potential for recovery from addiction; and time course of recovery (Kermani and Castaneda 1996).

DRUG AND ALCOHOL TESTING, DRUNK DRIVERS, AND BARTENDERS Jobs involving the public safety, sensitive positions involving national security, and sobriety check-points

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are typical settings in which alcohol and drug testing is common (Kermani and Castaneda 1996). In 1986, by executive order, President Reagan mandated a drug-free workplace; this was followed by The Mandatory Guidelines for Federal Workplace Drug Testing Programs: Final Guidelines (United States Department of Health and Human Services 1988), which has also served as a model for private industry, with 40 per cent of the nation’s companies testing by 1990 (West and Ackerman 1993). Several Supreme Court decisions have allowed widespread random testing of employees in jobs that affect public safety (West and Ackerman 1993). Pre-employment screening of job applicants, random testing, and testing for cause are three basic types of workplace testing. Certified Medical Review Officers usually review drug tests in the workplace, verifying that there is an intact forensic chain of custody, evaluating the legitimacy of psychoactive medications in the test sample, and interpreting the test results to rule out false positives and negatives (see Swotinsky and Smith 1999). Drug test results may also be used in a variety of other contexts, for example in child custody evaluations or private disability cases, and may require similar evaluation by the forensic consultant. Drunk drivers tend to be young males with prior arrests (often recidivists), a high frequency of accidents and violations, and personality characteristics of emotional instability; impulsiveness and thrill seeking; hostility; and depression and low perceived personal control (Sloan et al. 2000). In 1990, 35 per cent of 21- to 24-yearolds who died in fatal crashes had blood alcohol levels greater than 0.10 g/100 ml. Police may test an individual for signs of intoxication, such as slurred speech (Michigan v. Sitz 1990; Pennsylvania v. Muniz 1990). Furthermore, body fluid measurements may be made in cases of automobile fatalities or other crimes. A forensic psychiatrist may be asked about the validity of alcohol or drug test results, pharmacological dynamics and kinetics, and the likely effects on the performance capacity of an individual. In addition to criminal and administrative sanctions (and coerced treatment), drunk drivers have tort liability and may have to compensate injury victims. More recently, tort liability has been extended to third-party servers (so called ‘dram shop liability’) in which liquor stores, bars, restaurants and other establishments that carry liability insurance are held liable for injuries stemming from accidents caused by an obviously intoxicated adult or minor patron (Sloan et al. 2000). Such cases may call for an expert opinion regarding drinking rates and quantities, body fluid measurements, and signs of intoxication or impairment.

WORKPLACE AND DISABILITY Federal disability laws include The Rehabilitation Act of 1973, The Fair Housing Amendments Act of 1988,

and the Americans with Disabilities Act (ADA) of 1990. A comprehensive review of the ADA can be found elsewhere (Parry 1997). Individuals with disability are protected from discrimination. It is incumbent on the employer to provide reasonable accommodation, as long as the employee can perform the job with such accommodation. Individuals suffering from alcoholism must be given the choice of accepting treatment before beginning a process for removal. The Drug Free Workplace Act of 1988 prohibits employees from using or being under the influence of alcohol and illegal drugs on the job. The ADA limits employment protection to drug users who are not currently using illegal drugs or are in supervised treatment programs. The ADA specifically excludes individuals who are using illicit drugs, as well as individuals using controlled substances, including any prescribed drug, not under the supervision of a licensed healthcare professional. If the individual’s disability creates a direct threat of harm to others that cannot be reasonably reduced through accommodation, it is not covered by ADA. This can include abuse of alcohol away from the job that affects the employee’s performance. Misconduct due to alcohol abuse is not protected. The ADA also addresses licensing issues pertaining to access to professions. The Social Security System provides disability insurance through Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI). Psychiatrists providing social security disability evaluations need note that disorders of alcohol or drug abuse are insufficient qualifiers for disability in the absence of other psychiatric or physical disabilities. Veterans Administration disability programs also do not consider substance use disorders alone as sufficient. This has been upheld by the Supreme Court, which cited willful misconduct, in violation of VA regulation, as characterizing alcoholism at least in part (Traynor and McKelvey v. Turnage 1988). Chronic pain syndromes may be the basis of a workers’ compensation claim or private long-term disability insurance case and require the careful assessment for addiction issues.

CIVIL COMMITMENT Only some states and the federal government have commitment statutes regarding alcoholics and drug abusers, and none of them commits people for treatment unless the individual is demonstrated to be dangerous to self or others or gravely disabled (Kermani and Castaneda 1996). Some states have separate commitment laws for substance abuse (versus other mental illness), and may require a bed in a drug rehabilitation program. California law requires commitment to an approved alcohol and drug facility; because none exists in Los Angeles County, an individual can be involuntarily hospitalized only if an additional mental disorder co-exists with the substance abuse.

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CONFIDENTIALITY AND DUTY TO WARN Federal regulations prohibit the disclosure of records or information concerning any patient in a federally assisted alcohol or drug treatment program (42 CFR Part 2). Federal law supersedes any state or local law that is less restrictive. In the absence of written patient consent, disclosure may be made only to other staff of the treatment program; to medical personnel in a medical emergency that poses an immediate threat to health; in response to a valid court order (not merely a subpoena, which may be contested); in reporting child abuse; concerning a crime on the premises of a program or against treatment personnel; disclosures made for research or audit purposes; communications with qualified service organizations; and communications that contain no patient-identifying information. Patients whose probation or parole conditionally requires treatment may not revoke their consent to disclose information. Psychiatrists, following the precedent of Tarasoff v. Regents of the University of California (1976), in jurisdictions that have followed this Court’s reasoning and developed relevant statutes, or because of ethical concerns, have a duty to take reasonable steps to protect an intended victim from a patient that has made a threat. This may require a violation of confidentiality. There remains legal controversy regarding in what situations a duty exists, what is foreseeable, and what constitutes reasonable steps. However, the presence of substance abuse invariably increases the risk of violence. Notification of a potential victim or law enforcement agency should not identify that the report is being made by a substance abuse program or that the threatener is in substance abuse treatment (this can be done relatively easily if the program is part of a general hospital).

MALPRACTICE AND INAPPROPRIATE PRESCRIPTION Litigation may include allegations that a physician’s prescriptions have caused a patient’s addiction or suicide attempt or that the patient was not informed of the risks of the medications. Negligent assessment of substance abuse comorbidity or inappropriate treatment for substance abuse problems may also be alleged. Prescription of excessive amounts of controlled substances, or prescribing such medications to a known addict, may result in loss of license or prescribing privileges. State regulatory bodies routinely monitor the prescribing profile for controlled substances, particularly opiates, which raises ethical questions of privacy and confidentiality, and contributes to the reluctance of many physicians to adequately treat legitimate pain (Burglass 1997). Appropriate documentation in the medical record is crucial (see Burglass 1997). Substance-abusing physicians may suffer impairment that leads to inappropriate diagnosis

or treatment, or they may violate boundaries, including sexual indiscretion with patients, which may result in a lawsuit.

SUICIDE Suicides account for the leading cause of malpractice suits filed against psychiatrists (Gutheil 1999). Substance abusers are at greater risk for suicide, with outpatient alcoholics having been calculated as having an annual risk of suicide that is ten-fold that of the general population; co-morbid depression or antisocial personality disorder are significant contributing factors (Murphy and Wetzel 1990). The acute effects of intoxication increase the risk of suicide by increasing aggression and impulsivity, while simultaneously impairing cognition and judgment. Substance abusers additionally suffer numerous interpersonal losses and typically experience deteriorating psychosocial support systems (Weiss and Hufford 1999). Approximately one-half of alcohol-dependent women and onefourth of alcohol-dependent men have a lifetime history of depression (Kessler et al. 1997). Appropriate risk assessment requires a careful review of substance use.

THE IMPAIRED PHYSICIAN It has been estimated that 10–15 per cent of physicians are dependent on alcohol or drugs (Keeve 1984). Physicians are generally reluctant to report impaired colleagues, though a forensic psychiatrist may be asked by a hospital administration, by a physician’s attorney, or by the Medical Board to provide an evaluation regarding a physician’s substance abuse and ability to practice medicine. The American Medical Association’s Principles of Medical Ethics (American Medical Association 2001b) states that it is unethical for a physician to practice medicine while under the influence of a substance which impairs the ability to practice (Council on Ethical and Judicial Affairs 1998). Furthermore, physicians have an ethical obligation to report impaired colleagues according to the AMA Principles of Medical Ethics (American Medical Association 2001b). If available, the hospital’s in-house impairment program, such as the well-being committee of the medical staff, should be contacted. For a non-hospital physician, the local medical society may be contacted. California has a diversion program to which a physician may voluntarily self-refer, or be referred by a hospital well-being committee. If necessary, a report can be made to the state licensing board if no other steps can facilitate entrance into an impairment program. Federal (Health Care Quality Improvement Act of 1986) and state laws (not interfered with by federal law) exist regarding the reporting of impaired physicians (Sadoff and Sadoff 1994). Pennsylvania has mandatory reporting laws, which grant

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immunity to anyone who makes a good faith report. California law, on the other hand, does not require a physician to report another physician suspected of alcohol or drug abuse (Medical Board of California 2000).

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criminal responsibility. Bulletin of the American Academy of Psychiatry and the Law 19, 277–90. Weinstock, R.W., Leong, G.B., Silva, J.A. 1996. California’s diminished capacity defense: evolution and transformation. Bulletin of the American Academy of Psychiatry and Law 24, 347–66. Weiss, R.D., Hufford, M.R. 1999: Substance abuse and suicide. In Jacobs, D.G. (ed.), Harvard Medical Guide to Suicide Assessment and Intervention. San Francisco: Jossey-Bass Publishers, 300–10. West, L.J., Ackerman, D.L. 1993. The drug-testing controversy. Journal of Drug Issues 23, 579–95. Westmeyer, J. 1998: Historical and social context of psychoactive substance disorders. In Frances, R.J., Miller, S.I. (eds), Clinical Textbook of Addictive Disorders, 2nd edition. New York: The Guilford Press, 14–32. White, H.R. 1997: Alcohol, illicit drugs, and violence. In Stoff, D.M., Breiling, J., Maser, J.D. (eds), Handbook of Antisocial Behavior. New York: John Wiley & Sons, Inc., 511–23. Wickelgren, I. 1997. Getting the brain’s attention. Science 278, 35–7. World Health Organization. 1992: The ICD-10 Classification of Mental and Behavioral Disorders: Clinical Descriptions and Diagnostic Guidelines. Geneva: World Health Organization. Young, A.M.J., Joseph, M.H., Gray, J.A. 1992. Increased dopamine release in vivo in nucleus accumbens and caudate nucleus of the rat during drinking: a microdialysis study. Neuroscience 48, 871–6.

Suggested reading Galenter, M., Kleber, H.D. 1999: American Psychiatric Press Textbook of Substance Abuse Treatment, 2nd edition. Washington, DC: American Psychiatric Press. Lowinson, J.H., Ruiz, P., Millman, R.B., Langrod, J.G. 1997: Substance Abuse: A Comprehensive Textbook, 3rd edition. Baltimore: Williams & Wilkins. Valverde, M. 1998: Diseases of the Will: Alcohol and the Dilemmas of Freedom. Cambridge: Cambridge University Press.

71 Psychopharmacological treatment of sex offenders JOHN BRADFORD AND VICTORIA L. HARRIS

INTRODUCTION Sexual offenders are acknowledged to be a heterogeneous group of mostly males, with varying types and degrees of personality disorders as well as having a paraphilia or more commonly multiple paraphilias (Bradford, Boulet, and Pawlak 1992). Female sexual offenders do occur, but constitute a small percentage of the overall numbers of sexual offenders. They will not be discussed specifically in this chapter, although the same psychopharmacological agents can be used to treat paraphilias in females. In females, if hormonal psychopharmacological agents are to be used, then careful consideration must be given to the hormonal differences in females (Bradford 1985). This is evident in the classification of sexual deviations in DSM I and DSM II where they were classified as personality disorders (American Psychiatric Association 1952; American Psychiatric Association 1965; Travin 1994). For the first time in DSM III the concept of erotic or sexual preference was recognized, and the sexual deviations were classified as Paraphilias as opposed to Personality Disorders (American Psychiatric Association 1980; American Psychiatric Association 1987). This accepted the empirical evidence that individuals who were sexually deviant had an abnormal sexual or erotic preference. A person with a paraphilia was seen as sexually attracted to non-human objects; pain, suffering and humiliation; children or sexual acts involving non-consenting partners. For example, pedophilia was recognized as a paraphilia where the deviant sexual preference was to children. The paraphilias are defined in DSM IV as: The essential features of a paraphilia are recurrent, intense sexually arousing fantasies, sexual urges, or behaviors generally involving 1) nonhuman objects, 2) the suffering or humiliation of oneself or one’s partner, or 3) children or other non consenting persons, that occur over a period of at least 6 months

(Criterion A). For some individuals, paraphiliac fantasies or stimuli are obligatory for erotic arousal and are always included in sexual activity. In other cases, the paraphiliac preferences occur only episodically (e.g., perhaps during periods of stress), whereas at other times the person is able to function sexually without paraphiliac fantasies or stimuli. The behavior, sexual urges, or fantasies cause clinically significant stress or impairment in social, occupational, or other important areas of functioning (Criterion B). (DSM IV; APA 1994)

Sexual offenders are individuals who commit sexual offenses and largely suffer from a sexual deviation or paraphilia. There are a number of sexual offenders who do not have a paraphilia but fail to control their sexual impulses for other reasons. Their sexual offending behavior may be opportunistic or impulsive, and most commonly is the result of serious personality disorders rather than a paraphilia. Sexually deviant behavior can also occur secondary to various Axis 1 psychiatric conditions. The deviant sexual behavior in this instance would occur as a result of disinhibited behavior caused by the primary psychiatric condition (e.g., bipolar disorder). In these cases, the treatment of the sexual deviant behavior is through the treatment of the primary psychiatric disorder. Where the primary psychiatric problem is a serious personality disorder, the prognosis would be poor because of the inherent problems in the treatment of serious personality disorders. At the same time, there is a possibility that the symptoms of serious personality disorders such as impulsivity may respond to psychopharmacological treatment (Lee and Coccaro 2001). As there are these diagnostic issues to be resolved prior to a diagnosis of a paraphilia being made, it is clear that a careful psychiatric evaluation needs to be completed. The psychopharmacological treatment of sexual offenders is focused on the paraphilia or multiple paraphilias that are present. It would be very unusual for only one paraphilia to be present as it

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is well established that there is considerable comorbidity amongst the various paraphilias (Bradford, Boulet, and Pawlak 1992). There is also considerable comorbidity with substance abuse and dependence, and particularly alcohol dependence (Allnutt et al. 1996). The association with alcohol dependence is not surprising and is related to the degree of violence seen in conjunction with the paraphilia. A simple way of considering the spectrum of the paraphilias is to consider them as ‘hands on’ and ‘hands off ’ paraphilias. The ‘hands on’ paraphilias involve some physical contact with either a consenting or a non-consenting partner, and would include pedophilia, sexual sadism, sexual masochism, and frotteurism. Zoophilia and necrophilia classified under the section ‘Paraphilia Not Otherwise Specified’ of DSM IV would also be included in this group. The ‘hands off ’ paraphilias are the remaining paraphilias and include exhibitionism, voyeurism, fetishism, transvestitic fetishism and the remaining paraphilias in the ‘Paraphilia Not Otherwise Specified’ grouping. There was an idea in the past that the presence of a ‘hands off ’ paraphilia meant less concern than the presence of a ‘hands on’ paraphilia, but this is now rejected because of the well-documented cross-over between the various paraphilias. The primary paraphilia is simply to be regarded as a presentation of one aspect of a spectrum of paraphiliac behaviors in any individual. Most often, this would overlap between ‘hands on’ and ‘hands off ’ paraphilias. The treatment of sexual offenders has therefore to take all this into consideration, and means that a detailed and extensive assessment of sexual behaviors is necessary. As with other psychiatric conditions, the success of treatment is dependent on a detailed assessment to establish the correct psychiatric diagnosis. Most frequently, sexual offenders and others with paraphilias are evaluated in specialized sexual behaviors clinics (Bradford 1989; Bradford 2001). A comprehensive sexual behaviors clinic evaluation typically would consist of: 1 A full psychiatric evaluation, consisting of a clinical interview, psychiatric history and psychiatric diagnosis. 2 A medical evaluation as necessary. 3 A sex hormone profile and general biochemistry. 4 Sexual questionnaires. 5 Objective measures of sexual interest, specifically penile plethysmography and visual reaction time. 6 Measurement of recidivism risk. In brief, the sex hormone profile is used to establish a baseline for the possible treatment with antiandrogens, as well as establishing if abnormal hormone levels are present. The sexual questionnaires consist of sexual history questionnaires; questionnaires to measure cognitive distortions; questionnaires to quantitatively and qualitatively measure sexual fantasies; measures of sexual drive; measures of sexual functioning in general; questionnaires on aggression; and measures of alcohol and drug abuse.

The recidivism risk would be based on various actuarial instruments such as the Psychopathy Checklist Revised Edition (Hare 1990); the Rapid Risk Assessment of Sexual Offender Recidivism (RRASOR) (Hanson 1997); Static 99 (Hanson and Thornton 1999); and various other actuarial instruments used to estimate the probability of recidivism. These instruments must be used with caution because of their limitations. The physiological measures of sexual preference establish the presence of deviant sexual preferences such as ‘rape proneness,’ pedophilia or sexual sadism. This detailed evaluation establishes the diagnosis of comorbid psychiatric conditions such as alcohol dependence, as well as establishing the spectrum of the paraphilias that are present. It also means that this baseline evaluation can be used to measure treatment outcome in the future. The measures that are most sensitive to treatment outcome are the level of deviant arousal; the type and level of sexual fantasies, the levels of sex hormones in treatment with an antiandrogen medication, as well as cognitive distortions. There are sets of variables that are associated with an increased risk of recidivism (Hanson and Bussiere 1998). Positive treatment outcome with a reduction of sex offense recidivism is clearly the aim of the treatment of sexual offenders. The treatment of sexual offenders includes both psychological treatments and pharmacological treatments. The former treatments usually use a cognitive behavioral model and most commonly a relapse prevention approach. These treatments are fully compatible with the psychopharmacological treatment approaches, and the two approaches complement each other and should be offered jointly. The psychopharmacological treatment of sexual offenders is based on certain principles. Although there is no clear evidence that sexual offenders or paraphiliac males have an increased sexual drive, in theory the principal aim of psychopharmacological treatment is the reduction in sexual drive. It is assumed that a reduction in sexual drive will result in a reduction in deviant sexual behavior (Bradford 1985). Sexual drive is multidimensional and consists of sexual fantasies, sexual urges, and sexual behavior (Bancroft 1989; Rubinow and Schmidt 1996). In the case of a sexual deviation, the sexual fantasies and urges are mostly deviant in line with whatever paraphilia is present, although non-deviant fantasies are also present. The sexual urges and fantasies are in the direction of the erotic preference of the individual (for example, these would be towards young children in the case of pedophilia). The sexual drive can be eliminated to create an asexual individual who would have almost no sexual fantasies or sexual urges. Surgical castration would result in an asexual individual, although erections and low levels of sexual fantasies may continue (Bancroft 1989; Wille and Beier 1989; Rubinow and Schmidt 1996). With the increase in sophistication of psychopharmacological agents that can be used in the treatment of

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sexual offenders, it is now possible to titrate the level of sexual drive. At the same time, the sexual drive can be objectively monitored by sexual arousal testing, hormonal levels, and levels of sexual fantasies and measures of sexual behavior. This means that in most instances the sexual drive would be lowered only partially to reduce deviant arousal and fantasies while enabling the individual to perform sexually in non-deviant situations. This means that although the sexual drive would be lowered, non-deviant sexual interests would be maintained while deviant sexual interests would be suppressed. The pharmacological treatments of the paraphilias are well established (Bradford 2001), and this approach has been shown to be successful in all types of paraphilias. It is also arguably an economic approach to treatment as the paraphilias are usually present in multiple forms and a psychopharmacological treatment would suppress all of those paraphilias present. Psychological treatment would generally require these to be dealt with separately and would require higher levels of professional time. At the same time, difficulties have been encountered in completing research in this area due to a lack of funding. In a recent editorial in the New England Journal of Medicine, Bradford (1998) decried the need for government and the pharmaceutical industry to support research into the pharmacological treatment of sexually deviant behavior. Pedophilia, one of the most common paraphilias, should be regarded as a public health problem, with levels of victimization of children in the United States having been shown to range from 6 per cent to 62 per cent in girls, and from 10 per cent to 30 per cent in boys (Peters, Wyatt, and Finkelhor 1986). If this were some other public health problem of the same magnitude, millions of dollars would be put aside to study and solve the problem. Unfortunately, the paraphilias – and pedophilia specifically – are too easily dismissed as a problem of criminal behavior to be solved by the criminal justice system rather than by the mental health system. This is extremely regrettable, as the treatment of the paraphilias, and especially pedophilia, can be successfully achieved and future sexual offense recidivism reduced. The paraphilias or sexual deviations are deviant sexual behaviors and have various common clinical features, specifically sexual fantasies, leading to sexual urges and ultimately deviant sexual behavior. Ideally if a treatment were to be successful, the sexually deviant behavior would be completely suppressed while the normophilic (non-deviant behavior) would remain intact or even be enhanced (Bradford and Pawlak 1993a; Bradford 1985). As outlined later in this chapter, some psychopharmacological treatments have been shown to have this capability. Furthermore, a treatment that is able to suppress the psychological component (sexual fantasies) as well as the physiological component (sexual arousal) would be ideal, as the normophilic behavior could continue whilst the earliest component of the behavioral chain would be suppressed.

BIOLOGY OF SEXUAL BEHAVIOR Sex is a basic biological drive, and the psychopharmacological approach to the treatment of the paraphilias is based on this understanding. The biological components of sexual behavior are well established in animal and biomedical research (Bancroft 1989; Everitt and Bancroft 1991; Hines and Collaer 1994; Rubinow and Schmidt 1996; Parades and Baum 1997). Surgical castration, a biomedical approach to treatment of sexual offenders, has contributed to this understanding (Bradford 1985). Stereotaxic neurosurgery, although only of historical interest, has also been used to treat sexual offenders and has also contributed to the understanding of the biomedical aspects of human sexual behavior (Bradford 1985). Surgical castration is particularly significant as it was behind the development of the antiandrogen approach to the treatment of sexual offenders (Bradford 1985). The procedure leads to a reduction of about 95 per cent of the total testosterone available in the human male (Bancroft 1989; Everitt and Bancroft 1991; Hines and Collaer 1994; Rubinow and Schmidt 1996; Parades and Baum 1997). The testicles are the main source of testosterone, with the adrenal glands producing less than 5 per cent of total body production. In Europe, surgical castration was used as a biomedical intervention for dealing with sexual offenders that had high rates of recidivism (Heim and Hursch 1979; Wille and Beier 1989), these being mostly rapists and pedophiles (Ortmann 1980). After surgical castration, the offenders were followed for long periods whilst their recidivism rates were monitored (Heim and Hursch 1979; Ortmann 1980; Wille and Beier 1989). Several studies showed a dramatic reduction in recidivism rates with follow-up periods ranging from five to twenty years while at risk in the community. The postcastration rates of recidivism were reported as less than 5 per cent during follow-up in most studies, compared to a pre-castration rate of over 60 per cent (Le Maire 1956; Bremer 1959; Sturup 1968; Sturup 1972; Heim and Hursch 1979; Ortmann 1980). The reduction in recidivism in the post-castration period is likely the direct result of a reduction of total testosterone levels and the consequent effects on sexual behavior. Sexual behavior is affected by two types of hormone:

• •

Steroid hormones (e.g., estradiol, testosterone, and androstenedione) (Bancroft 1989; Everitt and Bancroft 1991; Hines and Collaer 1994; Rubinow and Schmidt 1996; Parades and Baum 1997); and Peptide hormones [e.g., gonadotropin-releasing hormone (GnRH), gonadotropins, and prolactin (Bancroft 1989; Rubinow and Schmidt 1996; Owens, Nemeroff, and Bissette 2000).

Testosterone is the most important steroid in human males with regard to sexual behavior (Bancroft 1989; Everitt and Bancroft 1991; Rubinow and Schmidt 1996;

688 Special clinical issues in forensic psychiatry

Parades and Baum 1997), and is mostly found bound to sex hormone-binding globulin. However, in the plasma some testosterone is loosely bound to albumin, and some occurs as the free compound; these latter two forms are metabolically active (Bancroft 1989; Rubinow and Schmidt 1996; Reus and Frederick-Osborne 2000). Peptide hormones are occasionally found in the blood, though usually at low levels. GnRH is closely related to the dopamine neurons in the hypothalamus, and stimulates the release of the gonadotropins, luteinizing hormone (LH) and follicle-stimulating hormone (FSH) (Rubinow and Schmidt 1996). LH promotes steroid synthesis in the gonads, in turn producing testosterone in the male and progesterone in the female, whilst FSH stimulates the growth of ovarian follicles and spermatogenesis. These hormones are only active at sites that have specific receptors for them (Bancroft 1989; Everitt and Bancroft 1991; Rubinow and Schmidt 1996; Parades and Baum 1997). The receptors for the steroid hormones are usually located within the cell cytoplasm, whilst the receptors for polypeptide hormones are usually located on the cell membrane. The hypothalamus is critical to the system in that it controls and secretes hormones which affect the anterior pituitary gland. GnRH is the most important polypeptide hormone secreted by the hypothalamus, though prolactininhibiting factor (PIF) (most likely a derivative of dopamine) is also secreted and is significantly involved in the hormonal control of sexual behavior through prolactin. The system operates by a series of feedback loops. When GnRH is released it stimulates the anterior pituitary to secrete the gonadotropins, which in turn drive the release of gonadal sex steroids. The plasma sex steroid levels then feed back at receptors in the hypothalamus, thereby stimulating or inhibiting the release of GnRH. The principal androgens in males are testosterone, dihydrotestosterone and androstenedione. Androgens are responsible for the development of male secondary sex characteristics, muscle development and the maintenance of male sexual behavior (Everitt and Bancroft 1991; Rubinow and Schmidt 1996; Parades and Baum 1997; Owens, Nemeroff, and Bissette 2000). Estrogens in males have certain effects on sexual behavior, but these are not fully understood. There is considerable evidence from animal research that androgens have a specific effect on male sexual behavior. In humans, studies of hormonal replacement in hypogonadal men have shown that androgens are necessary for the maintenance of sexual interest and erectile function, as well as other aspects of sexual behavior. The effects of antiandrogen medication also support the role of androgens in male sexual behavior. Likewise, drugs that increase the availability of circulating testosterone, as well as the exogenous administration of testosterone, have also shown male sexual behavior to be androgen-dependent. It is possible that LH and GnRH also have direct effects on male sexual behavior. The direct effect of testosterone is via its action on intracellular androgen receptors (Bancroft 1989; Everitt and Bancroft

1991; Rubinow and Schmidt 1996; Parades and Baum 1997), these being found throughout the body. Although in animals there is some evidence that sexual interest might be estrogen-dependent, this does not appear to be the case in human males. Consequently, these biological mechanisms which target hormones form the focus of psychopharmacological treatments for sexual offenders, and this is supported by studies with surgical castration (see above). As the species studied become more complex, there appears to be a weakening of the direct influence of hormones on sexual behavior, although male sexual behavior tends to remain androgen-dependent irrespective of the species involved (Bancroft 1989; Everitt and Bancroft 1991; Rubinow and Schmidt 1996; Parades and Baum 1997). These effects are mediated through the targeting action of hormones on intracellular androgen receptors (Everitt and Bancroft 1991). Studies of the neurochemistry of the brain show that a number of monoamine neurotransmitters (dopamine, serotonin and others) have an effect on sexual behavior as well as other biological drives (Bancroft 1989; Everitt and Bancroft 1991; Rubinow and Schmidt 1996; Parades and Baum 1997; Reus and Frederick-Osborne 2000). Serotonin also has a specific effect on sexual behavior based on animal research studies (Reus and Frederick-Osborne 2000; Tecott 2000). Generally, if central serotonin levels are reduced then sexual behavior increases. In contrast, if central serotonin levels are increased then there is a decrease in sexual behavior. The full understanding of how serotonin levels affect human sexual behavior is not fully understood; however, several pharmacological studies with specific serotonin reuptake inhibitors (SSRIs) have documented various degrees of sexual dysfunction (Bancroft 1989; Everitt and Bancroft 1991; Rubinow and Schmidt 1996; Parades and Baum 1997), thereby supporting the role of serotonin in sexual behavior. This situation however is extremely complex as there is a variety of serotonin receptors and subreceptors that have a variety of effects on physiological function and behavior. More recently, pharmacological agents that affect central serotonin metabolism have also been shown to affect sexual behavior (Greenberg and Bradford 1997). Decreased central nervous system serotonin levels in experimental animals have been shown to increase sexual drive, whilst increased serotonin levels resulted in a decreased sex drive. In humans, the role of serotonin in sexual behavior is extremely complex; moreover, a number of different serotonin receptors and subreceptors have been identified, though the roles of these in the moderation of sexual behavior are not clear. The most recent advance in treating paraphilias has been to use drugs that affect serotonin levels (Tecott 2000); a reduction in brain serotonin levels in laboratory animals led to an enhanced mounting behavior, which is the animal model of increased sexual drive (Bancroft 1989; Everitt and Bancroft 1991; Rubinow and Schmidt 1996; Parades and Baum 1997). It would follow logically that an increase in brain serotonin

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levels would inhibit sexual behavior. From these and other findings it became clear that 5-hydroxytryptamine (5HT) was involved in the neurobiology of sexual behavior. In humans, the role of 5HT in sexual behavior is more complicated as the behavior itself is more complex and there is a wide range 5HT receptors. In theory, in humans an increase in 5HT levels would suppress sexual drive (Everitt and Bancroft 1991; Rubinow and Schmidt 1996; Parades and Baum 1997). Understanding the biological and pharmacological control of human sexual data has enabled an algorithm to be developed for the psychopharmacological treatment of paraphilias using:

• • •

SSRIs Antiandrogens (e.g., cyproterone acetate) Hormonal agents [e.g., medroxyprogesterone acetate (MPA), luteinizing hormone releasing hormone (LHRH) agonists].

•

•

TREATMENT ALGORITHM This algorithm (Bradford 2000; Bradford 2001) is based on the psychopharmacological effect on human sexual behavior by various drugs, as well as a clinical classification of the severity of the paraphilias. Sexual offenders with a paraphilia would be eligible for psychopharmacological treatment based on this clinical algorithm. Paraphilia severity varies according to type, but it is clear that when victimization of third parties such as women and children occurs, the condition is more serious than when there is no such victimization. As most sexual offenders have paraphilias that involve the victimization of third parties, such a situation applies to this patient group. This classification is a variation of the scheme published in DSM IIIR relating to the paraphilias. Clinical experience in evaluating and treating the paraphilias is important in order to use this classification successfully, with primary paraphilia severity being classified as:

•

•

Mild: exhibitionism, voyeurism, fetishism and ‘handsoff ’ paraphilias would be regarded as mild conditions, with the proviso that comorbid paraphilias were also of a ‘hands-off ’ type. Mild cases of pedophilia would be included where deviant sexual fantasies and urges are present but there has been no victimization. Deviant sexual preference as measured by sexual arousal tests would show pedophilic arousal, but not arousal to coercive or sexually sadistic stimuli. Moderate: this would include cases of ‘hands-off ’ paraphilias where the control over sexual urges was poor and the risk of ‘hands-on’ paraphilias was a concern. Exhibitionism where the target of the exhibitionistic behavior was a child would be an example. In ‘hands-on’ cases such as pedophilia, there would be a low number of victims and the level of victimization would be confined to fondling (no penetration). In

general, a low number of victims would be less than three. Sexual arousal testing would show a deviant sexual preference to pedophilia, but there would not be arousal to coercive stimuli or sexual sadism or clinical evidence of sadism being a problem. Severe: here, only the ‘hands-on’ paraphilias would be classified. This would be pedophilia with more than three victims and an increased level of intrusive sexual behavior beyond simple fondling, where there has been sexual penetration of the victim to some degree. There would be deviant sexual arousal to pedophilia on testing and there may be mild coercive arousal but no explicit evidence of sexual sadism in either testing or the clinical history. Catastrophic: only ‘hands-on’ paraphilias would be classified in this way. There would be clear evidence of sexual sadism, in terms of fantasies, urges and behavior directed towards either child or adult victims. There may not have been victimization, or victimization is denied but the consequences of victimization would be extreme such as death, severe injury, etc., and the level of control over deviant sexual impulses would be weak. If no victimization was present, there would be evidence of predatory stalking with homicidal urges and homicidal and torture fantasies. If victimization has occurred it would be severe in its degree of sexual and associated physical violence. Sexual arousal shows sexually sadistic arousal and high levels of coercive arousal towards either adults or children.

In order to use this classification guideline correctly, training in the paraphilias and sexual behaviors is essential. This is because paradoxical situations arise where it would be difficult to classify sexual offenders. For example, a pedophile who only engaged in minor fondling (only outside of the clothes in a way that it was made to look accidental) would be pedophilic toucherism (a variant of frotteurism). Although the numbers of victims may be higher than three, the condition would still be classified as moderate. The algorithm of psychopharmacological treatment would follow the classification of severity of the paraphilia in order to select the degree of intervention. The degree of psychopharmacological intervention would increase according to the severity of the paraphilia, with the highest level being equivalent to surgical castration. The aims of psychopharmacological treatment would be to: 1 Suppress deviant sexual fantasies. 2 Suppress deviant sexual urges and behavior. 3 Reduce sexual offense recidivism. The algorithm for psychopharmacological treatment of the paraphilias would be:

•

Level 1: Cognitive behavioral treatment; relapse prevention treatment would be always given regardless of the severity of paraphilia.

690 Special clinical issues in forensic psychiatry

• • • • •

Level 2: Pharmacological treatment would always start with SSRIs. Level 3: If SSRIs are not effective at adequate dose levels, then a low dose of an oral antiandrogen would be added to the SSRI (e.g., sertraline 200 mg p.o. daily and 50 mg MPA daily). Level 4: Full oral antiandrogen treatment [e.g., 50–300 mg MPA daily or 50–300 mg cyproterone acetate (CPA) daily]. Level 5: Full antiandrogen treatment given intramuscularly (e.g., 300 mg MPA IMI every one to four weeks, or 200 mg CPA IMI every two weeks). Level 6: Complete androgen suppression due to CPA i.m. 200–300 mg per week, or a LHRH agonist (e.g., leuprolide acetate or goserelin acetate).

The impact of psychopharmacological intervention on sexual behavior at the various levels of the algorithm is as follows (Level 1 does not involve pharmacological treatment):

•

•

• •

Level 2: Suppression of deviant sexual fantasies, urges and behavior would occur, with a minor impact on overall sexual drive. The degree of suppression of sexual drive would allow normal sexual activity to occur. Level 2–3: Suppression of deviant sexual fantasies, urges and behavior with a moderate reduction in sexual drive would be expected. Normal sexual behavior would occur, but at low level. A dose-dependent response would be expected. Level 4–5: Suppression of deviant sexual fantasies, urges and behavior with a severe reduction of sexual drive would be expected. Normal sexual behavior may occur, but at a very low level. Level 6: Complete suppression of sexual drive would be expected at this level.

The psychopharmacological treatment (and psychological treatment) of sexual offenders can fail or be undermined by the abuse of substances (specifically but not exclusively alcohol); disturbances in mood or the development of a concurrent psychiatric disorder; and noncompliance with the psychopharmacological treatment and associated cognitive behavioral treatment such as relapse prevention. As a result, close monitoring of the patient should be carried out, including:

• • • •

Sex hormone monitoring in hormonal and antiandrogen treatment. Random urine screening for substances. Random breathalyzer monitoring for alcohol and possibly alcohol sensitization medication in high-risk cases. Close psychiatric monitoring of the individual with fantasies checklists, sexual arousal tests. Close psychiatric monitoring for the development of depression or other Axis I psychiatric disorders.

SEXUAL OFFENDER RECIDIVISM Historically, surgical castration had been used for the treatment of severe paraphilias, mostly sexual sadism and pedophilia, with those individuals who were castrated being high-risk, highly recidivating sexual offenders. Surgical castration resulted in a reduction of recidivism from over 60 per cent to less than 5 per cent in the majority of cases as reported in several studies. Langeluddeke (1963) reported the recidivism rate for castrated offenders as 2.3 per cent, compared to 80 per cent in the untreated group when studied for up to twenty years. Cornu (1973) reported that the recidivism rate fell to 4.1 per cent in castrated offenders compared to 75 per cent in those uncastrated over a five-year period, whilst Wille and Beier (1989) reported a 3 per cent recidivism rate for castrates and 46 per cent for non-castrates, followed for eleven years. Sturup (1968) reported on up to eighteen years of follow-up of more than 100 castrated sexual offenders, who had a 4.3 per cent recidivism rate; this was compared to a sample of fifty non-castrated sexual offenders who had a recidivism rate of 43 per cent. Ultimately, it was the understanding of the biological mechanism by which surgical castration impacted deviant sexual behavior that drove the development of antiandrogen treatment for paraphilias. A full review of sexual offender recidivism is beyond the scope of this chapter. However, a recent meta-analysis by Alexander (1997) reported that exhibitionists and pedophiles treated with psychological treatments had lower rates of recidivism than untreated controls. Another meta-analysis completed earlier by Furby, Weinrott, and Blackshaw (1989) was critical that treatment was not effective in most recidivism studies where recidivism rates for a treated group of sexual offenders were compared to untreated sexual offenders as a control. Studies of recidivism using the antiandrogen CPA over one to five years (when corrected for compliance and dosage) showed results similar to those achieved with surgical castration (Bradford 1995).

SELECTIVE SEROTONIN REUPTAKE INHIBITORS (SSRIs) The most recent advance in the treatment of paraphilias has been the use of drugs that affect serotonin (Greenberg and Bradford 1997). Studies in both animals and humans have highlighted the effects of serotonin on sexual behavior. It is known that to increase brain levels of 5HT would reduce sexual drive and behavior. Although sexual behavior in humans is always regarded as being much more complicated than in animals, drugs affecting 5HT levels were seen as perhaps being useful to treat sexually deviant behavior by suppressing sexual drive (Greenberg and Bradford 1997).

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A series of case reports starting in 1990 showed that fluoxetine, an SSRI, had an effect on deviant sexual behavior (Bianchi 1990; Emmanuel, Lydiard, and Ballenger 1991; Lorefice 1991; Perilstein, Lipper, and Friedman 1991; Zohar, Kaplan, and Benjamin 1994). Kafka and Prentky (1992a) treated four patients with non-deviant hypersexuality with fluoxetine hydrochloride and reported significant reductions in sexual drive. Kafka and Prentky (1992b) subsequently completed an outpatient clinical study (n ⫽ 16) using fluoxetine hydrochloride to treat paraphilias and non-paraphilic hypersexuality. All of the patients improved over a twelve-week period with a mean daily dose of 39 mg fluoxetine hydrochloride. Stein et al. (1992) reported a negative study using fluoxetine, whilst Coleman et al. (1992) (using fluoxetine) and another study by Kafka (1994) (using sertraline) reported significant reductions in sexually deviant fantasies, urges, masturbation and sexual behavior. The non-responders in the Kafka (1994) study were offered fluoxetine hydrochloride, and two-thirds showed some clinical improvement over a treatment period of 17.4 weeks. The mean dosage of sertraline was approximately 100 mg per day, whilst that of fluoxetine hydrochloride in the second phase of the study was 51.1 mg per day. Bradford et al. (1995) reported on a twelve-week open label dose-titrated study of pedophilia (n ⫽ 20) using sertraline, the mean effective dosage being 131 mg per day. Some 86 per cent of patients completed the study, and no patient was discontinued due to inadequate treatment response. A high proportion (86 per cent) of patients were rated as responders, with various sexual behaviors being significantly reduced during the duration of the study, while heterosexual coitus actually showed a small increase. Physiological measures of sexual arousal showed decreases in pedophilic arousal and improved or maintained normophilic arousal. This study showed evidence of improvement of normophilic behavior measured as both self-report and sexual arousal. In another (retrospective) study, Greenberg et al. (1996) used three different SSRIs (sertraline, fluoxetine, and fluvoxamine) to treat fifty-eight paraphilic males, and the three drugs were found to be equally effective in reducing measures of sexually deviant behavior. In a later study, Greenberg et al. (1997) compared paraphilic males (n ⫽ 95) treated with SSRIs to a control group (n ⫽ 104) who only received psychological treatment over a twelveweek period. The SSRI-treated subjects showed a significant reduction in deviant sexual fantasies compared to those who received only psychotherapy. The effectiveness of SSRIs in the treatment of sexual offenders requires further investigation, including the use of double-blind treatment. At the same time, the role of serotonin in sexual behaviors has been well established, and the mechanism of action of this compound supports its use in this way. Several clinical studies have been completed and shown great promise, while further studies are planned for the future. As both the paraphilias

and obsessive compulsive disorder respond to SSRIs, it has been speculated that these two psychiatric conditions might have a similar basis, as well as having certain similarities in their clinical characteristics. Indeed, it has been hypothesized that the paraphilias may be part of an obsessive-compulsive spectrum of disorders (Bradford 1991; Bradford 1999). The SSRIs offer an approach to treatment that is useful for most paraphilias of mild or moderate severity. The low side-effect profile of these compounds, and the lack of any hormonal effects, mean that they can be used to treat adolescent sexual offenders. This is important, as most paraphilias begin in adolescence with deviant sexual fantasies and urges, while the actual sexual acting starts later, mostly from the age of 20 years onwards. Early diagnosis and treatment of the condition during adolescence can have a major impact on future victimization, and the SSRIs are playing an increasing role in this treatment approach.

HORMONAL AGENTS The first psychopharmacological agents used to reduce sexual drive were estrogens (Foote 1944; Golla and Hodge 1949; Symmers 1968; Whittaker 1959), and clinical studies showed the treatment to be successful via the reduction of circulating testosterone. However, the adverse side effects of nausea, vomiting, and feminization were problematic and limited the use of these psychopharmacological agents. Medroxyprogesterone acetate (MPA) has been the most widely used psychopharmacological agent for treatment of sexual offenders in the United States. Studies were started in 1958 (Heller et al. 1959) and continue to the present time. A number of clinical studies have been completed (Money 1968; Money 1970; Money et al. 1975; Money et al. 1976; Langevin et al. 1979; Wiedeking, Money, and Walker 1979; Berlin and Meinecke 1981; Gagne 1981; Walker and Meyer 1981; Wincze, Bansal, and Malamud 1986; Kiersch 1990; Maletzky 1991; Cooper, Sandhu, and Losztyn 1992; Fedoroff, Wisper, and Deans 1992; Meyer, Collier, and Emory 1992; Gottesman and Schubert 1993), and most have shown a positive treatment response of sexually deviant behavior to MPA. The mechanism of action of MPA is via the induction of testosterone-alpha-reductase in the liver. This increases the metabolic clearance of testosterone, thereby reducing its plasma levels. MPA also has a progestinic effect that leads to a reduction in the secretion of gonadotropins. Moreover, MPA does not compete with androgen receptors at the receptor level, and so by definition is not a true antiandrogen (Southren et al. 1977). Treatment with MPA results in a number of side effects, including weight gain, decreased sperm production, a hyperinsulinic response to a glucose load which might lead to potential problems in patients with diabetes mellitus, headaches, deep vein

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thrombosis, hot flashes, nausea, and vomiting – all of which can be managed medically (Berlin and Meinecke 1981; Gagne 1981; Walker and Meyer 1981; Meyer et al. 1985). At the same time, a significant impact on sexual behavior was observed including a reduction in sex drive, sexual fantasy and sexual activity (Berlin and Meinecke 1981; Gagne 1981; Walker and Meyer 1981). Clinic studies with MPA are mostly open trials. Initially, MPA was used in the treatment of paraphilic males (Money 1970; Money 1972; Money et al. 1975), using a dosage range of 300 to 400 mg per week, given intramuscularly. Wiedeking, Money, and Walker (1979) reported on the treatment with MPA of seriously sexually deviant XYY males (n ⫽ 11) given MPA intramuscularly at 100–400 mg per week over a period of twelve months, and approximately one-third of the patients showed a positive response to treatment. Langevin et al. (1979) completed a study that was flawed in design for various reasons; the drop-out rate for MPA was very high (67 per cent), and 15 per cent of patients relapsed while on MPA. The two best-known open clinical studies were completed by Berlin and Meinecke (1981) and Gagne (1981). The two studies included about seventy patients, and each showed MPA to be effective treatment provided that the subjects were compliant with dosing as there was a tendency towards significant relapse rate if treatment was discontinued. In the Berlin and Meinecke (1981) study, 20 patients were followed for between one and thirteen years, with a dose range of 200–400 mg given each week (intramuscularly). Three patients relapsed while on MPA, though one of these was related to alcohol abuse. Some 15 per cent of patients relapsed on MPA, and 67 per cent relapsed after discontinuing MPA against medical advice. In the study by Gagne (1981), fifty-eight patients were followed for between one and three years, and 17 per cent relapsed while on MPA. Wincze, Bansal, and Malamud (1986) used MPA in a single case, doubleblind experimental design in three pedophiles. Significant reduction in arousal to erotic stimuli was noted in the active treatment phase compared to the placebo phase, and nocturnal penile tumescence was reduced in all cases. Kiersch (1990) completed a sixty-four-week follow-up study in eight patients treated with MPA as 400 mg weekly depot injections for sixteen weeks alternating with saline injections for a crossover period of sixteen weeks. Treatment outcome was self-reported sexual arousal measures, but the results were variable – mainly due to a design flaw related to the prolonged half-life of MPA. Meyer, Collier, and Emory (1992) studied forty men (mostly pedophiles) treated with MPA (400 mg per week, intramuscularly), and group and individual therapy followed-up for up to twelve years. A control group of twenty-one persons who were treatment refusers was included and treated with psychotherapy over the same follow-up period. Some 18 per cent of subjects reoffended while on MPA, and 35 per cent reoffended after MPA was discontinued. In the control group, 58 per cent of

subjects relapsed, with raised baseline testosterone levels, head injury, alcohol, and substance abuse being factors associated with relapse. Gottesman and Schubert (1993) used a low-dose (60 mg per day, oral) MPA treatment regimen for the paraphilias over a fifteen-month period in an open trial involving seven subjects. This treatment regimen led to a significant fall in plasma testosterone levels when compared to baseline, and a positive outcome was reported with significant reductions in paraphilic fantasies. MPA is a widely used psychopharmacological treatment with few reported serious side effects that could be a barrier to treatment, and the impact on recidivism has been shown in a number of studies, provided that the sexual offender remains on MPA. However, in long-term treatment with MPA with concomitant low levels of plasma testosterone, it is important to monitor for osteoporosis; at the earliest signs of osteopenia, both calcium and vitamin D supplements should be added to the treatment regimen.

LHRH AGONISTS Luteinizing hormone releasing hormone agonists (LHRH agonists) have a very specific treatment role in the paraphilias in that they produce a pharmacological ‘castration.’ The hypothalamic pituitary axis is overstimulated and is exhausted, and there is a significant inhibition of gonadotropin secretion. LHRH agonists have a prolonged action and may potentially be very important in the future treatment of severe paraphilias. The potential use of these drugs to treat paraphilias was first described by Bradford (Bradford 1985), since then limited clinical studies have been conducted on the use of LHRH agonists in this population. Rousseau, Dupont, and Labrie (1988) reported on changes in sexual behavior in prostate cancer patients treated with flutamide (a non-steroidal antiandrogen) and surgical castration. Some patients did not undergo surgical castration and were treated with flutamide and an LHRH agonist, LHRH ethyl amide. The pre-treatment sexual functioning of the patients was compared to post-treatment sexual activity. Following treatment, more than 70 per cent of patients had a major decrease in sexual interest, with sexual intercourse and sexual activity maintained in only 20 per cent of cases and about 60 per cent of cases unable to achieve an erection by sexual fantasy. Rousseau et al. (1990), in a follow-up to the study, reported on a single case study treatment of an exhibitionist with the same LHRH agonist. The dosage was 500 ␮g per day for four weeks, then 250 ␮g per day for twenty-two weeks; the patient also received flutamide. The patient was followed for one year, including nine weeks after discontinuing treatment. The exhibitionistic behavior disappeared, and there was a marked decrease in sexual fantasies during the active treatment phase,

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without any significant side effects. Within nine weeks of discontinuing treatment however, the patient relapsed. Dickey (1992) reported on a treatment resistant case of pedophilia that failed to respond to both MPA and CPA and was successfully treated with leuprolide acetate. Thibaut, Cordier, and Kuhn (1993) reported on the treatment of six males with paraphilia treated with the LHRH agonist triptorelin (3.75 mg per month, intramuscularly). All had a paraphilia, most were pedophiles, and some had failed to respond to antiandrogen treatment. The patients were treated with triptorelin 3.75 mg per month concurrently with CPA 200 mg a day for 5.5 months. In five of the six patients, the deviant sexual behavior was markedly decreased without significant side effects in a follow-up period ranging from seven months to three years. One patient interrupted treatment after twelve months and relapsed two to three months later. The most important study to date in relation to the treatment of paraphilias with LHRH agonists was reported by Rosler and Witztum (1998). This was an uncontrolled open study of the treatment of thirty men (mean age 32 years) and who suffered from longstanding severe sexual deviation; twenty-five of the thirty men suffered from pedophilia. They were treated with monthly injections of 3.75 mg triptorelin and supportive psychotherapy for a follow-up period of between eight and forty-two months, with treatment outcome being evaluated monthly by questionnaire. All of the men had a decrease in the number of deviant sexual fantasies and urges; quantitatively during therapy, this was reduced to zero. There was also a significant decrease in the number of deviant sexual interests to zero while receiving triptorelin. These effects were observed for at least one year in all of the men (n ⫽ 24) that continued treatment for a year. The plasma testosterone levels fell to castration levels. With the triptorelin treatment, side effects were erectile failure, hot flushes, and some decrease in bone mineral density. In a recent study, Briken, Nika, and Brener (2001) used leuprolide acetate over a twelve-month period to treat sexually deviant males. There was a significant impact on sexually aggressive behavior as well as other sexual behavior. As with surgical castration, the risk of osteoporosis with treatment using a LHRH agonist is significant, and bone density studies should be conducted on an annual basis. Prophylactic treatment with vitamin D and a calcium supplement should be considered. It is clear that LHRH agonists are going to play an increasingly important role in the treatment of sexual offenders in the future, and further research is needed when using these psychopharmacological agents. Although no outcome studies are available, the effects on available androgen is very similar to what is seen in surgical castration. As a result, the outcome of long-term LHRH agonist treatment on sexual offender recidivism should be very similar – if not identical – to the surgical castration studies, provided that the treatment is continuous.

LHRH analogues available for clinical use include leuprolide acetate, triptorelin (not available in the United States, but available shortly in Canada) and goserilin acetate.

ANTIANDROGENS Cyproterone acetate (CPA) is a very powerful antiandrogen that has been widely used in Canada and Europe, but is not available in the United States. It has antiandrogen, antigonadotropic and also progestinic effects, and has a principal mode of action at androgen receptors throughout the body. It is a true antiandrogen as its mode of action is to block intracellular testosterone uptake and intracellular metabolism of the androgen (Neumann 1977; Liang et al. 1997). The effects of this medication are largely dose-dependent, with sexual behavior decreasing because of a reduction in plasma testosterone as well as receptor blockade. This includes erections, masturbation, sexual intercourse and deviant sexual behavior (Neumann and Schleusener 1980; Bradford 1985; Bradford 1995). CPA has very strong progestational action (Schering 1983), and also blocks or reduces LHRH secretion (Neumann and Schleusener 1980). The full antigonadotropic effect of CPA is only seen in females, as in males the antiandrogen and anti-gonadotropic effects balance. The specific mode of action of CPA is competitive inhibition of testosterone and dihydrotestosterone at the androgen receptors. When given orally, CPA is 100 per cent bioavailable, and has a plasma half-life of 38 hours. In the intramuscular depot form, maximum plasma levels are typically reached in 82 hours (Schering 1983). The side effects of CPA treatment are similar to those seen with MPA, and there is also a possibility of liver dysfunction and adrenal suppression (Bradford 1995). CPA is also the most extensively studied pharmacological agent used to treat paraphilias, with the first clinical studies being conducted in Germany in 1971 in over 100 sexually deviant men (Laschet and Laschet 1971). The subjects were about 50 per cent sexual offenders, and the duration of treatment in an open clinical trial ranged from six months to over four years. It had been documented in 80 per cent of cases, CPA (100 mg per day) eliminated sexual drive, erections, and orgasms, whereas a dose level of 50 mg per day caused a reduced libido but allowed erections to occur and some heterosexual and homosexual sexual behavior to continue weekly. In about 20 per cent of exhibitionists there was a complete elimination of all deviant sexual behavior, even after treatment was discontinued. This is not completely understood, but could be the result of down-regulating androgen receptor sensitivity. Undesirable side effects documented in this study were fatigue, transient depression, weight gain (20 per cent of cases) and some form of feminization including slight gynecomastia. In a subsequent study, Laschet and

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Laschet (1975) reported on 300 men treated for up to eight years with an excellent treatment response, with minimal side effects in long-term management being reported, while Davies (1974) completed a study on fifty patients for up to five years with only minimal side effects and very good treatment outcome. Bancroft et al. (1974) compared CPA (100 mg per day) and ethinyl estradiol (0.2 mg per day) in 12 patients. No significant side effects were reported, although most side effects were noted with the ethinyl estradiol. Arousal to deviant erotic stimuli as measured by penile tumescence was not reduced by ethinyl estradiol, but was reduced by CPA treatment. A number of other studies (Ott and Hoffet 1968; Cooper et al. 1972; Cooper 1981) have all shown CPA as effective in reducing deviant sexual behavior. The largest group of sexually deviant men (n ⫽ 300) ever studied in pharmacological treatment was in a study reported by Mothes et al. (1971), while Laschet and Laschet (1975) reported details on 200 men, with duration of treatment ranging from two months to eight years and doses ranging from 50 to 100 mg CPA orally, and depot CPA with weekly or bi-weekly doses ranging from 300 to 600 mg per injection. The side effects in the first two months were fatigue, hypersomnia, depression, negative nitrogen balance, and weight gain. At about three months, the nitrogen balance had returned to normal and calcium and phosphate metabolism normalized. At about eight months into treatment, and in about 20 per cent of cases, there were signs of feminization with some gynecomastia and a reduction in body hair. Beneficial responses however were a reduction in paraphilic behavior with decreases in erections, sexual fantasies, and sexual drive reported in 80 per cent of the cases given CPA 100 mg per day, orally. Twenty-five patients were followed-up for up to five years after treatment and, following the discontinuation of CPA, showed no evidence of any further paraphilic behavior. A doubleblind placebo-controlled crossover study was completed by Bradford and Pawlak (1993a), whilst a similar study using CPA and evaluating the effect on the sexual arousal patterns of pedophiles was also reported in 1993 by the same authors (Bradford and Pawlak 1993b). A single case study was also reported (Bradford and Pawlak 1987) which showed CPA to be an effective agent in the treatment of very severe paraphilia – specifically a sadistic sexually motivated homicide. It was also noted that very severe temporal lobe damage had occurred, and it was in this single case study with repeated measures that for the first time a suppression of deviant sexual arousal was seen in contrast to no or little suppression of a normophilic response. The sexual arousal patterns were normalized by CPA treatment. This same result was seen in the study on sexual arousal patterns of pedophiles (Bradford and Pawlak 1993b). In the double-blind, placebo-controlled crossover study, nineteen subjects (mostly pedophiles) were studied; all had high pretreatment recidivism rates with a mean of 2.5 previous convictions per subject, and all met the DSM-III-R

criteria for a paraphilia. CPA was administered orally in three-month active treatment phases with a crossover placebo design. There was a reduction in sexual arousal of responses by active drug, but this did not quite reach statistical significance. Self-report measures of arousal were all significantly reduced, while psychopathology measured by rating scales showed significant reductions, and self-reported sexual activity was significantly reduced. Other objective measures of sexuality including fantasies and masturbation were all significantly decreased by CPA (Bradford and Pawlak 1993a). CPA is the only pharmacological intervention that has been subjected to research into treatment outcome and recidivism. A number of studies have shown CPA to be effective in reducing post-treatment recidivism rates (Bradford 1995). Pre-treatment rates of recidivism ranged from 50 per cent to 100 per cent, and the post-treatment rate was 0 per cent in follow-up periods ranging from one to five years. The recidivism rate was adjusted for treatment compliance.

CONCLUSIONS AND RECOMMENDATIONS The psychopharmacological treatment of sexual deviation has a sound basis in the neurobiology of sexual behavior. Compared to other psychopharmacological treatments in psychiatry, more is known of the actual mechanisms of action in these psychopharmacological agents used in the treatment of paraphilias. There is considerable knowledge of the effects of serotonin on sexual behavior in both animal research and open clinical studies in men with paraphilias and hypersexuality, as well as treatment of other psychiatric conditions. The antiandrogen and hormonal treatments (CPA, MPA, and LHRH agonists) also have a sound scientific basis in the neuroendocrinology and endocrinology of sexual behavior. The differential effect on sexual arousal patterns documented with CPA and sertraline is a fascinating research finding in both practical and neurobiological terms. The ideal treatment outcome with a normalization of sexual preference in sexually deviant males is supported by this research finding. The major problem when using the psychopharmacological treatment approach in sexual offenders has been the lack of government and pharmaceutical industry support for research, and this has led to there being a lack of double-blind placebo-controlled studies. Further significant ethical barriers exist because of the risk to third parties, and this had made doubleblind, placebo-controlled studies very difficult to complete in sexually deviant men. Moreover, most psychopharmacological agents are used in off-label indications. Nonetheless, despite these difficulties, this is an important treatment approach and, when combined with cognitive behavioral treatment and relapse prevention treatment, provides a very powerful tool for the treatment and rehabilitation of sexual offenders.

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Further research is clearly needed in all the pharmacological agents but particularly in the case of SSRIs and LHRH agonists. Interesting future research opportunities are likely to arise when drugs that are highly specific to serotonin subreceptors are developed (e.g., the 5HT1a receptor). This could mean a clinical ‘mapping’ of the behaviors associated with pharmacological activity at a specific receptor, and would mirror research that has been carried out in animal research where sexual behavior is subreceptor-specific in some species. Future research opportunities will be highly dependent on both the pharmaceutical industry and, even more critically, government support. In this respect, universities throughout North America and Europe need to establish centers of excellence in order to promote research in all aspects of sexual behavior.

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Bianchi, M.D. 1990. Fluoxetine treatment of exhibitionism. American Journal of Psychiatry 147, 1089–90. Bradford, J.M.W. 1985. Organic treatments for the male sexual offender. Behavioral Sciences and the Law 3, 355–75. Bradford, J.M.W. 1989: Special considerations in the evaluation of alleged sex offenders. In Rosner, R., Harmon, R.B. (eds), Critical Issues in American Psychiatry and the Law. Volume 5. New York, NY: Plenum. Bradford, J.M.W. 1991: The role of serotonin reuptake inhibitors in forensic psychiatry. Congress of European College of Neuropsychopharmacology: The Role of Serotonin in Psychiatric Illness, IVth ECNP Monte Carlo, Monaco. Bradford, J.M.W. 1995: Pharmacological treatment of the paraphilias. In Oldham, J.M., Riba, M. (eds), Review of Psychiatry. Volume 14. Washington, DC: American Psychiatric Press, 755–78. Bradford, J.M.W. 1998. Treatment of men with paraphilia. New England Journal of Medicine 338, 464–5. Bradford, J.M.W. 1999. The paraphilias, obsessivecompulsive spectrum disorder and the treatment of sexually deviant behaviour. Psychiatric Quarterly 70, 209–20. Bradford, J.M.W. 2000. The treatment of sexual deviation using a pharmacological approach. The Journal of Sex Research 37, 248–57. Bradford, J.M.W. 2001. The neurobiology, neuropharmacology and pharmacological treatment of the paraphilias and compulsive sexual behaviour. Canadian Journal of Psychiatry 46, 26–4. Bradford, J.M.W., Pawlak, A. 1987. Sadistic homosexual pedophilia: treatment with cyproterone acetate. A single case study. Canadian Journal of Psychiatry 32, 22–31. Bradford, J.M.W., Pawlak, A. 1993a. Effects of cyproterone acetate on sexual arousal patterns of pedophiles. Archives of Sexual Behavior 22, 629–41. Bradford, J.M.W., Pawlak, A. 1993b. Double-blind placebo crossover study of cyproterone acetate in the treatment of the paraphilias. Archives of Sexual Behaviour 22, 383–402. Bradford, J.M.W., Boulet, J., Pawlak, A. 1992. The paraphilias: a multiplicity of deviant behaviours. Canadian Journal of Psychiatry 37, 104–8. Bradford, J.M.W., Greenberg, D., Gojer, J., Martindale, J.J., Goldberg, M. 1995. Sertraline in the treatment of pedophilia: an open label study. New Research Program Abstracts # 441; American Psychiatric Association Meeting, Florida, May 24, 1995. Bremer, J. 1959: Asexualization – A Follow-Up Study of 244 Cases. New York: MacMillan. Briken, P., Nika, E., Brener, W. 2001. Treatment of paraphilias with luteinizing hormone-releasing

696 Special clinical issues in forensic psychiatry hormone agonists. Journal of Sex and Marital Therapy 27, 45–55. Coleman, E., Cesnik, J., Moore, A.M., Dwyer, S.M. 1992. An exploratory study of the role of psychotropic medications in treatment of sexual offenders. Journal of Offender Rehabilitation 18, 75–88. Cooper, A.J. 1981. A placebo controlled study of the antiandrogen cyproterone acetate in deviant hypersexuality. Comprehensive Psychiatry 22, 458–64. Cooper, A.J., Ismail, A.A., Phanjoo, A.L., Love, D.L. 1972. Antiandrogen (cyproterone acetate) therapy in deviant hypersexuality. British Journal of Psychiatry 120, 59–63. Cooper, A.J., Sandhu, S., Losztyn, S. 1992. A double-blind placebo controlled trial of medroxyprogesterone acetate and cyproterone acetate with seven pedophiles. Canadian Journal of Psychiatry 37, 687–93. Cornu, F. 1973: Katamnesen bei kastrierten Sittlichkeitsdelinquenten aus forensisch-psychiatrischer Sicht. Fortschr Med 90(28), 1035–6. Davies, T.D. 1974. Cyproterone acetate for male hypersexuality. Journal of International Medical Research 2, 159–63. Dickey, R. 1992. The management of a case of treatmentresistant paraphilia with a long-acting LHRH agonist. Canadian Journal Psychiatry 37, 567–9. Emmanuel, N.P., Lydiard, R.B., Ballenger, J.C. 1991. Fluoxetine treatment of voyeurism. American Journal of Psychiatry 148, 950. Everitt, B.J., Bancroft, J. 1991: Of rats and men: the comparative approach to male sexuality. In Bancroft, J., Davis, C.M., Ruppel, H.J. (eds), Annual Review of Sex Research. Volume III. Lake Mills, IA: The Society for the Scientific Study of Sex. Fedoroff, J.P., Wisper, C.R., Deans, S. 1992. Medroxy progesterone acetate in the treatment of paraphilic sexual disorders: rate of relapse in men treated in long term group psychotherapy with or without medroxy progesteron acetate. Journal of Offender Rehabilitation 18, 109–23. Foote, R.M. 1994. Diethylstilboestrol in the management of psychopathological states in males. Journal of Nervous and Mental Disease 99, 928–35. Furby, L., Weinrott, M.R., Blackshaw, L. 1989. Sex offender recidivism: a review. Psychological Bulletin 165, 3–30. Gagne, P. 1981. Treatment of sex offenders with medroxyprogesterone acetate. American Journal of Psychiatry 138, 644–6. Golla, F.L., Hodge, S.R. 1949. Hormone treatment of sexual offenders. Lancet, 1006–7. Gottesman, H.G., Schubert, D.S. 1993. Low-dose oral medroxyprogesterone acetate in the management of the paraphilias. Journal of Clinical Psychiatry 54, 182–8.

Greenberg, D.M., Bradford, J.M.W. 1997. Treatment of the paraphilic disorders: a review of the role of the selective serotonin reuptake inhibitors. Sexual Abuse: A Journal of Research and Treatment 9, 349–61. Greenberg, D.M., Bradford, J.M., Curry, S., O’Rourke, A. 1996. A comparison of treatment of paraphilias with three serotonin reuptake inhibitors: a retrospective study. Bulletin of the American Academy of Psychiatry and the Law 24, 525–32. Greenberg, D.M., Bradford, J.M., Curry, S., O’Rourke, A. 1997. A controlled study of the treatment of paraphilic disorder with serotonin reuptake inhibitors. Sexual Abuse: A Journal of Research and Treatment 9, 349–61. Hanson, R.K. 1997: The development of a brief actuarial scale for sexual offence recidivism (User report 97–04). Ottawa: Department of the Solicitor General of Canada. Hanson, R.K., Bussiere, M.T. 1998. Predicting relapse: meta-analysis of sexual offender recidivism studies. Journal of Consulting and Clinical Psychology 66, 348–62. Hanson, R.K., Thornton, D. 1999: Static 99: Improving Actuarial Risk Assessment for Sex Offenders (User report 99–02). Ottawa: Department of the Solicitor General of Canada. Hare, R.D. 1990: The Hare Psychopathy Checklist – Revised. Toronto: Multihealthsystems. Heim, N., Hursch, C.J. 1979. Castration for sexual offenders: treatment or punishment? A review and critique of recent European literature. Archives of Sexual Behaviour 8, 281–304. Heller, C., Laidlaw, W., Harvey, H., Nelson, W. 1959. Effects of progestational compounds on the reproductive processes of the human males. Annals of the New York Academy of Sciences 71, 649–55. Hines, M., Collaer, M.L. 1994: Gonadal hormones and sexual differentiation of human behaviour: developments from research on endocrine syndromes and studies of brain structure. In Bancroft, J., Davis, C.M., Ruppel, H.J. (eds), Annual Review of Sex Research. Volume IV. Lake Mills, IA: The Society for the Scientific Study of Sex. Kafka, M.P. 1994. Sertraline pharmacotherapy for paraphilias and paraphilia-related disorders: an open trial. Annals of Clinical Psychiatry 6, 189–95. Kafka, M.P., Prentky, R. 1992a. Fluoxetine treatment of non-paraphilic sexual addictions and paraphilias in men. Journal of Clinical Psychiatry 53, 351–8. Kafka, M.P., Prentky, R. 1992b. A comparative study of non-paraphilic sexual addictions and paraphilias in men. Journal of Clinical Psychiatry 53, 345–50. Kiersch, T.A. 1990. Treatment of sex offenders with Depo-Provera. Bulletin of the American Academy of Psychiatry Law 18, 179–87. Langeluddeke, A. 1963: Die Emtmannung Von Sittlich. Keitsverbrecher Berlin: de Gruyter.

Psychopharmacological treatment of sex offenders 697 Langevin, R., Paitich, D., Hucker, S., Newman, S., Ramsay, G., Pope, S., Geller, G., Anderson, C. 1979. The effect of assertiveness training, provera and sex of therapist in the treatment of genital exhibitionism. Journal of Behavioral Therapy and Experimental Psychiatry 10, 275–82. Laschet, U., Laschet, L. 1971. Psychopharmacotherapy of sex offenders with cyproterone acetate. Pharmakopsychiatrie Neuropsychopharmakologic 4, 99–104. Laschet, U., Laschet, L. 1975. Antiandrogens in the treatment of sexual deviations of men. Journal of Steroid Biochemistry 6, 821–6. Lee, R., Coccaro, E. 2001. The neuropsychopharmacology of criminality and aggression. Canadian Journal of Psychiatry 46, 35–44. Le Maire, L. 1956. Danish experiences regarding the castration of sexual offenders. Journal of Criminal Law, Criminology and Police Science 47, 295–310. Liang, T., Tymoczko, J.L., Chan, K.M.B., Hung, H.C., Liao, S. 1977: Androgen action: receptors and rapid responses. In Martini, L., Motta, M. (eds), Androgens and Antiandrogens. New York: Raven Press, 77–89. Lorefice, L.S. 1991. Fluoxetine treatment of a fetish (letter). Journal of Clinical Psychiatry 52, 436–7. Maletzky, B.M. 1991: Treating the Sexual Offender. Newbury Park, CA: Sage. Meyer, W.J., Walker, P.J., Emory, L.E., Smith, C. 1985. Physical, metabolic and hormonal effects on men of long-term therapy with medroxyprogesterone acetate. Fertility and Sterility 43, 102–9. Meyer, W.J., Collier, C., Emory, E. 1992. Depo provera treatment for sex offending behavior: an evaluation of outcome. Bulletin of the American Academy of Psychiatry and the Law 20, 249–59. Money, J. 1968: Discussion of the hormonal inhibition of libido in male sex offenders. In Michael, R. (ed.), Endocrinology and Human Behavior. London: Oxford University Press 169–70. Money, J. 1970. Use of androgen depleting hormone in the treatment of male sex offenders. Journal of Sex Research 6, 165–72. Money, J. 1972. The therapeutic use of androgendepleting hormone. International Psychiatry Clinics 8, 165–74. Money, J., Wiedeking, C., Walker, P., Migeon, C., Meyer, W., Borgaonkar, D. 1975. 47, XYY and 46, XY males with antisocial and/or sex-offending behavior: antiandrogen therapy plus counseling. Psychoneuroendocrinology 1, 165–78. Money, J.M., Wiedeking, C., Walker, P.A., Gain, D. 1976: Combined antiandrogen and counseling program for treatment of 46, XY and 47, XYY sex offenders. In Sachar, E. (ed.), Hormones, Behavior and Psychopathology. New York: Raven Press, 195–220. Mothes, C., Lehnert, J., Samimi, F., Ufer, J. 1971. Schering symposium uber sexual deviationen und ihre

medikamentose Behandlung. Life Sciences Monograph 2, 65. Neumann, F. 1977. Pharmacology and potential use of cyproterone acetate. Hormone and Metabolic Research 9, 1–13. Neumann, F., Schleusener, A. 1980: Pharmacology of cyproterone acetate with special reference to the skin. In Vokoer, R., Fanta, D. (eds), The Pharmacology of Cyproterone Acetate Combined Antiandrogen-Estragen Therapy in Dermatology. Brussels, Belgium: Proceedings of Dianne Symposium, 19–57. Ortmann, J. 1980. The treatment of sexual offenders, castration and antihormone therapy. International Journal of Law and Psychiatry 3, 443–51. Ott, F., Hoffet, H. 1968. The influence of antiandrogens on libido, potency and testicular function. Schweizerische Medizinische Wochenschrift 98, 1812–15. Owens, M.J., Nemeroff, C.B., Bissette, G. 2000: Neuropeptides: biology and regulation. In Sadock, B.J., Sadock, V.A. (eds), Comprehensive Textbook of Psychiatry. Philadelphia: Lippincott Williams & Wilkins, 60–71. Parades, R.G., Baum, M.J. 1997: Role of the medial preoptic area/anterior hypothalamus in the control of masculine sexual behavior. In Rosen, R., Davis, C.M., Ruppel, H.J. (eds), Annual Review of Sex Research VIII. Mason City, IA: The Society for the Scientific Study of Sex, 68–101. Perilstein, R.D., Lipper, S., Friedman, L.J. 1991. Three cases of paraphilias responsive to fluoxetine treatment. Journal of Clinical Psychiatry 52, 169–70. Peters, S.D., Wyatt, G.E., Finkelhor, D. 1986: Prevalence. In Finkelhor, D. (ed.), A Source Book on Child Sexual Abuse. Beverley Hills, CA: Sage Publications, 15–59. Reus, V.I., Frederick-Osborne, S. 2000: Psychoneuroendocrinology. In Sadock, B.J., Sadock, V.A. (eds), Comprehensive Textbook of Psychiatry. Philadelphia: Lippincott Williams & Wilkins, 104–13. Rosler, A., Witztum, E. 1998. Treatment of men with paraphilia with a long acting analogue of gonadotropin-releasing hormone. New England Journal of Medicine 338, 416–65. Rousseau, L.R., Dupont, A., Labrie, F. 1988: Sexuality and antihormonal therapy in prostate cancer. In Eicher, W., Kockott, G. (eds), Sexology. Berlin, Germany: Springer-Verlag, 290–303. Rousseau, L.R., Couture, M., Dupont, A., Labrie, F., Couture, N. 1990. Effect of combined androgen blockade with an LHRH agonist and flutamide in one severe case of male exhibitionism. Canadian Journal of Psychiatry 35, 338–41. Rubinow, D.R., Schmidt, P.J. 1996. Androgens, brain and behavior. American Journal of Psychiatry 153, 974–84.

698 Special clinical issues in forensic psychiatry Schering, A.G. 1983: Androcur. Berlin, Germany: Berlin/Bergkamen. Southren, A.L., Gordon, G.G., Vittek, J., Altman K. 1977: Effect of progestagens on androgen metabolism. In Martini, L., Motta, M. (eds), Androgens and Antiandrogens. New York: Raven Press, 263–79. Stein, D.J., Hollander, E., Anthony, D.T., Schneider, F.R., Fallon, B.A., Liebowitz, M.R. 1992. Serotonergic medications for sexual obsessions, sexual addictions and paraphilias. Journal of Clinical Psychiatry 53, 267–71. Sturup, G.K. 1968. Treatment of sexual offenders in Herstedvester, Denmark: the rapists. Acta Psychiatrica Scandinavica (suppl. 204). Sturup, G.K. 1972: Castration: the total treatment. In Resnik, H.L.P., Wolfgang, M.E. (eds), Sexual Behaviors: Social, Clinical and Legal Aspects. Massachusetts: Little Brown, 361–82. Symmers, W.S.C. 1968. Carcinoma of the breast in transsexual individuals after surgical and hormonal interference with primary and secondary sex characteristics. British Medical Journal 2, 83–5. Tecott, L.H. 2000: Monoamine neurotransmitters. In Sadock, B.J., Sadock, V.A. (eds), Comprehensive Textbook of Psychiatry. Philadelphia: Lippincott Williams & Wilkins, 41–9. Thibaut, F., Cordier, B., Kuhn, J.M. 1993. Effect of a long-lasting gonadotrophin hormone-releasing

hormone agonist in sex cases of severe male paraphilia. Acta Psychiatrica Scandinavica 87, 445–50. Travin, S. 1994: Sex offenders: diagnostic assessment, treatment and related issues. In Rosner, R. (ed.), Principles and Practices of Forensic Psychiatry. New York: Chapman & Hall, 528–34. Walker, P.A., Meyer, W.J. 1981: Medroxyprogesterone acetate treatment for paraphiliac sex offenders. In Hays, J.R., Roberts, T.K., Solway, K.S. (eds), Violence and the Violent Individual. New York: SP Medical and Scientific Books, 353–73. Whittaker, L.H. 1959. Oestrogens and psychosexual disorders. Medical Journal of Australia 2, 547–9. Wiedeking, C., Money, J., Walker, P.A. 1979. Follow up of 11 XYY males with impulsive and/or sex-offending behavior. Psychological Medicine 9, 287–92. Wille, R., Beier, K.M. 1989. Castration in Germany. Annals of Sex Research 2, 103–33. Wincze, W.P., Bansal, S., Malamud, M. 1986. Effects of medroxyprogesterone acetate on subjective arousal, arousal to erotic stimulation and nocturnal penile tumescence in male sex offenders. Archives of Sexual Behavior 15, 293–305. Zohar, J., Kaplan, Z., Benjamin, J. 1994. Compulsive exhibitionism successfully treated with fluvoxamine: a controlled case study. Journal of Clinical Psychiatry 55, 86–8.

72 Prosecution of assaultive patients GARY J. MAIER AND STEPHEN RACHLIN

INTRODUCTION The Hippocratic Oath, which first defined the ethical relationship between the physician and the patient, demands that the physician ‘first do no harm.’ It is assumed that physicians only intend well to their patients and, in the reverse, that they intend no harm when they treat their patients. In 1910, Freud described, for the first time in the medical literature, the fact that he as a psychiatrist had feelings toward his patients and he noted that these feelings had to be taken into account when treating the patient. He introduced the analytic concept of countertransference. Prior to the psychopharmacology revolution, Winnicott (1949) described two cases in which he grew to hate his patients. Winnicott had difficulty with the first patient, who had a psychotic disorder, because he was unable to influence the illness process. The second patient he described had an antisocial personality disorder, which seemed to actively frustrate the treatment process. Is it counter-transference which would lead a psychiatrist to prosecute a patient, or is it something else? The first published case of the criminal prosecution of an inpatient was in 1978 (Schwartz and Greenfield 1978), heralding a procedure that has resulted in the publication of more than 20 cases. There is no doubt that patient violence against other patients and staff has increased (Owen et al. 1998a; Owen et al. 1998b), and this increase has occurred whether the patients are male or female (Lam, McNiel, and Binder 2000), in the community (McNiel, Binder, and Fulton 1998; Sandberg, McNiel, and Binder 1998), in the emergency room (Goldberg and Lion 1996; Currier and Allen 2000), on the medical ward (Ladds and Lion 1996), the psychiatric unit (McNiel and Binder 1995), or in the state hospital (Norko, Zonana, and Phillips 1992). This increase in violence has become a topic of discussion in the medical community and a source of contention between some clinicians. Furthermore, the conflict between a hospital’s responsibility to pursue its therapeutic mission and its responsibility to safeguard its environment

can bring out the intensity of the diversity of views when a decision is made to prosecute a patient for aggressive behavior (Miller and Maier 1987; Meloy 1991). Given these changing times, why has prosecution become a method for managing this type of behavior (Cohen and Hoge 1996)? Why have responsible clinicians called for ethical debate (Morrison 1998) and for policy formulation (Appelbaum and Appelbaum 1991)?

INCREASED INTEREST IN PURSUING PROSECUTION There are a number of reasons why there is increased interest in pursuing prosecution as a means of responding to willful patient aggression (Dubin and Lion 1996). They can best be understood when presented in the historical context of the impact of changing public policy. First, with deinstitutionalization, patients who were considered safe to live in the community were discharged from state hospitals because they were thought less likely to be violent or disruptive. As a result, the patients who remained in hospital were, on average, disproportionately violent. State hospitals began to harbor a subset of the mentally ill, those who were more likely to be violent. Second, the standard of civil commitment changed from ‘in need of treatment’ to dangerousness-based criteria. The standards for civil commitment in all states now include a mental illness and imminent or foreseeable dangerous behavior to self or others. Third, when patients did accept voluntary admission, they were likely to accept ‘voluntary’ treatment and, in the reverse, when patients were admitted involuntarily, they were more likely to exercise their right to refuse treatment. Studies have clearly demonstrated that patients who initially refuse treatment are more likely to be assaultive than are treatment-compliant patients (Hoge et al. 1990). Fourth, with Tarasoff v. Regents of the University of California (1976) and its progeny, clinicians have been given the duty to protect third parties from

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future harm from patients. This has increased the burden on the clinician, which has resulted in some patients being hospitalized largely in fulfillment of this duty, and some clinicians feeling compelled to retain potentially violent patients even when their treatment needs have been met, in order to prevent liability. An analysis of these issues reveals that hospitals that treat the mentally ill have nearly lost control over the laws and procedures that govern admission to hospital (Miller 1996). As society has become more interested in public safety, persons who ordinarily might have been placed in jail or in prison are now being assessed in hospitals for forensic evaluations. There is no doubt that the range of diagnoses of current psychiatric inpatients has changed radically over the years (Volavka et al. 1995). Inpatient settings rarely have voluntary patients who are simply homeless, friendless, moneyless, or coping poorly in society. To underline the point, current admissions must have a bona fide DSM-IV Axis I ‘treatable’ clinical syndrome, and they must show a certain level of danger to themselves or others, as the admission criteria. The inpatient setting, therefore, has a subset of mentally ill and dangerous patients who have the right to refuse treatment except in emergencies. When civil patients refuse treatment, most States require a court hearing to determine whether the patient is competent to give informed consent, a necessary step prior to overriding the right to refuse treatment by a court order. Forced treatment usually means forced psychotropic medication. Patients have always resented having psychiatric ‘treatments’ forced on them, but now when they exercise their rights and are overruled by the judge, some of them act out continued resentment and anger against the psychiatric staff and not court officials. Furthermore, the courts have become more active in referring inmates who may not be competent to stand trial for assessment for competency to stand trial and in some states for the assessment of criminal responsibility (Miller 1987). On the surface, this may not seem significant, but in practice it means that forensic units now have a larger portion of untreatable ‘inmates’ living side by side with truly mentally ill patients who are in various stages of treatment. These ‘jail transfers’ are often not only not mentally ill, but rather are often high-functioning personality disordered persons who seem to enjoy disrupting the environment necessary for the treatment of the truly mentally ill. When these pseudo-patients are given rights as patients, rights that are far more liberal than the ‘jail or prison rights’ that formerly governed their behavior, they become not just difficult to manage, they create an unsafe environment. Confusion in the principles governing the security needs of both groups has led to the conclusion that these inpatient settings require a separate set of security guidelines, ones that, at the present time, do not meet the current Centers for Medicare and Medicaid Services (formerly Health Care Financing Administration) or Joint Commission on Accreditation of Health Care Organizations guidelines/standards. The difficulty in complying with new

standards limiting the use of seclusion/restraint coupled with the possibility of successful litigation against the hospital for not protecting patients or staff from aggression, has left many hospitals no choice but to refuse admission for these patients or to consider decertifying select units in order to maintain safety. The hospital’s liability for maintaining a safe environment (Belden and Moniz 1996) and the need to train staff in more effective techniques for managing aggressive behavior, techniques that might entail the use of pain compliance, are topic areas that may need to be considered (Maier 1996). To assess the clinical impression that the inpatient population has become more dangerous Volavka et al. (1995) described the inpatient population of two state hospitals in New York State. When they looked at the characteristics of the state hospital patients who were arrested for offenses committed while hospitalized, ‘the sample more closely resembled the population of criminal offenders in the community than in the psychiatric inpatient population.’ While these may be some of the reasons why there has been an increase in interest in criminal prosecution, consider the problems that must be addressed as a policy describing the procedure to follow in order to prosecute assaultive behavior evolves.

ETHICAL ISSUES UNDERLYING PROSECUTION The ethical issues that must be addressed when considering prosecuting an inpatient have been adequately described in the literature (Appelbaum and Appelbaum 1991; Cohen and Hoge 1996). The clinician–patient responsibility is fiduciary in nature; that means that the clinician is expected to act in the best interest of the patient rather than that of the treater. Clinicians who fail to act in the interest of the patient can be subject to liability based on malpractice or breach of implied contract. While this has yet to be tested in the courts, in theory a patient who has assaulted a clinician could conceivably sue the clinician for pressing charges. And to complicate matters, hospitals also have a fiduciary responsibility. The Department of Justice reportedly has investigated hospitals that pursue prosecution with a high rate of frequency for possible violation under the Civil Rights of Institutionalized Persons Act (Appelbaum and Dimieri 1995). The obligation that psychiatrists owe to patients is defined in more technical, ethical language which includes beneficence, the affirmative duty to act in the patient’s interest; non-malfeasance, the obligation to do no harm; and autonomy, the obligation to respect the patient’s right to self-determination. For some clinicians, this has become a battleground of ethical conflict. Clinicians who adhere to the position that as physicians they must act solely in the best interest of the patient, have difficulty accommodating to the idea that prosecuting a

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patient can, at times, be in the patient’s best interest. This is beyond counter-transference. Clinicians who hold this position do not fully accept the ‘responsibility model.’ They want to excuse the patient’s behavior because of their mental disorder. Other clinicians hold that they must help their patients take responsibility for their behavior, a well-established part of therapy, and therefore believe that prosecuting the patient can be just one more method of teaching responsibility. The conflict becomes even more exaggerated when the patient has a primary Axis II diagnosis or a substance abuse problem, and these ‘patients’ can divide staff. There are many bona fide mental patients who are not capable of controlling their aggressive behavior due to mental illness. Historically, staff have been willing to accept patients’ aggressive behavior when it is clearly a product of their mental disorder, albeit as an undesirable part of their job (Maier 1989). However, patients are expected to respect the rights of others and refrain from exhibiting unlawful behaviors when placed in the hospital. Because there has been an increase in patients who have DSM-IV Axis II diagnoses of antisocial personality disorder (Hare 1998) and who actively abuse alcohol and other substances, which can affect their ability to control their mood and behavior, staff identify the aggressive acts of these patients as willful. Because they are willful, they are therefore appropriate for prosecution. Line staff have come to expect that willful patient aggression should be managed by the judicial system. In these circumstances, hospitals, clinics, and individual clinicians have had a progressively greater demand placed on them to involve the criminal justice system to hold the patient responsible for criminal behavior. Thus, case reports have grown over the years (Hoge and Gutheil 1987; Miller and Maier 1987; Rachlin 1994). At the same time, several papers have identified the need for a set of guidelines to govern the criteria for prosecution and the method of implementing the procedure (Appelbaum and Appelbaum 1991; Cohen and Hoge 1996). There are other rights issues which must be addressed, especially in the inpatient setting. First, the issue of the confidentiality of the assaultive patient must be considered. The Tarasoff (1976) decision has made it clear that clinicians have an affirmative duty to identify potentially dangerous patients to those who could be victims in the future. There is, therefore, little disagreement that the threat of assaultive behavior is an exception to the right to confidentiality that a potentially dangerous patient might expect. Second, implied in the above is the need to protect other patients and staff who might be in danger. Hospitals have a responsibility to provide a safe and humane environment for all patients. Dangerous behavior and its consequences can destroy the therapeutic, trusting environment. Finally, hospitals also have the obligation to provide staff with a reasonably safe, secure and humane environment. These competing obligations must be considered at the time of the decision to prosecute (Simonowitz 1996).

GUIDELINES FOR PROSECUTION There are a small number of patients who exhibit willful aggressive behavior, the consequences of which could be managed by the criminal justice system using the responsibility model. The procedure for carrying out these guidelines will necessarily depend on each clinic and hospital, but the guidelines in general must be developed with the local police department and district attorney so that the police will not be flooded with nuisance investigations, which will impair the credibility of the hospital. That is, it must be understood that traditionally mentally disordered patients who are currently sick and either un-medicated or under-medicated would not qualify for prosecution. The intent of prosecution is not to excuse responsibility for the aggressive behavior with the use of the insanity defense, but to increase the patient’s responsibility through a legal finding of guilt. Therefore, patients who are in control of themselves and their behavior, that is who may have a DSM-IV Axis I clinical syndrome that is well treated or who have primarily an alcoholic or drug disorder, or a personality disorder, are candidates for prosecution for assaultive behavior. The guidelines for establishing these procedures have been described in a number of publications and should include the following: 1 There should be a hospital policy governing the procedure. This policy should be based on the fact that patients can and should be held responsible for their behavior. 2 The policy should describe the rationale and goals of the procedure so that the philosophy of the prosecution works more towards the goal of responsible citizenship, to help the patient manage aggressive impulses, than to the specific goals of traditional treatment, to help the patient manage symptoms like auditory hallucinations. 3 There must be documentation that the aggressive behavior is not the product of a mental illness. This will eliminate the problem of the insanity defense for patients who are diagnosed with major clinical syndromes and increase the chances that patients with alcohol and substance abuse and personality disorders are considered responsible for their behavior. This is especially important for patients in forensic security hospitals. But patients with psychotic disorders who are adequately treated with neuroleptic medication, who are therefore emotionally stable and have been shown to be responsible for their behavior, can be held responsible for assaultive behavior. Many district attorneys have come to understand this. It is, therefore, important for the clinician/administrative staff in any mental hospital to work with the local district attorney to inform him or her that they intend to hold patients, who are willfully aggressive, responsible for their aggression.

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4 There should be pre-existing documentation that the patient has the capacity to control behavior. It is not just that the aggression is not a product of mental illness; it must also be documented that they have the capacity to control their behavior with examples from other aspects of their unit or community life. 5 Further, it must be documented that they are stable when on medications. This means that some patients who have been found Not Guilty by Reason of Mental Disease or Defect for a serious crime when un-medicated in the community may be held responsible for their aggressive behavior in the hospital when adequately medicated. It also means that a patient who has been found Not Guilty by Reason of Mental Disease or Defect and is stable can be held responsible for new criminal activity and be subject to prosecution. 6 If the patient has made threats prior to the physical aggression, documenting the threats increases the chances of successful prosecution. Good documentation is always necessary, both to support the presence of a bona fide diagnosis and that the illness is being treated in an adequate manner. When the patient is well treated, it is logical to assume that he or she can be held responsible for his/her behavior. 7 The decision to proceed with prosecution should be made by senior clinical/administrative staff after consultation with those personnel more directly involved with the incident or with the care of the patient. 8 Finally, prosecution should be sought only for serious infractions, and not for minor nuisance offenses. In pursuing prosecution, debate has occurred in literature regarding the challenge that prosecution has to the therapeutic alliance. In fact, the early debates emphasized the impact prosecution would have on the physician–patient relationship to the point of dissolving it. As noted above, there has been concern that the clinician would become vulnerable to litigation. Time has resulted in mellowing these fears. Nevertheless, many clinicians still believe that prosecution, if it is a serious consideration, should be pursued by third parties. It should be made clear then that the intent of the policy is neither to become adversarial with patients nor to dissolve the therapeutic alliance sought in treatment. Prosecution will clearly impact on the treating nature of the therapeutic alliance. However, it is held by some clinicians that when a patient willfully assaults a staff member, the therapeutic alliance is broken as the aggression occurs. That is, staff can no longer trust a patient who will willfully and intentionally assault them. These issues, however, have not yet been resolved. It is also important to recognize that prosecution of assaultive behavior should be considered primarily for serious aggressions rather than minor aggressions. For instance, pushing and shoving, while obnoxious, may not result in any particular injury, and therefore may not fall into the category of assaultive behavior. Staff and the hospital administration must work towards understanding

that a certain threshold of aggression must be reached before prosecution would be considered.

PROBLEMS WITH IMPLEMENTATION Even if the hospital has a well-defined policy, systemic issues in the criminal justice system can block its implementation (Appelbaum and Appelbaum 1991). Beyond the coordination of the clinic or hospital staff, successful prosecution of a patient requires the cooperation of the police, prosecutors, and the courts. Staff involved must be willing to testify as to the facts. If the local police are not willing to do a timely or complete investigation which can lead to arrest, if the district attorney is not prepared to weigh the evidence and pursue charges, if the courts are not willing to hear the case, or will hear the case but give an unsatisfactory disposition, then pursuing conviction can be meaningless. A harmonious relationship between the mental health and criminal justice systems is necessary to achieve active prosecution that can result in a meaningful conviction. In fact, in the Volavka et al. (1995) study, seventy-three inpatients were arrested over a thirty-month period for an offense committed while they were hospitalized. However, prosecution resulted in jail or prison terms for only 11 per cent of those arrested, and the vast majority of the patients who were arrested were returned to the hospital within hours. The conclusion that one might draw from such arrests is that they are almost meaningless, considering the legal outcomes. Nevertheless, it is still worthwhile to pursue prosecution because of the legal impact and the message that it sends to other patients that their aggressive behavior can receive legal consequences. At the time a hospital develops a policy to prosecute patients for willful aggression, they must simultaneously coordinate their intentions with the local district attorney’s office. The two must work together toward the goal of identifying aggressive behavior that is willful and not a product of mental disorder. The hospital has an obligation to proceed only with cases that deserve prosecution on their merits. The hospital must make clear to the district attorney that it will not flood the district attorney’s office with every punch or kick that any patient makes in the course of hospitalization. This is clearly not the intent of the positions taken in the literature, to the effect that prosecution should be limited to premeditated, willful aggression by patients who are considered responsible for their behavior.

Case example Mr. A. was a 28-year-old white male with the diagnosis of schizophrenia, paranoid type, chronic, who was committed to the Department of Health and Social Services after being found Not Guilty by Reason of Insanity. He was placed in the State Forensic Hospital. Over the years, he earned his way from a maximum security unit to minimum security

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unit, where he then earned off-grounds privileges. Eventually he was able to work in the community. While he was off hospital grounds, at a supervised workshop, he called back to the unit and told the staff he was feeling physically sick. He was given permission to come back to the hospital. Staff inquired about his ability to return on the bus unescorted and he assured them he was well enough to do that. He subsequently stated that while on the bus, he decided he wanted to be sexual with one of the female staff in the hospital administration building. When he got to the hospital grounds, he walked to the woman’s office. He entered the office, closed the door, and then proceeded to choke and fondle her. The victim screamed, help came, and the patient was subdued. The patient had a longstanding diagnosis of paranoid schizophrenia. He had been treated for years with Prolixin Decanoate 50 mg intramuscularly every 14 days. Charting showed he had been responsible for his behavior and stable on medication for years. When the victim decided that she wanted to press criminal charges, the Chief Executive Officer sought a legal opinion from Department of Legal Services. Given the fact that Mr. A. was already in the hospital, having been found Not Guilty by Reason of Mental Disease or Defect, discussion ensued about whether a person held under that statute could, in fact, ever become legally responsible for his behavior. After reviewing the chart, the decision was made that the record supported the case for holding him responsible. The District Attorney was then persuaded by the facts to take the case, not just to pursue justice for the victim, but also to alert other patients in the hospital that criminal behavior would not be tolerated. Over a period of months, the patient, represented by the public defender, was taken through the process of prosecution. He was ultimately found guilty of Assault and given a ten-year sentence. The sentence was to run concurrent with the final years of his insanity commitment, which would have meant he would have still remained in the hospital, because in that jurisdiction patients held on ‘dualcommitments’ had the commitment to mental health take precedent over that to Corrections. Given the unrepressed negative feelings towards the patient by the hospital staff, Mr. A. and his attorney ‘elected’ to forego continued hospitalization. They claimed correctly that he had reached maximum benefit of treatment and he was released from his commitment and transferred to the Department of Corrections. The reality of the counter-transference toward the patient was a factor in helping him make the decision to seek transfer to prison about two years earlier than the sentence would have required. Nevertheless, he still had a five-year prison sentence, which he continued until his release.

CONCLUSION The prosecution of mental patients has increased almost in proportion to the assaults of psychiatric patients

against peers and clinicians. The literature from 1970 to 1990 was sparse and critical of prosecuting patients because of the ethical issues including the impact on the therapeutic alliance, and because of the difficulty of developing a harmonious approach between the mental health and criminal justice system work towards prosecution. During the past ten years, it has become an accepted part of our therapeutic armamentarium. Further, the prosecution of patients for presumptively criminal acts has now been incorporated in a policy in many hospitals. Therefore, many hospitals have standard procedures with trained clinical and legal staff oversight so that one option that hospitals have to hold patients responsible to community standards of humane interpersonal behavior can be exercised when they indulge in willful criminal acts. Staff rights remains an area that needs to be addressed as we work toward the practice of safe psychiatry.

REFERENCES Appelbaum, K.L., Appelbaum, P.S. 1991. A model hospital policy on prosecuting patients for presumptively criminal acts. Hospital and Community Psychiatry 42, 1233–7. Appelbaum, P.S., Dimieri, R.J. 1995. Protecting staff from assaults by patients: OSHA steps in. Psychiatric Services 46, 333–8. Belden, L.R., Moniz, D.M. 1996: The hospital’s liability for safety. In Lion, J.R., Dubin, W.R., Futrell, D.E. (eds), Creating a Secure Workplace. Chicago: American Hospital Publishing, 153–75. Cohen, B.J., Hoge, S.K. 1996: On the prosecution of assaultive inpatients. In Lion, J.R., Dubin, W.R., Futrell, D.E. (eds), Creating a Secure Workplace. Chicago: American Hospital Publishing, 177–92. Currier, G.W., Allen, M.H. 2000. Physical and chemical restraint in the psychiatric emergency service. Psychiatric Services 51, 717–19. Dubin, W.R., Lion, J.R. 1996: Violence against the medical profession. In Lion, J.R., Dubin, W.R., Futrell, D.E. (eds), Creating a Secure Workplace. Chicago: American Hospital Publishing, 3–14. Goldberg, S.B., Lion, J.R. 1996: Violence in the emergency department. In Lion, J.R., Dubin, W.R., Futrell, D.E. (eds), Creating a Secure Workplace. Chicago: American Hospital Publishing, 265–76. Hare, R.D. 1998: Without Conscience: The Disturbing World of the Psychopaths Among Us. New York: Guilford. Hoge, S.K., Gutheil, T.G. 1987. The prosecution of psychiatric patients for assaults on staff: a preliminary empirical study. Hospital and Community Psychiatry 38, 44–9. Hoge, S.K., Appelbaum, P.S., Lawlor, T., et al. 1990. A prospective, multicenter study of patients’

704 Special clinical issues in forensic psychiatry refusal of antipsychotic medication. Archives of General Psychiatry 47, 949–56. Ladds, B., Lion, J.R. 1996: Severe assaults and homicide within medical institutions: epidemiologic issues. In Lion, J.R., Dubin, W.R., Futrell, D.E. (eds), Creating a Secure Workplace. Chicago: American Hospital Publishing, 15–24. Lam, J.N., McNeil, D.E., Binder, R.L. 2000. The relationship between patients’ gender and violence leading to staff injuries. Psychiatric Services 51, 1167–70. Maier, G.J. 1989. The successful prosecution of a ‘Not guilty by reason of insanity’ patient for the willful assault of a hospital staff. Psychiatric Residents Newsletter. Washington, DC: American Psychiatric Association Committee on Residents 9, 1–3. Maier, G.J. 1996: Training security staff in aggression management. In Lion, J.R., Dubin, W.R., Futrell, D.E. (eds), Creating a Secure Workplace. Chicago: American Hospital Publishing, 83–100. McNiel, D.E., Binder, R.L. 1995. Correlates of accuracy in the assessment of psychiatric inpatients’ risk of violence. American Journal of Psychiatry 152, 901–6. McNiel, D.E., Binder, R.L., Fulton, F.M. 1998. Management of threats of violence under California’s duty-to-protect statute. American Journal of Psychiatry 155, 1097–101. Meloy, J.R. 1991. The decision to criminally prosecute the psychiatric patient. American Journal of Forensic Psychiatry 12, 69–80. Miller, R.D. 1987: Involuntary Civil Commitment of the Mentally Ill in the Post-Reform Era. Springfield, IL: Charles C. Thomas. Miller, R.D. 1996: Legal issues for hospital administrators. In Lion, J.R., Dubin, W.R., Futrell, D.E. (eds), Creating a Secure Workplace. Chicago: American Hospital Publishing, 135–52. Miller, R.D., Maier, G.J. 1987. Factors affecting the decision to prosecute mental patients for criminal

behavior. Hospital and Community Psychiatry 38, 50–5. Morrison, D.E. 1998. Leadership and aggression: affect, values and defenses. Psychiatric Annals 28, 271–6. Norko, M.A., Zonana, H.V., Phillips, R.T.M. 1992. Prosecuting assaultive psychiatric patients. Journal of Forensic Sciences 37, 923–31. Owen, C., Tarantello, C., Jones, M., Tennant, C. 1998a. Violence and aggression in psychiatric units. Psychiatric Services 49, 1452–7. Owen, C., Tarantello, C., Jones, M., Tennant, C. 1998b. Repetitively violent patients in psychiatric units. Psychiatric Services 49, 1458–61. Rachlin, S. 1994. The prosecution of violent psychiatric inpatients: one respectable intervention. Bulletin of the American Academy of Psychiatry and the Law 22, 239–47. Sandberg, D.A., McNiel, D.E., Binder, R.L. 1998. Characteristics of psychiatric inpatients who stalk, threaten or harass hospital staff after discharge. American Journal of Psychiatry 155, 1102–5. Schwartz, C.J., Greenfield, G.P. 1978. Charging a patient with assault of a nurse on a psychiatric unit. Canadian Psychiatric Association Journal 23, 197–200. Simonowitz, J.A. 1996: Health care workplace security: California OSHA and federal OSHA. In Lion, J.R., Dubin, W.R., Futrell, D.E. (eds), Creating a Secure Workplace. Chicago: American Hospital Publishing, 121–34. Tarasoff v. Regents of the University of California, 131 Cal. Rptr. 14, 551 P. 2d 334 (1976). Volavka, J., Mohammad, Y., Vitrai, J., et al. 1995. Characteristics of state hospital patients arrested for offenses committed during hospitalization. Psychiatric Services 46, 796–800. Winnicott, D.W. 1949. Hate in the counter-transference. International Journal of Psychoanalysis 30, 69–74.

73 Treatment of sex offenders GENE G. ABEL AND CANDICE A. OSBORN

INTRODUCTION Treating the paraphiliac can be an interesting and rewarding challenge for the forensic psychiatrist because it leads to the reduction of sexual violence, reduces the likelihood of future victimization, and also gives the forensic psychiatrist a sense of meaningful accomplishment in dealing with a serious public health problem – child molestation, rape and other forms of paraphilic behavior. However, the therapist must be accepting of a number of consequences to working with sexually violent patients. First, our culture is exceedingly upset by sexual perpetrators and, by association, their therapist can be seen as in some way helping the offender by providing treatment (Brown 1999). The therapist must keep the focus of therapy on protection of the public by reducing the probability of re-offense. A second issue involves double agentry, in which the therapist has conflicted loyalties. In traditional psychotherapy the therapist works exclusively on the patient’s goals to accomplish the patient’s objective without the intrusion of the therapist’s opinion and prejudices into the therapy. Most sex offender patients, however, will be on probation or parole and an integral element of their lives is ongoing supervision by their probation/parole officer (English 1998; Grant 1999; Scourfield 1998; Wilson et al. 2000). It is inevitable that the therapist must come to terms with this dual alliance, since it is the responsibility of the probation/parole officer to know when the patient is at high risk to re-offend, is not compliant with therapy, or is not attending. The therapist must accept this dual agentry responsibility; indeed, that responsibility inevitably extends to protection of the general public when treating sex offenders. The most common conflict about dual agentry involves providing information to the offender’s probation or parole officer. The probation/parole officer’s primary responsibility is the protection of the public and that requires receiving information from the therapist regarding the sex offender. Therefore, a release of records must

be signed so that the therapist can communicate with the probation/parole officer in spite of it possibly containing privileged psychiatric, psychological or medical information. Furthermore, probation and parole officers frequently change, so the release of information should be to the offender’s probation department, rather than to a specific individual. The therapist must feel comfortable with these multiple alliances and must clarify these multiple roles with the patient (and him/herself) before instituting treatment. The therapist should take a number of steps to minimize the problems of double agentry (Cohen 1995). A formal consent for treatment should be signed that includes: the therapist will be provided with a copy of the patient’s probation requirements; the patient will abide by those conditions to their full extent; the patient will abide by the treatment guidelines given to him/her by the treatment team or individual therapist; and, if a child molester, he/she will follow the standard probationary guidelines for child molesters, such as avoiding being alone with a child, not using the Internet, and avoiding the purchase or use of child pornography. Group members must agree not to divulge information regarding other patients outside of group; must refrain from socializing with other patients outside of the therapist’s office; and must also understand that their confidential information will be revealed to others if they indicate that they might harm themselves or someone else, or if they have committed sex acts that must be reported by state law. All states in the United States demand that a professional report individuals who have molested children and, therefore, if new victims are revealed to the therapist, they must be reported to child protection services or legal authorities. Therapists familiar with individual therapy and protection of the confidentiality of the patient with neurotic or psychotic symptoms may be uncomfortable with the dual agentry problems of working with sex offenders and therefore should probably not treat this category of patient.

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PRINCIPLES OF THERAPY There are a number of principles or tenets that therapists treating sex offenders assume during the course of treatment. These include: 1 The offender should accept personal responsibility for his or her inappropriate sexual behavior; a major obstacle of treatment is that the offender frequently denies, rationalizes or in some way explains away his/her responsibility for the sexual offense. It is difficult to expect successful treatment as long as this denial continues. 2 Treatment does not cure but rather teaches offenders to maintain control of their sex-offending behavior throughout their lifetimes, due to the repetitive nature of sex offending and the potentially severe consequences to its victims. The therapist’s responsibility is to organize a lifelong treatment plan that goes well beyond the treatment of the event leading to arrest and includes a variety of factors that the offender needs to maintain a lifelong pattern of not offending. 3 Treatment should be sex offender-specific, rather than focusing on the generic psychological problems that patients sometimes have. Sex offending is a specific type of behavior and therefore needs a therapy that focuses on the specific factors that lead to sex offending. 4 Sex offending is caused by multiple factors, not just the need for sexual gratification. Therapy needs to reduce the risk for acting on sexual interest, but also needs to be individualized to identify the specific factors that may have led the offender to perpetrate a sex crime.

THE CLINICAL INTERVIEW, PAPER-AND-PENCIL TESTING AND OBJECTIVE MEASUREMENT OF SEXUAL INTEREST The first step in the assessment process is to gather information regarding the alleged sex offending behavior of the patient. This frequently involves obtaining arrest records, reports of victims and collaborative sources of information. Some offenders have been cautioned by their attorneys to provide no information to the evaluator, and will obstruct and deny the existence of any information pertaining to their arrest. It is strongly recommended that the therapist contact the offender’s attorney, followed by a letter to the attorney’s office, requesting all available records pertaining to the case, preferably three weeks prior to the patient being seen. Some attorneys refuse to provide such information, indicating that it is work product. The sending of a letter and a formal request for information clarifies that the therapist has acted in good faith to acquire the necessary information, prior to seeing the patient. The clinical interview is especially important because it allows the therapist to develop a working relationship

with the offender (Abel 1985; Abel and Osborn 2000). Some, but not all, offenders absolutely deny culpability for any sex crime, but a surprisingly high percentage reveal their deviant sexual interest, their behavior and, in many cases, other types of sex offending unknown to others. It is important to obtain collateral information early in the initial interview process (after obtaining appropriate consents) to gather as much independent information about the alleged offense as possible. Paper-and-pencil testing, in some cases, can be surprisingly helpful since some offenders are reluctant to discuss their deviant sexual interest face-to-face with a therapist, but readily admit such proclivities on paperand-pencil testing. A number of sources of paper-andpencil testing are available to either gather history, identify cognitive distortions and justification for inappropriate sexual behavior, identify a broad range of paraphilic behavior beyond that which has led to the referral, categorize substance and alcohol abuse, determine the social desirability of the patient’s responses and willingness to admit, categorize and quantify the use of deviant sexual fantasies, and assess the offender’s level of motivation for treatment (Barbaree and Seto 1997; Heilbrun et al. 1998; Salter 1988). An absolutely critical aspect of an assessment involves objective measurement of the patient’s sexual interest. Three categories of objective measurement are available: (i) penile plethysmography; (ii) visual reaction time assessment; and (iii) polygraph examinations. Plethysmography measures the patient’s erection response when presented with various categories of deviant and non-deviant stimuli, presented via slides, audiotaped descriptions of deviant and non-deviant acts, and/or videotaped depictions (Lalumiere and Harris 1996; Becker and Murphy 1998; Marshall and Fernandez 2000). Visual reaction time quantifies the offender’s visual attending to deviant and non-deviant stimuli across various ethnicities, ages and genders. Most recently, this has been combined with paper-and-pencil testing to generate a logistical equation that estimates the probability that an individual has been involved with females under fourteen years of age, males under fourteen years of age, or is consistent with individuals who are attempting to conceal their involvement in child molestation behavior (Abel et al. 1998; Abel, Osborn, and Phipps 2001). Polygraph examinations, in general, gather data on specific questions of interest to the therapist. A variety of physiologic responses are measured in response to the content of various questions asked, and the differences in response magnitude indicate the likelihood of deception or lack of deception (Hager 1995; Blasingame 1998; Ahlmeyer et al. 2000; Wilson et al. 2000). The field of sex offender treatment has made rapid advances since the inclusion of these objective measures of sexual interest. Obtaining objective measures to arrive at diagnoses is well known in medicine, such as using the diabetic’s blood sugar level to judge the necessity of the

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units of insulin needed, electrocardiograms to determine the categories of arrhythmias, or electroencephalograms in the assessment of possible epileptic seizures. These objective measurements, when used with sex offenders, can be exceedingly effective at cutting through denial and focusing the offender on treatment, as well as assessing the offender’s response to treatment designed specifically to reduce deviant sexual interest.

A FORMULA FOR TREATMENT The following outlines a formula for treatment to help the therapist meet the needs of the patient as well as protect the safety of the community. First, the therapist obtains the consent for treatment and the consent to communicate with probation or parole as described above. Second, the therapist must determine whether the offender is safe enough to be treated as an outpatient or is too dangerous. It is exceedingly rare that an offender has to be hospitalized because of imminent danger to the public. If there are doubts about the danger that the patient poses, the therapist has a number of avenues to reduce that risk relatively rapidly. The immediate introduction of serotonin-specific reuptake inhibitors (SSRIs) can be expected to reduce sexual drive and thereby increase control over sexual urges, including deviant sexual urges (Land 1995; Roesler and Witstum 2000). More dramatic reduction of sexual drive can be accomplished with medroxyprogesterone acetate, either in the oral form or the depo form (Robinson and Valcour 1995; Prentky 1997). A newer agent, luprolide acetate (Lupron), is also available in the depo form (Zonana 1999). The advantages of the SSRIs, the hormonal agent Provera, and the polypeptide Lupron are that these drugs can significantly reduce sexual drive. Deviant sexual behavior necessitates a strong sexual drive before the offender acts on his deviant interest. Reduction of this drive with these medications can rapidly provide many offenders with a prompt increase in their control over their deviant urges and fantasies and, therefore, allow them to be treated as outpatients (Abel and Osborn 2000). Additional interventions during the acute phases of treatment are to require that the patient be with an adult familiar with his deviant sexual interest at all times, or that he be required to participate in electronic monitoring (ankle bracelet) of his whereabouts. These latter two interventions, although appearing somewhat mundane, provide prompt, effective protection of the public at minimal cost, relative to hospitalization or incarceration. If the above interventions are not effective at reducing the patient’s sexual urges, then temporary hospitalization may be indicated. Patients who have significant inappropriate sexual interests, regardless of whether they are placed on

medications to reduce their sex drive, should be taught various behavioral therapy techniques to reduce their inappropriate sexual arousal, such as covert sensitization, olfactory aversion, masturbatory satiation, and aversive behavioral rehearsal. Patients who need to establish or increase their appropriate adult sexual interest should be taught behavioral therapy techniques such as fading, exposure, or masturbatory conditioning (Abel, Osborn, and Phipps 2001). These individuals should then also undergo therapy to reduce their distorted thinking regarding their inappropriate sexual behavior, such as cognitive restructuring and victim empathy, as well as undergoing therapies to address any deficits in prosocial behavior that they may have through techniques such as social skills training, assertiveness training, anger management training, sex dysfunction therapy, and intimacy skills training. Additionally, other treatment modalities may be indicated, such as psychodynamic therapy, family systems therapy, sexual addiction treatment, and sexual trauma therapy. The next step in the overall treatment program should include techniques to maintain treatment gains and prevent relapse, such as relapse prevention maintenance therapy and surveillance groups. This formula for therapy delineates a sequence of treatment for inappropriate sexual interests but does not include all possible options available to the clinician. Each of the above cognitive-behavioral therapies is discussed in detail in the following sections.

TREATMENT TO DECREASE PARAPHILIC INTEREST There is extensive literature regarding the development and maintenance of sexual interest, including deviant sexual interest (Abel and Blanchard 1974; Deu and Edelmann 1997; Langevin, Lang, and Cumoe 1998). The psychoanalytic (Tausk 1951; Lorand and Balint 1956) and the behavioral literature (Abel and Osborn 1996; Abel, Osborn, and Phipps 2001) both conclude that early sexual experiences are more likely to be recalled during masturbation and/or sexual interaction, and these images and fantasies are thereby more easily paired with the pleasure of genital touching and orgasm. Since this pairing can occur hundreds of times per year, sexual fantasies that are recalled during sexual excitement become stronger, whereas those fantasies that are infrequently recalled become weaker from lack of use. Many behavioral therapies are designed to reverse this pairing of deviant fantasy with pleasure and thereby disrupt the cycle of deviant fantasy use being associated with greater deviant fantasy interest that often leads to deviant behavior (Rice and Harris 1997). The principle behind each of these therapies is that they can be applied by the offender any place, any time, when the offender’s urges and fantasies might lead him/her to reoffend.

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Covert sensitization Covert sensitization teaches the offender how to identify the various sequences or chains of thoughts and behaviors that are antecedent to deviant behavior (Abel et al. 1992; Dougher 1995; Abel and Osborn 1996; Barbaree and Marshall 1998). The offender then describes (while audiotaping this treatment) some of the antecedents while imagining the step-by-step process leading to deviant acts, and then immediately inserts into his imagery the potential highly aversive consequences that could naturally occur if the sequence of events proceeds on to deviant acts. The aversive imagery might include being arrested and handcuffed in front of one’s house by a harsh, insensitive policeman who tells the neighbors about the offender being a sexual pervert; police coming into the offender’s employment, arresting him, and telling individuals at the work site that he is a child molester; images of one’s children being teased and ridiculed at school when it is learned that the offender has been arrested for a sex offense; or seeing one’s sexual partner in the arms of another following the offender’s arrest and incarceration. An important aspect of covert sensitization is the repetitive pairing of these antecedents with the negative consequences so as to help the offender instill in his mind the expected consequences of allowing himself to carry out the chain of events ultimately leading to deviant sexual behavior. To ensure that the offender has carried out the therapy, and has done so correctly, his tape-recorded treatment (carried out at home) is brought to the therapist who listens to the results and gives feedback to the offender regarding how to improve the imagery, include all of the antecedents leading to the deviant behavior, and ensure numerous pairings of the antecedents to aversive consequences. Most behavioral therapies are done in a group setting. This not only makes the therapy more cost-effective, but the public disclosure of the offender’s deviant behavior also helps ensure his admission of guilt and removes his deviant thoughts and behavior from the secrecy of his internal thoughts. The disclosure of the offender’s deviant thoughts by itself helps demystify the secret fantasy life of the offender. Generally, each tape-recorded session lasts 15–20 minutes, and the therapist reviews ten such audiotaped treatments before proceeding to another behavioral therapy.

Olfactory aversion Some offenders find it difficult to imagine the aversive consequences used in covert sensitization or, due to the circumstances of their poor control, they need an immediate means of aversion of their deviant fantasies. Olfactory aversion, generally in the form of ammonia aversion, is an alternate therapy (Abel et al. 1992; Abel and Osborn 1996; Barbaree and Marshall 1998; Becker and Murphy

1998). As in covert sensitization, the offender learns to identify the usual chain of events leading to the deviant behavior and, when the image is well in his mind’s eye, he breaks an ammonia capsule and pairs the odor of ammonia with the antecedent. A frequent error the therapist makes is assuming that the greater the aversiveness of the ammonia, the more effective the treatment will be. In actuality, the smelling of ammonia only needs to be sufficient to cause some degree of aversion. The offender then removes the ammonia capsule, returns to imagining the antecedent, and once again brings the ammonia up to his nose to form an aversive association between the antecedents leading to the behavior and the smell of ammonia. The key is frequent pairings. One has to be careful that the patient does not have lung disease or sensitivities that would preclude the use of ammonia; sometimes other sources of pungent aversive odor are used instead of ammonia. As with covert sensitization, the offender audiotapes these treatments and brings them to group therapy for a critique by the therapist and other offenders, so as to ensure the repetitive pairings of the antecedents with ammonia and that these antecedents are clear in the patient’s mind, prior to pairing with the aversion of ammonia. The therapist does not review each and every audiotape in its entirety but randomly selects various group members’ tapes to give feedback to the offender and the group regarding how to make treatment more effective. Olfactory aversion can be done virtually anyplace, anytime the need arises to reduce deviant urges. In general, the patient completes ten 10-minute ammonia aversion tapes and has them reviewed before proceeding to another behavioral treatment.

Masturbatory satiation This treatment directly attacks the method by which the offender pairs deviant fantasy with the pleasure of masturbation by first having the offender masturbate to nondeviant, normal fantasies until he ejaculates, or 10 minutes has transpired (Abel et al. 1992; Abel and Osborn 1996; Barbaree and Marshall 1998; Becker and Murphy 1998). The offender then switches to using a small segment of the most erotic deviant fantasy he is able to imagine. The selection of this small ten- or twelve-word description of a highly erotic experience is then repetitively vocalized while the offender masturbates, post orgasm, attempting to get an erection and ejaculate again. This second phase of the satiation treatment is designed to reverse the use of deviant fantasy by having the offender use his most erotic images at a time when he cannot be aroused and/or ejaculate. After the initial ten or fewer minutes of non-deviant fantasy, the offender masturbates to deviant fantasy for fifty additional minutes. Some offenders will be able to ejaculate a second or third time when first doing satiation but, with the passage of time, these one-hour sessions turn from being possibly enjoyable, to neutral,

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to highly aversive. The treatment usually requires twenty hours of satiation treatment. As with the previous behavioral treatments, these also are audiotaped in the offender’s home, and the audiotapes are brought to the therapist for feedback to the patient and other group members. In essence, the principle of satiation remains the same irrespective of the deviant thoughts and urges, so this technique is effective with any category of deviant interest, be it a sexual interest in children, rape, exhibitionism, voyeurism, etc. In a few cases, religious or medical illness does not allow concomitant masturbation during the satiation process and, as a consequence, verbal satiation is substituted for masturbatory satiation. The selection of which ten- to twelve-word image is used will depend upon where the offender’s control is poorest. Sometimes, when the patient has become satiated to image A and has switched to work on image B, image A may regain significant arousal. The offender then goes back to using image A during the satiation process, until it again loses its erotic power. He then returns to focusing on the next most erotic image. This therapy flows naturally from our understanding of the development of deviant fantasy during masturbation and reverses that process.

are chosen because they are able to reflect the public’s attitudes toward the behavior, rather than professional’s who might strive to interpret the meaning of the patient’s molestation attitudes and behaviors. The therapist’s responsibility is to allow the audience to be direct in expressing their attitudes and feelings about what they are observing and hearing. The advantages of the videotaping during step one are seen as the therapy progresses during step two and the patient receives sharp, direct feedback regarding his behavior and the impact this would have on an actual child. Three such feedback sessions are generally scheduled, with different audience members each time to ensure a wide range of feedback to the child molester. This treatment often produces a reduction in the patient’s preoccupation with children by hearing others’ candid opinions about this behavior but, equally as important, the feedback directly attacks the faulty beliefs and attitudes of the offender by repetitive confrontations of these attitudes with the opinions of the general public. This treatment is applicable to deviant behaviors that can be observed, such as the child molestation of a child mannequin, exhibitionism, and fetishism. Due to the cost involved, it is not routinely applied to all paraphilias but is usually reserved for those most resistant to treatment intervention.

Aversive behavioral rehearsal Aversive behavioral rehearsal was initially developed by Serber and was called shame aversion (Serber 1970). It has subsequently been modified by Wickramsekera (Wickramsekera 1976; Wickramsekera 1980) and, most recently, by Wolfe and Smith (Abel et al. 1992; Abel and Osborn 1996; Smith and Wolfe 1988). This treatment involves the offender carrying out a make-believe example of deviant behavior in front of an audience and getting feedback from that audience regarding the impact of that behavior on the victim, the appropriateness of that behavior, and the attitudes of non-professionals regarding this behavior. This is a very powerful therapy since it allows the offender, the therapist, and the audience to view the offender’s deviant behavior ‘close up.’ A child molester, for example, is asked to molest a child mannequin in the fashion that he has molested, or would like to molest, a child while verbalizing the beliefs and attitudes that he fantasizes he, and the child, are having at the time of the pseudo-molestation. The first step involves the therapist helping the offender to verbalize the antecedents to the molestation and encouraging the offender to verbalize what he believes the victim is experiencing during the molestation. To capture these thoughts, attitudes and beliefs, the entire sequence is carefully videotaped to ensure that the offender’s verbalizations are clearly recorded. Step two involves playing back brief segments of the videotape in front of the patient, the therapist, and an audience of two or three non-professionals (sometimes the patient’s family members). Non-professionals

THE SEX OFFENDER WITHOUT DEVIANT INTEREST Some, but not all, sex offenders have no deviant interests, as measured by the current objective assessment techniques described above. Treatments to decrease the risk for deviant behavior can still be applied to this subpopulation, but the therapist needs to also explore other factors that contribute to the deviant behavior (Harnell 1995). Other etiologies besides deviant interest include attention deficit disorder, mental retardation, antisocial personality disorder or psychopathy, alcohol and substance abuse, bipolar disorder, and organic brain disease (Cummings 1999). Examinations for the existence for these other conditions should be emphasized when deviant sexual interest does not appear to be present . However, the therapist should also assess the possible presence of these disorders in patients who have deviant sexual interest.

COGNITIVE DISTORTION Nearly all sex offenders have distorted thinking that they utilize to rationalize or justify their behavior (Abel et al. 1992; Barbaree and Seto 1997; Veach 1997; Ward et al. 1997; McGrath, Hoke, and Vojtisek 1998; Abel 1999; Blumenthal, Gudjonsson, and Burns 1999; Abel and Osborn 2000). When people break the rules, they develop justifications for their behavior. When they drive above the speed limit

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on the highway, they rationalize or justify that behavior using such cognitive distortions as: ‘Others are traveling faster than me,’ ‘As long as I don’t drive more than ten miles an hour above the speed limit, I will not get arrested,’ ‘To arrest me on this crowded highway would cause a traffic jam,’ etc. The exhibitionist may justify his behavior on the basis of: ‘I didn’t actually touch the woman, I just exposed my penis,’‘She was laughing when she looked at my penis, so I obviously didn’t hurt her,’ ‘She was interested and intrigued by the fact that I had an erection,’ or ‘The likelihood of my being arrested is quite low.’ Child molesters justify their behavior by convincing themselves that the child enjoyed it, otherwise they would have told others; what they were doing wasn’t really child molestation since it just involved touching of the child; touching a child and teaching them about sex is another form of sex education, not really a sex offense; etc. Transvestites justify their behavior on the basis of: ‘I just cross-dress at home and, therefore, I am not hurting anyone,’ ‘Cross-dressing won’t have any impact on my relationship with my sexual partner,’ or ‘My sexual partner will eventually develop an interest in seeing me crossdressed and it will be incorporated into our lovemaking.’ Rapists will rationalize that any woman in a bar is there to get picked up and have sex with a man or, in our culture, that women are very reluctant to be sexually assertive and they like a man to take charge and force intercourse on them, so they can say they were not responsible for the sexual activity. Offenders who have continued their behavior for a number of years develop more and more extensive cognitive distortions that strongly support their carrying out their deviant behavior. These rationalizations are generally unique to the individual because the sex offender does not share these thoughts with others, but keeps them to himself. When arrested, however, they blurt out these justifications, anticipating that the therapists listening to them will immediately see their valid logic. In actuality, others do not share these illogical beliefs and see through them immediately. Surprisingly, other sex offenders who hear the same cognitive distortions are also immediately able to see the illogical nature of someone else’s rationalizations but, of course, not their own. Therapy for cognitive distortions is done in a group setting with offenders writing down some of their cognitive distortions and then passing them around so that others read the justification and discuss the logic of these assumptions. Cognitive distortions are usually responsive to this confrontational methodology, although not all offenders are able to work through their denial. Helping the offender confront his denial is an integral part of therapy, but many therapists require him to accomplish this task within a specified period of time. When this does not occur, the offender is terminated from therapy because many therapists believe that, when the sex offender maintains these cognitive distortions in spite of confrontation, he is at higher risk for recidivism. However,

there is currently no scientific support for this belief and, recently, some therapists have adopted the approach of treating offenders even when they continue to deny their offense (Marshall, Marshall, and Schlank 2000). In fact, confronting denial is not even included as a part of the therapy. In these cases, therapy focuses primarily on helping the patient to identify the poor decisions and actions he made that placed him in a position to be vulnerable to allegations of inappropriate sexual behavior, and learning how to avoid repeating these ‘mistakes.’ It is believed that this approach allows offenders to avoid relapsing (because they have learned to avoid placing themselves in risky situations which might lead to relapse) without having to admit to their misconduct. Also, these therapists believe that it is unethical to refuse to treat individuals who might present a significant risk to the community.

VICTIM EMPATHY Sex offenders frequently show a lack of empathy for the impact of their behavior on their victim(s). There are a number of reasons for this, including that when very young children are molested, they may not have the capacity to understand the inappropriateness of what has occurred. As they grow older and are able to appreciate the betrayal that has occurred, they then may become angry, depressed, hurt, etc. However, by this time, the child molester is frequently gone and, as a consequence, the child molester fails to appreciate the emotional turmoil caused by his molestation. Without an appreciation of that, the molester goes on thinking that the impact of his behavior is minimal. The rapist frequently rapes whoever is available in a geographic area and then leaves. Once again, the impact of his rape behavior, the tremendous turmoil it causes the victim, is not available to him and, therefore, he has little empathy for the potential consequences. Helping the perpetrator appreciate the feelings of the victim involves multiple steps (Abel et al. 1992; Marshall, O’Sullivan, and Fernandez 1996; Pithers 1999; Geer, Estupinan, and Manguno-Mire 2000; Abel, Osborn, and Phipps 2001). Videotapes, or written vignettes, of victims reporting the consequences of their being victimized are reviewed in the group setting. The therapist then asks each perpetrator to describe the feelings of the victim in great detail, as reflected in the video portrayal. These are then discussed with other group members. Finally, the perpetrator is asked to describe his victims’ experiences, feelings and attitudes about being victimized from purely the victims’ point of view, excluding any rationalizations or justifications by the offender. On many occasions, sex offenders in treatment have themselves been victimized as children and they serve as another source of information regarding the impact of being victimized.

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These reports ring true to other group members who have seen the victimized perpetrator in a variety of settings, and they learn directly from a victim the impact of being victimized. This latter experience can have a profound effect on group members who have not experienced being victimized.

ALCOHOL AND SUBSTANCE ABUSE ISSUES A number of perpetrators report that their deviant behavior resulted from the impact of their use of marijuana, cocaine, alcohol, or other substances. The ingestion of these mind-altering drugs does impact on control and so it is important to involve the patient in alcohol and substance abuse rehabilitation. The concomitant support groups of Alcoholics Anonymous, CA and Narcotics Anonymous can be quite helpful to the substance-abusing offender. Drug and alcohol screening can usually be mandated as a condition of probation/parole. When alcohol is frequently associated with sex crimes, the concomitant use of disulfiram (Antabuse) can be especially helpful since it helps reduce the risk of alcohol misuse followed by a sex crime.

DEFICITS IN VARIOUS SKILLS A number of other skills deficits can exist in the sex offender (Abel et al. 1992; Abel and Osborn 1996; Bumby and Hanson 1997; Marshall et al. 1999; Geer, Estupinan, and Manguno-Mire 2000). Some lack social skills; that is, they do not know how to approach adults in a nonthreatening way to initiate or sustain conversations in order to establish an intimate relationship with an appropriate partner. In these cases, social skills training is applicable. Some offenders lack assertive skills. This can take the form of either a confrontive hostile behavior or a marked passivity, without effective expression of needs and wants. In these cases, assertive skills can be quite helpful to the offender. Other sex offenders have marked difficulty with anger, leading to explosions and retaliation to innocent victims. Anger management training can help the offender to appropriately express his feelings and resolve conflicts. Some offenders with anger management problems benefit from lithium, Depakote, or other medications to reduce violent outbursts and the risk for sex offending. Many offenders lack intimacy with their partners. They seek out intimacy ineffectively by carrying out a sexual crime, which can never lead to establishing any closeness with others. For example, frotteurs on the subway will rub up against a female and fantasize closeness and caring between them, an intimate relationship that is not based in reality. Nonetheless, they repetitively imagine their recurrent frottage behavior as an opportunity for closeness and intimacy. Intimacy training is an important aspect of treatment. Some, but not all, offenders either lack sexual knowledge or may have

specific sexual dysfunctions that contribute to their sexual deviation or their inability to perform or sustain a sexual relationship with their partner. In this case, a course in sex education and specific treatment for a sexual dysfunction is indicated. Some sex offenders have marked difficulty with time management and, when they have time on their hands, it increases the likelihood of their being involved in deviant sexual behavior as an attempt to fill that time. Training in structuring their day and avoidance of unstructured time can be helpful for this population.

THE NON-COMPLIANT PATIENT Non-compliance with treatment can be a problem with some sex offenders. This frequently takes the form of the patient’s passive-aggressive or paranoid personality impacting on his willingness to comply with treatment. Others are non-compliant because of their sustained marked denial (Marshall 1994). The first step in dealing with the non-compliant patient is to minimize his impact on the functioning group by moving him to a specific group for non-compliant patients. When too many noncompliant patients are in with functioning and compliant patients, they can be exceedingly disruptive to the therapy process of that group. Isolating them in a noncompliant group and more specifically addressing their individual issues can be helpful. Second, some noncompliant patients need individual, dynamically oriented psychotherapy to examine the factors that lead to their lack of involvement in therapy or unwillingness to take responsibility for their behavior. In some cases this individual therapy can dramatically reverse the non-compliant patient into an active and functional participant. A third option is to reinvolve the patient in a more extensive evaluation of his personality style and other factors that may contribute to non-compliance. On some occasions this has uncovered brain disease that made cognitive treatment exceedingly difficult or clinical depression that significantly reduced the offender’s motivation to participate in therapy (Cummings 1999). Finally, some non-compliant offenders should simply be terminated from treatment and asked to seek out another therapist with whom they may be able to work. In some states, non-compliance with therapy may constitute a violation of the conditions of probation for which the offender may be incarcerated. Terminating a sex offender for non-compliance should be a rare event, as the therapist has a responsibility to help the offender reduce his risk to the community (Marshall, Marshall, and Schlank 2000).

MAINTENANCE THERAPY Therapy traditionally has two phases: the intensive phase that incorporates the various elements of treatment as

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described above, and a maintenance phase. The first component of maintenance is training on relapse prevention. Relapse prevention combines all of the patient’s prior therapies and also challenges him to identify those situations that would be high risk for him; that is, situations more likely to lead to a reoffense (Abel et al. 1992; Graham 1994; Laws 1995; Pithers and Cumming 1995; Pithers 1997; Ward and Hudson 1998; Laws 1999; Price 1999). They are also taught the relapse cycle in which the offender puts himself in high-risk situations, increasing the likelihood of reoffense. The stages of the relapse cycle typically include the following: the offender places, or finds, himself in a high risk situation that leads to fantasizing about deviant behavior; the offender then lapses (behavior short of an actual reoffense, such as masturbating to deviant fantasies or putting himself in additional high risk situations); he experiences an abstinence violation effect (disappointment with himself and possibly the belief that he cannot avoid reoffending); and he then throws caution to the wind and commits a relapse. Relapse prevention also involves motivational issues to help the offender label the consequences of his behavior if he does, or does not, control his deviant sexual interest. Patients are also taught how to develop a social support network and tension-reducing activities. Finally, relapse prevention helps the offender identify objective criteria to measure the efficacy of his treatment plan, with emphasis on those factors that would indicate the need to return to more intense therapy. Another element of maintenance therapy involves a surveillance group (Abel and Rouleau 1990). Three to five individuals from the patient’s environment (at least one from his family, one from his work site, and one with whom he frequently socializes) are brought together and taught, by the offender, the behaviors that in the past signaled his becoming interested in recommitting a sex crime. A short list of questions that reflect these antecedents is developed and the surveillance team is asked to periodically complete these questionnaires. Twice per month the team members advance these checksheets to the therapist for review to identify any factors suggesting the need for increased supervision of the patient. The surveillance team members are not asked to be detectives, in that they are not asked to go out of their way to carry out surveillance of the offender. On the contrary, they are chosen because they have regular contact with the offender and are in a position to alert the therapist to potentially problematic behavior by the offender. A final aspect of maintenance therapy is the necessity of intermittently re-evaluating the patient. Maintenance groups may meet as frequently as once a week or as infrequently as once every three months to ensure that the offenders are applying the treatment methods they have been taught in therapy. Every six months, those in maintenance undergo an objective assessment and a self-report measure to re-evaluate their sexual interest, sexual drive, cognitive distortions and compliance with treatment.

When such intermittent testing indicates a breakdown of therapy, then the offender’s attendance at maintenance treatment is increased and other more intensive treatments may be initiated.

COLLABORATION AND TREATMENT Psychotherapy for most psychiatric disorders does not involve collaboration. A therapist traditionally protects the confidentiality of the patient at all times, and the patient determines his or her goals of therapy. What collaboration does occur with patient treatment usually involves the assistance of psychological testing, brain imaging or medical evaluations to rule out possible etiological factors. If the patient chooses to discontinue therapy, he or she generally bears the consequences of that decision. Treating sex offenders is in sharp contrast to traditional therapy. The offender is frequently ordered into therapy and is supervised by the criminal justice system via probation and parole officers assigned to the offender. These individuals need to know how the offenders are doing and whether they are profiting from the therapeutic experience or are obstructing therapy. If the offender terminates therapy, he may be arrested and incarcerated for violating the conditions of probation because, when the offender is not participating in treatment, he is at higher risk of reoffending. If this occurs, others suffer as a consequence of the treatment being discontinued, not just the patient. Sex offenders do not live in a vacuum but are surrounded by a number of key players who are seriously concerned about the outcome of their therapy. When recidivism occurs and a husband is incarcerated, it wreaks havoc with the support system of the offender’s family. Support for the wife and children is lacking, financial burdens mount, homes have to be sold to provide legal defense, jobs are lost when companies refuse to have felons working for them, friends and neighbors remove themselves from the support network of the perpetrator, etc. The probation/parole officer’s responsibility is to ensure the safety of the community when the offender is permitted to participate in treatment on an outpatient basis, as most sex offenders are. However, in many cases, the criminal justice system is not equipped to closely supervise offenders and, as a consequence, probation/parole officers are asked to supervise thirty to fifty sex offenders, which is no simple task. Psychiatrists treating a sex offender find themselves in a peculiar position. First, they often lack the training to provide cognitive-behavioral treatment, a skill more frequently held by psychologists, social workers and counselors, or to conduct a psychosexual evaluation (McGrath and Purdy 1999). Furthermore, they rarely work with probation officers whose responsibility is to be intimately knowledgeable regarding the offender’s treatment, his

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progress in treatment, and possible impediments to his treatment. Although psychiatrists are familiar with working with patients’ families, this is not always possible with offenders. Many times the viability of the family is untenable because the offender may be required to live separately from the family, either due to the spouse’s desire or the court’s mandate. Thus, psychiatrists find themselves having to collaborate with non-family members, something to which they are generally not accustomed. The psychiatrist’s training has usually been quite the contrary; namely, therapy is an individual undertaking that precludes therapy outcome from others. Many psychiatrists will find it untenable to work collaboratively with individuals far outside of traditional psychiatry such as probation officers, behavioral therapists, and others supervising the patient. When the psychiatrist finds this too much of a compromise, he or she should simply not work with sex offenders. Because the consequences of relapse can be so great, the psychiatrist working with sex offenders must develop a new flexibility and share the role of sex offender supervision with others just as equally concerned about the offender’s outcome. The probation/parole officer is an especially important collaborator since he or she has the legal responsibility to ensure the offender actively participates in therapy. The family and friends of the offender are likewise an important group with whom to collaborate. Sometimes, the offender has convinced these individuals that he has not been involved in sex offending and has been falsely accused, arrested and found guilty. This can make it especially difficult for the psychiatrist, since he or she sometimes has to work with not only the denying offender, but also, in some cases, a denying family and friends. Sex offending is exceedingly common and constitutes a public health problem. This public health problem is not going to go away in the immediate future and, since sex offending can be a chronic behavior needing lifelong supervision, treating sex offenders necessitates everyone ‘pulling on their oar.’ Psychiatrists have traditionally balked at treating this population because they have insufficient training or insufficient tools to help the offender. Now, however, with the increased use of SSRIs and psychiatrists’ increasing comfort with the use of hormonal agents, psychiatrists can become a vital part of the treatment team to protect the public and the offender from the recommission of sex crimes. A number of specialists have had considerable training regarding how to provide cognitive-behavioral treatment with a strong relapse prevention component to sex offenders. There are over 2000 members of the Association for the Treatment of Sexual Abusers (ATSA) located throughout the United States, Canada and other countries. This organization, located in Beaverton, Oregon, keeps an ongoing list of trained treatment providers, and the psychiatrist would profit from establishing alliances with individuals already trained in this specialty so as to broaden the available treatments for their patients. These

same experts on behavior therapy would profit considerably from working collaboratively with psychiatrists who can prescribe medications to reduce the offender’s sex drive and, thus, his likelihood of relapse.

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Treatment of sex offenders 715 Pithers, W.D. 1999. Empathy: definition, enhancement, and relevance to the treatment of sexual abusers. Journal of Interpersonal Violence 14, 257–84. Pithers, W.D., Cumming, G.F. 1995: Relapse prevention: a method for enhancing behavioral self-management and external supervision of the sexual aggressor. In Schwartz, B.K., Cellini, H.R., et al. (eds), The Sex Offender: Corrections, Treatment and Legal Practice. Kingston, NJ: Civic Research Institute, 20-1–20-32. Prentky, R.A. 1997. Arousal reduction in sexual offenders: a review of antiandrogen interventions. Sexual Abuse: Journal of Research and Treatment 9, 335–47. Price, D.M. 1999. Relapse prevention and risk reduction: results of client identification of high risk situations. Sexual Addiction and Compulsivity 6, 221–52. Rice, M.E., Harris, G.T. 1997. The treatment of mentally disordered offenders. Psychology, Public Policy, and Law 3, 126–83. Robinson, T., Valcour, G. 1995. The use of depo-provera in the treatment of child molesters and sexually compulsive males. Sexual Addiction and Compulsivity 2, 277–94. Roesler, A., Witstum, E. 2000. Pharmacotherapy of paraphilias in the next millennium. Behavioral Sciences and the Law 18, 43–56. Salter, A.C. 1988: Treating Child Sex Offenders and Victims: A Practical Guide. Newbury Park: Sage Publications. Scourfield, J.B. 1998. Probations officers working with men. British Journal of Social Work 28, 581–99. Serber, M. 1970. Shame aversion therapy. Journal of Behavior Therapy and Experimental Psychiatry 1, 213–15. Smith, T.A., Wolfe, R.W. 1988. A treatment model for sexual aggression. Journal of Social Work and Human Sexuality 7, 149–64. Tausk, V. 1951. On masturbation (1912). Psychoanalytic Study of the Child 6, 61–79. Veach, T.A. 1997. Cognitive therapy techniques in treating incestuous fathers: examining cognitive distortions and levels of denial. Journal of Family Psychotherapy 8, 1–20. Ward, T., Hudson, S.M. 1998. A model of the relapse process in sexual offenders. Journal of Interpersonal Violence 13, 700–25. Ward, T., Hudson, S.M., Johnston, L., Marshall, W.L. 1997. Cognitive distortions in sex offenders: an integrative review. Clinical Psychology Review 17, 479–507. Wickramsekera, I. 1976. Aversive behavioral rehearsal for sexual exhibitionism. Behavioral Therapy 7, 167–76. Wickramsekera, I. 1980: Aversive behavioral rehearsal: a cognitive behavioral procedure. In Cox, D.J., Daitzman, R.J. (eds), Exhibitionism: Description, Assessment and Treatment. New York: Appleton-Croft. Wilson, R.J., Stewart, L., Stirpe, T., et al. 2000. Community-based sexual offender management: combining parole supervision and treatment to

reduce recidivism. Canadian Journal of Criminology 42, 177–98. Zonana, H. 1999: Pharmacological treatment of sex offenders. In Sexually Dangerous Offenders. Washington, DC: American Psychiatric Press.

Suggested reading Abel, G.G., Osborn, C.A. 1995. Pedophilia. In Gabbard, G.O. (ed.), Treatments of Psychiatric Disorders, 2nd edition, Vol.1 and 2. Washington, DC: American Psychiatric Press, 1959–75. Abel, G.G., Jordan, A., Hand, C.G., Holland, L.A., Phipps, A. 2001. Classification models of child molesters utilizing the Abel Assessment for sexual interest ™. Child Abuse & Neglect 5, 703–18. Anechiarco, B. 1998. A closer look at sex offender character pathology and relapse prevention: an integrative approach. International Journal of Offender Therapy and Comparative Criminology 42, 15–26. Feierman, J.R. 1990: Pedophilia: Biosocial Dimensions. New York: Springer-Verlag. Griffiths, D.M., Quinsey, V.L., Hingsburger, D. 1989: Changing Inappropriate Sexual Behavior: A Community-Based Approach for Persons with Developmental Disabilities. Baltimore, MD: P.H. Brookes. Hanson, R.K., Bussière, M.T. 1998. Predicting relapse: a meta-analysis of sexual offender and recidivism studies. Journal of Consulting and Clinical Psychology 66, 348–62. Laws, D.R. 1989: Relapse Prevention with Sex Offenders. New York: The Guilford Press. Laws, D.R., O’Donohue, W. 1997: Sexual Deviance: Theory, Assessment and Treatment. New York: The Guilford Press. Marshall, W.L., Anderson, D., Champagne, F. 1997. Self-esteem and its relationship to sexual offending. Psychology, Crime and Law 3, 161–86. Marshall, W.L., Fernandez, Y.M., Hudson, S.M., Ward, T. 1998: Sourcebook of Treatment Programs for Sexual Offenders. New York: Plenum Press. Marshall, W.L., Laws, D.R., Barbaree, H.E. 1990: Handbook of Sexual Assault. New York: Plenum Press. McConaghy, H. 1993: Sexual Behavior: Problems and Management. New York: Plenum Press. Quinsey, V.L., Harris, G.T., Rice, M.E., Cormier, C.A. 1998: Violent Offenders: Appraising and Managing Risk. Washington, DC: American Psychological Association. Rosen, I. 1979: Sexual Deviation, 2nd edition. New York: Oxford University Press. Ryan, G.D., Lane, S.L. 1991: Juvenile Sexual Offending: Causes, Consequences and Corrections. Lexington, MA: Lexington Books, D.C. Heath and Company.

716 Special clinical issues in forensic psychiatry Salter, A.C. 1988: Treating Child Sex Offenders and Victims: A Practical Guide. Newbury Park: Sage Publications. Schwartz, B.K., Cellini, H.R. 1997: The Sex Offender: Corrections, Treatment and Legal Practice.

Volume II. Kingston, NJ: Civic Research Institute, Inc. Zonana, H. 1999: Sexually Dangerous Offenders. Washington, DC: American Psychiatric Press.

74 Sexually violent predator laws DOUGLAS E. TUCKER AND SAMUEL JAN BRAKEL

INTRODUCTION Sexually violent predator (SVP) laws are a recent phenomenon, with Washington the first state to enact such a law in 1990. These laws provide for the civil commitment and involuntary treatment of selected sexual offenders at the end of their criminal incarceration. The laws have been surrounded by controversy from the beginning, as they seek to establish policy in a conceptually murky and ethically polarized area in which the notoriously fuzzy line between criminal behavior and psychiatric illness appears to be particularly difficult to draw. Some have critiqued the laws as medicalizing what is essentially a social problem, and for misusing psychiatry as an agent of social control instead of applying it toward legitimate therapeutic ends. Others respond that psychiatrists have long been responsible for the care and treatment, as well as custodial management, of sexual as well as other criminal offenders. In fact, the differentiation between ‘criminal’ and ‘mentally ill’ behavior is of relatively recent vintage, operationally. For most of recorded history, society’s rejects – the poor, the criminal, the mentally ill – were housed in the same facilities. As for sex offenders in particular, we seem not to have made up our collective mind yet about whether they are bad, mad, or both, and where they ‘belong.’ The following is a brief review of the history of laws in the United States governing psychiatry’s involvement in the assessment and management of sexual offenders, a discussion of the SVP laws in particular, and some thoughts regarding the implications these laws hold for the field of psychiatry.

HISTORY OF SEX OFFENDER ADJUDICATION AND TREATMENT In the United States, sexual offenders were dealt with by incarceration and punishment like all other offenders until the late 1930s. A new era of interest in medical

explanations for criminal behavior and an orientation toward treatment goals over punishment began to develop in the early twentieth century. Indeterminate sentencing was introduced, in which release decisions were determined by the offenders’ demonstrated recovery rather than by preset sentence limits. Eventually, ‘sexual psychopath statutes’ began to appear in progressive jurisdictions, which provided for civil commitment and treatment of ‘habitual’ sex offenders who were deemed to be suffering from a mental disorder associated with ‘volitional impairment’ (inability to control one’s impulses). Michigan and Illinois enacted the first such statutes in 1937–38, with California and Minnesota following shortly thereafter. The Minnesota statute generated the first constitutional test of this type of legislation before the U.S. Supreme Court, in Minnesota ex. rel. Pearson v. Probate Court (1940). The challenge to the statute was on substantive due process grounds, notably the vagueness of the description of those susceptible to the statute’s application. The Supreme Court, however, approved the legislation, noting that the key statutory term ‘psychopathic personality’ was adequately defined as involving a ‘habitual course of misconduct in sexual matters,’ and an ‘utter lack of power to control sexual impulses.’ Between 1940 and 1976, sexual psychopath legislation modeled on the Minnesota statute was passed in thirty other states and the District of Columbia, and it was used to a substantial degree. The rehabilitative ideal behind these laws was widely shared, and the procedural shortcuts permitted by most of these statutes were considered acceptable given the benign intentions and predicted good outcomes. Over time, the optimistic consensus among doctors and lawyers that the sexual offenders singled out by the law would benefit from treatment began to erode. Attorneys were the first to turn against these laws, consistent with legal concerns about liberty and autonomy. Eventually, however, mental health practitioners also began to realize that treatments for this population were not as effective as had been hoped, and withdrew their support for the sexual psychopath laws. The Group for

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the Advancement of Psychiatry concluded in its 1977 report that the statutes were ‘social experiments that have failed and that lack redeeming social value’ (Group for the Advancement of Psychiatry 1977). Complementary social trends that undermined support for the laws included the civil rights movement in the 1960s, the rise of feminism somewhat later, and toward the 1980s, the societal turn to more punitive ‘law and order’ rather than rehabilitative policies. During the six-year period between 1975 and 1981, more than half of the sexual psychopath statutes were repealed. By the mid-1980s, only thirteen states still had these laws, and only five states applied them with any frequency (Massachusetts, Nebraska, New Jersey, Oregon, and Washington). The leading U.S. Supreme Court case of this era is Specht v. Patterson (1967), in which the court mandated the application of most criminal procedural safeguards to sexual psychopath commitments. These included a full judicial hearing, assistance of counsel, the right to confront and cross-examine adverse witnesses, the right to present one’s own witnesses and evidence, and a final decision sufficiently articulated to permit meaningful review on appeal. In a subsequent case (Allen v. Illinois 1986), the U.S. Supreme Court held that the Fifth Amendment’s self-incrimination privilege did not necessarily extend to the psychiatric examination in sexual psychopath commitments. By this point, however, such commitments were procedurally encumbered in every other way and quite rare. U.S. jurisprudence regarding sex offenders was close to where it was before the whole sexual psychopath law experiment began, with undifferentiated criminal incarceration of sex offenders.

SEXUALLY VIOLENT PREDATOR LAWS In 1989, Earl Shriner was released from a ten-year prison sentence in Washington state for kidnapping and sexually assaulting two teenage girls. He had been found not to be committable under the state’s civil commitment statute, and he thereafter proceeded to rape a seven-year-old boy, cut off his penis, and leave him to die. This case led to widespread outrage, and in 1990 Washington passed the first of a new generation of sex offender laws known as Sexually Violent Predator Acts. Soon, other states passed laws modeled on the Washington statute, and by the end of the millennium sixteen states had enacted laws of this kind, including Arizona, California, Florida, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Missouri, New Jersey, North Dakota, South Carolina, Texas, Virginia, Washington, and Wisconsin. The central elements of these laws were: (i) legal authority for continuing to detain sex offenders who are already in custody and likely to reoffend if released; and (ii) the accomplishment of this continued detention via civil commitment to a treatment facility. The vast majority of this designated population are prisoners convicted of sexual crimes, but the laws also

apply to those found Incompetent to Stand Trial or Not Guilty by Reason of Insanity for sexual crimes. These laws are quite similar overall, and involve four general conditions for civil commitment: 1 One or more charges (if found Not Guilty by Reason of Insanity or Incompetent to Stand Trial) or convictions for sexually violent offenses. 2 A qualifying ‘mental abnormality.’ 3 A likelihood of engaging in further acts of predatory sexual violence. 4 A causal link, at least in part, between the mental abnormality and the risk of sexual recidivism. ‘Sexually violent offenses’ are described by the SVP statutes as those found in the criminal code that involve forcible contact such as rape or, in its absence, an underage victim. ‘Mental abnormality’ is defined in the Kansas statute (and that of most other states with only minor differences in language) as ‘a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.’ Most laws permit personality disorders, including antisocial personality disorder, as a qualifying ‘mental abnormality,’ although the vast majority of commitments are for paraphilias (generally pedophilia and/or ‘paraphilic coercive disorder,’ which is contained in DSM-IV under the rubric ‘Paraphilia not otherwise specified’) (American Psychiatric Association 1994). This is a controversial and important point to the extent these conditions are in fact identified and/or separated, as a variety of potentially effective treatments are available for the paraphilias, while there are few if any effective treatments for psychopathy or antisocial personality disorder. The assessment of ‘likelihood’ of sexually violent recidivism generally involves a clinically adjusted actuarial approach, with statistically validated risk factors applied in an individualized, clinically appropriate manner. (See Chapter 79 regarding the use of actuarial instruments to guide estimates of recidivism risk.) Policies differ on acceptable false positive rates (commitment of non-recidivists) and false negative rates (release of recidivists), although most SVP laws require a ‘likelihood’ or ‘substantial likelihood’ of recidivism for commitment. The process of commitment involves many steps, and provides a variety of procedural safeguards. First, prison officials screen those sexual offenders who are approaching their release, in order to select those who have committed statutorily designated sexually violent crimes. These individuals are then referred for comprehensive evaluation by clinicians with (hopefully) appropriate training and experience in sex offender evaluations. Those who are found to meet all three criteria (appropriate offense history, qualifying mental abnormality, and likelihood of sexually violent recidivism due to mental abnormality) are then referred to the prosecuting attorney’s office, where further filtering occurs. A probable cause hearing is held to

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determine whether sufficient evidence exists to proceed to the full trial, followed by the trial itself. The minimum standard of proof for SVP commitments has been established by the courts as ‘clear and convincing evidence,’ but because of the liberty interest involved, a majority of states have adopted the more stringent standard of ‘beyond a reasonable doubt’ – that is, the level of proof required for criminal conviction. Commitments are for an indefinite period, with the exception of California which specifies commitments for renewable periods of two years. Release is mandated when the offender has improved to the point that he or she no longer meets the SVP criteria, as determined by the court. This process, as operated in California, is illustrated in Figure 74.1. The California Department of Corrections screens about 350 convicted sex offenders per month who are eligible for release. This amounts to about 21 000

inmates screened over the five years since the law took effect in January 1996. Of these, 3501 (about 17 per cent, or one-sixth of the total) were referred to the Department of Mental Health for further evaluation as of January 2, 2001. As can be seen, only a small and select subset of all sex offenders have actually been committed under this law, i.e., 9 per cent of those referred to the Department of Mental Health, or about 1 per cent of all released sex offenders. In some states, the percentage of those committed is higher, but these states have much smaller populations. The first constitutional test to the United States Supreme Court of the new SVP laws occurred in 1997 in the case of Kansas v. Hendricks. Leroy Hendricks had been molesting children for many years, including his own stepdaughter and stepson, and he himself admitted that he would stop molesting children only when he died. His attorneys

California Sex Offender Commitment Program (SOCP) All Cases as of 1/2/01 Referred To DMH 3501 DMH Record Review Does Not Meet Criteria 1437

DMH Record Review Meets Criteria 1954

DMH Record Review Pending 110

Clinical Evaluation Negative 1073

Clinical Evaluation Positive 839

Clinical Evaluation Pending 42

Referred to DA* 834 Decision Made by DA 796

Rejected by DA 130

Petition Filed by DA 666

Ruling Made by Judge 599

Probable Cause Not Found 128

Released 64

DA Decision Pending 38

Probable Cause Pending 67

Probable Cause Found 471

Committed to Treatment Program 298

Trial Pending 109

* 5 case(s) with Positive Clinical Evaluations were not referred to the DA for various reasons (e.g., Psych Attention, BPT Good Cause Not Found). Note: this report is now available on the SOCP web site: http://www.dmh.cahwnet.gov/socp/ff.htm

Figure 74.1 California sex offender commitment program (SOCP) (all cases as of 1/2/01).

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appealed his commitment under Kansas’ SVP law on the grounds of: (i) substantive due process; (ii) double jeopardy; and (iii) the ex post facto doctrine. The substantive due process argument was that the commitment criterion of ‘mental abnormality’ failed to satisfy the requirement that an individual be mentally ill and dangerous before he or she can be committed to a mental facility. There is a long history of legal doctrine (and philosophical tradition) in American jurisprudence that the state cannot confine someone for dangerousness alone (i.e., for potential misconduct) without some accompanying mental condition or impairment, as this would constitute an impermissible form of preventive detention (e.g., see Foucha v. Louisiana 1992). Justice Thomas rejected Hendrick’s contention, however, that ‘mental abnormality’ failed to qualify, noting that the term mental illness was ‘devoid of talismanic significance,’ that the definition of medical terms for legal purposes is a legislative task, and that the diagnosis of pedophilia is classified by the psychiatric profession itself in DSM-IV as a serious mental disorder. In particular, he stated that the ‘mental abnormality’ must involve a current, specifically defined inability to control sexually violent impulses. He also noted that the claims of double jeopardy (one can be tried only once for violation of the law) and ex post facto (one cannot be held to account under laws made after the fact) apply to the criminal law only. Relying on the prior Allen v. Illinois decision, Justice Thomas found that despite various criminal law-style safeguards, the SVP law described a legitimate civil procedure. In addition, he noted that the law would be valid even if treatment was not medically available (based on the long history in this country of permitting detention and segregation of dangerous individuals with untreatable contagious diseases or mental illnesses), as well as if treatment were available but only secondary to the primary goal of continued confinement (so long as some form of treatment is prescribed).

IMPLICATIONS It is difficult to predict what the future is likely to be for SVP laws, with their paradoxical combination of treatmentoriented rehabilitative principles and corrections-oriented containment principles. Although there has been much political support for these laws, opposition exists among civil liberties lawyers, mental health consumer groups, and mental health professionals. Defense attorneys are concerned that the indefinite duration of SVP commitments, despite the opportunity for periodic judicial review, will lead to their clients remaining in psychiatric hospitals for the rest of their lives. The National Alliance for the Mentally Ill opposes these laws, fearing that scarce treatment resources will be diluted, and that sex offenders in the same institutions will victimize the ‘truly’ mentally ill. Many psychiatrists believe that these laws represent

an abuse of psychiatry, subverting diagnosis and treatment for the social purposes of incapacitation and even punishment. In particular, many are disturbed by the apparent hypocrisy involved in recognizing the presence of mental illness and the need for treatment only after the individual has served his or her criminal sentence. A recent task force report of the American Psychiatric Association stated ‘in the opinion of the task force, sexual predator commitment laws represent a serious assault on the integrity of psychiatry, particularly with regard to defining mental illness and clinical conditions for compulsory treatment (Zonana et al. 1999). Moreover, by bending civil commitment to serve essentially non-medical purposes, sexual predator commitment statutes threaten to undermine the legitimacy of the medical model of commitment. In the opinion of the task force, psychiatry must vigorously oppose these statutes in order to preserve the moral authority of the profession and to ensure continuing societal confidence in the medical model of civil commitment.’ In fact, it is possible that the momentum in favor of these laws has already faded, as SVP bills passed in only three states in 1999 (Texas, Virginia, and Massachusetts), but failed in ten states, with no new laws enacted since the summer of 1999 as of the time of this writing. It has been noted that laws of the SVP type have a typical life course, beginning with their birth in a state of public fear and outrage over one or more highly publicized sex crimes, subsequent ad-hoc legislative committee recommendations and laws created under intense political pressure, and ultimate revision or repeal when the public furor diminishes and the financial and legal repercussions become evident (Sutherland 1950). SVP treatment costs represent a sizable and growing financial burden on states, which may ultimately put pressure on state legislatures to rethink the SVP approach. Annual housing and treatment costs have been estimated to average approximately $91 000 a year per offender, not including legal expenses, based on figures from eight states (Prentky and Burgess 2000). As an example, California spent $31.2 million on SVP treatment in 1998–99, or $107 000 per SVP. This is generally consistent with the cost of treating mentally disordered offenders in state hospitals, but represents about five times the cost of incarcerating these individuals as prison inmates. The costs to California for evaluations and testimony in fiscal 1998–99 were $3.5 million, for a total of about $35 million to support SVP evaluations and treatment for one year. This represents about 2 per cent of the state’s total budget for mental health services, but is expected to increase (Brakel and Cavanaugh 2000). These costs could lead to the outright demise of the SVP experiment. On the other hand, they may also spur good cost–benefit studies and the development and refinement of more efficient approaches to the treatment of sexual offenders, which could be applied in a variety of healthcare and correctional settings.

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In addition to financial costs, the other major force threatening the survival of the SVP laws is the collection of legal issues and battles that they engender. The laws have been subject to repeated legal challenges since their first enactment a decade ago, and there is every indication that, Kansas v. Hendricks notwithstanding, this pattern will continue. Hendricks may appear to have definitively disposed of several major issues, but new theories will be tried and even the old issues are likely to be reasserted in slightly altered form. Several points are already emerging as a focus for post-Hendricks challenges to the SVP statutes: 1 The matter of what treatment is in fact being provided under the programs. 2 The significance of the subjects’ (lack of) control or volitional capacity. 3 The predictability of sexual reoffending if they were set free, including the question of whether these predictions satisfy the legal standards of proof. In addition to these central points, some additional treatment-related issues are likely to furnish ammunition for continued attacks on the laws and their application:

•

•

•

•

The assertion of a right to treatment for committed SVPs when only inadequate treatment is being offered may not only bolster arguments for scrapping the SVP laws/programs, but, as in ordinary civil commitment, may furnish a basis for an individual patients’ release. A right to refuse treatment could in theory be asserted in the SVP context, but it would be self-defeating to the individual patients in that it would hinder rather than help release, nor would it seem to serve a larger strategy for combating the laws. Confidentiality issues are likely to surface as major points of contention, both pre- and post-commitment under the SVP laws, as much of the data on which detention, commitment and release decisions are predicated is in the hands of those who provide treatment for sexually deviant behavior, whether in prisons, hospitals or community outpatient facilities (similar conflicts have already erupted with respect to sex offender registration statutes, child abuse reporting laws and the efforts to provide care or counseling to individuals with sexual behavior problems before they reach criminal or SVP law dimensions). Many committed SVPs will ultimately be released back to the community as a result of successful treatment or the pressures of population and limited institutional treatment resources. At that point many of the issues litigated with respect to criminal defendants acquitted by reason of insanity (NGRIs), such as the conditions of conditional discharge, monitoring procedures, the authority to mandate outpatient medication, and revocation and recommitment standards and procedures, are likely to be refought on behalf of the SVP population.

A case in point on the matter of treatment in fact is Young v. Weston (1999) from the state of Washington. Young has been in and out of the state and federal courts since 1994 when the petitioner, one of the first individuals committed under the law in 1990, filed his habeas corpus petition alleging Hendricks-style flaws in the Washington statute. In his latest action, Young alleges that the quality of treatment and housing at the Special Commitment Center for sexual offenders in Washington is substandard and inadequate. The U.S. Supreme Court granted certiorari, in order to review the Circuit Court of Appeals’ ruling that Young was entitled to an evidentiary hearing on whether the statute as applied – i.e., the actual conditions of confinement and the treatment in fact provided – was so wanting as to make the treatment regimen punitive and call into play the double jeopardy and ex post facto protections after all. In its decision, the Supreme Court reversed the Court of Appeals on the technical ground that an ‘as applied’ challenge by a single individual could not succeed where the statute had previously been found to be civil in nature. Justice O’Connor, writing for the majority, specifically noted that a ‘first instance’ challenge on the same allegations could lead to a different outcome, and also that the Court’s ruling did not preclude the possibility that Young has a remedy or remedies in the state courts on the same facts (Seling v. Young 2001). The treatment in fact issue thus remains open to ample further contest. In re Linehan (1999) (‘Linehan IV’) is a long-running Minnesota case comparable to Young v. Weston. Linehan’s initial commitment was under the state’s old sex offender act in 1992, and his first appeal led to his release in 1993, only to be followed by his recommitment in 1995 under the state’s newly passed SVP-style law. The case raises the issue of volitional capacity, and establishes that substantive due process questions can be revisited postHendricks. Language in Hendricks suggests that the subject’s inability to control his sexual impulses satisfies, or at least helps to satisfy, the ‘mental abnormality’ criterion that permits confinement in principle (i.e., under the parens patriae power). At the same time, the volitional impairment justifies confinement of the individual per se (i.e., for his dangerousness, under the police power). In Linehan, the Supreme Court of Minnesota rejected the petitioner’s contention that the state’s law or its legislative history required proof of ‘utter lack of control,’ holding that lack of ‘adequate control’ – a finding supported by Linehan’s record – sufficed for SVP commitment. That reading was supported by the United States Supreme Court in a decision (issued as this chapter was being readied for publication) involving Kansas statute. In Kansas v. Crane (2002), the Court stressed that the ‘absolutist approach (i.e., requiring proof of total lack of control) is unworkable’ and vacated the Kansas Supreme Court’s decision to the contrary. Pointing out that the level of control capacity is ‘not demonstrable with mathematical precision’ and that ‘insistence upon absolute lack of control would risk barring the civil commitment of highly

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dangerous persons suffering severe mental abnormalities’, the majority allowed that proof of ‘serious difficulty in controlling behavior’ would be ‘enough’. Despite this, the Crane decision is being widely touted by legal pundits as a victory for the anti-SVPA forces. ‘Limits on Detention of Sexual Predators After Prison Terms; Confining Sex Offenders After Prison is to be Harder’ is how The New York Times headed its report on the case. ‘Justices Set Higher Bar for Detention’ was the Chicago Tribune’s headline. The Court’s insistence in Crane that the control issue must be considered against Kansas’ apparent claim that it could commit without any lack-ofcontrol determination is the cause for this rejoicing. But if Crane is a victory for SVPA opponents, it is likely to be a hollow one. Even the Court’s majority opinion does not preclude the possibility that an offender could be found committable solely on the alternate ground of ‘emotional’ abnormality or impairment. More importantly, volitional impairment – even a serious one – should be easy enough to prove in SVP cases; easy enough to convince a judge and jury of. Not only will it typically be part of the clinical profile of a sex offender who (repeatedly) has come to the attention of the law, the presence of such impairment is embedded in the law itself, as Justice Scalia notes in his not-so-temperate dissent. Along with Justice Thomas, who wrote for the majority in Hendricks, Justice Scalia deplores what he considers the needless and senseless requirement of making the State jump through this new volitional substantive due process hoop. It is needless because Kansas statute already defines the threshold ‘mental abnormality’ as a condition ‘affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting a menace to the health and safety of others’. It is senseless because to distinguish for constitutional (or any other) purposes among volitional, emotional, and cognitive impairments is a dead-end. As Justice Scalia observes tartly, ‘The man who has a will of steel, but who delusionally believes that every woman he meets is inviting crude sexual advances, is surely a dangerous sexual predator’. And any judge or jury will recognize this and ignore whatever specious distinctions are made by the legal or forensic advocate. So the outcomes of SVPA proceedings are unlikely to change due to Crane. But there will be litigation on this new wrinkle and there will be more work for lawyers and forensic evaluators. Whether that is a victory depends on one’s perspective. Crane also accentuates another issue likely to generate further legal wrangling. The SVP statutes require that the State show the subject to be likely, or more than likely, (‘substantially’ or ‘highly’ likely) to reoffend sexually in order to be committed. Typically, this likelihood must be proven beyond a reasonable doubt. Precisely what these standards mean in quantitative terms is unclear. Does this mean more than 50 per cent? How much more than 50 per cent? What, if anything, is the relationship between

the ‘substantive’ standard (‘appreciably’, ‘moderately’, ‘substantially’ or ‘almost totally’ unable to control, to quote Justice Scalia’s ironical summation of the possibilities left now that ‘total’ lack of control is out) and the ‘procedural’ standard (likely versus more than likely to recidivate)? The incalculability of this calculus will continue to bedevil the State’s cases and the ability of judges and juries to decide ‘according to the law’. While great strides have been made in the development of both clinical and actuarially based assessment methods, the legal adequacy of the general state of the art/science – as distinct from individual assessments based on the fortuity of ample and strongly probative data – will remain eminently open to challenge. In earlier phases of his case, Linehan in essence contended that no prediction method – used or proposed, actuarial, clinical or combination thereof – could satisfy the standard of proof required in Minnesota. He never won that argument. But in other state court cases (from Florida, Iowa, Missouri, and New Jersey, among others), the point has been made that the whole ‘science’ of prediction in this area is too uncertain to be relied on; i.e., the testimony can satisfy neither Frye (Frye v. U.S., 1923) nor Daubert (Daubert v. Merrell Dow Pharmaceuticals, Inc., 1993) admissibility standards for scientific/expert evidence. A judicial conclusion to this effect would fatally undermine the laws and their implementation. For that very reason, it is a conclusion unlikely to be drawn by a court, or at least unlikely to be sustained on appeal. Finally, the confidentiality issue was raised in Linehan by virtue of the fact that the Court’s conclusion regarding the petitioner’s lack of adequate control was in large part based on his behavior while under commitment. Some of this evidence came from the institution’s security personnel and as such cannot be considered a breach of treatment confidentiality, though it does accentuate some of the ethical concerns of housing individuals for treatment in prison-like settings. However, there was additional evidence that the petitioner had ‘knowingly lied’ to a treating psychiatrist, which does implicate a therapeutic confidentiality breach. The use of such evidence can be challenged by litigants as improper in the context of the case against the individual, or as indicative of a pattern of ethical problems that compromises the whole SVP commitment arrangement. Despite all these concerns, the SVP laws may survive and even thrive and generate real benefits. Already there have been a number of salutary effects, including raising the level of awareness and interest in sexual behavior disorders among a wide range of mental health clinicians and researchers. For example, therapeutic technology of proven efficacy for sexual offenders has been developed relatively recently, including a variety of psychopharmacologic and cognitive-behavioral approaches (Grossman, Martis, and Fichtner 1999). In spite of the massive public health impact that sexual offenses have on society, these approaches were in the past rarely taught or applied by mental health professionals. Psychiatry in particular has

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neglected this area. Part of the reason may be countertransference hatred toward a group that is perhaps easier to write off as ‘bad’ than try to understand as ‘sick,’ though elements of both may be present. In addition, most psychiatrists are not used to dealing with the level of denial that is typically presented by these individuals, and may be uncomfortable with the element of coercion that is often present in treatment (although from the therapeutic standpoint, coercion is not necessarily a bad thing, and has been shown to be effective in the treatment of other mental illnesses, including substance abuse) (Dennis and Monahan 1996). In fact, a variety of parallels are evident between psychiatry’s current difficulty in accepting the paraphilias and other sexual behavior disorders as a legitimate focus for treatment, and prior difficulties in dealing with alcoholism and drug addictions. Both groups of patients have been seen as essentially immoral and inappropriate for medical attention, despite evidence that both groups have disabling biopsychosocial illnesses. The SVP laws may have the beneficial effect of forcing psychiatry to face sex offenders as treatable patients, and in so doing to expand training, to fund and conduct research, and to refine methods of assessments and treatment for this challenging population.

REFERENCES Allen v. Illinois, 478 U.S. 364 (1986). American Psychiatric Association. 1994: Diagnostic and Statistical Manual of Mental Disorders, 4th edition. Washington, DC: American Psychiatric Association.

Brakel, S., Cavanaugh, J. 2000. Of psychopaths and pendulums: legal and psychiatric treatment of sex offenders in the United States. New Mexico Law Review 30, 69–94. Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993). Dennis, D.L., Monahan, J. 1996: Coercion and Aggressive Community Treatment: A New Frontier in Mental Health Law. New York: Plenum Press. Foucha v. Louisiana, 112 S.Ct. 1780 (1992). Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923). Grossman, L.S., Martis, B., Fichtner, C.B. 1999. Are sex offenders treatable? A research overview. Psychiatric Services 50, 349–61. Group for the Advancement of Psychiatry. 1977: Psychiatry and Sex Psychopath Legislation: The 30s to the 80s. Report No. 98. In re Linehan, 594 N.W. 2d 867 (1999). Kansas v. Crane, 2002 WL 75609 (U.S. Kan.). Kansas v. Hendricks, 117 S.Ct. 2072 (1997). Minnesota ex. rel. Pearson v. Probate Court, 309 U.S. 270 (1940). Prentky, R.A., Burgess, A.W. 2000: Forensic Management of Sexual Offenders. New York: Kluwer Academic/Plenum. Seling v. Young, 121 S.Ct. 727 (2001). Specht v. Patterson, 386 U.S. 605 (1967). Sutherland, E.H. 1950. The diffusion of sexual psychopath laws. American Journal of Sociology 56, 142–8. Young v. Weston, 192 F.3d 870 (1999). Zonana, H., Abel, G., Bradford, J., et al. 1999: APA Task Force Report on Sexually Dangerous Offenders. Washington, DC: American Psychiatric Association.

75 Brain imaging RUSTY REEVES AND STEPHEN B. BILLICK

INTRODUCTION Brain imaging began during in the early 1970s with the development of computed axial tomography (CT). The usefulness of the technology moved it quickly from the laboratory to the bedside, and CT is now routine in the diagnosis and treatment of many disorders of the central nervous system. The appeal of a literal glimpse of the brain extended beyond medicine however, and soon after its clinical application CT was introduced to the courtroom. In possibly the most famous case wherein brain imaging played a role, the Hinckley insanity trial of 1982 (U.S. v. Hinckley 1982), a psychiatrist argued that Mr. Hinckley’s enlarged ventricles on CT supported a diagnosis of schizophrenia. Similarly to CT, the most recently developed imaging modalities, positron emission tomography (PET) and single photon emission tomography (SPECT), have been introduced to the courtroom almost as quickly as they have shown clinical utility. However, brain imaging entails many technological and methodological variables and, in the Courtroom, requires a clinical inference as to the causation of legally relevant behavior. Furthermore, a psychiatric diagnosis, which a brain image may help to establish, by itself says nothing about whether a defendant possessed mens rea for a crime. For these reasons, the forensic psychiatrist should educate him or herself in the technology of brain imaging, and should exercise discretion in his or her statements.

THE TECHNOLOGY OF BRAIN IMAGING A brain image is a representation of brain anatomy or physiology through a pictorial or graphic display of data. Current imaging techniques may represent the shape of the brain, electrical activity at the surface of the brain, the type and amount of chemicals in the brain, blood flow, metabolism, or density of receptors. Techniques include CT, magnetic resonance imaging (MRI) [including functional

magnetic resonance imaging (fMRI) techniques such as blood oxygenation level-dependent functional magnetic resonance imaging (BOLD), and diffusion tensor imaging (DTI)], magnetic resonance spectroscopy (MRS), quantitative electroencephalography (qEEG), PET, SPECT, and magnetoencephalography (MEG). A review of the particularities of each technique is beyond the scope of this chapter, but for a comprehensive review of the individual techniques, the reader is referred to several standard texts (Adams, Victor, and Ropper 1997; Yudofsky and Hales 1997; Sadock and Sadock 2000). Despite attempts at standardization, the steps in the generation of a brain image – and there are many – are often not standardized from one technology to the next, or even from one machine or laboratory to the next within a given technology (Fletcher, Woolf, and Royal 1994). The image that the psychiatrist reads may vary depending upon the particular values of the variables a given technician chooses when generating a brain image (Society of Nuclear Medicine Brain Imaging Council 1996). Examples of these variables include, but are not limited to, signal threshold, color, contrast, norms, and ordinates. In addition, the psychiatrist should inquire about a subject’s recent and remote use of psychotropic drugs. This important point, though obvious, may be forgotten in the forensic setting: psychotropic drugs affect functional imaging of the brain. On the other hand, the ideal and standardized conditions that brain imaging researchers seek in order to establish a definitive correlation, are not always available to the clinician. The clinician, while mindful of the abovementioned variables, should seek a correlation consistent with clinical findings, and then consider if this correlation is relevant to the forensic issue.

BRAIN IMAGING AND PSYCHIATRIC DIAGNOSIS The Hinckley trial presented a dramatic use of neuroimaging. In that trial, CT scans showing ventricular

Brain imaging 725

enlargement were used to support a diagnosis of schizophrenia. It is now known that ventricular enlargement, while more common in persons with schizophrenia than in normal persons, is neither a sensitive nor a specific marker of schizophrenia. This particular mistake, however, is not the point. The CT was used to support a diagnosis which was otherwise established with traditional clinical signs of the illness. The CT was not used directly to make an argument about mens rea. On this point, the psychiatrist acted in accord with the state of the thenknown science. Indeed, with regard to mens rea, the state of the science has not changed since 1982. Brain imaging as yet cannot identify thoughts, motives, or capacities. Rather, the traditional and accepted role of brain imaging in forensic psychiatry is the same as it is in clinical medicine: as an aid in diagnosis and assessment of treatment response. Given the current state of medical science in which a brain image, by itself, is usually not diagnostic of a condition, the psychiatrist intending to use brain imaging should proceed in court just as he or she would in clinical practice: the brain image should be but one element of a thorough clinical assessment which includes comprehensive psychiatric, medical, social, and occupational history, including confirmation by secondary sources, neurological and psychiatric mental status examinations and, where applicable, normative neuropsychological testing. The routine uses of brain imaging in psychiatric practice are available for review elsewhere (Yudofsky and Hales 1997; Sadock and Sadock 2000), and will not be discussed further here.

prefrontal hypoperfusion and other abnormalities in subjects who exhibit impulsive aggression (Amen et al. 1996; Soderstrom et al. 2000). SPECT studies of dopamine (Tiihonen et al. 1995; Kuikka et al. 1998) and serotonin (Tiihonen et al. 1997) receptor densities have also revealed abnormalities in this same population. Studies of glucose metabolism assessed with PET similarly have shown prefrontal (Goyer et al. 1994; Raine et al. 1994; Volkow et al. 1995; Raine, Buchsbaum, and LaCasse 1997; Raine et al. 1998a; Raine et al. 1998b;), subcortical (Raine et al. 1998b), temporal (Seidenwurm et al. 1997; Wong et al. 1997b), and generalized cortical (Wong et al. 1997a) hypometabolism in subjects who exhibit impulsive aggression. All of the above-mentioned findings were retrospective. None of these studies attempted to use imaging abnormalities to predict violence. The definitions of violence varied from study to study. Most of the studies used small sample sizes and limited themselves to subjects in psychiatric hospitals, prisons, or forensic settings. Several of the studies had no controls, and most did not control for psychiatric or substance-abuse comorbidity. Thus, these findings associating violence with imaging abnormalities – particularly abnormalities of the prefrontal cortex and temporal lobes – are suggestive, but preliminary. The abnormalities are not demonstrably sensitive or specific for the postdiction of violence (however that term may be defined). More importantly, no abnormality on brain imaging has yet to be causally associated with any isolated, complex behavior, whether murder or a goodnight kiss (Mayberg 1992; Society of Nuclear Medicine Brain Imaging Council 1996).

BRAIN IMAGING AND VIOLENCE STANDARD FOR TESTIMONY Brain imaging that attempts to identify a predisposition to behavior represents the cutting edge of research within forensic psychiatry. This area of research typically bypasses associations with traditional psychiatric diagnoses and instead looks for direct associations with legally relevant categories. The most popular area of investigation is the association of brain abnormalities with violence. Violence has been associated with temporal lobe (Wong et al. 1994) and generalized (Blake, Pincus, and Buckner 1995) abnormalities on CT. MRI studies of violence have shown generalized abnormalities (Blake, Pincus, and Buckner 1995), and asymmetric temporo-parietal gyral patterns and white matter changes (Wong et al. 1997a). In the most elegant and far-reaching MRI study to date, Raine and colleagues (Raine et al. 2000) showed reduced prefrontal gray matter volume in subjects with antisocial personality disorder. This study used non-institutionalized subjects, and controlled for psychosocial risk factors, psychiatric and substance-abuse comorbidity. Perhaps the most promising, and certainly the most arresting studies involve SPECT and PET. Studies of cerebral blood flow assessed with SPECT have shown

The Supreme Court of the United States, in its 1993 Daubert v. Merrell Dow Pharmaceuticals, Inc. (1994) decision, established the Federal Rules of Evidence as the current standard for admitting expert testimony in a federal trial. Most states have also subsequently adopted this standard. Adoption of these Rules superseded the ‘general acceptance’ test established previously (Frye v. U.S. 1923). The Frye test, which had applied in federal trials since 1923, required that the scientific principle underlying an expert’s testimony be generally accepted in the field to which the principle belonged. The Daubert standard, on the other hand, emphasizes the scientific method by obliging expert testimony to be based upon information that is reliable, valid and relevant to the fact at issue. Thus, the Daubert standard does not demand general acceptance within a scientific community (although general acceptance does bear upon the inquiry). Rather, testing, peer review and publication are more directly dispostive in a Daubert hearing. The intent of the Daubert ruling was to allow the admission into evidence of innovative science that had not yet reached general acceptance.

726 Special clinical issues in forensic psychiatry

However, despite the liberal tilt of these Rules, the forensic expert should not think that ‘anything goes’ in expert testimony. The expert who attempts to use a brain image to claim that a defendant had, or did not have, a specific thought (e.g., criminal intent) is obviously at risk for a Daubert challenge. A brain image simply has no relevance to what a person was thinking at the time he or she committed an act. The expert who attempts to claim that a brain image demonstrates a defendant’s propensity for behavior (e.g., violence) might also be on questionable scientific ground, depending upon the reach of his or her opinion. Although there is an increasing and consistent literature on the topic, for the reasons mentioned above, there is as yet no causal association between an abnormality on a brain image and violence. There is most certainly no causal association between an abnormality on a brain image and a specific act of violence or other criminal act. Prospective studies might one day demonstrate a causal association, but the expert who today asserts, for a given imaging abnormality, the ‘my brain made me do it’ defense, is speculating. On the other hand, particularly in the sentencing phase of a trial where the standard for evidence is often lower than in the guilt phase, a court might allow this speculation, if the expert states his or her opinion as such. In this circumstance, the expert may fairly state that the scientific literature relates the imaging abnormality to violence, but has yet to demonstrate that this relation is a causal relation. In other words, this speculative causal relationship is actually a clinical inference (an inference best supported with additional clinical information), and the expert should explicitly say as much. The use of brain imaging least likely to be challenged is, as discussed above, imaging that mimics routine clinical practice. Most jurisdictions routinely allow medical evidence, including brain imaging, when that evidence is part of the diagnostic and treatment-assessment process generally accepted within the medical community. If brain imaging is necessary or routine in good clinical practice, then it has in all likelihood passed the Daubert standard of reliability and validity, and is unlikely to be challenged by an opposing expert, or denied by the court. Conversely, the expert places his or her imaging at somewhat more risk if, in the process of making a routine psychiatric diagnosis, he/she uses a technology that is not routinely used to make that diagnosis. Any time a psychiatrist brings a technology to court that is not used in routine clinical practice, whether or not it deserves to pass Daubert muster, he/she raises skepticism in the opposing expert, and thus may face a challenge. For example, serial imaging (pre-treatment in a naïve brain, and posttreatment) may be compelling in supporting a clinical diagnosis of depression. However, this particular use of brain imaging is not necessary or routine in clinical practice. The expert should thus be prepared to state why he or she uses brain imaging in court. A response might include the statements that a brain image cannot be

faked, that the treatment response shown on imaging is well-documented in the literature, and that brain imaging is not often used in clinical practice because it is expensive and unnecessary in the assessment of a patient not suspected of malingering. The first question that the psychiatrist must ask him/herself is why he needs to use the imaging at all. A court may be aware of the prejudicial effect of what appears to be a picture of the brain. The psychiatrist, in turn, must be prepared to demonstrate the incremental advantage that inclusion of the image allows. The psychiatrist in this situation is of course wise to employ imaging that has demonstrated reliability and validity for its intended purpose, but that for reasons apart from science, has not gained general acceptance. For example, MRI may show temporal lobe atrophy, a sensitive indicator of Alzheimer’s disease (Scheltens and Korf 2000). The expert may explain to the Court that an MRI in the evaluation of Alzheimer’s is an expensive procedure, and is approaching standard clinical practice, but is unnecessary when clinical features of Alzheimer’s are obvious. However, when the examination of the client requires a consideration of malingering, then MRI is advantageous because it cannot be faked. In addition, in such cases the expert should be expected to demonstrate knowledge of the technology (e.g., sensitivity and specificity) that he or she might not have to demonstrate were the technology used routinely in clinical practice.

CONCLUSION Brain imaging is both a compelling visual medium, and one that moves us closer to an explanation of the origin of our behavior. In addition, the breadth and quality of forensic imaging is growing. These developments promise a bright future for the technology in forensic assessment. However, the beguiling picture belies the complex science. A brain image is not a crystal ball into the brain. It does not (yet) tell us what we are thinking. It does not (yet) predict a specific behavior. The psychiatric expert must recognize the limitations of the technology, and keep his or her opinion within the bounds of current scientific knowledge.

REFERENCES Adams, R., Victor, M., Ropper, A. 1997: Principles of Neurology, 6th edition. Philadelphia, PA: McGraw-Hill. Amen, D., Stubblefield, M., Carmicheal, B., Thisted, R. 1996. Brain SPECT findings and aggressiveness. Annals of Clinical Psychiatry 8, 129–37. Blake, P., Pincus, J., Buckner, C. 1995. Neurologic abnormalities in murderers. Neurology 45, 1641–7.

Brain imaging 727 Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993). Fletcher, J., Woolf, S., Royal, H. 1994. Consensus development for producing diagnostic procedure guidelines: SPECT brain perfusion imaging with exametazime. Journal of Nuclear Medicine 35, 2003–10. Frye v. United States, 293 Federal Reporter (1923). Goyer, P., Andreason, P., Semple, W., et al. 1994. Positron-emission tomography and personality disorders. Neuropsychopharmacology 10, 21–8. Kuikka, J., Tiihonen, J., Bergstrom, K., et al. 1998. Abnormal structure of human striatal dopamine re-uptake sites in habitually violent alcoholic offenders: a fractal analysis. Neuroscience Letters 253, 195–7. Mayberg, H. 1992. Functional brain scans as evidence in criminal court: an argument for caution. Journal of Nuclear Medicine 33, 18N–19N. Raine, A., Buchsbaum, M., Stanley, J., et al. 1994. Selective reductions in prefrontal glucose metabolism in murderers. Biological Psychiatry 36, 365–73. Raine, A., Buchsbaum, M., LaCasse, L. 1997. Brain abnormalities in murderers indicated by positron emission tomography. Biological Psychiatry 42, 495–508. Raine, A., Meloy, J., Bihrle, S., et al. 1998a. Reduced prefrontal and increased subcortical brain functioning assessed using positron emission tomography in predatory and affective murderers. Behavioral Science and the Law 16, 319–32. Raine, A., Phil, D., Stoddard, J., et al. 1998b. Prefrontal glucose deficits in murderers lacking psychosocial deprivation. Neuropsychiatry, Neuropsychology, and Behavioral Neurology 11, 1–7. Raine, A., Lencz, T., Bihrle, S., et al. 2000. Reduced prefrontal gray matter volume and reduced autonomic activity in antisocial personality disorder. Archives of General Psychiatry 57, 119–27. Sadock, B., Sadock, V. (eds). 2000: Kaplan and Sadock’s Comprehensive Textbook of Psychiatry, 7th edition. Baltimore, MD: Lippincott, Williams and Wilkins. Scheltens, P., Korf, E. 2000. Contribution of neuroimaging in the diagnosis of Alzheimer’s disease and other

dementias. Current Opinion in Neurology 13, 391–6. Seidenwurm, D., Pounds, T., Globus, A., Valk, P. 1997. Abnormal temporal lobe metabolism in violent subjects: correlation of imaging and neuropsychiatric findings. American Journal of Neuroradiology 18, 625–31. Society of Nuclear Medicine Brain Imaging Council. 1996. Ethical clinical practice of functional brain imaging. Journal of Nuclear Medicine 37, 1256–9. Soderstrom, H., Tullberg, M., Wikkelso, C., et al. 2000. Reduced regional cerebral blood flow in non-psychotic violent offenders. Psychiatry Research 98, 29–41. Tiihonen, J., Kuikka, J., Bergstrom, K., et al. 1995. Altered striatal dopamine re-uptake site densities in habitually violent and non-violent alcoholics. Nature Medicine 1, 654–7. Tiihonen, J., Kuikka, J., Bergstrom, K., et al. 1997. Single-photon emission tomography imaging of monoamine transporters in impulsive violent behaviour. European Journal of Nuclear Medicine 24, 1253–60. United States v. Hinckley, 525 F. Supp. 1342 (D.D.C. 1981), aff’d, 672 F.2d 115 (D.C. Cir. 1982). Volkow, N., Tancredi, L., Grant, C., et al. 1995. Brain glucose metabolism in violent psychiatric patients: a preliminary study. Psychiatry Research 61, 243–53. Wong, M., Lumsden, J., Fenton, G., Fenwick, P. 1994. Electroencephalography, computed tomography and violence ratings of male patients in a maximumsecurity hospital. Acta Psychiatrica Scandinavica 90, 97–101. Wong, M., Fenwick, P., Fenton, G., et al. 1997a. Repetitive and non-repetitive violent offending behavior in male patients in a maximum security mental hospital – clinical and neuroimaging findings. Medicine, Science and the Law 37, 150–60. Wong, M., Fenwick, P., Lumsden, J., et al. 1997b. Positron emission tomography in male violent offenders with schizophrenia. Psychiatry Research 68, 111–23. Yudofsky, S., Hales, R. (eds). 1997: American Psychiatric Press Textbook of Psychiatry, 3rd edition. Washington, DC: American Psychiatric Press.

76 Stalking MOHAN NAIR

INTRODUCTION Stalking, a topic previously not present in this text, has become of increasing relevance from a forensic perspective over the past decade. Stalking is defined as the imposition of unwelcome and fear-inducing communications and approaches (Mullen, Pathe, and Purcell 2000). Prior to 1990, the term stalking was primarily associated with psychiatric conditions considered as relatively rare, e.g., erotomania and delusional disorders, and it often involved stars and public figures. Stalking arising from dysfunctional courtship behaviors and domestic conflict are now the dominant focus. Following the 1989 murder of actress Rebecca Schaffer by an enraged, obsessed fan, and the killing of four Orange County women by ex-intimates, California became the first state to enact an anti-stalking law. The media portrayal of violence associated with stalking in conjunction with the efforts of the domestic violence prevention advocates forced rapid (and in the opinion of some, hasty) legislation that made stalking a crime in all fifty states. Stalking across state lines is a federal offense.

THE CRIME OF STALKING No single legal definition of stalking exists. Some states and the model anti-stalking code (National Institute of Justice 1996) have used component terms and concepts such as the requirement of threat, proximity, intent in the stalker, frequency of contacts, fear in the victim and reasonableness of the victim’s reaction. However, there is little legal consensus about these requirements. Sixteen states do not require intent on the part of the stalker; Florida considers the subjective reaction of the victim to be adequate. Stalking remains primarily a victim-defined crime. In its extreme interpretation, individuals can be charged with the crime of stalking, most commonly on the basis of an ex-wife or girlfriend’s subjective feelings

about his actions and be detained without a warrant and be denied bail. Stalking laws have been criticized as overriding constitutionally protected rights and not differentiating lawful from unlawful behaviors (McAnaney 1993; Boychuk 1994; David 1994; Haas 1994; Guy 1993). This would include actions such as panhandling, the ‘normal’ volatility of relationships, the right to travel, be in public places, and ‘normal’ attempts to communicate between ex-partners. The law has been found unconstitutional and has been struck down in the appellate courts of Massachusetts, Oregon, Kansas, and Texas (Commonwealth v. Kwiatkowski 1994; Oregon v. Norris-Romine 1995; Kansas v. Bryan 1996; Heuter 1997). Proponents feel that the laws have not been protective enough; they justify these statutes on the basis that it allows law enforcement and the judiciary to intervene more effectively and preemptively in potentially lethal domestic violence situations (Bradfield 1998; Radosevich 2000).

EPIDEMIOLOGY Described as an underreported and rapidly growing crime in the United States, the lifetime prevalence of stalking is reported as occurring from 8 per cent in females and 2 per cent in males (Tjaden and Thoennes 1998), and to as high as 62 per cent in the community (Davis and Frieze 2000). The most likely reason for this spread is: (i) the criteria used to identify stalking are vague; and (ii) there is significant sampling bias. Few studies have been conducted in the community, and studies of non-random populations involve small numbers of disparate groups. The range of behaviors used in questionnaires to cull rates of stalking go from the clearly benign, and highly subjective (e.g., leaving unwanted messages, showing exaggerated expressions of affection, trying to be friends with the friends of the victim) to those that are clearly criminal and life-threatening (e.g., rape, kidnapping, and using a weapon to subdue the individual). Wright et al.’s

Stalking 729 Table 76.1 Stalking studies in random and non-random populations Reference

Sample type

Percentage stalking

Remarks

Australian Bureau of Statistics (Mullen, Pathe, and Purcell 2000)

Random community n ⫽ 6300 (females)

15% lifetime prevalence

40% stalked 6 months to ⬎2 years Stalkers are most often strangers 2/3 asymptomatic

National Institute of Justice (1996)

Random community 8000 females 8000 males

8% female, 2% male

78% victims female 80% stalkers male 81% assaults 31% rapes

Tjaden and Thoennes (2000)

n ⫽ 1785 Domestic Violence Reports

18.3% females, 10.5% males

1 in 6 was stalked. Protective orders frequent, stalking victims sustain less physical injury

Canadian Center for Justice Statistics (Kong 2000)

Police reports n ⫽ 5910 victims n ⫽ 3842 stalkers

69/100,000 female 20/100,000 male

78% victims female 87% stalkers male

Fremouw, Westrup, and Pennypacker (1997)

n ⫽ 600 college students

30% females 17% males

80% new stalkers 43% females and 24% males dated stalker

Bjerregaard (2000)

n ⫽ 788 college students

25% females 11% males

96% females stalked by males 1 out of 3 males stalked by males Half ex-intimates. Threat of violence: 23.8% females; 13.8% males

Harmon, Rosner, and Owens (1998)

Forensic clinic referrals (n ⫽ 175)

–

Affectionate/amorous 61%; persecutory/angry 31%; violent 46%

Kienlen et al. (1997)

Chart review of 25 stalkers

–

1/3 psychotic; 2/3 personality disorder Non-psychotics more violent

Palarea et al. (1999)

n ⫽ 341

LAPD/Threat Managment Unit

Simple obsessional 217 Love obsessional 87 Erotomanics 17

Mullen, Pathe, and Purcell (2000)

n ⫽ 145 stalkers

–

Rejected 58; Intimacy seeker 54; Self/court referred incompetent 24; Resentful 24; Predatory 8

Saundberg, McNeil, and Binder (2001)

n ⫽ 62 MH staff

–

52% harassed; 3% stalked

(1996) FBI sample of thirty stalking cases which resulted in seven homicides and six suicides is unlikely to have much in common with the 62 per cent of young adults in the community who report being ‘repeatedly’ stalked. Details of stalking studies in random and non-random populations are listed in Table 76.1.

TYPOLOGY There is no uniform classification of stalking. Stalking, like violence, is a common behavioral pathway that flows from diverse motivations. The sexual predator who follows the child with a well-rehearsed plan to torture, rape, and kill is a stalker; the high-school student who simply cannot let go of his ex-girlfriend and insists on staying close to her in the cafeteria and hanging out outside her home in spite of being warned, and the homeless schizophrenic who keeps following a stranger in response to auditory hallucinations, are all stalkers.

Most relevant classifications of stalkers note the relationship to the victim. Violence is directly related to intimacy and closeness (Schwartz-Watts and Morgan 1998). By integrating concepts of delusional disorders and erotomania and non-delusional/borderline erotomania, Zona, Palarea, and Lane (1998) divide stalkers into three types:

•

•

Simple obsessionals: these constitute the largest group, and form two-thirds of the 200 referrals to the Los Angeles Police Department (LAPD)/Threat Management Unit which involve the stalking of ex-lovers. Less frequently, obsessive attachments and resentments may involve the stalking of friends, roommates, co-workers, and acquaintances. This group carries the highest risk of violence. Love obsessionals: these form one out of four of Zona’s sample. They are characterized by the absence of any relationship with the victim. Involvement may occur through the media, i.e., star stalkers, but any chance contact may trigger a stalking episode.

730 Special clinical issues in forensic psychiatry

•

Erotomanics: these are predominantly females who believe against all evidence to the contrary that they are loved by the victim, usually an individual in a higher station than themselves.

Mullen, Pathe, and Purcell (2000) classify stalkers into five types: 1 2 3 4 5

Rejected. Intimacy seekers. Resentful. Incompetent suitors. Predatory.

The rejected group is similar in composition to simple obsessives, and intimacy seekers to love obsessors and erotomanics. The resentful group are touchy and paranoid individuals for whom stalking and harassing becomes a way of getting back at co-workers, supervisors, or individuals from some ‘system’ for perceived persecution.

BEHAVIORS ASSOCIATED WITH STALKING Stalking involves the intrusive and obsessive attempts to make unwanted communication with the victim, intrude, or control their lives. The forms of communication and intrusion are only limited by the stalker’s imagination. They include telephone contacts, following, writing letters, and increasingly E-mail and posting information about the victim on the Internet. Some 20 per cent of cases referred to the Threat Management Unit of the Los Angeles Police Department involve stalking through electronic mail. One out of four of the 600 cases referred to the Sex Crimes Unit of New York City involved cyber stalking.

• •

Example: Jake Baker, a University of Michigan student, was arrested by federal agents for sharing details of his fantasies and plans online to kidnap, rape, and torture a classmate (Branscomb 1995). Example: The day after she was seen by a dentist, a 23-year-old female started receiving prodigious amounts of E-mail from him; the E-mails, which started at 3 o’clock in the morning the day after her visit, provided extreme personal information, made request for similar information from her and expressed sexual fantasies. This was followed by the dentist showing up in places where he expected her to be, based on her conversations in the office. He began to show up at her workplace, telling her that he just happened to be in the area; at one point he visited her at home, allegedly to follow up on a dental problem and attempted to make physical contact with her at the time she was there, leading her ultimately to seek legal help.

Stalkers may show up in places that they know the victim is expected to be, and/or make contact with or ingratiate

themselves on the victims’ family or acquaintances in an attempt to get close to the victim. Goods may be ordered on behalf of the victim, services such as the telephone and electricity turned off, and rumors started about the victim. For example, the disgruntled boyfriend of a physician complained to the Board of Medicine that she was improperly prescribing narcotic medications to addicts, compelling an investigation on her. In another case, a young man communicated to his ex-girlfriend’s supervisor that the frequent phone calls she gets at work are from clients to whom she is offering her ‘call-girl’ services. More ominous intrusions include threats of violence which are reported in 30–80 per cent of victims; directly approaching the victim in their homes, entering victims’ home and leaving threatening mementos; initiating frivolous lawsuits; threatening family members and friends; damaging property, making threats, killing pets, physically assaulting, kidnapping and raping victims. Ex-intimate stalkers use the broadest range of surveillance and harassment techniques. Letter writing as a single mode is most common with erotomanics and love obsessives. The forms of communication may reveal something about the stalker and his or her relationship with the victim, real or imagined. Bizarre communication and gifts may suggest that the stalker is psychotic, but this may also be done with the conscious goal of ‘spooking’ the victim. Stalking behavior can be prolonged. One-fourth of subjects in the study of Tjaden and Thoennes (1998) were stalked for an average of 1.8 years; delusional and erotomanic stalkers may continue as long as five or ten years (Zona, Palarea, and Lane 1998; Mullen, Pathe, and Purcell 2000).

MOTIVATIONS FOR STALKING As with domestic violence, stalking is often associated with relationships that involve narcissistic, borderline personalities, pathologic rage (Edelson and Tolman 1992; Meloy 1998), enmeshment, and abandonment rage. The most common reason for stalking is to be with a loved one. Often, this is coupled with or alternates with a need for revenge, control, and the desire to hurt or even kill the love object. Stalking behaviors may be maintained by revenge and hatred alone. This concept is neither new nor unusual in that pathologic jealousy and abandonment rage have always been the most common reason why men hurt or kill the women they claim to love (Stone 1989; White and Mullen 1989). Individuals with paranoid, schizoid, and narcissistic personality disorders may be hypersensitive to or misconstrue communications from co-workers, neighbors, or casual acquaintances; a real or imagined slight becomes an obsession that then results in stalking behavior. Many have personality disorders that make it difficult for them to achieve real friendships, courtship behavior, and

Stalking 731

intimacy. Over half of the stalkers in Mullen’s sample (Mullen, Pathe, and Purcell 2000) had never been out on a date. Individuals who may have had a prior relationship may desperately try to hold on to it. Erotomanics and love obsessives may have fantasy relationships as a substitute for a real one that they are not able to achieve. Psychotic motivations may include affection, sexual desire, or the delusional belief that the other person loves them; psychotics may stalk due to paranoid, grandiose, or religious delusions. Stalking may occur in response to auditory hallucinations. For example, a homeless individual begins to follow a jogger wearing a green sweatshirt to his door, in response to auditory hallucinations and a delusion that the person is the Messiah. Mentally retarded and demented individuals cannot exercise appropriate control on their behavior, and may follow individuals to whom they are sexually attracted, feel affectionate toward, or are drawn by some curiosity or resentment. Sexual predators and paraphiliacs, i.e., pedophiles, rapists, sadists, voyeurs, fetishists, and obscene phone callers, may engage in stalking-type behaviors (Goldstein 2000):

•

•

•

A 27-year-old male is repeatedly arrested and incarcerated for entering a female’s home to acquire lingerie for sexual arousal. The prominent sexologist Havelock Ellis described a British soldier who was sexually aroused by the smell of menstrual blood; he was exquisitely sensitive to the smell, and would detect and follow women who were menstruating. On one occasion he was caught as he followed a woman into her tent and attempted to remove her menstrual pad while she was sleeping. A 31-year-old black male would repeatedly follow women with a video camera, staying at a short distance from them, ultimately following them all the way up to their door. He was later convicted of following, and overpowering and raping a police woman. A 16-year-old white male would follow attractive young women on a jogging path while exposing his genitals. He then progressed to physical contact by brushing up against them. Eventually, he followed a woman and tried to rape her, leading to his arrest and incarceration.

Stalking in these individuals may often be a cover for underlying paraphilic disorders.

PSYCHIATRIC DISORDERS AMONG STALKERS Cluster B personality disorders of the borderline, narcissistic, and histrionic types are predominant in ex-intimate stalkers. Less often, dependent, schizoid, and paranoid personality disorders may be noted. Substance abuse is common. Antisocial personality is uncommon; the presence of psychopathy should raise concerns about violence.

Delusional disorders, schizophrenia, affective and organic psychosis are common among stranger and star stalkers that have no relationship with them, including those with whom no conceivable relationship is imaginable. Mental retardation and dementia may be found in some. Mental illness is often not a factor in those who stalk or attempt to assassinate public figures (Fein and Vossekuil 1998).

VICTIMS OF STALKING Some 80–90 per cent of the victims are women, and 80–90 per cent of stalkers are men. Stalking has been described in all ages, including adolescents (McCann 2001). The most common victims of stalking are young women in their reproductive years, who have had a sexual relationship with the stalker. As in other victims of domestic violence, some may have enmeshed, dependent, sadomasochistic relationships with the perpetrator. Often, there is a history of childhood abuse (Bowlby 1979; Downs 1996; Gelles 1997; Goodyear-Smith and Laidlaw 1999). This group is at the highest risk of violence, including lethal violence. Physical assault, rape, and stalking often starts even prior to the separation.

•

Example: a female in treatment for depression following a break up with her common-law husband for the fourth time. Each time, he has engaged in violence and stalking. He attempted to kidnap the children and repeatedly threatened her at her workplace. Situations of domestic violence in the past have often culminated in sexual activity. She found herself aroused by his aggression. However, the level of violence escalated and she started to become fearful for the children. The victim wore a gold necklace with a pendant that said, ‘spoiled rotten.’ She disclosed that this was given to her by her stepfather who had repeatedly sexually molested and physically abused her from the age of twelve. A diagnosis of borderline personality disorder is noted.

Victims of non-intimate stalkers do not fit a profile. Those who are stalked by intimacy seekers and love obsessionals are often visible and appealing.Victims may include co-workers, roommates, casual acquaintances, and complete strangers. Therapists and physicians are especially prone to being stalked as a result of having to deal with emotionally needy people. Stalking can cause serious disturbances in emotional, social, interpersonal, and work functioning. Posttraumatic stress disorder has been reported in 37–60 per cent of stalking victims. Depression, anxiety, insomnia, somatization disorders, and substance abuse are commonly reported. Hall (1998) noted self-identified stalking victims as becoming aggressive, paranoid, and fearful. One-third of the females, and one in five men of

732 Special clinical issues in forensic psychiatry

the domestic violence stalking victims sought psychiatric help (Tjaden and Thoennes 2000). As a result of stalking, victims may move, change jobs, stop working, change their usual routes, isolate and, in some instances, arm themselves. It is unlikely that these findings can be generalized to non-clinical groups. Two out of three women in large community sample studies in Australia and the United States denied feeling fearful. Less than 20 per cent of female college students who reported being stalked sought to inform the police. Self-identified victims recruited through the media (Hall 1998; Brewster 2000) or through support groups such as incest survivor groups (Kamphuis and Emmelkampp 2001) may be prone to exaggerate, fabricate, falsely attribute or, in some instances, be delusional about being stalked.

FORENSIC ASPECTS OF STALKING Stalking, like sex offending, is recognized as both a psychiatric and criminal problem in many instances. Many states and the model anti-stalking code specifically recommend mental health evaluations on those charged with the crime of stalking. Referring parties may request opinions on various aspects of stalking including:

• •

• • • • • • •

Assessment of criminal competency, i.e., insanity, diminished capacity, the ability to form specific intent. Evaluation of stalking victims, e.g., mental state of victims who killed in self-defense (battered wife syndrome); claims of posttraumatic stress disorder and other psychiatric disorders as a result of stalking; issues of false victimization. Appropriateness of Tarasoff warning when clinicians become aware of a patient stalking a specific victim; issues of hospital release of stalkers. Psychiatric Workers’ compensation evaluation of employees who claim to be stalked in the work place; stalking and risk of workplace violence by disgruntled employees. Violence risk assessment of stalkers. Recommendations regarding civil commitment, rehabilitation, and treatment for stalkers. Threat management consultations. Stalking/child abduction and high conflict child custody cases. Assessment of paraphilic and predatory stalkers.

Assessment

• • • • • • •

Risk assessment Stalking is a common behavior driven by various motives. Similar to a headache that may stem from a mild sinus congestion or a life-threatening brainstem hemorrhage, some situations of stalking may represent grave danger. Therefore, there cannot be one risk assessment tool for stalking. Rather, the empirically tested and actuarial data available from different groups should be considered, i.e., the Danger Assessment Instrument for Batterers (Saunders 1995), Violence Risk Appraisal Guide (VRAG) (Quinsey et al. 1998); Psychopathy ChecklistRevised (PCL-R) (Hare 1991); and the Static-99 for sex offender recidivism (Hanson and Thornton 1999). General factors in violence risk assessment should also be noted (Monahan and Steadman 1994). Factors likely to increase the risk of assault in stalkers (Palarea et al. 1999; Mullen, Pathe, and Purcell 2000) include:

• • • • • • • • • • • • • • •

The assessment procedure includes the following:

•

Psychiatric examination including review of records and collateral information, i.e., medical, psychiatric, police, work records.

Current psychiatric, chemical dependency, and medical problems. Past history and response to treatment; motivations for stalking behavior; history of recent losses. Psychological tests including MMPI-2, MCMI-2, Rorschach. Violence risk assessment. Family and social support. Treatment recommendations, i.e., civil commitment, inpatient, outpatient. Prognosis.

•

Substance abuse. History of criminal offending including sexual and violent offending. Male gender. Making threats of violence and suicide. The presence of personality disorder, especially borderline, narcissistic type. Pursuing an ex-intimate. Long-term preoccupation with victim. Being unemployed or under-employed. Being socially isolated. Having high levels of anger directed at the victim. Having an intense sense of entitlement. Fantasizing about and planning assaults. Possessing weapons and having a history of familiarity with weapons. Access to victims; physical approaches to victim in multiple settings. Sense of desperation to resolve situations; ‘crisis periods,’ e.g., protective orders, police confrontation, threat of arrest or incarceration; current stressors such as death of loved one, job loss, loss of child custody/ visitation. History of non-compliance to treatment.

Stalking 733

Risk management Meloy (1998) recommends the following risk management approach:

• • • • •

• •

• •

A team approach including law enforcement, mental health professionals, and the courts, and personnel necessary to provide safety to the victim. Emphasize the victim’s need to show responsibility for personal safety. Document specifics of contact so as to establish a course of conduct on the part of the perpetrator that defines stalking and the responses of fear in the victim. The victim should not initiate or have contact with the perpetrator, as it will reinforce the behavior. Restraining orders to suppress approach behavior; also, to emphasize the continuity of the course of conduct and to document fear. Victims should be advised that restraining orders in some instances may provoke violence. Law enforcement and prosecution: appropriate filing of police reports and steps to help prosecute, even when it is troubling. Treatment of stalkers: those with Axis I disorders will benefit from antipsychotic and mood stabilizers. Delusional disorders are difficult to treat. Personality disorders likewise may be difficult to treat, but may benefit from the group therapy format, i.e., relapse prevention program similar to those used with sex offenders and domestic violence. Periodic violence risk assessment. Recognizing, preventing, and containing situations (‘dramatic moments’) which are expected to cause narcissistic injury in the stalker. This will result in increased risk of violence. Situations include protective orders, denied child custody visits, police and judicial confrontations.

SPECIAL ISSUES Stalking and violence The association between stalking and violence has been the driving force that resulted in rapid criminalization. The incidence of violence in stalking varies widely (from 3 per cent to 47 per cent) depending upon the population studied, but it averages 30–40 per cent in clinical and forensic samples. The representation of stalkers as predators or psychopaths is not accurate. Most violence in stalkers is affective and not premeditated or predatory. Stalkers who are psychopathic, i.e., those who have PCL-R scores greater than 30, are most likely to be violent. Both the violence and stalking behavior come from pre-existing factors such as early attachment problems, primitive personality disorders with a tendency to form enmeshed

relationships. Situational factors such as recent losses, the break up itself and inability on the part of the victim to give clear signals to the perpetrator may contribute. Factors that increase the likelihood of violence are prior intimacy, prior violence, and a criminal history in the stalker, and having cluster B personality disorders (Zona, Palarea, and Lane 1998). The actual level of physical injury is relatively small. In the Canadian study (Kong 2000) involving over 5000 victims, 20 per cent of the stalkers had weapons, 14 per cent made physical contact with the victim, including pushing, shoving, and hair pulling. Physical injuries, however, occurred in only 2 per cent. Tjaden and Thoennes (2000) reported that domestic violence cases involving stalking reported lesser degrees of physical abuse and injury when compared to those that did not involve stalking. Zona, Sharma, and Lane (1993) reported only three out of seventy-four stalkers responding with violence. In combining multiple studies, Meloy (1998) reported that only twelve out of 576 cases involved weapons. Threats of violence appear to be used to threaten and control rather than to inflict injury. The incidence of violence is low in psychotic/ delusional stalkers, but it can occur. Attacks may be directed toward third parties who thwart the objects of their desire (Meloy 1999). Those who wrote threatening letters to public figures did not show a tendency to pursue, physically confront or attack them (Deitz et al. 1991). The literature does not show a cause and effect relationship between stalking and violence. Pathologic jealousy and abandonment rage in a narcissistic/borderline personality are factors in violence, including femicide. Some of those who hurt and kill will also stalk, but stalking is an association, not a cause, of the violence. Compared to the level of threat, i.e., 30–80 per cent, the level of physical contact and property damage is only about one in three, and the level of injury is slight. Police personnel who intervene in stalking, and mental health professionals who are called in to consult, should be aware because this contradicts the popular image of stalkers being on the verge of lethal violence and homicide/ suicide scenarios. The risk of homicide in stalking is over-rated. The 2 per cent rate of homicide in stalking victims reported by Meloy (1998), and the 25 per cent homicide in the FBI sample (Wright et al. 1996) are clearly not applicable to the general population where stalking is commonplace, i.e., it occurs in 8 per cent to 15 per cent.

Clinician stalking Psychotherapists often deal with those who have attachment problems, neediness, and poor boundaries, as well as psychotic disorders. The commonest form of mental health clinician stalking is by patients who feel wronged by them. On occasion, this has progressed to lethal

734 Special clinical issues in forensic psychiatry

violence (Lion 1995). Half of the clinical staff of a mental health facility reported experiencing some form of harassment; serious types of stalking in this group were reported in only 3 per cent of the sixty-two surveyed (Saundberg, McNeil, and Binder 2001). Some patients may stalk clinicians from romantic and sexual interests, or to seek a friendship beyond that of a doctor–patient relationship. Appropriate limit setting, adherence to guidelines of treatment of borderline and other conduct-disordered individuals, appropriate law enforcement reporting and consistent and predictable intervention such as protective orders are recommended.

False victimization False victimization often involves claims of physical illness, e.g., factitious disorder, Munchausen’s by proxy syndrome, physical assault, sexual harassment, and sexual assault. Kanin (1994) noted false allegations of rape in about half of a sample of female college students. False claims of stalking are not uncommon, and have been reported in the law enforcement literature (Artingstall 1999). Mullen, Pathe, and Purcell (2000) reported eighteen cases among their series of 145 victims, and Zona, Palarea, and Lane (1998) reported six among a series of 341. These actions may be carried out for attention, malice, or from psychotic delusions. False victims tend to seek legal and psychiatric intervention earlier, and often show significant anger. Improbable stories, repeated episodes of stalking, and multiple stalking – especially in individuals with a history of illness behavior, unsubstantiated disabilities, borderline personality, suspicious previous history of victimization and litiginous tendencies – should raise concerns regarding the authenticity of these claims.

CONCLUSION From having been in the shadows as an exotic psychiatric condition, stalking has been re-cast as a terrifying ‘epidemic.’ Distortions of data and political agendas have made stalking out to be both pervasive and lethal. The risk of violence presence cannot be assessed on the basis of stalking alone, but on the traditional risk assessment instruments. The literature does not support the popular view that stalking, as currently defined, can be both pervasive and lethal. The failure to integrate existing bodies of knowledge, i.e., mental health and legal, and to deal primarily with stalking as a law and order issue may do for ‘the war on stalking’ what it has done for ‘the war on drugs’ – that is, result in miscarriages of justice, loss of credibility in the concept and its application, and ultimately fail to protect the very group meant to be protected.

REFERENCES Artingstall, K. 1999: Practical Aspects of Munchausen by Proxy and Munchausen Syndrome Investigation. Boca Raton, FL: CRC Press. Bowlby, J. 1979: The Making and Breaking of Affectional Bonds. New York, NY: Tavistock Publications. Boychuk, K.M. 1994. Are stalking laws unreasonably vague or over broad? Northwestern University, Law Review 769–96. Bradfield, J.L. 1998. Anti-stalking laws: do they adequately protect stalking victims? Harvard Womens Law Journal 21, 229–66. Branscomb, A.W. 1995. Anonymity, autonomy and accountability: challenges to the First Amendment in cyber spaces. Yale Law Journal 104, 1639–79. Bjerregaard, B. 2000. Empirical study of stalking victimization. Violence and Victims 15, 389–406. Brewster, M.P. 2000. Stalking by former intimates: verbal threats and other predictors of physical violence. Violence and Victims 15, 41–54. Commonwealth v. Kwiatkowski, W-6531, 418 Mass 543; 637 N.D. 2d 854; Mass. Lexis 469 (1994). David, J.W. 1994. Is Pennsylvania’s stalking law constitutional? University of Pittsburgh Law Review 56, 204–44. Davis, K.E., Frieze, I.H. 2000. Research on stalking: what do we know and where do we go? Violence and Victims 15, 473–87. Dietz, P.E., Matthews, D.B., Martell, D.A., Stewart, T.M., Hrouda, D.R., Warren, J. 1991. Threatening and otherwise inappropriate letters to members of the United States Congress. Journal of Forensic Sciences 36, 1445–68. Downs, D.A. 1996: More Than Victims: Battered Women, the Syndrome Society, and the Law. Chicago, IL: University of Chicago Press. Edelson, J.L., Tolman, R.M. 1992: Intervention for Men who Batter. An Ecological Approach. Newbury Park, CA: Sage Publications. Fein, R.A., Vossekuil, B. 1998. Protective Intelligence Threat Assessment Investigation: A Guide for State Series: Research Report. http://www.ncjlis.org/ txtfiles/170612txt Fremouw, W.J., Westrup, D., Pennypacker, J. 1997. Stalking on campus: the prevalence and strategies for coping with stalking. Journal of Forensic Sciences 42, 666–9. Gelles, R.J. 1997: Intimate Violence in Families, 3rd edition. Thousand Oaks, CA: Sage Publications. Goldstein, R.L. 2000: Serial stalkers. Recent clinical findings. In Schlesinger, L.B. (ed.), Serial Offenders: Current Thoughts, Recent Findings. Boca Raton, FL: CRC Press, 167–86. Goodyear-Smith, F.A., Laidlaw, T.M. 1999. Aggressive acts and assaults in intimate relationships: toward an understanding of the literature. Behavioral Sciences and the Law 17, 285–304.

Stalking 735 Guy, R.A. 1993. The nature and constitutionality of stalking laws. Vanderbilt Law Review 46, 991–1028. Haas, B.B. 1994. The formation and viability of antistalking laws. Villa Nova Law Review 39, 1386–415. Hall, D.M. 1998: The victims of stalking. In Maloy, J.R. (ed.), The Psychology of Stalking: Clinical and Forensic Perspectives. San Diego, CA: Academic Press, 113–37. Hanson, R.K., Thornton, D. 1999: Static-99: Improving Risk Assessment for Sex Offenders (User report 99-02). Ottawa: Department of the Solicitor General of Canada. Hare, R.D. 1991: The Revised Psychopathy Checklist. Toronto, Ontario, Canada: Multi-Health Systems. Harmon, R.B., Rosner, R., Owens, H. 1998. Sex and violence in a forensic population of obsessional harassers. Psychology, Public Policy and Law 4, 236–49. Heuter, J.A. 1997. Lifesaving legislation: will the Washington Stalking Law survive constitutional scrutiny? Washington Law Review 72, 213–40. Kamphuis, J.H., Emmelkampp, M.G. 2001. Traumatic distress among support seeking female victims of stalking. American Journal of Psychiatry 158, 795–8. Kanin, E.J. 1994. False rape allegations. Archives of Sexual Behavior 23, 81–92. Kansas v. Bryan, 99-5752, 528 US 939; 120 S.Ct 346; 145 L. Ed. 2d 270; US Lexis 6733; 68 USLW 3250 (1999). Kienlen, K.K., Birmingham, D.L., Solberg, K.B., O’Regan, J.T., Meloy, J.R. 1997. A comparative study of psychotic and non-psychotic stalking. Journal of the American Academy of Psychiatry and Law 25, 317–34. Kong, R. 2000: Criminal Harassment. Juristat, Canadian Center for Justice Statistics. Statistics Canada – Catalog Number 85-002-XIEVOL20NO11. Lion, J.R. 1995: Verbal threats against clinicians. In Eichelman, B.S., Hartwig, A.C. (eds), Patient Violence and the Clinician. Washington DC: American Psychiatry Press, 43–52. McAnaney, K.M. 1993. From imprudent to crime. Notre Dame Law Review 68, 819–21. McCann, J.T. 2001: Stalking in Children and Adults: The Primitive Bond. Washington, DC: American Psychological Association. Meloy, J.R. 1998. The psychology of stalking. In Meloy, J.R. (ed.), The Psychology of Stalking. Clinical and Forensic Perspectives. San Diego, CA: Academic Press, 2–21. Meloy, J.R. 1999. Erotomania, triangulation, and homicide. Journal of Forensic Sciences 44, 421–4. Monahan, J., Steadman, H.J. 1994: Violence and Mental Disorder. Developments in Risk Assessment. Chicago: University of Chicago Press. Mullen, P.E., Pathe, M., Purcell, R. 2000: Stalkers and Their Victims. Cambridge, UK: Cambridge University Press.

National Institute of Justice. 1996: Domestic Violence, Stalking and Anti-Stalking Legislation: An Annual Report to Congress under the Violence Against Women Act (MCJ 160943). Washington DC: US Department of Justice, Office of Justice Programs. Oregon v. Norris Romine, 134 Ore App. 204; 894 P. 2d 1221; Ore App. Lexis 679 (1995). Palarea, R.E., Zona, M.A., Lane, J.C., LanghinrichsenRohling, J. 1999. The dangerous nature of intimate relationship stalking: threats, violence, and associated risk factors. Behavioral Sciences and the Law 17, 269–83. Quinsey, V.L., Harris, G.T., Rice, M.E., Cormier, C.A. 1998: Violent Offenders, Appraising and Managing Risk. Washington, DC: American Psychological Association. Radosevich, A.C. 2000. Thwarting the stalker. Are anti-stalking measures keeping pace with today’s stalker? University of Illinois Law Review 4, 1371–95. Saundberg, D., McNeil, D., Binder, R. 2001: Stalking and Harassing Behavior towards Clinicians. Presented at the 32nd Annual Meeting of the American Academy of Psychiatry and the Law, Boston, MA. Saunders, D.G. 1995: Tradition of wife assault. In Campbell, J.C. (ed.), Assessing Dangerousness: Violence by Sex Offenders, Batterers, and Child Abusers. Thousand Oaks, CA: Sage Publications, 68–95. Schwartz-Watts, D., Morgan, D.W. 1998. Violent versus non-violent stalkers. Journal of the American Academy of Psychiatry and Law 26, 241–5. Stone, M.H. 1989: Murder. Psychiatric Clinics of North America 12, 643–52. Tjaden, P., Thoennes, N. 1998: Stalking in America: Findings from a National Violence Against Women Survey. Washington, DC: National Institute of Justice and Center for Disease Control. Tjaden, P., Thoennes, N. 2000. The role of stalking in domestic violence. Crime reports generated by the Colorado Springs Police Department. Violence and Victims 15, 427–41. White, G.L., Mullen, P.E. 1989: Jealousy: Theory, Research, and Clinical Strategies. New York, NY: Guilford Press. Wright, J.A., Burgess, A.W., Laszla, A.T., McCrary, G.O., Douglas, J.E. 1996. A typology of interpersonal stalking. Journal of Interpersonal Violence 11, 487–502. Zona, M.A., Palarea, R.E., Lane, J.C. 1998: Psychiatric diagnosis and the offender/victim typology of stalking. In Meloy, J.R. (ed.), The Psychology of Stalking. Clinical and Forensic Perspectives. San Diego, CA: Academic Press, 70–83. Zona, M.A., Sharma, K., Lane, J. 1993. A comparative study of erotomanic and obsessional subjects in a forensic sample. Journal of Forensic Sciences 38, 894–904.

77 Head trauma: a practical approach to the evaluation of symptom exaggeration SHOBA SREENIVASAN, SPENCER ETH, PATRICIA KIRKISH AND THOMAS GARRICK INTRODUCTION The controversy regarding the extent, severity and presentation of cognitive disability following head trauma is a significant issue that the forensic clinician must confront in civil and criminal litigation. This issue frequently unfolds in the legal process as conflicting testimony from multiple, multidisciplinary experts regarding the genuineness of the persistent symptoms following head trauma. Debate most often occurs in situations of minor head injury, where there is minimal alteration in consciousness and often absent objective evidence of brain injury. The prevalence of persistent symptoms (eighteen months post-injury) following such minor head injury is generally low, varying between 5 per cent and 15 per cent (Binder 1986). On the other hand, such symptoms may be subtle and difficult to recognize clinically without specialized assessment. The forensic clinician therefore faces a situation in which he or she must differentiate between subtle brain dysfunction, symptom exaggeration, psychogenic-based causes for the presence of cognitive and other deficits, or frank malingering. There are fundamental theoretical and practice differences between clinical and forensic evaluations. Forensic evaluations are guided by the legal issue: competency to stand trial, not guilty by reason of insanity and so forth in the criminal arena (Kirkish and Sreenivasan 1999; Denney and Wynkoop 2000); and the nexus between the symptoms and disability and/or compensable damage in the civil arena. The purpose of this chapter is to offer a practical model for the assessment of amplified neuropsychological and psychiatric deficits in minor head trauma civil litigants utilizing a forensic-clinical approach.

SUMMARY OF SYMPTOMS FOLLOWING MINOR HEAD TRAUMA Mild head injury can be followed by a triad of emotional, cognitive and somatic complaints (Evans 1992; Brown,

Fann, and Grant 1994). Prior head injuries, substance abuse, as well as somatization and posttraumatic stress disorder (PTSD) symptoms are factors which render difficult the assignment of a specific constellation of symptoms fully attributable to the litigated head trauma. There is also a high base rate in the normal population of having suffered a minor head trauma without lasting consequences (Evans 1992; Mittenberg and Strauman 2000). Some suggest that persisting symptoms in the context of a mild head injury and litigation are predominantly the consequence of financial incentives (Binder and Rohling 1996).

Comorbidity of psychiatric conditions It is possible to construct a continuum of psychiatric conditions which feature prominent neuropsychological complaints:

Valid/neurological

Psychiatric/ unconscious

Fabricated/ intentional

Amnestic disorder Dementia (head trauma) Post-concussional disorder Cognitive disorder NOS

Conversion disorder Somatization disorder NOS Dissociative Fugue and amnesia Major depression PTSD

Factitious disorder Malingering

NOS; not otherwise specified

A primary diagnostic consideration would be the group of psychiatric disorders that are explained by a documented neurological condition. Although the cognitive deficits may persist or improve over time, they rarely worsen, unless there are subsequent brain insults through repeated injuries or alcohol abuse (Binder, Rohling, and Larrabee 1997).

Head trauma: a practical approach to the evaluation of symptom exaggeration 737

Conscious versus unconscious production of symptoms The examiner must always be vigilant for two conditions in which cognitive symptoms are intentionally produced. In factitious disorder, the feigning of symptoms, including memory loss, occurs without the presence of external incentives, such as monetary rewards. Malingering is technically not a psychiatric disorder, though it may become the focus of clinical attention. Malingering is the volitional, conscious production of symptoms in order to obtain a reward. Although the gratification conferred by adopting a sick role of diminished responsibility is mentioned as a defining feature of factitious disorder, this unconscious factor may be present in all conditions on this list, including malingering. Another relevant factor is secondary gain. This term derives from psychoanalytic theory and consists of the practical benefits that patients achieve through the symptom’s influence on the behavior and attitude of others, such as eliciting sympathy and gratifying dependency needs. When the patient also complains of pain, the contribution of the sick role and secondary gain are intensified. Both the sick role and secondary gain can serve to perpetuate and exacerbate symptoms. In a context where there is potential financial recovery related to diagnosis and prognosis, the contribution of the sick role and secondary gain is amplified, regardless of the extent to which these factors operate unconsciously.

Rates of neuropsychological impairment and malingering in minor head trauma Although cognitive complaints are a common sequelae of minor head trauma, the persistence of such deficits beyond three to six months remains controversial. Some studies prospectively examining patients with mild concussion and controls have not found evidence to support the presence of persistent cognitive deficits (Zielinski 1994), while others have demonstrated symptomatology (Brown, Fann, and Grant 1994). Binder and his colleagues (Binder, Rohling, and Larrabee 1997), in their metaanalytic review found the prevalence of neuropsychological impairment associated with minor head trauma to be small (r ⫽ 0.06), suggesting that such impairment was apparent in only a minority of the cases. The knowledge of symptoms associated with postconcussive syndromes may also impact symptom overreporting. Mittenberg et al. (1992) suggest ‘symptom expectancy bias,’ coupled with selective attention and symptom mis-attribution, may result in the persistence of post-concussive symptoms following mild head injury. Binder and colleagues, in reviewing the impact of financial incentives on recovery after closed-head injury, concluded that those patients with such incentives revealed more abnormalities than those patients without financial incentives and more severe injuries (Binder and Rohling

1996). Studies have suggested that the base rate for malingered cognitive symptoms may range from 7.5 per cent to 33 per cent (Curtiss and Vanderploeg 2000; Rosenfeld, Sands, and van Gorp 2000; Vallbhajosula and van Gorp 2000).

MOTIVATIONAL TESTS Motivational tests offer one method of assessing the individual’s level of effort and approach to formal testing. The most common method is the forced choice approach, which begins with exposure to the stimuli (pictures, digits) followed by a recognition trial of two choices, namely the Test of Memory Malingering (TOMM) (Tombaugh 1997), and the Validity Indicator Profile (VIP) (Frederick 1997). The forced choice model assumes that an individual, who falls in the malingering range on the basis of cutoff scores, demonstrates poor test motivation. As such, the performance on motivational tests can be used to interpret performance on other neuropsychological measures and weight the degree to which the other tests are a true reflection of actual deficit.

ASSESSMENT GUIDE: FORENSIC-HYPOTHESIS TESTING MODEL A data-driven model (Sreenivasan et al. in press) is suggested that addresses two questions: 1 Which data support a hypothesis of malingering or symptom exaggeration? 2 Which data argue against malingering or symptom exaggeration? The model therefore moves away from a test score-only approach in which malingering tests may not be as predictive in head injury patients subjects. The method is issue-driven, and presents a comprehensive list of factors addressing the consistency (or lack thereof) of symptoms presented by the litigant. The five areas listed are guided by the data in terms of the support or lack of support for malingering.

Using the assessment guide The assessment guide for exaggeration/malingering in head injury incorporates five major sections (see Table 77.1): I Neuropsychological testing issues: How does the profile presented fit what is known about the diagnosis? How does the profile fit with what is known about the base rate occurrence of this level of symptom severity for this disorder? Does the testing comport with the severity of injury and is it consistent with diagnostic criteria? Do the motivational tests comport

738 Special clinical issues in forensic psychiatry Table 77.1 Assessment guide for exaggeration/malingering in head injury. Supports genuine injury I Neuropsychological testing issues a Base rates of brain damage b Testing comports with severity of injury c Motivational tests abnormally positive II Congruence of testing and behavior a Data consistent with observed behavior in testing session b Serial testing consistent with CNS process c Testing data comports with medical reports d Testing data comports with occupational or school functioning III Congruence of symptoms or signs with clinical data a Symptoms/signs comport with clinical interview b Symptoms/signs consistent with clinical course c Symptoms/signs consistent with past records d Symptoms/signs consistent with physical exam e Symptoms/signs consistent with objective labs f Symptoms/signs consistent with collateral or surveillance data g Medication response consistent with natural history of CNS disease h Symptoms/signs consistent with social, occupational or school functioning IV Non-clinical factors a No decline in income/business pre-injury b No pending lawsuits pre-injury c No burn-out, job actions, conflicts with coworkers, skills problems pre-injury d Compensation less than pre-injury income V Presence of psychiatric and other conditions that may contribute to amplified or atypical symptoms a Depression/anxiety b Personality disorder c Conversion/somatization d Substance abuse e Cumulative concussion f Impact of chronic pain g Impact of medications h Impact of medical comorbidities Miscellaneous: a Prior history of litigation b Prior history of lying, malingering c Prior criminal activity or arrests d Prior job track record e Prior responses to injury

with normative samples for these tests or do they indicate attempts to manipulate the clinical presentation? II Congruence of testing and behavior: This includes the patient’s description and subjective rating of the condition, and the relative impairment or dysfunction. Are subjective quantitative rating scales relatively stable? Look for extreme ratings that have little in the way of operational dysfunction to support the subjective rating. Are the data consistent with observed behavior in testing session, with other sources of

Supports symptom exaggeration

High Yes No

❑ ❑ ❑

Low No Yes

❑ ❑ ❑

Yes Yes Yes Yes

❑ ❑ ❑ ❑

No No No No

❑ ❑ ❑ ❑

Yes Yes Yes Yes Yes Yes Yes

❑ ❑ ❑ ❑ ❑ ❑ ❑

No No No No No No No

❑ ❑ ❑ ❑ ❑ ❑ ❑

Yes

❑

No

❑

Yes Yes Yes

❑ ❑ ❑

No No No

❑ ❑ ❑

Yes

❑

No

❑

PRESENCE OF CONDITION Yes Yes Yes Yes Yes Yes Yes Yes

❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑

No No No No No No No No

❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑

Yes Yes Yes Yes Yes

❑ ❑ ❑ ❑ ❑

No No No No No

❑ ❑ ❑ ❑ ❑

information such as work behavior, home behavior, or school functioning? Is serial testing consistent with the central nervous system (CNS) process assessed? III Congruence of symptoms or signs with clinical data: To what extent are the symptoms observed in keeping with what is observed during the psychiatric examination, clinical course, past records, physical examination, or laboratory examination? Are the symptoms and signs consistent with collateral/surveillance data, social, occupational or school functioning? Is the

Head trauma: a practical approach to the evaluation of symptom exaggeration 739

medication or treatment response consistent with the natural history of CNS disease? IV Non-clinical factors: There are a number of nonclinical factors that may impact the evaluation findings: financial factors, context of the evaluation, knowledge of test procedures/disorder, and expectations for recovery. Many litigants have been subjected to multiple testing sessions and psychiatric evaluations, and this should be evaluated to assess the impact upon test finding and clinical presentation. The context of the evaluation, that is whether the litigant is being evaluated by the defense versus plaintiff expert may well impact the symptoms presented. Individuals may amplify symptoms to convince the defense expert of the legitimacy of deficits, or may be angry in an evaluation that is perceived as part of an adversarial process. The evaluation should also clearly address what is expected of recovery of function or disability. For example, what is their attitude about anticipated resolution? Is there investment in remaining disabled or dependent, apart from financial incentive? What is the desired outcome? (settlement, embarrassment of responsible party, day in court, recognition of victimization), and how does the patient expect to obtain it? A variety of factors point towards a potential for symp-tom misrepresentation, such as a decline in income/ business preinjury, pending lawsuits pre-injury, stress or other work-related problems, compensation higher than pre-injury income. V Psychiatric and other conditions that may contribute to amplified or atypical symptoms: A variety psychiatric conditions exist that may contribute to amplified or atypical symptoms. The presence and severity of any of these noted disorders or conditions may result in an atypical presentation. Symptoms may not be consciously amplified (e.g., as in conversion disorder or somatization disorder), and may represent the psychological impact of loss of efficacy. Other conditions, such as antisocial personality disorder, could be associated with malingering. A thorough evaluation of these disorders is likely to assist in clarifying atypical presentations. The conditions include: depression, anxiety, personality disorder, conversion/ somatization, substance abuse, cumulative concussion, and chronic pain. Additionally, chronic use of some medications (e.g., sedative hypnotics, opiate analgesics) may have significant impact on symptom presentation and need to be considered.

Conclusion from assessment Conclusions derived from the assessment include the following:

•

Genuine disorder – no exaggeration: Deficits/symptoms explained by medical/neurological condition.

•

•

•

Post-concussional disorder, amnestic disorder, cognitive disorder NOS, psychological factors affecting a medical condition. Genuine disorder with exaggeration: Deficits/symptoms explained by medical/neurological condition, but severity is not consistent with the condition. Substance abuse, personality disorder, mood disorder, anxiety disorder, psychotic disorder. Atypical presentation with questionable exaggeration: Deficits/symptoms are not explained by medical/ neurological condition, severity does not comport with condition. Conversion/hysteria, dissociative disorder, somatoform disorder, pain disorder, with psychological incentives, or factitious disorder. Atypical presentation-malingering: Deficits intentionally produced, both fabrications and exaggeration of severity of symptoms for clearly discernible external incentive; with external incentive, equivalent to malingering.

CONCLUSION This practical model allows the clinician to integrate a variety of issues prior to formulating a conclusion. The approach allows for a balanced review of multiple factors, as well as providing the clinician with a clearly based rationale for how and why they reached their conclusions. Ultimately, neuropsychiatric syndromes that arise from minor head trauma may defeat efforts to satisfactorily explain inconsistent or puzzling features. Patients often are found to have complex conditions that combine elements of a subtle brain insult, somatization, depression, and secondary gain. However, the forensic challenge remains to opine whether a relatively minor head injury could legitimately cause persistent neuropsychological symptoms and disability.

REFERENCES Binder, L.M. 1986. Persisting symptoms after mild head injury: a review of the post-concussive syndrome. Journal of Clinical and Experimental Neuropsychology 8, 323–46. Binder, L.M., Rohling, M.L. 1996. Money matters; a metaanalytic review of the effects of financial incentives on recovery after closed head injury. American Journal of Psychiatry 153, 7–10. Binder, L.M., Rohling, M.L., Larrabee, G.J. 1997. A review of mild head trauma: part I: meta-analytic review of neuropsychological studies. Journal of Clinical and Experimental Neuropsychology 19, 421–31. Brown, S.J., Fann, J.R., Grant, I. 1994. Postconcussional disorder: time to acknowledge a common source of

740 Special clinical issues in forensic psychiatry neurobehavioral morbidity. Journal of Neuropsychiatry 6, 15–22. Curtiss, G., Vanderploeg, R.D. 2000. Prevalence rates for neuropsychological malingering indexes in traumatic brain injury. APA Division 40 Newsletter, 9–14. Denney, R.L., Wynkoop, T.F. 2000. Clinical neuropsychology in the criminal forensic setting. Journal of Head Trauma Rehabilitation 15, 804–28. Evans, R.W. 1992. The post-concussion syndrome and the sequelae of mild head injury. Neurologic Clinics 10, 815– 47. Frederick, R.I. 1997. The Validity Indicator Profile Manual. Minnetoka, ST: NCS Assessments. Kirkish, P.M., Sreenivasan, S. 1999. Neuropsychological assessment of competency to stand trial evaluations: a practical conceptual model. Journal of the American Academy of Psychiatry and the Law 27, 101–13. Mittenberg, W., Strauman, S. 2000. Diagnosis of mild head injury and the postconcussion syndrome. Journal of Head Trauma Rehabilitation 15, 783–91. Mittenberg, W., DiGiulio, D.V., Perrin, S., Bass, A.E. 1992. Symptoms following mild head injury: expectation

as aetiology. Journal of Neurology, Neurosurgery, and Psychiatry 55, 200– 4. Rosenfeld, B., Sands, S.A., Van Gorp, W.G. 2000. Have we forgotten the base rate problem? Methodological issues in the detection of distortion. Archives of Clinical Neuropsychology 15, 349–59. Sreenivasan, S., Eth, S., Kirkish, P., Garrick, T. (In press). A practical method for the evaluation of exaggerated symptoms among civil litigants. Journal of the American Academy of Psychiatry and the Law. Tombaugh, T.N. 1997. The Test of Memory Malingering (TOMM) normative data from cognitively intact and cognitively impaired individuals. Psychological Assessment 9, 260–8. Vallbhajosula, B., van Gorp, W.G. 2000. Post-Daubert admissibility of scientific evidence on malingering of cognitive deficits. Journal of the American Academy of Psychiatry and the Law 29, 207–15. Zielinski, J.J. 1994. Malingering and defensiveness in the neuropsychological assessment of mild traumatic brain injury. Clinical Psychology; Science and Practice V1, Winter.

78 Psychiatric abuse in North America ALFRED M. FREEDMAN AND ABRAHAM L. HALPERN

INTRODUCTION Psychiatric abuse has been in the forefront of concern, not only for psychiatrists but also for other mental health professions and the general public. However, over the past several decades this concern has been primarily focused on the political abuse of psychiatry in regard to dissidents in the former Soviet Union. While not diminishing in the slightest the importance of publicizing and opposing the misuse of psychiatry, too little attention has been paid to the abuse of psychiatry in the United States and Canada. It is much easier to be outraged by events at a distance than to look at one’s own defects. American psychiatry has not been oblivious to psychiatric abuse at home. In 1979, the American Psychiatric Association (APA) established the Committee on Abuse and Misuse of Psychiatry and Psychiatrists in the United States, as a component of the Council on National Affairs. This committee has been busy collecting and investigating various matters of abuse, but most important, it worked for many years preparing a document that would define and delineate the misuse and abuse of psychiatry in the United States, culminating in the following position statement adopted by the APA in May, 1994: The American Psychiatric Association supports the use of psychiatric knowledge, practice and institutions only for purposes consistent with ethical evaluation and treatment, research, consultation, and education. Abuse and misuse of psychiatry occur when psychiatric knowledge, assessment, or practice is used to further illegitimate organizational, social, or political objects. (APA 1994)

Subsequently, a set of principles relating to identification of abuse and misuse of psychiatry was approved by the Board of Trustees (APA 1998a): 1 The use of psychiatric knowledge, practice and institutions is only for purposes consistent with ethical evaluation and treatment, research consultation, and

2

3

4

5

6

7

education. Abuse and misuse of psychiatry occur when psychiatric knowledge, assessment, or practice is used to further morally illegitimate organizational, social, or political objectives. It is psychiatrists’ primary responsibility to use their clinical skills and knowledge for the benefit of their patients. External social, political, management and economic forces should not be the primary consideration. Psychiatrists shall not allow their professional opinions to be inappropriately influenced by illegitimate outside factors. It is essential for psychiatrists to consider biopsychosocial factors in their assessment of patients. In certain situations (e.g., forensic evaluations, disability evaluations) the primary responsibility of a psychiatrist may not be for the benefit of the evaluee per se. The evaluee must be informed of the purpose of the evaluation or service, and any lack of confidentiality, as well as the reality that the psychiatrist may not know how the information will be used. This information may require repetition. The responsibility to provide clinically sound and scientifically based consultation is still the case. Psychiatrists shall always be mindful of patients’ rights. In their role of treating psychiatrist, they should resist and attempt to counteract forces interfering with patient-focused, humane treatment. A psychiatrist should not be a participant in a legally authorized execution. Psychiatrists shall not detain or incarcerate persons for political reasons, use medical knowledge for interrogation, persuasion or torture, or provide unsubstantiated diagnoses for use against political dissidents, whistleblowers or others. It is the psychiatrist’s responsibility when working in the context of an organization or social or political environment to advocate for the mental health needs of the community or population in which he/she is working. Since confidentiality is critical to patient care, psychiatrists must be sure the information and/or records they provide are sensitive to the mental health interests of the persons and/or populations with whom they

742 Special clinical issues in forensic psychiatry

are working. It is important to release the least amount of information possible to accomplish the desired function. 8 All psychiatrists are encouraged to speak to egregious issues which adversely affect them and/or the mentally ill, and to bring forward perceived misuses of their function or role as psychiatrist for review by the Committee on Abuse and Misuse of Psychiatry in the U.S. and the Committee on International Abuse of Psychiatry and Psychiatrists. For the forensic psychiatrist, the issue of psychiatric abuse is of prime importance. The dilemmas of forensic psychiatry in regard to the criminal justice system, the ability to stand trial, the insanity defense, and testamentary capacity, to name only a few, will be discussed later in this chapter. These, at times, agonizing problems have been recognized by the organization of forensic psychiatrists, the American Academy of Psychiatry and the Law (AAPL 1987), as well as by individual publications. However, an expanded role for forensic psychiatry would seem to be in order. In this period of litigation, malpractice suits, criminal sanctions against psychiatrists for sexual abuse, and a whole variety of ethical dilemmas arising out of revolutionary changes in reimbursement – with corporate medicine and hospital practice compounded by economic difficulty – psychiatrists and hospitals, when faced with threats of suits or with actual suits, do not know where to turn for advice or consultation. Too often the field is left to lawyers who have limited sensitivity to the issues. Here is a role for forensic psychiatrists who have the combination of clinical acumen and legal awareness that would be of inestimable value to a psychiatrist or hospital (Halpern 2000). It is evident that there will be increasing demand for individuals available for consultation and advice, and this role could well be filled by forensic psychiatrists.

DEFINING ABUSE What is psychiatric abuse? Among the dictionary definitions of abuse, the following seem particularly relevant: ‘to put to a wrong use’; ‘to use for wrong purpose’; ‘to use ill’; ‘to maltreat’; ‘to act injuriously to’; ‘to hurt’; and ‘to dishonor.’ The key words here – the ones particularly applicable to this discussion – would appear to be harm and injury; thus, abuse consists of the misuse of psychiatry, causing harm and injury. Recall the penetrating statement of Leon Eisenberg (1973, p. 1375): The fact that psychiatry can be abused does not make psychiatry an abuse. Scientists can be suborned, but science remains essential to human welfare.

The overarching concept must be that psychiatry is an essential and critical medical specialty whose goal is the betterment and welfare of humanity. This concept is well stated in the preamble to The Principles of Medical Ethics

of the American Psychiatric Association, which stresses that a psychiatrist must ‘recognize responsibility not only to patients but also to society, to other health professions and to self ’ (APA 1998b). Many are concerned that this rule emphasizes the dilemma of the psychiatrist in balancing multiple loyalties, and some even feel that adherence to the preamble is impossible. Rather than implying the impossibility of ethical practice on the part of psychiatrists, this statement only emphasizes the essential conflict in many of the ethical situations that exist and are described here (Freedman 1978). In dealing with evil, the situation is simple, but many real-life situations involve two apparently conflicting rights. These are agonizing problems that must be dealt with, since this is the very nature of the psychiatrist’s and actually the physician’s role. The conflict is exemplified in regard to confidentiality where one is dealing with the individual’s right to privacy versus the public’s right to know. One might well ask, Who might cause harm to a patient? Two sources must be considered. One is the individual practitioner and the other is the institutions of society including laws, the courts, legislative bodies, the world of work, economic structures, schools, prisons, and the military. One must then ask, Who are the recipients of such injury or harm? Obviously, the first and principal recipient is the individual patient. Second, the institutions of society may be harmed and communities may suffer. When newspaper articles exposed abusive care at the Brooklyn Kings County Psychiatric Hospital in 1961, the hospital remained almost empty for two months, but many families suffered from the presence of disturbed or violent members in their households whom they could not bear to see hospitalized at that institution. The community and the whole mental health system suffered since the notion of psychiatric hospitals as ‘snake-pits’ was reinforced. Obviously, this circumstance came about because there was actual abuse of patients at the psychiatric hospital. Third, one must consider the harm done to the profession of psychiatry, not in the sense of self-serving or papering over abuse. If one psychiatrist abuses psychiatry, all psychiatrists suffer. But more important is the effect on other psychiatric patients at that time as well as in the future. Such revelations have a chilling effect on those involved in treatment and particularly those who might seek or feel the necessity of psychiatric treatment. Discouraged from seeking treatment, the individual patient will suffer harm, the profession will be injured, and society in general will suffer.

PSYCHIATRIC ABUSE BY THE INDIVIDUAL PRACTITIONER In order to facilitate the discussion of abuse of psychiatry, the abuse by the individual practitioner is considered

Psychiatric abuse in North America 743

first, and subsequently the abuse caused by the institutions of society. Of course, in certain instances both will be involved since the individual practitioner is part of society and must adhere to certain laws and constraints. No abuse of psychiatry has received as much attention in the profession and the media as sexual abuse. The principles of medical ethics of the American Psychiatric Association are unequivocal in regard to sexual relations with a patient. In Section 2, Annotation 1, of the principles (APA 1998b) there is the simple statement, ‘Sexual activity with a current or former patient is unethical.’ A significant group of APA members has expressed concern about the sweeping rigidity of this ethical canon, and efforts are being made to address valid exceptions. The overriding concern in regard to sexual relations between psychotherapist and patient can be seen in the recent enactment of criminal sanctions against such behavior in seven states, with a number of other states seriously considering such legislation (Jorgenson, Randles, and Strasburger 1991; Bisbing, Jorgenson, and Sutherland 1995). Although there appears to be a rising tide nationally, there is no universal acceptance of criminal sanctions as a solution, and the issue continues to be debated in forensic psychiatric circles and state legislatures. Confidentiality has been termed the critical issue of the ethical behavior of psychiatrists and has been dubbed the ruling ethic. Many physicians take the Hippocratic Oath upon graduation from medical school: Whatsoever I shall see or hear concerning the life of men or even apart therefrom, which ought not to be noised abroad, I will keep silence thereon, counting such things as Holy secrets. (Adams 1939)

For psychiatrists, confidentiality is an overriding concept of the highest priority. Without the assurance of confidentiality, psychiatric practice would be severely inhibited, since a patient must feel free to speak without restraint, to reveal one’s most intimate thoughts, outrageous fantasies, obscene dreams, violent and embarrassing ruminations. It has been recognized that with the development of third-party payments from the government or private insurers and other new reimbursement procedures, confidentiality is often compromised (Freedman 1988). Psychiatrists have long been aware of the necessity to breach confidentiality in the case of imminent serious harm to another individual or the community. This has been reinforced by the Tarasoff decision and elaborations of it (Tarasoff v. Regents of the University of California 1976; Mackay 1990). Again, necessity for reporting child abuse under various state legislation also may involve negation of confidentiality (Miller and Weinstock 1987). The primacy of protecting communications by a patient in therapy appears to have been given the ultimate stamp of approval by the U.S. Supreme Court in Jaffee v. Redmond (1996), which held that psychotherapists could not be compelled to give testimony in federal court when doing so would violate the confidences of their patients.

Slovenko (1998, 2002) nevertheless cautions that exceptions to the ruling may well undermine the principle’s lofty intentions. On the other hand, a recent decision by a New York trial judge extended the Jaffee edict by declaring that giving a Tarasoff warning does not permanently abrogate the physician–patient privilege (People v. Robert Bierenbaum 2000). Thus, a treating psychiatrist would not be permitted to testify for the prosecution in a criminal case merely because a warning had been given to an intended victim. The judge went even further: his ruling also held that patient-authorized conversations with family members, where the conversations with the psychiatrist are necessary to further the objectives for which the patient sought professional assistance, likewise do not vitiate the physician–patient privilege. Two days later, relying on Jaffee, the United States Court of Appeals for the Sixth Circuit (United States v. Hayes 2000) decided that there was not a dangerous patient privilege exception to the federal psychotherapist–patient testimonial privilege; that is to say, a Tarasoff warning did not otherwise constitute a waiver of the physician–patient privilege and permit a psychiatrist to testify against his or her patient when the patient is criminally charged with threatening the life of the intended victim. (In that case the government sought to prosecute a mentally ill individual for making threats against a federal employee during several psychotherapy sessions, threats about which the therapist had warned the intended victim. The District Court had suppressed testimony by the psychotherapist and subsequently dismissed the case. The Court of Appeals upheld the District Court’s decision.) Jaffee notwithstanding, psychiatrists should be aware that legislation exists (Foreign Intelligence Surveillance Act 1978) which permits government investigators to conduct electronic surveillance and searches including the recording of telephone conversations between therapists and their patients (Danoff 2000). This permission was recently given appellate court sanction in a ruling that declared that the psychotherapist privilege is ‘evidentiary rather than constitutional in nature’ and bars only testimony or evidence regarding privileged communication, and that the government, therefore, was not barred from making a derivative use of intercepted conversations between the suspect and her psychotherapist to develop a FBI Behavioral Analysis Program Team report that was used in structuring an undercover operation that led to the defendants’ capture (Squillacote v. United States 2000). It should also be noted that federal appellate courts have ruled that great leeway can be granted law enforcement agents in investigating allegations of criminal conduct and that government misconduct must be ‘truly outrageous’ before due process considerations will be implicated to prevent a conviction (United States v. Kaminski 1983). ‘Artifice and stratagem may be employed to catch those engaged in criminal enterprises’ (United States v. Sabatu 1989, citing the U.S. Supreme

744 Special clinical issues in forensic psychiatry

Court decision in Sorrells v. United States 1932). Indeed, ‘extensive government involvement in criminal activity, without more, does not constitute the type of coercion … or other egregious or outrageous conduct rising to the level of a due process violation’ (United States v. Dyman 1984). Although the cases cited do not involve psychiatric interactions with patients, it is not unreasonable for psychiatrists to fear that, in an attempt to uncover criminal behavior, secret recording by law enforcement agents of conversations between patients and therapists would not be viewed by the courts as truly outrageous conduct. Widespread use of computers has increased opportunities to breach confidentiality (Aldrich and Turner 1978), and there are those who believe that in the face of erosion of confidentiality all efforts to maintain it should be abandoned (Siegler 1982). This would be a disservice not only to a patient whose psychiatrist has breached confidentiality but to the profession and other patients as well as future patients. It is incumbent upon psychiatrists if they wish to avoid the erosion of confidentiality to maintain and struggle for confidentiality. This issue was exemplified by two cases in California of Drs. Lifschutz and Caesar (Bromberg 1979, pp. 393–5; Slovenko 1980), who were ordered by the court to make the total record of a patient available. Even though the patient in each instance had waived confidentiality, these psychiatrists felt that it would be a disservice to the patients in question, to other psychiatric patients, and to psychotherapy in general, to make these ‘holy secrets’ public. The two psychiatrists were held in contempt of court, and each spent several weekends in jail until a compromise was reached: the records would be reviewed by the judge, and only those portions that were relevant to the case could be revealed. In contrast to the cases just discussed, questionable breaches of confidentiality occurred in two widely publicized cases. In the first case, Dr. Martin Orne turned over tapes and records of his former patient, Anne Sexton, the Pulitzer prize-winning poet, to her biographer, Dr. Diane Wood Middlebrook (Middlebrook 1991). Publication of the biography precipitated widespread controversy (Stanley 1991; Goldstein 1992a; Goldstein 1992b), with a number of psychiatrists holding that the action may have been legal, but was ethically questionable, particularly since Dr. Orne had unhesitatingly turned over the tapes and records to Dr. Middlebrook when they met, without any attempt to defend confidentiality, for example, by insisting on a court order. Apparently such a court order had been threatened, but not carried through. In a second case, Paul Alexander (1991) wrote a biography of Sylvia Plath, likewise a distinguished poet, in which a psychiatrist who had treated Sylvia Plath at McLean Hospital in Belmont, Massachusetts, following a suicide attempt, spoke freely and in great detail about her former patient. Interestingly enough, when Paul Alexander first met the psychiatrist, Ruth Tiffany Barnhouse, he raised the question of confidentiality, and

she summarily dismissed it (Alexander 1992). Many who discussed this case pointed out that the precedent had already been set by Dr. Orne’s behavior in regard to Anne Sexton, and therefore there was no restraint on such revelation. Without struggling to maintain confidentiality, one can see such abuse proliferating without control. There may be an ‘Orne precedent’ emerging. Abuse of the psychiatrist’s role can also occur when the psychiatrist is the consultant for a third party or organization. In this situation, the patient may assume confidentiality, though the information will be shared with a third party or organization. If the limits of confidentiality and the transmission of information to others have not been explained in detail, then certainly the psychiatrist can be accused of abuse. This matter is illustrated when a psychiatrist acts as a consultant on behalf of a third party with serious implications for the examinee (Dietz, Davis, and Harding 1985). Such examination may be related to employment or may be requested for a student who has been disrupting a classroom. Again, the person must be fully informed of the limits to confidentiality and the fact that information will be transmitted to the third party that requested the consultation. In many respects, the situation is reminiscent of the criteria for informed consent prior to surgery or prescribing medication. It is incumbent upon the psychiatrist not only to alert the patient but also to make certain that he or she understands and consents to the way in which his or her opinion is to be utilized (Group for the Advancement of Psychiatry 1991; Strasburger, Gutheil, and Brodsky 1997). It is critical if a psychiatrist accepts the consultant’s role that he or she have the skills and knowledge to evaluate the case in order to make a sound report or to give expert testimony. This is particularly important for the forensic psychiatrist. Otherwise an abuse occurs, for example, if a psychiatrist who has no training or experience in child and adolescent psychiatry passes clinical judgment after examination of a child or an adolescent. The psychiatrist must never venture into areas where his or her competence may be in doubt (AAPL 1987). In April 1987, a conference was held at the Hastings Center in Briarcliff, New York, sponsored by the APA’s Ethics Committee, on how the new mental health economics impacts on ethics and behavior in psychiatric practice (McDevitt, Freedman, and Holzberg 1988). There is no question that the development of private and governmental reimbursement has offered new opportunities for the abuse of psychiatry through excessive, inappropriate, or fraudulent charges (Towery and Sharfstein 1978). Such abuse not only injures patients through unnecessary procedures and hospitalization but it also besmirches the entire profession; particularly since a disproportionate number of psychiatrists have been involved in such fraudulent cases of abuse, it is harmful to all psychiatrists. Since such frauds and abuse have been uncovered, investigations have proliferated that threaten confidentiality of psychiatric records (Moran 1990).

Psychiatric abuse in North America 745

Investigators have often insisted on seeing complete records rather than just verification of appointments kept, as well as the length of such sessions. Psychiatrists are often entrapped in situations in which they are not aware of what is done with the records they keep. It is incumbent upon every psychiatrist to learn who else scrutinizes patients’ records, and to write up their notes in anticipation of others reading the records. This is discussed further in the section on institutions, but it often presents major conflict for the practitioner in a hospital. A problem is looming on the horizon. New Medicare rates for the elderly are considered by many psychiatrists to be totally inadequate and therefore they plan not to accept Medicare patients in the future, or in some instances they plan to terminate treatment for already existing patients who are on Medicare. This potential for abuse has not yet been fully confronted.

INSTITUTIONAL ABUSE In recent years special attention has been paid to the abuse by institutions of the psychiatrist’s role for a variety of reasons, which may include furthering organizational objectives, monetary gain, and social control. These institutional activities lie beyond the practitioner’s direct control and must be distinguished from the previously cited abuses that focus on the individual practitioner’s autonomy. Yet there is often overlap and collusion. Some institutional abuses are longstanding, such as misuse of the psychiatrist’s role in prisons, the criminal justice system in general, hospitals for the criminally insane, the military, and education facilities. Others are of more recent origin; their genesis lies essentially in the new mental health economics as delineated in the abovementioned APA-Hastings Institute report (McDevitt, Freedman, and Holzberg 1988). The previous loose and liberal reimbursement has now given way to lower rates and tighter accounting that lead individuals and various institutions to devious practices to maintain their profitability (Towery and Sharfstein 1978). Also involved is the shift in occupational distribution in the health-industry complex. In the earlier part of the 1900s, MDs made up the bulk of those providing services, but as the years have gone by, more and more non-MDs have entered the field and assumed important roles (Statistical Abstracts 1991). The rise of corporate medicine, chain hospitals, and health maintenance organizations (HMOs) has placed further constraints on the autonomy and influence of the individual practitioner. Psychiatrists are often confronted by a conflict of loyalties because of institutional or social pressures that make it difficult for the psychiatrist to provide ‘competent medical service’ for the benefit of the patient (Freedman 1978). Thus, a psychiatrist may be in a double bind in a

state hospital that is severely underfunded and understaffed where inadequate management and unsupervised attendants result in abusive conditions. On the one hand, is the psychiatrist justified in attempting to provide the best possible care in a decidedly unfavorable situation while doing his or her best to improve that situation? Or, on the other hand, is it necessary for the psychiatrist to withdraw from working in an institution where the best possible care is prevented, and thereby no professional care at all may be the consequence? To what extent is the individual physician, if at all, guilty of unethical practice and abuse of patients while working in such an unfavorable setting? Does the Nuremberg decision made at the post-World War II trials of Nazi doctors guilty of criminal experimentation, which holds the individual physician responsible for his or her actions in spite of orders from superiors, prevail also in a hospital? A state hospital must conform with governmental imperatives. However, another element enters with regard to private psychiatric hospitals, namely, the profit motive. Often these hospitals are parts of a corporate chain, and in their bottom-line philosophy and responsibility to stockholders, outrageous abuses have been reported (Kerr 1991). These abuses include keeping patients in hospitals unnecessarily until their insurance has been exhausted, discharging patients prematurely or inappropriately when their insurance has expired, or ‘dumping’ patients on public hospitals; charging for unnecessary services; charging for services that were never delivered, and altering diagnosis to fit insurance coverage. Throughout these allegations, reports of negligent and abusive care are prominent. A particular concern is the frequency with which the charges are made in regard to children and adolescents, a concern that has brought about congressional investigation. All the questions of abuse and conflict of interest cannot be mentioned here. Illustrative of the unresolved issues is the Osheroff case, which has been described and debated extensively (Klerman 1990; Stone 1990). A doctor who was depressed was hospitalized at Chestnut Lodge in Rockville, Maryland, a hospital then committed to psychoanalytic psychotherapeutic approaches. Showing no improvement after many months, it is alleged, he was transferred to another hospital where he received antidepressant drugs and made a rapid recovery. Chestnut Lodge was sued for causing harm to the patient. The lower court supported this contention and awarded damages of $250 000. However, the decision remains unresolved, since upon appeal an out-of-court settlement was reached. Two of the most prominent psychiatrists, the late Gerald Klerman and Alan Stone, debated this case in a series of articles (Klerman 1990; Stone 1990). The former held that withholding the antidepressant drug was an abuse, while Dr. Stone maintained that the treatment and management had been acceptable and ethical. This case is but one of many examples of how concepts of abuse may be expanded in

746 Special clinical issues in forensic psychiatry

these litigious times, with profound alteration of the economic base of the practice of medicine and rapidly changing treatment modalities. On January 31, 1983, CBS News ‘Sixty Minutes’ (Bradley 1983) reported a series of cases in which members of the Armed Forces had not only been relieved from duty but were actually committed to psychiatric institutions as a result of various whistle-blowing actions. Two cases in particular were cited (Kennedy 1987). One involved Sergeant Ulus Jorden, the first black to be enlisted in the Pennsylvania Air National Guard, who was ordered to undergo psychiatric evaluation after he filed a series of complaints alleging misappropriation of funds. Jorden refused the order and was dismissed from service and appealed to the court for reinstatement. The TV program revealed what has been true until quite recently, that federal civil service employees in all military departments, as well as National Guard and reserve members, are subject to orders from their supervisors to undergo mandatory psychiatric evaluation. The program also emphasized that according to present law, no evidence need be submitted to justify such demands, and no matter how devastating the consequences of an unfounded or malicious referral, the employee concerned has no recourse for damages against the government or the supervisor. Another case received more widespread publicity, namely that of Carl Mollman, an Air Force pilot reserve officer who was hospitalized for psychiatric examination after he wrote memoranda calling attention to the hazards in Air Force procedure, in violation of air safety regulations during service in Vietnam (Bradley 1983). After intensive work-up, he was released as free of mental illness but was then referred to another psychiatrist with a note that two generals and four colonels were interested in the psychiatrist making a diagnosis ensuring that Mr. Mollman would not return to the Air Force. In both these cases, it was evident that psychiatrists were made aware of an adverse prejudgment by the chain of command and that the psychiatrist was expected to verify the prejudgment. Significantly, in the case of Mollman, no psychiatrist yielded to the pressures, but this is not invariably the case. As a matter of fact, there have been several instances in which psychiatrists whose licenses had been removed or were in jeopardy in civilian life obtained military appointments and were thus vulnerable to pressures (Kennedy 1987). With widespread publicity, modifications in military psychiatry have been undertaken (American Psychiatric Association 1990). However, serious problems still exist that force military psychiatrists to act as double agents. For example, military psychiatrists must not only report patients who reveal they are homosexual but they need not inform the service persons of this need for disclosure. As has been pointed out, it is essential for the psychiatrist to learn what are the full circumstances leading to referral, to be fully aware of the rules and regulations governing such directed mental health evaluations,

and then to explain the limits of the confidentiality by using a Miranda approach if necessary to be sure of informed consent. Jails and prisons have been accused by psychiatric organizations and individuals of ignoring Supreme Court rulings that confirm a prisoner’s right to adequate mental healthcare, but this form of abuse continues (Hastings Center 1978). Part of the difficulty is similar to that which exists in state hospitals where there is understaffing, underfinancing, and problems of recruiting psychiatrists. Aside from quality-of-care issues, other abuses and potentials for abuse exist in the criminal justice system. These include breaches of confidentiality, uses of psychiatric diagnoses for stigmatization and labeling, use of clinical information for improper purposes, lack of informed consent, and the subpoenaing of psychiatrists’ records for criminal investigation. The double bind of the forensic psychiatrist is well outlined in the preamble to the Ethics Guidelines for the Practice of Forensic Psychiatry of the American Academy of Psychiatry and the Law (AAPL 1987): The forensic psychiatrist practices this sub-specialty 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 potential for complications, conflicts, misunderstandings and abuses.

Two cases decided by the U.S. Supreme Court strikingly illuminate the problems of forensic psychiatrists. One is the Louisiana case of Michael Owen Perry (Perry v. Louisiana 1990; Heilbrun, Radelet, and Dvoskin 1992). Perry, a death row inmate, was ordered to be maintained on antipsychotic medication in order to negate the stricture that a psychotic individual could not be executed. Perry’s lawyer objected to the continuation of the medication. Here, the prison psychiatrist is caught between the rights and interests of the individual and the power and interests of the state. The state’s interest was in carrying out a lawful death penalty verdict and thereby forcing treatment on an unwilling patient (State v. Perry 1989). What is the forensic psychiatrist who must administer the medication to do in such an instance? The World Medical Association (1975), the World Psychiatric Association (1989, 1996), the American Medical Association (AMA 1993) and the American Psychiatric Association (APA 1980) have passed strict injunctions against participation in execution. Can the psychiatrist refuse court orders to medicate the patient? Some physicians have felt refusal to medicate a psychotic patient on death row is also unethical since it leaves the prisoner possibly hallucinating and self-destructive. Notwithstanding the prohibition against executing a death row inmate who is ‘insane’ (Ford v. Wainwright 1986), is it justifiable to execute an individual who is in a state of what has been felicitously

Psychiatric abuse in North America 747

termed ‘synthetic sanity’? (Halpern 1975; Gutheil and Appelbaum 1983). In the other case (Riggins v. Nevada 1992; Stone 1992), David Riggins pleaded not guilty and not guilty by reason of insanity to the charge of first-degree murder, but the jury held that he was criminally responsible and he was sentenced to death. The verdict was upheld by the Nevada Supreme Court (Riggins v. State 1991). However, it was revealed that a week after his arrest, Riggins complained of auditory hallucinations and said he had been previously treated successfully with thioridazine (Mellaril). He was administered the Mellaril and improved markedly, with relief from the hallucinations. Some months before the trial, Riggins’ lawyer filed a motion to terminate the medication, but this was opposed by the state, ‘contending that the medication was necessary to maintain Riggins’ competency to stand trial’ – placing him in a state of ‘synthetic sanity.’ The judge ruled that Riggins must be continued on medication, invoking the power of his office over the lawyer’s objections. The judge wanted to ensure that Riggins would remain competent to stand trial. The U.S. Supreme Court, reversing the Nevada Supreme Court’s holding, ruled that the forcible, non-emergency administration of antipsychotic drugs violated Riggins’ right to a fair trial (Riggins v. Nevada 1992). (For a more detailed discussion of these cases, see Chapter 53.) Courts have varied in decisions. While some have accepted the crucial importance of demeanor and have ruled that defendants do have a constitutional right to appear unmedicated, others insist on continuing medication since otherwise the defendant would become incompetent to stand trial. In the latter case, apparently, testimony by a psychopharmacologist would be sufficient if that person would describe what the effect of the drug would be. The Riggins case was sent back to the state court for further consideration, as was the Perry case. However, in the latter case, the Louisiana Supreme Court decided that an incompetent prisoner cannot be forced to take drugs that might make him or her sane enough to be executed (State v. Perry 1992). The reason is that such action would violate the Louisiana Constitution by infringing on privacy rights and protection against cruel and unusual punishment. This agonizing conflict for the forensic psychiatrist has not been fully resolved even in psychiatric circles (Radelet and Barnard 1986; Freedman and Halpern 1996). One way out of the dilemma has been suggested: a psychotic individual on death row should be commuted to life imprisonment and then treated vigorously (Appelbaum 1990). This solution, however, has not been statutorily adopted by any state except Maryland (Md. Code Ann. 1987). An interesting twist upon individuals who might be destined for execution has been the elaboration of what has been alleged as false diagnosis. The best known of such cases is that of Ezra Pound, who was to be tried after

World War II as a traitor for his broadcasts attacking the United States from Italy (Kuten 1991). It has been stated that the director of St. Elizabeth’s Hospital where Pound was confined elaborated a diagnosis of insanity in order to protect Pound from execution. Similar statements interestingly enough have been made in the former Soviet Union in cases in which the diagnosis of schizophrenia has been justified, even if not accurate, in order to protect an individual in the bloody days of Stalin (Bukovsky 1977). Another interesting variant took place during the Vietnam War period when psychiatrists were said to have made diagnoses that could not stand up to scrutiny in order to help young men avoid the draft. Are these cases of abuse of psychiatry?

CONCLUSION A number of situations have been presented illustrating instances of psychiatric abuse in the United States. The citation of abuses has by no means been exhaustive, although most of the significant areas have been mentioned. Individual psychiatrists may be abusers. However, at the present time, there is a rising tide of abuses by institutions directly or by compelling psychiatrists to misuse their professional role. It is incumbent upon professional organizations such as the American Academy of Psychiatry and the Law and the American Psychiatric Association to make every effort to bring an end to these practices. Otherwise, we shall witness increasing government intrusion and control, which has already happened in Texas where abuses revealed in corporate for-profit hospitals led to the involvement of the attorney general of Texas and the U.S. Congress. Although the involvement was necessary, the consequences may not be wholly to the advantage of psychiatry and psychiatric patients.

REFERENCES Adams, F. 1939: Hippocratic Writings in the Genuine Works of Hippocrates. Baltimore: Williams & Wilkins. Aldrich, R.F., Turner, J.A. 1978: Dilemma: A Report of the National Conference on the Health Records Dilemma. Washington, DC: National Commission on Confidentiality of Health Records. Alexander, P. 1991: Rough Magic: A Biography of Sylvia Plath. New York: Viking. Alexander, P. 1992. Holy secrets. Nation 255, 385–7. American Academy of Psychiatry and the Law (AAPL). 1987: Ethical Guidelines for the Practice of Forensic Psychiatry (revised 1989, 1991, 1995). Baltimore, MD: American Academy of Psychiatry. American Medical Association (AMA). 1993. Council report: Physician participation in capital punishment. Journal of the American Medical Association 270, 365.

748 Special clinical issues in forensic psychiatry American Psychiatric Association (APA). 1980. Position statement on medical participation in capital punishment. American Journal of Psychiatry 137, 1487. American Psychiatric Association. 1990. APA urges legal protections for all military personnel. Psychiatric News, May 4, p. 27. American Psychiatric Association (APA). 1994. Position statement on the abuse and misuse of psychiatry in the United States. American Journal of Psychiatry 151, 1399. American Psychiatric Association (APA). 1998a: Policy Statement on the Identification of Abuse and Misuse of Psychiatry. Washington, DC: American Psychiatric Association. American Psychiatric Association (APA). 1998b: The Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry. Washington, DC: American Psychiatric Association. 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. Bisbing, S.B., Jorgenson, L.M., Sutherland, R.K. 1995: Sexual Abuse by Professionals: A Legal Guide. Charlottesville, VA: The Michie Company. Bradley, E. 1983. Military psychiatry. CBS Network ‘60 Minutes’ (A. M. Freedman’s notes). Bromberg, W. 1979: The Uses of Psychiatry in the Law. Westport, CT: Quorum. Bukovsky, V. 1977. The misuse of psychiatry to suppress dissent. Panel Discussion. Annual Meeting of American Psychiatric Association, Toronto. Cited in Halpern, A.L. 1980. The fiction of legal insanity and the misuse of psychiatry. Journal of Legal Medicine 2, 18–74. Danoff, L. 2000. The Foreign Intelligence Surveillance Act: Law enforcement’s secret weapon. Journal of the American Academy of Psychiatry and the Law 28, 213–24. Dietz, P.E., Davis, E.B., Harding, G.T. 1985. Position statement on employment-related psychiatric examinations. American Journal of Psychiatry 142, 416. Eisenberg, L. 1973. The future of psychiatry. Lancet 12, 1371–5. Ford v. Wainwright, 477 U.S. 399 (1986). Foreign Intelligence Surveillance Act. 1978. P.L. 95-511, 92 Stat. 1783. Freedman, A.M. 1978. Ethics in psychiatry: a question of allegiance. Psychiatric Annals January, 8, 15–34. Freedman, A.M. 1988. Confidentiality: still crucial and essential. APA Ethics Committee Newsletter IV, 1–6. Freedman, A.M., Halpern, A.L. 1996. The erosion of ethics and morality in medicine: physician participation in legal executions in the United States. New York Law School Law Review 41, 169–88. Goldstein, R.L. 1992a. Psychiatric poetic license: post-mortem disclosure of confidential information in the Anne Sexton case. Psychiatric Annals 22, 341–8. Goldstein, R.L. 1992b. The Anne Sexton case: protecting confidentiality. Psychiatric Annals 22, 586–8.

Group for the Advancement of Psychiatry. 1991: The Mental Health Professional and the Legal System. Washington, DC: American Psychiatric Press. Gutheil, T.G., Appelbaum, P.S. 1983. ‘Mind control,’ ‘synthetic sanity,’ ‘artificial competence’ and generic confusion: legally relevant effects of antipsychotic medication. Hofstra Law Review 12, 77–120. Halpern, A.L. 1975. Use and misuse of psychiatry in competency examination of criminal defendants. Psychiatric Annals 5, 123–50. Halpern, A.L. 2000. Liptzin case. Journal of the American Academy of Psychiatry and the Law 28, 375. Hastings Center. 1978: In the Service of the State: The Psychiatrist as Double Agent. Report, special supplement, pp. 1–23. Heilbrun, K., Radelet, M.L., Dvoskin, J. 1992. The debate on treating individuals incompetent for execution. American Journal of Psychiatry 149, 596–605. Jaffee v. Redmond, 116 S.Ct. 1923 (1996). Jorgenson, L., Randles, R., Strasburger, L. 1991. The furor over psychotherapist-patient sexual contact. New solutions to an old problem. William and Mary Law Review 32, 645–732. Kennedy, W.V. 1987. Psychiatric abuse is also a problem in the U.S. Christian Science Monitor, November 17, p. 16. Kerr, P. 1991. Mental hospital chains accused of much cheating on insurance. New York Times, November 24, p. 1. Klerman, G.L. 1990. The psychiatric patient’s right to effective treatment: implications of Osheroff v. Chestnut Lodge. American Journal of Psychiatry 147, 409–18. Kuten, J. 1991. Ezra Pound. Psychiatric News, May 3, p. 42. Mackay, R.D. 1990. Dangerous patients: third-party safety and the Tarasoff tightrope. Medical Sciences and the Law 32, 52–6. McDevitt, R.F., Freedman, A.M., Holzberg, S.I. 1988. New mental health economics and the impact on the ethics of psychiatric practice. APA Ethics Committee Newsletter IV, 1–7 (April/May). Md. Code Ann., Art. 27, § 75A (1987). Middlebrook, D.W. 1991: Anne Sexton: A Bibliography. Boston, MA: Houghton Mifflin. Miller, R.D., Weinstock, R. 1987. Conflict of interest between therapist-patient confidentiality and the duty to report sexual abuse of children. Behavioral Sciences and the Law 5, 161– 4. Moran, M. 1990. APA seeks discussion of possible abuse in medical fraud investigations. Psychiatric News, January. People v. Robert Bierenbaum. 2000. QDS:22703570, New York Law Journal, December 1. Perry v. Louisiana, 110 S. Ct. 1317 (1990). Radelet, M.L., Barnard, G.W. 1986. Ethics and the psychiatric determination of competency to be executed. Bulletin of the American Academy of Psychiatry and the Law 14, 37–53. Riggins v. Nevada, 112 S. Ct. 1810 (1992).

Psychiatric abuse in North America 749 Riggins v. State, 808 P.2d 535 (Nev. 1991). Siegler, M. 1982. Confidentiality in medicine – a decrepit concept. New England Journal of Medicine 307, 1518–21. Slovenko, R. 1980: Law and psychiatry. In Kaplan, H., Freedman, A.M., Sadock, B. (eds), Comprehensive Textbook of Psychiatry III. Baltimore, MD: Williams & Wilkins, Chapter 54, 3043–82. Slovenko, R. 1998: Psychotherapy and Confidentiality. Springfield, IL: Charles C. Thomas. Slovenko, R. 2002: Psychiatry in Law/Law in Psychiatry. New York: Brunner-Routledge. Sorrells v. United States, 53 S. Ct. 210 (1932). Squillacote v. United States, 221 F.3d 542 (4th Cir. 2000). Stanley, A. 1991. Poet told all: therapist provides the record. New York Times, July 15, p. 1. State v. Perry, 543 So.2d 487 (La. 1989). State v. Perry, 610 So.2d 746 (La. 1992). Statistical Abstracts. 1991. Table 669. Washington, DC: Government Printing Office. Stone, A.A. 1990. Law, science and psychiatric malpractice: a response to Klerman’s indictment of psychoanalytic psychiatry. American Journal of Psychiatry 147, 419–27.

Stone, A.A. 1992. Riggins v. Nevada: Judge ordered treatment challenged. Psychiatric Times, March, p. 13. Strasburger, L.H., Gutheil, T.G., Brodsky, A. 1997. On wearing two hats: role conflict in serving both as psychotherapist and expert witness. American Journal of Psychiatry 154, 448–56. Tarasoff v. Regents of the University of California, 551 P.2d 335 (1976). Towery, O.B., Sharfstein, S.S. 1978. Fraud and abuse in psychiatric practice. American Journal of Psychiatry 135, 92– 4. United States v. Dyman, 739 F.2d 762 (2d Cir. 1984). United States v. Hayes, 227 F.3d 578 (6th Cir. 2000). United States v. Kaminski, 703 F.2d 1004 (7th Cir. 1983). United States v. Sabatu, 891 F.2d 1308 (7th Cir. 1989). World Medical Association. 1975: The Declaration of Tokyo at the 29th World Medical Assembly. Geneva. World Psychiatric Association. 1989: Declaration on the Participation of Psychiatrists with Death Penalty. Athens. World Psychiatric Association. 1996: Declaration of Madrid.

79 Actuarial methods for violence and sex-offender risk assessments SHOBA SREENIVASAN, PATRICIA KIRKISH, THOMAS GARRICK AND LINDA E. WEINBERGER

HISTORICAL ISSUES RELATED TO RISK ASSESSMENT Actuarial risk assessments of violence utilize statistically derived factors that differentiate between those who re-offend sexually or violently from those who will not. The definitions of actuarial and clinical approaches have been dichotomized by some researchers (Grove and Meehl 1996; Quinsey et al. 1998) as an objective versus subjective assessment. Others, such as Buchanan (1999) suggest that the term ‘actuarial’ refers to any mathematical means of combining information while clinical prediction is defined by exclusion, as something other than actuarial. In either case, the actuarial method is atheoretical and probabilistic. The focus of this chapter is the application of actuarial rating schemes in the assessment of sex offender and violence recidivism.

DEVELOPMENT OF ACTUARIAL TOOLS These tools generally involve prediction of reoccurrence of the target behavior (sexual re-offense or violent recidivism) within a specified time frame (e.g., five years, seven years). Some of these tools contain solely static variables (i.e., those which are fixed such as number of prior offenses) and others identify both static and dynamic variables (i.e., those which are subject to intervention, such as participation in treatment), which are designed to assist clinicians in designing treatment or management plans. Current actuarial tools are based upon archival review of the files of violent and sex offenders, mostly from Canadian and British samples (Hanson 1997; Quinsey et al. 1998; Hanson and Thornton 1999). Variables commonly used to predict general criminal recidivism include having a history of juvenile and adult criminal behavior, being young, being unmarried, having

criminal associates, and demonstrating antisocial attitudes and values, and psychopathy (Quinsey et al. 1998). For sexual recidivism, an additional variable includes having a history of prior sex offenses. The follow-up period refers to time in the community after release from custody and prior to re-offense. The actuarial tools generally use a five- to ten-year follow-up study period. These tools refer to the most recent offense as the ‘index’ offense, and subsequent offenses as prior offenses. A statistical procedure is used to determine which combination of the variables best predicts violence or sex offender recidivism. Survival analysis as a statistical method is also employed to calculate risk of re-offense at each year postrelease. In this instance, ‘survival’ refers to the number of individuals remaining in the community (i.e., not arrested and/or incarcerated) at each year post-release. There is not a general consensus about calculating the weights of individual variables on the actuarial tools. The percentage of individuals in each rating level (e.g., 1, 2, 3, etc.) who have committed acts of sexual or general violence are calculated and used to assign a label of low, moderate or high risk. High risk may be defined as over 50 per cent of the individuals in that rating number who have re-offended violently or sexually when released to the community. The tools are under constant revision informed by research, but the general methodology as described above remains the same, and there are others under development (e.g., MNSOST-R; Epperson et al. 1998).

The Violence Risk Appraisal Guide (VRAG) The VRAG (Quinsey et al. 1998) is an actuarial instrument for the prediction of violent recidivism, and considers both static and dynamic items. Additionally, it includes the total Psychopathy Checklist (PCL-R) (Hare 1991) score. The PCL-R is a twenty-item checklist rated by the clinician on the basis of interview and record review information. Age, marital status, criminal history,

Actuarial methods for violence and sex-offender risk assessments 751

performance on conditional release, victim injury and gender, history of alcohol problems, psychiatric diagnosis of schizophrenia or a personality disorder, and developmental factors such as elementary school problems and separation from parents prior to age sixteen, are included items (Quinsey et al. 1998). The VRAG is noted for its high inter-rater reliability among clinicians trained on the scoring guidelines with an effect size of 0.76; that is, among randomly drawn offenders, half of whom were violently recidivistic and half of whom were not, the recidivist would have a probability of 0.76 of having a higher VRAG score than non-recidivists. VRAG scores are translated into levels of nine risk categories with ten-year probability risk percentages ranging from 8 per cent to 100 per cent.

marital status, non-sexual assault and the number of convictions greater than four. The RRASOR (Hanson 1997) is comprised of four atheoretical factors derived from the results of a factor analysis of seven follow-up studies and one replication sample. The Static-99 is considered a work in progress with additional research anticipated to update and modify the tool. The Static-99 results in a score ranging from 0 to 6, with sexual recidivism risk calculated for a five-, ten-, and 15-year period. The Static-99 can result in a score higher than 6, but there are no corresponding risk levels for such values due to limited sample sizes in the highest risk range.

The Sex Offender Risk Assessment Guide (SORAG)

The SONAR was constructed by Hanson and Harris (2000), and represents one scale in development to assess change in risk that utilizes factors derived from a sample of released sex-offenders, half of whom engaged in acts resulting in charges and or convictions for sexual offenses. The theoretical model underlying the SONAR is a social cognitive model that predicts that sex offenders who are recidivistic hold deviant schema or habitual patterns of thought and action that facilitate offending. The scale includes a rating of stable or long-term factors such as intimacy deficits, negative social influences, attitudes tolerant of sex offending, sexual self-regulation, and general self-regulation. Four acute factors are also rated: substance abuse; negative mood; anger; and victim access. These acute factors were found to be less linked to longterm sexual recidivism risk; rather, they are used to identify when the offender is at highest risk. Preliminary data from Hanson and Harris (2000) indicate that the scale has moderate predictive accuracy (r ⫽ 0.43, ROC area ⫽ 0.74) in the ability to differentiate between released sex offenders who are sexual recidivists versus non-recidivists. The SONAR continued to distinguish between recidivists and non-recidivists even after controlling for factors such as age, IQ, and Static-99 scores. The scale has not been crossvalidated and is considered preliminary.

The SORAG (Quinsey et al. 1998) is based upon a series of statistically identified factors differentiating recidivists from non-recidivists. Recidivism is defined as the number of convictions for sex offenses. As in the VRAG, the SORAG items are divided into four general areas: developmental factors (identical to VRAG items); adult adjustment; offense variables; and diagnostic information. Adult adjustment variables include violent and non-violent offense history, history of sex offenses, gender of victims, and whether there were any child victims. Offense variables are defined as age at index offense (higher scores assigned to younger perpetrators) and relationship of victim to offender (stranger victims are weighted more heavily). Diagnostic information is defined as weighing the presence of a personality disorder, schizophrenia, and deviant sexual preferences. In addition, diagnostic information includes assigning weight to high PCL-R scores, low IQ, attitudes supportive of crime, and attitudes that are not prosocial or conventional (e.g., poor work history, drug abuse). SORAG scores are translated into levels of nine risk categories with ten-year probability risk percentages ranging from 9 per cent to 100 per cent (Rice and Harris 1997).

Rapid Risk Assessment of Sex Offender Recidivism (RRASOR)/Static-99 The RRASOR (Hanson 1997) represents an initial iteration of an actuarial methodology to determine a sex offender’s risk for sexual recidivism. The four factors in the RRASOR are the number of prior sex offenses, age at release, gender of victim, and relationship to the victim. Hanson and Thornton’s Static-99 (Hanson and Thornton 1999) is an outgrowth of the RRASOR and a British actuarial instrument. It has ten items including those that comprise the RRASOR as well as the elements of a sex offense against a stranger, non-contact sexual offense,

The Sex Offender Need Assessment Rating (SONAR)

APPLICATION OF ACTUARIAL TOOLS ‘Risk assessment tools’ are rating scales that offer a basic and gross estimate of potential of violence or sex offender recidivism. They represent an attempt to standardize risk assessments. Some researchers such as Quinsey et al. (1998) and Grove and Meehl (1996) suggest that risk assessment in clinical and forensic settings should be based solely upon an actuarial rating. Others (Heilbrun 1997; Webster et al. 1997a; Steadman et al. 2000; Sreenivasan et al. 2000) suggest an integrated approach involving both actuarial scales and clinical information. Two elements that should be considered in the forensic application of actuarial tools

752 Special clinical issues in forensic psychiatry

are judicially defined parameters for risk assessment and peer-approved methods and approaches.

Judicially defined parameters and standards Case law and legislation have charged mental health professionals with the responsibility of identifying potentially violent patients and protecting the public from them (Tarasoff v. Regents of the University of California 1976; Macintosh v. Milano 1979). Several jurisdictions have codified such clinician responsibility (Weinberger, Sreenivasan, and Markowitz 1998). Case law and legislation reaffirm the belief that clinicians are in a special position to make violence risk assessment determinations and can be held liable for their failure to do so. In some cases, the clinician was held responsible for the violent acts of a released psychiatric patient because of a failure to conduct an adequate risk assessment (Petersen v. State 1983; Perreira v. State 1989). For the illustrative purpose of risk assessment, the forensic clinician can be guided by the Perreira Court’s definition of ‘reasonable care,’ that of a thorough evaluation of the patient’s mental condition. Actuarial schemes used in isolation, i.e., without integration of relevant clinical information, are unlikely to meet judicially defined parameters of adequate risk assessment. Regarding the issues of actuarial schemes and sexually violent predator assessments, In re Dennis Darol Linehan (1999) offers a good example. Linehan, a 54-year-old male, had a history of sexually deviant behavior including rape, voyeurism, and attempted rape and murder of a fourteen-year-old girl. In an attempt to commit Linehan in Minnesota as a Sexually Dangerous Person, the Minnesota Supreme Court addressed the issue of actuarial risk. Linehan argued that, ‘actuarial methods of prediction founded on base rate recidivism statistics are more accurate than “clinical” predictions, and therefore violence predictions must rely on the former’ (In re Dennis Darol Linehan 1999, p. 189). A clinical psychologist for the defense testified at Linehan’s initial commitment hearing that, ‘multi-factor “clinical” predictions based on an examiner’s experience and judgment are generally less accurate than “actuarial” predictions founded on welltailored base rate statistics’ (In re Dennis Darol Linehan 1999, p. 177). This psychologist used a hypothetical base rate of 18 per cent from a study of child molester recidivism, and indicated that even if Linehan were to be in that group of re-offending child molesters, the base rate for recidivism was low, and clinical predictive accuracy would thereby also be low. The Minnesota Supreme Court rejected Linehan’s argument stating that he did not provide any statute or precedent to support that actuarial methods or base rates should be the sole method employed. The Court approved the application of a multi-factor risk analysis. The Court noted,‘contrary

to Linehan’s assertions, violence prediction under the SDP Act, is not simply a matter for statisticians’ (In re Dennis Darol Linehan 1999, p. 91). In re Peter Kienitz (1999) offers another example, involving the civil commitment of the appellant under Wisconsin’s sexually violent person law. Kienitz had a long history of sexual violence related to molesting young boys. The Wisconsin Supreme Court concurred with a lower court’s assessment that it was not obliged to accept the weight assigned by the defense expert to the VRAG score, and ‘rely solely on that score as a measure of probability’ (In re Peter Kienitz 1999, p. 717). Rather, the Court weighed in factors such as Kienitz’s twenty-fiveyear criminal history, parole violations, poor response to treatment and denial of need for treatment, and his procurement of materials about children (factors not part of the VRAG scale) as more relevant to risk than the weight assigned to the VRAG score.

OVERPREDICTION, UNDERPREDICTION, ACCURACY, AND BASE RATES The problems associated with reliance solely on actuarial measures for risk assessment can be illustrated using the case of Jeffrey Dahmer, a known sex offender. Dahmer (Moore-Litt 1992) was a Wisconsin serial killer and necrophiliac who had seventeen victims by the time of his arrest. Utilizing the RRASOR as an example of an actuarial scheme for sex offender recidivism, Dahmer would have received a score of 0 for prior offenses (none prior to the conviction for the seventeen killings); a score of 0 for age at release (older than age 25 years), a score of 1 for having male victims, and a score of 1 for nonrelated victims. The total RRASOR score of 2 would correspond to a 14.2 per cent five-year risk for re-offense and a 21.1 per cent ten-year risk for sexual re-offense. By this method, Dahmer at the time of his conviction for the seventeen sex killings would fall in a low range of risk for recidivism. The clinical data, by contrast, tell another story. In the sanity phase of the trial, psychiatric and psychological experts testified that Dahmer had a multiple decade necrophiliac obsession that was resistant to his attempts to control sexual deviancy (e.g., via attempts to substitute mannequins for corpses). Obviously, a clinically salient issue for Dahmer was not represented in the actuarial tool: that of sexual deviant preoccupation. An additional critical issue that was not part of the scale was behavior not previously detected and subject to legal sanction. The omission of important clinical variables, such as diagnoses and behavior, are issues that remain relevant criticisms of risk assessment based solely upon an actuarial rating scale. Moreover, the expression of risk in numerical form (e.g., 39 per cent risk for ten-year period, as in the VRAG and RRASOR) may give the appearance of a greater degree of accuracy and precision than in fact exists (Gardner et al. 1996).

Actuarial methods for violence and sex-offender risk assessments 753

PEER-APPROVED METHODS: ACTUARIAL RISK ASSESSMENT AND CORRESPONDENCE WITH OTHER AREAS OF EVIDENCE-BASED MEDICINE Evidence-based medicine integrates clinical decisionmaking with available information from systematic research (Sackett et al. 1998). Braitman and Davidkoff (1996) provide a method for appraising a model for the prediction of clinical states in individual patients on the basis of medical actuarial risk models. Seven criteria for assessing such models were posited, five of which concerned the applicability of the model to a specific patient. These authors suggest that for a specific patient, one negative response to any of these seven questions should disqualify use of the model for that patient. This model can be applied to the analysis of actuarial violence and sexual violence rating tools. This methodology can be adopted by forensic mental health clinicians to assess the applicability of a sex offender or violence actuarial model to the individual they are evaluating. The seven questions are presented below, with comments added to address limitations in the existing actuarial rating schemes.

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Would the specific patient have been eligible to participate in the study? There is limited utility in the application of such tools to an individual whose demographics do not fit the sample population. For example, the Static-99, VRAG and SORAG actuarial tools are based largely upon a restricted sample (e.g., Canadian prisoners or psychiatric patients). Use of these rating scales in offenders with extensive gang violence histories and many non-adjudicated offenses may not be appropriate. In addition, the RRASOR and Static-99 risk factors were identified on the basis of a meta-analytic study (Hanson and Bussiere 1998) of sixty-one data sets from 1943 to 1995 and spanning several countries (Western Europe, Canada, U.S., and others). The methodology in the compilation of these data sets varies across a number of issues. There was no uniform consensus in the definition of outcome; e.g., whether sex offender recidivism referred to arrest or conviction. The legal definition of sex crimes may have changed through the years from 1943 to 1995, as well as varying by region within a country and/or nation. Such definitions of what constitutes recidivism may not comport with the current legal standard in a U.S. jurisdiction, and where even within the U.S. crime laws vary from state to state. Therefore, prior to using a specific rating scale, the clinician should ascertain the degree to which the individual to be assessed matches the rating scale development sample across demographics and definition of recidivism outcome. Does the outcome in the study reflect the clinical outcome to be predicted? Outcome variables in violence and sex offender recidivism are not measured reliably.

•

•

•

•

•

That is, every instance of the actual behavior is not counted; rather, the focus is on ‘caught’ behaviors. There is general agreement that instances of detected violent or sex offenses markedly underestimate the true rate of recidivism (Abel et al. 1987; Hanson and Bussiere 1998), thereby inherently raising the risk of false negatives and seriously underestimating the risk of a given individual. Clinicians utilizing an actuarial rating scheme should be aware of the underestimate of recidivism, and not rely exclusively on risk percentages offered by a specific actuarial rating scheme. Are all the variables available for the patient on whom the model is to be used? Many of the actuarial models require information that may not be relevant to the patient’s risk and documentation may not be available to rate a risk factor (e.g., PCL-R that requires juvenile history). Will this outcome probability assist in patient care? The actuarial models were derived for the purpose of making absolute predictions of the behavior reoccurring in a specific time period. Such models do not emphasize the measurement of individual change based upon treatment intervention or placement in community programs which might reduce risk (e.g., placement in a residential drug program for the individual with drug-related violence). Is the degree of uncertainty in the probability estimate (i.e., confidence intervals) small enough for it to be useful in making a prediction? Confidence intervals, positive predictive accuracy, negative predictive accuracy are not typically specified in the actuarial violence or sex offender risk models. Rather, the scores give an estimate of the probability for re-offense over a specified period of time. Therefore, this element would be difficult to assess with most of the actuarial models in violence and sex-offender risk assessment. How well does the model fit the data: i.e., what is the relationship between the model’s estimate and the actual data for the subjects in the study? Sex offender and violence risk assessment are limited by the measurement of violence or sex-offense recidivism based upon caught behaviors, and for the higher-risk ranges, estimates and not actual findings, or very small cell numbers. It is therefore difficult to determine the relationship between the model’s estimate of risk and the actual behavior for subjects in the higher-risk range. Is the model more accurate than chance and traditional methods, and does the model have follow-up data? The actuarial risk model’s utility in violence and sex offender risk appraisal is more accurate for subjects who are highly consistent with the normative sample. This is generally not the case when the more homogeneous Canadian-based measures are applied to a multi-ethnic and diverse U.S. population. Thus, there is reduced applicability of the actuarial model when the individual’s risk factors do not reflect the study population and are not addressed in the actuarial scheme.

754 Special clinical issues in forensic psychiatry

CONCLUSION

REFERENCES

Actuarial rating scales can offer a gross approximate of the base rate of the individual’s risk for acting out sexually or violently. These scales provide numerical risk percentage estimates, but the clinician is cautioned to use such estimates as a guideline for approximate risk, e.g., low, moderate, or high. Expert testimony is evaluated by judicial decision-makers using standards set forth in Daubert (Daubert v. Merrill Dow 1993) and Frye (Frye v. U.S. 1923) and for identifying and treating potentially violent patients (Currie v. U.S. 1986; White v. U.S. 1986). Risk assessment based upon a sole actuarial approach is unlikely to meet this standard of a comprehensive assessment. It should be noted that actuarial schemes are under constant revision; therefore, the most current iteration should be selected. The choice of which scheme to choose when evaluating a specific individual should be based upon the fit between the person and the measure’s normed sample. Some rating schemes may not be appropriate, as the developmental sample may be too different from the individual being assessed. In that circumstance, the numerical estimate of risk may represent either an over- or under-estimate. The most comprehensive clinical assessment approach for risk is one which integrates information provided by an appropriately selected actuarial risk scale, and clinical- and research-derived risk markers for violence or sex offending. Several forensic researchers and clinicians recommend a structured approach to integrating clinical judgment into risk assessments (Boer et al. 1997; Heilbrun 1997; Webster et al. 1997a; Sreenivasan et al. 2000; Steadman et al. 2000; Thornton 2000). One guided approach begins with a risk prediction provided by an actuarial risk scale, and then considers empirically validated dynamic risk factors. The HCR-20 (Historical Clinical Risk Management-20) and SVR-20 (Sexual Violence Recidivism-20) offer guided approaches to risk assessment. As noted by Webster et al. (1997b), clinical judgment is an essential part of risk assessment in these guided methods, and the elimination of logically and theoretically derived clinical variables, as occurs in actuarial tools, is unwarranted when the goal is to identify and weigh the relative strengths and weaknesses of risk factors for a particular individual. In summary, clinicians have a legal and ethical responsibility to identify and understand the specific operative factors that place their clients at risk for violence. The use of actuarial rating schemes represents one method by which clinicians can conduct risk assessments, but sole reliance upon such a method would not be supported by judicial or peer parameters. While researchers have contributed significantly to the identification of some general factors highly associated with violent and sex-offender recidivism, the responsibility of the clinician is to understand how these factors are represented in the specific individual.

Abel, G.B., Becker, J.V., Mittlemen, M., Cunningham-Rathner, J., Rouleau, J.C., Murphy, W.D. 1987. Self-reported sex crimes of nonincarcerated paraphiliacs. Journal of Interpersonal Violence 2, 3–25. Boer, D.P., Wilson, R.J., Gauthier, C.M., Hart, S.P. 1997: Assessing risk of sexual violence: guidelines for clinical practice. In Webster, C.D., Jackson, M.A. (eds), Impulsivity: Therapy, Assessment and Treatment. New York: Guilford Press. Braitman, L.E., Davidkoff, F. 1996. Predicting clinical states in individual patients. Annals of Internal Medicine 125, 406–12. Buchanan, A. 1999. Risk and dangerousness. Psychological Medicine 29, 465–73. Currie v. U.S., 644 F.Supp. 1074 M.D. N.C. (1986). Daubert v. Merrell Dow, 61 U.S.C. W. 4805, 113 S.Ct. 2786 (1993). Epperson, D.L., Kaul, J.D., Huot, S.J., Heselton, D., Alexander, W., Goldman, R. 1998: Minnesota Sex Offender Screening Tool-Revised (MNSOST-R). St. Paul, MN: Minnesota Department of Corrections. Frye v. U.S., 293 F. 1013 (1923). Gardner, W., Lidz, C.W., Mulvey, E.P., Shaw, E.C. 1996. Clinical versus actuarial predictions of violence in patients with mental illness. Journal of Consulting and Clinical Psychology 64, 602–9. Grove, W.M., Meehl, P.E. 1996. Comparative efficiency of informal (subjective impressionistic) and formal (mechanical, algorithmic) prediction procedures: the clinical-statistical controversy. Psychology, Public Policy and Law 2, 293–323. Hanson, R.K. 1997: The Development of a Brief Actuarial Scale for Sexual Offense Recidivism (User Report No. 1997–04). Ontario, Canada: Department of the Solicitor General of Canada. Hanson, R.K., Bussiere, M.T. 1998. Predicting relapse: a meta-analysis of sexual offender recidivism studies. Journal of Consulting and Clinical Psychology 66, 348–62. Hanson, R.K., Harris, A.J.R. 2000: The Sex Offender Need Assessment Rating (SONAR): A Method of Measuring Change in Risk Levels. (User Report 2000–01). Ottawa: Department Solicitor General of Canada. Hanson, R.K., Thornton, D. 1999: Static-99: Improving Actuarial Risk Assessments for Sex Offenders. Ontario, Canada: Department of the Solicitor General of Canada. Hare, R.D. 1991: The Hare Psychopathy Checklist – Revised. Toronto, Ontario: Multihealth Systems. Heilbrun, K. 1997. Prediction versus control models relevant to risk assessment: the importance of legal decision-making context. Law and Human Behavior 21, 347–59.

Actuarial methods for violence and sex-offender risk assessments 755 In re Peter Kienitz, 597 NW. 2d 712 (WI. Sup. Ct. 1999). In re Dennis Darol Linehan, 557 NW. 2d 167 (MN. Sup. Ct. 1999). MacIntosh v. Milano, 403 A.2d 500 (NJ Super. 1979). Moore-Litt, S. 1992: Pleading the Insanity Defense: The trial of Jeffrey Dahmer. In Bolnick, M. (ed.), Courtroom Television Network. New York: Courtroom Television Network Video Library Service. Perreira v. State, 768 P.2d 1198 (Colo. 1989). Petersen v. State, 671 P.2d 230 (Wash. 1983). Quinsey, V.L., Harris, G.T., Rice, M.E., Cormier, L.A. 1998: Violent Offenders: Appraising and Managing Risk. Washington, DC: American Psychological Association Press, p.18. Rice, M., Harris, G. 1997. Cross-validation and extension of the Violence Risk Appraisal Guide for child molesters and rapists. Law and Human Behavior 21, 231–41. Sackett, D.L., Richardson, W.S., Rosenberg, W., Itaynes, R.B. 1998: Evidence-Based Medicine: How to Practice and Teach EBM. Edinburgh: Churchill Livingstone Press. Sreenivasan, S., Kirkish, P., Garrick, T., Weinberger, L.E. 2000. Actuarial risk assessment models: a review of critical issues related to violence and sex offender recidivism assessments. Journal of the

American Academy of Psychiatry and the Law 28, 438–48. Steadman, H.J., Silver, E., Monahan, J., Appelbaum, P.S., Robbins, P.C., Mulvey, E.P., Grisso, T., Roth, L.H., Banks, S. 2000. A classification tree approach to the development of actuarial risk assessment tools. Law and Human Behavior 24, 83–100. Tarasoff v. Regents of the University of California et al., 551 P.2d 334 (Cal. 1976). Thornton, D. 2000: Structured Risk Assessment. Presented at Atascadero State Hospital Continuing Education Lectures, Atascadero, California, January 22–23. Webster, C.D., Douglas, K.S., Eaves, D., Hart, S.P. 1997a: Assessing risk of violence to others. In Webster, C.D., Jackson, M.A. (eds), Impulsivity: Therapy, Assessment and Treatment. New York: Guilford Press. Webster, C.D., Douglas, K.S., Eaves, D., Hart, S.P. 1997b: SVR-20: Assessing Sexual Violence Risk, Version 2. British Columbia, Canada: Simon Fraser University, Mental Health, Law and Policy Institute. Weinberger, L.E., Sreenivasan, S., Markowitz, E. 1998. Extended civil commitment for dangerous psychiatric patients. Journal of the American Academy of Psychiatry and Law 26, 75–87. White v. U.S., 780 F.2d 97 (D.C. Cir 1986).

80 ERISA, healthcare and the courts J. RICHARD CICCONE

On Labor Day 1974, President Gerald Ford signed the Employee Retirement Income Security Act (ERISA) into law (29 U.S.C. §§ 1001–1046). This law played a significant role in the restructuring of healthcare, and made healthcare reform more difficult. The purpose of this chapter is to provide: (i) a brief background of the events that led to enactment of the law; (ii) an overview of the relationship of ERISA to healthcare plans; and (iii) a review of some attempts to have the courts remedy impediments to healthcare that managed care companies constructed by using ERISA as a shield.

ERISA’S ORIGINS In order to understand the development and structure of ERISA and how it bears on healthcare, one must trace the development of retirement plans, which was (and is) the primary subject of ERISA. The U.S. pension system grew rapidly during the 1940s and 1950s in part because employers increased retirement benefits when wage freezes were imposed during World War II. Participation in pensions by union workers was boosted in 1948 when the U.S. Court of Appeals (7th Circuit) held that pensions are a form of remuneration for labor under the National Labor Relations Act (Inland Steel Company v. NLRB 1948). As a form of pay, pensions were a mandatory subject of collective bargaining and, therefore, an issue employers could not avoid. Regulations had failed to keep up with the growth of pension assets and, in 1958, after learning of extensive abuses in pension plans, Congress enacted the Welfare Pension Plans Disclosure Act (29 U.S.C. §§ 301–308). The law was an attempt to protect the pension assets of employee participants and beneficiaries against companies that would use the money for operating costs. Despite the protections provided under this Disclosure Act and other laws, abuses continued, and in March 1962 President Kennedy established the cabinet-level Committee on Corporate Pension Funds. While the Committee

was working, significant abuses of pension funds continued. In December 1963, the Studebaker automobile plant in South Bend, Indiana shut down. When the plant closed, the single-employer pension plan that had been negotiated between the United Automobile Workers and the Studebaker company did not have the funds to provide benefits for all its vested employees. Retirees and workers who had reached age 60 years at the time of the company’s closure received full lifetime annuities; however, about 4000 employees who were vested received lump sum payments equal to only 15 per cent of the actuarial value of their accrued pension. In 1965, the Kennedy Committee on Corporate Pension Funds issued a report that reaffirmed the value of private pension programs and severely criticized government regulation of pension plans for not providing adequate protection of the pension funds. It recommended that to ensure the continued development of the private pension system, Congress should enact more substantive legislation to protect the pension plan participants and beneficiaries. Accounts of older workers losing pension benefits they had earned over decades because of plan terminations, lay-offs, or misuse (stealing) of pension funds captured the media’s attention and rallied public support in favor of reform. During a 1966 Senate hearing held in the wake of the Studebaker incident and the Kennedy Committee, Nolan Miller, a 60-year-old former Studebaker employee who worked at the company for thirty-eight years, testified that the news that he did not reach the age of 60 in time to be given a full pension was bitter news indeed (Reilly 1994). In May 1972, the Chairman of the Senate Labor and Public Welfare Committee, Harrison Williams, and ranking Minority Member Jacob Javits, introduced a bill intended to remedy the problems with existing pension plan law. In September 1972, the Senate Labor Committee approved the bill. The bill, which as enacted became ERISA, was designed to protect pension plans by establishing national standards for funding and payment. To minimize administrative and financial burden of maintaining

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a pension plan, ERISA would preempt all state laws on the subject. This preemption permitted employers whose operations crossed state lines to have one employee benefit plan that applied to all its employees, despite the employees being in various states. At the eleventh hour, the House Committee extended ERISA’s scope to include all employee benefit plans. This extended ERISA’s preemption to state laws governing health plans as well as pension plans. Preemption affects not just state statutes but also common law remedies such as actions in tort, of which malpractice is a subcategory. ERISA’s primary purpose was to provide a scheme for the protection of employees’ pension funds. As an afterthought, all employee benefit plans were added to the ERISA legislation. ERISA is a complicated, multi-faceted law. Stone has written that ‘ERISA as it relates to health benefits, presents an array of technical legal rules and distinctions that test the comprehension of seasoned attorneys’ (Stone 1999). ERISA came to have a profound effect on the healthcare system, including the provision of inpatient and outpatient psychiatric care.

In particular, under Section 502(a)(1)(B) of ERISA, plaintiffs may not recover extracontractual damages such as those sought in typical malpractice claims. This restriction has protected ERISA healthcare plans from being sued for malpractice in state courts. A plaintiff who has been denied benefits may not recover compensatory damages. Even when the denial of benefits leads to disastrous consequences, the plaintiff may not be granted punitive damages. This restriction may be reasonable for a pension plan. For example, assume the pension plan has $1000, and each of ten participants is to receive $100 dollars. If a participant is improperly denied the $100, the remedy is to award the $100; to award more than the $100 would be to take money away from other retirees. It is unclear that this restriction is reasonable for a healthcare plan, where compensatory and punitive damages can encourage the provision of non-negligent care. ERISA usually preempts state claims for damages. This preemption is based on two provisions in ERISA. Section 502 describes complete preemption, and Section 514 describes conflict preemption. Each of these sections is described below:

ERISA PLANS

•

Definitions Prior to describing ERISA’s impact on healthcare plans, it is necessary first to understand those parts of the statute that are especially relevant. ERISA restrictions, protections and regulations apply generally to ERISA plans. ERISA plans include ‘pension benefit plans’ and ‘welfare benefit plans.’ Healthcare plans are considered welfare benefit plans. The definition of welfare benefit plan includes the following elements:

• • •

It is established or maintained by an employer, employee organization or both; It provides medical coverage; and The benefits may be provided through the purchase of commercial insurance or a self-insurance fund.

ERISA has a number of components that affect healthcare plans, hospitals and physicians. If a healthcare plan is a ‘governmental plan’ or ‘church plan’ it is not subject to ERISA; therefore, ERISA applies only to private sector healthcare plans. States cannot require ERISA self-insured plans to cover particular benefits. ERISA provides compensation for care that is wrongly denied, but does not provide a remedy for beneficiaries who are harmed by a prospective denial of benefits. Also of note is that ERISA does not protect hospitals or physicians that provide care from liability.

Remedies under ERISA When a plan participant has a grievance, ERISA does provide remedies, though such remedies are limited.

•

Section 502: Complete Preemption: Complete preemption is derived directly from the statute and comes into play when a participant attempts to bring a lawsuit based on state law against an ERISA plan where the subject matter of the claim is within the scope of ERISA’s enforcement provision. The state law claim is ‘completely preempted,’ and the case is moved from state court to Federal court. For example, a lawsuit based on the denial of a benefit is completely preempted and will be removed from state court to Federal court. Section 514: Conflict Preemption: Conflict preemption, derived from U.S. Supreme Court decisions, is at issue when states try to regulate healthcare and their efforts affect ERISA plans. The provisions of Section 514 of ERISA indicate Congress’ intent to have a uniform body of laws in order to minimize the burdens of employers’ having to comply with conflicting directives from state to state.

The preemption provisions found in Section 514 are often referred to as the ‘preemption clause,’ the ‘saving clause’, and the ‘deemer clause.’ The preemption clause, Section 514(a), is written broadly and provides that ERISA ‘supersedes any and all state laws insofar as they … relate to any employee benefit plan.’ The phrase ‘relate to’ has been interpreted broadly to include state laws that have a connection or reference to an employee benefit plan. The saving clause, Section 514(b)(2)(A), limits this ERISA preemption stating that ‘any law of any state which regulates insurance’ is ‘saved’ from preemption. However, the deemer clause, Section 514(b)(2)(B), limits the saving clause, stating that an employee benefit plan may not ‘be deemed to be an insurance company … or to be engaged in the business of insurance.’ Since employee benefit plans may not be deemed to be insurers, and therefore

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are subject to the preemption clause, large employers may escape state regulation by self-insuring (accumulating funds for healthcare) rather than purchasing insurance from state-regulated insurance companies. Of 163 million employees and dependents with employer-based health plans, 127 million are covered by ERISA plans, which can be divided into two groups. Seventy-two million employees and dependents are covered by ERISA plans that purchase insurance which follow state insurance law but are not subject to liability. Fifty-five million employees and dependents have ERISA plans that escape all state regulation. ERISA’s limited remedies and its preemption of state remedies made it difficult to deal with ERISA’s negative effects in the healthcare system and the provision of healthcare. As will be discussed in the next sections, states and patients have tried to use the courts to deal with the perceived inequities and barriers to healthcare, e.g., denial of benefits. These court cases have included issues involving attempts to tax ERISA plans, to limit the denial of benefits, to identify vicarious liability and to challenge conflicts of interest that may exist.

SIGNIFICANT COURT CASES DEALING WITH ERISA AND HEALTHCARE ERISA must be understood in the context of market forces. A discussion of the increasing cost of healthcare in the 1960s and 1970s and the problems faced by U.S. corporations that had to compete in a world economy against foreign industries that had a lesser healthcare burden is beyond the scope of this chapter. However, it is important to note that managed care was seen as the answer to containing healthcare costs, even if it meant decreasing coverage and lowering the standard of care. ERISA, as it turned out, would allow this to happen beyond the control of state laws and without risk of liability (Stone 1995).

Taxing ERISA plans Some states have attempted to regulate healthcare through taxation. Of special note is the case New York State Conference of Blue Cross and Blue Shield Plans v. Travelers Insurance Company, which was decided by the U.S. Supreme Court in 1995. In the circumstances leading up to this case, New York State had imposed a scheme of variable surcharges on hospital bills. Commercial insurers and private insurers, including self-insured plans, other than the Blue Cross Blue Shield plans were assessed a surcharge of 13 per cent of the hospital bill. The proceeds from this tax were kept by the treating hospital. A further 11 per cent surcharge was imposed and turned over to the state’s general fund. In addition, HMOs were assessed up to a 9 per cent surcharge, based on the number of Medicaid patients enrolled, and were to pay this amount

to the State’s general fund. The Blue Cross Blue Shield plans were exempted from these surcharges because their open enrollment policies resulted in their having higher medical costs than commercial insurers. Through this system of surcharges, New York was shoring up the Blue Cross Blue Shield plans, thereby assuring that through the Blues open enrollment, marginal and high-risk individuals would be able to obtain health insurance. HMOs were encouraged to enroll Medicaid recipients at lower costs to the State. Finally, the revenues retained by the hospitals allowed them to shift the costs of care of uninsured or underinsured patients to commercial insurers and HMOs. Justice Souter, writing for a unanimous court in Travelers, stated that the surcharges do not ‘relate to’ employee benefit plans within the meaning of ERISA’s preemption provision and, therefore, are not preempted by ERISA. The surcharges made the Blues less unattractive as an insurance alternative and, therefore, had an indirect economic effect on choices made by buyers. The Supreme Court acknowledged that it is possible a state law might have such an acute economic effect, even though its effect was indirect, so as to effectively force an ERISA plan to adopt certain substantive coverage or effectively restrict its choice of insurers, which would lead to the state law being preempted under Section 514. However, the Court held that New York State’s statutory surcharges did not force substantive coverage or restrict the choice of insurers. Instead, the Court found that the surcharges merely indirectly affected the relative price of insurance policies, which is no different from many state laws in areas that have traditionally been subject to local regulation which Congress could not have intended to eliminate through ERISA.

ERISA preemption litigation suits Suits against ERISA plans asserting that decisions to limit care or to deny benefits directly harmed the plaintiff have failed. To illustrate this point, in Corcoran v. United Healthcare, Inc. (1992), the plaintiffs brought a state law malpractice claim against an ERISA plan alleging that negligent utilization review resulted in the death of their unborn child. During Florence Corcoran’s first pregnancy, she was put on bed rest and fetal monitoring. When fetal distress occurred, a Caesarean section was performed, and her child survived. After Mrs. Corcoran became pregnant again, her obstetrician recommended complete bed rest and, later in the pregnancy, ordered hospitalization of Mrs. Corcoran so that the fetus could be monitored around the clock. However, her ERISA plan had instituted managed care utilization review since her previous pregnancy. While her same obstetrician recommended the same bed rest and fetal monitoring, United Healthcare (‘United’) determined that hospitalization was not necessary and instead authorized the less expensive 10 hours per day of home nursing care. Mrs. Corcoran was hospitalized from

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October 3–12, 1989 but, because United had not precertified her stay, she returned home. On October 25, 1989, when the home care nurse was not on duty, the fetus went into distress and died. In Corcoran, the United States Court of Appeals, Fifth Circuit, noted that although United did indeed make medical decisions and gives medical advice, ‘it does so in the context of making a determination about the availability of benefits under the plan.’ Thus, the court ruled that Section 514 of ERISA preempted a state court malpractice action, and Section 502 of ERISA did not compensate a plaintiff for damages. The plaintiffs, who alleged that coverage decisions were wrongly made, were limited to recovery of their contractual benefits as provided in Section 502 and therefore were not permitted damages for emotional distress.

moved that the case be remanded to state court, and the HMO moved that it be dismissed. The district court dismissed Mrs. Dukes’ claims against the HMO and remanded to state court the claims against other defendants that Mrs. Dukes had brought. The Third Circuit found that there was ‘no claim that the plans erroneously withheld benefits.’ The Dukes’ court noted ‘the plaintiffs … complain about the low quality of the medical treatment that they actually received and argued that U.S. Health Care HMO should be held liable under agency and negligence principles.’ Yet, Congress did not create ERISA Section 502 as a remedy for medical malpractice. The net result of Dukes was that the Third Circuit returned the lawsuit to state court for trial. However, the Third Circuit did not reach the question of whether Section 514 of ERISA would preempt the malpractice actions in the state courts. The Dukes case was ultimately settled out of court.

Theory of vicarious liability and managed care entities ERISA fiduciary duties There have been many attempts to sue managed-care entities on the basis of state law theories of vicarious liability. The doctrine of ‘ostensible agency’ has been a part of vicarious liability in many jurisdictions; this doctrine imposes liability if a reasonable person would conclude that the clinician is an employee or agent of the healthcare facility even if they are not. For example, healthcare plans that direct patients to a list of preferred providers are closed panel HMOs and presumably would meet the requirements for vicarious liability in many states. In Dukes v. U.S. Healthcare (1995), the United States Court of Appeals, Third Circuit, ruled that a vicarious liability action against an HMO did not fall within the scope of Section 502 of ERISA. The Dukes case was a consolidation of two cases filed in state court against HMOs organized by U.S. Healthcare. Each of the two consolidated cases alleged medical malpractice of HMOaffiliated hospitals and medical personnel. In the Dukes case, Darryl Dukes’ primary care physician discovered a problem with Mr. Dukes’ ears. Surgery was performed and Mr. Dukes was given a prescription for blood studies. However, when Mr. Dukes gave the prescription to the hospital’s laboratory, the hospital refused to perform the blood studies for a reason not discussed in the record. The following day, Mr. Dukes saw another physician who also ordered a blood test, which was performed. However, Mr. Dukes’ condition continued to worsen, and he died. At the time of his death, Mr. Dukes’ blood sugar level was very high – a condition that allegedly would have been found through a timely blood test. Mr. Dukes’ wife brought suit in state court alleging medical malpractice, among other claims. The HMO removed the case to federal court based on the HMO’s being part of an ERISA plan, and the theory that Mrs. Dukes’ claims ‘relate to’ a welfare plan and are therefore preempted under Section 514 of ERISA. Mrs. Dukes

As stated above, ERISA does not protect from liability doctors or hospitals that provide care to patients. ERISA insulates from liability those who make benefit determinations even when they depart from accepted medical standards of care. Pegram v. Herdrich (1999) deals with the application of ERISA fiduciary duties to HMO decisions about what care is needed and, therefore, what will be paid for. In March 1991, Cynthia Herdrich, a part-time legal secretary experienced pain in her lower abdomen that she thought might be appendicitis. She went to see Dr. Lori Pegram, a physician at her managed-care HMO, Carle Care in Bloomington, Illinois. Six days later, Dr. Pegram identified a 6 ⫻ 8 centimeter inflamed mass in Herdrich’s abdomen. Dr. Pegram did not order an ultrasound at a local hospital, but instead referred Herdrich to a facility staffed by Carle Care, which was more than 50 miles away and could not perform the ultrasound for eight days. Before the eight days elapsed, Herdrich’s appendix ruptured causing peritonitis that required emergency surgery. Herdrich sued Dr. Pegram and Carle Care in state court for medical malpractice, and charged that the tests were delayed because the plan’s doctors had financial incentives to hold costs down. Carle Care was providing healthcare services as part of an ERISA plan. Carle Care and Dr. Pegram asserted that ERISA preempted the two counts of state law fraud and moved the case to federal court. Herdrich alleged that provision of medical services under the terms of the Carle Care HMO – rewarding its physician owners for limiting medical care – entailed a breach of its ERISA fiduciary duty, since these terms created an incentive to make decisions in the physicians’ self-interest rather than the exclusive interest of plan participants. The original malpractice counts were tried by a jury in state court, and Ms. Herdrich prevailed on both, receiving

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a total of $35 000 in damages. A Federal District Court rejected her ERISA claim that the HMO had breached its fiduciary duty. A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit voted two to one that when HMO physicians delay providing needed medical treatment to increase their bonus, they may breach a fiduciary duty, an impermissible conflict of interest. The full Appeals Court declined to review the three-judge panel’s ruling. The refusal to review the decision en banc was appealed to the U.S. Supreme Court. The U.S. Supreme Court granted certiori. The Pegram suit challenged the common type of ‘mixed’ eligibility determination. Mixed eligibility decisions are those that involve elements of both ‘eligibility decisions’ (whether the ERISA plan covers a particular condition or course of treatment) and ‘treatment decisions’ (the appropriate medical response to the patient’s condition). With this important healthcare case – one that could have a direct effect on the provision of care to psychiatric patients – coming before the U.S. Supreme Court, the American Psychiatric Association (APA) decided to write an amicus brief. The APA reviewed the trade-off between ERISA coverage and state law coverage. In general, if a particular matter is subject to ERISA, then it is not subject to state law; however, liability under state law (with damages) provides a stronger remedy because ERISA damages only allow recovery of the cost of the denied benefit. The APA brief stressed two points: (i) the real harm that can be caused by certain kinds of incentives to withhold or delay or re-direct treatment; and (ii) the need for such incentives to be subject to the same legal coverage whether under ERISA or state law. The theme of the amicus brief was that if state law does not apply, then ERISA must apply so that no gap in legal coverage results. The Supreme Court heard oral argument on the case in February 2000 and issued its opinion in June 2000. The Supreme Court held unanimously in favor of the HMO. Justice Souter wrote,‘no HMO organization could survive without some incentive connecting physician reward with treatment rationing.’ The Supreme Court held that ERISA duties do not apply to the decisions challenged, since Congress did not mean for mixed determinations to be ERISA fiduciary decisions. The Supreme Court did not say, however, what limits, if any, there are on the application of state law to HMO structures and the harm caused by the mixed determinations made by ERISA plans. This critical issue will now be played out in the state courts. Rather than resulting in a major setback for those trying to hold managed care accountable for its mistreatment of patients, Pegram contained language that some viewed as potentially helpful to patients. The Supreme Court’s opinion in Pegram indicated that it does not believe that Congress, in passing ERISA, ever intended to supplant state medical malpractice laws. But Pegram did not address the accountability issue and it may have opened the door to

state courts holding managed care companies accountable for their negligent medical necessity determinations.

CONCLUSION When ERISA was passed to protect employee pensions and benefits, few, if any, could have foreseen that ERISA preemption and limited remedies would allow managed care companies to reduce professional standards of care while protecting the managed care company from liability. It is ironic that a law passed to protect the rights of employees has been used to deny patients who have been damaged appropriate recourse and encourages managed care companies to deny care, confident that they are legally beyond reach. The courts have yielded some decisions that address the inequities and by permitting certain suits against managed care companies to succeed. The Pegram decision appears to open the road to testing, in state courts, a number of legal theories regarding managed care liability. While the courts hold some promise, a more efficient route may be for Congress to pass legislation amending ERISA. What form the changes to ERISA take and whether the political will to pass such legislation can be found are questions that remain to be answered.

Acknowledgment The author wishes to thank Louis M. Ciccone, Esq. for his assistance.

REFERENCES 29 U.S.C. §§ 1001–1046. 29 U.S.C. §§ 301–308. Corcoran v. United Healthcare, Inc., 965 F.2d 1321 (5th Circuit 1992) cert. denied 506 US 1033 (1992). Dukes v. U.S. Healthcare, 57 F.3d 350 (3rd Circuit 1995). Inland Steel Company v. NLRB, 170 F.2d 247 (7th Circuit 1948) cert. denied 336 U.S. 960 (1949). New York State Conference of Blue Cross and Blue Shield Plans et al. v. Travelers Insurance Company et al., 514 U.S. 645 (1995). Pegram v. Herdrich, 530 U.S. 211 (1999). Reilly, M.M. 1994. ERISA 1974–1994: Twenty Years of Pension Reform and Beyond. Tax Notes, November 7, pp. 749–50. Stone, A.A. 1995. Paradigms, preemptions and stages: understanding the transformation of American psychiatry by managed care. International Journal of Psychiatry 18, 353–87. Stone, A.A. 1999. Managed Care, Liability and ERISA. Psychiatric Clinics of North America 22, 17–29.

PART

8

Basic issues in law

81 The philosophy of law and the foundations (sources) of law Laurence R. Tancredi and Robert Lloyd Goldstein

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82 The court system and the legislative process Robert Lloyd Goldstein

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83 A model of constitutional adjudication: the equal protection doctrine Robert Lloyd Goldstein

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84 An introduction to tort law Daniel W. Shuman and Michael Heinlen

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85 An introduction to civil procedure Robert Lloyd Goldstein

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86 An introduction to criminal procedure Harvey M. Stone, Katherine Oberlies O’Leary and Robert Lloyd Goldstein

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87 Punishment Russell Stetler and Robert Lloyd Goldstein

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88 Legal research on the Web Peter Ash

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81 The philosophy of law and the foundations (sources) of law LAURENCE R. TANCREDI AND ROBERT LLOYD GOLDSTEIN

INTRODUCTION An appreciation of the basic concepts of legal philosophy will serve to enhance the forensic psychiatrist’s understanding of the history, development and purposes of the legal institutions and practices encountered at the interface between psychiatry and the law. This process of exploring and charting the terra incognita of the law is bound to promote a greater degree of intellectual stimulation and satisfaction for the forensic specialist, who applies psychiatric expertise to a rather circumscribed complex of issues that arise within the context of a system whose conventions and traditions not infrequently may seem alien and mysterious to the non-lawyer. The philosophy of law applies the discipline of philosophy to study the issues and subject matter raised by the existence, nature, and practice of law. This cursory overview of the subject is intended as an introduction for the forensic psychiatrist and does not pretend to address the full scope of legal philosophy, dating back ‘twenty-four hundred years – from the Greek thinkers of the fifth century B.C. who asked whether right was right by nature or only by enactment and convention, to the social philosophers of today, who seek the ends, the ethical basis and the enduring principles of social control.’ (Pound 1954). The central problem of legal philosophy, simply stated, is ‘what is law?’ The first step in grappling with this question involves speculation on the socio-cultural antecedents for rules and regulations from which law originates. Before formal rules or laws had been enunciated and people were accorded privileged status in the community as ‘judges’ of others, even the most primitive societies had norms that evolved from the particular needs of that society. On the most simplistic level, revenge plays a major role in creating the norms in a society. The instinct of an aggrieved or injured party to take revenge and the enforcing of that instinct serve as the basis of

customary norms that underlie the civil and criminal law of more complex societies. With more complex interrelationships among the people in a community, norms developed and resulted in codifications in law, regulations and systematized mechanisms, such as courts, judges and juries for resolving conflicts (Elliott 1985). The analysis of the concept of law, the attempt to elucidate the nature of the law, has a long and honorable history over the ages. Dworkin (1990) states that the concept of law has three different facets: 1 Law that exists as a distinct type of social institution, presupposing certain political attitudes and principles of legitimacy and morality. 2 Laws, or rules of law, distinct from other ‘law-like’ standards (e.g., conventions, taboos, customs, mores, moral precepts, etc.), with a particular type of pedigree, having been enacted or developed within a pre-existing legal institution within the particular society. 3 The law, or propositions of law, which declares certain relationships among people, especially relationships of rights, duties and powers. Generally, propositions of law attempt to correctly describe the content of rules of law, whose existence they presuppose. Golding (1975) offers a lucid and concise analysis of the elements of a legal system within a society. He attempts to answer the question of what it means to say that a legal system exists in S (any given society). He proposes that a legal system exists in S is true if: 1 There are laws in S. 2 There exists in S an agency for making and changing the laws. 3 There exists in S an agency for determining infractions of the laws. 4 There exists in S an agency for enforcing the laws. 5 There exists in S an agency for settling disputes between individuals.

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Golding’s five conditions set forth the general conditions for all legal systems. The first condition, that is, the existence of laws, is a necessary element of any society claiming to have a legal system. It is inconceivable to have a ‘lawless’ legal system. Golding classifies conditions (2) to (5) as jural agencies, and concludes that a society possesses a sufficient degree of jural complexity (i.e., it permits us to assert that it has a legal system) if it has both a set of laws and any two of the four enumerated jural agencies. Jural agencies are viewed in terms of the type of jural activities they perform. In the course of analyzing these terms and concepts, Golding offers an example taken from Kelsen (a well-known legal philosopher): Suppose that we come across two separate cases of one man killing another. Suppose further that in all behavioral and psychological respects the two acts are perfectly alike: each actor, with venom in his heart, kills his enemy with a sword. Now, it does not follow that there can be no difference between the two cases; in fact, one is a pure case of murder, while the other is not. This is possible because one of the killers (the latter) is the state executioner who is carrying out the sentence of a court. His act is the act of an official – he is a jural agent – acting in an official capacity, and it is an instance of a jural activity. (Golding 1975, p. 22)

Jural agents have an authoritative status within a society to carry out appropriate jural activities (e.g., settling a dispute, making or changing a law, enforcing a law). Laws of competence or power-delegating laws regulate and establish when a particular jural agent is acting in an appropriate official capacity. The authoritative status of the society’s jural agencies and the jural acts they perform derive from certain characteristics or qualities inherent in its laws: its laws are perceived as valid both behaviorally and psychologically (i.e., most members of the society conform their behavior to the rules or laws most of the time and view them as normative guides to action). Laws are binding on a society when they are enforced (by sanctions), when they are recognized as binding because they are legitimate (i.e., enacted in accordance with the formal procedures that have been established for making laws in the society), and when they are perceived as imposing a moral obligation or duty to obey them.

THEORIES OF LAW Law serves as a device for social control, yet differs from other methods of social control, for example, mere force or morality (Murphy and Coleman 1990). The forensic psychiatrist should be familiar with the two main traditions in legal philosophy: natural law theory and legal positivism.

NATURAL LAW According to the theory of natural law, legal validity requires a corresponding moral validity as an absolute logical and conceptual prerequisite. At the very least, laws must be morally permissible. The classical version of natural law theory dates back to the ancient Greeks and their doctrine of the Logos, the invisible pattern or principle that governed the transactions of the cosmic order. In Summa Theologiae, St. Thomas Aquinas emphasized the essence of natural law theory: As Augustine says that which is not just seems to be no law at all. Hence the force of a law depends on the extent of its justice … . Every human law has just so much of the nature of law as it is derived from the law of nature. But if at any point it departs from the law of nature, it is no longer a law but a perversion of law. (Aquinas 1954, p. 784)

According to Aquinas, natural law is ‘the participation of the eternal law (i.e., the Divine law for the governance of the universe) in the rational creature’ (Aquinas 1954, p. 787). Lawmaking is grounded on reason in order to promote the common good of the community. One is obligated to obey the law (which has a coercive force, backed up by sanctions) not because of the threat of force, but only under circumstances when the content per se of the law is itself moral. The eternal verities of the moral order, expressed as a part of the order of nature in the view of medieval Christian theology, provide the rationale for laws and their attendant legal obligations. Natural law has often been associated with legal formalism, though legal positivism also has its adherents to formalism (Posner 1990, pp. 11–34). Legal formalism advocates the existence of permanent principles of law that are essentially unchanging and embodied in judicial decisions, and the objective of legal examination or reasoning is to interpret the opinions to uncover the underlying principles. Formalism contains a type of scientism which allows for inductive reasoning as an exact inquiry and emphasizes the relationship between ideas, even separate from life or the world of fact. The contrasting approach to law which emerged from American legal thinking and has been frequently associated with Legal Positivism is Legal Realism. This movement includes legal giants to a large extent, such as Cardozo and Holmes. The Realists were pragmatic. They focused more on the ends to be achieved by law. For example, Cardozo saw the emphasis of law to be the ‘welfare of society.’ (Cardozo 1921, pp. 64–6). Hence, legal rules were not seen as immutable, but rather as instrumental and, therefore, revisable. When they cease to function for the broader end, they are to be obliterated. Contemporary legal philosophers have managed to carry on the tradition of natural law theory, albeit reformulated in the more acceptable idiom of our own age,

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divested of the metaphysical and theological trappings of the classical natural law system of Aquinas. Hart (1961) articulates a ‘minimum content’ theory of natural law, which he views as the ‘core of good sense’ in natural law theory. Because society is concerned with the survival in proximity of its members (it is not a ‘suicide club’), natural law provides a meeting ground for the minimal overlap between morality and law that serves this aim. The nature of the human condition (e.g., that humans are vulnerable to harm, limited in their powers of self-control and foresight, limited in their altruism, and by necessity attempting to cooperate in order to survive in a world of scarce, limited resources) mandates that the major social institutions of law and morality will overlap somewhat in dealing with these basic human concerns. Fuller (1964) has written about legal systems and the central importance of ‘the internal morality of the law.’ In order to qualify as a legitimate legal system, the overwhelming majority of its rules must be seen to satisfy procedural demands of a moral nature, compatible with justice and fairness, for example, treating ‘like cases like,’ not applying rules after the fact, giving fair notice, and impartially enforcing the rules. Fuller wrote extensively about the legal pathology inherent in Nazi Germany, where the entire system of secret, arbitrary laws, based on the whims of those in power, failed to meet the minimal standards of morality that make law possible. Fuller’s approach focuses on the moral requirements of formal legal procedure only, and imposes no moral limitations on the content of laws. Dworkin (1977) has advanced a theory of judicial decision making, the ‘rights thesis,’ which stands for the proposition that principled judicial action involves a search for the right answer to the question ‘who has the right to win?’ Protection of rights that are based on the moral values of our legal order would outweigh utilitarian considerations of policy or the collective welfare. In arguing that Japanese-Americans had a right not to be interned after the attack on Pearl Harbor, Dworkin writes: Individual rights are political trumps held by individuals. Individuals have rights when, for some reason, a collective goal is not a sufficient justification for imposing some loss or injury upon them. (Dworkin 1977, p. xi)

LEGAL POSITIVISM Justinian’s Digest sets forth an early version of legal positivism in admirably pithy terms: ‘what pleases the Prince has the force of law.’ Legal positivism derives its name from the fact that ‘positive law’ is posited by human authority. In other words, whatever law is enacted by the jural agency set up to make and change the laws of society constitutes the valid law. The nineteenth-century English legal philosopher John Austin is generally regarded as the father of legal positivism. Rejecting natural law theory

and its essential connection between law and morality, Austin (1954) held that ‘the existence of law is one thing; its merit or demerit is another.’ Austin’s theory of law is often referred to as the command theory: the command of the sovereign (or supreme political authority) constitutes the law governing a given society. The sovereign is defined as that individual (or group) who receives the obeisance of the society on a habitual basis and who in turn is not in the habit of obeying others in the society. Once a law has the imprimatur of the sovereign, indicating the will or desire to be obeyed, there is a non-optional condition imposed in the form of a legal duty or obligation. The law is a coercive device for social control, a command backed by a threat to enforce compliance (whether or not the threatened sanction is actually carried out). Punitive sanctions, in the criminal law, entail punishment by the appropriate jural agency. Privative sanctions, in the civil law, deprive the individual of the state’s jural enforcement authority, regarding transactions such as making a will, if he or she fails to follow the relevant legal rules. The command of the sovereign is the legitimate law of the society in question. The pedigree test for legal validity, according to Austin, is simply that the law’s enactment can be traced to the sovereign whose actions define legality for that society. Hart (1961) significantly refines Austin’s ‘command-of-a-sovereign’ model of the law by emphasizing the importance of overall legal systems and legal rules (e.g., a pedigree test that defines legal validity for a particular society by specifying that laws must be enacted according to agreed-upon rules for generating binding laws). Hart (1961) further distinguishes between primary rules, which are the rules that impose legal duties and obligations on individuals, and secondary rules, which are ‘rules about rules.’ The secondary rules involve the primary rules themselves, how to recognize them (i.e., how to determine if they possess the proper pedigree to constitute a valid law), how to initiate, modify, or repeal them altogether (e.g., by establishment of legislatures), how to determine conclusively whether they have been violated, and how to settle legal disputes (e.g., through the establishment of courts and rules of adjudication). A succinct statement of Hart’s theory of the law is that ‘Law [is best regarded] as a system of primary and secondary rules’ (Hart 1961, p. 107). Many regard Hart’s work as the definitive exposition of the philosophical question ‘what is law?,’ essentially settling the issue once and for all. Others, including adherents of the movements of legal realism and critical legal studies, criticize Hart for achieving ‘uniformity at the price of distortion.’ (Twining 1973; Unger 1986).

FOUNDATIONS OF LAW In modern legal systems, Hart’s ‘secondary rules’ are important criteria for recognizing and ranking the multiple

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sources of law within a complex hierarchy. Sources of law are ranked ‘in an order of relative subordination and primacy’ (Hart 1961, p. 98), according to the degree of their authoritativeness as legal norms within our complex system. Present-day American law involves a distribution of law-making powers among a variety of authoritative sources, for example, case law originating in decisions of courts or other tribunals, legislative enactments by Congress and the several state legislatures, and rule making and adjudication by various governmental agencies. The Constitution of the United States is the ‘Supreme Law of the Land,’ the ultimate legal authority in our system. The Constitution establishes the norms governing the distribution of political powers and their exercise in our system. The validity of all federal, state and municipal legislation is determined, ultimately, by reference to the overriding authority of the Constitution, which ‘proclaims its own supremacy and the supremacy of the laws of Congress passed in pursuance of it.’ (Mason and Beaney 1975, p. 12). Legislative enactments of Congress (formalized legal documents called statutes or codes) are of superior authoritativeness to any type of state legislation. The Supremacy Clause of the Constitution (Article VI, paragraph 3) states: This Constitution and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every state shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Ranked below all federal sources of law, in descending order of legal weight and authoritativeness, there are state constitutions, state statutes, state administrative regulations, and municipal ordinances. Historically, our law has its roots in English common law, which has been essentially judge-made law on a caseby-case basis, wherein the judge relies on a series of past judicial opinions (precedents) to arrive at the concept and doctrine underlying the specific case at hand (Holmes 1963). For illustration, the law of torts (accident or negligence law) has emerged from case decisions. Judicial interpretation provides the judge with some discretion for advancing legal doctrine, thereby affording the courts with a quasi-legislative role, as well as a judicial one (Posner 1990, pp. 247–61). In contrast, legislative or statutory law is not to be revised by judges. Judicial interpretation is limited to ‘understanding’ the concept embedded in the statute, rather than shaping it to suit broader societal ends. Labor law, for example, is primarily statutory in nature, resting on concepts that are clearly delineated by legislation. There is no doubt that during the twentieth century, legislation has become the dominant ingredient in American law (Jones, Kernochan, and Murphy 1980). The vast expansion of federal and state regulatory activities,

the trend toward comprehensive law codification (e.g., the Uniform Commercial Code), and the delegated rule-making powers of the federal and state bureaucracies have made great inroads into the formerly largely exclusive turf of the courts. Nonetheless, courts still enjoy a uniquely authoritative status, having power to decide particular controversies and to create precedents, or potential precedents, which are generally binding for future like cases. Legislation and case law intermesh when courts are called on to interpret statutes or scrutinize their constitutionality. The weight or authoritativeness of a court decision depends on its place in the judicial hierarchy of its jurisdiction. For example, three tiers of courts exist in most states: trial courts, intermediate appellate courts, and a highest appellate court. The U.S. Supreme Court is the court of supreme jurisdiction in the interpretation of the U.S. Constitution, the ‘final, formal interpreter of the words of the Constitution,’ as well as the ultimate authority as to whether federal or state law was written in pursuance of constitutional standards. Woodrow Wilson observed that the Supreme Court has become ‘the balance wheel of our entire system.’ (Mason and Beaney 1975, p. 13).

CONTEMPORARY JURISPRUDENTIAL ISSUES Two developments involving interdisciplinary approaches – the application of economics and feminine methodology – to legal decision-making have emerged in recent years to impact on contemporary law. Both of these movements have implications on jurisprudence and the practical applications of legal doctrines.

Law and economics The first of these is the interdisciplinary field of ‘law and economics’ which rests on the assumption that people are ‘rational maximizers’ of their satisfactions. Over the past several years, a rich body of literature has developed from economists, philosophers, and lawyers that addresses broad concerns such as welfare, economics and the law (Coleman 1984). In its most simplistic terms, all areas of law are open to economic examination, since most common law decisions – especially torts, contracts, and even the criminal law – involve principles such as cost– benefit analysis, decisions under uncertainty, risk aversion, promotion of mutually beneficial exchanges, and prevention of ‘free’ riding (Posner 1990, p. 361). Economic principles not only explain individual behavior, but influence our understanding of the ends to be achieved in law and thereby provide the possibilities for creative solutions to legislative and judicial decisions. In his classic work, The Costs of Accidents, Guido Calabresi (1970) illustrated on a practical level the advantages of re-examining one area of law, torts, from

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the perspective of the economic benefits and costs of a fault-based system of redress. He showed that the existing system of designating fault and liability creates distorted goals in terms of justice and cost reduction, and that a system predicated on economic considerations, such as identifying the ‘cheapest cost avoider’ – the person or institution (corporate, governmental, etc.) in the best position to make worthwhile changes to avoid the accident – to absorb the costs of accidents results in what he conceives as the principal functions of tort or accident law – reducing the sum of the costs of accidents and the costs of avoiding accidents (Calabresi 1970). Hence, Calabresi advocates creating a compensation system for those injured, such as plaintiffs in products liability, automobile accident and medical malpractice cases, to name a few, that rests on economic incentives for injury prevention rather than vague notions of ‘fault.’

Feminist jurisprudence Feminist method is not new. It finds its origins in the women suffrage movement which challenged the premises of the all-male political system that denied women the rights of men, rights such as working in professions, education, child custody, serving on juries, etc. (Chafe 1972). The explicit belief which emerged from that movement is that women have been and are wrongly treated (Richards 1998) and this should be remedied by women achieving true equality with men (Bartlett 2000). As it applies to the law directly, especially through legal scholarship as well as court cases, feminist ‘method’ is of recent origins. What remains controversial is whether feminism is only concerned with substantive issues, or if it is indeed a method of critique (Posner 1989). Feminist writers argue that feminism means more than the subject matter of women, i.e., women’s rights. They argue that there is a specific method that involves the type and commonality of questions asked, the criteria of relevancy and proof applied in responding to those questions and other ‘methodological’ issues (Bartlett 2000, p. 32). Furthermore, they claim that the ‘method’ results in producing alternative and overlapping analyses of gender and how it operates in the law. Underlying this position is the notion that gender influences styles of law. Carol Gilligan (1982), a psychologist who has worked on moral development in children, claims that men have an ‘ethic of rights’ which manifests itself in a distinct approach involving adherence to rules, legalisms, and strict construction. Even as children, she claims, boys during games determine when violations occur and accuse the violator. Girls, in contrast, abide by an ‘ethic of caring’ which means sensitivity to the costs of strict adherence to rules, costs such as the potential harm to relationships. This translates into men having a formalistic, rule-bound style and women being personal, and contextual, which Gilligan would refer to as ‘substantive

justice.’ There is much literature and work in support of Gilligan’s notions, though many make compelling arguments against the distinction. For example, Posner takes issue with this claim by showing that the history of law which has been dominated by men has involved the same type of tensions pitting men against each other in legislative debates that Gilligan delineates as gender based (Posner 1989, p. 407).

JURISPRUDENCE IN PSYCHIATRIC CONDUCT: THE COVENANT PARADIGM The psychiatrist–patient relationship is in some respects different than the traditional relationship of a surgeon or internist with his or her patient. The psychiatrist deals more completely with the mental and emotional processes of the patient, and in such a role may have influence well beyond that of establishing appropriate diagnostics and treatment methods. As with all medical practitioners, the psychiatrist has to assure that the contractual relationship with a patient is determinative and that the power prerogatives in decision-making approach an equal balance. But the argument is strong that the psychiatrist’s relationship with a patient must be a special type of contract, something in the order of a covenant (Weisstub 1985). The distinction is that a contract is more of a legalistic notion (certainly applicable to traditional psychiatric diagnosis and psychopharmacological treatment), whereas the covenant is a contract that rests strongly on the moral philosophical bonds between parties. The covenant has its origins in the Old Testament when Abraham entered into an agreement with God, giving up elements of freedom to have his prescribed destiny. In return, God made the commitment for Abraham to achieve a critical role in history. The covenant resulted in a moral bond between God and Abraham, or the people of Israel, and the establishment of laws to achieve that end. But the essential issue is that the norms and values of the covenant flowed from the superior entity (God) in one direction. The relationship, therefore, results in a higher order of values established by the superior participant. But just as it is an agreement at one point in time, it nonetheless is dynamic, with the interchanging of divine and human intentions, desires and values. This convenant paradigm is relevant to the psychiatrist’s relationship with his or her patient (Tancredi and Weisstub 1986). The psychiatrist is in a superior ‘knowledge’ position, with a value system epistemologically based – Freudian, Jungian, biological and epidemiological, to name a few – that gives definition to the relationship and provides for the protection of the patient. Furthermore, there is an understanding that the stronger party, the psychiatrist, is dedicated to benefit the weaker party, the patient. This dedication is present even though the therapist–patient encounter may seriously stress the

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patient at times to meet the therapeutic objectives of personal growth and development. The psychotherapeutic relationship, which is predominantly based on verbal therapy, seems to best fit the covenantal paradigm because it utilizes transference and countertransference. These notions which manifest the power of the bonding between the parties, also reflect the differences in power prerogatives. Over time as patients develop insight, the power of transference is diminished as is that of countertransference. It is the characteristic of the relationship that as it unfolds a method of treatment occurs. This fact makes it very difficult to apply torts to the establishment of infractions in that relationship. Though tort law allows for changes over time compatible with what occurs in psychotherapy, its perceptions of infractions is fixed at deviations from ‘normative’ behavior. The psychotherapeutic relationship (as with the covenant), in contrast, requires dynamic change which includes concomitant dynamic alterations of the criteria for assessing its effectiveness and authenticity. The latter calls into question the validity of ‘foreseeability,’ among other factors, which is an essential element of tort law. In effect, the convenantal model gives us an understanding of the precise nature of the therapist–patient dynamic without providing us with the means for establishing infractions of that relationship. In the absence of tangible evidence of harm to a patient – such as physical harm or the application of unusual or inappropriate treatments – there has been no successful appellate court case that has explicitly involved a determination of negligence in verbal therapy. Psychotherapy (the covenant) does not render itself to such determinations, though one could track evidences in the history of the relationship which might suggest a lack of the continuation of dedication on the part of the therapist which might lead to detrimental and destructive consequences for the patient. This would inevitably spill over into the realm of the tort of intentional infliction of mental suffering which protects the patient’s dignitary rights from being distorted by the destruction of the bonding of the relationship by the willful act of the stronger party. The contract and application of tort law are applicable to a large terrain of psychiatric practice outside of conventional psychotherapy, i.e., classical diagnosis and pharmacological treatment.

REFERENCES Aquinas, T. 1954: Basic Writings of St. Thomas Aquinas. Volume 2. Pegis, A.C. (ed.). New York: Random House. Austin, J. 1954: The Province of Jurisprudence Determined. New York: Noonday Press. Bartlett, K. 2000. Cracking foundations as feminist method. American University Journal of Gender, Social Policy and Law 8, 31–8.

Calabresi, G. 1970: The Costs of Accidents: A Legal and Economic Analysis. New Haven, CT: Yale University Press. Cardozo, B. 1921: The Nature of the Judicial Process. New Haven, CT: Yale University Press. Chafe, W. 1972: The American Woman: Her Changing Social, Economic, and Political Roles, 1920–1970. New York: Oxford University Press. Coleman, J.L. 1984. Economics and the law: a critical review of the foundations of the economic approach to law. Ethics 94, 649–61. Dworkin, R. 1977: Taking Rights Seriously. Cambridge, MA: Harvard University Press. Dworkin, R. 1990: The Philosophy of Law. Oxford: Oxford University Press. Elliott, E.D. 1985. The evolutionary tradition of jurisprudence. Columbia Law Review 85, 38–97. Fuller, L. 1964: The Morality of Law. New Haven, CT: Yale University Press. Gilligan, C. 1982: In a Different Voice: Psychological Theory and Women’s Development. Cambridge, MA: Harvard University Press. Golding, M.P. 1975: Philosophy of Law. Englewood Cliffs, NJ: Prentice Hall. Hart, H.L.A. 1961: The Concept of Law. Oxford: Oxford University Press. Holmes, O.W., Jr. 1963: The Common Law. Cambridge: Belknap Press. Jones, H.W., Kernochan, J.M., Murphy, A.W. 1980: Legal Method: Cases and Text Materials. Mineola, NY: Foundation Press. Mason, A., Beaney, W. 1975: American Constitutional Law. Englewood Cliffs, NJ: Prentice Hall. Murphy, J.G., Coleman, J.L. 1990: Philosophy of Law: An Introduction to Jurisprudence. Boulder, CO: Westview Press. Posner, R.A. 1989. Conservative feminism. University of Chicago Legal Forum 1989, 191. Posner, R.A. 1990: The Problems of Jurisprudence. Cambridge, MA: Harvard University Press. Pound, R. 1954: An Introduction to the Philosophy of Law. New Haven, CT: Yale University Press. Richards, D.A.J. 1998: Women, Gays and the Constitution: The Grounds for Feminism and Gay Rights in Culture and Law. Chicago: University of Chicago Press. Tancredi, L.R., Weisstub, D.N. 1986: Malpractice in American psychiatry: toward a restructuring of the psychiatrist–patient relationship. In Weisstub, D.N. (ed.), Law and Mental Health: International Perspectives. Volume 2. New York: Pergamon Press, 83–139. Twining, W. 1973: Karl Llewellyn and the Realist Movement. Norman: University of Oklahoma Press. Unger, R.M. 1986: The Critical Legal Studies Movement. Cambridge, MA: Harvard University Press. Weisstub, D. 1985. Le droit et la psychiatrie dans leur problematique commune. McGill Law Journal 30, 221–61.

82 The court system and the legislative process ROBERT LLOYD GOLDSTEIN

INTRODUCTION The common law is a distinctive legal system that originated in medieval England, grew and developed in the courts of the king, and during the twelfth and thirteenth centuries came to be applied throughout the English realm. Hogue (1985) distinguishes it from other legal systems of that period (e.g., local customary law, canon law administered by church courts, rules of feudal custom applied by courts of baronial overlords) ‘by calling it simply the body of rules prescribing social conduct and justiciable in the royal courts of England’ (Hogue 1985, p. 5). In time, three royal courts (three superior courts of common law) emerged: the Court of Exchequer (with jurisdiction over controversies pertaining to the king’s property and revenue); the Court of King’s Bench (with jurisdiction over criminal cases and civil cases involving a breach of the peace); and the Court of Common Pleas (with jurisdiction over all other civil disputes between the king’s subjects). In addition, there was another system, rivaling that of the common law, which also originated in the Middle Ages: the Court of Chancery, which exercised jurisdiction over suits in equity. Judges in equity, originally ecclesiastical dignitaries, intervened to correct the harshness or inflexibility of the common law on grounds of morality or conscience (Scott and Kent 1967). An excellent exposition of the origins, development, and complexities of the common law, which does not assume professional legal training, can be found in the slim volume Origins of the Common Law (Hogue 1985). The reception of the common law of England in the United States was characterized by a process of selective adoption, providing for the continuity of English and American legal principles, but transforming them for American use by specific legislative enactment or judicial decision. In other words, the principles of English common law were drawn on as sources of guidance, but did not always find acceptance. As Justice Story said in a leading case: The common law of England is not to be taken in all respects to be that of America. Our ancestors brought

with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their condition. (Van Ness v. Pacard 1829)

The most prominent characteristic of early American law was the strong tendency toward codification. Although the common law served as a fundamental subsidiary law, there was a paucity of lawyers trained in the English tradition and few law books available to transmit the corpus of English common law doctrine. Historically, this was the pragmatic basis for the adoption of elaborate and rather complete codes of law, which constituted most of the law under which the American colonists lived (Walsh 1932). A century ago, case law was the dominant ingredient in American law, and legislation was of lesser importance. Today, with the enormous growth of the federal regulatory agencies and the tendency toward comprehensive law codification (e.g., the Uniform Commercial Code), ‘legislation has fully come of age as a form of American law.’ (Jones, Kernochan, and Murphy 1980, p. 3). The following sections outline the present-day organization of the American court system (at both the federal and state levels), the nature and authority of case law, and the legislative process. Finally, the meeting ground is examined where case law and legislation come together, that is, statutory interpretation and construction by the courts. Constitutional adjudication is well beyond the scope of this chapter, but is touched on in Chapter 83, where the Equal Protection Doctrine is discussed. The organization of court systems in the United States is rather complex and reflects the historical realities of our federal system of government. There is a dual system of state and federal courts, each with its own system of legal doctrine and practices. However, to complicate matters further, each system of courts is routinely called on to confront and decide issues of law originating within the other system. For example, federal issues regularly come to the fore in state trials (e.g., the exclusionary rule in a state criminal proceeding) and are decided by the state court in accord with guiding federal precedents. Conversely, lawsuits governed by state law are often brought

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in federal courts (under so-called ‘diversity’ jurisdiction; see Chapter 85) and then the federal trial court will generally be bound to apply state substantive law in the case before it (although it will continue to follow federal procedural law; see Chapter 85).

of Military Appeals, the Court of International Trade, the Tax Court, and the Court of Appeals for the Federal Circuit (created from the merger of the Court of Claims and the Court of Customs and Patent Appeals).

STATE COURTS FEDERAL COURTS Article III of the Constitution provides, in pertinent part, as follows: Article III, Section 2. The judicial Power of the United States shall be vested in one Supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish.

Thus, the Supreme Court is the only federal court directly created by the Constitution. Congress has the power to create, modify, abolish, and establish the composition and jurisdiction of all other federal courts. The Supreme Court is the court of last resort for the federal system and, in cases containing federal questions, for the state judicial systems as well. It has broad discretion to refuse to hear the vast majority of cases for which review is sought. The Court must be persuaded that the issues involved in the case are sufficiently important, as questions of federal law that must be decided with finality, to grant certiorari for hearing and decision on the merits. The Supreme Court is nothing less than the ‘umpire of the federal system, authoritative guardian of constitutional liberties and final overseer of the consistency and substantial justice of the general law administered in the courts of the United States’ (Jones, Kernochan, and Murphy 1980, p. 48). While the Constitution does not expressly give the Supreme Court the power to determine the constitutionality of acts of Congress or state legislation, the Court itself, in a series of opinions, held that it had the power to review and invalidate federal and state legislation it determines to be unconstitutional (Marbury v. Madison 1803; Fletcher v. Peck 1810). Courts of appeals have final jurisdiction over all cases arising in the lower federal courts in their district or circuit (except those reviewed by the Supreme Court). There are thirteen such circuits, eleven comprising geographical divisions among the states, a twelfth for the District of Columbia, and a thirteenth that reviews cases from specialized Federal courts (e.g., the Tax Court). There are currently ninety-one district courts, at least one in every state, up to four in the more populous states. These are the major trial courts of the federal system and have jurisdiction over cases within the judicial power of the United States, as defined in the Constitution (Federal jurisdiction is discussed in Chapter 85). Procedure in the district courts is uniform throughout the United States for civil and criminal cases. There are a number of special courts in addition to the foregoing, including the Court

Each of the fifty states has its own system of courts, with a triple-layered hierarchical structure. At the bottom of the hierarchy are the ‘inferior’ or ‘petty’ trial courts, whose jurisdiction is limited to civil suits involving small amounts of money (e.g., small claims court) or, minor criminal violations. At the next level are trial courts of general jurisdiction, usually referred to as superior courts.1 (New York State, confusingly, calls its trial courts of general jurisdiction the Supreme Court, which in most other states is the name given to the highest appellate court.) Their principal function is to hear civil and criminal cases generally. They are courts of record (i.e., detailed records of the proceedings are made) and their procedure is strictly formal. Specialized trial courts exist separately or are part of the trial court of general jurisdiction, for example, probate courts and family courts. At the top of the judicial hierarchy are the appellate courts, which hear appeals from the judgments of the trial courts of general jurisdiction. These state courts of last resort are usually called the Supreme Court of the state, but may have other names (e.g., Supreme Judicial Court, Court of Appeals). In over half of the states, there are intermediate appellate courts as well, which serve to screen out and make final authoritative disposition of the bulk of appellate litigation. This allows the highest appellate court broad discretion to focus on cases that raise novel, difficult, or socially important issues.

NATURE AND AUTHORITY OF CASE LAW All systems of law employ case law to some extent, but it is especially authoritative and influential in a common law system such as our own. Case law has its origin in the judicial decisions judges reach in deciding disputes between particular parties. It is a ‘by-product of the ongoing process of settling particular controversies’ (Jones, Kemochan, and Murphy 1980, p. 3). In Chapter 81, it was noted that law exists in two authoritative forms, legislation and case law. How does dispute settlement of a particular case become a potential source of authoritative and generally applicable case law? The answer lies in the doctrine of stare decisis (‘to stand by precedents and not to disturb settled points’). The doctrine declares that once a judicial decision settles a particular controversy or 1

Nomenclature varies from state to state, for example, district court, circuit court, court of common pleas.

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a disputed point of law, that decision becomes binding2 and will be followed in all subsequent factually similar cases. The authoritative force of precedent was firmly established at the dawn of the common law era in the royal courts of England. The meritorious features of this principle have been described as follows (Bodenheimer, Oakley, and Love 1980): 1 The doctrine of stare decisis enhances the social values of predictability, calculability, and certainty in the planning of private and business activities. Legal rights, duties, and obligations are relatively stable and ascertainable as a result. 2 Attorneys have a settled basis for legal reasoning and dispensing advice to clients, knowing that courts are generally bound by legal authority and precedent. The probable outcome of potential litigation may often be forecast and the total caseload of litigation may be presumably drastically diminished thereby. 3 Judges are forced to follow established precedents and thereby potential arbitrariness, favoritism, and bias are curbed. Otherwise, mere whims and idiosyncratic notions of right and wrong might be applied with the detrimental effect of erosion of public confidence in the integrity of the judiciary and loss of respect for the law. The public is more likely to accept judicial decisions as binding, in the knowledge that they are based on precedent, an objective body of law, and impartial reasoning free from bias or subjective concerns. 4 Following precedents promotes judicial efficiency and reduces the costs of litigation. Judges do not have to examine each legal issue de novo every time and each past decision need not be reopened in every case. 5 The doctrine of stare decisis is more consistent with a sense of justice, in that all individuals are more assured of being ‘treated alike in like circumstances.’ Order, stability, and continuity of the law satisfies our reasonable expectations that justice will be done. Judicial decisions serve as precedents only within the same judicial system or jurisdiction: for example, a decision of New York’s highest state court (the Court of Appeals) is binding precedent only in that court and in New York’s lower courts. It has no binding authority for future cases adjudicated in the courts of New Jersey, California, or any other state system. Even decisions of the U.S. Supreme Court are not binding on state courts unless a federal question or constitutional interpretation was at issue. The higher a court stands in the hierarchy of its own jurisdiction, the greater force as precedent its decisions are accorded. (For example, decisions of the

Supreme Court of California are binding on all lower California courts, whereas decisions of the intermediate appellate courts have much less precedential authority and are liable to be overruled at some future date by the higher tribunal. Subordinate courts must always adhere to precedents of higher courts with supervisory jurisdiction over them.) American courts have never regarded the doctrine of stare decisis as absolutely binding, as have English courts until quite recently.3 Sometimes legal rules become antiquated or obsolete and innovation and responsiveness to social change call for the abandonment of an established precedent. In such cases, the highest courts have reserved the authority to overrule or set aside their own past decisions, when public policy considerations and the proper development of the law require a change. Courts do not lightly make use of their prerogative to overrule their own clear precedents. Generally they agree with Cardozo that ‘adherence to precedent should be the rule and not the exception’ (Bodenheimer, Oakley, and Love, 1980, p. 68).

LEGISLATION Legislation, as a source of the law, has been compared to a proverb, while case law has been likened to a parable. The latter is comprised of principles inferred from decisions handed down in particular cases that decided concrete disputes between parties. The former is an authoritative, prescribed general rule, promulgated by a lawmaking body. According to Patterson: A proposition of case law may be correctly stated in several different ways, each of which is equally official. A statute (proposition of legislation) is stated as an exclusive official wording of the rule. Case law is flexible; legislation is (textually) rigid. (Jones, Kemochan, and Murphy 1980, p. 12)

In the United States, the Constitution of 1789, in Article 1, Section 1, created a bicameral legislature, the Congress of the United States, composed of the Senate and the House of Representatives. All legislative powers of the federal government are conferred on the Congress and its organization, procedures and enumerated powers are set forth in other sections of the Constitution. Likewise, the constitutions of the several states also establish authoritative lawmaking bodies (the state legislatures). Rules of legislative law are promulgated as formalized legal documents in authoritative textual form (statutes

2

The ratio decidendi (or holding) of a case is that portion of the judicial decision that sets forth the court’s principle or rule of law on the material facts of the case before it. This is the only authoritative element in the decision that has binding precedential force. All else in the opinion is known as dicta or obiter dicta (things said by the way).

3 The rigid notion that precedents are absolutely binding was the law in England until 1966, when the House of Lords modified its position. American courts have never regarded stare decisis as ‘an inexorable command’ and have treated past judicial decisions as generally binding.

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or codes)4 that are prospective in application, that is, the legislative acts are rules of law or precepts to be followed in the future. Legislation, as described by Oliver Wendell Holmes, ‘looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power’ (Prentis v. Atlantic Coast Line Co. 1908). Legislation is generally more authoritative than case law and supersedes prior judicial decisions, unless the enactments exceed the legitimate powers of the legislature (i.e., unless they are unconstitutional). Judges are bound by the statute as it is enacted and cannot rewrite it or revise it. When a particular statutory law governs the resolution of a case before the court, the judge’s role is merely to apply it to the controversy to be decided.

STATUTORY CONSTRUCTION (INTERPRETATION) Chung Fook v. White, 264 U.S. 443 (1924) Certiorari to a judgment of the Circuit Court of Appeals which affirmed a judgment of the District Court denying a petition for a writ of habeas corpus. Mr. Justice Sutherland delivered the opinion of the Supreme Court: Chung Fook is a native-born citizen of the United States. Lee Shee, his wife, is an alien Chinese woman, ineligible for naturalization. In 1922 she sought admission to the United States, but was refused and detained at the immigration station, on the ground that she was an alien, afflicted with a dangerous contagious disease [chlonorchiasis]. No question is raised as to her alienage or the effect or character of her disease; but the contention is that nevertheless, she is entitled to admission under the proviso found in § 22 of the Immigration Act of February 5, 1917, c. 29,39 Stat, 891 … . A petition for a writ of habeas corpus was denied by the Federal District Court for the Northern District of California, and upon appeal to the Circuit Court of Appeals, the judgment was affirmed. The pertinent parts of the proviso are: ‘That if the person sending for wife or minor children is naturalized, a wife to whom married or a minor child born subsequent to such husband or father’s naturalization shall be admitted without detention for treatment in hospital.’ The measure of the exemption is plainly stated and, in terms, extends to the wife of a naturalized citizen only. But it is argued that it cannot be supposed that Congress intended to accord to a naturalized citizen

4

A code is a systematic compilation of related enactments, for example, a penal code.

a right and preference beyond that enjoyed by a native-born citizen. The court below thought that the exemption from detention was meant to relate only to a wife who by marriage had acquired her husband’s citizenship, and not to one who, notwithstanding she was married to a citizen, remained an alien under § 1994 Rev. Stats … . We are inclined to agree with this view; but, in any event, the statute plainly relates only to the wife or children of a naturalized citizen and we cannot interpolate the words ‘native-born citizen’ without usurping the legislative function … . The words of the statute being clear, if it unjustly discriminates against the nativeborn citizen, or is cruel and inhuman in its results, as forcefully contended, the remedy lies with Congress and not with the courts. Their duty is simply to enforce the law as it is written, unless clearly unconstitutional. Affirmed.

Courts are not always able to apply statutory law mechanistically or formalistically for a variety of reasons inherent in the legislative process. Even though the drafters of legislation strive to be precise and minutely specific in their phraseology, words are often imperfect symbols to communicate intent, sometimes resulting in vague or ambiguous meanings. Further uncertainties in legislative intent may be superimposed in the course of the legislative process of enactment (e.g., by the amendments added to the original bill). Unforeseen circumstances or unthought-of cases are bound to arise. As Hart observed: Human legislators can have no such knowledge of all the possible combinations of circumstances which the future may bring … . We have not settled, because we have not anticipated, the question which will be raised by the unenvisaged case when it occurs … . When the unenvisaged case does arise, we confront the issues at stake and can then settle the question by choosing between the competing interests in the way which best satisfies us. In doing so we shall have rendered more determinate our initial aim, and shall incidentally have settled a question as to the meaning, for the purposes of this rule, of a general word. (Hart 1961, pp. 125–6)

There are a number of traditional judicial formulas for the resolution of doubts as to the legal effect of statutes, such as the plain meaning rule (‘where the act is clear upon its face, and when standing alone, it is fairly susceptible of but one construction, that construction must be given to it’ [Hamilton v. Rathbone 1899]) or the ascertainment of the legislative intent or purpose in enacting the legislation. Chung Fook is an example of the former approach. The following case excerpt considers legislative intent or purpose.

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United States v. American Trucking Associations, 310 U.S. 534 (1940) Mr. Justice Reed delivered the opinion of the Supreme Court: In the interpretation of statutes, the function of the courts is easily stated. It is to construe the language so as to give effect to the intent of Congress. There is no invariable rule for the discovery of that intention. To take a few words from their context and with them thus isolated to attempt to determine their meaning, certainly would not contribute greatly to the discovery of the purpose of the draftsmen of the statute … . There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. Often these words are sufficient in and of themselves to determine the purpose of the legislation. In such cases we have followed their plain meaning. When that meaning has led to absurd or futile results, however, this Court has looked beyond the words to the purpose of the act. Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one ‘plainly at variance with the policy of the legislation as a whole’ this Court has followed that purpose, rather than the literal words … . The interpretation of the meaning of statutes is exclusively a judicial function. This duty requires one body of public servants, the judges, to construe the meaning of what another body, the legislators, has said. Obviously there is danger that the courts’ conclusion as to legislative purpose will be unconsciously influenced by the judges’ own views or by factors not considered by the enacting body. A lively appreciation of the danger is the best assurance of escape from its threat but hardly justifies an acceptance of a literal interpretation dogma … . Emphasis should be laid, too, upon the necessity for appraisal of the purposes as a whole of Congress in analyzing the meaning of clauses or sections of general acts.

There is a substantial catalogue of judicial maxims5 or canons of statutory construction, formulated by the courts, to resolve interpretive questions. Judicial creativity is especially called for in those cases where the legislative issue to be determined was totally unforeseen by the

5

In addition to the general approaches to statutory construction (plain meaning and legislative intent or purpose), some of the maxims are ‘expressio unius est exclusio alterius,’ ‘ejusdem generis,’ ‘noscitur a sociis,’ and ‘last antecedent.’ These judicial ‘rules of thumb’ are defined and discussed in a number of excellent law review articles (Llewellyn 1950; Murphy 1975). Additionally, courts employ extrinsic guides to statutory interpretation, such as the legislative history (carefully recorded in journals, debates, and reports of congressional committees), in order to ascertain legislative intent.

lawmakers and the judge must assign a legal effect to the statute that it did not originally possess: Interpretation is often spoken of as if it were nothing but the search and the discovery of a meaning which, however obscure and latent, had nonetheless a real and ascertainable preexistence in the legislator’s mind. The process is, indeed, that at times, but it is often something more. (Cardozo 1921)

When judges sometimes, under the guise of statutory interpretation, exceed the proper limits of their authority and go beyond or override the intent of the legislature in order to remake the law according to their own views (to achieve what they regard as a ‘good result’), they draw criticism that the courts are usurping legislative prerogatives and undermining the rule of law. We consider these criticisms of judicial activism in Chapter 83, when the Equal Protection Doctrine is discussed.

REFERENCES Bodenheimer, E., Oakley, J.B., Love, J.C. 1980: An Introduction to the Anglo-American Legal System. St. Paul: West Publishing Co. Cardozo, B.N. 1921: The Nature of the Judicial Process. New Haven, CT: Yale University Press. Chung Fook v. White, 264 U.S. 443 (1924). Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810). Hamilton v. Rathbone, 175 U.S. 414 (1899). Hart, H.L.A. 1961: The Concept of Law. Oxford: Oxford University Press. Hogue, A.R. 1985: Origins of the Common Law. Indianapolis: Liberty Press. Jones, H.W., Kernochan, J.M., Murphy, A.W. 1980: Legal Method. Mineola, NY: Foundation Press. Llewellyn, K.N. 1950. Remarks on the theory of appellate decision and the rules or canons about how statutes are to be construed. Vanderbilt Law Review 3, 395–443. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Murphy, A.W. 1975. Old maxims never die: the ‘plain meaning’ rule and statutory interpretation in the ‘modern’ federal courts. Columbia Law Review 75, 1299–328. Prentis v. Atlantic Coast Line Co., 211 U.S. 210 (1908). Scott, A.W., Kent, R.B. 1967: Cases and Other Materials on Civil Procedure. Boston: Little, Brown & Co. United States v. American Trucking Associations, 310 U.S. 534 (1940). Van Ness v. Pacard, 27 U.S. (2 Pet.) 137 (1829). Walsh, W.F. 1932: A History of Anglo-American Law. 2nd edition. Indianapolis: Bobbs-Merrill.

83 A model of constitutional adjudication: the equal protection doctrine ROBERT LLOYD GOLDSTEIN In Democracy in America, de Tocqueville (1945, p. 97) observed, ‘For equality, their passion is ardent, insatiable, incessant, invincible.’ This passion for equality has found its fullest expression in the Supreme Court’s modern equal protection cases, serving as a major source of judicial innovation and policymaking. The equal protection guarantee has been described as ‘a moral standard wrapped in a legal command which allows the Court in establishing constitutional doctrine to help shape the nation’s thinking about social justice and ethical conduct’ (Note 1969, p. 1159, quoting Paul Freund). In this chapter the ‘cornerstone doctrine of American constitutional law’ (Van Alstyne, Karst, and Gerard 1981, p. 11), the doctrine of judicial review, is briefly outlined: specifically, the power of the U.S. Supreme Court to rule on the constitutionality of acts of Congress or of state legislation, in the normal course of litigation. (See Chapter 82 for a general discussion of the judicial approach to statutory interpretation.) Then, using the Equal Protection Doctrine as a paradigm of constitutional adjudication, its development and elaboration are traced in a series of landmark cases interpreting the Equal Protection Clause of the Fourteenth Amendment.

JUDICIAL REVIEW In the seminal case Marbury v. Madison (1803), Chief Justice John Marshall declared that the Supreme Court of the United States had the authority to review acts of Congress and declare them void if they are in conflict with the Constitution (‘repugnant to the Constitution’). In asserting that, ‘It is emphatically the province and duty of the judicial department to say what the law is,’ Marshall established the supremacy of the judicial branch on questions of legal duty and constitutional interpretation. Some constitutional theorists remain critical of the Court’s supremacy on constitutional questions, because there is no explicit provision in the Constitution

that confers such a power on the Court. Thus, the Court has been accused of acting as a ‘continuing constitutional convention’ (Berger 1977, p. 2), arbitrarily attempting to revise the Constitution ‘under the guise of interpretation’ (Berger 1977, p. 1) and impermissibly usurping legislative prerogatives. Despite such ongoing scholarly controversy, there is little doubt that the Court’s power of judicial review has been ‘legitimized by popular acquiescence, and therefore popular approval, over the course of American history’ (Levy 1967, p. 2). The Court’s role as supreme arbiter of constitutional questions serves our need to have an ‘umpire’ to help resolve with finality the conflicts ‘engendered by our extraordinarily complex system of government’ (Cox 1979, p. 16). Later Supreme Court decisions authorized the Court to review the constitutionality of state court decisions and state legislation as well (Fletcher v. Peck 1810; Martin v. Hunter’s Lessee 1816). It should be re-emphasized that the Court rules on constitutional issues only in the context of particular cases before it in the ordinary course of litigation. It does not tender advisory opinions or proffer constitutional judgments in the abstract. The constitutional policymaking of the Court, involving Equal Protection Doctrine as in other areas, is fashioned on a case-by-case basis.

THE EQUAL PROTECTION DOCTRINE The Fourteenth Amendment to the Constitution provides in relevant part, ‘No State shall make or enforce any law which shall … deny to any person within its jurisdiction the equal protection of the laws.’ The amendment, along with the other post-Civil War amendments, focused on discrimination against ex-slaves. The original understanding of the Equal Protection Clause was rather narrow in scope, in comparison with its later elaboration over the course of more than a century of Supreme Court

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decisions. The framers of the amendment sought to protect certain circumscribed rights ‘pertaining to physical security, freedom of movement, and capacity to contract and own property’ (Perry 1979, pp. 1027–8). Racial discrimination (race-based laws, disadvantaging non-whites, presumably on the basis of their supposed moral inferiority) was the original paradigm for equal protection cases. For example, in Strauder v. West Virginia (1880), the conviction of a black man for murder was reversed. Under the applicable state statute, only white males could serve on the jury. The Court held that the state law, on its face (i.e., by its explicit terms), was discriminatory toward blacks in violation of the Equal Protection Clause. In Yick Wo v. Hopkins (1886), a San Francisco ordinance required that all hand laundries in wooden buildings be licensed. Permits were denied to 200 Chinese applicants, but were granted to virtually all non-Chinese applicants who applied. The law, while neutral and impartial on its face (i.e., by its explicit terms, in contrast to Strauder), was being applied in a discriminatory fashion (‘with an evil eye and an uneven hand’) and therefore was held to be violative of the Equal Protection Clause. The modern Equal Protection Doctrine was largely shaped by the Warren Court,1 as a means of protecting and securing a broad range of individual rights against state encroachment. The Court reviews statutes (federal and state) according to a so-called twotiered model of equal protection judicial review. These two standards can be defined as follows: 1 The Mere Rationality Standard: A statute passes muster under this standard of review and is upheld as constitutional if the statute has some conceivable rational relationship to a legitimate (non-arbitrary) legislative objective and does not implicate either a ‘suspect classification’ or a ‘fundamental interest.’ A suspect classification is one that intentionally discriminates against certain minorities that have historically been discriminated against (the paradigmatic groups are race and national origin).2 This has been broadened further to refer to a legislative intent to discriminate 1

Lewis (1980) did not exaggerate when he described the Warren Court’s role in the following terms: ‘A revolution made by judges … . The Warren Court set the United States on a new path in race relations, wiping out the legal basis for discrimination.’ (Lewis 1980, p. 1). 2 The ‘traditional indicia of suspectness,’ in essence, are that the minority group has historically been discriminated against and additionally has been placed in a position of political powerlessness (Note 1974). The rationale for strict scrutiny was set forth by Justice Stone: ‘prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry’ (United States v. Carolene Products 1938). One further indicium of ‘suspectness’ relied on by the Court in certain cases to establish that a given classification falls into this category is ‘immutability’ (i.e., ‘the trait is beyond the power of the individual to change it’) (Emanuel 1991, p. 314).

against any racial or ethnic group (whether or not previously discriminated against). A classification implicating ‘fundamental interests’ relates to specific kinds of rights (e.g., voting, interstate migration, access to the courts). Once a statute implicates either an intentionally discriminatory suspect classification or a fundamental interest, the required standard of review becomes more probing and demanding, that is, ‘strict scrutiny.’ 2 The Strict Scrutiny Standard: Under the more exacting strict scrutiny standard of review, the statute, in order to be upheld as constitutional, must be shown to be necessary to promote a compelling governmental interest (i.e., the interest to be promoted is very weighty and cannot be achieved by less discriminatory means). As noted above, the strict scrutiny standard is required only when a legislative classification is designed to operate to the disadvantage of a racial or ethnic group, or impermissibly interferes with or burdens a fundamental interest.

Application of the standards of review MERE RATIONALITY An example of the first standard of judicial review is presented by Massachusetts Board of Retirement v. Murgia (1976), which involved a state law requiring mandatory retirement of police officers at age fifty years. In Murgia, strict scrutiny review was not required because old age is not a suspect class and the right to governmental employment is not a fundamental interest. Under a mere rationality standard of review, the constitutionality of the statute was upheld (i.e., it did not violate equal protection) because it was rationally related to a legitimate legislative objective (to compel police to retire at age fifty in order to assure officers will be physically fit).3 Although it might be argued (and was pointed out in a dissent) that older employees as a class have been subjected to frequent discrimination, the Court has continued to decline to treat age as a suspect class. In Gregory v. Ashcroft (1991), the Court again applied the mere rationality standard of review and upheld the constitutionality of a statute requiring state court judges to retire upon reaching the age of seventy. Under the mere rationality standard, the Court customarily shows great deference to the legislature. Of particular interest to forensic psychiatrists, the Court applied the mere rationality standard in Baxstrom v. Herold (1966), holding that a prisoner civilly committed at the end of his penal term was denied equal protection because he was deprived of a jury trial, which was generally available to all others civilly committed. He was further 3 The fact that the statute was overinclusive and perhaps not the best means to achieve the legislative objective does not serve to invalidate its constitutionality.

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denied equal protection by virtue of his commitment to a special institution for ‘dangerously mentally ill’ persons, and without a judicial determination of his dangerousness, which was generally afforded all others so committed. The Court noted that, ‘There is no conceivable basis for distinguishing the commitment of a person who is nearing the end of a penal term from all other civil commitments’ (Baxstrom v. Herold 1966). The Baxstrom principle (that the state cannot withhold the procedural protections or substantive requirements for commitment from some that are generally available to all others) has been extended to commitment following an insanity acquittal (Bolton v. Harris 1968) and to commitment in lieu of sentence following conviction as a sex offender (Humphrey v. Cady 1972).

STRICT SCRUTINY Perhaps the most famous case that embodied the central guiding principle that any law ‘predicated on the view that one person is by virtue of race inferior to another offends equal protection’ was Brown v. Board of Education (1954) (Perry 1979, p. 1030). Viewing racial classifications as invidious and requiring extraordinary justification, Brown condemned racial segregation in the schools on the basis that it ‘deprives children of minorities of equal educational opportunities’ (Brown 1954, p. 493). Utilizing findings of psychologists and educators that segregated facilities engendered a sense of inferiority in black students, which adversely affected their capacity to perform successfully, the Court concluded that ‘separate educational facilities are inherently unequal’ and a denial of the equal protection of the laws. A number of subsequent decisions have attempted to implement the principles asserted in Brown ‘with all deliberate speed’ in the area of public education4,5 (Brown 1955 [known as Brown II]; Swann v. Charlotte-Mecklenburg Board of Education 1971). Once the Court elects to apply the strict scrutiny standard, it virtually assures that the statute will be struck down as unconstitutional. The last time such an intentionally discriminatory racial or ethnic statute survived strict scrutiny was Korematsu v. United States (1944), which involved the forced internment of West Coast Japanese after Pearl Harbor, based on the perceived compelling need to avert espionage and sabotage. These extreme wartime restrictions are generally regarded, in hindsight, as a deplorable betrayal of basic constitutional protections (Rostow 1945). Although the full scope of the Supreme 4

Brown is also the prototype for a series of desegregation cases involving public transportation, housing, parks, golf courses, beaches, etc. (Gunther 1991), all based on a finding of invidious discriminatory purpose, which in turn triggered a strict scrutiny standard of review. 5 Recall from Chapter 82, that the Court, in response to public policy considerations and changing social conditions, reserves the right to overrule itself. Here, the Court overruled its decision in Plessy v. Ferguson (1896), rejecting its own ‘separate but equal’ doctrine.

Court’s constitutional policymaking in the area of desegregation (including the remedy of forced busing as a judicially ordered desegregation tool) is well beyond our purview in this chapter, it should be emphasized that: The lesson of great decisions of the Supreme Court and the lesson of contemporary history have been the same for at least a generation: discrimination on the basis of race is illegal, unconstitutional, inherently wrong, and destructive of democratic society. (Perry 1979, p. 1046, quoting Alexander Bickel)

Affirmative action (benign discrimination, reverse discrimination) Preferential treatment, whether in education, employment, business opportunities, or other areas, which is designed to benefit non-whites perceived as disadvantaged because of past racial discrimination, has generated a firestorm of controversy and litigation. The use of affirmative action programs, to attempt to redress the enduring effects of the historical injustice of institutionalized racism in the United States, may itself serve to undermine the fundamental principle of racial equality in our society. Perry (1979) outlines some of the cost and potential pitfalls of affirmative action in the following terms: 1 Race-conscious affirmative action programs may serve to reinforce unfortunate habits of perceiving and dealing with people in terms of their membership in a racial or ethnic group, rather than as individuals. 2 Affirmative action may lead to unfair stigmatizing of a racial group that benefits from the program, stamping the beneficiaries as inferior to other groups, whose members must compete without the assistance of preferential treatment. 3 To the extent that affirmative action disadvantages whites, it may foment racial prejudice and resentment, encourage a backlash of radical racial politics, and set back the cause of racial equality. The complexities of the Supreme Court’s responses to challenges to affirmative action programs under the Equal Protection Clause at times may seem incomprehensible and confusing, even to lawyers who follow the Court’s constitutional policymaking regarding this issue. An adequate discussion of this area of the Court’s workload would itself require a full-length treatise. Suffice it to say that a few general principles have emerged, when the Court attempts to resolve conflicts between the Equal Protection Doctrine and efforts to reverse the effects of past racial discrimination: 1 In general, any race-based classification, even when motivated by affirmative action concerns, will be accorded a presumption of unconstitutionality (Emanuel 1991). 2 All race-conscious measures, regardless of their remedial intent, will be subjected to the ‘strict scrutiny’

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standard of review. For example, a quota scheme for preferential admissions to medical school (the reserving of a fixed number of seats for minorities) constitutes a clear-cut denial of equal protection (University of California Regents v. Bakke 1978). Non-quota schemes, in conjunction with findings of a specific pattern of past discrimination, and congressional affirmative action measures (as opposed to state measures) would not necessarily fail the strict scrutiny test or might be reviewed under a less demanding standard (in the case of congressionally established racial preferences), the so-called ‘intermediate-level’ review6 (Richmond v. J. A. Croson Co. 1989; Metro Broadcasting, Inc., v. FCC 1990). Race-based affirmative action cases have come before the Court in a variety of special contexts, in addition to preferential university admissions: voting rights (United Jewish Organizations v. Carey 1977), minority set-asides, hiring, layoffs and promotions (Wygant v. Jackson Board of Education 1986; Local 28 of the Sheet Metal Workers’ International Association v. EEOC 1986), and others.

Classifications based on sex In Frontiero v. Richardson (1973), the Court held that classifications based on sex ‘like classifications based upon race, alienage, or national origin … [are] inherently suspect and must therefore be subjected to strict judicial scrutiny.’ The Court held that the Equal Protection Clause was offended by a statute that limited a woman air force officer’s right to dependency benefits for her husband (requiring proof that her spouse was actually dependent on her for over half of his support), whereas male members of the armed forces were allowed to claim wives as dependents without such proof. In Craig v. Boren (1976), the Court retreated from the more exacting ‘strict scrutiny’ standard and settled on the ‘intermediate scrutiny’ level of review for all future sexbased classifications.7 In Craig, a statute that denied beer sales to males under age twenty-one and females under age eighteen was struck down as unconstitutional, because, although it promoted an important government objective (traffic safety), the state was unable to show a substantial relation between the sex-based classification and the achievement of its objective. (The Court rejected the state’s statistical evidence of a great risk of arrest for drunken driving in eighteen- to twenty-year-old males compared to females as insufficient.)

6

Under the intermediate level of scrutiny, classifications ‘must serve important governmental objectives and must be substantially related to the achievement of those objectives’ (Craig v. Boren 1976). 7 The only truly suspect classifications are race and national origin. Sex, alienage, and illegitimacy are treated as ‘semi-suspect’ classifications (‘quasisuspect’).

In Mississippi University for Women v. Hogan (1982), the Court held that a state university may not constitutionally bar men from its nursing school. Exceedingly persuasive justification would be required for such a gender-based classification, but the state failed to meet its burden by arguing that its single-sex admissions policy attempted to compensate for past discrimination against women. The Court rejected this contention and held that the policy perpetuated ‘the stereotyped view of nursing as an exclusively woman’s job.’ In Hishon v. King and Spalding (1984), the Court held that the petitioner had stated a claim cognizable under Title VII of the 1964 Civil Rights Act and was entitled to her day in court to prove allegations that she was denied a partnership in a law firm because of gender discrimination. In Califano v. Webster (1977), the Court held that Congress could ‘discriminate’ between men and women to compensate the latter for past discrimination. In order to redress ‘our society’s longstanding disparate treatment of women,’ the Court upheld a Social Security Act scheme entitling women to greater benefits than men. (In view of the fact that, generally, women’s past earnings were lower than men’s as a consequence of past discrimination, women were allowed to exclude three more lower-earning years to calculate their ‘average monthly wage’ than could male workers.)

BUSH v. GORE Even this concise overview of the United States Supreme Court’s modern equal protection cases would be incomplete without reference to the landmark case that determined the final outcome of the 2000 Presidential election, i.e., Bush v. Gore (531 U.S. 98). Although the Supreme Court’s decisive involvement in the electoral process was highly controversial at the time (and even, according to some legal commentators, may have served to tarnish the High Court’s image), a majority of the Justices felt that the Court had no alternative but to meet its responsibility in deciding the case: While none are more conscious of the vital limits on judicial authority than are the members of the United States Supreme Court – and while none stand more in admiration of the Federal Constitution’s design to leave the selection of the President to the people, through their legislatures, and to the political sphere – when contending parties invoke the process of the courts with respect to a state’s results in a Presidential election, it becomes the Supreme Court’s unsought responsibility to resolve the federal and constitutional issues which the judicial system has been forced to confront. (531 U.S. 98)

Basing its opinion on the Equal Protection Doctrine, the Court, on December 12, 2000, reversed the Florida

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Supreme Court’s judgment ordering a recount to proceed and, in a per curiam opinion expressing the view of Rehnquist, Ch. J., and O’Connor, Scalia, Kennedy, and Thomas, J.J., held that there was a violation of the equal protection clause of the Constitution’s Fourteenth Amendment with respect to the Florida Supreme Court’s judgment – and there was no recount procedure in place, under that judgment, that comported with minimal standards required under the Fourteenth Amendment – for regardless of whether the Florida Supreme Court had the authority, under the State’s legislative scheme for resolving election disputes, to define what a legal vote was and to mandate a manual recount implementing that decision, the court’s recount mechanism did not satisfy the minimum requirements for the non-arbitrary treatment of voters that were necessary to secure the fundamental right to vote as the state’s legislature had prescribed. The Court went on to say that: When a state’s legislature … vests the right to vote for Presidential electors in the state’s people, one source of the fundamental nature of the right to vote as the legislature has prescribed lies in the equal weight accorded to each vote and the equal dignity owed to each voter; pursuant to the equal protection clause of the Constitution’s Fourteenth Amendment, the right to vote is protected in more than the initial allocation of the franchise, for (1) equal protection applies as well to the manner of the exercise of the franchise, and (2) the state, having once granted the right to vote on equal terms, may not, by later arbitrary and disparate treatment, value one person’s vote over that of another; the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise. (531 U.S. 98)

CONCLUSIONS Limitations of space enjoin us from further consideration of the seemingly endless reach of constitutional adjudication invoking the Equal Protection Clause over the past generation. The reapportionment cases (Baker v. Carr 1962; Reynolds v. Sims 1964) – which led to the development of the famous ‘one person, one vote’ principle – classifications based on alienage, illegitimacy, mental retardation, and mental illness,8 and those burdening fundamental rights, have comprised some of the court’s 8 Psychiatrists might be especially interested in City of Cleburne v. Cleburne Living Center (1985), which refused to treat mental retardation as a ‘quasisuspect’ classification. Mental illness has never been treated as a suspect class by the Court (see e.g., Baxstrom v. Herold 1966; Jackson v. Indiana 1972; Note 1974).

most important work during this period. Judicial activists using the Equal Protection Clause ‘as a vehicle for expanding the use of constitutional adjudication as an instrument of reform … [brought about] a revolution in constitutional law’ (Cox 1979, pp. 57, 72). In giving meaning to the phrase ‘equal protection of the law,’ the Court has demonstrated that it ‘could be a major instrument of change, that it could establish new goals for the nation, articulate a new moral sense for the people and, in effect, reorganize the political structure of the country itself ’ (Friedman 1980, p. vii).

REFERENCES Baker v. Carr, 369 U.S. 186 (1962). Baxstrom v. Herold, 383 U.S. 107 (1966). Berger, R. 1977: Government by Judiciary: The Transformation of the Fourteenth Amendment. Cambridge, MA: Harvard University Press. Bolton v. Harris, 395 F.2d 642 (1968). Brown v. Board of Education, 347 U.S. 483 (1954). Brown v. Board of Education, 349 U.S. 294 (1955). [“Brown II”]. Bush v. Gore, 531 U.S. 98 (2000). Califano v. Webster, 430 U.S. 313 (1977). City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985). Cox, A. 1979: The Role of the Supreme Court in American Government. New York: Oxford University Press. Craig v. Boren, 429 U.S. 190 (1976). de Tocqueville, A. 1945: Democracy in America. Volume 2. New York: Alfred A. Knopf. Emanuel, S. 1991: Constitutional Law. Larchmont: Emanuel Law Outlines. Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810). Friedman, L. 1980: The Warren Court: an editorial preface. In Sayler, R.H., Boyer, B.B., Gooding, R.E., Jr. (eds), The Warren Court: A Critical Analysis. New York: Chelsea House, vii–ix. Frontiero v. Richardson, 411 U.S. 677 (1973). Gregory v. Ashcroft, 59 U.S.L.W. 4714 (June 20, 1991). Gunther, G. 1991: Cases and Materials on Constitutional Law. 12th edition. Mineola: Foundation Press. Hishon v. King and Spalding, 467 U.S. 69 (1984). Humphrey v. Cady, 405 U.S. (1972). Jackson v. Indiana, 406 U.S. 715 (1972). Korematsu v. United States, 323 U.S. 214 (1944). Levy, L. 1967: Judicial Review and the Supreme Court. New York: Harper and Row. Lewis, A. 1980: Earl Warren. In The Warren Court: A Critical Analysis. In Sayler, R.H., Boyer, B.B., Gooding, R.E., Jr. (eds), The Warren Court: A Critical Analysis. New York: Chelsea House, 1–31. Local 28 of the Sheet Metal Workers’ International Association v. EEOC, 478 U.S. 421 (1986).

A model of constitutional adjudication: the equal protection doctrine 779 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816). Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976). Metro Broadcasting, Inc., v. FCC, 110 S. Ct. 2997 (1990). Mississippi University for Women v. Hogan, 458 U.S. 718 (1982). Note. 1969. Developments in the law – equal protection. Harvard Law Review 82, 1065–192. Note. 1974. Mental illness: a suspect classification? Yale Law Journal 83, 1237–70. Perry, M.J. 1979. Modern equal protection: a conceptualization and appraisal. Columbia Law Review 79, 1023–84. Plessy v. Ferguson, 163 U.S. 537 (1896). Reynolds v. Sims, 377 U.S 533 (1964).

Richmond v. J.A. Croson Co., 488 U.S. 469 (1989). Rostow, W. 1945. The Japanese American cases – a disaster. Yale Law Journal 54, 489–534. Strauder v. West Virginia, 100 U.S. 303 (1880). Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971). United Jewish Organizations v. Carey, 430 U.S. 144 (1977). United States v. Carolene Products Co., 304 U.S. 144 (1938). University of California Regents v. Bakke, 438 U.S. 265 (1978). Van Alstyne, A., Karst, K., Gerard, J. 1981: Sum and Substance of Constitutional Law. 3rd edition. Los Angeles: Center for Creative Educational Services. Wygant v. Jackson Board of Education, 476 U.S. 267 (1986). Yick Wo v. Hopkins, 118 U.S. 356 (1886).

84 An introduction to tort law DANIEL W. SHUMAN AND MICHAEL HEINLEN

INTRODUCTION Over the past several years, psychiatrists have increasingly appeared as parties in legal disputes ranging from criminal actions, to contract claims and malpractice suits. Indeed, psychiatrists today face a broad range of potential liabilities as a result of their professional activities. Consider the following scenario. A former patient has accused her psychiatrist of engaging in sexual activity with her during the course of treatment. As a result, the psychiatrist faces criminal sexual assault charges, he is being sued by the former patient for battery and malpractice, the hospital with which he had been affiliated has terminated his privileges, and his insurance carrier says it will not bear the costs of his defense nor pay any damages assessed against him at trial. This example (which, unfortunately, is not unusual) illustrates the three types of legal dispute a psychiatrist is most likely to encounter during his/her professional life: criminal, contract, and tort. Criminal law involves the state asserting its interest in maintaining public order. It does not seek to resolve private disputes; rather, its goals are to punish or reform offenders and to deter crime (Holmes 1881, pp. 41–51). In a criminal trial, the prosecutor, acting as the state’s agent, brings charges against a defendant and must prove beyond a reasonable doubt (i.e., with 90–95 per cent certainty) that the defendant committed the crime. At the end of the trial, the fact finder, often a jury, decides whether the defendant is guilty or innocent. In the present example, the state’s interest is in preventing sexual assault. In most jurisdictions, the prosecutor in such a case must convince a jury that the sex acts occurred and were not consensual (Simon 1998a, pp. 202–3). That is, the state must prove that the psychiatrist coerced his patient into engaging in sexual activity with him. The use of drugs, hypnotism, or threats of harm to induce compliance can be presented as evidence that the acts were involuntary, and coercion is assumed if the patient was a minor or incompetent. Several states go further and ban any sexual contact between psychiatrists and their patients. In those

states, the prosecutor need only prove that the sexual conduct occurred and that it was intentional. Civil law, as opposed to criminal law, comprises contract law and tort law, and has evolved to settle disputes. Contract law comes into play when parties to an agreement disagree about the terms of that agreement (Farnsworth 1990, pp. 1–24). Typically in a contract suit, one party believes the other has failed to fulfill its obligations under the agreement. The aggrieved party, the plaintiff, sues the other, the defendant, for breach of contract. Each presents its evidence and arguments at trial, and the fact finder finds for either the plaintiff or the defendant. If it finds for the plaintiff, the defendant can be forced to comply with the terms of the contract or compelled to pay money damages to the plaintiff for losses incurred as a result of the breach. Our example presents two possible contractual disputes. First, the psychiatrist might bring an action against the hospital for terminating his privileges. Second, in the event he is found liable in the malpractice suit, he may claim that his insurance policy binds the insurer to pay any damages assessed against him. In either case, the result will depend on an analysis and interpretation of the terms of the pertinent contract. Tort law seeks to resolve disputes over attribution of blame and responsibility for harm (Prosser 1971, pp. 1–7). Like criminal law, it comes into play when someone’s actions violate social norms. Unlike criminal law, however, in tort law the injured parties, not the state, may choose to sue those who injured them. Thus, a plaintiff brings an action against a defendant, claiming that the defendant harmed him/her. At trial, the fact finder must decide by a preponderance of the evidence (i.e., greater than 50 per cent certainty) whether the defendant is liable for the harm. If the defendant is found liable, the fact finder can assess damages to be paid to the plaintiff. In the example, battery and psychiatric malpractice are tort claims. To prevail on her battery claim, the patient, like the prosecutor in the criminal trial, will need to convince the fact finder that the psychiatrist coerced her into engaging in the sexual activity. Unlike the prosecutor, however, she

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need only prove this by a preponderance of the evidence, not beyond a reasonable doubt. Because this is a civil action brought by a plaintiff, double jeopardy is not an issue. The psychiatrist can be found guilty at the criminal trial and liable in the civil trial (or, as in the O.J. Simpson trials, he can be found innocent of the crime, but liable for the tort). Finally, the patient can win in the tort action even if she consented to the sexual conduct. If she can prove that it falls below the requisite standard of care for a psychiatrist to have sex with a patient and that the sexual activity aggravated her underlying condition, the fact finder can find the psychiatrist liable for malpractice. During the past thirty years the chances that a psychiatrist will be sued have increased dramatically. In the 1970s, one of every forty-five psychiatrists was sued per year. During the 1980s the chance of being sued in any single year had increased to one in twenty-five, and by 1998 those odds had jumped to about one in twelve (Simon 1998b, p. 117). The Professional Liability Insurance Program, sponsored by the American Psychiatric Association, cites managed care, sicker patients, media scrutiny of recovered memory and ritual satanic abuse cases, a widening range of practice and specialization areas, and failed tort reform initiatives as reasons for the burgeoning number of suits (Benefacts 1996). Additionally, courts have made it possible for more plaintiffs to recover for their injuries by recognizing new causes action. The underlying principles of tort law, however, have not changed, and now, more than ever, it is essential for psychiatrists to be familiar with those principles.

WHY HAVE TORT LAW? Before tort law as we know it now existed, private vengeance was a sacred duty. If your neighbor mistook your father for a wild boar and shot him with an arrow, you did not bring a wrongful death action. Rather, you and your family undertook a moral obligation to kill a member of the offender’s family. This was the blood feud. Though it came to be regulated – the types of wrongs that could be expiated by blood were ultimately limited, as were the days and locations on which revenge could be exacted – private wrongs were settled privately throughout most of the middle ages (Bloch 1961, pp. 125–30). Since that time, tort law has evolved as an alternative means of dispute resolution.

Justifications for tort law In common law jurisdictions, such as England and the United States, tort law has developed into a system that assigns responsibility for harm to wrongdoers and compensates injured parties for their losses. It is a judgemade collection of rules to impose liability for damages. Theorists justify tort law primarily on four grounds: it

maintains public order; it alleviates the hurt suffered by victims of wrongdoing; it compensates those victims for their losses; and it deters harmful behavior (Prosser 1971, pp. 1–7; Shuman 1994, pp. 39–48). As to the first, one of the reasons tort law originally developed was to constrain the mayhem inherent in a legal system based on the blood feud. Today, it remains a tool for channeling angry conflicts into (relatively) peaceful confrontations. Further, insofar as it imposes moral and financial responsibility for harm on wrongdoers, tort law helps appease the need for vengeance satisfied by the blood feud. On a more tangible level, the award of damages in tort judgments is justified on the ground that they restore victims to their pre-harm state. For example, if you wreck my car, I am entitled to an award of damages to cover both the cost of repairing or replacing the car and any expenses and losses incurred as a result of the accident. Thus, tort law compensates people who have been injured by unsafe behavior. Forcing wrongdoers to pay for their mistakes may also deter harmful behavior. Indeed, these are the two most common justifications for tort law. Simply put, tort law emphasizes restitution and deterrence. It compensates people harmed as a result of unsafe behavior that society wants to prevent. There are, however, significant problems with these justifications. On the most basic level is the absence of proof that fear of potential tort liability alters people’s behavior (Shuman 1993, pp. 165–6). Even if such a connection could be established, liability insurance and government compensation programs, along with the time and expense of litigation, minimize the deterrent effects of tort law. Recent studies show that 90 per cent of accident victims who recover for their losses are paid by third-party insurers or compensation plans, not through tort actions. In addition, the high emotional and monetary cost of taking a case to trial discourages many victims from making claims (Hensler et al. 1991, pp. 107–8, 175). In practice, only insured or wealthy wrongdoers who have caused serious, that is, costly, injuries get sued. As a result, much harmful behavior escapes the tort system. The time, expense, and emotional upheaval of litigation also make clear that tort law is not the most effective means of compensating injury victims. Indeed, the costs of obtaining tort compensation are higher than for other compensation systems. Thus, tort law cannot quickly and efficiently be justified by its ability to provide victims with money to restore them to their pre-accident status (Shuman 1994, p. 48). A further problem with justifying tort law on the ground that it restores plaintiffs to their pre-accident status is that many damage awards include sums to cover losses realized due to pain and suffering. Unlike tangible losses, pain and suffering cannot readily be valued in monetary terms. Though it is relatively easy to compute the money needed to replace a car or to pay hospital expenses, how does one appraise the value of pain endured as a result of a car accident? Simply put, ‘tort damages cannot “buy

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out” the pain in the same way they can “buy out” the hospital bill’ (Shuman 1994, p. 46). Insofar as money damages literally cannot restore victims to a pain-free state, an alternative theory has been offered to justify them. Accordingly, proponents argue that damages for pain and suffering serve as offsetting substitute pleasures (Ingber 1985, p. 784). Even though someone might suffer from chronic pain, that pain can be offset, for example, by the ability to buy a fancy house or to relax on the beach in Hawaii. Unfortunately, there is no empirical evidence to support the contention that damage awards can, in fact, mitigate a victim’s pain (Shuman 1994, p.47 n. 37). There are, thus, numerous unsettled issues regarding the policies and rationales underlying tort law. Despite such theoretical debates, it remains, without question, a body of law that functions in practice to make people who engage in unsafe conduct subject to liability to their victims when that conduct results in injury.

VARIETIES OF TORT Historically, tort law has been concerned with two types of injury-causing behavior: negligent, and intentional. During the twentieth century, most tort actions have been based on negligence. The law holds people responsible when their careless behavior harms others. Tort law also compensates victims of intentionally bad acts. Someone who commits assault and battery may not only have to answer to the state in a criminal trial, but he or she can be sued by the victim in a civil trial and be the subject of an award of damages. Although tort claims against psychiatrists are limited to claims of negligent and intentional tort actions, there is a third variety of tort, strict liability, which is confined almost solely to cases involving the marketing and distribution of dangerous products. This is an unusual tort because a defendant can be found liable even without a showing of fault. In a strict products liability action, the plaintiff need only prove that a seller or manufacturer of dangerously defective goods placed those goods into the stream of commerce and that those goods caused harm (Restatement (Second) of Torts 1965, § 402A). There is no requirement that the defendant intended to market defective goods, or even that she or he carelessly marketed them. The only issue is whether they were, in fact, dangerous or defective goods that caused harm.

Negligent torts A plaintiff must prove four essential elements to prevail in a tort suit based on negligence: duty, breach, cause, and harm (Prosser 1971, pp. 143–4). That is, he or she must show that the alleged wrongdoer owed him/her a duty of care, that the defendant breached that duty, and that the breach resulted in (caused) harm. In analyzing negligence

cases, the general standard by which the defendant’s duty is measured is reasonable care under the circumstances (Terry 1915). The issue is whether a reasonable person in the defendant’s position would have acted as the defendant did. As an example, a store owner has a duty to the public to maintain the sidewalk in front of his store in a safe, passable condition. This duty arises from the fact that whenever someone engages in behavior that will foreseeably have an impact on other people, such as exploiting a public sidewalk for the purpose of attracting customers, he or she has a duty to behave in a manner that will not harm those people. If the store owner allows the concrete on the walk to become so worn and cracked that people might trip when passing by, he/she risks a negligence action in the event someone falls and hurts themselves. By neglecting to maintain the walk, he or she breached his/her duty, and any injury caused by that breach is compensable in tort. Note that a plaintiff need not prove intent in a negligence action. It is irrelevant that the store owner did not mean to hurt anyone. The only issue is whether he or she failed to use reasonable care in fulfilling their duty. The defendant in such a case can offer a variety of responses. For instance, they can deny that they breached their duty, arguing that it would have been unreasonable to expect them to maintain the walk in better condition than they did. They can dispute causation, arguing that the plaintiff ’s injuries occurred because someone pushed them, not because they tripped on the defective sidewalk. Or the defendant can question the harm, for instance, by claiming that no damage was done. If the plaintiff waited too long to file the lawsuit, the shopkeeper can even bar the claim on procedural grounds. Every state has a statute of limitations that requires tort suits to be brought within a specified period after discovery or occurrence of the allegedly negligent act.

PSYCHIATRIC MALPRACTICE Medical malpractice refers to negligent torts committed by healthcare professionals acting in the course of their professional duties. Thus, when a psychiatrist’s unreasonable care causes harm to a patient, or to a third party to whom a duty is owed, he or she may be liable for malpractice. In the context of malpractice claims, the duty element of the tort is normally established by showing the existence of a doctor–patient relationship (Simon 1998a, pp. 21–3; Rigelhaupt 1982). As soon as a psychiatrist agrees, either explicitly or implicitly, to diagnose or treat a patient, duties arise. Whether such an agreement was made is a fact question, and when this is in dispute, the court must decide. Generally, however, it is not difficult for plaintiffs to prove the element of duty. Giving advice to friends and neighbors, providing sample medications, or prescribing medication during the course of independent medical evaluations can give rise to a doctor–patient

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relationship. The psychiatrist’s duty to the patient then remains until the doctor–patient relationship is terminated, either by a unilateral act of the patient, mutual agreement that services are no longer required, or by a unilateral act of the psychiatrist (in the latter case, termination should be accompanied by reasonable notice to the patient and assistance in providing a new therapist). Having established the doctor–patient relationship, the psychiatrist is obligated to exercise reasonable care in his/her treatment. Failure to exercise that standard of care is a breach of the duty to the patient. This does not mean the treatment must be perfect or extraordinary; rather, it means that the psychiatrist must ‘possess and exercise the degree and learning ordinarily possessed and exercised, under similar circumstances, by the members of his profession in good standing, and to use ordinary and reasonable care and diligence, and his best judgment, in the application of his skill to the case’ (Corpus Juris Secundum 1987, p. 70: Physicians and Surgeons § 64a). The issue of whether a defendant exercised the requisite standard of care in any given case is a fact issue to be determined by the fact finder based on the testimony of expert witnesses. Indeed, this is where most of the action in malpractice suits lies. Courts have recently found that psychiatrists also owe duties to third parties in two contexts. When, for example, a psychiatrist recognizes, or reasonably should recognize, that a patient poses an imminent threat of serious harm to an identifiable third party, in many states the psychiatrist has a duty to protect that individual from injury. Failure to warn the intended victim or notify the police may be a breach of the duty (Simon 1998a, pp. 165–7). The second situation in which psychiatrists have been found to owe duties to third parties arises in the context of cases involving recovered memory of sexual abuse and ritual satanic abuse. In many states, therapists have been found to owe a duty to individuals who could potentially be misidentified as playing roles in such abuse. Thus, if, as a result of treatment, the patient falsely accuses someone of abuse, the psychiatrist has breached his/her duty to that individual and may be liable for damages (Kosmund Murray 1995; Simon 1998b, pp. 132–6). Once duty and breach have been established, a plaintiff must still prove that the breach caused injury. Tort law divides the causation element into two categories: causein-fact, and proximate cause. Cause-in-fact analysis considers whether the injury would have happened regardless of the psychiatrist’s bad act. This is often expressed as the ‘but for’ analysis, and it asks, ‘But for the wrongful quality of the therapist’s conduct, would the plaintiff have suffered the same harm?’ (Robertson 1997). If the injury would have occurred even without the wrongful conduct, the causation requirement is not satisfied. However, if it is found to have been a cause-in-fact of the injury, the next question becomes whether it was also the proximate, or legal cause. Here, the issue turns on foreseeability. The psychiatrist will not be liable for every consequence of

his/her actions, only those with a reasonably close, proximate, nexus to the wrongful act. The standard used in making this determination is reasonable foreseeability. When a reasonable person would have foreseen the risk of harm, the proximate cause element is met (Kelley 1991). If the plaintiff can prove that he or she suffered harm as the result of a breach of the defendant’s duty to him/ her, he or she is entitled to an award of compensatory damages intended to restore him/her to the position he/ she would have been if there had been no negligent act. In extreme cases, involving willful, malicious, or reckless behavior, punitive damages may also be awarded. Negligence alone will not merit punitive damages, which are intended to punish the defendant, rather than to compensate the victim (Prosser 1971, pp. 9–14, 313–23).

MAJOR AREAS OF LIABILITY FOR PSYCHIATRIC MALPRACTICE: NEGLIGENT TREATMENT The law does not demand successful treatment, it merely requires that a psychiatrist perform in a manner consistent with the way an average reasonable psychiatrist would perform under similar circumstances. Although this is a rather nebulous standard, courts do consider a number of specific practices as essential elements of the standard of care psychiatrists owe their patients. These include the duty to obtain a complete clinical history, to disclose adequate information to gain informed consent for treatment, to document all decisions made during the course of treatment, to supervise the patient’s progress – both during and after treatment – and to monitor reactions to medication. Failure to comply with any of these duties can subject a psychiatrist to liability if his/her patient suffers harm as result of treatment (Sarno 1981; Simon 1998a, pp. 87–8).

MAJOR AREAS OF LIABILITY FOR PSYCHIATRIC MALPRACTICE: CONFIDENTIALITY Once the doctor–patient relationship has been established, a psychiatrist owes his or her patient a duty to maintain the privacy of all confidential communications between them (Zelin 1986; Shuman and Weiner 1987; Simon 1998a, pp. 41–4, 53–5). The issue of confidentiality actually involves two related concepts: confidentiality, per se, and testimonial privilege. The duty of confidentiality is an ethical obligation that protects a patient’s privacy by preventing disclosure of confidential information to third parties. Testimonial privilege refers to the patient’s right to prevent a physician from disclosing information in a judicial proceeding. Testimonial privilege is most often established by statute or court rule, and it purports to resolve the ethical dilemmas on the part of a physician faced with conflicting duties, one to his/her patient to maintain confidentiality, and another to a court to tell the truth. Statutes or court rules resolve the dilemma by giving the patient the right to prevent the physician from

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testifying. In effect, they codify a public policy judgment that it is more important to safeguard patient privacy generally than to ascertain the truth in specific trial situations. Absent an exemption, the psychiatrist who breaches his or her duty to maintain patient confidentiality risks a malpractice action. There are, however, several exemptions; the duty of confidentiality is not absolute. In certain circumstances it may be both legally and ethically permissible, even necessary, to divulge patient confidences. A patient, for example, may waive the right to confidentiality by requesting that medical records be sent to potential employers or insurers. Similarly, there is no right to confidentiality when a patient consents to be examined at the request of a third party, as for example in a disability hearing or litigation. There are also a number of contexts in which a psychiatrist may divulge patient information without the patient’s consent. For instance, if the psychiatrist determines that a patient poses a risk of committing violence to self or others, and the violence can only be prevented by intervention, the psychiatrist may intervene. Likewise, if the patient’s judgment is markedly impaired and other people’s lives depend on his or her sound judgment, as for example, an airline pilot or police officer, the psychiatrist may choose to divulge that information. In such cases, disclosure is a matter of choice, the psychiatrist has the option of maintaining the patient’s confidence or disclosing the information. In other instances, there is no choice. Statutes define certain situations which mandate disclosure. Though these vary from state to state, statutory disclosure requirements typically apply in the following scenarios: when there is evidence of child abuse; on the initiation of involuntary hospitalization; when an identifiable third party has been threatened; where there is evidence of a past treasonous act; where there is intention to commit a future crime. There are also exceptions to the testimonial privilege. For instance, it generally does not apply in criminal proceedings, child custody disputes, child abuse proceedings, or civil commitment proceedings. Significantly, when a patient-litigant’s claim or defense rests on his or her mental state, that patient loses the right to prevent the psychiatrist from testifying. Thus, there will be no privilege in a malpractice suit brought by the patient against his or her therapist.

MAJOR AREAS OF LIABILITY FOR PSYCHIATRIC MALPRACTICE: NEGLIGENT RELEASE AND SUICIDE As discussed, one of the general rules of tort liability is that a plaintiff ’s negligent act must be the proximate cause of the defendant’s injury. If someone carelessly spills gasoline on the street, he or she will not necessarily be liable for the damage that follows when someone else intentionally throws a cigarette into the spill and causes a fire. The act of intentionally throwing the cigarette was an intervening cause of the fire, which arguably superseded

or broke the chain of causation between the careless spill and the damage. Ordinarily, only if the intervening act is careless or negligent are courts likely to find that the person who spilled the gasoline should have foreseen that a cigarette would be thrown into the spill (Prosser 1971, pp. 270–89). This is important to keep in mind with respect to the most common psychiatric malpractice claim – failure to prevent a patient from harming him/herself (Simon 1998a, pp. 139–43; Kussman 2000). Normally, suicide constitutes an intervening cause; regardless of anyone else’s careless behavior, the suicide victim’s own acts ultimately caused the harm. Psychiatrists, however, have a duty to protect their patients from themselves. The standard of care owed to all patients, regardless of the initial complaint, includes suicide risk assessments. Thereafter, if there is a perceived risk, the psychiatrist must take affirmative action to protect the patient. Failure either to diagnose the risk or to take adequate precautionary measures can result in liability when the patient commits or attempts to commit suicide. In either event, the reasonableness standard still applies. The plaintiff must show that the suicide was reasonably foreseeable or that, in view of the perceived risk, the precautions taken were unreasonable. Generally, the risk of liability is greater for inpatient than for outpatient suicides. Courts assume that it is easier to anticipate and manage suicidal patients in the controlled setting of a hospital. Typical claims involving inpatient suicides include charges of failure to supervise, failure to restrain, premature release, and negligent discharge. Limitations of control help shield psychiatrists from liability in cases involving outpatient suicides. In those situations, as noted, courts consider whether the treatment was reasonable. Claims might include charges of improper diagnosis, inadequate supervision, abandonment, lack of proper referral, or failure to hospitalize. A recent North Carolina case presents a cautionary example of what can happen when a psychiatrist breaches the duty to protect patients from themselves (Glaberson 1998). The case involved a law student, Wendell Williamson, who suffered from paranoid schizophrenia. Williamson was seen by a psychiatrist at the student health service at Williamson’s university on six occasions prior to the psychiatrist’s retirement. Eight months after their last session, Williamson shot and killed two people on a street in Chapel Hill. He was tried for murder and found not guilty by reason of insanity. While in a psychiatric hospital following the trial, Williamson filed suit against his psychiatrist, claiming misdiagnosis, inadequate supervision, and improper referral. The jury accepted these claims and awarded $500 000 in damages as compensation for being confined to a mental institution. At first, this result seems counterintuitive. Williamson did the killing; it was his own act that resulted in the hospitalization. Nevertheless, the jury found that the psychiatrist breached his duty to Williamson by failing to tell him how sick he was or to advise him on the necessity of

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strictly following his drug regimen. Further, the jury believed that a reasonable psychiatrist would have foreseen that Williamson would act violently without such a warning. The issue, as in the case of a suicide, was whether the psychiatrist should have reasonably foreseen that the patient would act as he did. If Williamson had killed himself and not someone else, his family would have had a wrongful death cause of action against the psychiatrist. The fact that the plaintiff here was the patient, himself, rather than a surviving family member might be initially disturbing, but the issue remains the same. A psychiatrist has a duty to protect his or her patients from themselves.

MAJOR AREAS OF LIABILITY FOR PSYCHIATRIC MALPRACTICE: DUTY TO PROTECT Not only must psychiatrists exercise a duty to prevent patients from harming themselves, under certain circumstances they must act to prevent their patients from harming third parties. This is counter to the conventional rule, which holds that people have no duty to prevent one person from harming another (Restatement (Second) of Torts, § 315A). Indeed, psychiatrists traditionally had only a limited duty to exercise control over institutionalized patients. Since 1976, however, with the decision in Tarasoff v. Board of Regents of the University of California, a California malpractice case, the psychiatrist’s duty to third parties has expanded dramatically. Tarasoff involved a therapist who knew his patient was obsessed with another person. When murder eventually occurred, the victim’s family sued, claiming the therapist had breached a duty to warn the victim about the threat to her life. The California Supreme Court ultimately agreed, holding that: once a therapist does in fact determine, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger. While the discharge of this duty of due care will necessarily vary with the facts of each case, in each instance the adequacy of the therapist’s conduct must be measured against the traditional negligence standard of the rendition of reasonable care under the circumstances. (Tarasoff v. Board of Regents of the University of California, p. 345)

In reaching its decision, the court recognized that a duty to warn already existed in the context of certain, special relationships. If one person has a right to control another person, that right creates a duty to control the person’s conduct. Thus, for example, a physician would be liable for harm done by a patient on temporary leave from a mental hospital. Tarasoff expanded the existing law by designating the therapist–patient relationship as one of the special relationships that gives rise to such a duty. Since Tarasoff, a majority of the states have established rules requiring psychiatrists to act affirmatively to protect

third parties from a patient’s violent acts. Though the laws vary, the general rule is that a duty to protect arises when a therapist determines, or by the standards of the profession should have determined, that a patient poses an imminent threat to an identifiable third party. The key issues are whether the violent act was foreseeable, whether there was an identifiable victim, and whether the psychiatrist implemented an affirmative, preventive act by warning the victim or notifying appropriate authorities (Perlin 1992; Simon 1998a, pp. 165–70).

MAJOR AREAS OF LIABILITY FOR PSYCHIATRIC MALPRACTICE: SEXUAL EXPLOITATION Psychiatrists have a duty to refrain from having sex with their patients, and the states have been particularly resolute in enforcing this duty. Indeed, sexual contact with a patient subjects a psychiatrist to a host of legal and professional consequences, ranging from criminal prosecution on charges of sexual assault or rape; to civil suits alleging negligence, loss of consortium, or battery; to ethical sanctions; to license revocation (Flaherty 1988; Simon 1998a, pp. 199–204). In the context of a malpractice claim, a plaintiff generally must prove that sexual contact took place in breach of the duty, and that harm, typically a degeneration in psychological condition, resulted. A number of states have made it easier for plaintiffs to prevail, however, by enacting statutes that make any sex between a therapist and patient both criminally and civilly actionable. Such laws create a statutory presumption of harm whenever a therapist engages in sex with a patient. Some states even allow the patient’s spouse to bring an independent claim of loss of consortium (interference with the marital relationship) against the offending therapist. Though there are several potential defenses, including claims that the patient had consented or that treatment had already ended, once the court finds that sexual activity took place, it is exceedingly difficult for the defendant to prevail.

Intentional torts The general rule regarding intentional torts is that a person is liable for harmful or offensive contact if he or she engages in a willful act with either: (i) the intent to harm or offend; or (ii) substantial certainty that harmful or offensive contact will result (Prosser 1971, pp. 31–4). Whether contact is offensive is determined on the basis of a reasonableness standard (contact is offensive if it offends a reasonable sense of personal dignity). Therefore, a plaintiff bringing an intentional tort claim must prove that the defendant intentionally did something harmful or offensive or that the defendant knew with substantial certainty that his or her actions would result in harm or offense (Jung and Levine 1987). Characteristic intentional torts include assault, battery, false imprisonment, and defamation.

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To the extent that a plaintiff must prove what was in the defendant’s mind at the time he or she acted, it is generally more difficult to prove intent than negligence. However, once intent has been shown, it becomes much easier to prove causation. In contrast to negligent torts, where the harm must have been reasonably foreseeable to be compensable, there is no foreseeability requirement in intentional torts. The intent element applies only to the decision to engage in the harmful or offensive contact, not to the consequences of that conduct. If the defendant did a wrongful act, he or she is responsible for the consequences of that act. Likewise, there is no probability standard. If the defendant meant to do something harmful or offensive, there is no requirement that success be highly likely. This means, for example, that someone who intentionally shoots a rubber band at a bus driver will be liable for all damages that accrue when the rubber band hits the driver in the eye, knocks his contact lens out, and causes a multi-vehicle accident. It makes no difference that the shooter only meant to annoy the driver and never intended to cause a catastrophic accident. A defendant in an intentional tort action can claim that he or she acted in self defense or that the plaintiff consented to the allegedly harmful act (Prosser 1971, pp. 101–12). In a self-defense claim, the defendant must concede that he or she intended to harm the plaintiff. However, he/she will also argue that his/her acts were reasonable responses to the plaintiff ’s own threatening behavior. Another defense to an intentional tort action is consent. If the plaintiff willingly consented to the conduct, the defendant will prevail. To be effective, consent must be competent, knowing, and voluntary. That is, the plaintiff must have had sufficient information and mental capacity to make an informed decision, and his/her consent must not have been coerced or fraudulently obtained.

MAJOR AREAS OF PSYCHIATRIC LIABILITY: BATTERY The two most common intentional tort claims brought against psychiatrists are battery, brought when a patient alleges treatment was provided without informed consent, and false imprisonment, typically in cases involving involuntary commitment. As to the first, patients must consent to treatment on the basis of information regarding the nature and consequences of the proposed medical regimen. This requirement protects the patient’s autonomy by preserving his or her right to determine what happens to his/her body. As noted, informed consent must be competent, knowing, and voluntary (Moldoff 1961; Twerski and Cohen 1988; Simon 1998a, pp. 63–75). Competence is not something that can be calculated scientifically. It is contextspecific and involves considerations of a patient’s ability to understand treatment options, make treatment choices, and communicate those choices. A patient’s incompetence will not foreclose the ability to go ahead with treatment,

it merely means that the psychiatrist will have to obtain substitute consent from someone authorized to provide it (e.g., a parent, guardian, or spouse). The knowing element of the consent requirement is met by providing the patient with sufficient information to make an informed choice. Traditionally, the amount of information necessary to fulfill this requirement has been measured on a professional standard. That is, the psychiatrist must provide the amount and kind of information that a reasonable psychiatrist would disclose under the circumstances or that is customarily provided in his/her community. In contrast, however, many states now require a patient standard. They require the psychiatrist to provide all material information that a reasonable person in the patient’s position would want to know to be able to make an informed decision. Though there are no absolute rules regarding what kind of information is material, courts look favorably on the following: assessments of the patient’s condition; the nature and purpose of the proposed treatment; risks and benefits of the treatment; viable alternatives to that treatment, along with the risks and benefits of the alternative treatments; and projected outcome with and without treatment. There are four limited exceptions to the consent requirement: 1 When emergency treatment is necessary to save a patient’s life or to prevent imminent bodily harm, the law presumes consent if the patient cannot give consent and there is not adequate time to seek substitute consent. 2 If the patient is deemed incompetent, his/her consent is not required; nevertheless, consent must be obtained from a substitute decision maker. 3 If a psychiatrist believes that full disclosure would be injurious to the patient’s health, in a narrow set of circumstances, then full disclosure may not be required. 4 If the patient competently, knowingly, and voluntarily waives his or her right to information, then the consent need not be informed. Absent one of these exceptions, a psychiatrist who commences treatment without obtaining informed consent risks liability for negligence if inadequate information was provided, or, in the worst case scenario, battery, in the event there was no consent at all.

MAJOR AREAS OF PSYCHIATRIC LIABILITY: FALSE IMPRISONMENT Under certain limited conditions, states grant psychiatrists the authority to hospitalize patients against their will under civil commitment schemes. The requirements and procedures involved are provided in statutes, which vary from state to state. Although there are differences, three criteria underlie all involuntary commitment statutes. The patient must be mentally ill, he or she must present a threat to self or community, and he/she must be unable

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to provide for his/her own basic needs. If these conditions are met, the statutes generally insulate the committing psychiatrist from liability. A patient suing on the basis of false imprisonment must prove that the psychiatrist failed to exercise reasonable professional judgment and acted in bad faith in seeking commitment (Chase 1970; Simon 1998a, pp. 121–6).

whether a doctor–patient relationship had been established, whether the defendant’s performance met the required standard of care, the extent of any damages, and whether there was a causal link between any negligence and the damage suffered.

REFERENCES THE PSYCHIATRIST AS WITNESS Two types of witnesses offer testimony in a trial: fact witnesses; and expert witnesses. A fact witness, as the term implies, provides the court with the facts of the case – who did what, when, and where. In so doing, the fact witness is limited to testifying about things that he or she directly witnessed or performed him/herself and is generally limited in offering any personal opinions, drawing conclusions, or relating the opinions or reports of others. Whereas a fact witness need not have any special expertise, an expert witness is a person whose knowledge of a particular field is beyond the understanding of the average layperson. Experts appear in court to help jurors or judges understand the case by clarifying points about specialized topics. While an expert may testify as to facts, he or she is further permitted to offer opinions. Indeed, that is the main function of an expert witness. A psychiatrist involved in a tort suit might appear in either capacity (Gutheil 1998a, pp. 226–9; Gutheil 1998b). Like anyone else, a psychiatrist might testify as a fact witness in a trial in which he or she is the plaintiff, but such a case would only rarely center on his/her professional role as a psychiatrist. Conversely, as a defendant in a malpractice action, the therapist would take the stand to report the facts of the case as he or she had observed them. Additionally, a treating psychiatrist might be called to testify in a suit involving a patient and a third party, as, for example, when the patient claims psychological injury as the result of an allegedly traumatic accident. In any event, when the therapist appears as a fact witness, he or she may only identify the patient’s symptoms, the diagnosis applied, and the treatment prescribed. He or she may not take the additional step of testifying that the treatment met the requisite standard of care in the malpractice suit, or of positing an opinion as to the causal link between the allegedly negligent act and the diagnosis of emotional distress in the patient’s claim against a third party. As a properly qualified expert witness, the psychiatrist may offer opinions regarding causation and standard of care issues. In tort cases alleging psychological harm, for instance, a psychiatrist/expert may be called to establish both the extent of such damages and the link between them and the traumatic event. In a malpractice suit, he or she may review the facts of the case at issue and offer opinions about how they relate to the elements of a negligence claim. Thus, he or she may give opinions as to

Benefacts. 1996. A message from the APA-Sponsored Professional Liability Insurance Program. Psychiatric News 31, 26. Bloch, M. 1961: Feudal Society. Translated by Manyon, L.A. Chicago: University of Chicago Press. Chase, R.F. 1970. Annotation: Liability for false imprisonment predicated upon institution of, or conduct in connection with, insanity proceedings. American Law Reports Annotated, 3rd Series 30, 523–60. Corpus Juris Secundum. 1987: St. Paul, MN: West Publishing Co. Farnsworth, E.A. 1990: Contracts. 2nd edition. Boston: Little, Brown and Company. Flaherty, M.R. 1988. Annotation: Improper or immoral sexually related conduct toward patient as ground for disciplinary action against physician, dentist, or other licensed healer. American Law Reports Annotated, 4th Series 59, 1104–32. Glaberson, W. 1998: Killer blames his therapist, and jury agrees. The New York Times, October 10, A1. Gutheil, T.G. 1998a: Witnesses, depositions, and trials. In Lifson, L.E., Simon, R.I. (eds), The Mental Health Practitioner and the Law: A Comprehensive Handbook. Cambridge, MA: Harvard University Press, 225–36. Gutheil, T.G. 1998b: The Psychiatrist as Expert Witness. Washington: American Psychiatric Press, Inc. Hensler, D.R., Marquis, M.S., Abrahamse, A.F., Berry, S.H., Ebener, P.A., Lewis, E., Lind, A.A., MacCoun, R.J., Manning, W.G., Rogowski, J.A., Vaiana, M.E. 1991: Compensation for Accidental Injuries in the United States. Santa Monica, CA: Rand Corp. Holmes, O.W. 1881: The Common Law. Boston: Little, Brown and Company. Ingber, S. 1985. Rethinking intangible injuries: a focus on remedy. California Law Review 73, 772–856. Jung, D.J., Levine, D.I. 1987. Whence knowledge intent? Whither knowledge intent? University of California Davis Law Review 20, 551–84. Kelley, P.J. 1991. Proximate cause in negligence law: history, theory, and the present darkness. Washington University Law Quarterly 69, 49–105. Kosmund Murray, J.M. 1995. Comment: Repression, memory, and suggestibility: a call for limitations on the admissibility of repressed memory testimony in sexual abuse trials. University of Colorado Law Review 66, 447–522.

788 Basic issues in law Kussman, P.C. 2000. Annotation: Liability of doctor, psychiatrist, or psychologist for failure to take steps to prevent patient’s suicide. American Law Reports Annotated, 5th Series 81, 167–244. Moldoff, W.M. 1961. Annotation: Malpractice: physician’s duty to inform patient of nature and hazards of disease or treatment. American Law Reports Annotated, 2nd Series 79, 1028–35. Perlin, M.L. 1992. Tarasoff and the dilemma of the dangerous patient: new directions for the 1990s. Law and Psychology Review 16, 29–63. Prosser, W.L. 1971: Handbook of the Law of Torts. 4th edition. St. Paul, MN: West Publishing Co. Restatement (Second) of Torts (1965). St. Paul, Minn.: West Publishing Co. Rigelhaupt, J.L. 1982. Annotation: What constitutes physician-patient relationship for malpractice purposes. American Law Reports Annotated, 4th Series 17, 132–60. Robertson, D.W. 1997. The common sense of cause in fact. Texas Law Review 75, 1765–800. Sarno, G.G. 1981. Annotation: Civil liability for physical measures undertaken in connection with treatment of mentally disordered patient. American Law Reports Annotated, 4th Series 8, 464–518.

Shuman, D.W. 1993. The psychology of deterrence in tort law. Kansas Law Review 42, 115–68. Shuman, D.W. 1994. The psychology of compensation in tort law. Kansas Law Review 43, 39–77. Shuman, D.W., Weiner, M.F. 1987: The Psychotherapist– Patient Privilege: A Critical Examination. Springfield, IL: Charles C. Thomas. Simon, R.I. 1998a: Concise Guide to Psychiatry and Law for Clinicians. 2nd edition. Washington, DC: American Psychiatric Press, Inc. Simon, R.I. 1998b: Litigation hot spots in clinical practice. In Lifson, L.E., Simon, R.I. (eds), The Mental Health Practitioner and the Law: A Comprehensive Handbook. Cambridge, MA: Harvard University Press, 117–39. Tarasoff v. Board of Regents of the University of California, 551 P.2d 334 (Cal. 1976). Terry, H.T. 1915. Negligence. Harvard Law Review 29, 40–54. Twerski, A.D., Cohen, N.B. 1988. Informed decision making and the law of torts: the myth of justiciable causation. University of Illinois Law Review 1988, 607–65. Zelin, J.E. 1986. Annotation: Physician’s liability for unauthorized disclosure of confidential information about patient. American Law Reports Annotated, 4th Series 48, 668–713.

85 An introduction to civil procedure ROBERT LLOYD GOLDSTEIN

INTRODUCTION Civil procedure has been described as ‘the sum total of rules, forms, doctrines, and devices’ (Grilliot 1979, p. 223) that governs and regulates the formal activities of a technical nature in the course of adjudication of civil disputes. The adjudicatory process that is regulated by civil procedure serves to settle and terminate controversies and to provide state-enforced remedies (Rosenberg et al. 1976). The principal objective of rules of procedure is to provide a ‘just, speedy, and inexpensive’ means of civil dispute resolution (Federal Rules of Civil Procedure 1990, Rule 1).1 The efficacy of jural agencies for the settling of disputes between individuals is predicated on fundamental fairness in procedure, which Golding (1979) terms ‘procedural justice.’ In order to promote true settlements of disputes and to maintain confidence in the institutions of dispute resolution, adherence to the standards of procedural justice is called for. These standards have been outlined as follows:

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Neutrality 1 ‘No man should be judge in his own cause.’ 2 The dispute settler should have no private interest in the outcome. 3 The dispute settler should not be biased in favor of or against a party. Persuasive conflict 4 Each party should be given fair notice of the proceedings. 5 The dispute settler should hear the argument and evidence of both sides. 6 The dispute settler should hear a party only in the presence of the other party. Each party should be

1 Rule 1 reads, in its entirety, ‘These rules govern the procedure in the United States district courts in all suits of a civil nature whether cognizable as cases at law or in equity or in admiralty, with the exceptions stated in Rule 81. They shall be construed to secure the just, speedy, and inexpensive determination of every action.’

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given a fair opportunity to respond to the arguments and evidence of the other party. Settlement 7 The terms of the settlement should be supportable by reasons. 8 The reasons should refer to the arguments and evidence presented (Golding 1979, p. 113).

The entire procedural enterprise serves not only to implement the substantive law but to give both parties to the dispute a sense of fair treatment before an impartial and unbiased tribunal. In Chapter 82, the judicial system in the United States was described in terms of a federal court system and fifty independent state court systems, each with its own procedural rules. Prior to the adoption of the Federal Rules of Civil Procedure in 1938, federal courts in suits ‘at law’ followed the procedures of the courts of the state in which the federal district court was held. Since 1938, the Federal Rules of Civil Procedure are followed uniformly in all federal courts. Approximately half of the states have adopted the Federal Rules for use in their own courts, and many others have been guided and influenced to a significant extent by the Federal Rules (Mermin 1973). The sheer breadth and complexity of the subject matter of civil procedure precludes even a basic overview of all the various stages of a civil lawsuit, from inception to final judgment, within the confines of this concise chapter. An exhaustive treatment of the subject would cover the following topics in depth: justiciability, jurisdiction over the parties, subject-matter jurisdiction, pleading, discovery, ascertaining applicable law, adjudication without trial, trial procedure, multiparty and multiclaim litigation, former adjudication, judgments and their effects, appeals and other special problems in civil procedure. There are a number of casebooks and textbooks that provide an excellent exposition of modern-day civil procedure (Rosenberg et al. 1976; James and Hazard 1977; Cover and Fiss 1979). In order to acquaint the forensic psychiatrist with the intricacies and complexities of such a broad subject, this modest introduction to civil procedure focuses on a few selected major topics that serve to

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illuminate important principles and underlying policies that shape procedural law within our adversarial judicial system.2

(see, for example, Sierra Club v. Morton 1972;3 United States v. SCRAP 1973; Flast v. Cohen 1968; NAACP v. Alabama 1958; Craig v. Boren 1976).

JUSTICIABILITY

Mootness

Not all disputes are susceptible of judicial resolution. Under our Anglo-American adversary system, not everyone will qualify as a litigant and not every alleged injury to an interest will suffice to set ‘the court machinery in motion’ (Mermin 1973, p. 174). The Constitution, in Article III, Section 2, extends the judicial power of the federal courts only to ‘cases’ or ‘controversies’ of specified types. Federal courts (and also state courts) have adopted the position that matters that do not fall within the category of ‘cases’ or ‘controversies’ cannot be entrusted to the courts for adjudication. Determinations of the proper extent of judicial authority and threshold limitations on the power of the courts are embodied in a number of overlapping doctrines that purport to apply the Article III, Section 2, constitutional requirements.

Standing In order to bring a properly cognizable action, a plaintiff must have standing; that is, there must be a showing that the defendant’s conduct has caused him actual injury. The presence of an actual, individualized injury assures that the suit does not raise merely hypothetical issues and that it is presented in an adversarial context (Kane 1979). The Supreme Court explained that: the fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated. The ‘gist of the question of standing’ is whether the party seeking relief has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult … questions. (Flast v. Cohen 1968, quoting Baker v. Carr 1962)

While the elements that comprise standing – actual injury-in-fact (with reference to the plaintiff ’s own injury, not someone else’s injury), a sufficient stake in the outcome of litigation, a sufficiently adversarial context – seem to be reasonably clear, the courts have not always found it easy to define what satisfies the constitutional requirement of an actual injury or to decide when parties may sometimes be allowed to invoke the rights of others 2 It should be noted at the outset that, although within the context of this streamlined format every effort will be made to avoid oversimplification and distortion of these complex technical issues, nevertheless, many exceptions to general rules or analyses of controversies must be omitted because of limitations of space.

A dispute ceases to be a live one, if it is ‘laid to rest by subsequent events (i.e., made “moot”)’ (Mermin 1973, p. 174). Because of shifting circumstances, the case no longer matters to the parties; a decision might be a waste of time and a misallocation of valuable judicial resources; it might be rendered without adequate adversarial arguments; and, decisively, the courts lack authority to make determinations that cannot affect the rights of litigants in the case before them (De Funis v. Odegaard 1974). The basis of the courts’ lack of power ‘to review moot cases derives from the requirement of Article III of the Constitution under which the exercise of judicial power depends on the existence of a case or controversy’ (Liner v. Jafco 1964). Once a case is moot, a true case or controversy no longer exists. In Doremus v. Board of Education (1952), for example, in a challenge to a New Jersey law requiring Bible reading at the start of each public school day, the Supreme Court ruled that the case had been rendered moot, because the child in question had already graduated before the case was heard by the Court. It is not always easy to determine when a case is moot and when it is not. In addressing the issue of whether a criminal conviction is moot after a defendant has served his sentence and been released from prison, the Supreme Court took notice of ‘the obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences. The mere “possibility” that this will be the case is enough to preserve a criminal case from ending “ignominiously in the limbo of mootness” ’ (Sibron v. New York 1968). It is important to note that a case does not become moot merely because illegal conduct has been terminated, if there is a reasonable likelihood that the challenged wrongful conduct will be repeated [i.e., if ‘the defendant is free to return to his old ways’ (United States v. W. T. Grant Co. 1953)].

3 The Court found no standing in the Sierra Club to challenge a Walt Disney project for commercial exploitation of wilderness land in order to build a ski resort. The club’s allegations of a special interest in conserving the natural resources of the Sierra Nevada mountains (in the absence of any showing that its member were users of the area for any purpose) failed to meet the injury-in-fact test. The Court observed that a mere ‘value preference’ or ‘intellectual interest in the problem’ of conservation did not confer standing (Currie 1981). The Court explained that, ‘Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society’ (Sierra Club v. Morton 1972), but that the plaintiff must ‘be himself among the injured, for it is this requirement that gives a litigant a direct stake in the controversy and prevents the judicial process from becoming no more than a vehicle for the vindication of the value interests of concerned bystanders. No such specific injury was alleged in Sierra Club’ (United States v. SCRAP 1974).

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Ripeness When an issue is determined to be non-justiciable because it is not yet ripe for review, the court views the issue as hypothetical or premature in nature. Such premature claims are viewed as unconstitutional, because adjudication would amount to nothing more than an improper ‘advisory opinion’ (Mermin 1973). In constitutional terms, a further element of the ‘Case’ or ‘Controversy’ requirement is that the matter must be ‘ripe’ for decision. The problem of ripeness is essentially a problem of prematurity. Often concrete facts are missing which would guide the Court in making a wellinformed decision. Because it is not certain what is going to happen, or even whether anything is going to happen, the decision of an unripe case may be a waste of the court’s time … . Because it is not certain that the parties in fact have anything at stake, it is not certain that there will be adequate argument of both sides of the case. (Currie 1981, p. 22)

As with the other doctrines subsumed under justiciability, the issue of ‘ripeness’ is very amorphous, and court decisions have been confusing and inconsistent over the years. For example, in United Public Workers v. Mitchell (1947), the Court refused to allow a challenge to the Hatch Act, restricting political activities on the part of government workers, because the nature and extent of their intended future political involvement was not clear at the time. The Court observed that the only threat of interference was merely ‘that implied by the existence of the law and the regulations.’ However, in Adler v. Board of Education (1952), a teacher was allowed to mount a challenge to a law requiring dismissal of any teacher advocating the overthrow of the government, despite the fact that he himself did not in the past (nor in the future intend to) engage in the proscribed behavior. Finally, in Laird v. Tatum (1972), the plaintiffs and their organizations complained of the ‘chilling effect’ on their First Amendment rights (freedom of expression and freedom of association) of an army intelligence surveillance system gathering data regarding potential public demonstrations. The plaintiffs in fact had themselves been the focus of earlier surveillance by army intelligence. The Court held that absent ‘more specific present harm or threat of specific future harm,’ the case was not ripe for adjudication and impermissibly called for an advisory opinion (Mermin 1973, p. 185). Courts frequently wait until someone is actually affected by a law before agreeing to hear a case that challenges it.

be resolved by the other branches of government. For example, in Orlando v. Laird (1971), the plaintiffs sought to enjoin the army from transferring them to serve in Vietnam, challenging the constitutionality of a war they claimed had not been properly authorized by Congress. The court held that the constitutionality of the means Congress chose to ratify and authorize the prosecution of military activities in Vietnam was a political question, a matter of policy, ‘committed to the discretion of the Congress and outside the power and competency of the judiciary, because there are no intelligible and objectively manageable standards by which to judge such actions.’4 (Orlando v. Laird 1971). The political question doctrine has been eroded somewhat over the years. In Baker v. Carr (1962), the Court upheld judicial authority to determine the constitutionality under the Equal Protection Clause of electoral districts for state legislators. In Powell v. McCormack (1969), the Court upheld judicial authority to pass on whether the House of Representatives had validly denied Adam Clayton Powell his seat in the House. In United States v. Nixon (1974),5 the Court upheld judicial authority to obtain tape recordings and other evidence from the president, despite claims of executive privilege and non-justiciability of intrabranch disputes (in this case between the president and the special prosecutor, within the executive branch). Baker v. Carr (1962) set forth six criteria for the non-justiciability of cases involving political questions, the most important of which specifying that ‘there exists a textually demonstrable constitutional commitment of the issue to a coordinate political department.’

JURISDICTION The adjudicatory authority of the courts is known as jurisdiction; literally, the power to speak the law (Rosenberg et al. 1976). The term generally denotes that the court has the requisite power both to decide the type of controversy in the case before it (subject matter jurisdiction) and to decide the case between the particular parties (or in relation to the property) before it (jurisdiction over the parties, personal jurisdiction, in personam 4 Both Congress and the president had agreed that a formal declaration of war was undesirable. Congress had passed the Gulf of Tonkin Resolution and had appropriated materials for war, thereby indicating congressional consent. Interference by the judicial branch would be ‘extremely unwise’ and ‘would constitute a deep invasion of the political question domain’ (Orlando v. Laird 1971). 5

Political questions Under the political question doctrine, the courts may determine that the issue is non-justiciable and should

The Court unanimously declared that the doctrine of executive privilege is ‘constitutionally based,’ but that it must yield to the claims of criminal justice. The 8–0 Supreme Court decision requiring Nixon to turn over the subpoenaed tapes to the special prosecutor revealed the ‘smoking gun’ that made his resignation inevitable (Ambrose 1991).

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jurisdiction or in rem jurisdiction).6 Although a case meets all the requirements for jurisdiction, there is still a constitutional requirement that the defendant receive adequate notice of the suit against him and have an opportunity to present his defense, as a matter of procedural due process.

Jurisdiction over the parties Originally, the chief basis for personal jurisdiction was premised on notions of state sovereignty. The mere physical presence of individuals within the state was the basis of jurisdiction, because the state could exercise power over those within its territorial borders and render binding judgments against them (Kane 1979). Personal jurisdiction was barred outside the borders of the state. In the leading case, Pennoyer v. Neff (1877), the Supreme Court explained that, The authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is established … . Process from the tribunals of one State cannot run into another State and summon parties there domiciled to leave its territory and respond to proceedings against them.

Accordingly, even the most transient presence in the state sufficed to gain jurisdiction over the defendant’s person. For example, in Grace v. MacArthur (1959), a non-resident defendant was served with a summons on board an airplane, while the plane was flying over the forum state (Arkansas). The court upheld the service as validly creating in personam jurisdiction in the Arkansas court, because the defendant was physically present in the jurisdiction at the time of service of process. Such transient physical presence within a state’s territorial verge would no longer suffice to confer jurisdiction over nonresident defendants today. The Supreme Court has placed increased emphasis on due process considerations in enunciating its ‘minimum contacts’ doctrine (which is discussed later in this section), to limit the power of courts to assert in personam jurisdiction. Another basis of jurisdiction premised on state sovereignty is domicile. The state can command certain reciprocal duties and obligations from its citizens in return for the protection and privileges it accords them. Thus, the courts of a state may exercise jurisdiction over an individual domiciled in that state, even if temporarily absent 6 In personam jurisdiction over the person gives the court the power to hold him personally liable, to issue a judgment against him, and to seize his assets. In rem jurisdiction empowers the court to decide claims relating to a piece of property or a legal status (e.g., marriage). A third form of jurisdiction, quasi-in-rem jurisdiction, refers to the court’s power to seize or attach property as a vehicle to assert jurisdiction over the defendant, to adjudicate a personal claim unrelated to that property itself. A consideration of quasi-in-rem jurisdiction is beyond the scope of this chapter.

from the jurisdiction (provided that adequate notice and opportunity to be heard are given). The Supreme Court held that ‘domicile7 in the state is alone sufficient to bring an absent defendant within the reach of the state’s jurisdiction for purposes of a personal judgment’ (Milliken v. Meyer 1940). A further basis of jurisdiction is consent. An individual making a general appearance in court to respond to notice of an action against him has consented to the court’s jurisdiction. Non-resident corporations who do business in a state and nonresident motorists who operate motor vehicles within the state were said to have impliedly consented to jurisdiction over them (Hess v. Pawloski 1927). Under more modern jurisdictional theories, the nonresident motorist statutes are premised on the state’s police power to protect its citizens against an inherently dangerous instrumentality (i.e., the automobile). Many states have enacted so-called ‘long-arm statutes,’ which authorize extraterritorial jurisdiction over nonresidents or individuals who are physically absent from the state.8 Such statutes enumerate the specific kinds of activities for which long-arm jurisdiction may be asserted. These would include tortious acts committed within the state (e.g., the non-resident motorist statutes), the commission of a tortious act outside the state that then causes injury in the state (if the defendant has business activities in the state), the transaction of business within the state, ownership or use of real estate within the state, and others. (Many of the same considerations apply to corporations as well as natural persons. A separate discussion of the complexities of jurisdiction over corporations is precluded because of limitations of space.) The basis of jurisdiction that underlies the long-arm statutes and, indeed, that has come to provide the theoretical underpinning of modern-day jurisdictional doctrine

7 Domicile has been defined as an individual’s current residence, provided he has an intention to remain there for an indefinite period. It is roughly equivalent to state citizenship. Even if a person has a number of residences, he can have but one domicile at a time. 8

In criminal cases, as opposed to civil matters, there is state-bystate statutory authority to secure the attendance of material witness (i.e., witnesses who possess information material to the determination of the criminal action), even if said witnesses reside in another state. For example, a forensic psychiatrist who moves from New York to Colorado and is considered to be a material witness in a New York criminal case may be compelled to return to New York to testify, even though he now resides beyond the jurisdiction of the New York courts. The New York judge issues a certificate under the seal of the court, which is presented to a Colorado judge, who can then subpoena the witness or even have him taken into immediate custody to have him attend the New York proceedings. The long-arm statutes authorize extraterritorial jurisdiction over parties to the litigation (i.e., defendants), not over witnesses in civil cases. A ‘commission’ or ‘letters rogatory’ may be issued by a state court in a civil case for the taking of a deposition outside of the state (or in a foreign country), to elicit the testimony of nonparty witnesses residing elsewhere.

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was clearly enunciated by the Supreme Court in the landmark 1945 case, International Shoe Co. v. Washington. In an era characterized by increasing interstate movement of individuals, as well as the growth of corporate business activities on a nationwide scale, the courts needed a new theoretical justification to subject non-residents and outof-state corporations to the jurisdiction of a forum state in which they operated, transacted business activities, or with which they otherwise had significant contacts. The Court abandoned the ‘physical power theory’ of jurisdiction established in Pennoyer v. Neff (1877) (which conferred exclusive jurisdiction and sovereignty only over persons and property within the territory of a state) and established the new ‘minimum contacts’ test. The Court said: Historically the jurisdiction of courts to render judgments in personam is grounded on their de facto power over the defendant’s person … . But now … due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ (International Shoe Co. v. Washington 1945) [emphasis supplied]

The minimum contacts standard serves to provide local forums for local plaintiffs to sue non-residents (individuals or corporations), who caused a local cause of action to arise, but only if it seems sufficiently fair to impose the burden on the defendant to have to litigate there (i.e., in a forum state in which he himself is a nonresident). It would be fair (and the minimum contacts test would be met), for example, ‘if a corporation… is continuously and systematically entering the state’ to market its products there (Kane 1979, p. 46). A number of subsequent cases attempted to define precisely ‘the kind and sufficiency of contacts needed to bring a defendant within the threshold of International Shoe’ (Kane 1979, p. 45) and extended the minimum contacts requirement to jurisdiction over property as well as person (McGee v. International Life Insurance Co. 1957; Hanson v. Denckla 1958; Buckeye Boiler v. Superior Court of Los Angeles County 1969; Shaffer v. Heitner 1977).

Subject matter jurisdiction In addition to the requirement that a court have jurisdiction over the parties in a matter before it, it must also have the power to adjudicate the particular type of controversy involved in the case. Such power to adjudicate the specific controversy is known as ‘subject matter jurisdiction or competency over the litigation’ (Emanuel 1981, p. 68). Jurisdiction over the subject matter, in both state and federal courts, is limited by the requirements of constitutional provisions. Subject matter jurisdiction is

also conferred by specific state and federal statutory authority. For example, certain state statutes may distribute jurisdictional authority according to the type of proceeding involved (e.g., probate proceedings) or according to the dollar amount in controversy [e.g., cases involving disputes in which the dollar amount involved is less than a thousand dollars may be assigned to a lower (municipal) court, rather than to the Superior court] (Kane 1979). Federal courts exercise subject matter jurisdiction over two basic types of controversies: (i) diversity of citizenship jurisdiction; and (ii) federal question jurisdiction. Diversity of citizenship jurisdiction is based on Article III, Section, 2 of the Constitution, which confers subject matter jurisdiction on the federal courts in regard to ‘Controversies … between Citizens of different states.’ The diversity requirement is satisfied if all plaintiffs in a lawsuit are citizens of one state and all defendants are citizens of a different state (at the time the action is commenced). Historically, the rationale underlying diversity jurisdiction was to avert potential prejudice, by offering out-of-state residents the alternative of a presumably more unbiased federal forum (compared to a possibly prejudiced local state court). The fear of prejudice in regard to out-of-state residents is no longer seen as a proper justification for modern jurisdiction and there have been congressional attempts recently to abolish or curtail diversity of citizenship jurisdiction (Rosenberg et al. 1976). In all diversity cases, the amount in controversy must exceed $50 000. (This serves to limit access to the federal courts to the more significant cases, thereby serving to control the caseload of an already overloaded system.) (Kane 1979). Federal question jurisdiction involves jurisdiction by the federal courts over any civil action arising under the Constitution, laws, or treaties of the United States; in which more than $50 000 is involved.9 The Constitution and a number of federal statutes create the right to sue for any violation of a right or duty under federal law and grant jurisdiction to the federal courts to adjudicate these matters. The federal question suit must involve ‘a substantial claim founded “directly” upon federal law’ (Emanuel 1981, p. 78). Other aspects of federal court jurisdiction (e.g., ancillary, pendent, and removal jurisdiction) are beyond the scope of our discussion. It should be briefly noted, however, that under certain circumstances a case brought originally in state court by the plaintiff may be ‘removed’ to a federal court by the defendant, if there was concurrent jurisdiction in the federal and state courts, and statutory requirements for the removal procedure were satisfied (Kane 1979). 9 Congress has reduced or abolished the jurisdictional amount in controversy requirement in virtually all federal question cases (Emanuel 1981). Some examples of federal question cases are actions against federal officials, cases rising under the securities laws, or under the antitrust laws.

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Admissibility of scientific expert evidence: Frye and the Supreme Court’s expert evidence trilogy (Daubert, Joiner, and Kumho Tire) For seventy years, since its formulation in the Frye case (293 F.1013), the ‘general acceptance’ test was the dominant standard for determining the admissibility of novel scientific evidence at trial. The Frye test had its origin in a short and citation-free 1923 decision concerning the admissibility of evidence derived from a crude precursor to the polygraph machine (a systolic blood pressure deception test). The Court of Appeals for the District of Columbia described the device and its operation and declared: Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a wellrecognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. (293 F., at p. 1014) (emphasis added)

In 1993, in Daubert v. Merrell Dow Pharmaceuticals, Inc. (509 U.S. 579), the Court held that the Federal Rules of Evidence superseded the Frye general acceptance test. General acceptance was no longer a necessary precondition to the admissibility of scientific evidence in federal trials. The Federal Rules of Evidence (especially Rule 702) assigned a ‘gatekeeping’ responsibility to the trial judge in deciding questions of the admissibility of proffered expert testimony. The judge’s preliminary task consists of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand. The trial court’s role of gatekeeper of all scientific evidence would hopefully have the desired effect of preventing the proliferation of ‘junk science’ (Huber 1991) and avoid the risk of juries being ‘bamboozled by fringe scientists’ advancing speculative or highly unreliable opinions well outside the mainstream of their field. The special obligation imposed on a trial judge is to ensure that scientific evidence is not only relevant but reliable; the Court held that pertinent evidence based on scientifically valid principles will satisfy these demands. Daubert discusses four factors that might prove helpful in determining the reliability of a particular scientific theory or technique: (i) the scientific status of a theory or methodology must be capable of empirical testing (testability, falsifiability or refutability); (ii) peer review and publication (submission to the scrutiny of the scientific community); (ii) consideration of the known or potential rate of error and the existence and maintenance of standards controlling the technique’s operation; and (iv) general

acceptance in the relevant scientific community. The inquiry envisioned by the Court is viewed as a flexible one, with its overarching subject the scientific validity (and thus the evidentiary relevance and reliability) of the principles and methodology of the proposed testimony (as distinguished from the conclusions that it generates). Daubert makes clear that its list of specific factors is meant to be helpful, but not definitive. It neither necessarily nor exclusively applies to all experts or in every case. The Supreme Court’s so-called ‘expert evidence trilogy’ includes Daubert and its progeny, General Electric Co. v. Joiner (522 U.S. 136) and Kumho Tire Co., Ltd. v. Carmichael (526 U.S. 137). Joiner held that district courts may scrutinize the reliability of an expert’s reasoning process as well as the general methodology. The trial court should refuse to accept ‘any conclusion that good science does not permit to be drawn from the underlying data’ (522 U.S. at 146). To do so, the court must ensure that every step in the expert’s reasoning process is grounded in good science. Finally, Kumho Tire extended Daubert’s reliability test to non-scientific expert evidence, e.g., testimony based on technical and other specialized knowledge (e.g., professional studies or personal experience). Since Daubert, many legal scholars have seemed convinced of Frye’s irrelevance, and forensic psychiatrists have expressed a keen interest in the new evidentiary standards set forth in Daubert and its progeny. Nonetheless, there is overwhelming evidence of Frye’s continuing viability in many states. Frye is not only alive and well, but it remains the plurality rule in state courts, which are the venue for the vast majority of litigation (including New York, California, Florida, Pennsylvania, and other states, which altogether contain almost half of the American population). Accordingly, most forensic psychiatrists will be called upon to testify mainly in state courts which continue to be Frye jurisdictions. [One critic of forensic psychiatry disparagingly observed that Frye leads to the admission of evidence that has never been shown to be reliable, but is ‘generally accepted’ by a subgroup of experts who specialize in the forensic field in question (Bernstein 1995)]. Forensic psychiatrists may be interested in reading Goldstein’s articles on the application of the Frye test to a toxic tort case and to an innovative psychological test to measure criminal insanity (Goldstein 1987; Goldstein 1992). The definitive monograph on the history, development and future of the Frye test, as well as its relationship to Daubert and its progeny, is Frye, Fry again: the past, present and future of the general acceptance test (Bernstein 2001).

REFERENCES Adler v. Board of Education, 342 U.S. 485 (1952). Ambrose, S.E. 1991: Nixon (Volume Three): Ruin and Recovery 1973–1990. New York: Simon & Schuster.

An introduction to civil procedure 795 Baker v. Carr, 369 U.S. 186 (1962). Bernstein, D.E. 1995. The science of forensic psychiatry and psychology. Psychology, Psychiatry and Law 2, 75–99. Bernstein, D.E. 2001. Frye, Frye again: the past, present and future of the general acceptance test. Jurimetrics 41, 385–407. Buckeye Boiler v. Superior Court of Los Angeles County, 485 P.2d 57 (Cal. 1969). Cover, R.M., Fiss, O.M. 1979: The Structure of Procedure. Mineola, NY: Foundation Press. Craig v. Boren, 429 U.S. 190 (1976). Currie, D.P. 1981: Federal Jurisdiction. St. Paul, MN: West Publishing Co. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). De Funis v. Odegaard, 416 U.S. 312 (1974). Doremus v. Board of Education, 342 U.S. 429 (1952). Emanuel, S. 1981: Civil Procedure. New Rochelle, NY: Emanuel Law Outlines. Federal Rules of Civil Procedure. 1990: In Federal Civil Judicial Procedure and Rules. St. Paul, MN: West Publishing Co., 1–211. Flast v. Cohen, 392 U.S. 83 (1968). Frye v. United States, 293 F. 1013 (D. C. Cir. 1923). General Electric Co. v. Joiner, 522 U.S. 136 (1997). Golding, M.P. 1979: Dispute settling and justice. In Cover, R.M., Fiss, O.M. (eds), The Structure of Procedure. Mineola, NY: Foundation Press, 106–15. Goldstein, R.L. 1987. The twilight zone between scientific certainty and legal sufficiency: should a jury determine the causation of schizophrenia? Bulletin of the American Academy of Psychiatry and the Law 15, 95–104. Goldstein, R.L. 1992. Dr. Rogers’ ‘Insanity Detector’ and the admissibility of novel scientific evidence. International Journal of Medicine and Law 11, 441–7.

Grace v. MacArthur, 170 F. Supp. 442 (E.D. Ark. 1959). Grilliot, H.J. 1979: Introduction to Law and the Legal System. Boston: Houghton Mifflin Co. Hanson v. Denckla, 357 U.S. 235 (1958). Hess v. Pawloski, 274 U.S. 352 (1927). Huber, P. 1991: Galileo’s Revenge: Junk Science in the Courtroom. New York: Basic Books. International Shoe Co. v. Washington, 326 U.S. 310 (1945). James, F., Jr., Hazard, G.C., Jr. 1977: Civil Procedure. 2nd edition, Boston: Little, Brown and Co. Kane, M.K. 1979: Civil Procedure. St. Paul, MN: West Publishing Co. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). Laird v. Tatum, 408 U.S. 1(1972). Liner v. Jafco, 375 U.S. 301 (1964). McGee v. International Life Insurance Co., 355 U.S. 220 (1957). Mermin, S. 1973: Law and the Legal System: An Introduction. Boston: Little, Brown and Co. Milliken v. Meyer, 311 U.S. 457 (1940). NAACP v. Alabama, 357 U.S. 449 (1958). Orlando v. Laird, 443 F.2d 1039; cert. den. 404 U.S. 869 (1971). Pennoyer v. Neff, 95 U.S. 714 (1877). Powell v. McCormack, 395 U.S. 486 (1969). Rosenberg, M., Weinstein, J.B., Smit, H., Korn, H.L. 1976: Elements of Civil Procedure: Cases and Materials. Mineola, NY: Foundation Press. Shaffer v. Heitner, 433 U.S. 186 (1977). Sibron v. New York, 392 U.S. 40 (1968). Sierra Club v. Morton, 405 U.S. 727(1972). United Public Workers v. Mitchell, 330 U.S. 75 (1947). United States v. Nixon, 418 U.S. 683 (1974). United States v. SCRAP, 412 U.S. 669 (1974). United States v. W.T. Grant Co., 345 U.S. 629 (1953).

86 An introduction to criminal procedure HARVEY M. STONE, KATHERINE OBERLIES O’LEARY AND ROBERT LLOYD GOLDSTEIN

The needs of law enforcement stand in constant tension with the Constitution’s protections of the individual against certain exercises of official power. It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional safeguards. Almeida-Sanchez v. United States, 413 U.S. 266, 273–74 (1973) (Stewart, J.).

Every step of the criminal process – ascertaining whether a criminal offense was committed, detecting and arresting suspects, interrogation of suspects, searches and seizures to obtain evidence, police lineups and other identification procedures, and admission of evidence at trial – involves potential conflicts between the mission of law enforcement officers to find criminals and bring them to justice, and the rights of individuals in our democratic society to remain free of unwarranted government intrusion. These conflicts are ultimately resolved by courts, which are called upon in a wide variety of factual circumstances to weigh law enforcement imperatives against the protection of individual rights. The Bill of Rights – the first ten Amendments to the United States Constitution – provides the predominant basis for the constitutional regulation of criminal procedure. Almost all of the criminal procedural guarantees of the Bill of Rights (with the exception of the right to grand jury indictment in felony cases and the prohibition against excessive bail) are now applicable to the states as well under the Due Process Clause of the Fourteenth Amendment. Accordingly, the criminal procedures of every state must, at a minimum, comply with the requirements of the United States Constitution, as interpreted by the United States Supreme Court. This chapter presents an overview of U.S. Supreme Court decisions involving the application of constitutional limitations to governmental actions at various stages of the criminal justice process.

ARREST, SEARCH, AND SEIZURE The Fourth Amendment, which governs all searches and seizures conducted by government agents, provides, ‘The

right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.’ The Amendment contains two separate clauses: a prohibition against unreasonable searches and seizures, and a requirement that any warrant issued be supported by probable cause. Probable cause to obtain an arrest warrant or to arrest a person without a warrant exists when police have knowledge of facts and circumstances sufficient to believe that the person to be arrested has committed or is committing an offense. Probable cause to search has been defined by the Supreme Court as ‘a fair probability that contraband or evidence of a crime will be found in a particular place.’ (Illinois v. Gates 1983, pp. 213, 238).

Warrantless searches and seizures The United States Supreme Court has held that a warrant is not required to establish the reasonableness of all government searches and seizures; moreover, when a warrantless search or seizure is permissible, probable cause is not invariably required (Vernonia School Dist. 47J v. Acton 1995, pp. 646, 653). The following categories of cases involve exceptions to the probable cause and warrant requirements.

INVESTIGATORY DETENTIONS In Terry v. Ohio (1968), the Supreme Court held that ‘important government interests’ can justify a brief investigatory detention on less than probable cause. If officers have a reasonable, articulable suspicion that someone is involved in criminal activity, they may stop him and question him briefly. They may also conduct a limited patdown frisk for weapons if they reasonably believe that the individual poses a threat to the safety of the officers or others. A suspect’s unprovoked flight upon seeing the police provides reasonable suspicion for an investigatory stop (Illinois v. Wardlow 2000). Courts will not inquire

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whether the reason given by the police officer for a stop was pretextual. For example, an automobile may be stopped where the police have probable cause to believe that a traffic violation has occurred, even if the actual motive of the police is to investigate drug activity (Whren v. United States 1996, pp. 806, 811–13). The range of police activities permitted during an investigatory detention must be reasonably related to the circumstances that initially justified the detention (United States v. Sharpe 1985, pp. 675, 682). In Florida v. Royer (1983, pp. 491, 502–3), the Supreme Court found that the police exceeded the limits of an investigative stop when they asked a suspect to accompany them to a small police room at the airport, retained his ticket and driver’s license, and did not indicate in any way that he was free to depart. ‘As a practical matter, Royer was under arrest’ and therefore to detain him without probable cause violated the Fourth Amendment (460 U.S. at 503).

WARRANTLESS ARRESTS Although probable cause is required for an arrest, in certain circumstances officers may lawfully arrest an individual without an arrest warrant (Gerstein v. Pugh 1975, pp. 103, 113). Warrantless arrests are permitted for any offense committed by the arrestee in the presence of a law enforcement officer, and for any felony that an officer has probable cause to believe the arrestee has committed, regardless of whether the officer was present when the felony occurred. After making a warrantless arrest, an officer must secure a judicial determination of probable cause within 48 hours (County of Riverside v. McLaughlin 1991). In some situations, warrantless arrests violate the Fourth Amendment, even though probable cause exists to support the arrest. The Supreme Court has held that warrantless arrests in suspects’ dwellings are presumptively unreasonable (Welsh v. Wisconsin 1984, pp. 740, 750). Generally, only ‘exigent circumstances,’ such as fear of imminent destruction of evidence, hot pursuit, or immediate threats to the safety of the public or the officers, will be sufficient to justify a warrantless entry into a suspect’s home to make an arrest. In Welsh v. Wisconsin, the Supreme Court held that a warrantless, non-consensual entry into a suspect’s home to make an arrest for a minor, noncriminal traffic offense is unreasonable even when probable cause exists and ‘exigent circumstances’ are present because the state’s interest in prosecuting minor offenses is too slight to overcome the presumption of unreasonableness that attaches to warrantless entries of the home.

SEARCHES INCIDENT TO A VALID ARREST After making a valid arrest, police may conduct a warrantless search of the arrestee regardless of whether they have probable cause or reasonable suspicion to believe that the arrestee possesses weapons or evidence (New York v. Belton 1981, pp. 454, 461). A search conducted immediately prior to an arrest may also be justified as incident to arrest if the

police had probable cause to arrest the suspect before conducting the search (Rawlings v. Kentucky 1980). However, a warrantless search that provides the probable cause to make a subsequent arrest is not valid as a search incident to arrest (Smith v. Ohio 1990, pp. 541, 543). The scope of the search incident to arrest is not limited to the arrestee’s person, but extends to the area within the arrestee’s immediate control, as well as closed closets and other spaces immediately adjacent to the place of arrest (Maryland v. Buie 1990, pp. 325, 334). Although an arrest does not generally justify a full-blown search of the arrestee’s entire home, the Supreme Court held in Maryland v. Buie that officers may conduct a limited protective sweep following an in-home arrest if they have a ‘reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene’ (Maryland v. Buie 1990, pp. 325, 337). The protective sweep involves only a cursory inspection of those spaces where a person may be found and may last no longer than reasonably necessary to dispel suspicion of danger (Thompson v. Louisiana 1984, pp. 17, 21–3). Items in plain view may be seized during a protective sweep.

SEIZURE OF ITEMS IN PLAIN VIEW Police may seize evidence that is in plain view without a warrant, provided that: (i) the police did not violate the Fourth Amendment in arriving at the place from which the evidence can be plainly viewed; (ii) the searching officer has a lawful right of access to the evidence itself; and (iii) the incriminating character of the evidence seized is immediately apparent (Horton v. California 1990, pp. 128, 136–7). To establish the incriminating character of an item, police must show that after an inspection of what is already exposed to view, they are able to determine that it is evidence or contraband (Arizona v. Hicks 1987, pp. 321, 328). The Court has expanded the plain view doctrine to include items discernable by ‘plain touch’ (Minnesota v. Dickerson 1993, pp. 366, 375).

EXIGENT CIRCUMSTANCES Government agents may conduct a warrantless search or seizure when probable cause exists and exigent circumstances justify proceeding without a warrant. Exigent circumstances exist when the evidence sought is in imminent danger of destruction (Cupp v. Murphy 1973, pp. 291, 296); the safety of law enforcement officers or the public is threatened (Warden, Md. Penitentiary v. Hayden 1967, pp. 294, 298–9); the police are in ‘hot pursuit’ of a suspect (United States v. Santana 1976, pp. 38, 42–3); or a suspect is likely to flee before the pursuing officer can obtain a warrant (Minnesota v. Olson 1990, pp. 91, 100).

CONSENT SEARCHES Government agents, without a warrant or probable cause, may conduct a search based upon an individual’s voluntary

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consent (express or implied) (Schneckloth v. Bustamonte 1973, pp. 218, 219). The scope of a consent search may not exceed the scope of the consent given (Florida v. Jimeno 1991, pp. 248, 251). Consent is not voluntary if given only in acquiescence to a claim of lawful authority (Bumper v. North Carolina 1968, pp. 543, 548). Moreover, consent to search is generally invalid if there was an illegal search or seizure before the consent was given (Florida v. Bostick 1991, pp. 429, 438; Florida v. Royer 1983, pp. 491, 501–8).

police custody – including a search of the passenger compartment, glove compartment, trunk, and any containers in the vehicle – even if the vehicle has been impounded for parking violations (Colorado v. Bertine 1987, pp. 367, 372; South Dakota v. Opperman 1976, pp. 364, 369). Contraband discovered in the course of a valid inventory search may be seized by the police (Colorado v. Bertine 1987, p. 476).

VEHICLE SEARCHES

Routine border stops and searches of persons, luggage, personal effects and vehicles may be conducted without probable cause or even reasonable articulable suspicion (Chandler v. Miller 1997, pp. 305, 308; United States v. Montoya de Hernandez 1985, p. 531). Although the Supreme Court has not explicitly enumerated the factors that make a border search routine or non-routine, courts rarely find enough intrusiveness to render a border search non-routine. For example, in Almeida-Sanchez v. United States (1973, pp. 266, 272), the Court found that a thorough search of a car was not sufficiently intrusive to qualify as a non-routine border search. The government may also conduct warrantless searches for illegal aliens at the border (United States v. MartinezFuerte 1976, pp. 543, 556–62). Under certain circumstances, a roving border patrol may stop a vehicle in the general area of the border and question its occupants if ‘specific, articulable facts’ give rise to reasonable suspicion that the vehicle may contain illegal aliens (United States v. Brignoni-Ponce 1975, pp. 873, 881).

Police are not required to obtain a warrant to search an automobile if they have probable cause to believe that it contains contraband or evidence of criminal activity, because of the inherent mobility of vehicles, which often creates exigent circumstances that make obtaining a warrant impractical, as well as reduced expectations of privacy due to the configuration, use and regulation of automobiles (Pennsylvania v. Labron 1996, p. 938). However, police do need a warrant to search a car in the driveway of a house under surveillance, and in other circumstances where obtaining a warrant is feasible (Horton v. California 1990, p. 128; Coolidge v. New Hampshire 1971, pp. 443, 460–2).

CONTAINER SEARCHES When there is probable cause to believe that a vehicle contains contraband, the entire vehicle, including any closed containers within it, may be searched without a warrant (Wyoming v. Houghton 1999, pp. 1297, 1298; California v. Acevedo 1991, pp. 565, 573). Contemporaneously with a custodial arrest, police may examine the contents of any container within the arrestee’s reach (New York v. Belton 1981, pp. 454, 460). No warrant is necessary to search a container if its illicit contents are in plain view or may be inferred from its outward appearance or touch (Minnesota v. Dickerson 1993, pp. 366, 372). Based upon reasonable suspicion, police may detain luggage without a warrant for a brief inspection, such as a dog sniff (United States v. Place 1983, pp. 696, 706–10). No warrant is necessary to search abandoned containers, including the contents of trash receptacles left for collection (California v. Greenwood 1988, pp. 39–41; Abel v. United States 1960, pp. 217, 241).

INVENTORY SEARCHES The police may conduct a warrantless search of property of which they have lawfully taken custody to prepare an inventory, according to standardized criteria, for the purposes of: (i) protecting the owner’s property; (ii) protecting the police against claims of lost or stolen property; or (iii) protecting the police from potential danger (Florida v. Wells 1990, pp. 1, 5). The police may conduct a warrantless inventory search of a vehicle lawfully in

BORDER SEARCHES

SEARCHES AT SEA As authorized by statute, government officials may board vessels subject to United States law, either on the high seas or in United States territorial waters, to conduct routine document and safety inspections without a warrant or probable cause (United States v. Villamonte-Marquez 1983, pp. 579, 592–3). Document and safety inspections may be conducted without a warrant even if the inspectors also suspect criminal activity (United States v. VillamonteMarquez 1983, p. 584). Customs officials are authorized to conduct document and safety inspections of foreign vessels without a warrant if the vessels are located in United States waters or in certain other areas specified by federal statutes and applicable treaties (19 U.S.C. § 1581(a) 1994).

ADMINISTRATIVE SEARCHES The Supreme Court has upheld warrantless administrative searches of pervasively regulated businesses where: (i) there is a substantial state interest behind the regulatory scheme; (ii) the search is necessary to further that scheme; and (iii) the authorizing statute is an adequate substitute for the warrant requirement in giving notice

An introduction to criminal procedure 799

to owners and limiting the discretion of those conducting the search (New York v. Burger 1987, p. 691).

SPECIAL NEEDS SEARCHES For certain searches, where the state’s ‘special need … beyond the normal need for law enforcement’ would be jeopardized through the individualized suspicion requirement normally applicable, the state may dispense with the warrant and probable cause requirements (Chandler v. Miller 1997, pp. 305, 313–14, 318; Vernonia School Dist. 47J v. Acton 1995, pp. 646, 660). For example, the Supreme Court has upheld: (a) random drug testing as justified by the special needs of public safety in the employment context (National Treasury Employees Union v. Von Raab 1989, pp. 656, 677; Skinner v. Railway Labor Executives’ Ass’n 1989, pp. 602, 633–4); (b) searches of the offices or persons of public employees based on ‘reasonableness’ rather than probable cause (O’Connor v. Ortega 1987, pp. 709, 713–14); (c) drug testing of public school students, and warrantless searches of students by school authorities (Vernonia School Dist. 47J v. Acton 1995, p. 653; New Jersey v. T.L.O. 1985, pp. 325, 333); and (d) warrantless searches of the homes of probationers and parolees based on ‘reasonableness’ rather than probable cause (Griffin v. Wisconsin 1987, pp. 868, 872–3).

ELECTRONIC SURVEILLANCE In Katz v. United States (1967), the Supreme Court, declaring for the first time that ‘the Fourth Amendment protects people, not places,’ held that a search governed by the Fourth Amendment is deemed to have occurred when: (i) the government has transgressed a citizen’s subjective manifestation of a privacy interest; and (ii) the privacy interest invaded is one that society is prepared to accept as legitimate. Accordingly, electronic eavesdropping by government agents using a listening device on the outside of a public telephone booth was held subject to the Fourth Amendment. Since Katz, Supreme Court decisions reflect the view that technological advances have led to a reduction in a person’s justified expectation of privacy. For example, in Dow Chemical Co. v. United States (1986), the Court saw no violation of the Fourth Amendment where the Environmental Protection Agency engaged in warrantless aerial photographing of a Dow Chemical manufacturing plant. Because any person with access to a camera and an airplane could have taken the same photographs, the Court found it unreasonable for Dow to expect privacy regarding aerial views of its plant (see also California v. Ciraolo 1986, pp. 207, 215; warrantless aerial observation of fenced-in backyard was not unreasonable under the Fourth Amendment in an age where commercial flights are routine); Florida v. Riley 1989, p. 445; surveillance from a helicopter flying at 400 feet permissible).

In United States v. Knotts (1983, p. 276), the Court held that the use of a ‘beeper’ (a battery-operated radio transmitter that emits periodic signals) in a drum of chemicals being transported in a car was neither a search nor a seizure within the meaning of the Fourth Amendment. A person travelling in an automobile on public roads, the Court stated, has no reasonable expectation of privacy in his movements from one place to another. The fact that police relied on the beeper as well as visual surveillance did not change the situation: ‘Nothing in the Fourth Amendment prohibited the police from augmenting the sensory facilities bestowed upon them at birth with such enhancement as science and technology afforded them in this case’ (United States v. Knotts 1983, p. 282). One year later, however, the Court in United States v. Karo (1984, p. 705) held that the monitoring of a beeper in a private residence, a location not open to visual surveillance, violates the Fourth Amendment rights of those who have a justifiable interest in the privacy of the residence. In Smith v. Maryland (1979, pp. 735, 744), the Court found no reasonable expectation of privacy in the numbers dialed on a telephone because such information is voluntarily conveyed and made available to telephone company personnel. Moreover, government regulation can itself reduce an individual’s reasonable expectation of privacy. For example, in New York v. Burger (1987, p. 691), the Court held that an automotive junk dealer, who was required by statute to keep a record for police inspection of all automobiles and parts in his possession, has a reduced expectation of privacy in his business and therefore had no constitutional objection to a warrantless (or suspicionless) search of his junkyard. Congress has specifically authorized electronic eavesdropping and wiretapping by federal and state law enforcement officials pursuant to a warrant based on probable cause. (Title III of the Omnibus Crime Control and Safe Streets Act). The Congressional statute also authorizes break-ins to install and later remove electronic surveillance devices. The Supreme Court has held that these authorizations are constitutional (Dalia v. United States 1979, p. 238). The statute also gives the President broad powers to take whatever steps he deems appropriate to protect against foreign powers in the interest of national security, including authorization of electronic surveillance without obtaining a warrant. Law enforcement officials are also permitted to employ informants who are ‘wired’ or ‘bugged’ to record or transmit conversations with a suspect (United States v. White 1971, p. 745). The dissenters in White were concerned about the chilling effect of the threat of hidden electronic monitoring on privacy and free discourse: ‘The impact of the practice of third-party bugging, must, I think, be considered such as to undermine that confidence and sense of security in dealing with one another that is characteristic of individual relationships between citizens in a free society’ (United States v. White 1971, p. 785; Harlan, J.,

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dissenting). Instances of surreptitious electronic surveillance of forensic psychiatrists by patients have raised particular concerns regarding the erosion of trust in relationships that have traditionally depended upon an expectation of privacy (see Goldstein 1989).

CONFESSIONS The Fifth Amendment provides (in relevant part): ‘No person … shall be compelled in any criminal case to be a witness against himself.’ Police interrogation of a suspect in custody threatens the exercise of this Fifth Amendment privilege because of the danger that officers might actively compel confessions through overtly coercive interrogation, or passively compel them by exposing suspects to the ‘inherently coercive’ environment created by custodial interrogation. In Miranda v. Arizona (1966, pp. 436, 442), the Supreme Court laid down ‘concrete constitutional guidelines for law enforcement agencies and courts to follow.’ These guidelines established that the admissibility in evidence of any statement given during custodial interrogation of a suspect would depend on whether the police provided the suspect with four warnings: that a suspect ‘has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.’1 As the Court recently observed in an opinion reaffirming Miranda, ‘Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.’ (Dickerson v. United States 2000, p. 2326). In Illinois v. Perkins (1990, pp. 292, 297), the Supreme Court confirmed that Miranda warnings are required only when a suspect is both in custody and subjected to interrogation. In Perkins, Miranda warnings were not required when an imprisoned suspect spoke with an undercover agent whom the suspect believed to be a cellmate, because the ‘essential ingredients of a “police-dominated atmosphere” and “compulsion” were not present.’ The determination of whether a suspect is ‘in custody’ for purposes of Miranda warnings depends on the ‘objective circumstances,’ not on the subjective views of either the interrogating officers or the person being interrogated (Stansbury v. California 1994, pp. 318, 321). A suspect is ‘in custody’ if there is a formal arrest or restraint of movement 1

In the wake of Miranda, Congress enacted 18 U.S.C. § 3501, which attempted to establish a rule that such statements would be admissible if they were voluntary, whether or not Miranda warnings were given. In Dickerson v. United States (2000, p. 2326), the Court held that Miranda, being a constitutional decision of the Court, may not in effect be overruled by an Act of Congress. Therefore, Miranda and its progeny still govern the admissibility of statements made during custodial interrogation.

to the degree associated with formal arrest. In a number of situations involving questioning by law enforcement authorities, the Court has held that no Miranda warnings were required because the suspect was not ‘in custody’ [see for example, Berkemer v. McCarty 1984, pp. 420, 442 (person detained pursuant to a routine traffic stop was not in custody); Minnesota v. Murphy 1984, pp. 420, 429–34 (routine meeting between an individual and his probation officer did not constitute custody); Michigan v. Summers 1981, pp. 692, 702 (‘informal’ detention of a suspect during the execution of a search warrant did not constitute custody)]. The Supreme Court has defined ‘interrogation’ for purposes of Miranda warnings as ‘words or actions on the part of the police … that the police should know are reasonably likely to elicit an incriminating response from the suspect.’ (Rhode Island v. Innis 1980, pp. 291, 301). In addition to express questioning, other tactics such as ‘psychological ploys’ designed to elicit incriminating responses may also amount to interrogation (Arizona v. Mauro 1987, pp. 520, 526). A court-ordered psychiatric examination of a defendant constitutes an interrogation requiring Miranda warnings (Estelle v. Smith 1981, p. 454). In some situations, evidence obtained through a Miranda violation is nonetheless admissible. For example, in New York v. Quarles (1984, pp. 649, 654), the Court held that testimonial evidence obtained from a suspect interrogated in custody was admissible despite the failure to give Miranda warnings because a threat to public safety had necessitated immediate police action. To prove a valid waiver of Miranda rights, the government must show that: (i) the relinquishment of the defendant’s rights was voluntary; and (ii) the defendant was fully aware of the waiver and its consequences (Moran v. Burbine (1986, pp. 412, 421). In Davis v. United States (1994, p. 452), the Court found a valid waiver where the defendant initially waived his right to counsel and then during questioning said, ‘Maybe I should talk to a lawyer.’ The Court held that the defendant’s request was ambiguous and reasoned that the suspect’s request for counsel must be clear enough to alert a reasonable police officer that the suspect is requesting an attorney. Although it may be good police practice, officers are not required to clarify an ambiguous request. Coercive police activity is a necessary predicate to finding that a confession is not ‘voluntary.’ A defendant’s mental condition, though a significant factor in determining voluntariness, does not, by itself and apart from its relation to official coercion, ever resolve the issue of constitutional voluntariness. Thus, in Colorado v. Connelly (1986, p. 157), the fact that the suspect was a chronic schizophrenic who confessed while in an acute psychotic state following a divine command hallucination, did not invalidate his confession to murder charges. The Court reasoned that, ‘Miranda protects defendants against government coercion leading them to surrender rights protected by the Fifth Amendment; it goes no further

An introduction to criminal procedure 801

than that. [The defendant’s] perception of coercion flowing from the “voice of God,” however important or significant such a perception may be in other disciplines, is a matter to which the United States constitution does not speak.’ Absent evidence of police coercion, the confession of a severely mentally ill suspect, however unreliable it may otherwise appear to be, is constitutionally valid once Miranda rights are waived.

IDENTIFICATION PROCEDURES The Sixth Amendment provides (in relevant part): ‘in all criminal prosecutions, the accused shall enjoy the right to … be confronted with the witnesses against him … and to have the Assistance of Counsel for his defense.’ In United States v. Wade (1967, pp. 218, 224), the Supreme Court held that a post-indictment, pre-trial lineup is a critical stage of a criminal proceeding where the defendant has the right to counsel. Thus, both the defendant and his counsel should have been notified of the lineup, and counsel’s presence at the lineup should have been required absent an intelligent waiver by the defendant. Nevertheless, the Court declined to hold that the failure to have counsel present at the lineup required exclusion of the identification of the defendant at trial by the witnesses who had earlier identified him at the lineup. The courtroom identification would be admissible if the government ‘could establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification.’ (United States v. Wade 1967, at 240). In Wade (388 U.S. at 228), the Court recognized that: … the vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification. Mr. Justice Frankfurter once said: ‘What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials. These instances are recent – not due to the brutalities of ancient criminal procedure.’ The Case of Sacco and Vanzetti 30 (1927).

More recently, in United States v. Crews (1980, pp. 463, 472), the Court referred to ‘the vagaries of human memory and the inherent suggestibility of many identification procedures.’ To assist the jury in assessing the reliability of identification evidence, some courts allow the introduction of expert testimony regarding the unreliability of eyewitness identification (see for example, United States v. Smith 1984, pp. 1103, 1107, 6th Cir.; abuse of discretion to refuse to admit expert testimony regarding the difficulties eyewitnesses have making cross-racial identifications and perceiving and remembering when under stress).

The right to counsel established in Wade does not encompass identification procedures that occur before the start of adversarial judicial proceedings (Kirby v. Illinois 1972, pp. 682, 690) or procedures, such as a photographic lineup, that do not require the defendant’s presence (United States v. Ash 1973, pp. 300, 321). The Fifth Amendment Due Process Clause prohibits identification testimony that derives from impermissibly suggestive procedures that may lead to a mistaken identification (Stovall v. Denno 1967, pp. 293, 302).‘It is the likelihood of misidentification which violates a defendant’s right to due process.’ (Neil v. Biggers 1972, pp. 188, 198). Thus, if the totality of the circumstances indicates that the identification is reliable, an identification derived from unnecessarily suggestive procedures need not be excluded (Manson v. Brathwaite 1977, pp. 98, 114). As discussed in the previous section, the Fifth Amendment protects a suspect from being compelled to give testimonial evidence against himself. However, the Fifth Amendment does not protect a suspect from being compelled to provide certain types of potentially incriminating physical evidence (see United States v. Hubbell 2000, p. 2037; Pennsylvania v. Muniz 1990, p. 582). Thus, even though the act may provide incriminating evidence, a suspect may be compelled to put on clothing (Holt v. United States 1910, pp. 245, 252–3); and provide a blood sample (Schmerber v. California 1966, p. 757), handwriting exemplar (Gilbert v. California 1967, p. 263), or voice exemplar (United States v. Wade 1967, p. 218).

THE EXCLUSIONARY RULE The exclusionary rule, a judicially created remedy to deter government violations of the Constitution, requires that evidence obtained directly or indirectly through violations of the Fourth, Fifth, or Sixth Amendments may not be introduced by the prosecution at trial, at least for the purpose of providing direct proof of the defendant’s guilt. Illegally obtained evidence can be used by the prosecution to impeach the defendant on cross-examination (Michigan v. Harvey 1990, pp. 344, 346). The government may also use illegally obtained evidence in federal civil tax proceedings (United States v. Janis 1976, p. 433); habeas proceedings (Stone v. Powell 1976, pp. 465, 493; grand jury proceedings (United States v. Calandra 1974, pp. 338, 349–52); civil deportation proceedings (I.N.S. v. LopezMendoza 1984, pp. 1032, 1050); parole revocation proceedings (Pennsylvania Bd. of Probation and Parole v. Scott 1998, pp. 2014, 2020); and at a defendant’s sentencing hearing (United States v. Tauil-Hernandez 1996, pp. 576, 581, 8th Cir.; United States v. Torres 1991, pp. 324–5, 3d Cir.). In United States v. Leon (1984, pp. 897, 920), the Supreme Court created a ‘good faith exception’ to the exclusionary rule, holding that evidence obtained through objective good faith reliance on a facially valid warrant

802 Basic issues in law

that is later found to lack probable cause need not be suppressed. The good faith exception also applies when police obtain evidence in reliance on: (i) a warrant later found to be technically defective (Massachusetts v. Sheppard 1984, pp. 981, 991); (ii) a statute authorizing warrantless searches that is later declared unconstitutional (Illinois v. Krull 1987, pp. 340, 349–50); or (iii) a police record erroneously indicating the existence of an outstanding arrest warrant (Arizona v. Evans 1995, pp. 14–16). The good faith exception does not apply where the police have no reasonable grounds for believing that the warrant was properly issued (United States v. Leon 1984, pp. 922–3). The Supreme Court has specifically identified four situations where police reliance on a warrant is not objectively reasonable: 1 When the warrant was issued in reliance on a deliberately or recklessly false affidavit (Franks v. Delaware 1978, pp. 154, 155–6). 2 When the magistrate issuing the warrant failed to act in a neutral and detached manner (Lo-Ji Sales, Inc. v. New York 1979, pp. 319, 326–8). 3 When the warrant was based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable’ (United States v. Leon 1984, p. 923). 4 When the warrant was so facially deficient that an officer could not reasonably have believed it to be valid (United States v. Leon 1984, p. 923). A court may admit evidence that would not have been discovered but for official misconduct if the causal connection between the illegal conduct and the acquisition of the evidence is sufficiently attenuated to purge the evidence of its taint (Wong Sun v. United States 1963, pp. 471, 488). In Brown v. Illinois (1975, pp. 590, 603), the Supreme Court set forth three factors for courts to consider in determining whether the causal chain has been sufficiently attenuated: 1 The time elapsed between the illegality and the acquisition of the evidence. 2 The presence of intervening circumstances. 3 The purpose and flagrancy of the official misconduct. Similarly, even if police engage in illegal activity, evidence is admissible if it is discovered through a source independent of the illegality, or if the evidence inevitably would have been discovered through independent, lawful means (Murray v. United States 1988, pp. 533, 537).

REFERENCES Abel v. United States, 362 U.S. 217 (1960). Almeida-Sanchez v. United States, 413 U.S. 266 (1973). Arizona v. Evans, 514 U.S. 1 (1995). Arizona v. Hicks, 480 U.S. 321 (1987).

Arizona v. Mauro, 481 U.S. 520 (1987). Berkemer v. McCarty, 468 U.S. 420 (1984). Brown v. Illinois, 422 U.S. 590 (1975). Bumper v. North Carolina, 391 U.S. 543 (1968). California v. Acevedo, 500 U.S. 565 (1991). California v. Ciraolo, 476 U.S. 207 (1986). California v. Greenwood, 486 U.S. 35 (1988). Chandler v. Miller, 520 U.S. 305 (1997). Colorado v. Bertine, 479 U.S. 367 (1987). Colorado v. Connelly, 479 U.S. 157 (1986). Coolidge v. New Hampshire, 403 U.S. 443 (1971). County of Riverside v. McLaughlin, 500 U.S. 44 (1991). Cupp v. Murphy, 412 U.S. 291 (1973). Dalia v. United States, 441 U.S. 238 (1979). Davis v. United States, 512 U.S. 452 (1994). Dickerson v. United States, 120 S.Ct. 2326 (2000). Dow Chemical Co. v. United States, 476 U.S. 227 (1986). Estelle v. Smith, 451 U.S. 454 (1981). Florida v. Bostick, 501 U.S. 429 (1991). Florida v. Jimeno, 500 U.S. 248 (1991). Florida v. Riley, 488 U.S. 445 (1989). Florida v. Royer, 460 U.S. 491 (1983). Florida v. Wells, 495 U.S. 1 (1990). Franks v. Delaware, 438 U.S. 154 (1978). Gerstein v. Pugh, 420 U.S. 103 (1975). Gilbert v. California, 388 U.S. 263 (1967). Goldstein, R.L. 1989. Spying on psychiatrists: surreptitious surveillance of the forensic psychiatric examination by the patient himself. Bulletin of the American Academy of Psychiatry and the Law 17, 367–72. Griffin v. Wisconsin, 483 U.S. 868 (1987). Holt v. United States, 218 U.S. 245 (1910). Horton v. California, 496 U.S. 128 (1990). Illinois v. Gates, 462 U.S. 213 (1983). Illinois v. Krull, 480 U.S. 340 (1987). Illinois v. Perkins, 496 U.S. 292 (1990). Illinois v. Wardlow, 528 U.S. 119 (2000). I.N.S. v. Lopez-Mendoza, 468 U.S. 1032 (1984). Katz v. United States, 389 U.S. 347 (1967). Kirby v. Illinois, 406 U.S. 682 (1972). Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979). Manson v. Brathwaite, 432 U.S. 98 (1977). Maryland v. Buie, 494 U.S. 325 (1990). Massachusetts v. Sheppard, 468 U.S. 981 (1984). Michigan v. Harvey, 494 U.S. 344 (1990). Michigan v. Summers, 452 U.S. 692 (1981). Minnesota v. Dickerson, 508 U.S. 366 (1993). Minnesota v. Murphy, 465 U.S. 420 (1984). Minnesota v. Olson, 495 U.S. 91 (1990). Miranda v. Arizona, 384 U.S. 436 (1966). Moran v. Burbine, 475 U.S. 412 (1986). Murray v. United States, 487 U.S. 533 (1988). National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989). Neil v. Biggers, 409 U.S. 188 (1972). New Jersey v. T.L.O., 469 U.S. 325 (1985). New York v. Belton, 453 U.S. 454 (1981).

An introduction to criminal procedure 803 New York v. Burger, 482 U.S. 691 (1987). New York v. Quarles, 467 U.S. 649 (1984). O’Connor v. Ortega, 480 U.S. 709 (1987). Pennsylvania Board of Probation and Parole v. Scott, 118 S.Ct. 2014 (1998). Pennsylvania v. Labron, 518 U.S. 938 (1996). Pennsylvania v. Muniz, 496 U.S. 582 (1990). Rawlings v. Kentucky, 448 U.S. 98 (1980). Rhode Island v. Innis, 446 U.S. 291 (1980). Schmerber v. California, 384 U.S. 757 (1966). Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989). Smith v. Maryland, 442 U.S. 735 (1979). Smith v. Ohio, 494 U.S. 541 (1990). South Dakota v. Opperman, 428 U.S. 364 (1976). Stansbury v. California, 511 U.S. 318 (1994). Stone v. Powell, 428 U.S. 465 (1976). Stovall v. Denno, 388 U.S. 293 (1967). Terry v. Ohio, 392 U.S. 1 (1968). Thompson v. Louisiana, 469 U.S. 17 (1984). United States v. Ash, 413 U.S. 300 (1973). United States v. Brignoni-Ponce, 422 U.S. 873 (1975). United States v. Calandra, 414 U.S. 338 (1974).

United States v. Crews, 445 U.S. 463 (1980). United States v. Hubbell, 120 S.Ct. 2037 (2000). United States v. Janis, 428 U.S. 433 (1976). United States v. Karo, 468 U.S. 705 (1984). United States v. Knotts, 460 U.S. 276 (1983). United States v. Leon, 468 U.S. 897 (1984). United States v. Martinez-Fuerte, 428 U.S. 543 (1976). United States v. Place, 462 U.S. 696 (1983). United States v. Santana, 427 U.S. 38 (1976). United States v. Sharpe, 470 U.S. 675 (1985). United States v. Smith, 736 F.2d 1103 (6th Cir. 1984). United States v. Tauil-Hernandez, 88 F.3d 576 (8th Cir. 1996). United States v. Torres, 926 F.2d 321 (3d Cir. 1991). United States v. Villamonte-Marquez, 462 U.S. 579 (1983). United States v. Wade, 388 U.S. 218 (1967). United States v. White, 401 U.S. 745 (1971). U.S. v. Montoya de Hernandez, 473 U.S. 531 (1985). Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995). Warden, Md. Penitentiary v. Hayden, 387 U.S. 294 (1967). Welsh v. Wisconsin, 466 U.S. 740 (1984). Whren v. United States, 517 U.S. 806 (1996). Wong Sun v. United States, 371 U.S. 471 (1963). Wyoming v. Houghton, 119 S.Ct. 1297 (1999).

87 Punishment RUSSELL STETLER AND ROBERT LLOYD GOLDSTEIN

INTRODUCTION The broad purposes of the criminal law are to prevent certain undesirable conduct and thereby to protect various interests of society. Criminal law is framed in terms of imposing punishment for undesirable conduct (LaFave and Scott 1972). The institution of punishment exists in every society. When it is imposed by English-speaking courts, it is referred to as sentencing (Walker 1991). In criminal cases, the state is the complaining party, ‘the initiating and enforcing agent’ (Murphy and Coleman 1990, p. 113), in contrast to cases in private or civil law, in which individuals seek redress for harm. In criminal cases, the state views itself as the injured party and, in order to protect the public interest, may choose to prosecute crimes even in cases where the victim prefers not to press charges. A discussion of why certain classes of acts are criminalized in order to prevent seriously harmful conduct, whereas other acts, perhaps equally harmful, are the province of civil law (e.g., tort actions providing for the award of monetary damages), is beyond the scope of this chapter and has been dealt with elsewhere (Nozick 1974; Posner 1977). According to Hart (1968), the shared conception of punishment is defined in terms of five elements: 1 It must involve pain or other consequences normally considered unpleasant (e.g., incarceration). 2 It must be for an offense against legal rules. 3 It must be of an actual or supposed offender for his or her offense. 4 It must be intentionally administered by human beings other than the offender. 5 It must be imposed and administered by an authority constituted by a legal system against which the offense is committed (Hart 1968, pp. 4–5). A society may be said to have an institution of legal punishment if it satisfies three conditions: ‘(1) a set of criminal laws; (2) a procedure for determining who shall be punished as a way of enforcing the laws; and (3) an

authoritative social mechanism for imposing the punishment’ (Golding 1975, p. 71). There are a number of rival theories of punishment, each with its enthusiastic adherents and critics. Courts imposing sentences rely on a combination of these traditions, sometimes choosing that objective most likely to be achieved: The courts must continue to balance deterrence, rehabilitation and retribution, but it must be recognized that where it is not possible to have much or any confidence that the sentence imposed will do anything by way of deterrence or rehabilitation, substantial retribution must be exacted. The legal system must exact retribution from an offender because otherwise the community in the last resort will exact its own. In a civilized society, that is not acceptable. (Victorian Attorney-General’s Department; Report of the Victorian Sentencing Committee 1988, p. 24)

THEORIES OF PUNISHMENT Deterrence The utilitarian penologists (in a tradition extending from Plato and Protagoras to Bentham, Mill and Wootton) view deterrence as the paramount justification for legal punishment. Members of a society are deterred from the commission of proscribed acts because of the possible consequences (the threat of punishment) that the criminal law mandates. This is a forward-looking theory, which rests on the empirical premise that the threat of punishment, or its actual imposition in a particular case, serves as an effective deterrent to others. The evil of punishment is justified therefore, because it leads to the greater overall good of society by reduction of crime and rights violations. Plato stated the deterrence theory succinctly over two thousand years ago: Punishment is not retribution for the past, for what has been done cannot be undone; it is imposed for the

Punishment 805 for himself or for his fellow citizens … . The law concerning punishment is a categorical imperative, and woe to him who rummages around in the winding paths of a theory of happiness looking for some advantage to be gained by releasing the criminal from punishment or by reducing the amount of it … . Even if civil society were to dissolve itself by common agreement of all its members (for example, if the people inhabiting an island decided to separate and disperse themselves around the world), the last murderer remaining in prison must be executed, so that everyone will duly receive what his actions are worth and so that the bloodguilt thereof will not be fixed on the people because they failed to insist on carrying out the punishment; for if they fail to do so, they may be regarded as accomplices in this public violation of legal justice. (Kant 1965, p. 102)

sake of the future and to secure that both the person punished and those who see him punished may either learn to detest the crime utterly or at any rate to abate much of their old behavior. (Plato 1975, p. 934)

According to Bentham (1961), the chief end of punishment is general deterrence, that is, the imposition of punishment on the offender promotes the greater good of deterring other members of society from committing similar acts, thereby resulting in an overall reduction of crime. Bentham sets forth a cost–benefit analysis to decide which acts need to be criminalized and to calculate the optimal amount of punishment for specific offenses (in order to satisfy utilitarian considerations of promoting the overall safety and happiness of society), which is necessary to prevent criminal activity at the ‘cheapest rate’ possible (Golding 1975). Bentham’s calculus serves to arrive at a balance where overall social benefits outweigh social costs, resulting in a net social gain. Special deterrence (or particular deterrence) refers to a related aim of criminal punishment to deter the criminal him/herself (rather than to deter others) from committing future criminal acts. By providing for an unpleasant experience he/she will wish to avoid in the future, it is hoped that fear of renewed punishment will deter him/her in the future. Ideally, the imposed punishment may even reform him/her and result in a change of heart (LaFave and Scott 1972). Of course, if he or she is executed, the punishment will be absolutely effective in deterring him/her from the commission of future crimes.1 Some studies on special deterrence suggest that a suspended sentence is less effective than an actual sentence of incarceration in reducing the reconviction rate. Similarly, prisoners who spend more time in prison may be less likely to be reconvicted (Walker 1991). The tendency of the first exposure to prison to suppress rearrest rates has been termed the ‘suppression effect’ (Murray and Cox 1979).

Retributivism The retributive theory of punishment justifies legal punishment not on the basis of social utilitarianism, but as a normal duty to punish a guilty offender who deserves a just punishment. According to Kant, Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or for society, but instead it must in all cases be imposed on a person solely on the ground that he has committed a crime … . He must first be found to be deserving of punishment before any consideration can be given to the utility of this punishment

Retributivism differs from mere revenge or vindictiveness, in that the latter are personal responses to criminal wrongdoing, sometimes of an extralegal nature.2 Retribution, on the other hand, is based on a respect for the law and on a ‘cluster of moral concepts: rights, desert, merit, moral responsibility, and justice’ (Murphy and Coleman 1990, p. 121). The justification for punishment is backward-looking (as opposed to the deterrence theory), in that it is based on what an individual has done already, on his or her guilt and blameworthiness, and not on what he or she will do in the future. Kant represents the so-called maximalist position, maintaining that there is an absolute duty to punish the culpable offender, to make him/her pay their debt to society. (The minimalist position asserts that no one should be punished unless he or she is guilty of a criminal offense; however, under certain circumstances, even though deserving of punishment, he or she may be absolved partially or completely.) Whether maximalist or minimalist, all retributive punishment signifies a condemnatory attitude expressed toward the guilty offender. The criminal is an enemy of society and the imposition of punishment is, according to Lord Denning, ‘the emphatic denunciation by the community of a crime.’ (Hart 1968, p. 2). According to Kant, all individuals have a moral duty to obey the law. This is a reciprocal obligation or debt that we owe each other in order ‘to secure justice and the respect of rights in action’ (Golding 1975, p. 91). Those who knowingly commit a crime acquire a ‘moral demerit’ by virtue of weakening the ‘fabric of justice’ and attempting to profit from their wrongdoing. The criminal thereby owes a debt to society as a whole and ‘must be punished in order to vindicate justice and rights’ (Golding 1975, 2

1

Murphy and Coleman (1990, p. 109) cannot resist offering the following example of ‘gallows humor’ to reinforce this point: Hangman: ‘Do you have any last words?’ W. C. Fields: ‘This is certainly going to be a lesson to me.’

Some feel that institutionalized revenge is one legitimate purpose of state punishment. As Judge Stephen (1890) wrote, ‘The criminal law regulates, sanctions, and provides a legitimate satisfaction for the passion of revenge; the criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite.’ (Stephen 1890, p. 99).

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p. 92). Failure to punish the culprit is an unthinkable violation of the duty of justice, and Kant warns that ‘If legal justice perishes, then it is no longer worthwhile for men to remain on this earth.’ (Kant 1965, p. 100). In order for the offender to get his or her just deserts, the level of punishment should roughly equal the moral gravity of the offense (which is a function of both the harm involved in the offense and the degree of culpability of the offender).3 This equalizing standard (when offense and punishment stand in equal relationship to each other) restores the moral balance and vindicates justice. This retributivist idea of a ‘moral fit’ between offense and punishment preserves the ‘spirit’ of the lex talionis (‘an eye for an eye’) as the most appropriate measure of just punishment (Golding 1975). This equalizing standard of punishment, which Walker (1991) calls ‘commensurability,’ is unworkable in practice and has been abandoned for the relational standard (or ‘proportionality’). The offender accordingly is punished relative to the gravity of the particular category of offenses as contrasted with offenses from other categories. Thus, crimes of equal gravity are punished by equally severe penalties, and weightier offenses are punished more severely than lesser ones. Both offenses and corresponding penalties are graded on a series of rough scales (Golding 1975). Further discussion of the problems inherent in sentencing are beyond the scope of this chapter, but have been explored by a psychiatrist (Gaylin 1975), a judge (Frankel 1972), and a criminologist (Walker 1985), each offering suggestions for change in our legal system.

Incapacitation (restraint, disablement) When criminals are deprived of their liberty and are isolated from society, they lose the capacity to commit further crimes against society. The mainstays of the system, incarceration or very tight control in the community, incapacitate the offenders and, if nothing else, protect the public from the crimes they would commit were they free to do so. The protective efficacy of incapacitation seems obvious in the individual case, but what is its actual effect on overall crime reduction? Wilson (1985) summarizes the research literature on this controversial issue, including one study that put forward an ‘elegant mathematical formula for estimating the crime-reduction potential of incapacitation under various assumptions’ (Wilson 1985, p. 147, citing Shinnar and

3

Social scientists have constructed tables to rate offenses according to the harm involved, considering features such as injury or loss sustained by the victim, use of weapons, type of victim, etc. (Sellin and Wolfgang 1964; Rossi et al. 1974). Degree of culpability is related to mitigating factors (e.g., provocation, intentional temptation by the victim, youth or old age, mental disorder, etc.) and aggravating factors (e.g., premeditation, professionalism, misuse of a fiduciary relationship, etc.) (Walker 1991).

Shinnar 1975). The latter study concluded that the rate of street robberies in New York would be reduced to about one-fifth of the 1970 rate if every offender convicted of the crime was imprisoned (incapacitated) for five years. The best study to date demonstrates that selective incapacitation of high-rate offenders would be the most effective means of crime reduction (Petersilia and Greenwood 1978). The authors developed a predictive scale, consisting of seven factors, which proved to be a reliable guide to identifying high-rate offenders. Given that long-term ‘incarceration is the most expensive penalty ever invented’ (Walker 1991, p. 36), Greenwood (1982) hypothesized that selective incapacitation of high-rate offenders (by lengthening their sentences, while lowering those of low-rate offenders) would result in significant crime reduction with no increase in the total prison population. There are a number of excellent critical reviews of the American correction system in its present-day form, as well as scholarly accounts of its antecedents in England and the American colonies, which authorized the used of legalized torture and mutilation (Hibbert 1966; Honderich 1971; Earle 1972; Goldfarb and Singer 1973).

Rehabilitation (correction, reformation) The rehabilitative approach seeks to offer the convicted offender appropriate treatment ‘in order to rehabilitate him and return him to society so reformed that he will not desire or need to commit further crimes.’ (LaFave and Scott 1972, p. 23). At one extreme, there are those who advocate replacing the criminal process of punishment with a system of therapeutic rehabilitation, which presumably offers a more scientific response to criminal behavior. The leading proponent of this position was Dr. Karl Menninger, who argued in The Crime of Punishment that, ‘Being against punishment is not a sentimental conviction. It is a logical conclusion drawn from scientific experience.’ (Menninger 1969, p. 204). All criminal behavior is viewed as a symptom of mental illness and accordingly should be dealt with by the psychiatrist and social worker, rather than by the prosecutor, judge, and warden. A board of experts would oversee the rehabilitative needs of the offender, who would be detained until treatment was satisfactorily completed (Golding 1975). Treatment presumably would include modalities ranging from psychotherapy and occupational training to psychosurgery, electroconvulsive therapy, sterilization, behavior modification techniques, and drug therapy. Most criminologists and philosophers have dismissed such an approach as ‘totally and systematically wrong … fabricated solely upon confusion and fallacies.’ (Murphy 1973). Golding (1975, p. 104) quotes Herbert Packer as saying, ‘We should be as suspicious of the urge to cure as of the urge to punish.’ Murphy (1973) decisively demolishes

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these theories on both procedural and substantive grounds, demonstrating that they threaten individual liberty and due process rights by legitimizing preventive and indeterminate detention; moreover, they would indiscriminately attempt to impose the psychiatric-medical model on a heterogeneous population of criminal offenders without regard to scientific, moral, or political considerations. Aside from the discredited theories of those who would advocate the total abolition of punishment, what are the results of research attempts to measure the achievements of programs designed to treat and rehabilitate offenders within the context of the present-day correctional system? Is there any basis for optimism regarding the efficacy of treatment in any form? Unfortunately, the overwhelming consensus of research in this area has resulted in the undermining of virtually all of the enduring mythology regarding prior optimistic assessments of corrective efficacy.4 (Wilkins 1969). As early as 1951, the Cambridge-Somerville Youth study of nearly 2000 youthful offenders concluded that therapeutic intervention ‘was no more effective than the usual forces in the community in preventing boys from committing delinquent acts’ (Walker 1991, p. 42, citing Powers and Witmer 1951). Martinson (1974) systematically reviewed all of the rehabilitation research literature in the English language between 1945 and 1967 and, in his seminal article ‘What Works,’ grimly concluded that, ‘With few and isolated exceptions, the rehabilitative efforts that have been reported so far had no appreciable effect on recidivism.’ (Martinson 1974, p. 25). Martinson’s conclusions were echoed by other investigators in the field (Wilkins 1969; Hood and Sparks 1970; Greenberg 1977; Martin, Sechrest, and Redner 1981), resulting in a loss of faith in the scientific and philosophical rationale for making rehabilitation the paramount goal of sentencing (Wilson 1985). The literature falls short of establishing that ‘nothing works,’ but does indicate that there is currently no proof that any rehabilitative method in use does succeed. This does not eliminate the possibility that some offenders are now amenable to rehabilitation or that new methods will prove their efficacy in future studies (Adams 1962). The current state of affairs has been aptly summarized by Walker: ‘Nothing works’ is an overstatement. Some things work with some offenders, but not with most, or not for long. The minority who would respond to a specific measure, applied in a specific way, are not easily identified, even by professionals. Nor can anyone guarantee that a specific measure will be applied as the sentencer or professional adviser intended that it should be. (Walker 1991, p. 49)

4 A mere twenty or thirty years ago there was a primary commitment to the ‘rehabilitative ideal,’ as compared to the other theories of punishment (Allen 1959; LaFave and Scott 1972).

POSTSCRIPT ON CAPITAL PUNISHMENT No review of punishment in contemporary America would be complete without discussing the death penalty. Executions have been a part of American life since colonial times, but three distinct historical periods can be identified. In the first period, from colonial times through the late nineteenth century, the punishment of death was available for many crimes and was carried out by local authorities – often in public squares, to maximize deterrent effects. In the middle years, from the late nineteenth century through the 1960s, executions became the responsibility of state and federal authorities, the range of capital offenses was narrowed, and the method of execution was modernized. The current period, beginning in 1976, has further narrowed the category of death-eligible offenses, required individualized determination of those selected for the ultimate sanction, and introduced lethal injection as the predominant method of execution. The first recorded execution in the American colonies was in Jamestown in 1608 (Capt. George Kendall). Following the English conquest of New Netherland in 1664, the New York colony was governed by the so-called ‘Duke’s Laws,’ which sanctioned death for eleven crimes, including some classes of homicide (premeditated murder and the slaying, with a sword or dagger, of someone who had no weapon of defense); various sex crimes (carnal copulation with any ‘Beast or Bruite’; homosexual copulation, ‘unless one part were Forced or be under fourteen years of age’; and adultery by a married person); denial of the ‘true God and his Attributes’; and hitting one’s parents (though only upon the complaint of both parents) (Mackey 1982). It is estimated that before the American Revolution, over 20 per cent of all New York’s penalties were capital (Rothman 1990). Public executions flourished in the early nineteenth century – with ‘Hanging Day’ crowds in New York estimated in the tens of thousands. In 1835, New York became the fourth state in the Northeast to abolish public executions, in the belief that public executions tended to ‘harden and brutalize the feelings of the populace, familiarize them with scenes of blood, incite disgust instead of terror or respect for the laws, and increase offenses both in number and enormity.’ The legislature moved executions ‘within the walls of the prison of the county in which such convictions shall have taken place, or within a yard or enclosure adjoining said prison.’ (Act of May 9, 1835, ch. 258, 1835 New York Laws 299, Section One). As executions moved from public spectacles to solemn procedures carried out behind prison walls, hanging, in turn, gave way to more modern instruments of judicial homicide – electric chairs and gas chambers. Nationwide, executions increased ten-fold in the first third of the twentieth century, from 155 in the 1890s to 1523 in the 1930s. But the decline in the second third of

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the century was almost symmetrical – with nationwide executions dropping to 191 in the 1960s and early 1970s. In 1972, the United States Supreme Court struck down all the capital statutes then in effect because capital punishment seemed to be imposed on a ‘capriciously selected random handful’ of murderers and rapists (in the words of one justice, who found death sentences as cruel and unusual as being struck by lightning). Many states responded by passing new death penalty statutes which attempted to eliminate the unfettered discretion which had produced these arbitrary results. In 1976, the U.S. Supreme Court reviewed five new capital statutes, invalidating mandatory death sentences (i.e., automatic death sentences for those convicted of a particular category of crime) but upholding statutes with ‘guided discretion’ (permitting individualized sentencing after consideration of ‘compassionate or mitigating factors stemming from the diverse frailties of humankind’) (Woodson v. North Carolina 1976). By the year 2000, thirty-eight states had enacted death-penalty statutes, as had the federal government and the U.S. military. The overwhelming majority of capital punishment jurisdictions now have lethal injection as a method of execution (or as the sole method). The Eighth Amendment prohibition on cruel and unusual punishment has long been held to proscribe torturous punishments, such as disembowelment, drawing and quartering, public dissection, and burning alive (Wilkerson v. Utah 1878). However, the U.S. Supreme Court has also made clear that the amendment ‘must draw its meaning from the evolving standards of decency that mark the progress of a maturing society’ (Trop v. Dulles 1958). Thus, methods of execution which were acceptable in the past continue to be challenged based on evolving societal standards. The recent American experience with capital punishment has shown no differential deterrent effects compared to lengthy prison sentences. Indeed, the twelve states which have no death penalty have not had higher homicide rates than states with the death penalty. Ten of the twelve states without capital punishment have homicide rates below the national average, and half the death-penalty states have homicide rates above the national average (Bonner and Fessenden 2000). While there is no debate as to particular deterrence (execution will certainly deter the individual offender from ever killing again), there has been great concern about the risk of executing the wrongfully convicted. DNA exonerations of death-sentenced prisoners have raised questions about whether innocent persons have been executed. Some utilitarians view such executions as an acceptable risk when balanced against the greater societal good of deterring crime and expressing outrage at horrific murders, but many critics of the death penalty feel that this risk in itself is a compelling argument for abolishing capital punishment. The first statistical study of modern American capital appeals revealed an overall rate of prejudicial error of 68

per cent. This study, by academics from Columbia and New York University, reviewed 4578 capital cases between 1973 and 1995. In the cases overturned by state postconviction courts due to serious error, 82 per cent were found to deserve a sentence less than death when the errors were cured on retrial, and 7 per cent were found to be not guilty of the capital crime (Liebman, Fagan, and West 2000). Societal protection through incapacitation of the offender seems to be equally well served by the current alternative to capital punishment – true life sentences in maximum-security prisons. Many states now offer life without the possibility of parole as an alternative to the death penalty. For Benthamite utilitarians, there appears to be a fiscal advantage to life sentences compared to the legal costs associated with death-penalty cases involving years of complex trial, appellate and post-conviction litigation at public expense. Retributivism remains the principal theoretical justification for capital punishment. But U.S. Supreme Court jurisprudence has stressed the need to consider the moral blameworthiness of each individual death-eligible defendant. Challenges to capital punishment have also raised questions of proportionality – that is, whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases considering both the crime (in 1977, the U.S. Supreme Court held that the death penalty is a disproportionate punishment for the crime of rape; Coker v. Georgia 1977) and the defendant. Among the factors bearing on this question are race of defendant and victim, geographic disparities, and the influence of momentary passion and abiding prejudice on charging and imposition of the death penalty in individual cases. The retributivist model requires that the offender who deserves death have the capacity to comprehend ‘why he has been singled out and stripped of his fundamental right to life … . Whether its aim be to protect the condemned from fear and pain without comfort or understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, the restriction [against executing the insane] finds enforcement in the Eighth Amendment.’ (Ford v. Wainwright 1986). Thus, unique issues of competency to be executed arise for forensic assessment, in addition to the myriad other mental-health issues in capital cases. Competency is always a context-based legal determination (Mezer and Rheingold 1962; Burt and Philipsborn 1998). That is, a person may be competent for one type of action (writing a will or refusing medical treatment), but incompetent for another (assisting and aiding counsel in a capital trial or understanding why he or she is being executed). Competency also has a temporal dimension. A person may be incompetent today but restored to competency in six months. Some commentators have raised ethical concerns about