An Educational Service for Mental Health Clinicians, Forensic Psychiatrists, Forensic Psychologists, Other Clinical & Forensic Professionals, Attorneys, and Judicial Professionals
(Students & Clinical Trainees Welcome, too!)
William
H. Reid, M.D., M.P.H.
Forensic
Psychiatry Consultant
Horseshoe Bay, Texas -- (830) 596-0062
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Note: Material presented on this website is greatly summarized or excerpted. It should not be considered complete or exhaustive. Legal concepts or findings are summarized informally; they reflect Dr. Reid's general understanding, and are not necessarily the official positions of any court, litigating party, government, or other body. Comments are welcome, and may be e-mailed to Dr. Reid's office.
Contents and concept copyright © 1998-2009 by William H. Reid, M.D., M.P.H., unless otherwise assigned. Full-text material from the Journal of Psychiatric Practice is copyrighted by Lippincott Williams & Wilkins, and used with permission.
Current & "Basic" Updates and Full-Text Articles
Confidentiality and Testimonial Privilege in Psychiatry and Psychotherapy:
Court Trends When Danger or Litigation Self-Interest Is Are an IssueA recent issue of e-Developments in Mental Health Law discussed a little bit of evolution in these two areas of client privilege (patient privilege). Special testimonial protections for information covered by client-therapist privilege has been recognized in U.S. law for over 50 years, first appearing in an Illinois case that, in a particular circumstance, precluded use of disclosures made in psychotherapy and differentiated psychotherapy situations from the level of confidentiality one could expect in an ordinary clinical setting. The primary basis for such a privilege is not a "right" to privacy, but rather the ideas that an expectation of confidentiality is integral to psychotherapeutic and psychoanalytic work, and persons with severe -- even dangerous -- problems might not seek help if confidentiality were not assured. The concept applies in all states and the federal court system. In 1996, the U.S. Supreme Court found that access to confidential psychological or psychiatric care serves the "public good," barring legitimate exceptions (Jaffee v. Redmond, 518 U.S. 1 [1996]).
There are at least two areas of exception that are often considered by both courts and clinicians: dangerous patients and those who allege psychiatric or psychological conditions that cannot be explored without access to, and often testimony about, mental health records (e.g., in a criminal defense or as damages or other factors in a lawsuit).
Since Jaffe in 1996, many state courts and some federal appeals courts have held that substantial dangerousness to others, and the need to warn or protect them, represents an exception to patient privilege. At least two (the Sixth and Ninth Circuits) disagree. Paul Appelbaum, M.D., a prominent psychiatrist and forensics and ethics scholar, has written about a "dangerousness exception," but is concerned about its being expanded beyond critical situations of likely harm to oneself or others. (Appelbaum PA [2008]. Privilege in the federal courts: Should there be a “dangerous patient exception”? Psychiatric Services 59[714])
With regard to whether or not a civil plaintiff or criminal defendant can shield his/her mental health records even when making psychiatric symptoms an issue in litigation, some courts take a broad view, others a narrow one. In the former, litigants generally waive their privilege when claiming emotional damage or raising their own psychological condition or psychiatric illness as a defense or mitigating factor. Under the narrow view, however, the litigant is not entitled to the privilege if he/she "affirmatively uses his or her mental condition in the case, such as when the cause of action relies on the diagnosis or advice of a party’s psychotherapist” (Cappetta v. GC Services, Eastern District of Virginia, Feb. 23, 2009, as quoted in e-Developments in Mental Health Law, 28:e3).
In June, 2008, I posted a vignette about Maryland inmate Kevin Johns, a man found not criminally responsible for the 2005 killing of another prisoner while on a Maryland "Supermax" prison bus (click HERE for the original update). It was his third killing. The NGRI verdict in the 2005 incident was apparently associated with hallucinations arising from bipolar disorder. Officials at Maryland's secure psychiatric facility, Clifton T. Perkins Hospital, petitioned a court to have Johns transferred away from their state hospital because they were unable to reasonably protect other patients from him. In June, 2008, a county judge ruled that Johns' special case allowed him to be housed at the Baltimore "supermax" prison, despite state law directing that such patients to be committed to a Department of Health and Mental Hygiene facility. The case may have been unique in its housing of an NGRI acquitee in a prison rather than a non-prison setting (although nonprison NGRI settings are often very secure). See also http://www.baltimoresun.com/news/local/baltimore_county/bal-inmate,0,1520472.storygallery for a chronological summary Baltimore Sun articles about the case.
Johns has now died, apparently by committing suicide in his prison cell. The March 24, 2009, Baltimore Sun news story is available by clicking HERE.
I offer no opinion here about the advisability of housing Johns in the prison setting, nor about the circumstances of his death. I do not have any further information about the way he was treated. The issues are complex and the safety of others must be a paramount concern when deciding how and where to contain violent persons. (Thanks again to Dr. Natasha Cervantes for sending information about this case.)
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Likelihood of self-inflicted death after an attempted suicide
I am often asked, sometimes by lawyers, what a patient's prognosis would have been if he or she had not committed suicide on his second attempt (that is, the patient was treated for an attempt, then committed suicide either in the hospital or soon after discharge). No one has a crystal ball, and I have usually examined the patient's records but not actually seen him or her (which adds a disclaimer to anything I might say), but the recent psychiatric literature does address some of the common questions, at least in a statistical way. Forgive my not providing lots of references for this vignette; the information is generally available with a quick search of reputable articles and studies catalogued on the National Library of Medicine website (PubMed, at http://www.ncbi.nlm.nih.gov/sites/entrez). Please be cautious when interpreting the generic statements below, as each patient and situation is different, and "statistics" are not the same as individual cases.
Likelihood of suicide after a first attempt. A study published recently in the British Medical Journal adds to a large literature that indicates that once a person has attempted suicide, his or her probability of eventually dying by his own hand increases substantially, particularly if the person has a serious mental illness such as schizophrenia, bipolar disorder, or major depressive disorder. In this Scandinavian population, up to 25% of women and almost 40% of men killed themselves within 21-31 years of the initial attempt (the time varies because the initial cohort covered a decade). Members of a control group who attempted suicide but had no psychiatric diagnosis at the time also had significantly increased risk, though it was measurably lower (7% of women and 11% of men). Schizophrenia was the most ominous diagnosis, followed closely by bipolar and unipolar mood disorders. Substance abuse and several other diagnoses also increased relative risk. (Note that many people with one disorder also have others.)
Other studies have not followed cohorts of patients for such a long time, but have found significant increases in suicide rate (though not so high as this one). Most studies that explore similar statistics, do not differentiate between patients who receive good follow-up care and those who refuse such care, drift away from it, or lack good access to care.
Likelihood of suicide within months after a suicide attempt. The statistics for this group are similar, but and in some ways more dramatic. In the BMJ study above, more than half of those who were destined to commit suicide did so within the first year after their first known attempt. That means that, for example, as a group, about 12-13% of women and 18-20% of Scandinavian men with severe mental illness who attempt suicide for the first time, are seen in a hospital, and survive die as a result of suicide within the following year. (Note that a great many patients seen in clinical settings for suicide thoughts or attempts have attempted suicide before, and thus may be in a higher-risk group than those with only one attempt.)
A small portion of completed suicides take place on the first attempt (up to 20%, largely depending on patient characteristics). The suicide rate for the general population in the developed world (particularly the West) is about 12-20/100,000/year (about 0.02% per year, far lower than that for seriously mentally ill patients who have initially attempted to kill themselves).
The other side of the coin. The above numbers alone, without considering indiviual patient characteristics, situations, and follow-up, suggest that at least four out of five patients who attempt will survive the first year. That doesn't mean, however, that psychiatrists or other clinicians, and the hospitals in which they work, can relax, or, of course, that what they do or how soon they discharge a patient is irrelevant. Think about it like this: If you or your loved one had crushing chest pain or a severe auto accident, you would want the doctor to do a very careful examination, monitor the condition carefully, and address both treatment and safety if you had a 12-20% probability of dying from your disease or trauma within the coming year.
Effectiveness of acute treatment (often inpatient treatment) in preventing suicide. A few years ago, there were several studies that purported to suggest that the kind of treatment that patients receive after suicide attempts doesn't matter very much, or doesn't change their prognosis in the long run. Those studies are sometimes misconstrued or misinterpreted by people trying to defend lack of care or inadequate care.
Among the many important principles of working with suicidal patients (see the PowerPoint(R) slide show in the links above), two aspects of treatment particularly apply here. First, when suicidal thoughts and impulses arise from things like severe depression, psychosis, confusion, anxiety, and/or intoxication, it simply makes sense that significantly lastingly decreasing those conditions decreases one's likelihood of suicide in the long run. Addressing the mental illness or disorder is important. That means accurate diagnosis, good treatment choices, evaluiating treatment response, and patient compliance with the treatment are very important.
Second, for many patients (though not all), severe suicide risk is a relatively transient condition. That does not mean that most patients can be discharged from the hospital as soon as they say they feel better or show signs of lessened risk. It means that if the psychiatrist, psychologist, other clinician, and treatment team can help such patients survive the days and (usually) weeks of acute suicidal danger, and provide good reason to believe that their improvement is stable, they are more likely to return to safe and effective functioning once discharged, and not to relapse (given adequate follow-up treatment and monitoring).
A more recent, more complete discussion of this topic has recently been published in the Journal of Psychiatric Practice and can be read by clicking HERE.
Lament to the Wife of a Psychiatrist
Lucile Reid Brock, a mother and former wife of psychiatrists, passed away in November, 2008. She was the author of "Lament to the Wife of a Psychiatrist," an often-quoted poem that is almost never attributed to her. The poem, which others have modified for their mental health professions and published in such diverse venues as Playboy, was written during the late 1940s and presented to a meeting of the Texas-Mexico Neuro-Psychiatric Society in Galveston at the request of former APA president (then head of Timberlawn Sanitarium), Perry Talkington, M.D. A printed version appeared in the Timberlawn newsletter, The Happy Valley Spark (almost certainly a reference to ECT) on October 17, 1958. It was reprinted 50 years later in Lucile's book, M.D. Pursuit. (Click here for her art and writings.)
Here is the poem, which has delighted psychiatrists' spouses for decades, in its original form (show it to your shrink!):
LAMENT TO THE WIFE OF A PSYCHIATRIST
Lucile Reid (Brock)
I never get mad, I get hostile;
I never feel sad; I'm depressed;
If I sew or I knit,
And enjoy it a bit,
I'm not handy, I'm merely obsessed!
I never regret, I feel guilty,
And if I should vacuum a hall,
Wash the woodwork and such,
And not mind it too much,
Am I tidy? Compulsive is all!
If I can't choose a hat I have conflicts,
With ambivalent feelings toward net;
I never get worried,
or nervous or hurried,
Anxiety! That's what I get!
If I'm happy, I must be euphoric;
If I go to the Stork Club or Ritz,
And I have a good time
Making puns or a rhyme,
I'm a manic, or maybe a schiz.
If I think that a doorman was nasty,
I'm paranoid, obviously.
And if I take a drink
Without stopping to think,
It's A.A. surely for me.
If I tell you you're right, I'm submissive,
Repressing aggressiveness too,
But if I disagree,
I'm defensive, you see,
And projecting my symptoms on you!
I love you, but that's just transference,
With Oedipus rearing his head.
My breathing asthmatic
Is psychosomatic,
A fear of exclaiming, "Drop dead!"
I'm not lonely, I'm merely dependent;
My dog has no fleas, just a tic;
So if I seem a cad,
Never mind, just be glad
That I'm not a stinker, I'm sick!
Copyright (c) 1957, Lucile L. Reid
Copyright renewed, 2003, Lucile Reid Brock
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Use of Restraints in Correctional Populations (Prison or Jail Inmates)
A recent issue of CorrDocs, the newsletter of the Society of Correctional Physicians (SCP), described a set of policies and procedures proposed by the SCP board of directors. Legitimate use of physical restraint is more common in jails and prisons than in psychiatric hospitals, for obvious reasons, but the balance between inmate/patient safety and protection of others (or the inmate himself) still must receive careful consideration. The article noted that incarcerated persons may have mental or physical conditions that either cause, or are caused by, custody-ordered restraint. Custody personnel usually lack the ability to make clinical assessments or decisions, so qualified psychiatric or other medical consultation is often required. "The availability of such services must be considered before security staff makes a decision to place an inmate into physical restraints for behavioral control."
All physical restraint has an element of risk and, uncommonly, the consequences can be tragic. The National Commission on Correctional Health Care (NCCHC) has promulgated standards concerning restraints in jails, prisons and youth facilities. The SCP endorsed a number of principles that address least restrictive use, consideration of restraint risk, creating facility policies and procedures, the roles of qualified health care professionals vis-à-vis custody procedures, medical evaluation, monitoring and attending to physical needs during restraint, staff training, and reporting of possible abuse or other untoward events.
(CorrDocs [11]4, Fall, 2008)Return to Current Table of Contents
Clinical Supervisor/Psychotherapy Supervisor Duties
An experienced counselor who works for a public agency recently posted a Behavior Online question about supervisor responsibilities. She asked about the advisability of accepting a supervisee about whom she has questions about competence or professional attitude. As usual, don't consider my comments to be legal advice, but here's how I'd think about the issue.
In residency, psychotherapy training or counseling, supervision usually entails some form of after-the-fact discussion or review of the supervisee's work with patients. Situations vary from place to place, but the trainee or other (usually) unlicensed clinician generally sees the patient or client alone, then presents an oral, written, or recorded version of the session(s) to the supervisor for critique or approval.That means the patient/client is alone with the supervisee, and both the patient and the agency (if there is one) are relying on the supervisee to do a reasonable job, not do any harm, etc. Supervisors should only accept such duties when they are confident that the supervisee has the requisite skills and attitudes.
From the patient's viewpoint, the supervisee is a professional clinician (even if the supervisee has notified the patient that he/she is still in training, is required to have a supervisor, etc., notification which take place in such settings). The patient has a right to expect reasonable care from the supervisee, who is an agent of the employer or agency and may be an agent of the supervisor (especially in private offices). The agency, in part through the supervisor's feedback and in part through other vetting, should do a reasonable job of making sure the supervisee is capable of providing that care.
Assuming that the supervisor is not in the room when counseling or other clinical work is being done (true in most such situations), the supervisor has an obligation to be reasonably sure the supervisee is qualified to do the above. That may mean interviewing the supervisee before starting the clinical work, reviewing his/her background & training, observing a few sessions, etc. If the supervisor believes at some point that the supervisee may not be qualified to act alone, or may not be performing reasonably and safely, then the supervisor has a duty to both the patient and the employer/agency to intervene in some appropriate way (which may or may not entail stopping the supervisee from doing counseling).
In such a situation, the agency or other employer is probably responsible for the acts of both the supervisor and the supervisee, and may be criticized about either (e.g., in a complaint or lawsuit). The agency/employer relies on the supervisor to notify it if the supervisee is unqualified or doing something wrong (assuming the supervisor reasonably should be aware of same). Thus the supervisor has a duty to keep the agency/employer informed. By the same token, the agency/employer has a duty to take appropriate action to protect patients if the supervisor puts it on notice that a supervisee's ability or behavior is problematic. It is dangerous and improper to accept supervision of a counselor or other supervisee who you believe may be unqualified, unless appropriate safeguards for the patient are in place.
Lots of us are too cavalier about what it means to be a clinical supervisor, and are too quick to take on the role. In my view, one should carefully consider supervisory expectations, which are probably substantial and includes responsibilities to patients, to the supervisee, and to the agency/employer. One should undertstand what it will take to fulfill those responsibilities, and not be misled by an employer or training director who says something like "Don't worry, all you have to do is review the case and sign off on the notes." That doesn't erase the professional, ethical, and legal duties I just discussed (and sometimes, such as in the case of attending physicians and psychotherapist-employers, the supervisor is actually responsible for the patient's care). That's often what it REALLY means when you "sign off" on a supervisee's notes or reports.
Dr. Lazarou, of Tampa, FL, emailed me about a recent discussion at a forensic medicine seminar. It had to do with lawyers who proffer expert witnesses without their knowledge. The practice is sometimes described as having a "ghost expert," and it is very irritating to our profession. Such unscrupulous lawyers may use an expert's name in a document without actually retaining him or her (that is, falsely stating that the person is the lawyer's expert) or, worse, actually attribute expert opinions to a professional who has neither been retained nor actually expressed those opinions.
The purpose is usually one of three things: (1) The attorney hopes the expert's name alone will be intimidating to the other side; (2) the attorney hopes that listing the expert will prevent him/her from being retained by the other side (a nasty restraint of trade); and/or (3) the lawyer is lying to the other side and the court about an unexpressed opinion (a much worse thing than the first two).
In addition to misusing psychiatric experts' names and reputations, and depriving them of income, this is routinely viewed by forensic psychiatrists and psychologists as unethical, dishonest, and a fraud upon the courts.
Fortunately, the practice is uncommon. It probably happens more often to experts who are very well-known (to intimidate the other side). Most lawyers don't do it, and none of the ones I would knowingly associate with would do such a thing. In fact, my initial letter to inquiring attorneys reminds them that they must not list me as an expert unless I am genuinely retained, and they must not attribute any opinions to me unless they have been genuinely rendered.
So far as I know, when forensic psychiatrists have complained to judges about being named as experts without being retained (or even notified), the judges rarely chastize the lawyers much. One forensic psychiatrist at an AAPL meeting a few years ago said that when he discovered his name had been used and complained to the judge, the judge told him it "goes with the territory" of being an expert. Bad answer, but I think that's the norm.
One of the questions I occasional get about this is "How can I get paid for being listed or declared in such as case." I wouldn't want any fee for such a fraud (since that would be a fee for non-existent work or a bogus opinion), but I'd sure like to see the dishonest lawyer punished. If readers have any verified stories to the contrary, I'd like to hear them.
Do Courts Prefer Forensic Psychiatrists Over Forensic Psychologists (and Should They?)
A college senior and criminal justice major named Tiffany emailed me the other day with the above question, which came from her teacher. The teacher assumed that courts prefer psychiatrists over psychologists. (It's interesting that at least 90% of the student queries I get about this website are from women.) Here's what I told her.
Many issues at the interface of mental health and the law can be addressed by either a forensic psychologist or a forensic psychiatrist. Some require the special expertise of one or the other. The individual qualifications and experience of the consultant or expert witness are the most important things, but here are some general comments. All assume that the psychologist is a "clinical" psychologist, with a doctoral degree (PhD, EdD, PsyD). Sometimes a doctorate in counseling or educational psychology is fine, too.
It's true that some courts, lawyers, and juries place more credibility in psychiatrists than in psychologists. The fact that a person has completed medical school and residency conveys credibility, and society's view of physicians as knowledgeable, honest, wise, credible people is a powerful force in the courtroom. Psychology is perhaps a bit less familiar and more mysterious to some jurors, and doesn't carry that Norman Rockwell feeling of kindly old Dr. Welby. (If you're too young to know either of those references, GOOGLE them.) It is interesting that psychiatry often invokes both those stereotypes. Many people (perhaps most) think psychiatrists and psychologists are the same, or at least interchangeable. Some don't consider psychiatrists, though they are physicians, to be in the same credibility category as a trusted family doctor.
Ah, the cross we psychiatrists have to bear!
A good and ethical forensic clinician, either psychologist or psychiatrist, should not work or give opinions outside his or her areas of expertise and experience, should be forthcoming about his or her limitations, and should refer the attorney or court elsewhere as necessary for the case. Physicians take a particular oath and train a bit longer than clinical psychologists, but most clinical psychologists concentrate on the mind for as many years as psychiatrists (albeit sometimes in different ways). Both professions have strong ethical and professional obligations which are enforced by their professional organizations and licensing agencies.
When psychological or neuropsychological testing is required, an experienced clinical psychologist or neuropsychologist is necessary. While psychiatrists are often familiar with many tests, we are rarely trained in the details, nor do we have the breadth of knowledge of a doctoral-level clinical psychologist.
When knowledge of psychotherapy is required, particularly some specialized kinds of therapy, an experienced clinical psychologist is often the best choice. If the psychiatrist is experienced in psychotherapy, that's fine as well. A psychoanalyst may be either a psychiatrist or a clinical psychologist. In many cases, however, psychiatrists do not do as much psychotherapy, or as many kinds, as a clinical psychologist.
When specific knowledge of an occupational subspecialty is required, such as in occupational/industrial psychology, law enforcement psychology, or military psychology, there are more qualified clinical psychologists than psychiatrists. There are exceptions, of course.
Qualified psychiatrists are almost always preferred with there are issues of medication or other biological treatments (such as electroconvulsive therapy, and including reactions to medications prescribed for general medical illnesses), laboratory or physical tests and procedures (such as blood tests, physical exam findings, or other medical tests), brain damage (except when a neurologist or neuropsychologist is the best expert), and when the issue involves inpatient (hospital) care.
Qualified psychiatrists are often preferred in matters of severe psychiatric disorders (such as schizophrenia, bipolar disorder, major depressive disorder, severe suicide risk, autism, and others), those associated with general medical illness (such as dementia, substance toxicity, psychological reactions to general medical illness or its treatment, and some kinds of substance withdrawal), or those that must be differentiated from general medical illness (such as somatoform/"psychosomatic" disorders), including their diagnosis, treatment planning, treatment, and prognosis.
Forensic matters involving criminal responsibility and competency, since they routinely involve characteristics of severe mental illness and brain dysfunction, generally (but not always) require a qualified psychiatrist, but may benefit from both. Medical malpractice allegations regarding psychiatric patients, particularly those who have committed suicide, complain of adverse reactions to treatment, or have been hospitalized, usually require a qualified psychiatrist, but may benefit from both.
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Placebos and Sham Patients: It's Not Nice to Fool Patients, or Doctors
A couple of news services (and the American Psychiatric Association Headlines email service) indicate that placebos and sham patients are back in the news. We all know that a placebo is a treatment that has no biological merit (such as a "sugar pill"), but used to be popular for treating psychosomatic or "imaginary" ills (two different concepts). Sham patients are actors who impersonate patients but are not really sick. They are common in doctor-testing settings and medical schools (where the doctor knows they are not real patients), but now they are being used secretly by some hospitals and clinics to evaluate physicians' care and the health care experience that real patients may encounter.
First the sham patients. If they were really being used to assess patients' treatment and increase consumer/patient satisfaction (as often happens when restaurants or retail stores want to evaluate customer service), I'd have little criticism. But one of their main purposes is apparently an effort by HMOs and other healthcare payers to catch doctors and other clinicians who may be offering "unnecessary" tests and services. Sure, I'd like to stop the few doctors who are ripping off insurance companies and government agencies in order to line their own pockets, and there are lots of watchdogs who monitor for that; but what about the physician who is simply trying to practice careful medicine, to reassure an anxious patient, or to go the extra mile in providing the kind of care we all want (rather than the bare-bones medical care many payers and health plans want to push down our throats). I don't want that doc punished, nor do I want him or her to have to think about whether or not he'll be criticized for trying to do the right thing. I don't want the new expectation for our health care system to be some low-ball, "adequate" level of service. And I don't want some fake patient coming to a crowded emergency room or office and making you or me wait while he plays "gotcha" with our doctor.
Incredibly, the American Medical Association Council on Ethics is apparently trying to get AMA members to endorse this fake-patient practice. That doesn't make sense to me (nor to a lot of other clinicians). Readers of this website are welcome to contact the AMA and voice their opinions. Mine would be that good care (not merely "adequate" care) and patient satisfaction are more important than intimidating the doctors who are trying to help us feel better.
Now on to placebos.
I have generally held the view that placebos are a form of lying to patients. In psychiatry and forensic psychiatry, particularly, we want our patients and evaluees to be open and honest about their symptoms, backgrounds, and feelings. It has thus never made sense to me that we should return the favor by tricking them with fake medicines.
Do placebos work? You bet, in many situations. But once one weighs the pros and cons of being essentially dishonest with the patient, the benefit often fails to outweigh the drawbacks.
A recent New York Times article (May 27, 2008) described a placebo product now being marketed in the U.S. by Efficacy Brands (pun intended?), designed for parents to give to their children "for minor ills, and reduce the unnecessary use of antibiotics and other medicines."
What a terrible idea! First, parents shouldn't lie to their children. Second, whatever happened to parents who take the time to sit and talk with their kids, offering parental reassurance and empathy (rather than a pill). Third, . . . well, my list of criticisms could go on and on.
Last, but not least, the product is called "Obecalp" ("placebo" spelled backward). Now, how do you think a curious, trusting kid is going to respond when he or she inevitably figures out (or is told by some friend) what Obecalp really spells, and what will that do to his or her relationship with Mom and Dad?
Say it ain't so, Joe.
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Is Overtime an Unfair Employee Stress?
I can see it now: the plaintiff's lawyer waves a sheaf of papers in front of the jury just before they begin deliberations. "This scientific study," he says fervently, "in a respected professional journal, proves that my client's painful anxiety and depression were intentionally and negligently caused by his employer, who knew that asking him to work overtime was like putting a gun to his head. Send a message to all the bosses out there, a big financial message, that we know overtime is dangerous and we're not going to take it anymore!"
Sound ridiculous? Not so fast. A Dr. Kleppa and colleagues recently asked 1350 Norwegian overtime workers and 9092 non-overtime workers whether or not they were depressed or anxious. The authors used a written symptom scale, though most of the information was subjective. The results may be summarized as indicating that there was a small but statistically significant increase in anxiety and depression expressed by the overtime group (taken as a whole, over thousands of participants, not individually), which varied by type of work and income. (Kleppa E et al. [2008]. Working overtime is associated with anxiety and depression: the Hordaland health study. J Occup Envir Med 50[6]:658-666)
Unfair and abusive conditions in the workplace should be corrected, sometimes via employment litigation, but let's be reasonable. In addition, forensic clinicians, lawyers, and courts should be aware that using clinical findings (assuming these are valid) in legal contexts requires a careful assessment of whether or not those findings are truly applicable to the legal situation at hand. Trial lawyers are entitled to wave studies in the jury members' faces during summation, but one hopes that there will have been adequate expert testimony about their credibility and applicability to the case. To do otherwise would be to risk misinterpretation of studies, which cannot be "cross-examined" in themselves (see Courts Really Do Need Expert Witnesses, below).
An employment attorney (admittedly defense-oriented) with whom I once worked had a saying that has stuck in my mind for years: "What's a job without stress? A hobby."
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A vignette elsewhere on this website explains why courts sometimes need expert testimony. Critics of expert testimony occasionally allege biased or dishonest expert "opinions," but it's clear that no judge or jury can know enough to find the truth when cases involve special knowledge about medicine, psychology or some other field. I wish expert witnesses were always honest and objective. I know they're not, but most of us are striving for that goal.
A recent Virginia State Supreme Court ruling, reported in Volume 27, Issue e2 of e-Developments in Mental Health Law, found that a lawyer's merely citing scholarly articles or books (known in the law as "learned treatises") is not enough to create "expert testimony." The main reason that the Court gave was a legal one: expert opinion must be available for cross-examination by the opposing lawyer, and cited articles in professional journals can't be cross-examined.
Good for them, though I can come up with some other good reasons to have an in-person expert: Articles in the professional literature are very often misunderstood or misconstrued by readers, especially those without professional training or research experience. A qualified expert should be able to help the court understand the article, assess its validity and reliability, and view it in the special context of the case at hand.
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The MacArthur-Foundation-funded MacArthur Violence Risk Assessment Study, released its initial findings ten years ago (in 1998) and has added important data to the psychiatric literature ever since. The study is one of the best ever designed on the topic but, perfect being the enemy of good (a great old Oriental saying), it has been criticized. Some of the critics address scientific aspects of the work (sampling, sources of variance, etc.); others use it as a springboard for defending their stereotypes and "intuition" about violence and mental disorders. Some of the basic findings are summarized elsewhere on this page.
The February, 2008 issue of Psychiatriic Services, devoted to violence and mental illness, contains a "debate" between prominent members of the MacArthur Study Group (John Monahan, Henry J. Steadman, and others) and a prominent psychiatic gadfly, E. Fuller Torry, and his colleague attorney Johnathan Stanley. Not surprizingly, the results tend to favor the MacArthur group, if primarily because they point out the very targeted nature of their results and conclusions. Broader, somewhat vague questions about such things as "How should you feel when a discharged psychiatric patient moves in next door?" (p. 151) are fair game in real life, however, and practical for a public who must deal with both the totality and the perception of risk in their environments, not just statistical analyses of filtered events within highly-defined parameters.
The role of risk from a psychiatric diagnosis per se in outpatients, within the context of all violence, is generally small, but it varies substantially with the diagnosis, subtype, symptoms, and stage of illness (e.g., in remission, largely mitigated, acute, or fulminant), and particularly with nonpsychiatric correlates of violence (such as substance abuse), which increase risk of violent behavior in unstable persons even more than in the general population.
It's easy to criticize, but much more productive to design and implement follow-up studies to address one's criticisms. That hasn't happened on any large scale to date. (The MacArthur Violence Risk Assessment Study revisited: Two views ten years after its initial publication. Psychiatric Services 59(2):147-152, February, 2008)
Penile Plethysmography as an Indicator of Recidivism Probability
Sexual impulses, the ability to control them, and whether or not they have changed are all relevant to courts' sentencing of sex offenders, and relevant to treatment and discharge considerations. Penile plethysmography enjoyed a heyday of clinical popularity during the 1970s and 1980s, when attorneys and courts hoped it would prove to be a valid and reliable indicator of what was going on in the minds of pedophiles, other paraphiles, and non-paraphilic sex offenders.
Over the years, the stimulus material used in U.S. plethysmography has been modified to assuage public sensibilities concerning child pornography and blatantly obscenity (that is, stimulus photographs are often considerably less graphic, particularly those involving minors). The procedure, which is deceptively simple and requires skilled and experienced administration and interpretation, is common in treatment programs, where its use is generally limited to addressing patient denial and assessing treatment progress. Law enforcement officials, attorneys, and defendants/patients often want to introduce plethysmographic evidence when they believe it fits their purposes. Most courts agree that it is not sufficiently valid or reliable for use in criminal trials, but a few allow it to be introduced at sentencing or considered when discharge or lessened restrictions are being considered for defendants.
The Virginia State Supreme Court recently decided against allowing penile plethysmography to be relied upon for sentencing a teenager convicted of forcible sodomy. Although the presentence report accurately stated that "deviant sexual arousal" is an important factor in sex crimes and recidivism, and a lower court had accepted plethysmography as something that should be allowed in a sentencing hearing, the State Supreme Court applied trial court criteria to the sentencing process and opined that the "Spencer" test -- Virginia's version of the Daubert criteria for scientific merit of evidence -- applied. The defendant's life sentence was affirmed. (Billips v. Commonwealth, 652 S.E.2d 99 [ Va. 2007], as reported in e-DMHL for February, 2008).
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New Jail and Prison Health Services Standards Coming
The National Commission on Correctional Health Care (NCCHC) will soon release an ambitious revision of its Standards for Health Services for jails and prisons. The NCCHC Standards are widely recognized by correctional communities, medical providers, and courts as the benchmark for correctional health care delivery, and often establish a standard of care for jails and prisons. They guide NCCHC surveyors in the accreditation process. Compliance with the 2008 update will be required for NCCHC certification beginning in 2009.
Specific mental health standards (NCCHC Standards for Mental Health Services in Correctional Facilities) will also be introduced, along with a voluntary accreditation program which will begin in late 2008. For more information, visit the Resources page at www.ncchc.org.
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Sanity Evaluations and Criminal Responsibility
"Why do the courts get so many dangerous, violent people off using the insanity defense? If someone kills somebody, shouldn't he or she pay like anyone else? Is the insanity defense really necessary? Every big case I see on television and in the papers ends up as a battle of the shrinks, and some axe murderer goes to some cushy hospital instead of the prison he deserves."
J.Q. Public
I hear the above refrain a lot, but, contrary to popular belief, the insanity defense is rarely used; it's tough to win; the Constitution probably requires that it be available to qualified defendants, and defendants found not guilty by reason of insanity (NGRI, NGI, NRRI) often spend more time in locked mental hospitals than they would have spent incarcerated had they been found guilty.
For a pretty complete discussion of the insanity defense and how forensic psychiatrists and psychologists should evaluate defendants (for either the prosecution or the defense), go to Dr. Reid's article in Applied Psychology in Criminal Justice at www.apcj.org/VolumeII_IssueIII.htm. Access to this and other issues of this online journal is free (at this writing).
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No Duty to Warn Third Parties in Texas; Permission vs. Duty to Protect/Warn
It's fairly old news, but I'm often asked about it. Here's a post to clarify the current status of (1) duty to protect or warn a third party from violence by a patient and (2) whether one can notify third parties, in good faith, of potentially dangerous patients. Note that this information applies only in Texas, since such statutes and caselaw are limited by jurisdiction. (Thanks to Chris Lopez, counsel for the Texas Department of State Health Services, for providing the judgement.)
In 1999, the Texas Supreme Court decided Thapar v. Zezulka, an appeal by Dr. Thapar of a judgement against her for negligently failing to warn Henry Zezulka concerning his stepson's threats to kill him. The Court cited both Texas law (which, after the Tarasoff case in California, established strong confidentiality laws for Texas mental health professionals) and relevant Texas case law in declining to adopt a common-law duty for pschiatrists to warn third parties in Texas. Much of the logic for that decision arose from the lack of doctor-patient relationship with the third party (the doctor-patient or therapist-patient patient relationship is the foundation for much of the duty a psychiatrist, psychotherapist, or counselor owes to his or her patient). (Thapar v. Zezulka 994 SW2D 635 [1999])
The written decision also touches upon Texas case law governing whether or not a psychiatrist or other mental health professional is protected from liability for trying to warn others of such threats or dangers. The answer is a qualified "no," but psychiatrists are legally permitted to notify law enforcement agencies of their good-faith concerns about imminent danger to others in ccertain situations. That is different from the law regarding patient confidentiality that generally prohibits notifying other (nonclinical and non-law-enforcement) third parties (such as friends, coworkers, or family), but it's not a guarantee against liability for breach of privilege (for example, if the notification is not in good faith).
It is very important to differentiate requirement, prohibition, and permission (often misunderstood in this context). In general, within the exceptions often placed in rules and laws, if it's required, do it. If it's prohibited, don't do it. If it's allowed then you have the option and should use adequate judgement in deciding whether or not to act.
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Terminating Care: Ending the Doctor-Patient Relationship
A brief article in Psychiatric News (September 7, 2007, p. 11) recently touched on some common clinical practice questions: How best can a psychiatrist or other mental health professional stop seeing a patient when termination is indicated? What's fair for the patient? The clinician? Are there ethical guidelines? What if I'm accused of abandonment? Good communication with patients and their families is a big part of managing one's practice, and reduces the risk of lawsuits and complaints, but adhering to a few procedural principles helps, too.
This is not a simple topic. There are lots of reasons for which a clinician may legitimately terminate the doctor-patient relationship (I'll include other clinician-patient relationships in that phrase). Psychiatrists and other clinicians are generally allowed to choose whom they will see or treat. Stopping a patient's care may be indicated if the doctor isn't adequately compensated for his or her services; the patient doesn't (or can't) participate adequately in treatment; the patient is threatening to the clinician; the doctor believes a different clinician would be a better choice for the patient; the doctor retires, moves away, or becomes ill; the doctor is no longer in the patient's insurance network, and for several other reasons. Every situation is unique, but in a few situations, and when the termination of care is improperly done, stopping or decreasing treatment may constitute abandonment, may be unethical, and/or may simply be poor practice.
The doctor-patient relationship is the foundation for much of what we do; it is often (not always) the context in which we practice. It forms the basis for many of the duties we assume when we treat patients, and is the context in which much of our standard of care is created. When that relationship is terminated, most of our duties with regard to the patient are terminated with it. On the other hand, stopping the relationship does not erase actions that took place before the termination, and clinicians sometimes assume that the doctor-patient relationship, and the duties that come with it, is over when it really is not.
The Psychiatric News article, provided by the American Psychiatric Association Office of Healthcare Systems and Financing, makes the point that it is not appropriate to end the treatment relationship during an emergency unless the patient agrees, and/or has been properly transferred to adequate other emergency care (such as inpatient care). I would add that even those conditions may not be sufficient to end the doctor-patient relationship. An emergency situation is rarely the time to leave one's patient.
What if the patient's clinical need is acute, but not an emergency? First, the line between the two is not always clear. The point to remember has more to do with clinical need and continuity of care than with strict definitions of "emergency" or "acute." Advisors often speak of how much notice is reasonable and necessary (often "30 days") or how many names of alternative practitioners should be given (often "three"). That may be sufficient for relatively uncomplicated situations, but it is better to think of termination or transfer of care in terms of a range of acceptable options based on the patient's condition, his or her clinical needs, his or her ability to contact a new doctor or therapist, reasonableness of notice, and the availability of qualified alternative providers.
The fact, and the process, of terminating or transferring care should usually be conveyed to the patient in writing (and carefully documented in the chart). Opinions vary about whether or when to address the reasons with the patient, and whether or not to go into detail about those reasons. Some risk managers suggest a registered letter, with return receipt; many clinicians rely on first-class mail (but document the mailing). In either event, the letter should contain, as appropriate to the individual case, documentation of one's decision and a recitation of time-lines, future care alternatives, options for medical record transfer, and interim measures (such as the doctor's availability for a period of time, emergency availability, and offers to assist in the transfer of care).
Competence to be Executed: Panetti v. Quarterman
In 1986, the U.S. Supreme Court (USSC) ruled that in order for the State to execute a prisoner he must, among other things, understand that he was to be put to death and understand the reason the State was doing so (Ford v. Wainwright 477 US 399 [1986]). In June, 2007, the USSC moved closer to setting "rational understanding" of one's impending execution, not merely rote knowledge, as a requirement for carrying out the death penalty.
Scott Panetti, a man who had been hospitalized several times for severe and chronic mental illness, killed his wife's parents and held his wife and daughter hostage before surrendering to police. Although clearly psychotic while awaiting trial, he was allowed to represent himself and was found guilty of capital murder in 1992. The death sentence was imposed. In spite of many appeals based largely on incompetence of trial counsel, he remained on death row. A few weeks before he was to be executed in 2004, his attorney again appealed, this time on the basis of alleged incompetence to be executed.
Panetti understood that he was to be executed, and understood that the reason was his murder of his inlaws. However, the evidence showed that he had a continuous delusion (a fixed, false belief, counter to common or cultural norms, which is truly accepted by the person as fact) that his death was part of "spiritual warfare" between the "forces of darkness and God and the Angels and the forces of light." He believed the State was going to execute him in order to keep him from preaching the Gospel.
The Court ruled 5-4 that those delusions rendered Panetti incompetent for execution, saying (in the majority opinion) that ". . . (a) prisoner's awareness of the State's rationale for an execution is not the same as a rational understanding of it" (underlining mine). (Panetti v. Quarterman 127 S Ct 2842 [2007])
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Standard of Care for Releasing Jail Inmates and Arrestees from ER
From time to time, I review cases in which someone in police or jail inmate has been taken to an emergency room (emergency department, ER) for evaluation, often to assess psychiatric symptoms or suicide risk. By the time I see the records, the scenario is often one in which the patient was "cleared" for transport/return to jail and sometime later committed suicide. In other evaluation situations, the patient may have experienced complications of heart disease, diabetes, or some other condition after return to custody.
Judith A. Stanley, director of accreditation for the National Commission on Correctional Health Care (NCCHC), summarized the principles of "fit for confinement" examinations in a recent column in the NCCHC quarterly newspaper, Correct Care (Summer, 2007, p. 21, quoted and summarized with NCCHC permission). She referred to the NCCHC Standards for Health Services in Jails, particularly its sections on Access to Care, Screening, and Hospital and Specialty Care.
Jail inmates are entitled to access to care for significant health problems. That care may require transport or transfer to a community hospital or other facility, where the evaluating physician must consider the level of health or mental health services follow-up that is necessary and whether or not those services are available at the jail. ER physicians should have some prior idea of the services the jail can reasonably provide; an educational visit or detailed communication with local correctional facilities is recommended.
Although jails and lockups have substantial duties to monitor inmates whom they suspect (or should suspect) are at clinical or behavioral risk, the ER evaluator should not expect perfection. Unless the jail has 24-hour comprehensive health or mental health services and staff (a rarity except in large correctional systems), the physician may find it helpful to think of return to jail as similar to returning the patient to home care. Is mere observation sufficient, or is direct care and continued evaluation required. Are minimally-trained correctional officers acceptable for the task? What scope of care and observation is available in the infirmary or administrative segregation (often the place where mentally ill inmates end up)?
ER clinicians, including psychiatrists and counselors, often assume that jails have 24-hour health care staff. This may be true in very large systems, but not in most jails and lockups. Although there may be administrative pressure to release the patient, extended observation in the emergency room or a secured inpatient setting is often a better alternative.
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Misunderstanding Confidentiality and Privilege in Civil Commitment and Risk Assessment
Regular readers and professionals who sometimes hear me speak on suicide assessment, gathering collateral history, and similar topics know that I am greatly concerned about misplaced adherance to misunderstood confidentiality rules and laws. I have often argued (after disclaimers about not being a lawyer) with other clinicians who believe that "confidentiality" prevents them from gathering (or from appropriately releasing) important, potentially lifesaving, information from (to) other clinicians, hospitals, and/or family members.
There are many different clinical and administrative scenarios that involve assessing the risks associated with potential danger to oneself or others. Many psychiatrists, psychologists, and other clinical evaluators erroneously believe that some rule or law precludes their asking for, or reasonably sharing, risk-related information that can be vital to adequate diagnosis, treatment, protection from self-harm (such as suicide), or reducing danger to others. Further, some evaluators even fail to understand the very basic importance of collateral information in such situations, and make important admission, detention, commitment, discharge, and level-of-care recommendations or decisions without it.
In the wake of the recent Virginia Tech killings, the Virginia Office of the Inspector General for Mental Health, Mental Retardation, and Substance Abuse Services (OIG) investigated that state's civil commitment proceedings and published several deficiencies and recommendations. I want to focus on only one aspect of that investigation, the finding that psychiatrists in civil commitment roles often misunderstand the law concerning obtaining information from outside sources.
Some 16 months before the shootings, the perpetrator, Cho Seung-Hui, was evaluated for civil commitment based on reports of psychiatric symptoms and apparent dangerousness to himself or others. The OIG investigation revealed that during Cho's initial screening, a "certified prescreener" (LCSW) from the local Community Services Board reviewed evidence of "extremely odd, frightening and/or threatening behavior" and interviewed another Virginia Tech student and the detaining officer before recommending involuntary hospitalization. An initial hospital detention was accomplished, and Cho was evaluated by an "authorized independent examiner" (a licensed clinical psychologist) the next morning. The psychologist stated that he interviewed Cho for 15 minutes and reviewed the prescreener's report and medical records.
The examining psychologist apparently did not obtain any additional collateral information, saying that he rarely found it necessary to obtain collateral information from pertinent people in such an individual's life. Hospital staff reported to the OIG that additional collateral information is not sought before commitment hearings. Based on the brief interview and review, with apparently no corroborating information, the psychologist-examiner determined that Cho did not require involuntary hospitalization. After a hearing which did not include the independent examiner, the prescreener, the detaining officer, or any of the roommates/witnesses, Cho was released with to "outpatient commitment" with no specific treatment plan and no known follow-up to determine whether or not he attended treatment.
During its investigation, the OIG conducted an informal telephone survey of 20 attending psychiatrists at facilities approved to admit detained patients such as Cho. That survey found, in the words of e-Developments in Mental Health Law, "a very inconsistent understanding among them regarding their ability to access collateral information regarding their patient when the patient refuses to authorize this access."
An excellent summary and discussion of the complete report appears in the August issue of e-Developments in Mental Health Law (vol. 26, issue e7, see link at bottom of this page). The report itself (Investigation of April 16, 2007 Critical Incident at Virginia Tech, OIG Report #140-07 [2007]) may be obtained from the Virginia Office of the Inspector General for Mental Health, Mental Retardation and Substance Abuse Services at http://www.oig.virginia.gov/documents/VATechRpt-140.pdf .
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Mental Health Screening and Monitoring in Correctional Facilities:
Suicide, Psychiatric Care, Prison and Jail Safety
A recent article in Correct Care, the newsletter of the National Commission on Correctional Health Care (NCCHC), cites a National Institute of Justice (NIJ) report on screening for psychiatric concerns, including suicidal inmates (Correct Care 21[2], 2007, p.1). The NIJ was spot on in citing two primary screening needs, which I believe are far more problematic in jails than in prisons.
First, suicide risk among inmates. The combination of a population with higher than average prevalence of depression, bipolar disorder, and other serious mental illnesses; unusually stressful environments; and marked life change (usually for the worse) increases general risk, but some of the most dangerous times and settings occur in jails and lockups rather than prisons. (A "lockup" is usually a satellite jail, often in a suburban area, used for temporary holding of arrestees prior to transfer to the main jail).
Jails and lockups, particularly, should provide competent mental health screening, suicide risk assessment, and close monitoring of at-risk inmates. Even inmates who deny suicidal thoughts should be monitored and protected, since their risk can easily be masked and their condition and motivation may quickly change.
Jails are temporary domiciles, rarely offering extensive health or mental health services. Nevertheless, inmates and arrestees come to them in a state of flux, often intoxicated, withdrawing from substances, and/or confused. Their future is uncertain. The surroundings are often noisy and chaotic. Inexperienced inmates (first-time arrestees, first offenders), those caught in humiliating or embarassing acts such as many sex-related crimes (even minor ones), and those with mental illness are routinely frightened, anxious, confused, and/or acutely pessimistic about the future.
Second, providing continuing mental health care, especially psychiatric medications and oversight, for inmates who were receiving it before coming to the correctional facility. This, too, applies more acutely to jails than to prisons, since jails usually lack the organization and clinical facilities found in prisons (the latter being designed for a stable, long-term population). Arrestees may not be asked in detail about their medical/psychiatric histories. Those who are asked may not be capable of giving an accurate history. The jail may not have qualified psychiatric staff. The facility formulary may not include the particular medications the inmate needs. Medical information and prescription drug lists may not be promptly forwarded from prior treatment facilities or physicians.
All of the above issues combine to highlight the requirements, generally viewed as standards of care, that even small community correctional facilities (and certainly urban jails and state and federal prisons) implement adequate screening, monitoring, and treatment procedures; check those procedures regularly for compliance; employ competent screeners for both new and symptomatic inmates; and monitor incidents and trends carefully in order to find and fix reasonably discernable problems.
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New "Basics" (Core Knowledge) Section for Lawyers & Clinicians
There is a new section of this website devoted to basic information about psychiatric expert witnesses and forensic psychiatry itself. The new page contains both brief vignettes and links to full-text articles. Although the new Basic Information page should make it much easier for both attorneys and psychiatrists to find practical, core information, and decrease clutter on this Updates page, the content will be duplicated on this Updates page for the next few weeks.
Click HERE to go to the Basics (Core Knowledge) page.
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False Memory/"Recovered Memory" in a Teenager
Teenagers can be victims of false memory just as young children can. A child psychiatrist friend of mine, Stephen P. Herman, M.D., recently wrote an interesting column for the American Academy of Psychiatry and the Law (AAPL) Newsletter about on a particular case that he described as involving so-called "recovered memories," incompetence and clinical abuse by a treatment facility, and tragic misunderstandings by two child protection agencies. I asked him to summarize the case for Psychiatry and Law Updates:
A 14-year-old boy was hospitalized in a facility that specializes in treating anorexia nervosa. As part of his treatment, he was "helped" to "remember" being sexually abused by his father. He was also diagnosed by facility staff (apparently without being evalulated by a psychologist or psychiatrist) as having Dissociative Identity Disorder (DID, formerly called multiple personality). The boy was encouraged to draw, and the staff interpreted every drawing as confirming the abuse. The young adolescent readily accepted the staff's diagnosis and began talking about his "system" of "alters" (other "personalities"). The staff, some of whom later said they had treated a great many victims of alleged "satanic ritual" abuse, supported and encouraged his discussions and revelations.
The staff notified their state child protective services, who notified their CPS colleagues in the child's home state. Before the dust had cleared, the boy had been placed under CPS control and his father had been ordered out of family home. Child Protective Services determined that two other children still in the home were in danger of being abused.
Multiple forensic evaluations failed to confirm any of the allegations or the diagnosis. The state CPS persisted, however, until court proceedings finally returned custody to the parents. The boy was sent to an experiential, "outward bound" type of program, during which he recanted his statements about abuse and recovered memory of abuse. He showed no evidence of DID.
It goes without saying that some children really do require protection. There is an obvious need for well-funded child protection agencies that rely on well-trained investigators & professionals, carefully-developed procedures, and experience. In situations such as the one just described, however, irresponsible and/or poorly-trained staff of mental health facilities or "therapeutic" boarding schools can do great damage to patients/students and their families by encouraging and supporting false memories. The damage may be compounded by poor agency investigation or premature action, with results that are tragic and costly for everyone concerned.
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A recent article by Amy Lyn Sorrel on amednews.com, an American Medical Association publication, addressed several common questions physicians, including psychiatrists, have about forensic psychiatry, forensic medicine, and expert testimony (www.ama-assn.org/amednews/2007/05/14/prsa0514.htm). Most of her comments are not new to regular readers and forensic professionals, but she raised a number of good points.
- Qualified expert opinion is a very important part of the judicial process of truth-seeking in malpractice and other cases.
- Over the past several years, many states have increased their rules and oversight regarding medical expert witnesses (including psychiatric expert witnesses).
- Much of that increase has been sparked by complaints, justified or not, that (a) plaintiffs' experts in civil matters such as malpractice, often from other states, often either engage in a sort of "drive-by" testimony (my words) against local physicians without having adequate and relevant clinical credentials and/or (b) out-of-state experts take forensic practice away from in-state doctors.
- Such complaints, some new state regulations, and fear of undeserved retribution can make it difficult for one side or the other to find a well-qualified expert who is willing to testify.
- Investigation of complaints about fraudulent expert testimony or perjury often reveal instead a simple disagreement between expert witnesses. Difference of opinion should never be confused with unfair, unethical, or illegal conduct.
- States' efforts to require local licensure in order to allow an expert to testify have largely been unsuccessful. According the the article, only one state (Georgia) has a statute requiring full licensure (I believe there are others). Some, such as South Carolina, have attempted to require a temporary license. Sorrel reported that "(t)he South Carolina Supreme Court suspended their licensing statute, saying it interferes with the judicial process." Like attorney Michael Sacopulos, one of Ms. Sorrel’s sources, I am unaware of any court decision that has upheld a licensing requirement for testimony itself. (If you know of one, please email the citation -- not just an anecdote -- to me.)
- The Federation of State Medical Boards (FSMB), the advisory umbrella organization for state medical licensing boards, considers fraudulent testimony unprofessional conduct. (Physicians can expect their state medical licensing agencies to agree.)
Credibility is the foundation of psychiatric expert testimony and forensic work in other other fields. Judicious regulation, forensic experience, working with good lawyers, solid qualifications, scrupulous ethics, and openness to peer review all help protect respectable experts from being accused of professional impropriety, and from contributing to unfair judgements and case resolutions.
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Antidepressants and Suicide Risk in Children and Adolescents
There is more research supporting the safety and effectiveness of second-generation antidepressants (selective serotonin reuptake inibitors [SSRIs, such as fluoxetine/Prozax®, quetiapine/Zoloft®, and paroxetine/Paxil®], nefazodone/Serzone®, venlafaxine/Effexor®, and mirtazapine/Remeron®) in children and adolescents.
Bridge et al. recently published a review of 27 clinical trials of antidepressants prescribed to thousands of patients up to 18 years old with significant depression and anxiety disorders. All studies were randomized and placebo controlled. Other sources of the author’s data included regulatory agency reports and clinical trial registries.
The authors concluded that "(r)elative to placebo, antidepressants are efficacious for pediatric MDD, OCD, and non-OCD anxiety disorders, although the effects are strongest in non-OCD anxiety disorders, intermediate in OCD, and more modest in MDD. Benefits of antidepressants appear to be much greater than risks from suicidal ideation/suicide attempt across indications, although comparison of benefit to risk varies as a function of indication, age, chronicity, and study conditions" (from the published abstract). "MDD" refers to major depressive disorder; "OCD" is obsessive-compulsive disorder.
These findings should increase the call from clinicians and researchers for the U.S. Food and Drug Administration (FDA) to modify the warnings that were recently placed in package inserts for these medications, mitigate clinical concern about suicide risk allegedly related to prescribing them, and provide important information to lawyers and courts currently engaged in related malpractice litigation. The work is published in the Journal of the American Medical Association (JAMA), volume 297, pages 1683-1696 (2007).
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The Bureau of Justice Statistics recently released a report on malpractice claims resolved in seven states (FL, IL, ME, MA, MO, NV, and TX) between 2000 an 2004. The states represented are those that require malpractice carrier data on closed claims to be submitted to a government agency. These data include all medical and surgical specialties, not just psychiatric malpractice claims or those involving other mental health professionals. Note that the information below does not address the many claims which are unsuccessful, but only those which led to a payment. Note also that some states (including Texas) have statutory limits on trial judgements. That markedly affects payouts in both settled and tried cases, and also limits the number and kinds of cases filed in the first place.
Over two-thirds of successful claims were paid less than $250,000. Fewer than 10% received more than $1,000,000. In the states with relevant data, successful claims for major and grave permanent injuries paid a median of $278,000 to $350,000. Temporary or emotional injury received median payouts of only $5000 to $79,000.
Almost all medical malpractice claims (over 95%) are settled prior to trial. Claims that were resolved early (such as before, or soon after, suit was filed) received the lowest compensation. Those cases that plaintiffs won at trial were much more highly paid, as much as a median 2-1/2 times more than otherwise settled claims in Florida, Nevada, and Texas. It is much more expensive either to pursue or to defend a case which actually goes to trial. Using Texas as an example, the payouts for claims resolved through "alternative dispute resolution" (such as mediation or binding arbitration) were about the same as those resolved in other ways.
Claims in the "emotional only" injury category (as defined by the National Association of Insurance Commissioners [NAIC]) received very small payouts, with a median of $25,000-33,000 depending on the state. Note that this category does not reflect psychiatric or mental hospital claims which involved such things as suicide or wrongful death, injury from suicide attempt, or physically adverse effects of treatment.
Median damages paid to malpractice claimants increased between about 1990 and 2004. The amounts of increase varied greatly among the states reporting, and have also been affected during the past decade by various kinds of state "malpractice reform" legislation (e.g., limits on amount and type of claimant compensation, limits on plaintiffs' attorney fees, changes in litigation procedures).
The wheels of justice turn slowly. Claims were made to malpractice insurers an average of 15-24 months after the alleged injury occurred (no doubt varying with the applicable state statute of limitations). Once reported, those claims destined to be paid took an average of two to almost four years to resolve (depending on the state). Many took far longer.
BJS reports are a useful service of the U.S. Department of Justice, Office of Justice Programs. One can receive National Criminal Justice Reference Service updates (which address more than just criminal justice, including information on statistics, offender treatment programs, grants and government publications) by emailing justinfo@ncjrs.gov. For the complete report on thiis BJS Report, go to http://www.ojp.usdoj.gov/bjs/abstract/mmicss04.htm
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Behaviors That Get Psychiatrists, Psychologists, and Psychotherapists into Trouble
Psychiatrists' Risk Management Services, which manages a liability insurance program for members of the American Psychiatric Association, recently published "20 Surefire Steps to Increase Risk of Malpractice Suit or (Licensing) Board Complaint." I won't plagiarize from that article, but the topics are well known to attorneys, and should be familiar to all mental health professionals. I have collapsed the list, omitted a couple of items, added one or two, reworded the concepts a little, and expanded the target audience a bit, since most of the points aren't limited to psychiatry. The original article can be read on page 32 of the March 2, 2007, issue of Psychiatric News. Information about PRMS can be obtained at www.psychprogram.com.
Remember, these are the opposite of what mental health clinicians should do.
- Document only your first suicide risk assessment. Don't worry about documenting follow-up risk assessemnts or monitoring. Or just let the patient be lost to follow-up.
- Don't document your clinical rationale for changes in level of care or supervision, especially for potentially suicidal patients. Don't explain your judgement and rationale for the treatment plan in the record. Stick to the bare facts. Save trees.
- Don't contact family members for additional information about the patient's condition (especially his/her suicide risk), especially when the patient hasn't signed an authorization for information release. Use the same logic when telling concerned family members that you can't discuss the patient’s suicide risk.
- Don't worry about the safety of the patient's environment when deciding to discharge, order a pass, or not admit a potentially suicidal patient. In particular, don't bother to ask about available firearms. While you're at it, allow the family to take full responsibility for monitoring the patient.
- When a patient appears to be dangerous to others, rely solely on your own clinical judgement and don't bother to notify appropriate people, seek consultation, and/or otherwise reasonably protect potential victims (especially if the patient has identified potential victims).
- When in a collaborative treatment relationship with other clinicians (such as when prescribing for a patient who is in psychotherapy with someone else, or following a patient for a primary care physician), employ a "hands-off," "arms' length" approach. Don't exchange information regularly with the other professional. Don't discuss treatment approaches. Don't have any prior agreement about care or professional roles. Don't bother to learn anything about the other clinician's qualifications. Assume the other treater knows when to contact you. Spend 15 or 20 minutes with the patient every few weeks or months, sign the prescriptions, and move on.
- Keep your "special" patients special. Don't record really sensitive information about people, especially those in sensitive positions, even when it's clinically relevant. Bend the rules for V.I.P.s, old friends, other (perhaps impaired) professionals, and that particularly interesting (or attractive) therapy patient.
- Have sex with a patient. Have sex with a former patient. Terminate a patient and then have sex. Have drinks with a patient and promise yourself you won’t have sex. Spend a lot of time talking with a patient about yourself or your own interests. When you feel sexual or other inappropriate feelings toward a patient, tell the patient and ask if the patient feels similarly. Do not seek competent consultation if the impulse to act on such feelings is getting really strong.
- Prescribe medications by telephone when you don't know the patient well or have not conducted a suffucient evaluation. Don't bother to document the call. Prescribe without establishing recommended baseline laboratory values (e.g., when prescribing lithium compounds); documenting a thorough discussion of potential effects, potential side effects, and the patient's consent; and recording the name, number, dosage schedule, and clinical rationale for each prescription or change in prescription.
- Assume that merely prescribing for a patient doesn't establish a doctor-patient relationship. (Not on their list, but on mine.)
- Believe that patients who cannot pay for their care (or for some options of care) can be treated below the standard of care for all patients, especially if you're nice to them. Rely on their gratitude to keep you out of trouble.
- When stopping care, don't attend to the termination principles you learned in residency or graduate school. Be modern. Let the patient go his own way. And if there's a big problem, discharge him from your practice. Don't worry about making a careful referral. Assume you've dodged a malpractice bullet.
- If something bad happens to your patient or the patient's care, change the clinical record. If you receive a subpoena about a patient (or a request for records or letter from a lawyer) decide what to keep and what to shred. Do not contact an attorney.
Clinicians: Does the above make you nervous? Do you want to email me and complain that your schedule, or the clinic in which you work, forces you to do some of these things even though you know better? Do you think "managed care" has changed the standard of care in the U.S.? Remember that you, not the clinic administrator or insurance company, are responsible for the quality of your care and for meeting the relevant standard of care when working with patients. (Malpractice juries just hate the "managed care" excuse.)
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Antidepressant Prescribing Down, Child and Adolescent Suicide Up
I'm not an adolescent psychiatrist, but I monitor suicide-related issues as they apply to all ages. I've watched the recent flap over purported dangers of antidepressant medications for children and adolescents (particularly selective serotonin reuptake inhibitors or "SSRIs") very closely. Various people, some well-meaning and some simply anti-psychiatry or anti-psychotropic-medication, pressured the FDA into requiring special warnings regarding prescribing antidepressants for children and adolescents. Those warnings appeared officially in 2005, but there was lots of very unfortunate (if predictable) media sensationalism about antidepressant drugs and children throughout 2003 and 2004. That media feeding frenzy frightened many patients and their famililes, intimidated some psychiatrists and other doctors, and contributed to a significant decrease in antidepressant prescriptions for patients in this age group.
Now, data reported from the federal Centers for Disease Control and Prevention (CDC) and published in the journal Pediatrics strongly suggests that the decrease in antidepressant prescriptions has led to a substantial increase in both the rate and number of suicides in U.S. children and adolescents.
From 2000 to 2003, suicide in childhood and adolescence in the U.S. decreased measurably every year. In 2004, however, the number of suicides (and suicide rate) for those age groups spiked to a level not seen since before the year 2000. The spike coincides with the decrease in antidepressant prescriptions caused by the public SSRI "controversy." No other cause of childhood or adolescent death increased during the same period.
Several well-known mental health researchers and advocates, including spokespersons for Mental Health America (formerly the Mental Health Association) and the American Psychiatric Association, have either voiced concerned about the rise in suicide and its apparent relationship to fewer antidepressant prescriptions, or specifically blame the increase on the decline of prescriptions caused, apparently, by media trumpeting and the FDA-mandated warning.
I rarely use this website as a soapbox, but this topic (and the lives of our children) is worth the departure. We must wait a while for data which will show whether or not the suicide rate remained unusually high through 2005 and 2006; however, it seems prudent to encourage, in both professionals and the public, careful consideration of all potentially effective antidepressant treatments, including medication, when symptoms suggest they are warranted. (Hamilton BE, Minino AM, Martin JA et al. [2007]. Annual summary of vital statistics: 2005. Pediatrics [special supplement] 119:345-60)
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Judges’ Impressions of Foreign-Trained Psychiatric Expert Witnesses
During the past two years, Dr. Suresh Durgam and I surveyed 100 experienced Texas judges about how they thought jurors would respond to psychiatric expert witnesses who received their medical degrees outside the U.S. or Canada ("International Medical Graduates," "IMGs") but had their postgraduate training in accredited U.S. psychiatry residency programs. The judges were primarily from criminal and civil trial courts, with some juvenile and family courts represented. The survey addressed experts’ country of origin, medical school, and ethnic characteristics. Many of the questions were drawn from 11 one-paragraph descriptive vignettes that contained ethnically diverse examples which each judge rated with respect to perceived expert credibility.
Results. 58.4% of the judges believed that juries have a negative perception of IMG experts generally; 39.3% predicted neutral perceptions, and 2.2 % predicted a positive impact of IMG status. 84.4% believed that the specific country of medical training is important to jurors' perceptions. 91.0% thought that prominent ethnic features (e.g., dress, facial features, accent) influence jurors, often (but not always) in a negative way.
Responses to the 11 example vignettes varied, but predicted negative juror reactions to many backgrounds and ethnic features (p<0.001 for 8 of the 11 vignettes). A heavy accent was the most negative factor, followed by "foreign" appearance, certain specific regional backgrounds (Middle-East, Pakistani, and "third world" countries associated with allegedly substandard medical schools), and non-Western attire.
The lowest ratings went to hypothetical Middle-Eastern, Nigerian, Pakistani and Jamaican experts. One of those was described in his/her vignette as wearing a dashiki and two with heavy accents. The three highest rated (Irish, German, and South African Caucasian) received varying responses but averaged "no effect" on jury perceptions. All of those were hypothetically light skinned, clean shaven, and wearing Western attire.
93% of respondents believed trial venue could affect jury perceptions. Some mentioned individual personal or professional factors that might overcome the stereotypes surveyed.
Conclusions. The results suggest that geographic and ethnic characteristics are relevant for attorneys to consider when retaining testifying psychiatric experts. The complete paper will be published later this year.
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Civil Commitment and the “Gravely Disabled” Criterion
People, even psychiatrists, often associate civil commitment (involuntary hospitalization in a psychiatric hospital) with danger to self or others (meaning danger of suicide or violence). States also allow commitment of patients who, because of severe mental illness or disorder, cannot care for themselves, are in marked danger of mental deterioration, and/or cannot make appropriate treatment decisions. In fact, far more seriously ill patients are unable to care for themselves than are specifically suicidal or a danger to others.
This commitment criterion, often worded in statute as “grave disability,” is almost never intended to be limited strictly to one’s ability to survive. It would be cruel and inhumane indeed to keep a treatable person from getting help merely because he or she can get along outside a hospital without dying. Nevertheless, the Alaska Supreme Court has ruled that a person in that state cannot be civilly commited as gravely disabled unless he or she cannot “survive.”
The case involved a homeless man with severe mania who had refused treatment for several months. He challenged his admission to the Alaska Psychiatric Institute, as well as their giving of medication designed to alleviate his psychosis and allow him to think normally. Upon eventual appeal to the State supreme court, the Court opined that psychotropic medication was “highly intrusive” (a very odd finding), and that it was not enough to show that treatment was in the patient’s best interest, or would restore his quality of life. The Court required that the person be unable to survive outside a controlled environment. The Commitment was disallowed. (Wetherhorn v. Alaska Psychiatric Institute, No. S-11939, 2007 WL 80490 [ Ala. Jan. 12, 2007])
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Proscriptions Against Psychiatrists' Participation in Police Interrogations
Psychiatry has long had ethical proscriptions against forensic (not clinical) evaluations of criminal defendants prior to appointment of defense counsel. A recent article in the Journal of the American Academy of Psychiatry and the Law discusses the professional and ethical implications of participating in interrogations by police, military, or intelligence agencies, a topic which has been debated by the American Psychiatric Association for several years. The author, Jeffrey Janofsky, M.D., says in his introduction that "(d)irect or indirect participation of a psychiatrist with police, military, or intelligence personnel when interrogators use deception of psychological or physical coercion violates the basic principles of ethical forensic psychiatric practice . . . a slippery slope of designing, endorsing, and participating in deceptive techniques and psychologically and physically damaging acts." Janofsky associates many of his comments with physician and psychiatric ethics in interrogations related to the post-9/11 War on Terror. It is interesting to note that some of the principles he describes are echoed by organized psychology, and some are not. (Janofsky JS [2006]. Lies and coercion: why psychiatrists should not participate in police and intelligence interrogations. Journal of the American Academy of Psychiatry and the Law 34[4]:472-478)
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No Recent Sexual Act (“Recent Overt Act”) Required for Wisconsin SVP Commitment
Sexually violent predator commitment requirements don't always require a recent sexually violent act. Convicted sex offenders are routinely committed at the end of their prison sentences, many years after the sexual offense. In a case that illustrates one of the differences between SVP commitments and ordinary civil commitment (mental health commitments), the United States Supreme Court (USSC) refused to review a Wisconsin Supreme Court ruling upholding SVP commitment of a man whose last known sexual offense had occurred some 17 years earlier, even though he had spent considerable time outside prison or inpatient treatment without any known reoffending.
In 1988, Thomas H. Bush was convicted of attempted second degree sexual assault in Wisconsin. Four years later, he completed a prison sex offender treatment program and was paroled to an advanced treatment program outside the state. After release from the inpatient portion of that program, he purchased a car without permission and got into an accident (allegedly related to driving while intoxicated, for which he was acquitted). His Wisconsin parole was revoked and he was returned to prison. At the end of his prison sentence, Wisconsin attempted to commit him as an SVP. Bush argued that the State had not shown that he was "likely to . . . engage in acts of sexual violence" (a requirement for commitment), since he had been in the community and there was no evidence of a recent overt act of sexual violence, thus obviating, for due process purposes, any showing that he was currently dangerous.
The Wisconsin Supreme Court found against Bush, declining to adopt the model of a Washington Supreme Court decision which held that nonsexual offenses do not necessarily illustrate a propensity for current sexual violence and requiring a recent overt sexual act for SVP commitment in that state (Washington) (In re Albrecht, 51 P.3d 73 ([Wash. 2002]). The Wisconsin Court noted, among other things, that Bush's release had involved a supervised program in another state and that only risk assessment (rather than exact prediction of violence) was required for commitment. (Bush v. Wisconsin, 699 N.W.2d 80 [ Wis. 2005], cert. denied, 126 S. Ct. 631 [2005]).
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Physician Licensure and License Problems
Ever wonder how physicians (including psychiatrists) and other clinicians are regulated, investigated, or censured? Are bad doctors ever punished? Or can they pretty much do whatever they want? Can physicians who make mistakes or become impaired be rehabilitated? (We’ll focus on physicians for now, though the process is similar for psychologists and other independently-practicing clinicians.)
It’s reassuring to know that the process for obtaining a medical license is very difficult and complex, with a great many requirements which are carefully examined before a license is issued. Licenses must be renewed regularly, and doctors are expected to demonstrate continuing medical education, good mental health, and freedom from problems which might affect the safety and competence of their practices when they apply for renewal. In addition, there are many ways that a doctor can lose his or her medical license, receive license restrictions or suspensions, or otherwise be punished or censured for not behaving in a way consistent with good care and public safety.
Almost all medical licenses and certificates (with the exception of federal narcotics registration, which allows a physician to prescribe controlled drugs – medications sometimes associated with abuse or addiction) are issued and overseen by state licensing boards or agencies. Those agencies have the authority to make rules that have the force of law in order to qualify physician applicants, receive and investigate complaints, monitor licensees, and levy administrative penalties, fines, or license suspension, or revoke a license altogether. The state or territory licensing agency (which may be called a medical board, board of medical examiners, board of medical quality assurance, or something else) belongs to a national organization called the Federation of State Medical Boards, which coordinates and shares information among the states and territories about licensing requirements, trends, and doctors who have had serious licensing problems.
Licensing board investigations, hearings, and censure processes are administrative actions. Although attorneys may become involved, and some lawyers actually specialize in defending physicians whose licenses are threatened, licensure actions are quite separate from malpractice litigation, and do not involve criminal charges. Cases in which criminal activity is suspected are referred to law enforcement agencies.
If a serious problem or complaint is proved to the licensing agency’s satisfaction, that fact and the board’s decision about punishment and protection of the public is made public, including the name of the doctor. This quarter's published actions by the Texas Medical Board, for example, covered a range which included relatively minor infractions (such as potentially misleading advertising or minor misrepresentation of credentials), more serious ones (such as not keeping proper records or not following patients closely enough), and severe infractions (such as blatantly inadequate care, practicing while intoxicated, or having sex with patients). The punishments varied from fines and letters of reprimand to temporary practice restrictions, special education programs, psychiatric treatment, substance abuse programs, license suspension, substantial practice restriction, and license revocation (multiple punishments and requirements were common).
Each licensing agency has a website at which the public can check the license status of his or her physician. Most also provide public-record information about actions against doctors in the state. Some states identify only those practitioners who have received severe penalties, such as license revocation, restriction or suspension. Others list all actions against licensees, including (in some states) unproved complaints.
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Abandonment, Psychiatrist Liability, and Duty to Manage Suicide Risk
I am often asked about situations under which psychiatrists, psychologists, and other mental health professionals can refuse to see patients. The questions often involve ability to pay. I don’t give legal advice, of course, but the discussion usually turns to whether or not a doctor-patient relationship or other therapeutic alliance has been formed, and the condition of the particular patient or client. One should not turn away patients who are acutely ill or otherwise at risk (e.g., at risk of suicide or a substantial danger to others). A recent New Jersey Supreme Court decision makes an important point, although it does not decide the ultimate issue in the case cited.
A patient with recurrent, severe depressive episodes had been doing well until relatives noticed her symptoms returning. She had thought about killing herself but had no specific plan to do so. She saw a psychiatrist, who diagnosed severe depression and prescribed medication but didn’t hospitalize her because, he said, she had no suicide plan. When she returned for her next visit, a week later, he refused to see her, apparently because he didn’t accept credit cards and she couldn’t otherwise pay for the session. She was given an appointment to return in several weeks, but killed herself in the interim. The family sued, and the doctor raised a defense related to New Jersey statute that shields mental health professionals in situations of danger to others (in contrast to California’s Tarasoff decisions).
The State Supreme Court found that the practitioner was not protected by the New Jersey danger-to-third-parties shield law. The Court also implied that abandonment or other serious disruption of the therapeutic relationship can be associated with increased risk of violence or other tragedy. (Marshall v. Klebanov, 902 A.2d 873 [N.J. 2006]).
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Child Custody Evaluations: There Are Rules!
I am amazed at the way many mental health professionals and some courts address one of the most important kinds of litigation we have, that which determines the development -- and safety -- of children when their parents divorce or separate. Family court judges and family lawyers should know that there are at least three fundamental requirements for a child custody evaluation:
The evaluator must be adequately qualified. This usually means a fully-trained, forensically-experienced child psychiatrist or child psychologist. Family counselors, ordinary psychotherapists, and general psychiatrists and psychologists simply have not had the years of special child and adolescent training and experience necessary to understand children’s issues, family interactions, and the child custody process. (There are a handful of adult psychiatrists and psychologists who have the requisite special expertise and experience; they are the rare exception, not the rule.)
There should be no prior relationship between the evaluator and any of the parties. Although Dad’s or Mom’s therapist, the children’s counselor, or a family psychiatrist-friend may offer fact testimony, each has indelible bias, has often not received all the relevant information, almost always has a conflict of interest, and usually doesn’t understand the forensic process and its implications. Courts should not rely on his or her report or testimony for expert opinions (and most judges do not).
The evaluator must observe and interview every reasonably available person who is involved, both individually and within the family relationship. When one or more family members is truly unavailable for interview, that fact should be highlighted in any report or testimony and the possible effect on the expert opinion should be explained.
After allowing for lack of knowledge about what makes an adequate evaluation (and readers of the above paragraphs just lost that excuse), money is probably the most common reason for breaking these rules. Complete evaluations by qualified professionals routinely cost thousands of dollars. They take time. Courts and litigants may have to look outside their communities for specialists who meet both clinical and forensic criteria.
Tough. The child’s interests are the point here, not the parent’s, court’s or state’s pocketbook, feelings, or convenience. To act otherwise is to put children in danger of suffering even more than they must when their parents separate or divorce.
A recent article by Stephen P. Herman, M.D., a New York forensic child psychiatrist, provides an excellent summary of one of these fundamentals, evaluators who don’t assess all parties (Herman SP [2006]. One-sided custody evaluations. American Academy of Psychiatry and the Law Newsletter, September, pp. 9-10). Issues of the Newsletter can often be found in medical libraries or through www.aapl.org. Dr. Herman's website is at www.childforensics.com.
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Student Suicide Risk: Legal Liability for Mental Illness on Campus?
Some college students who develop psychiatric symptoms, especially suicidal thoughts, are being barred from their college campuses. Paul Appelbaum, M.D., former president of both the American Psychiatric Association and the American Academy of Psychiatry and the Law, commented on surprising new policies that appear to reflect college and university administrators’ “fears of legal liability if students commit suicide on campus.”
The article begins with the case, apparently far from unique, of J.N., a George Washington University student who asked friends to take him to a hospital after thinking about another friend who had committed suicide. He admitted himself to the psychiatric unit of GWU hospital. While there, he was personally served with notice that he had violated the school’s “endangering behavior” policy and would not be allowed to return to campus (even to clean out his dorm room). J.N. has sued GWU for alleged violation of the Americans with Disabilities Act, among other causes of action related to the rights of persons with mental disorders.
Although student suicide is rare, and colleges are rarely held liable for them, Appelbaum cites two cases in which courts have ruled that colleges and universities may incur liability based on either a knowledge of potential for suicide and subsequent duty to protect the student (Schieszler v. Ferrum College et al., 236 F Supp 2d 602 [West. Div. VA, 2002]) or existence of a special relationship between university and student creating a duty to protect him or her (Shin v. Massachusetts Institute of Technology et al., 19 Mass L Rep 570 [Middlesex Superior Court, 2005]).
There are two sides to the story. Students should not be punished, in effect, for recognizing emotional problems and trying to get psychiatric or psychological help. On the other hand, colleges and universities must be concerned with the safety of both the mentally ill student and those around him or her (cf., the Shin lawsuit, in which one issue was immolation in a dormitory room). Reasonable efforts to contain the college's risk, including liability risk, should be expected. Nevertheless, many readers’ first reaction may be that colleges can be too heavy-handed with troubled students, and perhaps fear of litigation, justified or not, is getting in the way of higher priorities for higher education.
(Appelbaum PS [2006]. “Depressed? Get Out!”: Dealing With Suicidal Students on College Campuses. Psychiatric Services 57[7]:914-916. http://ps.psychiatryonline.org)
Update (December, 2006): The case of J.N. versus George Washington University, above, has been settled for an undisclosed sum. J.N. had withdrawn from the university after the incident. A recent article in Psychiatric News (December 1, 2006) reports on some colleges' efforts to prevent student suicide, and on the American Psychiatric Association's efforts to help colleges develop appropriate policies and guidelines on related topics.
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Suicide Risk: Stop Prematurely Discharging Suicidal Patients
This is an editorial vignette (and a long one at that). It is based on clinical and forensic experience with which, I believe, the professional literature agrees.
I have seen a great many clinical cases and malpractice lawsuits during the past several years that call out to psychiatrists on inpatient units: “When a patient is admitted to a psychiatric hospital with serious suicide potential, do not discharge him or her after just a few days unless either that risk is substantially lessened or some other adequate measure has been taken to protect the patient.” Before you say to yourself, “I already do that,” please read on.
Given a patient who has recently made a serious suicide attempt or has been judged to be acutely suicidal, it makes no sense to move that patient prematurely from a relatively safe environment of almost constant professional observation and treatment to one in which virtually all protections are removed, there is no continuous monitoring, and the stimuli and stressors associated with the earlier self-harm are still present. Yet that’s exactly what happens in many hospitals. Each situation is unique, of course, and these comments are not meant to apply to every eventuality, but even “step-down” partial hospitalization and “intensive outpatient” programs leave the patient on his own most of the day and night, and usually return him to the setting in which the suicidal impulse was, quite recently, very strong.
I’m not dragging up the old concept of “predicting suicide” (the point is risk, not “prediction”), nor am I trying to tie the hands of good clinicians who treat very sick patients whom they usually (but not always) must eventually discharge. But it may be useful to point out a few ways I think about the topic when a trainee, colleague, or (sometimes) a defendant psychiatrist tries to justify an early discharge.
Let’s assume you’re considering discharging a patient with severe, recurrent major depressive disorder three or four days after he made a nearly-lethal suicide attempt. (The gender is unimportant; it is a fairly minor “risk factor” in severely ill patients.) He looks a lot better, has gotten some sleep thanks to sleeping medication, has gone to a few hospital activities groups, and says he’ll never do it again.
- What’s changed in/for the patient? Has he been cured? Have his risk factors been altered sufficiently to move him from a high-risk group to a low-risk group? If not, can the remaining significant risk factors be managed well enough to place him in -- and keep him in -- a low-risk group? Have the precipitating factors for the attempt been reliably eliminated? Has he responded well to treatment (e.g., medication, cognitive-behavioral therapy, electroconvulsive therapy)? How do you know, since one cannot know whether or not antidepressant medication, for example, is effective for several weeks? Have you done a thorough suicide assessment since admission (especially just prior to potential discharge)? Lastly, how reliable is your answer to each of these questions?
- Instability and unreliability are serious risk factors. Notice how often the word “reliable” appeared in the above paragraph. It is not enough for the patient to appear safe on the day of discharge; the psychiatrist must be reasonably certain that the low-risk condition is stable. Many patients have waxing and waning illnesses, unpredictable symptoms, difficulty following treatment regimens, highly stressful home environments, and/or substance abuse problems. Is it likely that substantial risk factors will present themselves after discharge? If so, how have you and the treatment team protected the patient from that continuing risk?
- Why do you believe the patient? Suicidal patients are often inaccurate. They often misunderstand their illnesses and symptoms. They often can’t predict their symptoms and behaviors. They are often poorly interviewed or asked the wrong questions. They often misunderstand their clinicians. They often cannot provide complete information about their histories and symptoms. And suicidal patients often lie. What’s more, doctors and other clinicians are not very good at discerning whether or not their patients are lying about suicidal thoughts. Some patients lie to get out of the hospital and kill themselves. Others lie so that they have the option, to control their own destiny. Some who believe they won’t kill themselves lack the insight that self-destructive parts of them can return. It is simply a mistake to rely solely on a recently-suicidal patient, whose judgment and insight are almost certainly flawed, when other sources of information are available. When the patient is the only feasible source of information, doctors must be more than usually cautious about discharge.
- Is this the way you’d want a psychiatrist or hospital to treat one of your relatives? Ask yourself how you would want the patient to be treated if he were a close relative. Eliminate utilization review, insurance coverage, and “average” hospital stay from the equation; since those things are not relevant until clinical and protective needs have been met.
- Comparison with other medical specialties. We sometimes forget that serious mental illness can bring with it as much morbidity and mortality as severe conditions seen by internists, cardiologists, and trauma specialists. We expect patients with acute or suspected myocardial infarctions, for example, to be moved within a system of care that protects them from unacceptable risk, and that usually happens. Their standard of care demands, and doctors and hospitals generally provide, careful and frequent clinical assessment, reliable indicators of risk or relative safety (especially as discharge is contemplated), recovery settings with adequate monitoring, and scheduled, reliable follow-up care. That’s often the standard of care for psychiatric patients as well.
- Comparison with other, simple risk management principles. Lest some clinicians still try to reassure themselves with the fact that suicide is a fairly rare event, consider this: It is unacceptable to allow a small child to play unsupervised in the street even when the street is almost free of traffic. It is foolhardy to let a small child wade in a shallow surf or lakeshore when there is even a tiny chance of his stumbling into a deep spot or strong current. The probability of contracting rabies after a dog bite is remote, yet we insist on careful assessment and, if we cannot be reassured that the risk is very low, we expect prophylaxis. The probability may be low, but (1) the stakes are high, (2) the risk is unacceptable, and (3) there are reasonable ways to reduce that risk. I suggest that psychiatrists and other clinicians who work with suicidal patients think of risk in a similar fashion, and act accordingly.
For those readers who are clinicians, and particularly those who teach in clinical training programs, I’m happy to send you a copy of my training slides on this general topic. They aren’t perfect. They are designed to spur discussion, not to be ends in themselves. They don’t ask for perfection, but they do not apologize for making patient need and risk our top priorities whenever possible. If you are a clinician, email me and I’ll give you a mailing address (or get it from the Qualifications page of this website). Then if you’ll request the slides on your letterhead, I’ll email them to you
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Antidepressants and Adolescent Suicide Risk
A recent review of a large number of clinical trials appears to refute allegations that antidepressants per se can somehow "cause" suicide, or increase suicidality, in adolescents. Dr. Daniel Deutschman found that suicidal thoughts and behaviors tended to decrease with such medications, but in those few in whom they did increase (a number no larger than expected with any treatment) they tended to be due to "intervening stressors," interruption of treatment, or other factors not attributable to their medication. Dr. Deutschman presented the analysis at the 2005 annual meeting of the American Academy of Child and Adolescent Psychiatry (AACAP).
Some anecdotal reports and a few studies during the past several years had raised concerns that some selective serotonin reuptake inhibitors (SSRI antidepressants) could be associated with increased adolescent suicide risk. Last year, the U.S. Food and Drug Administration (FDA) mandated a "black box" warning in the package inserts of all classes of antidepressants (not just SSRIs) which states that
Antidepressants increase the risk of suicidal thinking and behavior (suicidality) in children and adolescents with major depressive disorder (MDD) and other psychiatric disorders. Anyone considering the use of [Drug Name] or any other antidepressant in a child or adolescent must balance this risk with the clinical need. Patients who are started on therapy should be observed closely for clinical worsening, suicidality, or unusual changes in behavior. Families and caregivers should be advised of the need for close observation and communication with the prescriber. . . .
Pooled analyses of short-term (4 to 16 weeks) placebo-controlled trials of nine antidepressant drugs (SSRIs and others) in children and adolescents with MDD, obsessive compulsive disorder (OCD), or other psychiatric disorders (a total of 24 trials involving over 4400 patients) have revealed a greater risk of adverse events representing suicidal thinking or behavior (suicidality) during the first few months of treatment in those receiving antidepressants. The average risk of such events on drug was 4%, twice the placebo risk of 2%. No suicides occurred in these trials.
Some plaintiffs have filed lawsuits alleging that the antidepressants are defective products, or malpractice suits alleging that prescribing them is automatically below the standard of care and a proximate cause of death. I am not aware that any has been successful.
Many practitioners doubt that there is any direct association between the medications themselves and suicidal impulses. There is concern that misinterpretation of the FDA-required warnings and fear of malpractice lawsuits may prevent adequate treatment of depression in teenage patients. Depression and other mood disorders themselves increase risk of suicide, and suicidality in children and adolescents sometimes leads to impulsive self-destructive behavior with little or no advance warning. Early in treatment, both adults and teenagers often go through a period of better concentration and more energy before their depression lifts completely. During that time, their probability of suicide may be high, perhaps higher than it was when they were more depressed. In addition, seeing the patient start to improve, or simply knowing he or she is in treatment, may lead family or clinicians to relax their vigilance.
(Note: Two more recent federally-funded studies also failed to find an increase in suicides associated with antidepressant prescribing. A further update will be posted here soon.)
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Texas Sexual Predator Appeals, Sex Offender Registration & Treatment
As is the case in other states with sexually violent predator (SVP) statutes, Texas defendants and committees have appealed many of the state's commitment procedures and concepts. One of the more disturbing (to clinicians) commitment policies is that which allows commitment of severely mentally ill or mentally retarded offenders to the state's SVP treatment system. That system is quite rigid, with little flexibility for patients/committees who cannot adhere to its many rules and make progress. Further, there is little evidence that "progress" is adequately measured, nor that any committed person will be released from the program once progress has been made. "Progress" is not the most important point for these arguably incompetent SVPs, however, but whether or not it is constitutional to commit them to a program in which they are almost certain to fail to follow all the rules. There are some 96 rules in each offender's involuntary outpatient commitment "contract"; any violation is a third-degree felony which often leads to further incarceration without treatment.
In a recent case, the Texas Supreme Court ruled that incompetent persons can be committed under SVP statutes, in part because criminal proceeding safeguards are not required in this civil SVP commitment procedure (In re Commitment of Fisher, 164 S.W.3d 637 [Tex. 2005]). The Court also found that the primary purposes of the SVP commitment program are not punishment, deterrence, or retribution (criminal justice matters), but rather treatment, supervision, and protection of the public (appropriate for treatment as civil matters). The outpatient nature of the program, in which offenders live in the community (under strict rules and monitoring) rather than in a locked, prison-like facility, was said to offset the potentially severe penalties for breaking rules. Several other challenges were denied as well, including ones related to vagueness of the statute and policies, lack of individualized risk assessment and treatment, use of the poorly-defined term "behavioral abnormality" in the statute, and arbitrary enforcement. The U.S. Supreme Court (USSC) declined to review the ruling and denied certiorari (No. 05-240, 2005 WL 2493944, [U.S. Oct 11, 2005])
In a somewhat related Texas case, the USSC upheld a Fifth Circuit finding by declining review of Coleman v. Dretke, in which a defendant had apparently committed sexual assault on a child but was convicted of a lesser, nonsexual offense. The State attempted to require the inmate to become a registered sex offender and receive sex offender treatment as a condition of parole. The Court blocked those restrictions, ruling that if the conviction was for a nonsexual crime, they could only be imposed after a hearing which determined that the parolee was a threat to society because of his sexual behavior. Ordering sex offender treatment in Texas was found not to be tantamount to simply ordering counseling (a common parole requirement), since Texas sex offender therapy programs are quite different from, and much more intrusive than, ordinary counseling. (395 F.3d 216 [5th Cir. 2004], cert. denied, No. 05-218, 2005 WL 2493936 [U.S. Oct. 11, 2005])
New AAPL Ethics Guidelines for Forensic Psychiatrists
The American Academy of Psychiatry and the Law (AAPL), the oldest and most respected U.S. organization at the interface of psychiatry and the law, is dedicated to excellence in practice, education, and research in forensic psychiatry. AAPL members are expected to adhere to the American Medical Association Principles of Medical Ethics, as well as to the American Psychiatric Association's "annotations" of that AMA document. AAPL members are also provided additional guidelines which address the special activities and situations seen in forensic practice. It should be noted that nothing is taken away from the broader medical and psychiatric principles; specific forensic topics are simply added. After some three years of drafting, with both internal and external review, AAPL recently (May, 2005) issued a new version of its longstanding ethics guidelines.
The complete text is available at www.aapl.org/pdf/ETHICSGDLNS.pdf, or by going to the AAPL home page at www.aapl.org.
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When Must Lawyers Disclose Attorney-Client Information?
It's an obvious question, but most non-lawyers don't know the answer. If an attorney's mentally ill client discloses something dangerous, such as a bomb threat, or says he's about to commit a crime, what can the lawyer do? After all, the lawyer-client privilege is pretty restrictive, much more so than that between clinicians and patients. In Texas, the "Disciplinary Rules of Professional Conduct" provide several situations in which an attorney may disclose information (Rule 1.05), and several others in which he or she must do so (Rules 3.03(a)(2), 3.03(b), and 4.01(b)). Other states have similar rules or statutes. (Thanks to Mark at Kerville State Hospital for researching this answer, and to TDSHS attorney Chris Lopez.)
In Texas, in addition to instances in which the client authorizes disclosure, the attorney, acting reasonably, may do so (1) to comply with a court order or relevant law; (2) to defend oneself against a criminal, civil, or disciplinary allegation by the client with respect to the case at hand; (3) to prevent the client from committing a criminal or fraudulent act, or substantially injuring others through such an act; (4) to rectify the consequences of such a criminal or fraudulent act in which the lawyer's services have been used; Note that the extent to which the confidential information may be revealed is limited to that which is necessary to carry out the above purpose, particularly prevention of a crime, fraud, or injury to others.
A Texas lawyer is required to disclose confidentialities to "tribunals" (courts, etc.) when necessary to prevent a criminal or fraudulent act. He or she is also required to try to persuade clients to provide a correction when he knows the client has given false evidence, and if unsuccessful to take whatever steps are reasonably necessary to correct the evidence, including disclosure of the facts. Even when attorney-client information is not confidential, the lawyer must not allow the information to be used for some criminal or fraudulent purpose, and must disclose the information if necessary to avoid becoming a party to such an act. (See http://www.txethics.org/reference_rules.asp?view=conduct for the entire citation.)
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Legality and Ethics of Physicians' Participation in Executions
Two cases reported by Thomas Hafemeister's excellent "E-Developments in Mental Health Law" (see link in the "Resources" section), from Kentucky and Georgia, address complaints to state medical licensing boards about physicians who have some role in executions. As E-Developments noted, the American Medical Association (AMA) -- and by extension of its Principles of Medical Ethics, the American Psychiatric Association (APA) as well -- has long had ethical proscriptions against direct participation, defining same as, generally, any action which would directly cause death of the condemned person, would assist another in causing the death, or would automatically cause the execution to be carried out. In addition, the AMA and APA state that physicians should not treat prisoners for the purpose of restoring competence when an execution has been postponed because of lack of competency to be executed (unless the sentence has been commuted). Medical (including psychiatric) treatment of death row inmates is allowed for other reasons, which begs a number of more complex ethical questions. (See the text at www.ama-assn.org/ama/pub/category/8419.html.)
Readers should note that although most physicians take them seriously, principles of medical ethics are binding only on members of the organization that promulgates them, in this case the AMA and APA. Thus physicians, including psychiatrists, who are not members of either professional organization have no external motivation (separate from their moral one) to follow any of their ethical guidelines unless some other relevant body, such as a legislature, licensing board, or employer, adopts them. Even for organization members, the maximum "penalty" for serious ethical breach is expulsion, which does not in itself affect one's medical license (many practicing physicians are not members of the AMA, and many psychiatrists do not belong to the APA).
Both the complaint to the Kentucky Board of Medical Licensure and that to the Georgia Composite State Board of Medical Examiners were filed by an Ohio pediatrician, Dr. Groner, who is associated with a coalition with that purpose. The Kentucky complaint alleged that Governor Ernie Fletcher, a physician, violated medical ethics obligations by signing a death warrant for a convicted murderer. There is no information about whether or not the Governor was a member of the AMA or APA. The complaint was dismissed by the Kentucky Board.
The Georgia complaint alleged more direct participation, in which a physician inserted the venous catheter which would be used for lethal injection a few minutes later. Once again, the E-Developments source does not mention whether or not the doctor was an AMA or APA member, but the legal matter was resolved when the Board ruled in 2004 that there was no violation of the Georgia Medical Practice Act.
Additional information about these cases and related actions, including state legislation to protect physicians who participate in executions within the law, is available at an AMA website, www.ama-assn.org/amednews/2005/01/31/prsg0131.htm.
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AMA and Criteria for Expert Witnesses
The American Medical Association Council of Delegates recently approved a policy statement recommending that expert witnesses in medical malpractice lawsuits have recent clinical experience relevant to the case at hand and be board certified in the applicable specialty. The policy was couched as an effort to help courts get to the truth by discouraging poorly trained or inappropriately biased "experts." It was described as addressing only one part of a "broken medical liability system" (Donald Palmisano, M.D., past president).
The 284 to 196 vote settled a longstanding fight led largely by members (and some state medical societies) who believe that plaintiffs' experts are often not qualified to criticize defendant doctors, and that their roles should be heavily restricted. The new policy recommends that medical experts have education, training, and professional experience comparable to those of the defendant about whom he or she may testify, within five years of the incident in question, and that the expert be board certified.
One assumes that the board certification should be by a professionally recognized organization such a member board of the American Board of Medical Specialties. The American Board of Psychiatry and Neurology, which certifies physicians in general psychiatry, neurology, and several psychiatric and neurological subspecialties, meets that criterion. Certification in psychiatry requires, among other things, completing medical school and an approved psychiatry residency, passing a written test, and passing an oral examination which involves both live and videotaped patients.
The AMA's comparable training and experience criterion (which appears in some form in several state statutes as well) is superficially simple, but can be misunderstood. "Clinical" experience, for example, is not limited to direct patient care. Indeed, some specialties don't engage in direct patient care at all. In addition, there is no bright line between "clinical" and "forensic" work; the two often overlap. Clinical consultation, research, teaching, supervision, and/or oversight may include highly relevant experience without the same kind of direct patient responsibility encountered by most malpractice defendants.
The effort to raise forensic practice standards is a good thing, and the AMA's decision is a positive step in many ways. On the other hand, both defendants and plaintiffs deserve access to the best help they can get, and each should be free to define the parameters of that expertise as befits its view of the case. Every case is individual, just as every patient. In the long run, judges should be the final arbiters of who is allowed to testify, based on the expert's ability to contribute information and and offer opinions which are properly founded, honest, and relevant to the issue at hand.
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Assessing Malingering: Accuracy and Coaching
Unlike ordinary patients (who sometimes exaggerate, deny, and/or misunderstand symptoms themselves), when malingering (also called dissimulation) is a potential issue, one cannot assume the patient or litigant will even try to tell the truth. To make matters more difficult, psychiatric and psychological symptoms are often subjective (experienced only by the person/patient and not easily measurable by objective means). Tests for malingering must be designed, administered, and their results interpreted with special attention to things like (1) preventing false negatives (catching people who try to beat the test), (2) preventing false positives (not calling true symptoms "malingering"), and (3) recognizing and interpreting malingering in people who also have some true incapacity or disability.
In mental health fields, the most common things to malinger seem to be emotional damage (including, but not limited to, post-traumatic stress disorder [PTSD]), "brain damage" (perhaps more neurological, but often assessed or managed by psychologists and psychiatrists), memory (separate from brain damage), and psychosis. Of those, brain damage and isolated memory deficits hold the best opportunity for accurate assessment. There are some elegant statistical and actuarial techniques that do a good job in most cases, and at least one recent study from the Mayo Clinic suggests that those techniques are not usually stymied by unscrupulous people who may "coach" a patient or litigant hoping to pass the malingering "test." (Powell MR, Gfeller JD, Hendricks BL, Sharland M [2004]. Detecting symptom- and test-coached simulators with the test of memory malingering. Archives of Clinical Neurology 19[5]:693-702)
It is tempting to discuss the principles underlying malingering assessment, but why give away the secrets to potential malingerers visiting this website? Interviews alone, even by experienced mental health professionals, are not particularly accurate in this regard. Simple self-report instruments (e.g., for PTSD or depression) that are often useful in purely clinical settings have little individual utility in malingering assessment. Interested lawyers or courts should contact a qualified forensic psychiatrist, psychologist, or neuropsychologist for details.
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Recidivism After Sex Offender Treatment Programs
Sex offender treatment, whether in a correctional setting, part of a parole or sexually violent predator commitment (SVP commitment ), or simply in the clinical realm, has a reputation for ineffectiveness. There are approaches that work for some people, in some settings. Generic programs, such as those pulled together to meet some statutory requirement, tend to be inappropriate for many patients, committees, or parolees. Their outcome data are difficult to obtain (and the results are hard to evaluate), but usually suggest ineffective or mediocre results. Those that indiscriminately take patients from any offense or background (such as many outpatient SVP commitment or parole programs) have similar problems. Individually-prescribed biological treatments (antiandrogen/hormonal, not antidepressant/SSRI) appear to be the most effective, but are fraught with (often unnecessary) controversy. I am not aware of any SVP commitment program that makes routine use of antiandrogen or hormonal approaches.
One constant in the search for effective treatments is that whatever the local statistics, there is a marked difference in recidivism between people who successfully complete the program and those who drop out. Note that this doesn't comment on the net effectiveness of a particular method or program, but rather on the comparative pessimism for dropouts (worse) versus completers (better). The patient's reason for dropping out is immaterial, though his reason for staying may be relevant (e.g., if the patient/offender was coerced into staying or stayed merely to increase his chances for parole).
A recent Canadian study of sex offenders during a two-year post-release period generally replicates the above, finding that some six times more dropouts from the prison program were charged or convicted of new violent and/or sexual offenses than persons who completed it. Interestingly, in this study, neither pre-treatment Static-99 scores or "grades" during the treatment program affected the known recidivism rate among completers. (International Journal of Offender Therapy and ComparativeCriminology 48[5]:600-612)
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Medical Training and Medical Licensure of Doctors With Psychiatric Disorders
The Americans with Disabilities Act (ADA) is sometimes invoked by medical students, postgraduate residents, and licensed physicians in order to forestall disciplinary action or modify examination requirements. In some cases, students and physicians with disabilities (including some relatively mild learning disabilities) are routinely allowed extra time or other accommodations in licensing examinations or certifying board exams. The issues are not simple. Some conditions are not legitimately related to one's ability to practice safely and competently, but others clearly are. Training and licensing organizations must navigate among protecting the public, responding to public perceptions about disabled physicians, being fair to students and doctors, and protecting themselves against lawsuits by disgruntled trainees and practitioners. Several recent cases have reached the federal courts.
In Powell v. The National Board of Medical Examiners (364 F.3d 79 [2d Cir. 2004]), the federal Second Circuit properly dismissed a medical student after she repeatedly failed a required examination (the initial or "basic sciences" portion of the National Board Examinations). The student was said to have dyslexia and attention deficit disorder and sued alleging ADA entitlements and discrimination. The Court found that she was not "otherwise qualified" and did not meet essential eligibility requirements for continuing as a medical student, citing her low grades and other indicia of problems acquiring the requisite medical knowledge. It further found that she had not been discriminated against. The school had provided her with a great many aids, including tutors and remedial classes. Finally, the Court noted that the faculty should be accorded substantial flexibility in exercising its professional judgement in academic decisions.
In an earlier case, the U.S. Supreme Court declined review of a Sixth Circuit ruling that a medical student should not be reinstated after suspension for what the student alleged was a mental disorder. The Court found that the medical school had made its decision carefully and deliberately, that the student had been properly informed of his unsatisfactory progress, and that all other significant aspects of academic due process had been observed. (Ku v. Tennessee, 322 F.3d 431 [6th Cir. 2003], cert. denied, 124 S. Ct. 325 [U.S. 2003]).
In 2002, the rather liberal Ninth Circuit ruled that the ADA may apply to a physician who had been denied a medical license because of mental illness, and thus allowed his suit against the California Medical Board to proceed. The Medical Board appealed to the U.S. Supreme Court, but withdrew its appeal in 2003 (ostensibly to prevent a ruling which might weaken the ADA overal) after the Supreme Court had agreed to review the case, leaving the Ninth Circuit ruling intact. (Medical Board of California v. Hason, 2003 WL 1792116 [U.S. 2003])
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Qualified Immunity When Reporting Unsafe or Incompetent Physicians
Doctors and other clinicians are routinely encouraged to report colleagues whom they believe may be incompetent or a danger to patients. Doing so is, in my view, a duty to both patients and the profession. The immunity offered by licensing boards and regulatory bodies is, however, often predicated on the good faith of the reporting effort or allegation.
A Connecticutt appeals court allowed a psychiatrist whose license had been suspended to sue four other physicians for allegedly malicious reports to the State Department of Public Health. The four reporting doctors asserted that they were entitled to absolute immunity, since they expressed concern about the psychiatrist's ability to practice safely.
The court ruled that the State legislature, in modifying an absolute immunity statute intended for "quasi-judicial" proceedings, had wanted to discourage bad-faith reporting and unnecessary damage to professional reputations. Thus if the psychiatrist could present proof of malice in the report submissions, he could sue the doctors who filed them. ((Note that this case did not find the reporting physicians liable, but merely returned the case to a trial court to determine whether or not they had improper motives for filing their complaints.)) Chadha v. Charlotte Hungerford Hospital 822 A.2d 303 (Conn. App. Ct. 2003)
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Forensic Psychiatrists' Fee Agreements
Dr. Thomas Gutheil begins a brief article in the Journal of the American Academy of Psychiatry and the Law with the comment that most lawyers who retain psychiatric experts respect the expert witness relationship and deal with fees and charges without any problem. Tom has also been known to say, with the sage smile seen only on that rara avis, professoriae harvardium, that a forensic psychiatrist who doesn't see the necessity of a fee agreement is one who hasn't yet been stiffed by an attorney. His survey indicates that some experienced experts still don't use them, but most do. (Gutheil TG [2000]. Forensic Psychiatrists' Fee Agreements: A Preliminary Empirical Survey and Discussion. J Am Acad Psychiatry Law 28(3):290-292)
Twenty senior forensic psychiatrists responded to his survey, and 11 sent copies of their written fee agreements. Actual fees were not revealed in the article. Almost all specified retainers, some requiring replenishment as work progressed. Most specified the same hourly rates for all billable activities; a few charged different amounts for different activities (e.g., review, testimony, conference, examination, travel). Most had a "day rate" for work that involves longer periods or travel. A minority listed interest rates for overdue bills. Advance deposits against hours or expenses spent in testimony or other time-consuming activity were common. While several mentioned refunds of overpayments (e.g., for unused travel or testimony time), only one (yours truly, in fact) had a sliding refund scale which depended on the amount of cancellation notice received.
I should point out some of the reasons that many experts require payment before releasing a report or scheduling testimony, lest some readers misunderstand and think it crass or greedy. It is neither.
Fiscal practicality aside, there is a strong issue of credibility and ethics which suggests that experts should be paid before opinions are offered or testimony given. An opinion which is rendered with several thousand dollars of unpaid bills can be (and often is) criticized something like this:
Opposing Lawyer: "Doctor, does attorney X owe you any money at this point in your work on her case?"
Expert Witness: "Yes, there is a bill outstanding."
O.L.: "Approximately how much?"
E.W.: "About $3500, plus time and expenses for coming to this trial. Perhaps $8000 in all."
O.L.: "So, it's fair to say that you're testifying with a big bag of money hanging over your head, doctor, and that attorney X may not be pleased if you answer the wrong way?"
(Sound of jury members' turning expectantly to hear how the expert witness answers this one.)
In addition, and unfortunately for a noble profession, some lawyers don't pay their bills, especially after the expert's usefulness has passed (and even more especially if the expert's opinions have not helped win or favorably settle the case).
An advance deposit against billings obviates these problems of credibility, ethics, and practicality. It establishes that one is not paid for his or her opinions per se, but for the time and effort expended in reaching and (if asked) expressing them, and eliminates any appearance of extorted testimony.
A good consultant understands the lawyer's objectives and may help greatly with them, but our task and our compensation are related solely to the consultation process and expressing our findings. Our fees -- and payment of them -- must not depend on the lawyer's view of whether or not those findings were valuable to his case.
A last word to attorney-readers: Most of you are great folks to work with; the rest . . . well, you know who you are.
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"Clinical Practice" and Psychiatric Expert Witnesses
Dawson v. Prager and The Menninger Clinic (Kansas Supreme Court, 2003, No. 88,077) caught my eye. In that case, a psychiatrist's expert testimony was disqualified because she (Dr. Prager) said that her clinical practice (20 hours per week) occupied only 30-40% of her professional time. Kansas state law requires that at least 50% of an expert's professional time be spent in "clinical practice" if he or she is to testify about the standard of care for health care providers (K.S.A. 60-3412). (Thanks to Dr. Joel Dvoskin for bringing this case to my attention.)
Psychiatrist experts are often asked about their own clinical practices. Lawyers in malpractice or other standard of care matters may try to decrease a medical experts' credibility by implying that he or she does little clinical work, suggesting the witness is not qualified to offer opinions on clinical care. Some states require that experts testifying in malpractice matters be "clinically active" or spend a certain portion of their time doing "clinical" work.
It is important for lawyers, courts, and juries to understand that the concepts of clinical practice and forensic work are by no means mutually exclusive. They often overlap a great deal. In addition, one should not equate relevant "clinical work" or "clinical practice" with direct patient care.
Although it's nice when an expert can answer "yes" when asked "do you treat patients, doctor," that question is often irrelevant to whether or not the witness meets some criterion for either clinical practice or expertise. Many very "clinical" physicians, including some psychiatrists and a great many other doctors, don't "treat" at all, but focus on examination, diagnosis, or consultation (even consultation which rarely involves seeing the patient himself, such as in radiology or pathology).
"Clinical" is a broad term which is not limited to the common image of individual patient care. It may include examination, evaluation, or care in many different settings (including forensic ones), supervision of patient examination or care (e.g., in clinical teaching or clinician oversight), consultation and other clinical activity which affects diagnosis or treatment but often creates no doctor-patient relationship, medical teaching on clinical topics (with or without a patient present), attending clinical conferences or continuing education programs, reviewing medical histories or records, and clinical review and research (including reviewing clinical/professional literature).
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Adequate Risk Assessment Often Requires Seeking Collateral Information
I spend a lot of time trying to convince psychiatric trainees that their evaluations should not rely simply on patient comments and hospital observations when corroborating information is reasonably available. It's an uphill battle, with the residents understanding the need for outside data but sometimes citing confidentiality issues or overwork (knowing that we supervisors sometimes translate that as laziness) to excuse, for example, their not consulting parents or siblings. A recent case, however, may motivate them to change.
A man with many recent losses -- physical, family, marital, financial -- threatened to kill his wife and himself. He was very depressed and particularly upset that his wife was now asking for a divorce. They had been separated for several weeks; the patient had been living with his mother for well over a month and had spent most of the past several years in her (the mother's) home. He had just learned that his wife was seeing another man, and was admitted to a psychiatric hospital expressing great worry that he might harm her and himself.
The inpatient psychiatrist knew little about him. The doctor relied primarily on the patient's own statements that the homicidal and suicidal thoughts had abated over a day or two. He failed to contact the patient's mother, who would have described acute and severe depression both in recent days and currently (on her frequent visits to him in the hospital). Her information, unknown because she was not asked, contradiced the doctor's impression that the patient had improved. In the absence of that information, the psychiatrist discharged the patient after a few days. Two days later, the patient was killed while attacking the man he thought was cuckholding him.
The psychiatrist was sued for malpractice. The plaintiff's case rested in part on the brevity of the hospitalization and in part on allegations of inadequate evaluation and risk assessment (including not contacting the patient's mother, with whom he had lived for weeks). The psychiatrist won this time, but the jury wrestled with the decision for three days.
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Competency: Patients' Competence to Refuse or Accept Treatment
Clinicians, facility administrators, and even some attorneys sometimes misunderstand important concepts related to competence to accept treatment or procedures (including psychiatric medication or hospitalization), and competence to refuse them. Their misunderstanding sometimes causes unfair denial of care to patients who need it. The topic is discussed in a 2001 column in the Journal of Psychiatric Practice (available on another page of this website), but bears a fresh summarization here.
The criteria for competence to accept something are very often different from the criteria to refuse it. The two should not be confused in patient care.
Before being allowed to consent, patients must be assumed -- or found -- competent to do so. Certain psychiatric symptoms suggest (to some, at least) an assumption of incompetence, which may be overcome by a reasonable test of competence. Such a test may be simple or complex, formal or informal, depending on the situation. Complex consent or refusal decisions require higher thresholds of competence than simple ones. Similarly, decisions with substantial consequences or risks require more competence than do trivial ones. That's why one should differentiate competence to accept from competence to refuse.
A decision to accept recommended psychiatric hospitalization, for example, is usually simple and benign when compared to a decision to refuse the same hospitalization. Patient generally understand what is likely to happen to them in the hospital, and the chance of a severely adverse consequence related per se to being admitted is low; thus the threshold of competency required to accept hospital admission should usually be relatively low.
On the other hand, the ramifications of refusing hospitalization or treatment when one is seriously ill are likely to be much more serious, even ominous. Thus the competency criteria for refusing hospitalization should often be relatively high.
The same principles can be applied to other clinical consents and refusals. Psychotropic medications, for example, are generally safe when properly prescribed. For most patients, the potential for adverse consequences of accepting them are far less damaging than the potential ramifications of refusing. The reasonable threshold for competence thus should almost always be lower for consenting to medication and higher for the refusing medication.
My recommendation: Don't deny patients needed care by confusing competence to accept it with competence to refuse.
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Psychiatrists' Responsibilities in Co-therapy/Co-treatment
Co-therapy, sometimes called co-treatment or "split therapy" is (in this context) the sharing of psychiatric or mental health treatment by two or more professionals. It usually describes a psychiatrist (sometimes a family practitioner) who prescribes medication for a patient who is receiving counseling or psychotherapy from a nonmedical therapist (usually a psychologist, social worker, or other counselor). The plan may be for the psychiatrist simply to provide medication, to share clinical responsibility, or to provide supervision or consultation for the psychotherapist (or other clinician).
The word "plan" in the last sentence is important. The law often views the psychiatrist as having more duty to the patient than the doctor realizes. Those who accept jobs in which they naively write prescriptions for a counselor's clients every two or three months, believing they are not really involved in the patient's week-to-week care, are likely to be wrong, and if a treatment-related tragedy occurs they may find it difficult to explain a lack of knowledge of, or involvement in, the patient's care.
Dr. Thomas Gutheil published eight important recommendations for psychiatrists who engage in such joint treatment, called the "8 Cs of Collaborative Treatment" in two articles in the Harvard Review of Psychiatry. The psychiatrist should be certain there is clarity between the co-treaters about what each will do, whether the relationship involves supervision, who will cover in the other's absence, etc. There should be a contract between the treaters which spells out the above. In the absence of a written agreement, later reviewers may well assume the psychiatrist had some substantial duty, responsibility, and/or supervisory role vis a vis the nonmedical therapist. The cotherapists should communicate regularly and have routine contact (not just when there's an obvious crisis). The patient should consent to the treaters' roles and to their complete and open communication.
The cotreaters should create and share a comprehensive view of the patient, particularly when the psychiatrist or other physician sees the patient infrequently. Neither should view the psychiatrist as merely ancillary or a "prescription writer." There should be a credentialing process, in which each co-treater reasonably verifies the professional credentials and backgrounds of the other. This is especially important when the two have little experience with each other, though it probably need not reach the level of credentialing used by hospitals or licensing agencies. Each cotherapist should feel free to instigate consultation when there are disagreements about patient care or any of the above. (Gutheil TG, Simon RI (2003). Abandonment of patients in split treatment. Harvard Review of Psychiatry 11:175-179)
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Perjury in Forensic Psychiatry and Forensic Psychology
A recent case in which a psychiatrist was sentenced for perjury in deposition testimony brings up a number of liability and credibility issues for expert witnesses and expert testimony. In March, 2003, U.S. District Judge Charles Brieant sentenced Dr. Faidherbe Ceus to nine months in prison for misrepresenting himself as Board certified in psychiatry and internal medicine during his deposition in a New York civil suit. When asked to consider a lesser sentence, the judge said the crime was serious because it "obstructs the fact-finding process of the court" (quote from The Journal News, White Plains, NY, March 11, 2003). Whether or not Dr. Ceus was considered an expert witness in the matter was not clear).
Inexperienced clinicians working in forensic cases -- civil or criminal -- should be aware of their responsibilities to the court, the litigant(s), and the attorney(s) who retain them. Their primary duty is, of course, to tell the truth. Some seemingly innocuous fibs, perhaps even mere oversights, are taken seriously by the legal process. The misrepresented fact may be important to the case, and being caught in a falsehood is a death knell for a witness's credibility (something expert witnesses should protect as a mother bear protects her cubs).
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Pitfalls for Inexperienced Experts (and the Lawyers Who Engage Them)
Nobody's poerfect (. . . er, perfect), but as I become aware of more and more psychiatrists and psychologists seeking or accepting forensic cases in formerly all-clinical practices, I am moved to suggest caution to both the clinicians and the attorneys who work with them. Most professions have a fine tradition of continuing education. Many forensic proefssionals, including myself, offer occasional seminars, courses, and writings about forensic practice. We may not have said enough about the pitfalls and liabilities of practicing forensic psychiatry or psychology without sufficient training and experience.
One has to learn somewhere. For the past 15 years or so, psychiatric trainees interested in forensic practice have been able to take a fifth year of specialty training (residency) in a supervised forensic fellowship (now required for Board certification in forensic psychiatry). Many other (sometimes excellent) forensic psychiatrists have learned the subspecialty through short courses, reading, mentoring, and experience.
My concern is with those who accept attorney or court referrals without knowing enough about the forensic aspects of the consultation. A firm clinical foundation is important to expertise in most matters of law and mental health, but forensic practice is a subspecialty. Some of its basic principles are found in general psychiatry and psychology, but others are not. An attorney or litigant may not be well served by an expert who has just read his or her first book on forensic practice.
For a more detailed discussion of potential problems, go to a recent article reprinted on this site (Why Non-Forensic Clinicians Should Decline Forensic Referrals).
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Dos and Don'ts When Choosing and Working with Expert Witnesses
The July, 2002, Washington State Bar News published a good article by Scott E. Miller (an accountancy expert) on choosing and working with expert witnesses. The generic principles Mr. Miller outlined are similar to those discussed for psychiatrists and psychologists on this website and elsewhere. They include engaging the expert early (I hate it when new lawyers call a few days before trial); being sure he or she is professionally qualified, an excellent communicator, and willing to give the attorney "bad news" about the case if he finds it; agreeing on fees, retainers, etc., in writing; providing clear deadlines with periodic checks on progress; listening to the expert's requests for access to information (and, in mental health matters, often to litigants and corroborating parties); and properly preparing the expert for deposition and trial.
He strongly recommends against such things as waiting until the last minute to engage an expert, choosing one who is inexperienced or merely a "yes man" or "hired gun," not monitoring the expert's work to some extent, and expecting him or her to testify competently without preparation time with the lawyer.
The complete article appears at www.wsba.org/barnews/2002/07/miller.htm. Mr. Miller can be reached through his website at www.millercpa.com.
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APA Practice Guideline for Suicide and Suicidal Patients
The long-awaited American Psychiatric Association Practice Guideline for the Assessment and Treatment of Patients with Suicidal Behaviors has just been published. It is a well-written, well-researched document that will contribute a lot to defining the standard of care for assessing and treating patients (with respect to both diagnosis and signs & symptoms of suicide risk independent of diagnosis). There is a good discussion, for example, of no-suicide "contracts" (see the September, 1998, journal column on no-self-harm contracts reprinted elsewhere on this website).
Psychiatrists who are APA members may view or download the Guideline (117 pages) at www.psych.org. It's in the "members-only" area.
Suicide is the most common issue in mental health malpractice litigation and a topic of intense clinical concern. Our office often prepares suicide-related lectures, research summaries, reports, and even deposition questions for colleagues and attorneys. While each clinical and forensic situation is different, here are some basic facts.
The incidence of suicide (like many other public health incidence and prevalence figures) is usually expressed as a rate per 100,000 people per year. This skirts a few statistical issues, but is generally consistent and understandable by non-scientists (including courts and juries). Some representative rates:
- U.S. general population ----- 12-15 suicides/100,000/year
- Very ill pts. in a large state MH care system ----- 60/100,000/year
- Patients w/ major depressive disorder (MDD) ----- 60-224/100,000/year
- Patients w/ chronic but nonspecificdepression ----- ~43/100,000/year
- Patients w/ schizophrenia ----- 60-65/100,000/year
Patients who are more seriously ill, have made prior suicide attempts (even apparently minor attempts), have been hospitalized, have not been adequately followed or treated, etc., have generally higher rates. Lower rates tend to be found in patients who have never been hospitalized, who respond well to medication, and the like. The majority of the people in any of these categories do not commit suicide, even over many decades. Patients with major depressive disorder have, speaking broadly, a 10% to 20% lifetime suicide risk. The U.S. general population has a lifetime risk of 1% or lower.
These are large population rates which should not be confused with individual risk, and which vary in each category with such things as gender, age, presence of psychosis, treatment offered, treatment response, and a number of other complex, often interrelated factors. Some more severely or acutely ill persons and those with certain important risk factors (or combinations of factors) have greatly increased individual risk.
Individual risk over long periods is virtually impossible to predict with certainty. Short-term risk, especially relative risk, on the other hand, can and should be estimated in many clinical situations, and the risk managed appropriately. Clinical standards and knowledge of increased risk often create a special duty of care.
Not all suicide is preventable. As in the case of many other "bad outcomes," the mere presence of suicide does not necessarily imply malpractice. Troubled children and young adolescents, in particular, may move from apparently non-suicidal depression to lethal behaviors rapidly, without much (or any) warning to parents or psychiatrists/therapists.
If you are a mental health professional or attorney and would like references for the above, send me an email.
Clinical experience is critical to most cases. The psychiatrist is hired primarily for his or her ability to clarify the psychological and medical issues of a case, not to interpret legal ones. This does not mean that the forensic psychiatrist must have a large clinical practice, but some contact with clinical care and/or medical teaching is relevant to most (especially civil) cases.
The forensic psychiatrist should be expected to understand the legal concepts and impact of the mental health issues in a case, and to be able to convey his or her psychiatric findings in language that the court can understand and use. Attorneys unfamiliar with mental health law or the potential effect of a psychiatric issue on their cases should be able to rely on the forensic psychiatrist’s knowledge and experience to some extent, but the legal process itself is the province of lawyers and judges.
Attorneys, clients, and courts should also expect that a professional offering expert psychiatric opinions has an M.D. or D.O. degree, has completed approved specialty training, is appropriately licensed, has been "certified" by the American Board of Psychiatry and Neurology, is a member in good standing of professional organizations with ethics codes, actively participates in continuing education, is accepted by clinical/patient-care peers (e.g., serves on medical staffs of hospitals, practices within a clinical community, and/or teaches at a medical school), and enjoys a good reputation within the profession. (Note that there are competent psychiatrists who are not Board-certified or do not belong to professional organizations. Nevertheless, certification and membership are consistent with qualities which are important to consider in forensic settings.) The potential expert’s background should be free of factors which might diminish professional credibility (e.g., license restrictions, frequet personal lawsuits).
General psychiatric training and clinical experience are sufficient for some forensic purposes. In most, however, familiarity with highly specialized clinical issues (e.g., sexual harassment, hospital standards, violence, child psychiatry) and/or forensic topics (e.g., criminal responsibility, competencies & capacities, wrongful death, child custody proceedings) is required. Such expertise may be demonstrated by additional training, relevant experience, special certification (e.g., forensic psychiatry certification), research, or publications related to the topic at hand.
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Should the Treating Clinician be an Expert Witness?
Plaintiffs and claimants in forensic psychiatry matters have often been treated by a mental health professional and use information from such clinicians to support their cases. Triers should be made aware of some of the pitfalls inherent in the testimony of treating psychiatrists, other physicians, and psychotherapists, especially when they are offered as expert witnesses. Although a common practice in some jurisdictions, questions regarding prudence, conflict of interest, and admissibility of expert testimony from treating clinicians are not idle ones. In a recent case, the treating psychiatrist for a patient had apparently billed her well over $100,000 for psychotherapy, and her lawyer (apparently passed through to the patient) over $100,000 for expert witness services. He testified that he would probably treat the patient for months or years in the future as well.
There are at least four reasons that such a dual relationship is not advisable.
First, a treatment relationship clearly creates a professional and ethical obligation to act in the best interests of the patient. The patient has a right to rely on this attitude in the doctor or therapist during (and after) the treatment relationship. It is a cornerstone of the patient's ability to work in therapy free of concerns about future divulging of confidences, betrayal, or exploitation. Since forensic consultation or testimony, by definition, requires objective comment regardless of the patient's wishes or needs, an inherent clinical and ethical conflict is created. This conflict is recognized in the ethical guidelines of general psychiatrists, forensic psychiatrists and psychologists, often expressed as the patient's right to expect a single, private, treatment role from his or her therapist.
Second, a treating clinician who testifies regarding a current or past patient knows (or should know) that he or she is professionally and ethically required to act in the patient's interest. Having spent many hours (perhaps dozens or hundreds) working with a patient, sometimes quite intimately, clinicians often feel a personal affinity for that patient's viewpoint. There is thus a danger of intentional bias toward the patient.
Third, separate from the clinician's conscious awareness of a duty or wish to act in the patient's interest, the obligation to "do no harm" to the patient is keenly felt by ethical practitioners. Even if they attempt to be objective in forensic reports or testimony, there is a danger of unintended bias toward the patient.
Fourth, the ethical principles of both the American Psychiatric Association and the American Psychological Association require that when a treating psychiatrist or psychotherapist believes it may later become necessary to comment to a third party (such as an employer or insurance company), this is to be discussed fully with the patient as early as is feasible. Clinicians know (or should know) that awareness of the probability of disclosure affects the patient's conversations and disclosures to some extent, and this in turn affects the validity of any forensic participation.
The purpose and goals of the treating clinician are fundamentally different from, and often conflict with, those of the forensic expert. The treater has fiduciary and ethical obligations to the patient which demand that the patient's interests and wishes be placed before all else. The forensic consultant's responsibilities, on the other hand, are to objectivity and the court. Although often a lawyer's agent, both the law and professional ethics demand that the forensic professional be objective in both commission and omission; he or she has no obligation to the litigant or "evaluee" (and does not refer to that person as his "patient"). (See also Strasburger LH, Gutheil TG, Brodsky A: On wearing two hats: Role conflict in serving as both psychotherapist and expert witness. American Journal of Psychiatry 154(4):448-456, 1997.)
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More Sources of Conflict When Acting As Both Treating Clinician and Forensic Expert
Several issues of conflict between treatment and expert (forensic) roles are addressed in another Update vignette (above). A recent case in which I was involved highlighted a few others, emphasizing problems that often arise when forensic evaluators assume a treatment role (as contrasted with the converse, which was emphasized in the vignette above). This list adds another dimension to the discussion: that of potential harm to the evaluee/patient.
Forensic mental health professionals should know about the potential for substantial conflict and should have acquainted themselves generally with the ethical and legal consequences that are likely to arise. Thus the following suggest that those who venture into these waters without very good reason (such as an emergency) are at best imprudent, and at worst knowingly misleading the legal process.
1. If the initial referral is forensic, the forensic professional may do an incomplete clinical evaluation, and/or may not document the evaluation, history, symptoms, diagnoses, treatment plan, and prognosis as completely or objectively as would a treating clinician.
2. If the initial referral is clinical but the role later becomes forensic, the diagnosis, treatment, and/or documentation of care may change, to the detriment of the patient's clinical needs.
3. A forensic expert who is treating a litigant may unconsciously (i.e., without overt malicious intent) create incomplete or skewed treatment documentation. He or she knows that the notes are very likely to be revealed during the litigation. There may be a subtle wish or impulse to support the attorney's case, and/or to please the attorney.
4. A forensic expert who is treating a litigant may unconsciously (i.e., without overt malicious intent) diminish or otherwise change his or her treatment or procedures in a way that (a) creates findings that will support the legal case and/or please the attorney, (b) obscures findings that might refute the attorney's case, (c) avoids (or fails to encourage) potentially effective assessment and treatment procedures (e.g., to keep the patient from improving and decreasing damages), and/or (d) prevents timely referral to nonforensic clinicians.
5. A forensic expert who is treating a litigant may consciously (i.e., with overt intent) create incomplete or skewed treatment documentation and/or diminish or change his or her treatment or procedures in the ways described above.
6. A forensic expert who is treating a litigant may consciously (i.e., with overt intent) use a nominal "treatment" relationship to prevent creation of a legitimate factual treatment situation. That is, by controlling the documentation of clinical care, an unscrupulous expert would be in a position to control, if he or she chose to do so, opposing counsel's access to accurate clinical information.
7. A forensic expert who is treating a litigant could consciously (i.e., with overt intent) collude with the litigant to misrepresent symptoms, diagnoses, treatment response, or disability (note that this may occur with nonforensic clinicians as well, usually out of a misguided effort to help the patient).
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Full-Text Forensic Articles on the "Articles & Columns" Subpage ( every few months)
(in reverse chronological order, from 2009 back to 1999, reprinted from The Journal of Psychiatric Practice)
Permission provided by Lippincott Williams & Wilkins. Copyright Lippincott Williams & Wilkins.
Assaults Against Psychiatrists and Other Mental Health Professionals -- (FULL-TEXT ) 5/2008 (Risk, reducing risk, generic risk in clinical & nonclinical settings, and risk associated with interpersonal situations, patient perceptions, and patient idiosyncrasies)
The Treatment-Forensic Interface -- (FULL-TEXT) 3/2008 (Conflict of interest and other considerations when mixing patient care & treatment with forensic or expert roles)
A Few New Books -- (FULL TEXT) 1/2008 (reviews of five new books on ethics, performing forensic evaluations, malingering, and testifying in court)
Practicing Well: Suicide Risk and Suicide Prevention -- (FULL TEXT) 11/2007 (clinical suggestions and case examples regarding assessing and managing patients' suicide potential)
Personality Disorders and Violence Potential -- (FULL TEXT) 7/2007 (a new typology of violence, violent behavior, and risk assessment related to personality disorders, with case examples)
Judges' Impressions of Foreign-Trained Psychiatric Expert Witnesses -- (FULL TEXT) 5/2007 (survey of judges about jury reactions to testifying experts from different countries and racial & cultural backgrounds)
Firearms Possession by Mentally Ill Persons -- (FULL TEXT) 3/2007 (Overview, California examples)
Evaluating and Treating Disabled or Impaired Colleagues -- (FULL TEXT) 1/2007 (clinician/physician impairment and disability)
Assessing Civil Competence -- (FULL TEXT) 11/2006 (myths, assessment principles and case examples)
Treating Antisocial Syndromes -- (FULL-TEXT) 9/2006 (modern approaches treatment variables and "what works")
When Clinicians Must Testify in Court -- (FULL TEXT) 05/06 (Understanding and preparing to testify about a patient)
Forensic Psychiatry Books -- (FULL TEXT) 03/2006 (Useful books for clinicians in forensic situations or practice)
Forensic Practice: A Day in the Life -- (Description of day-to-day forensic practice) -- (FULL-TEXT) 01/2006
Forensic Aspects of e-Therapy -- (Web-based therapy & patient communication, privacy, confidentiality, verifying identity & credentials, ethics, boundaries) -- (FULL-TEXT) 11/2005
Delusional Disorder and the Law -- (Delusions, risk, erotomania, stalking, criminal responsibility, competency) -- (FULL-TEXT) 3/2005
Contracting for Safety Redux -- (Updated look at the pitfalls of "no-suicide contracts" or "no-harm contracts") -- (FULL-TEXT) 1/2005
Cases From the Forensic Psychiatry Files -- (Case reports involving such things as death in jail custody, alleged emotional damaged caused by an employer, and questionable psychiatrist behavior) -- (FULL-TEXT) 11/2004
Organization Liability: Beyond Respondeat Superior -- (Facility and clinic risk management, malpractice vulnerability) -- (FULL-TEXT) 7/2004
Avoiding the Malpractice Snare: Documenting Suicide Risk Assessment -- (Advice from plaintiffs' attorneys about assessments of suicidal patients) (FULL-TEXT) 5/2004
International Medical Graduates as Expert Witnesses -- (Discussion of some perceptions of experts whose medical training was outside the U.S. or Canada) -- (FULL-TEXT) 3/2004
Killing Family Members: Mental Illness, Victim Risk, and Culpability (Cases of famililcide) -- (FULL-TEXT) 1/2004
Juveniles Standing Trial: Waiver to Adult Court (Principles & practices in juvenile waiver) (FULL-TEXT) 11/2003
Expert Evaluation, Controversial Cases, and the Media (Discussion of psychiatrist/psychologist involvement the New York Vincente Gigante prosecution) (FULL-TEXT) 9/2003
Forensic Use & Abuse of Psychological Tests: Multiscale Inventories A "BASIC" reference (FULL-TEXT) 7/2003
Back to Basics: Law and Mental Health A "BASIC" reference (FULL-TEXT) 5/2003
Why Nonforensic Clinicians Should Decline Forensic Referrals (Issues for nonforensic clinicians to consider when considering accepting a forensic case)
Risk Assessment, Prediction, and Foreseeability (Assessing risk for suicide and violence; understanding differences among risk, assessment, predicting, and foreseeability)
Ethics and Forensic Work (Ethical principles in both clinical and forensic consultation)
Sexual Predator Evaluations & Commitments (Procedures, important issues)
Forensic Work by Nonforensic Clinicians, III: Courts and Trials (Testifying in trials & hearings)
Forensic Work by Nonforensic Clinicians, Part II (Writing reports, deposition preparation and testimony)
Forensic Work by Nonforensic Clinicians, Part I (Attorney relationships, initial tasks, tips and Pitfalls)
Evaluations in Jails & Prisons (Competence, responsibility, sexual predator)
Psychiatric/Psychological Aspects of Terrorism (Psychiatric/psychological models, suicide terrorists, uses of terrorism, controlling terrorism, defining and helping victims)
False Allegations (Civil, criminal, clinical; motivations; assessment)
Competency to Consent (Elements of consent, competence in medical settings, competence vs. level of risk, competence vs. complexity of decision, competence to consent vs. competence to refuse)
Psychiatry and the Death Penalty (Ethics of participating and testifying, testifying about future violence, social issues and mentally retarded defendants)
Pregnant Patients' Refusal of Medical Care (Case report and discussion of psychological/psychiatric issues)
Antisocial Personality, Psychopathy, and Forensic Psychiatry (General principles of diagnosis and forensic relevance)
Defending Suicide-Related Malpractice Cases - A Lawyer's Perspective (A malpractice defense attorney discusses the process and his recommendations to psychiatrists)
Offenders with Special Needs (Assessing and treating mentally ill offenders)
Malingering (Definition; differences from superficially similar conditions; tests and other strategies for discovering malingering and dissimulation)
The Insanity Defense: Mad, Bad, or Both? (General principles and process of an insanity defense; differences between legal and clinical issues)
Staying Ethical Under Pressure (Discusses and makes recommendations about typical lawyer-expert witness situations in which the expert may be tempted to, or prone to, act unethically)
Whom Do You Trust? Patient Care and Professional Relationships (Relationships, duties, and responsibilities involving employers, contractees, consultees, supervisees, and "co-treaters:)
Being Sued (Descriptions and recommendations for clinicians who find themselves being sued [e.g., for malpractice])
Impaired Colleagues (Recognizing, dealing with, and reporting impaired colleagues; recommendations for patient safety and clinician ethics)
Top 19 Things to Remember When Working With Lawyers & Courts (Recommendations for clinicians who find themselves working in forensic settings)
Boundary Issues & Violations (Sexual and nonsexual boundaries; relatively minor issues vs. "violations"; potential harm to treatment and patients)
Accidents, Suicide and Insurance (Unusual definitions of "accident" and "suicide" in insurance policies and insurance law; case example and differences from clinical terminology)
Criminal Defendant Competence & Responsibility (Principles of assessing criminal competence and responsibility, and differences between that task and clinical ones)
No-Suicide/Violence "Contracts" (Discusses problems with relying on patient promises or "contracts" to prevent suicide or harm to others, including no-self-harm contracts)
Myths About Violent Sexual Predators & Legislation (Addresses many clinicians' criticisms of modern sexual predator legislation [since Kansas vs. Hendricks], and several misunderstandings about clinical and forensic aspects of sex offenders)
Standard of Care & Patient Need (Defining, meeting, and documenting the clinical standard of care)
Treating Clinicians & Expert Testimony (Differences, and conflict of interest, between treating clinicians and expert witnesses in task, duty, responsibility, and agency)
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(I can't vouch for all these websites and resources, but many are worth a look.)
Patient & Family Support Groups/Organizations (local & national; all believed very reliable) |
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National Depression & Bipolar Support Alliance (DBSA, formerly Depressive & Manic Depressive Association or DMDA) |
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| National Alliance for the Mentally Ill | |
| National Mental Health Association | |
| Texas Depression & Bipolar Support Alliance (DBSA Texas) | |
| Texas Alliance for the Mentally Ill (TEXAMI) | |
| Texas Mental Health Association (Mental Health Association in Texas) | |
Forensic Psychiatry & Mental Health, & friends in the field |
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| American Academy of Psychiatry and the Law (including information about the AAPL Journal and Newsletter) | |
| American Psychology-Law Society (Division 41 of the American Psychological Association; publications, newsletters, academics, student section) | |
| Behavioral Sciences and the Law, a multidisciplinary professional journal, (212) 850-6645. | |
| Steve Berger, M.D., forensic psychiatrist | |
| Dr. Dev Chacko's forensic psychiatry website | |
| Dr. Brian Crowley's clinical and forensic services website (Washington, DC, psychiatrist with very good credentials and a fine beard) | |
| The Forensic Science Portal (Canadian site with topics and links about many forensic sciences - may not work in Netscape) | |
| Forensis (Dr. J. Reid Meloy's website on criminality, violence, and psychology/psychiatry) | |
| Law, Ethics, and Psychotherapy (Dr. Reid's Behavior.net forum, one of many interesting Behavior Online forums) | |
| MacArthur Research Network on Mental Health and the Law (Important studies of violence risk and competence in mentally disordered persons) | |
| Mental Health Law Reporter | |
| Monthly Updates in Mental Health Law (Great email update resource, called e-DMHL, from the University of Virginia Institute of Law, Psychiatry, and Public Policy, compiled by Thomas L. Hafemeister, JD, PhD) | |
| Dr. Myron Pulier's forensic resource site | |
| National Criminal Justice Reference Service (NCJRS) (links, abstracts, & full-text publications on criminal justice & jail/prison mental health topics) | |
| Dr. Stephen Herman's child forensic psychiatry website and adult & child psychiatry blog. | |
Clinical Psychiatry & Mental Health |
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| American Association of Psychiatric Administrators | |
| American Psychiatric Association | |
| Behavior Online (Forum list & Home Page; Lots of interesting fora.) Offline as of early July, 2004, but due to return soon with new, improved software) | |
| Dr. Ken Arfa's Houston Psychiatry website (Nice guy, very good psychiatrist) | |
| Journal of Psychiatric Practice (clinical studies and papers, practical and educational columns, etc.) | |
| Lippincott professional journals, including mental health publications | |
| Psychiatry.Com (Dr. Mark Hauser's broad group of links to resources in psychiatry and mental retardation) | |
| Dotpsychology (A reputable, very broad mental health professional link site) | |
| The Stress Spot (A resource with links about just about any kind of stress one can imagine) | |
Education, Research, Student Resources |
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| Schreiner University in Kerrville, Texas, is a liberal arts university with several very good pre-professional programs. Dr. Reid is a member of the Board of Trustees. | |
| Duke University Program on Psychiatric Advance Directives (Information, toolkits, and resources on advance directives and health care agents). Check their mental health Services Effectiveness Research Program, too. | |
| Monthly Updates in Mental Health Law (Great email update resource, called e-DMHL, from the University of Virginia Institute of Law, Psychiatry, and Public Policy) | |
| Writing a term paper or researching a case? Check out the National Library of Medicine, the largest medical library in the world. Use its simple, fast online search program at http://www.ncbi.nlm.nih.gov/entrez/query.fcgi. | |
| Dr. Chris Stout's Center for Global Initiatives (Dr. Stout is an outstanding psychologist/humanitarian and admitted left-wing activist who tolerates my conservative bent when we work together.) | |
Non-Mental-Health Forensic |
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| Forensic Geology (Info and consultation in civil matters, law enforcement, and even maps and high-altitude photos for homeland security) | |
| Paladin International, LLC (Private corporate security, international worksite protection, crisis management, negotiation. These guys are good.) | |
Lawyer Stuff |
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| FindLaw's legal & expert services | |
| LawCrawler | |
| National District Attorneys Association (case information from the prosecutor's viewpoint) | |
| Scott Carpenter's criminal law resources (TnCrimLaw) | |
| Texas Lawyers Center Online (Regional law firms, research; also Louisians Lawyers Center Online) | |
| Texas Disciplinary Rules of Professional Conduct | |
Fun Stuff -- Absolutely nothing to do with mental illness (but good for you) |
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| Lucile Reid Brock's Texas Watercolorist Website. It's not forensic, but she's my mom. Peruse her paintings; look at her books on old Taos, NM, and being a medical school wife in the 1940s; and send her an e-mail. | |
| Fewer Sorrows Music. Sometimes you just have to get the heck out of Dodge. | |
| Minnesota Fine Artist Website. Excellent paintings, reasonable prices, and I don't get a percentage. | |
| ArtThatMakesYouLaugh. Artist friend in the tradition of Charles Bragg. Special section for lawyers & shrinks. | |
| Anglers All. The best fly fishing and guide shop in Colorado (or anywhere else, for that matter). | |
| Heart O' the Hills camp for girls and Camp Stewart for Boys are two healthy, hearty kids' camps that have been a Texas Hill Country tradition for generations (over 80 years for Camp Stewart). Help your children join the legacy of fun and foundation for life that a top-quality summer camp can provide. | |
| Corkins Lodge. An outstanding trout fishing retreat in northern New Mexico (where one of the few photos on this website was taken -- see if you can find it). Don't go if you want telephone and TV. Do go if you want friendly staff, a couple of bears, and private access to some beautiful stream fishing. | |
| Horse lovers who oppose U.S. horse slaughter for meat, check out this site that highlights some despicable tricks by slaughterhouse buyers at saddle-horse auctions (especially in Texas). If you are selling a horse at auction, be sure you're not selling it to someone who's going to kill it. (O.K.; it's not "fun stuff," but it's important.) | |
| Tonkawood Farm. Wanna buy a horse, or donate one for rescue or rehab? These friends of mine in central Texas match their horses to customers' individual saddle horse needs, and specialilze in working with both horses and kids who need help. If the name sounds familliar, you probably remember their farm and youth work in Minnesota. | |
| Highland Lakes Tennis Website . Central Texas Area and MFCTA tennis news, juniors competitions & activities, singles ladder & rankings. Dr. Reid's Marble Falls and Texas Highland Lakes area tennis website. | |
If you are a legal or judicial professional and wish to discuss a forensic psychiatry matter, please contact
William H. Reid, M.D., M.P.H. |
P.O. Box 4015, Horseshoe Bay, TX 78657 |
(830) 596-0062 (voice) |
(830) 596-9047 (fax) |
Examine Dr. Reid's Qualifications |