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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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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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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])

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Competency to Consent to Hospitalization & Treatment in Geriatric Patients

Elderly people don't know what they're doing, right? They may be wise in some ways, but everyone knows that they lack decision-making capacity when it comes to health care. We (families, caregivers) should have them declared incompetent as soon as possible. (Read further before you send me a scathing email.)

Most readers know the above is not true for most people of advanced age, and that a person's ability to function in a particular capacity is the key to whether or not he/she is competent to consent to treatment, hospitalization, or something else. Individual ability at specific kinds of tasks must be considered before removing one's rights and autonomy.

Dr. Stephen Billick and colleagues recently published a small but well-designed study of competence to consent among geriatric patients, focusing on a geriatric medicine unit (not a psychiatric one). In the process of validating an established psychiatry-related competency evaluation instrument (Appelbaum's 15-item "Competency Questionnaire" [Appelbaum et al., Amer J Psychiatry 138(9) 1170-76] ) for use in older medical and surgical patients, they established once again that although advancing age is generally correlated with decreasing capabililty for various cognitive tasks, there is significant variability within age groups and one finds individual differences in the progress of deterioration when it occurs. (Billick SB, Perez DR, Garakani A [2009]. A clinical study of competency to consent to hospitalization and treatment in geriatric inpatients. Journal of Forensic Sciences 52[4]:943-946)

There is an important principle of competency that evaluators and adjudicators (such as judges, civil rights advocates, and hospital admission personnel) should understand, but often don't: the difference between competence or capacity to consent to care/hospitalization/etc. and capacity to refuse it. Competence to consent does not equate to competence to refuse, nor vice versa. Consenting usually has far different levels of complexity & potential consequences than refusal; therefore the two should always be considered separately.

Confidentiality and Testimonial Privilege in Psychiatry and Psychotherapy:
Court Trends When Danger or Litigation Self-Interest Is an Issue

A 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).

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Small Amygdalas in Psychopaths? (Don't Get Too Excited)

Science is a wonderful thing. Our ability to find anatomical, neurochemical, and genetic correlates of behavior problems and mental illness has grown by leaps and bounds during the past few decades. Unfortunately, those correlates have thus far not given rise to very much useful information for the clinician or forensic mental health professional.

Yang et al. studied a small part of the brain called the amygdala, which is associated with neural pathways that mediate some emotions, including fear. They found that the amygdalae of people who met very miminal criteria for psychopathy (a particular kind of antisocial personality) appeared slightly, but statistically, smaller in volume than those of control subjects, and had some mild differences in other regions. The study involved only 59 subjects (27 "psychopaths"), apparently recruited from the rolls of temporary employment agencies. The definition of "psychopathy" was very liberal: a Hare Psychopathy Checklist Score of 23 or more. (Much higher scores -- 30 or more -- are required to support a diagnosis of psychopathy, although many nonpsychopathic criminals score in the twenties.) The authors reported that their work "support(s)" the notion of amygdala deficit in psychopathy, but I was surprized that they went so far as to say that their findings "indicate that the amygdala contributes to emotional and behavioral symptoms of psychopathy" (italics mine). That is not accurate, in my opinion.

People have been trying to associate mental characteristics with the anatomic features of heads, brains and brain parts for centuries. Gross measurements alone were once a staple of primitive psychiatry and psychology (cf., associating head bumps, ear size, or hand size with predictions of behavior). The "scientific" conclusions from anatomic studies usually change and wane over time, but may leave a lasting residue of prejudice and rumor among the general population. I hope this study, which contains some good data, doesn't get sensationalized by radio shows, popular magazines, or Oprah! like the one that found a genetic link between red hair and anxiety. (I refuse to blame the genes that gave rise to my formerly fiery locks for my fear of flying.) One hopes there will not be a groundswell movement to use amydala size in setting criminal sentences, ordering preventive incarceration, or sending amygdally-challenged teenagers to military schools. (Yang Y, Raine A, Narr KL et al. [2009]. Archives of General Psychiatry 66[9]:986-94)

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Dr. Charles Dike, writing about psychiatrist Martin Blinder, M.D., in the April, 2010, issue of the American Academy of Psychiatry and the Law (AAPL) Newsletter (p.10), provided an important review of the forensic testimony in Dan White's 1979 trial for the killing of San Francisco Supervisor Harvey Milk and Mayor George Moscone. Sensational but very misleading media reports of a so-called "Twinkie defense" set off a lasting misunderstanding of the psychiatric testimony (particularly that of Dr. Blinder) and have unfairly maligned psycholgical and psychiatric expert testimony ever since.

Dr. Dike's article explains that Dr. Blinder's testimony about White's junk food binges lasted only a few minutes, a tiny part of the several days of psychiatric testimony the court heard from Blinder and others. In fact, the defense never offered a diet-related defense at all. Nevertheless, after White was convicted of the relatively minor charge of voluntary manslaughter rather than first-degree murder, Dr. Blinder recalled that Newsweek "reduced four days of psychiatric testimony, in which the subject of Dan White's diet occupied perhaps three minutes, to a few paragraphs topped with the (made-up, "Twinkie defense") headline." After that, various news media stated erroneously that the defense had argued that junk food led to White's diminished capacity. The "Twinkie defense" sound bite caught on, partly because of the gay community's anger at what it perceived as a slap on the wrist for White.

The diminished capacity defense in California was substantially weakened a few years later, by State legislation and Proposition 8.

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DSM-5 Draft Criteria Available Online (member comment period ends 4/20/10)

The American Psychiatric Association (APA) has been working for several years to update the organization's Diagnostic and Statistical Manual of Mental Disorders, the primary diagnostic reference in the mental health professions. The third edition of the Manual, published in 1980, marked a sea change in the way psychiatric diagnosis was "officially" conceptualized, and it's reliability from clinician to clinician. Various revisions have since occurred, the most important (DSM-IV) in 1994. The fifth edition, DSM-5, is expected about 2013.

In spite of the APA imprimatur, the large committee and scores of writers who compile and finalize the drafts for APA Board approval include clinicians and other professionals from many fields. Great effort is made to make the result as scientific as feasible given the necessarily clinical nature of the goal. There is no doubt that the final product has some earmarks of a "committee" and "organization" effort, and that some of the content is influenced by sociopolitical factors as well as clinical ones; however, the process is transparent in many respects and allows for extensive field trials and an unfortunately too-brief comment period for APA members (the website will apparently remain up for viewing, but not for comment).

DSM-5 will not be perfect. There will be critics just as there are always critics, some with logical concerns about the content and others simply complaining because they don't like psychiatry or the APA. Nevertheless, I believe APA is trying to move deliberately toward making each successive DSM more nearly consistent with the broad, complex world of real people and their mental disorders.

CLICK HERE to examine the latest draft of the entire manual. Note the avenue for APA member comment (which requires one's membership number), and that the official comment period ends April 20, 2010.

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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)

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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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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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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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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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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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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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(FOLLOW-UP) Prison Alternative for NRGI Acquitees

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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Malpractice Claims Paid, 2000-2004

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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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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Mental Illness and Firearms

There is a lot of confusion about both the role of mental illness in violence and dangerousness, and the state and federal laws regarding purchase or carrying of firearms by persons who have a history of psychiatric disorders. The American Psychiatric Association Council on Psychiatry and Law studied relevant state laws several years ago, and some members co-authored a paper summarizing the findings (Norris DM, Price M, Gutheil T, Reid WH [2006]: Firearm laws, patients, and the roles of psychiatrists. American Journal of Psychiatry 163[8]:1392-1396). The Council is currently discussing whether or not to develop and recommend an APA position paper on the somewhat different topic of mental illness, mental health, and firearms. e-Developments in Mental Health Law, a publication of the University of Virginia Institute on Law, Psychiatry and Public Policy, recently reported that the Governor of Virginia has issued an executive order banning firearm purchase by persons who have been involuntarily treated for mental illness (committed) as either inpatients or outpatients (Virginia Governor Issues Executive Order Banning Purchase of Firearms by Individuals with a Mental Illness Who Have Been Ordered to Receive Treatment in Either an Outpatient or an Inpatient Setting, Vol. 26, Issue e6). People with histories psychiatric treatment are sometimes prevented from owning or carrying guns, and often required to "pass" a psychiatric or psychological evaluation before obtaining such weapons or permits.

It is important to understand the context of firearm reports, statutes, and policies rather than prematurely judging their content or blythely criticizing social policy. First, "mental illness" is a very broad term. Patients and former patients include millions of Americans who should not be considered significantly impaired, or impaired at all. Second, while it is certainly reasonable to limit access to firearms by persons with substantial mental disorders, or to create procedures to examine their qualifications and potential risk, even seriously mentally ill people have a relatively low rate of violent behavior or use of firearms to harm others (and much of their increased risk, as a group, is associated with substance abuse).

It's also important to know something about the firearms themselves. Does the issue being considered address all guns? Handguns only? If "long guns" are being discussed, are shotguns distinguished from rifles? Is one speaking only of concealable weapons? Is the common, inflammatory term "assault rifle" being used to describe a true assault weapon (such as a military one with fully automatic capability), or simply a rifle superficially configured to appear more aggressive. Does the discussion confuse "automatic" with "semi-automatic," a common error in which discussants often don't understand that "automatic" is a very unusual configuration for civilian firearms (illegal without a difficult-to-obtain special federal permit) which allows continuous fire while holding down the trigger (repeated fire with repeated trigger-pulls but without re-cocking the weapon is called "semi-automatic," common in handguns and long guns used for sport or hunting).

Let's be careful out there, with both firearms and rhetoric.

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Involuntary Medication as a Special Condition of Parole or Supervised Release (Federal)

Forced medication is constitutionally permissible only when certain specific criteria are met. Those criteria are usually related the patient's safety, safety of others, or some other "compelling State interest" (such as in certain cases of incompetence to stand trial).

Philip A. Holman, a chronically and severely mentally ill person who was known to relapse when not taking his medication, was given a supervised release from federal prison. The government requested, and a district court imposed, a supervision condition that he accept psychotropic medication as prescribed by local doctors. The medication included injections of antipsychotic drugs. Holman appealed that requirement, saying in part that his liberty interests and the dangers of untoward side effects and adverse effects made it unreasonable to force medication upon him. Both the district court and the U.S. Fourth Circuit Court of Appeals disagreed, finding that the involuntary medication order involved no greater deprivation of liberty than was reasonably necessary to further important governmental interests of treating and protecting Holman and others, and of preventing relapse which could easily lead to loss of liberty (hospitalization or incarceration).

The Court cited Washington v. Harper (494 U.S. 210 [1990]) on liberty interest and due process in refusing medication, Riggins v. Nevada (504 U.S. 127 [1992]) on medical appropriateness and safety of the patient and others, and Sell v. U.S. (539 U.S. 166 [2003]) on due process and compelling State interest and psychiatric patients, in its decision.

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Prison Alternative for NRGI Acquitees

Felony criminal defendants who are found not guilty by reason of insanity (NGRI, NGI, sometimes called "not responsible by reason of insanity" [NRRI] or "innocent by reason of insanity") are almost always sent to a state hospital or federal mental health facility for treatment and containment. The idea is that when they are no longer dangerous to others, they will be released. Most remain there for many years, however, even when treatment is successful and psychiatrists or other clinical consultants believe they are no longer dangerous.

The conundrum of clinical eligibility for discharge or transfer to a less restrictive level of care, but lack of judicial permission for such a discharge or transfer, is well known to those who work in forensic mental hospitals. The patient has usually been committed under a statute different from ordinary civil commitment, and although many such laws refer to hospitalization criteria that are similar to those of civil commitment, the judges and local officials in communities from which the patients come (where they may have committed heinous acts or garnered sensational media coverage) are often very reluctant to let them return. This is one reason that people found NGRI very often spend more time in a locked facility than those who are found guilty and sentenced to prison.

The hospitals that house and treat NGRI patients are experienced in combining psychiatric care with important security requirements. In large states, there is a hierarchy of security levels, often at different mental health facilities, ranging from prison-like architecture and rigid security procedures to settings that, although containing locked wards and carefully monitored, resemble any modern psychaitric hospital. Smaller states, however, may not be able to provide such a range of treatment settings. When that occurs, there arises an inevitable mismatch between some patients' security needs and the available civil facilities.

Kevin Johns is a young man found not criminally responsible for the 2005 killing of another prisoner while on a Maryland "Supermax" prison bus with guard nearby. It was his third killing. He murdered an uncle in 2002 and strangled his state prison cellmate in 2004. 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, told the court that although they treat many patients who have committed killings, and have a secure wing, they could not reasonably protect other patients from Johns if he were hospitalized there. A Harford County judge (yes, it's "Harford") ruled June 23, 2008, that although Maryland law requires patients such as Johns to be committed to a Department of Health and Mental Hygiene (DHMH) facility such as Perkins, he would not specify treatment at Perkins. It is apparently up to the Maryland DHMH to decide where and how Johns should be treated, and whether or not the special dangers he exhibits can be safely managed in one of its hospitals. He is now in the Baltimore "supermax" prison, in spite of expected defense appeals asking that he be treated in a hospital.

This case may be 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). It is not clear to me whether, assuming defense appeals are unsuccessful, the eventual justification for prison housing will be his unusual danger to others, the fact that he is still in the middle of a life sentence for earlier convictions, or both.

(See http://www.baltimoresun.com/news/local/baltimore_county/bal-inmate,0,1520472.storygallery for a series of articles about the case, and thanks to Dr. Natasha Cervantes for her help with this vignette.)

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New Federal Parity Law (Mental Health Parity and Addiction Equity Act of 2008)

Many professional and lay publications have described the long-awaited "parity" bill which was recently passed and enacted, and will take effect in the Fall of 2009 (October 3, 2009). The delay will accommodate the process of change in local and state rules, insurance plans, and the like; though it is likely that we will see earlier expansions of coverage in many plans and settings. Employee negotiations, actual wording of coverage contracts, applicability to existing bargaining agreements, etc., will be topics of implementation guidelines developed by the federal government during the coming months.

Here are a few highlights from a good summary in Psychiatric News (Nov. 7, 2008, pp.1-2):

• A health plan that covers more than 50 employees and contains medical, surgical, mental health, and substance abuse benefits must contain no more restriction of mental health and substance abuse services than is found in that plan's medical/surgical benefits. The parity/equity concept applies to anything that has "financial" consequences, including (but not necessarily limited to) treatment itself (e.g., number & frequency of visits, total days covered) and payments (e.g., copayments, deductibles, out-of-pocket expenses).
  
• State parity statutes or rules which are stronger than the federal law are not disturbed by the parity act.
  
• Health plans may delay compliance for one year.
  
• Health plans that experience unusually high losses (over 1% increase in total med/surg and MH/Substance abuse costs, or 2% during the first year) may be exempted from the law, but are vulnerable to federal audit. (Many studies indicate that good mental health coverage is, on average, no more costly to insurers than similar general medical and surgical coverage. Further, there is ample evidence that availablity of quality mental health care decreases overall use of other medical services, with concomitant ecreases in health care costs.)

The act bears the names of two senators important to its creation and eventual passage: Republican Pete Domenici of New Mexico and deceased Democrat Paul Wellstone of Minnesota.

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FDA Review of Possible Suicide Risk Associated with Antiepileptic Drugs

Antiepileptic medications are often prescribed to stabilize mood in bipolar disorder serious depressive disorders, and sometimes to prevent recurrence of severe depression. Many anticonvulsants have clear mood-stabilization properties. Some now have FDA label indications for psychiatric use; a couple of others are often prescribed "off-label" (i.e., without FDA labeling for the psychiatric indication), based on research and clinical experience.

In late January, 2008, the U.S. Food and Drug Administration (FDA) published an FDA Alert concerning a possible increase in suicide risk for some patients who receive antiepileptic drugs,based on a meta-analysis of 199 placebo-controlled studies reported in the professional literature. The complete Alert reads:

The FDA has analyzed reports of suicidality (suicidal behavior or ideation) from placebo-controlled clinical studies of eleven drugs used to treat epilepsy as well as psychiatric disorders, and other conditions.  These drugs are commonly referred to as antiepileptic drugs (see the list below).  In the FDA’s analysis, patients receiving antiepileptic drugs had approximately twice the risk of suicidal behavior or ideation (0.43%) compared to patients receiving placebo (0.22%).  The increased risk of suicidal behavior and suicidal ideation was observed as early as one week after starting the antiepileptic drug and continued through 24 weeks. The results were generally consistent among the eleven drugs.  Patients who were treated for epilepsy, psychiatric disorders, and other conditions were all at increased risk for suicidality when compared to placebo, and there did not appear to be a specific demographic subgroup of patients to which the increased risk could be attributed.  The relative risk for suicidality was higher in the patients with epilepsy compared to patients who were given one of the drugs in the class for psychiatric or other conditions. 

All patients who are currently taking or starting on any antiepileptic drug should be closely monitored for notable changes in behavior that could indicate the emergence or worsening of suicidal thoughts or behavior or depression. 

It is very important to understand the Alert in context, and not to jump to the conclusion that antiepileptic medications "cause" suicide. The Alert itself is followed by the FDA's own comment that "This information reflects FDA’s current analysis of available data concerning these drugs.  Posting this information does not mean that FDA has concluded there is a causal relationship between the drug products and the emerging safety issue.  Nor does it mean that FDA is advising health care professionals to discontinue prescribing these products. . . . "

The important message here, from the standpoints of psychiatric standard of care and clinical risk management, is that the treatment of serious depression and other mood disorders must not be limited simply to prescribing and occasional follow-up visits. Patients should be carefuly assessed, then monitored frequently, especially early in treatment and when their symptoms or disorders are associated with increased risk of suicide. Competent psychotherapy, or at least counseling, with communication between treaters, is often required. Writing a prescription and telling the patient to come back in a few weeks just isn't enough.

Complete FDA information is at http://www.fda.gov/Cder/Drug/InfoSheets/HCP/antiepilepticsHCP.htm.

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Psychiatrists and Psychologists Shouldn't Trash Obama, McCain, or Any Other Public Figure

Sorry to put a damper on the juicy gossip that's flying around the Internet and email inboxes these days, but I'd like to remind clinicians, and educate other readers, about the gross inaccuracies and ethical problems associated with public comments concerning politicians and other public figures. A friend of mine who is a stellar representative of a non-mental-health profession forwarded a political email that mentioned the background and mental health of a current presidential candidate. His question was innocent: What would a good psychiatrist say about this fellow, based on his speeches and the media reports?

I can't resist an opportunity to swallow my sense of humor and teach a little, so I answered with something like the following, which will sound familiar to experienced psychologists and psychiatrists.

No reasonable or ethical psychiatrist or psychologist, for or against McCain, Obama, Palin, or Biden, or neutral, should comment publically about a candidate's personality or mental condition without knowing far more than can be gleaned from the media, public appearances, and tell-all books and, one hopes, interviewing and/or testing the candidate in person. All those who have actually done a clinical review and diagnostic interview or testing of a presidential candidate, please raise your hands. . . .

Just as I thought. (Let's omit privacy and confidentiality issues for now.)

Most readers are too young to remember a survey of psychiatrists done by Time or Newsweek a few decades ago. The magazine asked for clinical opinions about Arizona senator Barry Goldwater, who was a Presidential candidate at the time, based on his speeches and media reports. (It's coincidence that an Arizona senator is a candidate once again.) Lots of clinicians and professors made scholarly-sounding remarks about Goldwater's mental qualifications to serve, and many gave him a diagnosis or two.

Their responses sounded pretty silly in the magazine article that was published a few weeks later, but much of America took their comments seriously (after all, they were doctors). American psychiatry (notably the American Psychiatric Association) was enormously embarassed by the comments, which sparked subsequent ethics movement in both psychiatry and psychology to strongly recommend that clinicians not "diagnose" or offer professional opinions about people without first examining them and/or reviewing substantial and relevant personal information. Indeed, it is now professionally expected that a psychological or psychiatric diagnosis without personal examination be accompanied by explanations and disclaimers about how the validity and reliability of clinical comments may be affected by the absence of such an examination.

That's a good thing.

For those in law enforcement, I'm not talking here about legitimate criminal "profiling," in which limited information is used by very experienced professionals in an attempt to narrow the search for bad guys (but pointedly not for prosecution or to name individuals at trial). I continue to preach that mental health types are not usually good profilers (with a small handful of exceptions), and that well-trained lawenforcement behaviorists and criminologists usually do a far better job.

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Rethinking Violence Risk: The MacArthur Foundation Study

Despite society's often unreasonable demand that mental health professionals assess risk of violence in many different settings, research indicates that the clinicians expected to perform this task can do only a modest job (depending on context) at best. Many have suggested that the "disconnect" between what the law seems to expect and what clinicians can currently provide can be reduced by providing psychiatrists and other clinicians with actuarial information on the relationships between various risk factors and subsequent violent behavior.

A comprehensive prospective study of violence risk and risk assessment in persons with mental disorders was recently completed after a decade of research and preparation. Much of this summary was taken from material received, with appreciation, from Dr. John Monahan and the MacArthur Research Network on Mental Health and the Law.

1136 psychiatric patients in civil, acute-care inpatient facilities in Pittsburgh, PA, Kansas City, MO, and Worcester, MA, were sampled. Study subjects were English-speaking patients between 18 and 40 years old. They were White, African American, or Hispanic and had a chart diagnosis of thought or affective disorder (i.e., schizophrenia, other psychosis, severe depression, bipolar disorder, and similar severe illness), substance abuse, and/or personality disorder. Each patient was interviewed in the hospital by both a research interviewer and a research clinician and assessed on each of 134 potential risk factors.

After discharge, three information sources were used to monitor occurrence and details of violence in the community: patient interviews, collateral interviews (with persons named by the patient as knowing what was going on in his or her life), and official information sources (arrest and hospital records). For the analysis reported here, the patients and collaterals were interviewed twice (every 10 weeks) over the first 20 weeks after initial hospital discharge.

Violence to others was defined to include acts of battery that resulted in physical injury, sexual assaults, assaultive acts that involved the use of a weapon, and threats made with a weapon in hand. Almost 19% of patients studied committed at least one violent act during the first 20 weeks after discharge from the hospital. Of the 134 risk factors measured in the hospital, 70 had a statistically significant relationship (p<0.05) with later violence in the community. Specific factors that were or were not significantly related to violence included:

Gender. Men were somewhat more likely than women to be violent, but the difference was small. Violence by women was more likely than violence by men to be directed against family members and to occur at home, and less likely to result in medical treatment or arrest.

Prior violence. All measures of prior violence (self-report, arrest records, hospital records) were strongly related to future violence.

Childhood experiences. Seriousness and frequency of childhood physical abuse predicted subsequent violent behavior, as did having a substance-abusing or criminal parent (particularly a father).

Race, by neighborhood. While there was an overall association between race and violence, African Americans and Whites who lived in comparably disadvantaged neighborhoods had the same rates of violence.

Diagnosis. A diagnosis of a major mental disorder (especially schizophrenia) was associated with a lower rate of violence than a diagnosis of a personality or adjustment disorder. A co-occurring diagnosis of substance abuse was strongly predictive of violence.

Psychopathy. Psychopathy, as measured by a screening version of the Hare Psychopathy Checklist, was more strongly associated with violence than any other risk factor studied. The "antisocial behavior" component of psychopathy, rather than the "emotional detachment" component, accounted for most of this relationship.

Delusions. Presence, type, or content of delusions was not associated with violence. A generally "suspicious" attitude toward others was associated with later violence.

Hallucinations. Neither hallucinations in general nor "command" hallucinations per se elevated the risk of violence; however, the likelihood of violence was increased if voices specifically commanded a violent act.

Violent thoughts. Thinking or daydreaming about harming others was associated with violence, particularly if the thoughts or daydreams were persistent.

Anger. The higher a patient scored on the Novaco Anger Scale in the hospital, the more likely he or she was to be violent in the community later.

The authors are currently testing a prototype of violence risk assessment software under a grant from the National Institute of Mental Health.

Readers should not draw broad conclusions from this brief vignette, nor assume that statistical significance found in groups represents (or even suggests) clinically significant increase in risk for any individual. A more detailed summary is available at http://macarthur.virginia.edu. The complete results are found in Monahan, J., Steadman H, Silver E, Appelbaum P, Robbins P, Mulvey E, Roth L, Grisso T, Banks S (2001). Rethinking Risk Assessment: The MacArthur Study of Mental Disorder and Violence. New York: Oxford University Press. The book may be ordered in several ways: U.S. Internet orders at http://www.oup-usa.org and European orders at http://www.oup.co.uk; telephone orders in the U.S. at 800-451-7556, Canada at 800-387-8020, U.K. at 01536-454534, and elsewhere at 44-1536-454534.

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Standard of Care and Mental Health Managed Care

The National Committee on Quality Assurance (NCQA), which accredits managed care organizations (and, some would say, is a bit biased toward them) has released a report which includes 2003 data on the care delivered to depressed patients delivered and/or funded by private managed care organizations (MCOs), Medicare, and Medicaid. A recent article in the American Psychiatric Association's Psychiatric News (November 19, 2004, p.5) highlighted inadequacies in depression care by managed mental health care organizations, often called "behavioral healthcare" organizations or behavioral health "carveouts." (I dislike the term "behavioral" because it trivializes mental illness and psychiatric patients.)

The report says that mental health managed care performance has been, in the words of Psychiatric News, "dismal,"especially when compared to improvements in some other aspects of medical care. The NCQA itself said that two important measures -- antidepressant medication follow up and general patient follow-up -- indicate that patients get "the correct care" only about half the time. (Note that NCQA's definition of "correct care" does not necessarily imply that the caregiver met the standard of care for a particular patient.)

Almost 40% of patients enrolled in private MCO behavioral healthcare plans who received antidepressant medication were seen fewer than 3 times during the 12-week "acute phase" (NCQA's definition) follow-up period. Almost half the Medicare patients, and nearly 55% of Medicaid patients, were seen fewer then three times. The rates are especially disquieting when all newly-diagnosed depressed patients are taken into account (not just those taking medication). Over 80% of private and Medicaid patients, and 90% of Medicare patients, had fewer than 3 office contacts during the 12 week "acute phase" after diagnosis.

Here's some scary news: For patients hospitalized for mental illness -- which implies very serious symptoms, often including acute psychosis and/or substantial suicide risk -- some 25% of private MCO patients, 40% of Medicare patients, and 44% of Medicaid patients had no follow-up visit within 30 days after discharge.

There are a number of caveats involved in interpreting these summary data, and any criticism of individual care or allegation of practice below the standard of care requires careful review. "Depression" is not defined further in these findings. Although the symptoms were apparently serious enough to warrant a separate clinical diagnosis, some patients in the outpatient visit data report may not have had one of the more severe disorders (such as major depressive disorder). Outpatient noncompliance is also an issue; some patients do not keep appointments which have been made (although good follow-up care often includes contacting patients who don't keep their appointments).

On the other hand, actual patient care could be worse than the NCQA numbers suggest. Psychiatric News referred to an APA representative, Dr. Edward Gordon, as saying the NCQA is an "apologist organization for the managed care industry" (quote from Psychiatric News).

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Prosecution's Failure to Provide Exculpatory Mental Health Evidence Reverses Death Sentence

The United States Supreme Court (USSC) declined to review a Georgia Supreme Court decision that the prosecution's witholding of important mental health records in the penalty phase of a capital trial unfairly allowed a defendant to be sentenced to death. The Georgia Court cited the 1963 USSC decision in Brady v. Maryland,, which held that prosecutors must provide available evidence to the defense when such evidence may be exculpatory.

In the Georgia case, a defendant's past parole records referred to findings of mental retardation. Although the defendant's guilt was apparently not in question, (1) the records were found to have been suppressed by the prosecution; (2) they would have refuted the prosecution's premise that the defense was lying about the defendant's mental retardation; and (3) the trier's knowledge of the evidence in the parole records would have been reasonably likely to have altered the outcome of the trial. (Head v. Stripling, 590 S.E.2d 122 [Ga. 2003], cert. denied, 124 S. Ct. 2400 [2004])

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U.S. Execution and Death Penalty Statistics

The Associated Press is counting down to the 1000th legal execution in the U.S. since the 1976 U.S. Supreme Court decision that upheld a state's right to inflict the death penalty (U.S. Executions Likely to Reach 1,000 Milestone, by Brady Brooks [AP], as reported in the Austin [Texas] American-Statesman Nov. 27, 2005). By the time this is posted, it may already have happened. The numbers are interesting (assuming they are accurate -- I haven't verified them).

1000 is about 0.0003 percent of the roughly 300 million people who have lived in the U.S. since 1976, and a very small fraction of those who have been convicted of first-degree murder. A source quoted in the article states that some 100,000 people were victims of murder during the same period, or about 0.1% of the number of perpetrators executed.

The majority were Caucasian, although the proportion of Black inmates executed (33.7%) is nearly three times their representation in the general population. Those numbers are, of course, very general. Inferences about disproportionate use of the death penalty must consider more specific factors. Only 11 of the total 997 persons executed since 1976 were women (1.1%); 22 (2.2%) were juveniles at the time of their crimes; and 34 (3.4%) had evidence of significant intellectual impairment (perhaps mental retardation).

Texas -- my home state -- is either the poster child for execution or its whipping boy, depending on one's viewpoint or political persuasion (or perhaps geographic location). Our raw numbers are often misconstrued. Although we often execute more individuals per year than any other state, we are not the state with the greatest proportional number of executions, nor are we even close to being the state that actually executes the greatest proportion of defendants found guilty of capital murder. Oklahoma has the former distinction. (It's just across the Red River from Texas, but it has its own state government, which should never be accused of copying Texas.) Missouri and Virginia are in the same ball park as Texas with regard to executions as a proportion of general population.

Thirty-eight states have the death penalty on their books. Five of those have carried out no executions since 1976 (Kansas, Nebraska, New York, New Jersey, and New Hampshire), nor has the U.S. military (although other federal jurisdictions have done so, albeit rarely). At least two states, Illinois and New Jersey, currently have a moratorium on capital punishment.

Death sentences have declined by 50% since the late 1990s, with actual executions dropping some 40% in the same period. The latter is all the more significant considering the fact that execution routinely takes place over a decade after sentencing (when it takes place at all). Proportionally, many more inmates have been released from "death row" during the past six years than during the prior 25.

The Gallup polling organization says that 64% of U.S. Americans support the death penalty in some form (2005 data), the lowest number in the past quarter century. It was 80% in 1994.

An international perspective: Although opponents often say that U.S. death penalty laws stand out as "worse" than those of most other industrialized nations, that simply is not the case. For example, the majority of all legal prisoner executions carried out in the world (as contrasted with killings that occur outside a court-legitimized system) take place in the Peoples' Republic of China, often for crimes that would not be considered "capital" offenses here. Proportionately, far more people are executed in countries such as Iran and Viet Nam than in the United States. U.S. laws concerning the death penalty, the offenses for which it may be levied, our numbers of executions, and the racial and socioeconomic characteristics of those executed in the U.S. are not unusual within the industrialized world scene, and tend to highlight a legal fairness and democratic support that is lacking in many other countries.

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Disagreement on "Dangerousness" Exceptions to Therapist-Patient Privilege

Contrary to an earlier decision in the Sixth Circuit, a Ninth Circuit court ruled that a psychotherapist's testimony about patient revelations should not have been admitted at the patient's trial for allegedly threatening to kill federal agents (U.S.. v. Chase340 F.3d 978 [9th Circuit 2003]). There is a duty to warn about treats of serious harm in that circuit, but it was found to be separate from any duty or permission to testify about such threats in subsequent criminal proceedings.

The therapist properly revealed the threats to a law enforcement agency when they occurred, and the patient was arrested for them. The lower court allowed testimony in spite of any expectation of confidentiality and the patient was convicted. The psychotherapist's testimony was thrown out when the Ninth Circuit refused to apply a "dangerous patient" exception to the federal psychotherapist-patient testimonial privilege, reasoning that threatening impulses which give rise to therapist warnings are likely to have dissipated by the time a case comes to trial, and that societal interests in weakening the privilege are minimal.

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Decreasing Risk of Malpractice Lawsuits

Psychiatric News recently published a half-dozen New Year's "resolutions" from Professional Risk Management Services (PRMS). There's nothing special or proprietary about them -- it's stuff all clinicians should be doing every day -- but they bear repeating.

• Practicing well, doing what we know should be done for the patients we see. Take that responsibility seriously, even under pressure from payers or employers.

• Keeping good, complete, contemporaneous notes. I am amazed at the number of people who still think writing lengthy notes "just gives lawyers more to hang me with." It ain't true. Documenting good reasons for important clinical decisions is perhaps the number one deterrent against malpractice litigation. Deciding to discharge, or not to admit, a depressed patient? Merely writing "No SI" is not likely to convince anyone that you did a proper assessment if a tragedy occurs the following day.

• Keep confidences confidential. This is the only PRMS point with which I take a little issue. Confidentiality is very important, of course. On the other hand, there are many situations in which good, safe care requires communication with other people (usually clinicians and/or family members). Don't endanger your patient or others by diagnosing and treating without at least trying to get important collateral information, and don't keep potentially lethal secrets for a patient when your good sense should suggest otherwise. When in doubt, consult a colleague.

• Terminate treatment appropriately. Understand both the legal and ethical concepts of abandonment, and avoid it. Recognize when it is necessary to stay close to the patient as he or she is transferred to a colleague. Understand the difference between simply breathing a sigh of relief when a difficult patient wants to stop seeing you, and taking appropriate steps to protect that patient from harm. Document your actions and the reasons you believe they are appropriate.

• Watch therapeutic boundaries like a hawk. You already know about sex with patients, but be cautious about other boundaries as well, and understand the meaning and power of countertransference. Consider the therapist who started counseling her employee, the one who helped a patient purchase a handgun, or the one who gave a patient a clerical job in his office (with access to patient records). Not all boundary issues are terrible, but many small ones are important signals of increasing risk.

• I like the last one in the PRMS list: "Be nice." That doesn't mean "be obsequious," or "be obsessively forthcoming about your guilt feelings if a tragedy occurs." You can't please everyone; pleasing the patient often isn't our main job; and sometimes our patients are among the toughest folks to please. But communicating well and avoiding arrogance and defensiveness often go a long way toward defusing difficult situations.

To see the PRMS version, check the January 16 and February 8, 2004, issues of Psychiatric News.

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When Does Friendly Advice Create a Doctor-Patient Relationship?

Malpractice allegations are often predicated upon the existence of a doctor-patient relationship (clinician-patient, therapist-patient relationship). Without such a relationship, it is harder for plaintiffs to show that a special duty (such as a duty of care) exists. There are many nuances of this principle, most obvious, but some a bit obtuse. For example, a physician who is on call generally has duties of care to a patient he or she is covering, even though the two have never met. Similarly, diagnoses or advice given in a brief telephone call to someone who has never been seen are likely to be sufficient to establish a duty to perform enough evaluation to justify the findings or actions taken.

It is common, though not as common as in the past, for clinicians to dispense advice, and sometimes treatments, to friends, coworkers, employees, and family members. Medical boards and other regulatory and licensing agencies are fairly consistent in finding that such activities are "clinical" -- not just "friendly" -- and require evaluation and recordkeeping appropriate to the situation. That, in turn, means the standard of care may apply to the clinician's actions regardless of the location of the care, the presence of records, or even whether or not the patient is charged for the service. An Indiana appeals court recently addressed this principle in Thayer v. Orrico (72 N.E.2d 919 [Indiana Court of Appeals 2003]).

In the case, a psychologist gave marriage and family advice to a married employee of the clinic in which he was an owner, and recommended that she discontinue medications prescribed by a physician and take an herbal preparation, which he provided. The employee also sought advice from other clinic workers. The psychologist and employee/"patient" later had a sexual relationship. About a year later, both the relationship and her employment ended.

The employee and her husband sued, alleging mishandling of the transference in a psychologist-patient relationship. (Transference-related negligence is a common cause of action in allegations of inappropriate intimacy with patients.) The trial court dismissed the case on grounds that no psychotherapist-patient relationship existed and that the "therapy" was simply advice from a friend or coworker. The appeals court disagreed and returned the case to the trial court, saying that the presence or absence of a clinical relationship was a matter for a jury to decide. The appeals court ruled that in Indiana, the main question is whether or not the professional performed an affirmative act for a patient's benefit. Three relevant factors were cited, including (a) whether or not the employee met with the therapist for some treatment purpose, (b) whether or not the psychologist made any recommendation about her condition or treatment, and (c) whether or not the psychologist somehow indicated he consented to the establishment of a therapist-patient relationship (such as by providing treatment).

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Danger to Others: ERISA Affects Jurisdiction and Pursuit of Malpractice Claim

Injury to others after allegedly negligent diagnosis, treatment or discharge often give rise to malpractice lawsuits and similar actions. Given similar facts about a particular case, jurisdiction is an important factor in how, or whether, it can be pursued on a plaintiff's behalf. Although the past several years have seen some erosion of the protections from malpractice allegations afforded managed care organizations by the Employee Retirement Income Security Act (ERISA), a recent case reiterates the principle that such payment plans and their administrative representatives are not easily attacked.

A man became enraged after discovering that his wife was having an affair, assaulted her, and attempted suicide. He was hospitalized for four days, during which he was treated for depression and released at his insistence. About a week later, he killed his wife and son, then committed suicide. The treating physician had apparently considered involuntary hospitalization, but believed he was not a danger to himself or others. The treating physician was not sued, but an outpatient case manager, who was an employee of the preferred provider organization (PPO) that administered the behavioral health coverage plan, was alleged to have been negligent for not taking steps to monitor or rehospitalize him or warn his family when he failed to appear for scheduled outpatient followup.

The defendants successfully moved to have the case removed to federal court, citing a lack of any action against the treaters themselves and the fact that that the PPO was subject to ERISA. The Fourth Circuit ruled that since the defendants had not been directly engaged in treatment decisions, nor in any communication that influenced treatment, the federal venue was proper and state malpractice claims were thus defeated. The accompanying ERISA claims were dismissed as well. (Marks v. Watters, 322 F.3d 316 (4th Cir. 2003])

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Managed Care Companies Can't be Sued in State Court for Wrongful Denial of Benefits

A recent U.S. Supreme Court case dealt a blow to those states that are trying to chip away at what many believe are unreasonable federal ERISA protections for managed healthcare companies. ERISA (the 1974 Employee Retirement Income Security Act) was sweeping legislation designed to regulate private employer pension funds and protect retirees from company shenanigans. Unfortunately, the wording of the law has given rise to a great many untended consequences, among them severe limitations on the ability to sue one's managed healthcare company for malpractice. It's complicated, but in general the concept of funding care is kept separate from the concept of actual care delivery (even when funding effectively limits a doctor's or hospital's practice for a given patient). That has meant that lack of approval by a managed care organization (MCO) or health maintenance organization (HMO) for a particular procedure or treatment (including approval for hospitalization or additional hospital days) has been viewed by the federal courts as different from denial of care by the hospital or physician himself, especially when the hospital is not owned by the healthcare plan and/or the doctor is not an employee of that plan.

Similar frustration has arisen even when a hospital or physician/clinician (including a psychiatrist or psychologist) is part of the payer organization. The nuances of ERISA are such that (1) any lawsuit brought against the payer (HMO, MCO, other plan subject to ERISA) must be brought in federal court and (2) damages are essentially limited to the cost of the denied care. Thus an example used by a one of my colleagues in her lectures on the subject: If Bill Gates' wife is covered by the Microsoft managed care plan, the plan wrongfully denies an MRI, and she is rendered totally disabled by a condition that could have been prevented by the MRI, she cannot sue in state court for the denial, and if she sues and wins in federal court her compensation will be limited to the cost of the MRI itself.

Note that this issue is solely related to "certification" or "authorization" of treatment or other care by the private funding agency. The HMO or MCO would probably say something like "We never said she couldn't have the MRI (or other procedure or treatment); we merely said we wouldn't pay for it. The ultimate choice of treatment is between doctor and patient." If Ms. Gates' doctor negligently makes a mistake, or the MRI machine malfunctions and injures her, she can sue in state court and may recover substantial damages (well beyond simply the cost of the MRI) if she wins.

Over the past few years, some ten states (AZ, CA, GA, ME, NJ, NC, OK, TX, WA, WV) have passed laws designed to allow managed care patients the right to sue in state court. Their state civil processes would, ostensibly, be more favorable to the plaintiff than federal laws and procedures.

The point of this rather long preamble is that two Texas cases on the topic were decided by the U.S. Supreme Court in June, 2004. In one, an MCO discharge nurse denied a treating physician's order/recommendation for additional inpatient hospital days. In the other, a health plan denied use of an expensive medication and required a cheaper one that apparently led to substantial complications. The Court unanimously found for the MCO in both cases, saying in part that ERISA rules are the only ones that matter for covered patients and services, and that states may not recognize independent claims by ERISA-eligible plaintiffs.

The justices did comment that ERISA has become "unjust(ly) and increasingly tangled," and denies important state protections for patients but does not replace them with sufficient federal ones. They encouraged Congress to enact appropriate remedies. (Aetna Health Inc. v. Davila, Nos. 02-1845, 03-83, 2004 WL 1373230 [U.S. June 21, 2004])

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Schizophrenia Per Se Doesn't Imply Incompetence to be Executed

Percy Walton, a chronic mental patient, was sentenced to death for killing three neighbors in Virginia. During appeals, the court appointed its own expert, a forensic psychiatrist, to help resolve conflicting evidence about his competence for execution. The expert opined that Walton knew he was incarcerated for murdering three people and that he suffered from a significant psychiatric disorder (probably schizophrenia), had limited cognitive ability, and was not malingering. Walton apparently believed that he would go to heaven after his execution, then come back to see his family. Based in part on those opinions, the (federal) Western District Court of Virginia found Walton competent to be executed.

This case relied upon, and is generally consistent with, the procedures of at least two federal circuits (the Fifth and Eighth) that have considered competency to be executed in persons with mental disorders and adopted the guide articulated by Justice Powell in Ford v. Wainwright (477 U.S. 399 [1986]). That test requires courts to examine whether the defendant understands (1) that he is to be punished by execution, and (2) why he is being punished. Since the test is one of function rather than status (e.g., status as a mental patient with a certain diagnosis), it does not prevent a defendant from being executed merely because he or she suffers from schizophrenia or a similar mental illness. (Walton v. Johnson, No. 7:03CV0347, 2004 WL 414748 [W.D. Va. Mar. 4, 2004]).

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Good Samaritan Law Applies to Psychiatrist

Most or all states have laws that protect clinicians who provide help, in good faith, in emergencies such as automobile accidents. Such statutes encourage doctors to stop and render aid by lessening the fear that they will be sued for their good acts. They often specify that the doctor or other professional cannot have charged for the service, and was not providing the service as part of ordinary practice duties (such as being in an emergency room or part of an EMS team). An Oklahoma case extended the “good samaritan” protection in that state to a psychiatrist who treated a neighbor during a crisis.

One weekend, a neighbor who was also a physician called the psychiatrist’s home and asked for help with a different neighbor “as a professional courtesy and favor.” The latter neighbor, a physician himself, had recently suffered substantial career losses, was depressed, was acutely intoxicated, and was threatening suicide. The psychiatrist arrived, met with the person’s wife, interviewed him, prescribed sedative/anxiolytic medication, assisted in removing dangerous objects from the house, and arranged for a follow-up appointment a few days later. The psychiatrist returned later that night, at the wife’s request, and talked further with him. He committed suicide the next day. The family sued, alleging malpractice.

The case went to trial in an Oklahoma state court. The plaintiffs attempted to rebut the good samaritan defense by alleging that the psychiatrist had not merely happened upon the crisis (as might occur with an automobile accident, called “coincidental” in Oklahoma) but had responded to a call for help, that making the second visit (rather than referring the patient to a hospital) voided the good samaritan defense, and that the statute itself intended generally to except psychiatric care. The case included several more complex points, including whether or not the defendant was under any contract to provide care by virtue of his hospital appointment (even though he was not at the hospital and was not on duty at the time), the fact that the decedent was not charged for the care, and the statutory language that included care “wherever required.

The trial court barred the plaintiff’s claim in summary judgement. The appeals court found that the psychiatrist was acting as an employee or agent of his hospital (although he was not on duty or on call at the time), but that “good samaritan” immunity would apply unless gross negligence (failing to exercise even “slight care” in Oklahoma) could be shown. The case was sent to trial on that point, where it was heard in a bench trial. The plaintiffs admitted that the psychiatrist had indeed provided at least “slight care” which, among other things, caused the trial judge to find no gross negligence and render a verdict for the defendant psychiatrist. (Youn v. Kula, OK Civ App 104, 125 P.3d 705 [2005])

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Death Penalty for Adult Crimes by Juveniles Held Unconstitutional

As most readers already know, the United States Supreme Court (USSC) recently ruled that persons found guilty of capital crimes committed when they were under 18 shall not be executed. The 5-4 ruling, based essentially on Eighth Amendment proscription of cruel and unusual punishment, affects more than 70 U.S. death row inmates who were awaiting execution for such crimes. The defendant's age at the time of trial is immaterial, as is his or her ability to be tried as an adult; the relevant feature is age at the time of the offense.

The majority of the Court found that juveniles, as a matter of law, are per se less culpable than adults, regardless of individual maturity, the nature of the crime, or their ability to be tried as adults. In drawing its bright line at the eighteenth birthday, the Court said that juveniles are inherently less mature in their decisions and personalities than adults, are more reckless, are more prone to outside pressures and influences, and are more amenable to reform. The majority also found that the "national consensus" is against such executions.

The Court noted, but says it did not rely upon, its impression that the U.S. is the only country that executes defendants for juvenile crimes. (Such attention to other countries' policies is relatively unusual in U.S. jurisprudence, even when it apparently did not control the decision.) Finally, the Court noted that executions of people whose crimes were committed before age 18 has rarely been carried out in recent decades, and are already prohibited in most states.

If the above reasoning sounds familiar, it is. The Court referred to, and relied upon, its 2002 decision in Atkins v. Virginia, which cited several similar principles in banning execution of persons with mental retardation.

The dissenting justices challenged the premise of a "national consensus," argued that each state has the right to legislate ways that cases and defendants can be individually assessed (as contrasted with the categorical prohibition upheld by the USSC majority), and questioned the relevance of foreign countries' laws or policies to United States decisions. The decision reversed an 1989 USSC decision in Stanford v. Kentucky, which upheld execution of eligible persons who were at least 16 when their crime was committed. (Roper v. Simmons, No. 03-633, 2005 WL 464890)

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EMTALA Anti-Dumping Law Applied to Mentally Ill

A federal ruling in the Western District of Tennessee cleared the way for a lawsuit alleging that a hospital violated the Emergency Medical Treatment and Active Labor Act (EMTALA) when its emergency room discharged a man with acute mental illness and potential for suicide or self-injury without reasonably assuring adequate follow-up. The case could be very important to the lack of available inpatient or respite services for such patients.

The uninsured patient claimed that he requested care to avoid harm caused by depression, suicidal tendencies, and substance abuse, and that the hospital gave him an examination that was less comprehensive that provided for other, similar patients. He was discharged with a list of outpatient resources, none of which, he said, would accept him because of his limited ability to pay. When he returned to the ER, he was told they couldn’t do anything more for him and discharged again. He got drunk, cut his wrists, was taken to a different hospital, and was hospitalized. He later sued the first hospital for patient dumping. The Court ruled that the premise of the suit was valid and cleared the way for trial on the merits of the case. ( Card v. Amisub [SFH] Inc. , No. 03-2528, 2006 WL 889430 [W.D. Tenn. Mar. 30, 2006])

As summarized in e-DEVELOPMENTS IN MENTAL HEALTH LAW (26[e2], 2006) , EMTALA requires that hospitals provide, without regard to ability to pay, both (1) appropriate medical screening upon request to persons who come to a hospital emergency department and (2) stabilization for patients who present with emergency medical conditions. Hospitals may not transfer or discharge patients until they are stabilized. The above are subject to criteria of reasonableness, and refer only to services the facility is capable of providing.

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Liability for Damage to Third Parties; Homeowner's Insurance Remedy Fails

Laws and courts have dealt with psychiatrist liability for patients' damage to third parties since at least 1976 (Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 [Cal. 1976]). In the 30 years that have passed since the Tarasoff case, some states have passed statutes limiting or prohibiting such causes of action. In many others, various states' case law has established, or declined to establish, a "duty to protect" or "duty to warn" for psychiatrists, psychologists, psychotherapists, counselors, and their employers. That's not the main point of this vignette, which refers to a different cause of action and a different potential source of compensation or redress.

A Michigan civil case which was decided in 2003 and denied certiori by the United States Supreme Court (USSC) in 2005 involved a person who was shot by a severely mentally ill (schizophrenic) man near a mental health facility. The patient lived with his parents, and the lawsuit sought damages from their homeowner's insurance policy. Initially, criminal charges had been brought. The shooter had been found incompetent to stand trial and the criminal case was dismissed. (As regular readers of this website will readily understand, incompetence for trial does not necessarily imply lack of criminal responsibility at the time of the act. In any event, lack of criminal intent is not the same as an absence of knowledge or expectation that damage will ensue.)

The case hinged on the intentionality of the act. "Intentional" means different things to different people; courts and lawyers are no exception. Although there was no apparent reason for the shooting, the Michigan Court of Appeals ruled in the civil action that the son's behavior was "intentional," and thus not covered by the homeowner's policy. The son's having schizophrenia did not establish per se that the shooting was an unintentional act (that is, that the patient, at the time of the assault, lacked the mental capacity to expect or intend that injury would result from his conduct). The family's argument that the son fired the gun by accident did not prevail, either, perhaps because the evidence showed that he had kicked the victim after shooting her, laughed, and drove away.

Very few psychiatric disorders, even serious ones, automatically create an assumption of incapacity, incompetence, or inability to accept legal responsibility. The cases are fact specific. I have worked with similar cases in which the symptoms or behaviors existing at the time of the act indicated lack of intent, but that was not shown in this one. (Hastings Mutual Insurance Company v. Rundell, No. 238549, 2003 WL 21508515 [Mich. Ct. App. July 1, 2003], cert. denied, 126 S. Ct. 372 [2005]).

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BJA Mental Health Courts Program

The U.S. Department of Justice (DOJ) Bureau of Justice Assistance is working with the federal Substance Abuse and Mental Health Services Administration (SAMHSA) to encourage more "mental health courts." Such courts and programs are already in use in several urban areas, and work with adult and juvenile offenders with serious or chronic mental illness, mental retardation, and/or substance abuse. The BJA grant opportunities focus on misdemeanors and nonviolent offenses, with funding for innovative projects which work with communities to improve processing, adjudication, and outcome for those with mental disabilities.

Mental health courts and similar programs try to assure that mentally disordered offenders are appropriately dealt with by law enforcement and the judiciary, while at the same time helping to free ordinary court dockets and conserve judicial, corrections, and mental health dollars. The most successful mental health court programs involve a systems approach which combines education, mental health and substance abuse treatment, employment, housing, and recreation opportunities. They foster stability and improved social functioning by implementing or encouraging coordinated judicial supervision, training of criminal justice personnel to work with special needs offenders, treatment plan compliance, and comprehensive case management. In many, charges are dismissed upon successful completion of the treatment or diversion program. For more information, go to www.ojp.usdoj.gov/BJA/grant/mentalhealth.html.

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Responsibilities of Forensic Evaluators, Limited Duty of Care

I'm often asked whether or not forensic psychiatrists and psychologists should worry about "malpractice" in their forensic work. After I tell the person that I'm not a lawyer or an insurance expert, we generally discuss the possible duties evaluators and expert witnesses incur when doing assessments, forming opinions, testifying, and the like. In a case reported in e-Developments in Mental Health Law (Vol. 25, Issue e8; see link at the end of the main page), the Virginia Supreme Court ruled that mental health professionals performing court-ordered evaluations may be liable for damages if they breach what is called a "limited duty of care." Many other states have similar case law.

A psychologist (neuropsychologist) was accused of verbally abusing a litigant during an assessment of purported traumatic brain damage, allegedly calling her a malingerer and otherwise causing emotional discomfort. She sued for malpractice, also complaining that his behavior led to her further physical and mental deterioration. The Court noted that the rules of professional negligence apply to the behavior of forensic psychologists as well as physicians in situations of mandated examinations, and that many other states have allowed such a cause of action. There is a duty of care generated by the examiner-examinee relationship, since the examinee places himself/herself in the hand of the evaluator with an expectation of professional training and experience. The lawsuit was allowed to proceed.

The liability issue hinged on the psychologist's conduct during the examination itself. The Court specified that, in Virginia at least, failure to diagnose, treat, or inform an evaluee would not create liability in a court-mandated evaluation, nor would the content of an evaluator's report or eventual testimony. (Harris v. Kreutzer, 624 S.E.2d 24 [Va. 2006])

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Burden of Proof for Mentally Retarded Death Penalty Defendants

A number of cases have reached state supreme courts since the 2002 U.S. Supreme Court ruling that executing mentally retarded defendants is unconstitutional (Atkins v. Virginia). Atkins was not very specific in a number of areas, including the relevant definition of mental retardation, acceptable procedures for measuring intelligence, and the burden of proof required. In particular, many states define mental retardation based on childhood or adolescent testing, and most exclude intellectual limitations caused by brain trauma or other adult events or conditions. Most courts allow for the potential fallibility of standardized IQ tests, evidence of adult social function and adaptation (a part of the original Atkins USSC ruling), and consideration of adult testing when necessary. The Indiana Supreme Court clarified those issues for its state last year.

The most important part of the ruling is probably the Court's finding that defendants cannot be required to prove their mental retardation by "clear and convincing" evidence" in a death penalty proceeding. "Clear and convincing," as most readers know, is a more difficult burden of proof than the "preponderance or the evidence" used by most states to show mental retardation. (That's the level of burden used to prove most other criminal competency issues, such as competence to stand trial.) Very few states currently use a clear and convincing standard for mental retardation in death penalty cases; only one (Georgia) requires defendants to prove their mental retardation "beyond a reasonable doubt." (Pruitt v. State, 834 N.E.2d 90 [2005])

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Possible Constitutional Limits on Collateral Sources in Expert Opinions

Expert witnesses, including forensic psychiatrists, are generally allowed to rely on some information sources that are off-limits to fact witnesses. Contrary to prohibitions against "hearsay" evidence for fact witnesses, collateral information, sometimes referred to as corroborating data or "third-party" information, has long been recognized as an important part of forensic evaluations (and is commonly used in clinical work). It is routine in some cases to interview a plaintiff's wife, for example, or a criminal defendant's pastor, and consider the information received when forming an expert opinion. The validity and reliability of the collateral resource are taken into account, and sometimes explanations or disclaimers are provided. In a criminal case, the New York Court of Appeals appears to have limited experts' use of such information to sources who can be cross examined at trial.

The case is that of Andrew Goldstein, who pushed Kendra Webdale into the path of a subway train in 1999. Goldstein was known to have been treated for schizophrenia for many years, but also to have stopped taking his medications. "Kendra's Law," a New York procedure for outpatient commitment and involuntary treatment of schizophrenics and others with severe mental illness, was one result of the tragedy.

The question of corroborating information came as a result of testimony by the psychiatric expert for the prosecution, who described interviewing other persons in addition to assessing the defendant and reviewing the medical records. (Note that this is often recommended for clinical psychiatrists' work with patients, although the expert said the practice is limited to forensic psychiatry.) Those third parties were not called by the prosecution, and were not available for cross examination by the defense (which was pursuing an insanity defense). The defendant was convicted.

The appeals court, citing a U.S. Supreme Court ruling in Crawford v. Washington (541 U.S. 36 [2004]) concerning "testimonial hearsay," ruled that allowing the third party information to be relied upon for the prosecution's expert opinion, without opportunity for defense cross examination of the persons interviewed, violated the defendant's right to confront the witnesses against him. That right is guaranteed by the Sixth Amendment to the U.S. Constitution, and by New York's constitution as well.

The Court made it clear that "hearsay" was not the issue. The expert was allowed to base some of her opinions on third party statements; the Court did not comment on whether or not she could repeat the outside statements to the jury. Federal Rules of Evidence (Rule 703) have recently changed to limit disclosure of otherwise inadmissible facts, but the Court did not rule on that in this case. (People v. Goldstein, 2005 N.Y. Slip Op. 09654 N.Y. Dec. 20, 2005)

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Inmates Likely to Have Mental Problems

It has long been known that jail and prison inmates have a higher prevalence of mental health problems than the general population. A recent study published by the U.S. Department of Justice (USDOJ) found that about half of all state and federal prisoners and almost two-thirds of jail inmates reported symptoms or a history of mental disorders within the year prior to the survey. About a third of state prisoners, a quarter of federal prisoners, and nearly 20% of jail inmates had received mental health treatment (beyond simple screening) in the correctional setting.

Female gender, pre-arrest substance abuse, and pre-arrest homelessness were all statistically associated with reported symptoms and problems. State prisoners with mental problems, in particular, were more likely than other inmates to have been involved in fights during incarceration.

It is important to note that these results are quite generic. “Symptoms” are not the same as psychiatric diagnoses or disorders. Persons who have been arrested do not have the same demographic characteristics as the general population. Substance abuse is a huge skewing factor. Access to, and inmates’ rates of using, mental health services in correctional settings are different from those in the general population (sometimes higher and sometimes lower). In particular, additional data would be required before construing these results as indicating, for example, that mentally ill persons are arrested or convicted at higher rates than the non-mentally-ill; that prisoners require more mental health services that are currently provided; or that prisons or jails either cause or exacerbate mental illness. (Those statements may indeed be true, but the issues are more complex than simple group statistics.) (James DL, Glaze LE [2006]. Mental Health Problems of Prison and Jail Inmates, Bureau of Justice Statistics, U.S. Department of Justice [September].)

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Psychiatric Treatment to Restore Competency for Execution: Refusing Treatment, Forced Medication

Correctional psychiatrists, other physicians who work in prison settings, and professional organizations often ponder two closely-related questions: If a mentally ill prisoner is incompetent to be executed, should the doctor try to restore his competence? Should a doctor try to alleviate the prisoner's/patient's symptoms (psychosis, severe depression, global dissociation) even if he or she knows that once the symptoms are gone, the prisoner will be eligible for execution?

In 1986, the U.S. Supreme Court ruled in Ford v. Wainwright (477 U.S. 399, 106 S. Ct. 2595 [1986]) that, based on the Eighth Amendment proscription against cruel and unusual punishment, it is unconstitutional to execute a person who is incapable of comprehending the fact of, or the reason for, his punishment. The Court further required an adversarial process for determining mental competency for execution, highlighting the concept of treating death row prisoners to restore their competence for execution. But what if the prisoner/patient refuses treatment that might make him executable, or is not competent to consent and a substitute decision maker declines treatment on his behalf? That's the scenario raised by two Arkansas federal cases that recently passed through the Eighth Circuit Court of Appeals.

Charles Laverne Singleton v. Larry Norris, Director, Arkansas Department of Corrections (2003 U.S. App. Lexis 2198 [Eighth Cir. February 10, 2003]), is an execution-related case in which the Eighth Circuit ourt of Appeals ruled that the interests of a death-row prisoner in refusing medication must be balanced against the State's interest in punishing criminals. Singleton involved a prisoner who had allegedly become incompetent while on death row. The Court, with some dissent, held that it was not unconstitutional (and not counter to Ford v. Wainwright, above) for the State to forcibly administer antipsychotic medication to a prisoner whose date of execution has been set, nor for the State to to execute a prisoner who had become incompetent during a long stay on death row but regains competency through appropriate medical care.

That decision cited much of the same logic the same court used in a slightly earlier trial competency case, U.S. v. Sell (No. 01-1862 [8th Cir. March 07, 2002]). In Sell, the Eighth Circuit Court of Appeals laid out fairly specific criteria that would allow involuntary (forced) medication to restore trial competency, including "an essential state interest that outweighs the individual's interest in remaining free from medication," proof that "there is no less intrusive way of fulfilling" the state's interest, and proof by clear and convincing evidence that the treatment is "medically appropriate." Although not strictly an execution case, trial competence applies to capital trials as well as lesser ones and exposes the defendant to the possibility of sentencing.

The U.S. Supreme Court heard arguments in Sell in March, 2003; the final decision should be available in early summer. The fate of Singleton is likely to rest largely on the Supreme Court's decision in Sell.

Incidentally, these decisions have nothing to do with the professional ethics of this issue, which are discussed elsewhere. The American Medical Association and American Psychiatric Association generally forbid physician participation in executions. They also note that it is very difficult to separate real medical necessity from the pall of competence for execution. This concept applies to lots of conditions besides mental ones, of course. It is somehow considered wrong, for example, to proceed when a defendant or prisoner has pneumonia, yet antibiotics are prescribed to cure the respiratory disorder, making the person triable or executable (cf., U.S. v. Weston [255 F.3d 873 (DC Cir. 2001)]).

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Tarasoff Warnings, Duties Clarified in California

As many readers know, psychotherapists’, psychiatrists’, and psychologists’ so-called “duty to warn” or “duty to protect” third parties from the violent acts of patients was highlighted during the 1970s by a California Supreme Court case, Tarasoff v. Regents of the University of California (17 Cal.3d 425). That case established that a California psychotherapist has a duty to protect others under some circumstances in which he or she has good reason to believe that a patient or client is likely to be dangerous. Most other states soon developed statutes or case law either confirming a similar duty or declining to do so.

In August, 2006, the Governor of California signed a bill that clarifies mental health clinician’s duties and responsibilities in that state, and the State’s intent regarding therapists who warn or protect, or who fail to do so. Robert Weinstock, M.D., a forensic psychiatrist who has worked with the California Psychiatric Association and other groups to promote such legislation, says that the new statute

. . . makes it clear that the immunity statute did not create a new duty to warn that could be satisfied only by warning. It thereby undoes . . . incorrect jury “simplification” interpretations . . . (and) removes the problem phrase “shall be discharged by warning” from the statute that had been interpreted as creating a new duty to warn that could be discharged only by warning.

It clarifies that warning only is a way to discharge a Tarasoff duty and not a requirement. As had previously been the case, alternatives to warning are possible if it could be argued that they are more protective despite their not automatically satisfying the duty. A therapist no longer is automatically liable for choosing such actions. There also would no longer appear to be a need for (emergency room clinicians, including psychiatry residents and other trainees) to give Tarasoff warnings on patients being admitted before the patient could be more fully assessed on the inpatient unit.

It does nothing to undo the fact that a duty to protect exists if the information about a threat comes from a close relative and the therapist believes it . . . because we felt if there no longer is an automatic duty to warn it would be appropriate to try to protect the victim under such circumstances. (Personal communication)

(2006 California State Legislature AB 733, amending Section 43.92 of the California Civil Code relating to personal rights)

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Mistakes in Hospitals

Physicians have long examined their own errors and potential errors, and that process has long been protected from exploitation by lawyers and other external reviewers by laws that keep such "peer review" highly confidential when properly conducted. The premise -- and it is a good one -- is that the concept of encouraging honest critique so that care can improve is generally more important than punishing any one doctor. Hospitals have similarly-protected processes for assessing and improving their care. Special procedures must be followed in order to invoke and secure such protections.

The federal Institute of Medicine (IOM), part of the National Institutes of Health, recently (2000) issued a report indicating that medical errors in hospitals are responsible for up to 98,000 deaths a year in the U.S. The report suggested a mandatory system of disclosing serious patient care and safety problems. A separate organization, the National Quality Forum, subsequently created a list of some 27 serious errors or events that should "never happen" in hospitals. Disclosure associated with the reporting format is designed to be immune from the legal discovery process, in order to allay fears of civil liability and encourage improvements in facility care.

Minnesota was one of the first states to develop legislation and mandatory reporting procedures to meet the IOM recommendation. Early numbers from a transitional implementation of that state's rules were recently released. The report is based on 30 health care facilities over 15 months in 2003 and 2004. It lists 20 preventable patient deaths among 99 reportable events on the "(should) never happen" list. Most events (but only two deaths) were associated with surgical errors, about a third with general care management (such as medication errors), and about 9% with environmental problems (mostly falls, associated with several deaths). Two serious suicide attempts were reported (errors in "patient protection"; only those with severe injury or death must be disclosed). Another reportable area that is often (but not exclusively) associated with mental patients, patient restraint, apparently had no "never" events. The Minnesota report can be viewed online at www.health.state.mn.us/patientsafety/aereport0105.pdf.

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New Duty to Warn, Failure to Warn Ruling Limits California Statutory Shield

Almost 30 years after Tarasoff brought duty to warn and duty to protect third parties into the psychiatric/psychological consciousness (Tarasoff v. The Regents of University of California, 551 P.2d 334 [1976]), a California appeals court has ruled in another psychotherapist failure to warn matter (Ewing v. Northridge Hospital Medical Center, 16 Cal. Rptr. 3d 591 [Cal. Ct. App. 2004] and Ewing v. Goldstein, 15 Cal. Rptr. 3d 864 [Cal. Ct. App. 2004]). Of course, there have been a great many other jury, judicial, and legislative decisions over the years about whether or not a duty to protect or duty to warn third parties exists in various states and jurisdictions (Tarasoff having precedence only in California).

In this case, a law enforcement officer had been brought by his father to a hospital, where he was evaluated by a clinical social worker. He had a long history of psychotherapy or counseling, and was known to have been depressed about an ex-girlfriend's dating someone else. The patient's father, a retired policeman himself, described to the social worker threats the patient had made to kill the man who was dating his ex-girlfriend, and further said that he believed the threats were serious and that the patient was capable of carrying them out. The evidence indicated that the social worker believed the father, was concerned for his own safety as well, enlisted the help of hospital security personnel, and believed the patient was eligible for involuntary hospitalization. The clinician elected not to pursue the commitment because it might harm the officer's career. Instead, he persuaded the patient to accept voluntary hospitalization, from which he was discharged the next day. He killed the named person within 48 hours.

The victim's family sued, alleging the negligence in failing to warn the victim after learning of the threat through the assailant's father. The Appellate Court ruled for the plaintiff on the matter of duty, deciding that the father's communicating the patient's threat was sufficient to create a duty to warn the potential victim in spite of earlier California legislation specifying that only threats from patients themselves could create therapist liability. The Court stated that the important point was not the source of the information, but rather whether or not the therapist believed the patient was at substantial risk of inflicting serious physical harm. The defense of patient privilege or confidentially was disposed of by the Court's finding that California statute requires that confidentiality protections not be allowed to stand in the way of preventing serious physical harm to another.

Part of the ruling noted that the patient was a police officer, had and used firearms, and -- of considerable interest to the malpractice litigation -- presented a sort of common sense risk that did not require comparing the therapist's behavior to the clinical standard of care. The Court said that this matter thus did not depend on professional negligence in the sense of a breach of the standard of care, and thus no expert testimony was required for the trier to find breach of duty.

It appears that these companion cases have significantly weakened the California legislature's effort to limit therapist liability in duty-to-warn and duty-to-protect cases. Note, however, that these events occurred in, and apply only to, California. Clinicians in other states may be interested in the finding, but should not assume their own jurisdiction does, or does not, recognize a similar duty.

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Adolescents' Competence To Stand Trial As Adults

A recent study has affirmed the common sense view that early adolescents are, as a group, substantially less likely than older teens or adults to understand trial process and reason appropriately in their own defense. Dr. Thomas Grisso and colleagues studied some 1400 adolescents (11 to 17 years old) and adults (18 to 24) in four widely different geographic areas of the U.S. Half the group were incarcerated and awaiting trial in an adult or juvenile setting; the others, a demographically-matched control group, were not involved in the justice system.

The study evaluated the subjects' abilities to understand simple legal and trial issues and participate in the defense process. Maturity factors were also examined, in a context of whether or not the adolescents adequately considered consequences of everyday acts and events, recognized and evaluated risk in harmful or dangerous activities, and were able to resist peer influence.

The results indicated that kids aged 11 to 14 were three times less likely than older adolescents or adults to understand and work effectively with important legal procedures. The study's conclusion that treating young juveniles as adults in criminal procedures can deprive them of fair adjudication was further supported by the additional finding that detained juveniles are more likely than their community peers to have below-average intelligence, substance abuse problems, mental disorders, and difficulty with adult authority. The study, supported by the MacArthur Research Network on Adolescent Development and Juvenile Justice, will soon be published in Law and Human Behavior..

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New York Antidiscrimination Laws Don't Require Physical, Mental Illness Parity

New York, like many other states, prohibits insurors from using mental illness or disability to limit either the offering of insurance or the limiting of benefits unless there is an actuarial basis for discriminatinginst the mentally ill person. New York's law allowed disability insurors to limit mental disability coverage to two years, while offering lifetime benefits (actually until age 65 for Social Security and Medicare purposes) to those with physical disabilities. That law was recently tested in a case involving a private employer's long-term disability program.

New York's highest court ruled that the lesser benefit for a mentally ill person was permissable because the insurance itself was equally available to all, at the same premium, and the disability occurred after the instigation of the limitation text. The Court saw its decision as consistent with caselaw related to the federal Americans with Disabilities Act (ADA). (In re Polan v. New York Insurance Department, 814 N.E.2d 789 [NY 2004])

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Court-Ordered Treatment Compliance for Psychiatric Outpatients Upheld in New York

The mandated treatment provisions of the 1999 "Kendra's Law," familiar to New Yorkers as related to a man with paranoid schizophrenia who pushed a woman (Kendra) to her death in a subway, have been upheld by the New York Court of Appeals (that state's highest court). The law had been challenged with assertions that incapacity should be required before treatment compliance can be mandated. In disagreeing, the court noted that violating the order does not lead to legal sanctions but rather allows increased scrutiny by the physician and possible examination under ordinary civil commitment rules. The court also pointed out the strong state interest in reasonably removing persons at risk of viuolence from the public streets, adding that the patient himself is likely to be served by avoiding the longer hospitalization that might occur if evaluation and treatment were delayed.

Kendra's Law states generally that outpatient treatment compliance can be mandated for adults who require community supervision for their own or the public safety, have a history of poor medication compliance, are unlikely to comply voluntarily, need assisted treatment to prevent dangerous relapse or deterioration, and will benefit from assisted treatment. If the person fails to comply, he or she can be detained and hospitalized for a 72-hour evaluation without further judicial hearing. (In re K.L., 2004 WL 303202 [N.Y. Feb. 17, 2004]).

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Supreme Court Will Review Constitutionality of Executing Juveniles

The U.S. Supreme Court will review a Missouri Supreme Court decision that bans execution of juvenile offenders. This review could change the 1989 USSC decision in Stanford v. Kentucky (492 U.S. 361 [1989]), which established that is can be constitutional to execute offenders who were 16 or 17 years old at the time of their crimes. The Missouri Court suggested that more recent USSC decisions, including the test applied by the U.S. Supreme Court to ban execution of mentally retarded persons, suggest that American society has changed ("evolving standards of decency" and that execution of juveniles should be banned. Roper v. Simmons, 112 S.W.3d 397 (Mo. 2003), cert. granted, 72 U.S.L.W. 3310 (U.S. Jan. 26, 2004) (No. 03-633).

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Failure to Complete Substance Abuse Program Is Not Sufficient Cause to Discipline Physician

Substance abuse is the most common source of physician impairment. Curtailment of licensure or practice is generally considered by the relevant medical board or licensing authority in terms of one's ability to practice safely and competently. Some would assume that failing to complete a substance abuse diversion program as ordered by one's licensing agency would automatically trigger suspension. Last year, however, a California Court of Appeals ruled that failure to complete a drug diversion program did not establish, in and of itself, impairment of a doctor's ability to practice medicine. Medical Board. v. Superior Court, 4 Cal. Rptr. 3d 403 (Ct. App. 2003).

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Execution of Mentally Retarded Persons Ruled Unconstitutional

The U.S. Supreme Court ruled 6:3 in June, 2004, that states cannot execute persons with mental retardation, regardless of their crime. The issue was one of defining 8th Amendment "cruel and unusual punishment" and, wrote Justice Stevens for the majority, "reflects widespread judgement about the relative culpability of mentally retarded offenders, and the relationship between mental retardation and the penological purposes served by the death penalty." The ruling, which of course applies to all U.S. states and territories, was consistent with existing policies of some 18 states. Earlier USSC rulings had not barred such executions, relying on court procedure and juries to consider whether or not retardation was a mitigating factor. Justice Stevens also wrote that knowing right from wrong, as many persons with mental retardation do, must be tempered with some consideration of impulsiveness and gullibility. His comments indicated that such impulsiveness and ease of being influenced by others "do(es) not warrant an exemption from criminal sanctions, but (does) diminish . . . personal culpability."

The decision affects the 20 states that allowed death sentences for retarded persons. Although actual death sentences and executions of substantially retarded defendants are quite rare, one may now expect (and the dissenting justices anticipate) a flurry of activity among inmates and defense lawyers to establish mental retardation in their own cases.

This decision will not, in my view, quell the controversy about sentencing or executing mentally retarded persons; it merely moves the line of scrimmage. There is no real professional or legal agreement about the meaning of "mental retardation," or about definable levels of function relevant to criminal intent or eligibility for a death sentence (or prison sentence, for that matter). "IQ" numbers, "mental age," and estimated educational level are all notoriously invalid and unreliable predictors of specific, individual abilities and behaviors. Further, common tests of IQ or general intelligence are fraught with potential for error due to situation, mental state, and (of course) malingering. If states rely on a particular number, one can expect that a great many defendants and inmates will just "make the cut" -- perhaps after previously testing higher -- and arguments will ensue about the results.

Intelligence estimates based on social functioning, job performance, or "street smarts" are not much better for penological purposes. They routinely suggest that defendants and inmates perform better than their numerical scores would predict, but often overestimate a person's true understanding of what he or she is doing and his true level of understanding.

The decision, in Atkins v. Virginia, considered a man whose "IQ" was said to be 59, and who had never lived independently. He had committed some 20 felonies by the time he was arrested for participating in the kidnapping, robbery, and killing of a Virginia serviceman.

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Driving Impairment and Liability Exposure

Clinicians often wonder whether or not they should be concerned about mental patients who may drive while mentally impaired or disabled. They are reasonably familiar with issues about intoxication and common reporting rules for patients with epilepsy or seizures, but the dangers of operating an automobile or truck from psychosis, mania, and other sources of impaired cognition and judgement are rarely addressed in the psychiatric literature. When potential risk to others is discussed, it is often in a context of confidentiality (e.g., whether or not to tell a bus company that one of its drivers is likely to be unsafe).

Many states have laws or rules which either require or allow physicians (and sometimes other clinicians, such as psychologists or counselors) to report patients or clients believed to be potentially dangerous drivers. The ones with which I am most familiar provide insulation from liability for good-faith reporting to an agency such as the state police or DMV when the doctor reasonably believes a medical or psychological condition is likely to impair a patient's ability to safely operate a motor vehicle. The clinician himself/herself does not generally make a binding decision about the patient's driving privilege, but can notify (and in some instances may be responsible for notifying) the appropriate agency, which in turn may or may not pursue further investigation.

Arguments about the effects on the therapeutic relationship of reporting, particularly for patients currently in psychotherapy or counseling, have raged for decades. The upshot of both the professional and legal discussions is, in my view, that (1) it is often reasonable to expect psychiatrists and similar clinicians to assess risk of dangerousness in psychiatric patients, including general risks related to operating a motor vehicle; (2) the law in most states favors breach of confidentiality under at least some circumstances; (3) there are many ways to ameliorate the effect of such breaches, when they are necessary, on the therapeutic relationship; and (4) there are a number of circumstances under which a clinician's good-faith conclusions about potential danger to others are sufficient to justify telling someone who is in a better position to protect others than is the psychiatrist or therapist himself.

Although the American Psychiatric Association opined over 20 years ago that most psychiatrists are not experts in assessing driving skills, and although issues of confidentiality create difficult decisions for the psychiatrist or therapist, each clinician should be aware of the rules in his or her state, and aware of the duties they may generate. We know from other dangerousness-to-others topics that there are circumstances under which one can assess risk, and under which unacceptable risk can and should be ameliorated. Appropriate reporting is often one way of doing so.

Two relevant cases from the past are cited in a 1994 paper by Dr. Thomas Gutheil. In one (Naidu v. Laird. 538 A.2d 1064 [1988, Del. Supr. Ct.]), judgement against a psychiatrist was upheld on appeal. The patient had a history of automobile accidents while psychotic. In the other (Schuster v. Altenberg. 424 NW.2d 159 [1988, Wisc.]), the case was allowed to go to a jury but a distinction was made between intentional and negligent patient behavior.

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APA Advice About Email

The American Psychiatric Association recently published four recommendations for using email in clinical practice (Psychiatric News May 18, 2003, p.36). The topic is addressed in detail in several places on the Web. They're a good place to start in order to minimize the potential for problems.

First, use email only with established patients. Know who the recipient is and the basic clinical issues before offering clinical comments or advice.

Second, be careful about licensure issues, particularly if the patient is in a different state. The state may view email consultation as the practice of medicine (or psychology or psychotherapy, for nonphysicians). The licensing board's definition of "consultation" may differ from your own.

Third, be sure the privacy and security of your communications are adequate. Encryption may be part of the answer; this is a complex topic and one in which most practitioners have little technical expertise.

Fourth, be sure the patient understands the ramifications of using email (not just the conveniences) and has consented to it in writing.

Consult your professional association guidelines for more information, and consider using an established online provider of specifically medical/clinical email services. You're still the professional; Internet convenience and efficiency don't alter your basic responsibilities.

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Malpractice Verdicts & Trials

"Medical Malpractice Trials and Verdicts in Large Counties, 2001" was just released by NCJRS. It reports, among other things, that 90% of medical malpractice trials Involved a death or permanent injury claim. The complete text (NCJ 203098) is brief, and presents findings on malpractice cases disposed of by jury and bench trial in general jurisdiction courts in the Nation's 75 largest counties during 2001. Trend data for malpractice jury trial litigation in 1992, 1996, and 2001 are also presented. Go to the NCJRS website (link at the end of this page) or access the abstract directly at www.ojp.usdoj.gov/bjs/abstract/mmtvlc01.htm.

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Mental Incapacity Extends Statute of Limitations for Malpractice Claim

The Wisconsin State Supreme Court recently ruled that the State's three-year statute of limitations for filing medical malpractice claims can be increased by as much as five years if a patient is incapacitated by mental illness.

A patient sued several mental health clinicians and providers claiming negligence in their uncovering (largely through hypnosis) so-called repressed memories of childhood sexual abuse imputed to be the cause of her multiple personality (dissociative identity disorder). The material produced was apparently later shown to be "false memories." The case was delayed when defendants asserted that the statutory period allowed for filing had expired. The patient responded that she was entitled to additional time because of her mental illness and psychiatric symptoms during the alleged negligence.

Not all mental disorders qualify for the extension. The Wisconsin Court defined mental illness for this purpose in a specific legal and functional context, not a clinical one. The condition or disability must be related to one's inability to file suit and render the person (a) functionally unable to understand or appreciate the situation giving rise to the legal claim so that the person can assert a legal right or (b) functionally unable to understand legal rights and appreciate the need to assert them. A "seriously disabling" mental condition is required (which may include mental retardation or developmental disability, but not "senility"). Retaining an attorney does not necessarily waive assertion of incapacity for this purpose. Storm v. Legion Insurance Co., 665 N.W.2d 353 (Wis. 2003)

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"Forensic" Expert Not Required Under Ake

The Fourth Circuit has ruled that a North Carolina judge did not have to appoint a forensic psychiatrist in a capital murder case. The defendant had received psychiatric treatment both before and after the killing, and requested a forensic psychiatrist (at State expense) to assist in his defense. The trial judge ruled that his treating clinicians (psychiatrist and psychologist) were sufficient.

On federal appeal, the Court ruled that Ake v. Oklahoma (470 U.S. 68 [1985]) applies only when the defendant would be deprived of a fair trial without expert assistance, or there is a reasonable likelihood that expert assistance will materially assist him in the preparation of his case. The Court concluded that a treating psychiatrist could be sufficient, and that the threshold for expertise in Ake was that the psychiatrist be "competent," not "forensic." Page v. Lee, 337 F.3d 411 (4th Cir. 2003).

((See practical arguments against this legal finding, in the context of ability to assist the defense and to offer credible testimony, elsewhere in these Updates.))

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International Medical Graduates (IMGs) as Expert Witnesses

Early results of our (Reid, Durgam) study on IMG forensic experts will soon be published. We surveyed U.S. forensic psychiatrists from U.S. and non-U.S. medical schools (all had received their psychiatric specialty training in the U.S.). Many, but not all, respondents in both groups (IMG and U.S. grads) believed "foreign" medical graduates would have more difficulty in some expert testimony situations, and/or more difficulty being hired by attorneys, than U.S. graduates. Some respondents described personal experiences. General knowledge and clinical experience were not the issues, but rather whether or not attorneys would retain IMGs and whether or not attorneys, litigants, and jurors would accord them less credibility than they accord U.S. graduates.

The prominence of "foreign"-appearing characteristics, such as pronounced accent or ethnic dress, was considered an additional challenge by some respondents. Exceptions were noted for special situations, such as those in which an ethnic minority was heavily represented on the jury or in which speaking a language other than English was important to the case.

The full text of a paper with some (not all) results is available in the "Columns" section of this website.

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Juvenile Suicides, 1981-1998

A recent article posted at the National Criminal Justice Reference Service discusses juvenile suicide statistics date compiled by the Centers for Disease Control and Prevention. As many readers would suspect, suicide was the fourth leading cause of death for children of ages 7-17, behind accidental deaths, homicides, and cancer. More than 20,000 juveniles committed suicide between 1981 and 1998. Some bullet points made include

• Juvenile males were more likely to commit suicide than females
• American Indian youth were far more likely to commit suicide than youth of other races
• Suicides involving black juveniles increased substantially between 1981 and 1994
• White youth and American Indian youth were at greater risk of suicide than murder
• The relative risk of suicide vs. murder in White males increased substantially with age for White juveniles
• Most juvenile suicides involved firearms

For the entire paper, go to http://ncjrs.org/html/ojjdp/196978/contents.html (Snyder HS, Swahn MH [2004]. Juvenile Suicides, 1981-1998. (NCJ 196978) OJJDP Youth Violence Research Series, Bulletin, March).

And while you're thinking about it, the latest U.S. Office of Juvenile Justice and Delinquency Prevention (OJJDP) online Statistical Briefing Book (SBB) has just been posted at http://ojjdp.ncjrs.org/ojstatbb/index.html.

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Jail & Prison Populations, 2003

"Prison and Jail Inmates at Midyear 2003" (NCJ 203947) presents data on prison and jail inmates collected from National Prisoner Statistics counts and the 2003 Annual Survey of Jails. It offers trends since 1995 and percentage changes in prison populations since midyear and yearend 2002. Go to the NCJRS website (link at the end our Home Page) or access the abstract directly at www.ojp.usdoj.gov/bjs/abstract/pjim03.htm.

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Wyatt v. Stickney: A Milestone Passed in Public Mental Health Care

Over a third of a century ago, the State of Alabama was sued on behalf of mental patients in its Bryce Hospital who had been receiving what was agreed to be very poor care in the state's public mental health system. The suit was eventually expanded to include thousands of Alabama patients. Finally, in 2003, all parties agreed that Alabama has met the requirements of the court and the suit has been dismissed. The 33 years between the filing and the dismissal should not be construed as any failure on the part of Alabama. The broad changes that have taken place required enormous effort and great shifts in priorities and social attitudes, then many years were spent verifying that the changes would not be merely temporary. It's the end of a landmark case and a milestone for public mental health care.

Alabama wasn't alone in its problems with mental health care. The success of Wyatt v. Stickney provided fuel for dozens of civil-rights-based class actions against state and regional mental health care systems. One way or another, through trials, settlements, or consent decrees, the cases brought (often by the U.S. Department of Justice or the American Civil Liberties Union [ACLU]) have routinely improved care and treatment for people with severe and chronic mental illness. Cases such as Wyatt usually result in a state's formally agreeing to specified, broad improvements in patient services. Those agreements can lead to decades-long efforts by the state, with close (sometimes rather intrusive) monitoring and oversight by agents of the plaintiffs and the court. The administrative "cure" is often painful, and the criticisms are not always fully deserved, but few would argue with the premise that public sector treatment is much better now than it was when Wyatt was filed in 1970.

The single biggest change brought by Wyatt was not any particular treatment, but rather in the location of care. Wyatt pressed hard for deinstitutionalization in Alabama. It marked an early point in a movement that decreased the number of psychiatric inpatients in the public sector by over 90% in many states and led to sophisticated community mental health systems. That shift in the locus of care, which had already begun in some states, rapidly became the norm. Indeed, many would say that the pendulum has swung too far and that excessive emphasis on outpatient treatment (particularly inexpensive and infrequent services) deprives many patients of certain advantages of inpatient care.

Wyatt now passes from the stage, but its progeny -- both legal and social -- will be with us for a very long time. (Wyatt v. Stickney 325 F. Supp 781 [M.D. Ala.1971])

Addendum: Information received privately from a former senior administrator in the Alabama state mental health system suggests that neither the system in general nor Bryce Hospital itself has continued the hoped-for progress since Wyatt was finally resolved. That is disheartening, if unconfirmed, news.

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Missouri Psychologists Had a Duty to Warn of Child Abuse Danger

A Missouri jury found that two psychologists had a duty to warn of a danger of abuse of a readily identifiable child many years prior to being sued, and that they had failed in that duty. The plaintiff was awarded $5,000,000.

The adult plaintiff was abused by her father for some 9 years when she was a young child. Evidence included sexually explicit photos taken by the father that were discovered by her mother. During the period of abuse, the father was confronted by the mother, admitted the behavior, and briefly went to counseling with the psychologists. Both parents told the psychologists they did not want police or other authorities told of the abuse; the psychologists agreed. Unfortunately, the father soon stopped the counseling (unknown to his wife) and continued to abuse his daughter. The ongoing abuse was rediscovered two years later when the child, then 13, revealed it to a social worker she was seeing for behavioral problems. She was removed from the home and the father was eventually imprisoned.

The Missouri Court of Appeals later affirmed a professional's duty in that state to warn appropriate authorities of specific risks of serious future harm to readily identifiable victims of child abuse. (Note that the duty was apparently already present when the abuse occurred; it was not created by the subsequent appeals finding, but merely clarified.) (Bradley v. Ray, 904 S.W.2d 302 [Mo. Ct. App. 1995]).

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Medication Compliance in Parolees

Noncompliance with psychiatric prescriptions is a significant factor in both hospital and correctional recidivism, particularly for patients with psychotic disorders (schizophrenia and other conditions that sometimes keep patients out of touch with reality). A recent California project studied parolees who were supposed to take antipsychotic medication, to see what factors might increase medication compliance. The results, verified by urine drug assays after following 150 parolees for up to six months, indicated a nine- to ten-fold increase in medication compliance in those who met the following conditions: (1) their prescriptions were for relatively newer drugs ("atypical" neuroleptics, which have become available during the past 10-15 years, are arguably more effective than older drugs for the same disorders, and have fewer side effects); and (2) they had some sort of supervising person in their lives who could encourage medication compliance. Each factor was helpful in itself; the groups of parolees/patients who met both conditions had the best results.

Antipsychotic and mood stabilizing medication compliance is also a serious issue in non-parolees. Hospital doctors and treatment teams wrestle daily with decisions about discharging previously suicidal or violent patients who are likely to stop taking their medications once away from the hospital. Depot injections are helpful for some, but this study joins many others in recommending modern neuroleptic drugs over older ones (in spite of increased drug cost) and regular, personal attention from guardians and caregivers. (Farabee D, Shen H, Sanchez S [2004]. Program-level predictors of antipsychotic medication adherence among parolees. International Journal of Offender Therapy and Comparative Criminology 48[5]:561-571)

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Winter, 2005, "Justice Resource Update"

The National Criminal Justice Reference Service (NCJRS) has just released the latest in its comprehensive update series, the Winter, 2005. Justice Resource Update. It contains a wealth of social science information about criminal and juvenile topics such as identity theft, child abuse as a risk factor for adult violence, missing and abducted children, and law enforcement training. Much of the material is not strictly related to mental health, but the document is an important source guide for related criminal and social science topics. Find it at www.ncjrs.org/justiceresupd.html. To subscribe to the NCJRS email notice service itself (free), go to www.ncjrs.org.

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Malpractice Award Limits in Texas

Texas physicians, lawyers, and malpractice carriers are abuzz about a new State constitutional amendment that caps jury awards for non-compensatory damages (such as mental anguish or pain & suffering) at $250,000. The election is now history, and "Proposition 12" will become part of the State Constitution on January 1, 2005.

In a nutshell, proponents of Proposition 12 said skyrocketing malpractice insurance premiums were caused mainly by large malpractice awards. They cited some unusually high awards, although such awards are outside common compensation parameters. Opponents cited other causes of premium increases (such as flagging insurance company investments) and recommended against using a constitutional remedy for a regulatory or legislative issue. They expressed concern for legitimate victims of medical negligence, who now will have much more difficulty finding a lawyer willing to take their cases. They also noted that California's recent (fairly modest) malpractice insurance premium reductions were not a result of compensation caps, as sometimes stated, but were due primarily to regulatory reform.

I am among a small minority of physicians who opposed the measure. It won't make much difference to my practice, but I'm concerned that real victims -- not the spurious, exaggerating, or malingering kind -- are not getting a fair shake. Few people ooutside the legal profession are aware of the costs plaintiffs' attorneys incur when they take on malpractice cases (almost always on contingency, for a percentage of the potential settlement or judgement). Those costs quickly run into the high five figures, and very often amount to hundreds of thousands of dollars. That means plaintiffs' lawyers are reluctant to accept cases for which the potential return is not some multiple of their potential investment. They are even less enthusiastic about pursuing cases that aren't virtually a "sure thing." All this suggests that many people who deserve to have their claims heard in court, arbitration, or settlement negotiation will never get that chance.

When my work is done, my parting comment to litigants and lawyers is often "I hope whatever happens is fair." Texas seems to have made that outcome less likely for patients who may have been damaged by clinician or hospital negligence.

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Popular Child Molester Assessment Doesn't Meet Daubert in Several Courts

Screening measures and actuarial instruments are often used to try to predict reoffending by child molesters or other "sexual predators". Experienced forensic clinicians know that some psychological tests, screening procedures, and actuarial instruments (such as the MMPI-2, Psychological Assessment Inventory [PAI], revised Minnesota Sex Offender Screening Tool [MnSOST-R], Rapid Risk Assessment for Sex Offender Recidivism [RRASOR], and Static 99) have a place in sex offender assessment, but that they must be considered in context, along with other information. More direct tests of aberrant (e.g., pedophilic) sexual interests and impulses are difficult to create and administer. One procedure, penile plethysmography, is moderately valid and reliable (but not infallible) at determining whether or not a male is stimulated by particular kinds of pictures or auditory vignettes; however, it requires special equipment, a trained and experienced administrator, considerable preparation, manipulation of the subject's genitalia, and stimulation materials that may be objectionable in some settings.

The recently-developed Abel Assessment for Sexual Interest (AASI, Abel Assessment) is an attempt to provide direct information about current sexual interests and impulses using computer images and a straightforward statistical measurement which the author contends is highly correlated with the presence or absence of molestation and other paraphilic behavior. It has been validated in some studies, but its validation has been challenged in several courts. In particular, the error rate is fairly high, and some information which might be helpful in analyzing the test's usefulness has been kept secret by the author. (One concern is that if the specific testing principles and information were released, they would quickly fall into the hands of attorneys and defendants, allowing subjects to fake their test results.)

As interesting as the AASI is in some clinical settings, it has not been able to overcome reliability and Daubert challenges in several courts. A Massachusetts court recently declined to allow a committed child molester to introduce AASI results to show that he was no longer in danger of reoffending. Before that, courts in South Dakota and Texas had excluded the test, the Texas exclusion coming at the appellate level and comparing the inadmissibility issue to that of polygraphs. A Louisiana court did allow AASI findings in a case which found an accused pedophile not guilty, but the testimony was unrebutted. (Gerard Ready v Commonwealth of Massachusetts, Suffolk County Superior Court, May, 2002; U.S. v Whitehorse, Fed.Supp., 2001; In the Matter of J.G., Texas Court of Criminal Appeals, 1998)

NOTE: Part of the information in this vignette is found on the American Prosecutors Research Institute website at www.ndaa.org. For a discussion of the validity and reliability of several risk assessment instruments, consider Barbaree HE, Seto MC, Langton CM, Peacock EJ (2001). Evaluating the predictive accuracy of six risk assessment instruments for adult sex offenders. Criminal Justice and Behavior 28(4), 490-521.

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State "Any Willing Provider" Laws Upheld Against HMOs, Other Managed Care Organizations

The U.S. Supreme Court ruled in April, 2003, that states can require health plans and insurers to open their clinician panels to all qualified doctors and other "providers." The Court affirmed an earlier ruling by the Sixth Circuit Court of Appeals that since Kentucky's "any willing provider" laws are state laws that regulate insurance, they are not preempted by the Employee Retirement Income Security Act of 1974 (ERISA).

Health maintenance organizations (HMOs) and other managed care organizations (MCOs) have used the limiting of provider panels to control costs for years. The business idea is that providing payment only to smaller, restricted groups of clinicians increases the number of cases per doctor, thus creating opportunity for "volume discount." Organizations representing psychiatrists, other physicians, psychologists and other clinicians, and a number of consumer groups as well, have long alleged that MCOs' and insurers' ability to limit provider panels also allows them to intimidate doctors and other clinicians into providing cheaper -- and sometimes worse -- care than patients deserve. The effect of the ruling will be to increase choices for patients and, one hopes, to decrease the ability of insurers to influence unfairly the type and quality of patient care.

Managed care plans were encouraged during the 1980s and 1990s as ways to contain health care costs. As liability issues began to appear and some of the quality shortcomings inherent in very-low-cost care became evident, MCOs and other insurers invoked a small section of the ERISA which, although not originally intended to apply to such cases, appeared to exempt most of them from the malpractice liability. A conundrum of great influence by the payer on care decisions coupled with their ability to shift all responsibility for that care to the doctors and other caregivers who provided has continued to frustrate patients, doctors, and hospitals. Clinicians and treatment facilities found themselves virtually at the mercy of payers in their clinical decisions, yet still the sole targets for malpractice allegations.

The recent Supreme Court decision does not completely stem the tide of national MCO/HMO health care policy, but it contributes measurably to ongoing erosion of ERISA as an intractable barrier between authority for certification or reimbursement on the one hand and responsibility for inadequate care on the other. Physicians who want to be included in HMO panels still must meet the payer's contract requirements, and may or may not choose to participate. The point is that patients will now have more choices, and MCOs that control large numbers of patient referrals will now be less able to ostracise or boycott clinicians who put patients before the business of health care. (Kentucky Association of Health Plans v. Miller 588 U.S. ___ [2003] [No. 00-1471])

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Employee Assistance Program Confidentiality & Physician Termination

Psychiatrists and psychiatric organizations have been upset about the case of Dr. Sheila Horn, who refused to reveal to her employer certain information about employee-patients that she believed was confidential. Her employer, The New York Times, fired her and she sued for wrongful termination. A New York lower appellate court held in her favor, but the New York Court of Appeals reversed that decision, based on the right of an at-will employer to terminate its employee (Dr. Horn).

The case is interesting, largely because of Dr. Horn's allegations that the Times attempted to require her to behave unethically by disclosing ordinarily confidentially information and giving employee-patients false or misleading information about their conditions. The appeals court did not, however, rule on whether or not the employer could require such things, nor even on whether or not her firing was retaliatory (for refusing to comply with what she believed were unethical or illegal demands). The point was that Dr. Horn's position was at the Times' discretion, regardless of the merits of their, or her, behavior.

Dr. Horn and her various amici cited, among other things, an appellate decision in Wieder v. Skala (80 NY2d 628 [1992]), which held that an attorney could not be terminated from a law firm for refusing to violate fundamental legal ethics. The Court refused to apply that case to Horn, however, citing (6 to 1) the absence of any employment contract in Horn, the fact that Dr. Horn's employment was in the service of the newspaper rather than outside clients, and the uniqueness of the earlier case.

In spite of the Court's focus in its decision, Dr. Alan Stone, a Harvard professor in both law and psychiatry, recently commented that he believes another important facet has to do with doctors who are employees of, or contract with, HMOs and other managed care organizations. Physicians and other clinicians may find that relationship more important than their hospital or clinic privileges, the latter being protected by due process safeguards while the former are subject to employee-at-will doctrine. (Sheila E. Horn v. The New York Times [2003 NYSlipOp 11298], decided February, 2003)

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Email and Website Guidelines for Mental Health Professionals

The Internet is a wonderful thing. It offers opportunities for improved doctor-patient communication, greater access to care, and sometimes more efficient consultation and treatment. Email has become a part of many psychiatrists' and other clinicians' practices. But these opportunities don't come without a price. I've worked on several recent cases in which email or a website has been alleged to be associated with substandard or criminal physician practices, a tool for ethics violations, evidence of wrongdoing or damage, and evidence of lack of wrongdoing or damage.

Clinicians of all kinds may wish to read the latest draft of physician email and online consultation guidelines created by a subgroup of Medem. Inc., a highly reliable online physician network. Medem's November, 2002 document from the eRisk Working Group on Healthcare's Guidelines for Online Communications outlines a number of concerns and risks, and particularly discusses use of email for fee-based online consultations. The same website (see below) also has links to malpractice carriers' guidelines or comments on email and online practices.

Some of the concerns are obvious (e.g., security, authentication of both patient and clinician, confidentiality, unauthorized access to email content, establishing informed consent, dealing with acute needs and emergencies). Others are more subtle (e.g., whether or not a doctor-patient relationship is formed, requirements for record-keeping, licensing jurisdiction, accuracy of online information, and commercial claims). The section on fee-based online consultations lists, and briefly discusses, eight important points, including whether or not a previous face-to-face relationship is required, disclosure and appropriateness of fees, disclosure of identity, and differentiating online consultation from diagnosis or treatment (to the extent they can be differentiated in individual cases). And don't forget HIPAA.

For the complete document, go to www.medem.com/corporate/corporate_Addendum_A_eRiskGuidelines.cfm#medem_erisk

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A Pill for Suicidality?

Well, not quite, but the FDA has for the first time approved a new drug indication specifically for preventing suicide. The drug is Clozaril(TM) (a Novartis product known generically as clozapine). It had earlier proved very effective in controlling psychosis and stabilizing mood in patients with severe mental illness.

A recent large and well-controlled prospective study suggests that the suicide prevention effects are not merely related to its antipsychotic properties, and that Clozaril(TM) is superior to other new neuroleptics (Zyprexa(TM) [olanzapine] in the current study) in this regard. The long-term reduction in suicide attempts among patients with schizophrenia and schizoaffective illness was impressive, whether compared to the predicted baseline or to the olanzapine-treated patients. (Meltzer et al.: Clozapine treatment for suicidality in schizophrenia: International Suicide Prevention Trial [InterSePT]. Archives of General Psychiatry 60:82-91, 2003)

This study, along with retrospective ones (e.g., Reid et al.: Suicide prevention effects associated with clozapine therapy in schizophrenia and schizoaffective disorder. Psychiatric Services 49[8]:1029-1033, 1998) and supporting anecdotal and case reports, may create a new standard of care for certain schizophrenics and similar patients. Although generic versions of clozapine are available, the FDA awarded Clozaril(TM) several years of marketing exclusivity for the specific anti-suicide indication.

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Social Security Disability Benefits for Mental Illness

Social Security disability benefits are fairly easy to obtain for patients suffering from chronic and severe mental illnesses such as schizophrenia or bipolar disorder, while patients with many other, generally less severe, conditions (such as personality disorders, anxiety disorders, post-traumatic stress disorder) have recently found it more difficult to convince administrative judges and the Social Security Administration that they should not be expected to work. One common argument by persons alleging disability (and by some psychiatrists) is that their diagnosis alone (e.g., of schizophrenia) establishes disability. In fact, however, disability is generally determined by a combination of ability to work and whether or not the disabling condition is expected to last at least one year. Schizophrenia and many other psychiatric conditions last much longer, but the patient's inability to maintain gainful employment often fluctuates with such things as adequate treatment and treatment compliance.

A March, 2002, U.S. Supreme Court decision upheld the Social Security Administration's denial of benefits to a man who became ill with schizophrenia, applied for disability, then was able to return to work some 11 months later, before his SSA decision was rendered. Disability decisions often take many months, and the plaintiff had argued, in part, that delaying benefits decisions so long would encourage people to avoid working voluntarily during that period, without regard to any real disability. (Barnhart, Commissioner of Social Security v. Walton 535 U.S. 1937 [2002]).

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Health Maintenance Organizations (HMOs) Lose Important Supreme Court ERISA Fight

The U.S. Supreme Court's 5:4 decision in Rush Prudential HMO v. Moran is a major victory for patients and physicians. The finding upholds an Illinois statute guaranteeing independent medical review of payment or coverage denials by Health Maintenance Organizations (HMOs) when medical necessity is questioned. The decision also appears to preserve similar laws -- creating patients' rights in HMO disputes involving treatment need -- in some 40 other states.

In the case, the HMO refused to approve shoulder surgery recommended for Ms. Moran by her physician. She sought an independent review of the denial from the HMO, by a non-HMO physician, as allowed by a 1986 Illinois statute which provides patients with the right to such a review when there is a dispute between the HMO and primary care doctor concerning "medical necessity" of care. The HMO refused the review, and she sued. She eventually obtained the independent review, which agreed that the surgery was warranted, and had the surgery. The HMO still refused to cover the treatment, however, for which she paid almost $100,000.

The HMO sought the protection of the federal Employee Retirement Income Security Act of 1974 (ERISA), which has long been a vehicle for exempting employee benefits plans (including HMOs) from state law. Ms. Moran's claim was denied at the federal trial level, with a finding that the federal ERISA superceded Illinois state law. A federal appeals court, and later the U.S. Supreme Court, disagreed, however, citing conflicting federal appellate decisions (e.g., in the Fifth Circuit) and allowing Moran's claim.

The barriers created by ERISA to individual and state challenges to managed care continue to erode. One of ERISA's original goals, to lower health care costs by encouraging development of managed care organizations and programs such as HMOs, has often been usurped by companies for private gain, to the detriment of patient care. The federal courts are slowly reinstating the ability of individual states to regulate managed care in the patient's interest, and allowing state court challenges to ERISA-protected entities. (Rush Prudential HMO, Inc. v. Moran et al. 536 U.S. 1021 [2002])

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U.S. Mental Disorder Prevalence Rates

One-year U.S. prevalence rates for psychiatric disorders -- the percent of the population who suffer from a mental illness or disorder during a given year (not to be confused with "incidence," which is the rate at which new cases appear) -- have recently been revised downward, according to a February, 2002, report in the Archives of General Psychiatry. A group of experienced epidemiologists presented convincing evidence that studies previously relied upon to estimate numbers of potential patients and predict health care resource needs probably overestimated rates of significant psychiatric illness by 20 to 50%.

The new estimates suggest that the total one-year adult prevalence of clinically significant mental or substance abuse disorders in the U.S. is just under 19%, not 28-30% as previously thought. Major depressive disorder (the most common class of severe depression) and alcohol use disorder are both estimated at about 5% of the population, just half what one respected earlier survey (the National Comorbidity Survey) had suggested. Bipolar disorder (formerly "manic-depressive" disorder) and significant anxiety disorders are also less common than previously believed, affecting about 0.5% and 12%, respectively, of U.S. citizens annually.

For the complete report, see Narrow WE, Rae DS, Robins LN, Regier DA (2002). Revised prevalence estimates of mental disorders in the United States: Using a clinical significance criterion to reconcile 2 surveys' estimates. Archives of General Psychiatry 59(2):115-23.

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Disability Insurance Parity for Bipolar Disorder

Federal disability benefits do not differentiate between physical and mental disorders; however, private insurers often limit duration of benefits for "mental illness." A short series of cases involving First Unum Life Insurance Company of America ("Unum") may be a portent for change in disability policies.

In Fitts v Federal National Mortgage Association et al. (DC District Court, No. 98-00617, February 26, 2002), the Court ruled, essentially, that bipolar disorder (formerly called manic-depressive disorder) is a physical illness for the purposes of this disability policy, and reinstated previously terminated benefits. Fitts, a lawyer for the mortgage association received disability payments for two years because of bipolar disorder. At that point, the carrier, Unum, terminated her benefits, citing contract language that limited mental illness disability benefits to 24 months and defined mental illness as "mental, nervous, or emotional diseases or disorders of any type." Fitts filed suit under ADA and ERISA. The Court dismissed her ADA claims but heard the ERISA claim, and initially upheld Unum's classification of bipolar disorder as a mental illness. Ms. Fitts appealed to the DC Circuit, which found that the lower court had used a standard that favored the employer and remanded the case for a neutral review. In the second review, U.S. District Judge Henry Kennedy found for Ms. Fitts.

Fitts's arguments included contentions that the plan's definition of mental illness was ambiguous, and that bipolar disorder was unfairly excluded. She cited its physical characteristics, and presented her own brain scans as evidence. Both her treating psychiatrist and an expert witness, former NIMH director Fred Goodwin, M.D., supported the premise that bipolar disorder is a physical condition. A Unum psychiatrist testified that such a precedent could open the door for all psychiatric diagnoses to be considered "physical," because they involve the brain.

In another Unum case (Elam v. First Unum Life Insurance Co., 57 S.W.3d 165 [Ark. 2001]), an Arkansas employee-plaintiff with bipolar disorder presented affidavits from prominent psychiatrists and researchers who described physical causes and concomitants of bipolar disorder. One of the experts wrote, "It is well accepted in the scientific community that bipolar disorder is a biological condition with hereditary predisposition, and . . . alteration in brain chemistry is . . . responsible for (its symptoms)." First Unum won its motion for summary judgement at the trial level, but both the state appeals court and the Arkansas Supreme Court reversed, setting the stage for trial on the merits.

Psychiatrists who (quite properly) view our specialty as an inseparable branch of general medicine, and our severely ill patients as having disorders or diseases of the brain, hope that the crux of such cases is whether or not bipolar illness is deemed "biological." This isn't the only point, however. The Court in Elam noted that both parties' cases "went beyond the four corners of the policy," with Elam claiming that the exception wording did not include illnesses associated with physical causes. Unum claimed that its definition did not rely on "cause," and that the common classification of bipolar disorder as a "mental illness" by psychiatrists is sufficient to meet the exception.

If plaintiffs such as these prevail on the basis of a biological basis for severe mental disorders, these will be important cases in mental disability law. If the plaintiffs prevail solely on the wording of the contract, however, their importance will last only long enough for insurers to change next year's policies. If the insurer prevails, things will remain as they are for awhile.

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Obtaining Accurate Child Assessments

A recent query about obtaining forensic psychiatric or psychological assessments in child protective settings prompted the following answer, which makes a good Update vignette.

First, it is important to try to use a fully-trained and certified child specialist for children's assessments. Although general psychiatrists and psychologists have some training (and sometimes considerable experience) with children, people under about 15 are quite different from adults, and the younger they are, the more different they are. If the issue is simply one of evaluating an adult for competence to parent or dangerousness during visitation (rather than a child assessment or family custody evaluation), a forensically-experienced adult professional may be sufficient.

Second, assuming that both professionals have all the necessary training and are experienced in forensic work and child-protection/custody matters, does one choose a psychiatrist or a psychologist? A child psychiatrist is more broadly trained and -- other things being equal -- better able to assess for severe disorders and general medical issues that may have an impact on the case (e.g., effects of substance abuse on the brain, prognosis for a parent's HIV, effects of a child's diabetes on development). A child psychologist, on the other hand, is likely to be more familiar with testing instruments which may be valuable in assessment or monitoring progress, and may have more psychotherapy expereince. In matters of brain injury or damage, a child neurologist may be helpful, and a fully-trained child neuropsychologist (pretty rare in most settings) is a very valuable asset.

Third, in a child protection field, attorneys should be very cautious about whom they seek to evaluate the veracity of adults' claims and the accuracy of children's statements or memories. There are lots professionals who have made a cottage industry of "discovering" (especially sexual) abuse. In my view, most professionals who purport to know when a child is accurately describing past abuse, especially through drawings or symbolic acts, are not nearly as good as they claim. Look for someone who is honest about his or her limitations, and who provides reasonable disclaimers in reports and testimony.

Fourth, it is important to emphasize the "forensic" in forensic psychiatrist or psychologist. The assessment person or team should have experience and credibility with the legal and social service system (rather than simply being local clinicians). It is very important that evaluators not be involved in treating any of the parties (see above vignettes). The assessment should be completely independent of any treatment or other family relationship (although the evaluator should have access to treatment records for all parties).

For a basic discussion of the difference between psychologists and psychologists, go to our FAQ -- Basic Information page.

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Judges' Discretion in Qualifying Experts

Judges have broad discretion in qualifying expert witnesses -- witnesses allowed to express expert opinions. Accuracy and credibility are usually assumed to be best addressed by the other side's opportunity for rebuttal and the jury's (or other factfinder's) judgement. Sometimes testimony is clearly outside the witness's expertise, however, and admitting it is reversible error. Daubert and other cases address the kinds of information and information sources that may be admitted, but there are also a few successful appellate challenges to judicial determinations of who may opine.

The Massachusetts Supreme Judicial Court found in Commonwealth v. Frangipane (744 N.E. 2d 25, Mass. 2001) that a social worker should not have been allowed to testify about memory loss and recovery. The witness was called to discuss traumatic memory in a context of sexual abuse; she did not evaluate the alleged victim nor review case records. She discussed what she described as "dissociative memory loss," with a foundation of her clinical experience and attending workshops and seminars on traumatic memory. The Massachusetts Supreme Court did not argue with the trial court's admitting her testimony on child abuse or trauma victim experience, but found reversible error in allowing her to testify about how the brain stores and retrieves traumatic memories, which depended on scientific knowledge of brain function. It found that these were medical and physiologic matters in which the social worker was not expert.

In another case (Johnson v. State, 58 S.W. 3d 496, Mo. 2001), a trial court finding that a man was a sexual predator was reversed and remanded because the State's expert was an "associate psychologist" for the Department of Corrections. His routine work was required to be approved by a licensed psychologist, but he had been allowed to offer opinions crucial to the State's case. The Missouri Supreme Court found that the trial court had abused its discretion in allowing him to testily as an expert.

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Prosecution Psychiatrist Not Allowed To Testify Unexpectedly

On Criminal Responsibility and "Ultimate Issue"

Mr. Dixon was a severely and chronically mentally ill man who made threats, abducted a female ambulance driver, bound her and had sex with her against her will, then took her to a hospital and released her with the somewhat bizarre expectation that she would call him later and pretend they were married. He was arrested, and a prosecution-retained psychiatrist eventually opined that he was competent to stand trial.

At the trial, the psychiatrist, who was retained only on the issue of fitness, also testified that Dixon was able to appreciate the nature and quality and/or wrongfulness of his acts during the events in question. The defense objected, saying that the psychiatrist's testimony went beyond the issue of fitness and violated Federal Rules of Evidence related to testimony on the "ultimate issue" of state of mind at the time of the alleged acts. The judge overruled the objection and asked additional questions of the prosecution's psychiatrist. The defense attempted an insanity defense without any expert; however, the judge did not instruct the jury on the insanity defense. Dixon was convicted of several felonies.

On appeal, the Fifth Circuit reversed the conviction and remanded the case, saying in effect that the trial court prevented the defense from presenting an adequate insanity defense, in part by improperly admitting the prosecution psychiatrist's testimony on the ultimate issue. (U.S. v. Dixon 185 F.3d 393 [5th Circuit, 1999]).

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Death Penalty and Mentally Retarded Defendants

(NOTE: After this writing, the U.S. Supreme Court ruled in Atkins v. Virgini a that execution of mentally retarded defendants is unconstitutional. See Execution of Mentally Retarded Persons Ruled Unconstitutional, above. For further comments about this and other mental health aspects of the death penalty, see "Psychiatry and the Death Penalty," reprinted from the May, 2001, Journal of Psychiatric Practice.,)

A discussion of mentally retarded persons and the death penalty should go beyond the knee-jerk response that people with mental retardation shouldn't be executed.

Individual Functioning. The concept of differentiating individual functioning from diagnostic (or any other) status is very important. Courts focus far more on functioning than on diagnosis when assessing defendants' abilities and competencies. Psychiatrists do too. Some people with major depressive disorder are vocationally disabled, for example, but most are not, most of the time. Some people with schizophrenia can't consent to treatment, but most can, most of the time. Some people with mental retardation can't do meaningful work, but most can, most of the time. What matters is ability to function, and functioning is related to lots of things besides diagnosis.

The trial court is the place all of the relevant evidence related to functioning should be brought in a murder case. The jury and judge have an opportunity to consider mental retardation, its extent and limitations, as well as anything else the defendant's lawyer wishes to present. Our system relies greatly on that jury to weigh the evidence, highlighted or rebutted by lawyers, and perhaps explained by experts. If there is evidence that mental retardation significantly affected a defendant's ability to commit a crime (such as the ability to form intent or to plan the criminal act in advance), or evidence that should be considered in the sentencing phase of deliberations after the defendant has been convicted, the trial court is the place to raise it. If the defense lawyer fails to raise relevant issues of mental retardation, the defendant may later contend that his lawyer was inadequate and that the retardation should have been considered by a jury, but that's not the same as saying that mental retardation in itself, regardless of the defendant's ability to function, should exempt him or her from punishment.

Rights. People with mental retardation have the same right as any other adult to be tried and judged on their own merits, and not on a broad stereotype about their social or diagnostic status. The criteria for competence to sign a contract, for example, are based on ability, not diagnostic status, as are those for receiving a driver's license. Some discussants in this field are concerned that if people with mental retardation are denied the "right" to suffer the same consequences of their crimes as anyone else (assuming the jury has properly considered their abilities), then what other of their rights are vulnerable to being abridged or curtailed? Marriage? Child custody? Independence itself?

Drawing the Line. Those whose opposition to execution is based solely on mental retardation per se rarely say what level of intellectual function is "enough" and what level of retardation is "too much" for this heterogeneous group. It wouldn't help to set something like an IQ number or "mental age," since the lawyers for defendants who fell just above it would argue bad testing or arbitrariness, or simply re-test the defendant until he somehow reached the magic number. And prosecutors would argue just as loudly that IQ in itself is not a very precise index of ability to function. The controversy would rage and, most important, either the same defendants would be exempted or sentenced as before, or more mentally retarded defendants might be sentenced to death, because juror judgement would have been replaced with a pseudo-valid "rule."

Expanding the Pool. The same "status" argument applies to other defendants who have some group-identifying characteristic. Should all depressed people be exempt from the death penalty? How depressed is "enough"? How about all people with less than a 10th grade education? What about those who got "social" promotions or special education diplomas?

Individual functional assessment is good. Lumping and stereotyping are bad. When the media headlines seem distressing (e.g., "Mentally Retarded Man Sentenced to Die"), consider learning the rest of the story.

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Duty to Warn or Protect in 2001

Although originally confined to California, the various states' progeny of the 1974 Tarasoff concept of duty to warn or protect third parties has evolved, receded to some extent, and re-emerged in a criminal proceedings context.

During the 1980s, there was a diversification in states' interpretation (or refutation) of Tarasoff-like duty. Caselaw, statute, or both clarified protective duties in many states, while others waited for a civil case ripe for appellate interpretation. In the 1990s and 2000, however, several states (notably Texas and others) retreated from such requirements. Those that did so tended to follow one of four approaches: (1) confining the therapist's duty to existing statute and declining to expand it, (2) finding no duty to warn third parties, (3) finding no duty to control voluntary patients, or (4) acknowledging only sharply limited protective duties.

Robert Weinstock, M.D., notes that psychotherapists' testimonial privilege in criminal matters has been eroded by civil Tarasoff-like exceptions, and by "dangerous patient exceptions" used in civil commitment procedures (e.g., California's "Section 1024). Although intended to expedite needed clinical care and generally predating Tarasoff, the latter was ruled an exception to privilege in criminal prosecutions by the U.S. Supreme Court in Jaffe v. Redmond, and raises the possibility of "criminalizing" civil warnings.

(From a recent panel chaired by Alan Felthous, M.D., at the American Academy of Psychiatry and the Law, summarized in the AAPL Newsletter, January, 2001)

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Statistics on Malpractice and Other Torts

People are always asking about malpractice judgement statistics, and I finally have some information. On the one hand, this is old news (derived from the 1996 Civil Justice Survey of State Courts); on the other hand, it is the latest compilation of such information from the US Department of Justice Bureau of Justice Statistics. Don't blame the hardworking statisticians at DOJ, they have to work with government bureaucracy every day.

In 1996, a total of 10,278 tort cases in the nation's 75 largest (by population) counties were decided by a trial. Some 1201 (11.7%) involved medical malpractice. About 85% of the total, and 93% of the medical malpractice cases, were jury trials. Readers should note that some health-care-related lawsuits are not litigated as "malpractice."

The median medical malpractice award (compensatory and punitive) was $285,576, second highest of any category of tort cases listed. Only asbestos litigation was more expensive than medical malpractice. Cases won against medical doctors averaged almost $400,000 (for both surgeons and nonsurgeons); dentist and "other professional" awards were substantially lower. Psychiatrists and other mental health professionals were not listed separately, nor was it possible to separate physician-related awards from hospital- or clinic-related ones. The median for all tort cases was $30,500. Awards over a million dollars were common in successful cases brought against surgeons (about 27%) and nonsurgeon M.D.s (21 %), but rare in other tort categories (0-7%).

The award amounts do not reflect the probability that the plaintiff will win in the first place. Plaintiffs won in only 23% of medical malpractice trials, a much lower proportion than in other categories (48% overall; 41% for nonmedical "professionals," 58% for automobile cases, and 57% for intentional torts).

Punitive damages were part of the above awards in only about 1% of successful medical malpractice cases, a number well below the average for all torts (3.3%). Defendants were "punished" most often in successful intentional tort, slander/libel, and non-asbestos product liability cases.

Contributory or comparative negligence reduced medical malpractice awards in about 10% of cases. The average award reduction was about 35%. State laws regarding contributory negligence vary considerably; it is particularly important in AL, DE, MD, NC, SC, and VA.

Non-attorneys are often amazed at how long it takes to resolve lawsuits. The median time-to-resolution of malpractice cases which are eventually tried by a jury was well over 2-1/2 years (a bit longer than that for other kinds of tort cases). Almost 25% lasted four years or more. For bench-tried cases (which presumably include summary judgements), the average duration is about 18 months.

(Source: M.F.X. Litras et al.: Tort Trials and Verdicts in Large Counties, 1996. Bureau of Justice Statistics Bulletin August, 2000 [NCJ 179769])

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Two Cases Denying Privilege in Criminal Trials

Psychiatrist-patient privilege was denied in In Re Grand Jury Proceedings (Gregory P. Violette) 183 F.3d 71 (1999). The First Circuit Court of Appeals ruled that two psychiatrists who had seen Mr. Violette could not invoke the privilege of confidentiality on his behalf since the patient's communications were adequately construed as being meant to advance a crime (in this case, fraud). The Court acknowledged the basic psychotherapist-patient privilege affirmed in Jaffe v. Redmond (USSC, 1996), but drew a distinction between Jaffe and the balance of competing interests of confidentiality and the pursuit of justice in Violette. Had the communication or confession to a psychiatrist or psychotherapist not been meant to advance a crime, it would have been protected.

Another exception to privilege, this one focusing on the "interest of public justice" and a social work interview, was upheld in Graham v. U.S. (746 A.2d 289 [DC, 2000]). Graham appeared in court on an unrelated matter involving a woman's restraining order. He elected to go to a homeless shelter rather than return home. A social work interview was required for admittance to the shelter. He told the social worker that he had molested the woman's child over several years, and was eventually convicted of several felonies related to child sexual abuse. Graham appealed, contending, among other things, that the trial court had erred in applying the District of Columbia interest-of-public-justice exception to mental health professional privilege, and that he had been compelled to admit the molestation to the social worker (and thus it was inadmissible under the Fifth Amendment). Both contentions were rejected and his conviction was affirmed.

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Sexual Predator Commitments Maturing (Texas procedures, double jeopardy, predicting recidivism, and Kansas v. Crane)

Almost 40% of U.S. states have a special commitment statute for convicted sex offenders, commonly defined as sexually violent predators (SVP). Since the U.S. Supreme Court (USSC) approved SVP commitment laws in Washington and Kansas, attorneys, defendants, victims, and observers have watched as some 1500 offenders in sixteen states have been committed to programs designed to keep them from reoffending. The commitments are hybrids of sorts, neither criminal proceedings per se nor traditional hearings for involuntary mental health care.

Unlike the treatment-for-confinement quid quo pro of ordinary civil commitment, SVP commitment produces substantial loss of liberty with little prospect for useful treatment or symptom change. Mandatory SVP treatment programs in the U.S., however well intended, have an acknowledged lack of clinical or behavioral effectiveness. This may be largely because they often lack any meaningful medical (e.g., psychiatric) component. Indeed, the medications most associated with reliable decrease in sexual predation, pedophilia, other child molesting, compulsive frotteurism or exhibitionism, etc. (antiandrogens such as depot medroxyprogesterone acetate [Depo-Provera(R)] and cyproterone acetate [Androcur(R)]) are almost never offered to committed SVPs.

Texas is apparently the only state in which defendants face outpatient commitment (with ankle-bracelet satellite monitoring) rather than institutional confinement. In Texas, a convicted sex offender completing his prison sentences is given notice of the State's intent to commit him, counsel is appointed, and a jury trial is held to determine, beyond reasonable doubt, whether or not the inmate/defendant fits the statute. Defendants who do not -- or cannot for some reason -- follow the rules of the outpatient program can be returned to prison for life. This is a special problem for the many mentally retarded offenders (usually relatively nonviolent), who often neither appreciate nor can reliably follow the almost 100 written rules of Texas programs and thus, as a practical matter, receive a life sentence.

Fifth Amendment double jeopardy challenges to post-sentence commitment were essentially eliminated over two years ago, when the USSC found 8 to 1 that multiple rapist Andre Young was not entitled to release on grounds of double jeopardy (Seling v. Young). Young had argued that poor conditions and inadequate treatment opportunities in the Washing state facility to which he was committed were tantamount to an additional criminal sentence.

Many states use tests or actuarial instruments to assess sexual/pedophilic interest and/or likelihood of reoffending. Some, notably "actuarial" instruments, rely solely on past behavior and demographics, and can be completed without interviewing the defendant/perpetrator (e.g., the STATIC-99 and MSOST-R). A few use direct psychological or physiological measures (e.g., the Abel Assessment for Sexual Interest, [TM] [www.abelscreen.com] and penile plethysmography). More generic instruments, such as the Hare Psychopathy Checklist - Revised (PCL-R) and personality inventories (e.g., the MMPI-2 and Personality Assessment Inventory [PAI]) are nonspecific and not usually validated for predicting sex offender recidivism. It is important to be aware of the validity and reliability of any of these instrumentswith regard to the specific task at hand,, and not to use them blindly. Statistical information is easily found in the professional literature, and Daubert findings are available for many instruments (including the Abel Assessment).

Perhaps the most important recent event in maturation of the SVP commitment concept occurred in January, 2002. The USSC ruled in Kansas v. Crane that a "mental abnormality or personality disorder" satisfies substantive due process requirements for the civil proceeding of sexual predator commitment; however, the Court found thatHendricks (the original decision that allowed such commitments after imprisonment) requires a finding that the defendant cannot control his dangerous behavior "even if (as provided by Kansas law) problems of emotional, and not volitional, capacity prove the source of behavior warranting commitment." Hendricks intends that it be "difficult, if not impossible, for the person to control his dangerous behavior." Thus commitment courts must distinguish dangerous sexual offenders subject to civil commitment from those "more properly dealt with exclusively through criminal proceedings"; the commitment process may not be used "for retribution or general deterrence."

As we suspected after Hendricks, the problem of sex offender recidivism has not been solved by this new commitment opportunity. Whether it will be mitigated as the concept of SVP commitment matures further remains to be seen. My own experience suggests that the solution rests more with adequate criminal sentencing than with what is, so far, something of a jury-rigged (no pun intended), pseudo-clinical commitment procedure.

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Wisconsin Sex Offender/Predator Commitment Procedure Upheld

More and more state commitment procedures for civil detention of sex offenders (often called "sexually violent predators" or some similar term) are being tested, and upheld. In Wisconsin, Mr. Curiel was convicted of sexual assault in 1989 and became eligible for post-incarceration civil commitment under a 1996 statute. The statute says, in part, that a person who is either convicted of a sexually violent offense or found not guilty by reason of mental disease or defect, who also has a mental disorder, and who has a "substantial probability" of engaging in sexually violent acts as a result may be committed within 90 days before release from criminal incarceration. The burden of proof is "beyond a reasonable doubt" (but note that the "reasonable doubt" applies to the trier being able to say there is a "substantial probability," not that there is no reasonable doubt that a sexually violent act will occur).

An evaluation by a State psychologist showed serious drug and alcohol problems before incarceration, past exhibitionism, lack of past treatment for either pedophilia or exhibitionism, and a pattern of increasingly severe sex offenses. The psychologist believed that "substantially probable" was the same as "more likely than not," although he was not able to say that additional offenses were "much" more likely than not. He cited some 17 "risk factors" for future sex offenses. ///The defendant refused to be interviewed by a second state psychologist, who nevertheless also testified to substantial probability. The defense argued that the second evaluation was substantially flawed due to the lack of interview.

The defense expert witness, a private psychologist, performed various tests and interviewed Mr. Curiel for many hours. He found moderate risk of reoffense, but not "substantial probability." He also criticized several of the risk factors cited by the state and testified that a "checklist" approach cannot substitute for clinical judgement and interviews. The defense was unsuccessful; the defendant was committed; and the commitment was upheld by the Wisconsin Supreme Court. (In Re Commitment of Frank Curiel [State v. Curiel] 597 N.W. 2d 697 [Wisconsin, 1999])

Incidentally, one could argue that the important issues of diagnosis, treatability (or lack thereof), and assessment of past medical and psychiatric history might be more completely addressed by an experienced psychiatrist rather than a nonmedical clinician (such as a psychologist). Such a position could bolster a position of inadequate evaluation by the State, assuming the defense possessed some rebutting evidence of its own.

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Forced Medication to Restore Trial Competence

Washington, DC, judge Emmet Sullivan has again ruled in favor of the prosecution and held that Russell Weston, who killed two police officers in the US Capitol Building in 1998, may legally be medicated against his will. That treatment would likely make him competent to stand trial in a matter which could result in the death penalty. Weston had been found incompetent to stand trial because of acute psychosis caused by a longstanding diagnosis of schizophrenia.

Antipsychotic medications usually alleviate such psychosis, and are routinely prescribed and administered to restore trial competency. The process is generally accepted, but has not been considered by the US Supreme Court. The Supreme Court has ruled that convicted defendants cannot be forcibly medicated solely to make them competent for execution. The forced-medication order has been stayed pending defense appeal, largely on grounds that a trial could lead to the death penalty.

The State's interest in bringing defendants to trial is not the only support for forced treatment in situations such as this. The defense's wish to protect the defendant from conviction may be more than offset by the fact that a trial gives a formerly incompetent defendant an opportunity to pursue an insanity defense and a chance to be acquitted outright.

The defendant's clinical interest should also be considered. Psychosis is not a benign state. It robs the person of independence and freedom of thought, is often very uncomfortable, can cause danger to the patient and/or others, and can deteriorate to a point at which physical health is threatened. These factors are well understood by psychiatrists, and were mentioned in Judge Sullivan's March, 2001, ruling which stated in part that failing to medicate Weston would promote "simply ... warehousing (him) in a psychotic state."

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Two U.S. Supreme Court Decisions on ADA

Two Americans with Disabilities Act (ADA) cases relevant to mental health or mental retardation were recently decided by the U.S. Supreme Court. In one, Sutton & Hinton v. United Air Lines, the question was related to eyesight but the Court's conclusions reach well into other fields. The Court said that neither of two traditional arbiters of ADA issues (the Equal Employment Opportunity Commission and the Department of Justice) was authorized to define "disability," and held that "... A disability exists only where an impairment 'substantially limits' a major life activity, not where it 'might,' 'could,' or 'would' be substantially limiting if mitigating measures were not taken." The Court said that when medication or some other measure corrects a physical or mental impairment, then the person does not have an impairment which meets the "substantially limits" test. Both the EEOC and DOJ had previously issued guidelines, now made obsolete, in which mitigating devices or medications were not to be considered in determining disability.

In Olmstead v. L.C., the Court ruled that, under Title I of ADA, the states must provide community alternatives to institutional care (in this case state mental hospitals or institutions facilities for persons with mental retardation) when (a) treatment professionals have determined that community placement is appropriate, (b) transfer to the community is not opposed by the affected person, and (c) the placement can be reasonably accommodated. The last requirement was meant to address fiscal constraints, and to keep a level of "reasonableness" in the range of services mandated and the administration of those services. The Court appeared to agree with an amicus brief by the American Psychiatric Association which warned against a mandate for complete deinstitutionalization.

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Informing Patients about Possible Association Between Accutane(R) and Depression, Suicide

Correlation doesn't prove causation, but the U.S. Food and Drug Administration (FDA) is concerned about 84 suicides and over 2000 other significant psychiatric adverse events reportedly associated with Accutane(R) (isotretinoin) between 1982 and 2001. The manufacturer, Roche Laboratories, Inc., recently introduced consumer-oriented alerts to be distributed to patients by their physicians and pharmacists as part of an FDA mandate to publicize what appears to be a small but measurable risk of severe depression. A consent form with adverse event information, including the risk of depression and (rarely) suicide, is to be completed by patients before the drug is dispensed.

Millions of patients have taken Accutane(R); depression per se is not an absolute contraindication. Its market is largely adolescents, and adolescents have a roughly 5-8% baseline incidence of clinically significant depression. The drug is most often prescribed by family physicians, dermatologists, and pediatricians, who should monitor patients during treatment and after discontinuing the drug, then treat or refer them if complications arise.

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Liptzin Malpractice Verdict Reversed

The 1997 North Carolina jury verdict against psychiatrist Myron Liptzin, M.D., in a case brought by a former patient who shot killed two people was overturned by a state appeals court. The case was notable for several things:

• The plaintiff, Wendell Williamson, was a law student who sued after being found not guilty by reason of insanity.
• The jury did not apportion any responsibility to Williamson, in spite of substantial evidence that he knowingly failed to comply with treatment recommendations, stopped his medications, declined follow-up, and appeared to be aware of the consequences therein.
• The families of the people he killed did not support the lawsuit against Dr. Liptzin.
• Any causative link between Dr. Liptzin's allegedly negligent actions and the shootings appeared vague and indirect at best.
• Had the verdict withstood appeal, the precedent would have been at significant variance with the way courts have long perceived "wrongful death" in malpractice litigation.

Careful examination of Dr. Liptzin's treatment of Williamson suggests that he met or exceeded the standard of care. At the end of the school year, he provided medications and made appropriate follow-up recommendations for Williamson, who was returning home for the summer. Williamson did not avail himself of either. The shootings took place over a year after his last visit to Dr. Liptzin.

The appeals court apparently did not address the jury's finding per se, since that was a matter of fact, but said that the judge erred in not dismissing the case earlier, at the summary judgement hearing, when the plaintiff did not present convincing evidence of a causative link between any negligence and the temporally-distant shooting. In reversing the verdict, the appellate panel noted that even the plaintiff's own experts opined that although some clinical deterioration was foreseeable, the violent act was not predictable with any certainty.

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Can Expert Witnesses Be Sued?

Malpractice lawsuit worries are one small factor that drives some good clinicians toward forensic work. Expert consultants and witnesses usually don't form doctor-patient relationships with the people they evaluate, so the threat of malpractice allegations is lessened. One should not forget, however, one's responsibility to perform the forensic service competently and diligently.

Some time ago, I worked with attorneys who were defending a clinician whose case was, in my view, somewhat weak. After the case settled, my remaining fees were slow in coming, so I called one of the lawyers. He politely told me that the defendant (his client) had instructed that I not be paid, and that the clinician was thinking of suing me because my deposition had not supported his case strongly enough. The law firm -- still pretty nice folks -- soon paid my bill from a non-client account, the problem blew over, and my blood pressure returned to normal, but the old question of expert witness liability had resurfaced.

While most jurisdictions recognize either limited or complete immunity for expert witnesses, based largely on the premise that fear of suit would compromise honesty and objectivity, there are situations in which failure to fulfill one's contract or duty to a lawyer or litigant has been allowed as a cause of action. In a 2000 Connecticut case, the judge in Pollock v. Panjabi refused to dismiss a lawsuit against a biomechanics expert accused of failing to provide scientifically supportable conclusions (which had barred him from testifying for the plaintiff in a Canadian court). In 1992, the Missouri Supreme Court in Murphy v. A.A. Matthews held that an engineering firm retained by a litigant could be sued because the state's witness immunity did not cover negligence in providing agreed-upon services.

These cases are exceptions, and none refers to a mental health professional, but the principle bears scrutiny. Expert consultants should make it clear that they are retained by the attorney rather than the litigant, that their duty includes being honest and objective in their work, and that their findings may or may not support the litigant's cause. Compensation should come from (or through) the attorney, not the litigant, and be based on time and expenses (not on the outcome of the case).

(Partial source: C.P. Ewing, Judicial Notebook: Suing your own expert witness: competing policies, uncertain law. Monitor on Psychology 32(1), January, 2001, American Psychological Association.)

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Tarasoff-Like Warnings Do Not Waive Privilege in New York

17 years ago, plastic surgeon Dr. Robert Bierenbaum allowed his psychiatrist to notify his wife that she might be in danger from his (Bierenbaum's) threats of violence. Two years later, she disappeared. Although no body has been found, police suspected Bierenbaum and last year prosecutors finally filed murder charges. In an effort to gain access to his psychiatric records, prosecutors argued that his 1983 assent to the Tarasoff-like warning was tantamount to waiving privilege.

Not so, said the judge in Manhattan Criminal Court September 12, 2000. The judge was troubled by the earlier potential for violence (corroborated by two other psychiatrists) but likened the strength of psychiatrist-patient privilege to that between lawyer and client. Various amicus briefs supported the finding on grounds that, among other arguments, (1) any danger was now moot; (2) the privilege was not the psychiatrist's to waive; (3) there was no indication that then-patient Bierenbaum chose to waive his privilege except to allow his wife to be warned; and (4) forcing disclosure would discourage other patients from seeking out psychiatrists or therapists and communicating honestly with them. (People of the State of New York vs. Robert Bierenbaum, Indictment No. 8295-99)

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Doctors' Handwriting No Joke

It's finally happened. A cardiologist's allegedly illegible handwriting on a prescription was blamed for the death of a patient after a pharmacist filled it with the wrong medicine. Ramachandra Kolluru, M.D., and the pharmacist, who apparently should have requested clarification, were assessed $450,000 by a jury in Odessa, Texas (citation not available). Few psychiatric medications are likely to cause fatalities in themselves; however, a patient might be severely damaged if he or she received a powerful nonpsychiatric drug instead of his psychiatric one, or was given a psychiatric drug in place of medication needed for a serious medical condition. Let's be careful out there.

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No Duty to Warn/Protect in Texas?

In Thaper v. Zezulka (994 SW 2d 635 [TEX, 1999]), Texas moved further toward the minority of states that do not recognize a duty of mental health professionals to protect third parties. Several Texas Supreme Court decisions had weakened any premise of such a duty, and in 1999 the Texas Court decided Thaper v. Zezulka. In reading this vignette, please note that the concepts of duty to warn third parties and duty to protect them have been confused ever since they were treated separately by the California Supreme Court in its two decisions in Tarasoff v. Regents of the University of California.

In Thaper, a Mr. Lilly, who was a Viet Nam veteran with post-traumatic stress disorder, was seen by Dr. Thaper. He was readmitted to a psychiatric hospital with psychotic symptoms, apparently the result of not taking his medications as prescribed. While in the hospital. Lilly confided in Dr. Thaper that he was going to kill his stepfather. Dr. Thaper did not notify the stepfather or any family member. A month after discharge, Lilly killed his stepfather.

The Texas Supreme Court heard Dr. Thaper' s appeal of a lower court finding against him, and found in the doctor's favor. The Court specified that "... because of the Texas Legislature's stated policy (of confidentiality), we decline to impose a common-law duty on mental health professionals to warn third parties of their patients' threats" (parenthetical wording mine).

As an aside, clinicians often confuse mandatory reporting laws with those which are permissive (i.e., allow one to report or warn but do not require it). Their fears of breach of privilege sometimes contribute to the premise that if something (such as reporting potential danger) is not required, it cannot be done at all. Confidentiality is a crucial aspect of both mental health care and patient access to that care; however, safety, and arguably good care, occasionally encourages discussions with third parties without the patient's consent. In almost all instances, this can be done within applicable confidentiality laws. Indeed, a great many initial patient refusals to authorize outside discussions can be reversed with further efforts to obtain consent.

Finally, it may be noted that many means -- separate from warning -- of discharging a duty to protect third parties, to the extent that any duty exists, do not infringe on patient privilege; these apparently were not addressed by the Court.

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Just When You Thought It Was Safe to Declare Yourself a Vegan

There's nothing forensic about this (unless you want to sue your local ashram), but I thought website visitors might want to know about a finding of the Honolulu-Asian Aging Study (as reported in Psychiatric News October 20, 2000). It seems a study of 3,734 subjects suggests a 2.5-fold increase in Alzheimer's disease among those who ate the most tofu, along with poorer concentration and smaller brain size. Former NIH researcher Lon White, M.D., said he tried different statistical techniques "in an effort to attribute the difference to other factors, but the tofu finding would not go away."

Watch for the study results in a professional journal soon (no doubt highlighted by the American Beef Council).

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Tires and Forensic Psychiatry: Daubert and Rule 702 Clarified

A case of tire failure led the U.S. Supreme Court to clarify trial judges' obligation under Daubert v. Merrell Dow Pharmaceuticals, Inc. (that's the case that criticized "junk science" and dumped the so-called Frye test). The Court's 1999 decision in Kumho Tire Company, Ltd. v. Carmichael said that the judge's obligation under Rule 702 extends beyond the specific wording in Daubert. While the Daubert circumstances cited scientific testimony in particular, Rule 702 actually refers to the broader concept of "knowledge." Trial court judges thus must, with some latitude, ensure the reliability and relevance of all expert testimony, not just that which purports to use "science."

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Children Visiting Pedophiles in Prison

I rarely refer to children's issues on this website, since they are often outside my expertise. Nevertheless, a psychologist recently asked my opinion about a case in which an incarcerated pedophilic rapist had sued his ex-wife for visits with his pre-pubertal children. The e-mail exchange is interesting; some minor or identifying details have been changed:

"I'm looking for research regarding young children (5-11 years old) visiting their fathers in prison. I'm a licensed psychologist ... preparing a court-ordered evaluation for siblings whose father is serving time for the attempted rape of a pre-pubertal female. They have visited him once in prison since 1997, and have maintained contact through monthly letters and phone calls.

"The father is taking the mother to court for visitation rights. The parents have divorced and the mother is very upset about having to take the children to prison to visit their father. Following the previous visit the then-7-year-old had nightmares for a month. However, the children report they miss their father, and say they would like to visit him if it wasn't so stressful for their mother.

"I have seen letters this man has written to his ex-wife, which are very inappropriate. He blames her for his incarceration, uses obscene language in the letters, and shows no appreciation for the monthly letters she helps the children write. The children, male and female all under 11 years old, are emotionally stable. They do not know why their father is in prison.

"____, Ph.D., New York."

This query brought at least two things to mind:

(1) As a general matter, young children visiting fathers under the circumstances described does more harm than good. I can't think of any ‘good' for the children.

(2) The children's welfare is a higher priority than the father's (or any adult's) wishes.

I can think of no reason to expose such children to a pedophilic rapist who, if he is accurately described, is neither repentant nor remorseful, disregards children's welfare, is crude and obscene, and avoids responsibility for what he is and what he has done. The children's missing their father is a topic for emotional support and counseling, but I believe it is irrelevant to the Court's decision about visitation. Parents and courts often must make decisions which conflict with children's wishes in order to help or protect them.

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Cause of Action in Therapist-Patient (Doctor-Patient) Sex
(with comments about letters of reference)

Malpractice insurance carriers often deal with allegations of therapist-patient sex by simply saying that such behavior isn't related to clinical activity, and thus isn't covered. Some carriers agree to defend the client but not pay any judgment, some "carve out" such cases for a much lower level of coverage, and some simply deny that sexual activity is a covered action (especially in states in which sex with patients is against the law).

There are ways to connect clinical treatment with clinician sexual behavior. The most common seems to be by alleging "mishandling of the transference" and countertransference issues. Other clinically-related causes of action against the therapist, many of which are difficult for attorneys to develop, include failure to recognize the higher probability of sexualization and sexual activity involved in certain diagnoses and patient types, failure to recognize and deal with the greater level of intimacy involved in some forms of treatment, failure to recognize one's own clinical limitations (similar, but not identical, to countertransference causes and applicable particularly to less experienced therapists), failure to disclose potential adverse effects of treatment, and failure to refer (or otherwise stop treatment, alter treatment, or seek consultation) once the problem has become apparent.

Plaintiffs may cite a number of other, nonclinical, causes of action in order to get to recoverable assets or insurance coverage. In an era in which more and more psychiatrists and other therapists are associated with an employer or clinical group, respondeat superior is sometimes rebutted by the clinician's discretionary flexibility, especially in states that expand such discretion beyond physicians to nurses, counselors, and the like. Nevertheless, sex with patients is a sensitive jury issue and plaintiffs may allege failure to credential the clinician properly, to look into his or her background, to limit referrals, to provide a supervised probation period, or to bring reportable information to the attention of licensing or protective agencies (e.g., reporting impaired colleagues to a licensing board or medical society). Cases involving trainees almost always name the training program and supervisor(s), alleging failure to supervise properly and, when there is evidence of past problems of any kind (not just sexual), failure to recognize them, carefully consider rehabilitation or dismissal options in light of patient safety, and (if he or she is not dismissed) monitor the trainee's progress.

In my view, there no need to supervise, or place on clinical probation, a routine therapist who has shown reasonable training and experience elsewhere; however, if there is evidence of a past problem or lack of experience, the organization should document reasonable efforts to protect patients (e.g., with further background checks, monitoring, probation, and/or limitations on types of patients referred, as appropriate). Larger groups and employers may have a duty to develop specific hiring, credentialing, quality assurance or improvement, peer review, and incident-handling protocols to cover such eventualities.

If an employer or practice group knows, or reasonably should know, that one of its clinicians or trainees is like to have a problem providing safe and ethical treatment, then it probably has a duty to take some action to protect patients. This does not generally extend, contrary to some plaintiffs' allegations, to routine detailed monitoring of all clinicians in a group, or to extensive targeted peer review in the absence of evidence of problems (particularly when the organization is not a hospital or other agency usually associated with peer review requirements).

Requests for employment or credentialing references should be carefully requested and scrutinized, since a cause of action may extend to prior employers or associates as well. If a letter of reference, for example, omits information which might reasonably have caused the receiving organization to be concerned about a clinician or trainee, then a plaintiff (or a defendant who wishes to deflect responsibility) may allege that the writer knowingly exposed future patients to unsafe or incompetent care. I prefer a standardized reference-request format which forces the reference-giver to state that he or she has made good-faith disclosure of every known potential problem area. The form should refer specifically to some things, but also have a broad question such as "Do you know of anything in this clinician's background, training, or experience which might reasonably suggest concerns about safe, competent, and ethical patient care?"

People or organizations that refuse to provide detailed references (e.g., those who say only that "Dr. X was employed as staff psychiatrist from 1986 to 1995 and left in good standing") should be reminded of their responsibility to future patients and employers. Conversely, such useless references should not be a sufficient basis for accepting clinical employees or associates. The receiving organization should not tolerate significant omissions in returned reference forms. I know of one multispecialty group which, when it gets references which omit answers to its standardized questions, tells the applicant that he or she must get the previous employer to answer all the questions or seek a position elsewhere.

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Competence to Consent and Sexual Harassment

Three recent harassment lawsuits with which I have been associated as a psychiatric expert have pitted women with college degrees, lots of life experience, and $60-100,000 annual salaries against managers and employers who are alleged to have harassed them (or not adequately protected them from harassment). In each case, one of the most prominent issues is apparently unwanted advances, leading to allegations of personal and family emotional damage. The allegations, however, often refer to the plaintiff’s voluntary, arguably social, associations with the defendant outside work, going to lunch, getting into his car for a long drive, even visiting his hotel room late at night.

One of the most common psychiatric motivations to sue in such cases is the wish to view oneself as a good person. When we do something we believe is wrong, it is tempting to find some reason, perhaps any reason, not to blame ourselves. After all, if it is someone else’s fault, we haven’t really sinned.

Sometimes this doesn’t mean actually lying. People, and plaintiffs, often have an uncanny ability to alter or forget what they were feeling and doing just a few hours before when it deeply assaults their view of themselves as moral beings. Married folks who can’t bear to see themselves having an affair, young women who can’t live with the knowledge that they did something naughty the night before, and employees who can’t bear to see themselves as thieves, may find it easy to say -- and believe to themselves -- that they were coerced, drugged, or so badly paid that it was O.K. to take the petty cash or make a few personal long distance calls at the company’s expense.

The topic of "differential power" was raised in a fourth case. A nonprofessional employee complained of harassment after two months of an apparently consensual tryst between her and a health professional employed by the same large organization. The woman was not supervised by the professional, and was not in a position to be either rewarded or punished by him. There was no good evidence of harassment, and considerable suggestion of mutual consent. In the employer’s attempt to terminate the professional -- perhaps to protect itself from a suit by the female employee -- the organization alleged that a "power differential" is an always-present barrier to valid consent for any sexual relationship between professionals and other employees, regardless of the lack of employment relationship between them.

Such a sweeping view strikes me as a ridiculous use of "political correctness" to justify attempts at wrongful termination. First, it insults the judgment, intelligence, and even competence of women who don’t have an advanced college degree. Second, if this theory were broadly accepted, no doctor, therapist, lawyer, or other professional in the U.S. could ever date anyone from even the largest workplace (except another professional). Third, and perhaps most important, it leaves no room for personal responsibility.

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Hiring & Credentialing Responsibilities for Clinics, Hospitals and Treatment Programs

Plaintiffs’ malpractice and other negligence actions involving clinical practitioners often allege a duty of a clinical entity (which may or may not be an employer) to use care in hiring, assigning, credentialing, and/or privileging the doctor, therapist, counselor, nurse, or aide (or, for that matter, nonclinical employee). Employers and credentialing bodies know that the Americans with Disabilities Act (ADA) makes it more difficult than in the past to exclude people with past mental illness of substance abuse, even from patient care roles. Current campaigns against stigmatization of the mentally ill and strict confidentiality of past psychiatric care (especially substance abuse treatment) add to the confusion about when questionable medical or mental health professionals can and should be prevented from working with patients.

Many employers deal with the EEOC and courts’ unpredictability in resolving ADA claims by simply keeping people on the payroll; however, hospitals and similar entities are caught between the possibility of liability from unintended discrimination and their responsibility to patients. Some, like small residential programs or local mental health centers, can ill afford the expensive litigation which can arise no matter how hard one tries to do the right thing:

A therapist being treated for significant emotional problems herself (apparently clinical depression and bulimia) was allowed to continue working with patients in a psychiatric residential treatment center until the center discovered difficulty concentrating on the job, apparent preoccupation with personal problems, and overdoses of sleeping pills and prescribed medications. Although her social work therapist and psychiatrist said that she was able to continue her duties, including dispensing medications, the employer believed that their statements merely reflected what the employee had told them and were not reliable enough to risk returning her to work. The center’s safety committee determined that she could not safely administer medication, which was an essential part of her job. The Equal Employment Opportunity Commission (EEOC) sued for reinstatement, alleging discrimination and arguing that the suicide attempts were part of an ADA-qualified disability. The Federal district court rejected the EEOC position on several grounds, finding that the center was reasonable in its termination. (EEOC v Amego, Inc., 110 F.3d 135, 1st circuit, 1997, cited and summarized in Forensic Psychiatry Echo)

I would rather help defend an honest attempt at employee termination or revocation of professional privileges than alleged malpractice or sexual abuse by a clinician whom the facility knew (or should have known) was a risk to patients. One should expect an appropriate investigation process before hiring or accepting a new clinician or employee, reasonable consideration of its findings, credentialing and privileging by a qualified professional body, re-credentialing at annual or biennial intervals, and internal processes to monitor both the care and the individual. One should also expect that problems, when found, will be dealt with in a manner that protects patients first, then the rights of the professional.

This does not mean that patient safety must be absolutely assured before the person is allowed to practice. It is impossible to eliminate all risk to patients from impaired or unscrupulous practitioners. It is also unreasonable to expect some "litmus test" to ferret out all bad or unstable professionals and never catch good ones in the net. In recent years I have reviewed and/or evaluated several cases in which doctors had known severe mental illness or substance abuse, therapists had known criminal or substance abuse backgrounds, or clinicians simply were not competent to practice. Some caused -- or allegedly caused -- great damage to patients. Others are or were suing to keep a job or professional license. Still others were recovering from treatable problems and working to re-establish trust and clinical competence.

In a case currently being litigated, a substance abuse counselor allegedly took advantage of his position to seduce, then extort, a patient in a drug rehabilitation program. The counselor-employee had a felony record which was available to both the employer and his state licensing body, which appears to have been either ignored or never sought. In another case, a physician with a history of substance abuse and sexual impropriety with patients failed to adhere to treatment and monitoring requirements set by a state licensing agency. He was subsequently lost his hospital privileges on grounds that he could no longer be closely monitored. When he petitioned for reinstatement based on lack of due process, ADA, and other theories, the hospitals vigorously opposed him and he finally dropped his complaint. His license was revoked a few months later. There are also a number of "success stories." For example, an emergency room physician who had admitted stealing and abusing narcotics completed a treatment program, re-trained in another specialty less likely to expose him to narcotics, and continues substance abuse follow-up. After several years of closely-monitored practice, he now has an unrestricted license and is enjoying a productive career.

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Forensic Consultation in Other States

Like many clinical and forensic professionals, I am occasionally asked to interview or evaluate someone in a state in which I am not licensed. Sometimes it is the context of a special clinical consultation; more often, an attorney or court requests an expert opinion in a civil or criminal case. Many forensic consultations don't require an interview (or, if they do, the person travels to my office rather than the other way around). In most criminal cases, however, and some civil ones, it is necessary to talk with a litigant or witness on-site.

The purpose of such interviews is not clinical, and does not lead directly to any clinical purpose (such as treatment). No "doctor-patient" relationship is formed; indeed, the absence of such a relationship is important to the expert's objectivity and credibility (see another vignette on this website). The purpose is also quite different from treatment "certification" or payer roles such as those of utilization reviewers.

Although the issue has never come up in my clinical or forensic consultations around the country, the American Psychiatric Association (APA) recently raised a question about local (state) licensure in a context of forensic psychiatry being "the practice of medicine." (It is important to add that this entire discussion assumes that the expert consultant is fully licensed to practice medicine in his or her home state.) Both the APA and the American Medical Association generally support the notion that forensic and other consultation activities are part of the practice of medicine, and each is engaged in activities to further define and clarify the semantics. For them, forensic evaluations are a small part of the overall "consultation" issue.

Dr. Robert Simon and attorney Daniel Shuman address similar concerns, and offer some remedies, in an article in the Journal of the American Academy of Psychiatry and the Law (Vol. 27, No. 1, 1999, pp.75-82). They note the possibility -- seemingly remote at present but not without precedent in a few states -- of challenges to one's testimony, charges of practicing without a license, and lack of malpractice insurance coverage for the expert. THey also point out that forensic activities such as jury consultation, strategy consultation, witness preparation, and testimony itself is unlikely to be challenged; review of records for the purpose of coming to a medical or psychological conclusion may be less clear (though not a problem in my opinion), and face-to-face evaluation is the primary sticking point for those who believe a license is necessary (including testimony based on such evaluations if they require a license).

Courts and states generally have no license-related criticism when outside experts merely work with lawyers or courts without interviews (assuming they meet other relevant qualifications). The issue here is forensic interviews and face-to-face evaluations. When such interviews are needed, some states simply allow them without limitation; some allow them when the visiting expert is acting at the request of a locally-licensed physician; some (particularly the smaller states) have reciprocity with adjoining states; and some may not allow them at all. My view, shared by many (but not all) colleagues, attorneys, and state medical licensing boards, is that the interests of justice are best served when interviews solely for forensic purposes do not require local licensure, so long as the expert is properly qualified and licensed in another state.

State Survey. My office recently sent a short mail survey to all U.S. state medical licensing agencies asking whether or not a psychiatrist licensed in another state must also be licensed in the surveyed state before performing a purely forensic interview or examination. The survey did not refer to other forensic activities, such as record review, attorney consultation, or testimony itself. Of the 45 states responding, 21 said that no additional "local" license would be required; 6 gave unclear responses; and 18 said a local license would generally be required. At least 7 of the 18 states that generally require a local license accept out-of-state licenses when the work is at the behest of an in-state doctor (e.g., a physician-requested consultation). States' definitions of "medical practice" figured heavily in many responses. No pattern of state size (area), population density, or geographic location was discerned. These comments are not to be construed as "official" for any state, nor necessarily an accurate reflection of any official state medical board position.

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Electroconvulsive Therapy (ECT) and the Standard of Care

A recent issue of the American College of Psychiatrists’ Psychiatric Update focuses on electroconvulsive therapy (ECT, sometimes erroneously called "shock therapy"). In it medical school professors from Columbia, Duke, and South Carolina discuss the overwhelming evidence that ECT is safe and effective for certain severe psychiatric disorders. This is a topic close to my heart, since ECT is not only one of the best and safest treatments in medicine but is also one of the most controversial and misunderstood. My own studies of several thousand patients and treatments (including a number of psychiatrists and their families) suggest the same conclusions.

American Psychiatric Association clinical practice guidelines recommend ECT in a number of circumstances (severe depression, certain manic states, treatment-refractory schizophreniform psychosis, severe catatonia), as do the treatment protocols found in most psychiatric texts (including my own). The procedure is simple, well tolerated and accepted by most patients who have had it, inexpensive in the long run (often decreasing hospital stay and markedly decreasing illness mortality and morbidity), and can sometimes be done on an outpatient basis.

Nevertheless, it is difficult for patients who are obvious candidates for ECT to find access to it. Public sector hospitals and mental health systems, where the lion’s share of severely and chronically mentally ill people get their care, almost never offered ECT, and only rarely refer patients to private sector psychiatrists who can provide it. It’s not that the doctors don’t know ECT may help (a recent survey of Texas public sector psychiatrists indicated that almost all are aware of its potential benefits), but apparently that public agencies are reluctant to pursue a socially (but not clinically) controversial treatment. Physicians whom I see in psychiatric training programs have been taught about its usefulness, and have watched or done a few treatments in nearby private hospitals, but few have referred their own patients for ECT (or even discussed doing so with their supervisors). ECT is recommended more often in the private sector, and patients referred to one of the 5-10% of psychiatrists who offer it.

In spite of the social controversy surrounding ECT, I know of no case in which a psychiatrist has been successfully sued for using it. Nevertheless, it remains one of the most under used treatments in psychiatry. Indeed, I suspect causes of action will soon arise which are based on tragic treatment outcomes, such as suicide, which might have been prevented with ECT.

(For more information about the Psychiatric Update Series, an audiotape CME program, contact Medical Information Services, 800-847-0088.)

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Electroconvulsive Therapy (ECT) in Psychiatrists and Their Families

Malpractice cases involving the standard of care for severely depressed patients do not often refer to electroconvulsive therapy (ECT). ECT still struggles for broad social acceptance, in spite of its established record in clinical practice and the professional literature; even successful treatment of well-known authors, entertainers, concert musicians, and politicians has not stilled the undeserved controversy. Doctors may thus inappropriately omit or downplay consideration of ECT in their seriously depressed and/or suicidal patients.

Some social and political opponents of ECT (or of psychiatry per se) allege that psychiatrists never prescribe ECT for themselves or their families. A simple survey of U.S. psychiatrists was undertaken to challenge that allegation, and sought clinicians with personal or family experience as ECT patients. A letter inviting first-hand accounts of treatment was published in a commonly-read psychiatric publication (Psychiatric News) and mailed to a few American Psychiatric Association district branches.

Forty-two (42) psychiatrists responded. Ten practicing psychiatrists had received at least one ECT series, 5 during their training years, and one had taken one treatment for personal educational reasons ("to see what my patients were experiencing"). Over 80 series and maintenance courses of ECT were described among 11 psychiatrists, 9 parents, 5 siblings, and 18 other relatives of psychiatrists. Almost all patients had moderate to excellent improvement; no serious adverse effects were reported. Inability to get ECT for depressive relapses years after earlier, positive responses may have contributed to two suicides. Three psychiatrists had published their personal or family experience with ECT in medical journals. It appears that psychiatrists and their families are "consumers" of ECT in much the same way as patients from the general population. An article about the survey was published October 28, 1999, by Medcast Medical News (www.medcast.com). The complete paper is found in the Journal of ECT, 15(3), 1999, pp.207-212.

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"Hired Guns" and Expert Witnesses

Credibility is critical, and "hired gun" accusations anathema, to expert witnesses. Dr. Douglas Mossman recently searched for derogatory references to forensic experts in court transcripts.* He found 45 references to testifying psychiatrists or psychologists as "hired guns," "whores," or "prostitutes," most in criminal matters and most by prosecutors. Appellate judges generally disapproved of such remarks, but did not reverse convictions because of them, often citing juries' ability to sort out testimony for themselves in the adversarial environment.

Ethical forensic psychiatrists work hard to make juries (and sometimes litigants) understand that we aren't like television "experts," that courts often need expert testimony about complex issues, and that honest experts can disagree (though their views may be less divergent than implied by the opposing attorneys). The combination of adequate counsel and trier intuition usually ferrets out dishonest, insincere, or incompetent experts.

If you're a lawyer, don't expect more than honesty, articulately and assertively presented, from your expert. If you're a mental health professional who seeks a forensic career, don't work with an attorney who asks for more.

*Journal of the American Academy of Psychiatry and the Law, 27(3),1999,pp.414-425

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