An Educational Service for Mental Health Clinicians, Forensic Psychiatrists, Forensic Psychologists, Other Forensic Professionals, Attorneys, and Judicial Professionals (Trainees & Students Welcome, Too)
William H. Reid, M.D., M.P.H.
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Note: The material presented herein is greatly summarized or excerpted, and is not to be considered complete or exhaustive. Legal concepts or findings are summarized informally; they reflect the general understanding of Dr. Reid or his associates, and are not necessarily the official positions of any court, litigating party, government, or other body. Comments are welcome, and may be e-mailed to Dr. Reid's office.
Contents and concept copyright © 1998-2008 by William H. Reid, M.D., M.P.H., unless otherwise assigned. Full-text material from the Journal of Psychiatric Practice is copyrighted by Lippincott Williams & Wilkins, and is used with permission.
Current & "Basic" Updates and Full-Text Articles
Penile Plethysmography as an Indicator of Recidivism Probability
Sexual impulses, the ability to control them, and whether or not they have changed are relevant to sentencing for sex offenses, and relevant to treatment and discharge considerations. It 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 in U.S. plethysmography has been modified to meet public sensibilities concerning child pornography and blatantly obscene photographs. 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; a few allow it to be introduced at sentencing or when discharge or lessened restrictions are being considered for defendants.
The Virginia State Supreme Court recently decided against allowing penile plethysmography to be relied upon for sentencing a teenager convicted of forcible sodomy. Although the presentence report accurately stated that "deviant sexual arousal" is an important factor in sex crimes and recidivism, and a lower court had accepted plethysmography as something that should be allowed in a sentencing hearing, the State Supreme Court applied trial court criteria to the sentencing process and opined that the "Spencer" test -- Virginia's version of the Daubert criteria for scientific merit of evidence -- applied. The defendant's life sentence was affirmed. (Billips v. Commonwealth, 652 S.E.2d 99 [ Va. 2007], as reported in e-DMHL for February, 2008).
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New Jail and Prison Health Services Standards Coming
The National Commission on Correctional Health Care (NCCHC) will soon release an ambitious revision of its Standards for Health Services for jails and prisons. The NCCHC Standards are widely recognized by correctional communities, medical providers, and courts as the benchmark for correctional health care delivery, and often establish a standard of care for jails and prisons. They guide NCCHC surveyors in the accreditation process. Compliance with the 2008 update will be required for NCCHC certification beginning in 2009.
Specific mental health standards (NCCHC Standards for Mental Health Services in Correctional Facilities) will also be introduced, along with a voluntary accreditation program which will begin in late 2008. For more information, visit the Resources page at www.ncchc.org.
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Sanity Evaluations and Criminal Responsibility
"Why do the courts get so many dangerous, violent people off using the insanity defense? If someone kills somebody, shouldn't he or she pay like anyone else? Is the insanity defense really necessary? Every big case I see on television and in the papers ends up as a battle of the shrinks, and some axe murderer goes to some cushy hospital instead of the prison he deserves."
J.Q. Public
I hear the above refrain a lot, but, contrary to popular belief, the insanity defense is rarely used; it's tough to win; the Constitution probably requires that it be available to qualified defendants, and defendants found not guilty by reason of insanity (NGRI, NGI, NRRI) often spend more time in locked mental hospitals than they would have spent incarcerated had they been found guilty.
For a pretty complete discussion of the insanity defense and how forensic psychiatrists and psychologists should evaluate defendants (for either the prosecution or the defense), go to Dr. Reid's article in Applied Psychology in Criminal Justice at www.apcj.org/VolumeII_IssueIII.htm. Access to this and other issues of this online journal is free (at this writing).
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No Duty to Warn Third Parties in Texas; Premission vs. Duty to Protect/Warn
It's fairly old news, but I'm often asked about it. Here's a post to clarify the current status of (1) duty to protect or warn a third party from violence by a patient and (2) whether one can notify third parties, in good faith, of potentially dangerous patients. Note that this information applies only in Texas, since such statutes and caselaw are limited by jurisdiction. (Thanks to Chris Lopez, counsel for the Texas Department of State Health Services, for providing the judgement.)
In 1999, the Texas Supreme Court decided Thapar v. Zezulka, an appeal by Dr. Thapar of a judgement against her for negligently failing to warn Henry Zezulka concerning his stepson's threats to kill him. The Court cited both Texas law (which, after the Tarasoff case in California, established strong confidentiality laws for Texas mental health professionals) and relevant Texas case law in declining to adopt a common-law duty for pschiatrists to warn third parties in Texas. Much of the logic for that decision arose from the lack of doctor-patient relationship with the third party (the doctor-patient or therapist-patient patient relationship is the foundation for much of the duty a psychiatrist, psychotherapist, or counselor owes to his or her patient). (Thapar v. Zezulka 994 SW2D 635 [1999])
The written decision also touches upon Texas case law governing whether or not a psychiatrist or other mental health professional is protected from liability for trying to warn others of such threats or dangers. The answer is a qualified "no," but psychiatrists are legally permitted to notify law enforcement agencies of their good-faith concerns about imminent danger to others in ccertain situations. That is different from the law regarding patient confidentiality that generally prohibits notifying other (nonclinical and non-law-enforcement) third parties (such as friends, coworkers, or family), but it's not a guarantee against liability for breach of privilege (for example, if the notification is not in good faith).
It is very important to differentiate requirement, prohibition, and permission (often misunderstood in this context). In general, within the exceptions often placed in rules and laws, if it's required, do it. If it's prohibited, don't do it. If it's allowed then you have the option and should use adequate judgement in deciding whether or not to act.
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Terminating Care: Ending the Doctor-Patient Relationship
A brief article in Psychiatric News (September 7, 2007, p. 11) recently touched on some common clinical practice questions: How best can a psychiatrist or other mental health professional stop seeing a patient when termination is indicated? What's fair for the patient? The clinician? Are there ethical guidelines? What if I'm accused of abandonment? Good communication with patients and their families is a big part of managing one's practice, and reduces the risk of lawsuits and complaints, but adhering to a few procedural principles helps, too.
This is not a simple topic. There are lots of reasons for which a clinician may legitimately terminate the doctor-patient relationship (I'll include other clinician-patient relationships in that phrase). Psychiatrists and other clinicians are generally allowed to choose whom they will see or treat. Stopping a patient's care may be indicated if the doctor isn't adequately compensated for his or her services; the patient doesn't (or can't) participate adequately in treatment; the patient is threatening to the clinician; the doctor believes a different clinician would be a better choice for the patient; the doctor retires, moves away, or becomes ill; the doctor is no longer in the patient's insurance network, and for several other reasons. Every situation is unique, but in a few situations, and when the termination of care is improperly done, stopping or decreasing treatment may constitute abandonment, may be unethical, and/or may simply be poor practice.
The doctor-patient relationship is the foundation for much of what we do; it is often (not always) the context in which we practice. It forms the basis for many of the duties we assume when we treat patients, and is the context in which much of our standard of care is created. When that relationship is terminated, most of our duties with regard to the patient are terminated with it. On the other hand, stopping the relationship does not erase actions that took place before the termination, and clinicians sometimes assume that the doctor-patient relationship, and the duties that come with it, is over when it really is not.
The Psychiatric News article, provided by the American Psychiatric Association Office of Healthcare Systems and Financing, makes the point that it is not appropriate to end the treatment relationship during an emergency unless the patient agrees, and/or has been properly transferred to adequate other emergency care (such as inpatient care). I would add that even those conditions may not be sufficient to end the doctor-patient relationship. An emergency situation is rarely the time to leave one's patient.
What if the patient's clinical need is acute, but not an emergency? First, the line between the two is not always clear. The point to remember has more to do with clinical need and continuity of care than with strict definitions of "emergency" or "acute." Advisors often speak of how much notice is reasonable and necessary (often "30 days") or how many names of alternative practitioners should be given (often "three"). That may be sufficient for relatively uncomplicated situations, but it is better to think of termination or transfer of care in terms of a range of acceptable options based on the patient's condition, his or her clinical needs, his or her ability to contact a new doctor or therapist, reasonableness of notice, and the availability of qualified alternative providers.
The fact, and the process, of terminating or transferring care should usually be conveyed to the patient in writing (and carefully documented in the chart). Opinions vary about whether or when to address the reasons with the patient, and whether or not to go into detail about those reasons. Some risk managers suggest a registered letter, with return receipt; many clinicians rely on first-class mail (but document the mailing). In either event, the letter should contain, as appropriate to the individual case, documentation of one's decision and a recitation of time-lines, future care alternatives, options for medical record transfer, and interim measures (such as the doctor's availability for a period of time, emergency availability, and offers to assist in the transfer of care).
Competence to be Executed: Panetti v. Quarterman
In 1986, the U.S. Supreme Court (USSC) ruled that in order for the State to execute a prisoner he must, among other things, understand that he was to be put to death and understand the reason the State was doing so (Ford v. Wainwright 477 US 399 [1986]). In June, 2007, the USSC moved closer to setting "rational understanding" of one's impending execution, not merely rote knowledge, as a requirement for carrying out the death penalty.
Scott Panetti, a man who had been hospitalized several times for severe and chronic mental illness, killed his wife's parents and held his wife and daughter hostage before surrendering to police. Although clearly psychotic while awaiting trial, he was allowed to represent himself and was found guilty of capital murder in 1992. The death sentence was imposed. In spite of many appeals based largely on incompetence of trial counsel, he remained on death row. A few weeks before he was to be executed in 2004, his attorney again appealed, this time on the basis of alleged incompetence to be executed.
Panetti understood that he was to be executed, and understood that the reason was his murder of his inlaws. However, the evidence showed that he had a continuous delusion (a fixed, false belief, counter to common or cultural norms, which is truly accepted by the person as fact) that his death was part of "spiritual warfare" between the "forces of darkness and God and the Angels and the forces of light." He believed the State was going to execute him in order to keep him from preaching the Gospel.
The Court ruled 5-4 that those delusions rendered Panetti incompetent for execution, saying (in the majority opinion) that ". . . (a) prisoner's awareness of the State's rationale for an execution is not the same as a rational understanding of it" (underlining mine). (Panetti v. Quarterman 127 S Ct 2842 [2007])
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Standard of Care for Releasing Jail Inmates and Arrestees from ER
From time to time, I review cases in which someone in police or jail inmate has been taken to an emergency room (emergency department, ER) for evaluation, often to assess psychiatric symptoms or suicide risk. By the time I see the records, the scenario is often one in which the patient was "cleared" for transport/return to jail and sometime later committed suicide. In other evaluation situations, the patient may have experienced complications of heart disease, diabetes, or some other condition after return to custody.
Judith A. Stanley, director of accreditation for the National Commission on Correctional Health Care (NCCHC), summarized the principles of "fit for confinement" examinations in a recent column in the NCCHC quarterly newspaper, Correct Care (Summer, 2007, p. 21, quoted and summarized with NCCHC permission). She referred to the NCCHC Standards for Health Services in Jails, particularly its sections on Access to Care, Screening, and Hospital and Specialty Care.
Jail inmates are entitled to access to care for significant health problems. That care may require transport or transfer to a community hospital or other facility, where the evaluating physician must consider the level of health or mental health services follow-up that is necessary and whether or not those services are available at the jail. ER physicians should have some prior idea of the services the jail can reasonably provide; an educational visit or detailed communication with local correctional facilities is recommended.
Although jails and lockups have substantial duties to monitor inmates whom they suspect (or should suspect) are at clinical or behavioral risk, the ER evaluator should not expect perfection. Unless the jail has 24-hour comprehensive health or mental health services and staff (a rarity except in large correctional systems), the physician may find it helpful to think of return to jail as similar to returning the patient to home care. Is mere observation sufficient, or is direct care and continued evaluation required. Are minimally-trained correctional officers acceptable for the task? What scope of care and observation is available in the infirmary or administrative segregation (often the place where mentally ill inmates end up)?
ER clinicians, including psychiatrists and counselors, often assume that jails have 24-hour health care staff. This may be true in very large systems, but not in most jails and lockups. Although there may be administrative pressure to release the patient, extended observation in the emergency room or a secured inpatient setting is often a better alternative.
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Misunderstanding Confidentiality and Privilege in Civil Commitment and Risk Assessment
Regular readers and professionals who sometimes hear me speak on suicide assessment, gathering collateral history, and similar topics know that I am greatly concerned about misplaced adherance to misunderstood confidentiality rules and laws. I have often argued (after disclaimers about not being a lawyer) with other clinicians who believe that "confidentiality" prevents them from gathering (or from appropriately releasing) important, potentially lifesaving, information from (to) other clinicians, hospitals, and/or family members.
There are many different clinical and administrative scenarios that involve assessing the risks associated with potential danger to oneself or others. Many psychiatrists, psychologists, and other clinical evaluators erroneously believe that some rule or law precludes their asking for, or reasonably sharing, risk-related information that can be vital to adequate diagnosis, treatment, protection from self-harm (such as suicide), or reducing danger to others. Further, some evaluators even fail to understand the very basic importance of collateral information in such situations, and make important admission, detention, commitment, discharge, and level-of-care recommendations or decisions without it.
In the wake of the recent Virginia Tech killings, the Virginia Office of the Inspector General for Mental Health, Mental Retardation, and Substance Abuse Services (OIG) investigated that state's civil commitment proceedings and published several deficiencies and recommendations. I want to focus on only one aspect of that investigation, the finding that psychiatrists in civil commitment roles often misunderstand the law concerning obtaining information from outside sources.
Some 16 months before the shootings, the perpetrator, Cho Seung-Hui, was evaluated for civil commitment based on reports of psychiatric symptoms and apparent dangerousness to himself or others. The OIG investigation revealed that during Cho's initial screening, a "certified prescreener" (LCSW) from the local Community Services Board reviewed evidence of "extremely odd, frightening and/or threatening behavior" and interviewed another Virginia Tech student and the detaining officer before recommending involuntary hospitalization. An initial hospital detention was accomplished, and Cho was evaluated by an "authorized independent examiner" (a licensed clinical psychologist) the next morning. The psychologist stated that he interviewed Cho for 15 minutes and reviewed the prescreener's report and medical records.
The examining psychologist apparently did not obtain any additional collateral information, saying that he rarely found it necessary to obtain collateral information from pertinent people in such an individual's life. Hospital staff reported to the OIG that additional collateral information is not sought before commitment hearings. Based on the brief interview and review, with apparently no corroborating information, the psychologist-examiner determined that Cho did not require involuntary hospitalization. After a hearing which did not include the independent examiner, the prescreener, the detaining officer, or any of the roommates/witnesses, Cho was released with to "outpatient commitment" with no specific treatment plan and no known follow-up to determine whether or not he attended treatment.
During its investigation, the OIG conducted an informal telephone survey of 20 attending psychiatrists at facilities approved to admit detained patients such as Cho. That survey found, in the words of e-Developments in Mental Health Law, "a very inconsistent understanding among them regarding their ability to access collateral information regarding their patient when the patient refuses to authorize this access."
An excellent summary and discussion of the complete report appears in the August issue of e-Developments in Mental Health Law (vol. 26, issue e7, see link at bottom of this page). The report itself (Investigation of April 16, 2007 Critical Incident at Virginia Tech, OIG Report #140-07 [2007]) may be obtained from the Virginia Office of the Inspector General for Mental Health, Mental Retardation and Substance Abuse Services at http://www.oig.virginia.gov/documents/VATechRpt-140.pdf .
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Mental Health Screening and Monitoring in Correctional Facilities:
Suicide, Psychiatric Care, Prison and Jail Safety
A recent article in Correct Care, the newsletter of the National Commission on Correctional Health Care (NCCHC), cites a National Institute of Justice (NIJ) report on screening for psychiatric concerns, including suicidal inmates (Correct Care 21[2], 2007, p.1). The NIJ was spot on in citing two primary screening needs, which I believe are far more problematic in jails than in prisons.
First, suicide risk among inmates. The combination of a population with higher than average prevalence of depression, bipolar disorder, and other serious mental illnesses; unusually stressful environments; and marked life change (usually for the worse) increases general risk, but some of the most dangerous times and settings occur in jails and lockups rather than prisons. (A "lockup" is usually a satellite jail, often in a suburban area, used for temporary holding of arrestees prior to transfer to the main jail).
Jails and lockups, particularly, should provide competent mental health screening, suicide risk assessment, and close monitoring of at-risk inmates. Even inmates who deny suicidal thoughts should be monitored and protected, since their risk can easily be masked and their condition and motivation may quickly change.
Jails are temporary domiciles, rarely offering extensive health or mental health services. Nevertheless, inmates and arrestees come to them in a state of flux, often intoxicated, withdrawing from substances, and/or confused. Their future is uncertain. The surroundings are often noisy and chaotic. Inexperienced inmates (first-time arrestees, first offenders), those caught in humiliating or embarassing acts such as many sex-related crimes (even minor ones), and those with mental illness are routinely frightened, anxious, confused, and/or acutely pessimistic about the future.
Second, providing continuing mental health care, especially psychiatric medications and oversight, for inmates who were receiving it before coming to the correctional facility. This, too, applies more acutely to jails than to prisons, since jails usually lack the organization and clinical facilities found in prisons (the latter being designed for a stable, long-term population). Arrestees may not be asked in detail about their medical/psychiatric histories. Those who are asked may not be capable of giving an accurate history. The jail may not have qualified psychiatric staff. The facility formulary may not include the particular medications the inmate needs. Medical information and prescription drug lists may not be promptly forwarded from prior treatment facilities or physicians.
All of the above issues combine to highlight the requirements, generally viewed as standards of care, that even small community correctional facilities (and certainly urban jails and state and federal prisons) implement adequate screening, monitoring, and treatment procedures; check those procedures regularly for compliance; employ competent screeners for both new and symptomatic inmates; and monitor incidents and trends carefully in order to find and fix reasonably discernable problems.
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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 is 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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New "Basics" (Core Knowledge) Section for Lawyers & Clinicians
There is a new section of this website devoted to basic information about psychiatric expert witnesses and forensic psychiatry itself. The new page contains both brief vignettes and links to full-text articles. Although the new Basic Information page should make it much easier for both attorneys and psychiatrists to find practical, core information, and decrease clutter on this Updates page, the content will be duplicated on this Updates page for the next few weeks.
Click HERE to go to the Basics (Core Knowledge) page.
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False Memory/"Recovered Memory" in a Teenager
Teenagers can be victims of false memory just as young children can. A child psychiatrist friend of mine, Stephen P. Herman, M.D., recently wrote an interesting column for the American Academy of Psychiatry and the Law (AAPL) Newsletter about on a particular case that he described as involving so-called "recovered memories," incompetence and clinical abuse by a treatment facility, and tragic misunderstandings by two child protection agencies. I asked him to summarize the case for Psychiatry and Law Updates:
A 14-year-old boy was hospitalized in a facility that specializes in treating anorexia nervosa. As part of his treatment, he was "helped" to "remember" being sexually abused by his father. He was also diagnosed by facility staff (apparently without being evalulated by a psychologist or psychiatrist) as having Dissociative Identity Disorder (DID, formerly called multiple personality). The boy was encouraged to draw, and the staff interpreted every drawing as confirming the abuse. The young adolescent readily accepted the staff's diagnosis and began talking about his "system" of "alters" (other "personalities"). The staff, some of whom later said they had treated a great many victims of alleged "satanic ritual" abuse, supported and encouraged his discussions and revelations.
The staff notified their state child protective services, who notified their CPS colleagues in the child's home state. Before the dust had cleared, the boy had been placed under CPS control and his father had been ordered out of family home. Child Protective Services determined that two other children still in the home were in danger of being abused.
Multiple forensic evaluations failed to confirm any of the allegations or the diagnosis. The state CPS persisted, however, until court proceedings finally returned custody to the parents. The boy was sent to an experiential, "outward bound" type of program, during which he recanted his statements about abuse and recovered memory of abuse. He showed no evidence of DID.
It goes without saying that some children really do require protection. There is an obvious need for well-funded child protection agencies that rely on well-trained investigators & professionals, carefully-developed procedures, and experience. In situations such as the one just described, however, irresponsible and/or poorly-trained staff of mental health facilities or "therapeutic" boarding schools can do great damage to patients/students and their families by encouraging and supporting false memories. The damage may be compounded by poor agency investigation or premature action, with results that are tragic and costly for everyone concerned.
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A recent article by Amy Lyn Sorrel on amednews.com, an American Medical Association publication, addressed several common questions physicians, including psychiatrists, have about forensic psychiatry, forensic medicine, and expert testimony (www.ama-assn.org/amednews/2007/05/14/prsa0514.htm). Most of her comments are not new to regular readers and forensic professionals, but she raised a number of good points.
- Qualified expert opinion is a very important part of the judicial process of truth-seeking in malpractice and other cases.
- Over the past several years, many states have increased their rules and oversight regarding medical expert witnesses (including psychiatric expert witnesses).
- Much of that increase has been sparked by complaints, justified or not, that (a) plaintiffs' experts in civil matters such as malpractice, often from other states, often either engage in a sort of "drive-by" testimony (my words) against local physicians without having adequate and relevant clinical credentials and/or (b) out-of-state experts take forensic practice away from in-state doctors.
- Such complaints, some new state regulations, and fear of undeserved retribution can make it difficult for one side or the other to find a well-qualified expert who is willing to testify.
- Investigation of complaints about fraudulent expert testimony or perjury often reveal instead a simple disagreement between expert witnesses. Difference of opinion should never be confused with unfair, unethical, or illegal conduct.
- States' efforts to require local licensure in order to allow an expert to testify have largely been unsuccessful. According the the article, only one state (Georgia) has a statute requiring full licensure (I believe there are others). Some, such as South Carolina, have attempted to require a temporary license. Sorrel reported that "(t)he South Carolina Supreme Court suspended their licensing statute, saying it interferes with the judicial process." Like attorney Michael Sacopulos, one of Ms. Sorrel’s sources, I am unaware of any court decision that has upheld a licensing requirement for testimony itself. (If you know of one, please email the citation -- not just an anecdote -- to me.)
- The Federation of State Medical Boards (FSMB), the advisory umbrella organization for state medical licensing boards, considers fraudulent testimony unprofessional conduct. (Physicians can expect their state medical licensing agencies to agree.)
Credibility is the foundation of psychiatric expert testimony and forensic work in other other fields. Judicious regulation, forensic experience, working with good lawyers, solid qualifications, scrupulous ethics, and openness to peer review all help protect respectable experts from being accused of professional impropriety, and from contributing to unfair judgements and case resolutions.
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Antidepressants and Suicide Risk in Children and Adolescents
There is more research supporting the safety and effectiveness of second-generation antidepressants (selective serotonin reuptake inibitors [SSRIs, such as fluoxetine/Prozax®, quetiapine/Zoloft®, and paroxetine/Paxil®], nefazodone/Serzone®, venlafaxine/Effexor®, and mirtazapine/Remeron®) in children and adolescents.
Bridge et al. recently published a review of 27 clinical trials of antidepressants prescribed to thousands of patients up to 18 years old with significant depression and anxiety disorders. All studies were randomized and placebo controlled. Other sources of the author’s data included regulatory agency reports and clinical trial registries.
The authors concluded that "(r)elative to placebo, antidepressants are efficacious for pediatric MDD, OCD, and non-OCD anxiety disorders, although the effects are strongest in non-OCD anxiety disorders, intermediate in OCD, and more modest in MDD. Benefits of antidepressants appear to be much greater than risks from suicidal ideation/suicide attempt across indications, although comparison of benefit to risk varies as a function of indication, age, chronicity, and study conditions" (from the published abstract). "MDD" refers to major depressive disorder; "OCD" is obsessive-compulsive disorder.
These findings should increase the call from clinicians and researchers for the U.S. Food and Drug Administration (FDA) to modify the warnings that were recently placed in package inserts for these medications, mitigate clinical concern about suicide risk allegedly related to prescribing them, and provide important information to lawyers and courts currently engaged in related malpractice litigation. The work is published in the Journal of the American Medical Association (JAMA), volume 297, pages 1683-1696 (2007).
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The Bureau of Justice Statistics recently released a report on malpractice claims resolved in seven states (FL, IL, ME, MA, MO, NV, and TX) between 2000 an 2004. The states represented are those that require malpractice carrier data on closed claims to be submitted to a government agency. These data include all medical and surgical specialties, not just psychiatric malpractice claims or those involving other mental health professionals. Note that the information below does not address the many claims which are unsuccessful, but only those which led to a payment. Note also that some states (including Texas) have statutory limits on trial judgements. That markedly affects payouts in both settled and tried cases, and also limits the number and kinds of cases filed in the first place.
Over two-thirds of successful claims were paid less than $250,000. Fewer than 10% received more than $1,000,000. In the states with relevant data, successful claims for major and grave permanent injuries paid a median of $278,000 to $350,000. Temporary or emotional injury received median payouts of only $5000 to $79,000.
Almost all medical malpractice claims (over 95%) are settled prior to trial. Claims that were resolved early (such as before, or soon after, suit was filed) received the lowest compensation. Those cases that plaintiffs won at trial were much more highly paid, as much as a median 2-1/2 times more than otherwise settled claims in Florida, Nevada, and Texas. It is much more expensive either to pursue or to defend a case which actually goes to trial. Using Texas as an example, the payouts for claims resolved through "alternative dispute resolution" (such as mediation or binding arbitration) were about the same as those resolved in other ways.
Claims in the "emotional only" injury category (as defined by the National Association of Insurance Commissioners [NAIC]) received very small payouts, with a median of $25,000-33,000 depending on the state. Note that this category does not reflect psychiatric or mental hospital claims which involved such things as suicide or wrongful death, injury from suicide attempt, or physically adverse effects of treatment.
Median damages paid to malpractice claimants increased between about 1990 and 2004. The amounts of increase varied greatly among the states reporting, and have also been affected during the past decade by various kinds of state "malpractice reform" legislation (e.g., limits on amount and type of claimant compensation, limits on plaintiffs' attorney fees, changes in litigation procedures).
The wheels of justice turn slowly. Claims were made to malpractice insurers an average of 15-24 months after the alleged injury occurred (no doubt varying with the applicable state statute of limitations). Once reported, those claims destined to be paid took an average of two to almost four years to resolve (depending on the state). Many took far longer.
BJS reports are a useful service of the U.S. Department of Justice, Office of Justice Programs. One can receive National Criminal Justice Reference Service updates (which address more than just criminal justice, including information on statistics, offender treatment programs, grants and government publications) by emailing justinfo@ncjrs.gov. For the complete report on thiis BJS Report, go to http://www.ojp.usdoj.gov/bjs/abstract/mmicss04.htm
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Behaviors That Get Psychiatrists, Psychologists, and Psychotherapists into Trouble
Psychiatrists' Risk Management Services, which manages a liability insurance program for members of the American Psychiatric Association, recently published "20 Surefire Steps to Increase Risk of Malpractice Suit or (Licensing) Board Complaint." I won't plagiarize from that article, but the topics are well known to attorneys, and should be familiar to all mental health professionals. I have collapsed the list, omitted a couple of items, added one or two, reworded the concepts a little, and expanded the target audience a bit, since most of the points aren't limited to psychiatry. The original article can be read on page 32 of the March 2, 2007, issue of Psychiatric News. Information about PRMS can be obtained at www.psychprogram.com.
Remember, these are the opposite of what mental health clinicians should do.
- Document only your first suicide risk assessment. Don't worry about documenting follow-up risk assessemnts or monitoring. Or just let the patient be lost to follow-up.
- Don't document your clinical rationale for changes in level of care or supervision, especially for potentially suicidal patients. Don't explain your judgement and rationale for the treatment plan in the record. Stick to the bare facts. Save trees.
- Don't contact family members for additional information about the patient's condition (especially his/her suicide risk), especially when the patient hasn't signed an authorization for information release. Use the same logic when telling concerned family members that you can't discuss the patient’s suicide risk.
- Don't worry about the safety of the patient's environment when deciding to discharge, order a pass, or not admit a potentially suicidal patient. In particular, don't bother to ask about available firearms. While you're at it, allow the family to take full responsibility for monitoring the patient.
- When a patient appears to be dangerous to others, rely solely on your own clinical judgement and don't bother to notify appropriate people, seek consultation, and/or otherwise reasonably protect potential victims (especially if the patient has identified potential victims).
- When in a collaborative treatment relationship with other clinicians (such as when prescribing for a patient who is in psychotherapy with someone else, or following a patient for a primary care physician), employ a "hands-off," "arms' length" approach. Don't exchange information regularly with the other professional. Don't discuss treatment approaches. Don't have any prior agreement about care or professional roles. Don't bother to learn anything about the other clinician's qualifications. Assume the other treater knows when to contact you. Spend 15 or 20 minutes with the patient every few weeks or months, sign the prescriptions, and move on.
- Keep your "special" patients special. Don't record really sensitive information about people, especially those in sensitive positions, even when it's clinically relevant. Bend the rules for V.I.P.s, old friends, other (perhaps impaired) professionals, and that particularly interesting (or attractive) therapy patient.
- Have sex with a patient. Have sex with a former patient. Terminate a patient and then have sex. Have drinks with a patient and promise yourself you won’t have sex. Spend a lot of time talking with a patient about yourself or your own interests. When you feel sexual or other inappropriate feelings toward a patient, tell the patient and ask if the patient feels similarly. Do not seek competent consultation if the impulse to act on such feelings is getting really strong.
- Prescribe medications by telephone when you don't know the patient well or have not conducted a suffucient evaluation. Don't bother to document the call. Prescribe without establishing recommended baseline laboratory values (e.g., when prescribing lithium compounds); documenting a thorough discussion of potential effects, potential side effects, and the patient's consent; and recording the name, number, dosage schedule, and clinical rationale for each prescription or change in prescription.
- Assume that merely prescribing for a patient doesn't establish a doctor-patient relationship. (Not on their list, but on mine.)
- Believe that patients who cannot pay for their care (or for some options of care) can be treated below the standard of care for all patients, especially if you're nice to them. Rely on their gratitude to keep you out of trouble.
- When stopping care, don't attend to the termination principles you learned in residency or graduate school. Be modern. Let the patient go his own way. And if there's a big problem, discharge him from your practice. Don't worry about making a careful referral. Assume you've dodged a malpractice bullet.
- If something bad happens to your patient or the patient's care, change the clinical record. If you receive a subpoena about a patient (or a request for records or letter from a lawyer) decide what to keep and what to shred. Do not contact an attorney.
Clinicians: Does the above make you nervous? Do you want to email me and complain that your schedule, or the clinic in which you work, forces you to do some of these things even though you know better? Do you think "managed care" has changed the standard of care in the U.S.? Remember that you, not the clinic administrator or insurance company, are responsible for the quality of your care and for meeting the relevant standard of care when working with patients. (Malpractice juries just hate the "managed care" excuse.)
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Antidepressant Prescribing Down, Child and Adolescent Suicide Up
I'm not an adolescent psychiatrist, but I monitor suicide-related issues as they apply to all ages. I've watched the recent flap over purported dangers of antidepressant medications for children and adolescents (particularly selective serotonin reuptake inhibitors or "SSRIs") very closely. Various people, some well-meaning and some simply anti-psychiatry or anti-psychotropic-medication, pressured the FDA into requiring special warnings regarding prescribing antidepressants for children and adolescents. Those warnings appeared officially in 2005, but there was lots of very unfortunate (if predictable) media sensationalism about antidepressant drugs and children throughout 2003 and 2004. That media feeding frenzy frightened many patients and their famililes, intimidated some psychiatrists and other doctors, and contributed to a significant decrease in antidepressant prescriptions for patients in this age group.
Now, data reported from the federal Centers for Disease Control and Prevention (CDC) and published in the journal Pediatrics strongly suggests that the decrease in antidepressant prescriptions has led to a substantial increase in both the rate and number of suicides in U.S. children and adolescents.
From 2000 to 2003, suicide in childhood and adolescence in the U.S. decreased measurably every year. In 2004, however, the number of suicides (and suicide rate) for those age groups spiked to a level not seen since before the year 2000. The spike coincides with the decrease in antidepressant prescriptions caused by the public SSRI "controversy." No other cause of childhood or adolescent death increased during the same period.
Several well-known mental health researchers and advocates, including spokespersons for Mental Health America (formerly the Mental Health Association) and the American Psychiatric Association, have either voiced concerned about the rise in suicide and its apparent relationship to fewer antidepressant prescriptions, or specifically blame the increase on the decline of prescriptions caused, apparently, by media trumpeting and the FDA-mandated warning.
I rarely use this website as a soapbox, but this topic (and the lives of our children) is worth the departure. We must wait a while for data which will show whether or not the suicide rate remained unusually high through 2005 and 2006; however, it seems prudent to encourage, in both professionals and the public, careful consideration of all potentially effective antidepressant treatments, including medication, when symptoms suggest they are warranted. (Hamilton BE, Minino AM, Martin JA et al. [2007]. Annual summary of vital statistics: 2005. Pediatrics [special supplement] 119:345-60)
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Judges’ Impressions of Foreign-Trained Psychiatric Expert Witnesses
During the past two years, Dr. Suresh Durgam and I surveyed 100 experienced Texas judges about how they thought jurors would respond to psychiatric expert witnesses who received their medical degrees outside the U.S. or Canada ("International Medical Graduates," "IMGs") but had their postgraduate training in accredited U.S. psychiatry residency programs. The judges were primarily from criminal and civil trial courts, with some juvenile and family courts represented. The survey addressed experts’ country of origin, medical school, and ethnic characteristics. Many of the questions were drawn from 11 one-paragraph descriptive vignettes that contained ethnically diverse examples which each judge rated with respect to perceived expert credibility.
Results. 58.4% of the judges believed that juries have a negative perception of IMG experts generally; 39.3% predicted neutral perceptions, and 2.2 % predicted a positive impact of IMG status. 84.4% believed that the specific country of medical training is important to jurors' perceptions. 91.0% thought that prominent ethnic features (e.g., dress, facial features, accent) influence jurors, often (but not always) in a negative way.
Responses to the 11 example vignettes varied, but predicted negative juror reactions to many backgrounds and ethnic features (p<0.001 for 8 of the 11 vignettes). A heavy accent was the most negative factor, followed by "foreign" appearance, certain specific regional backgrounds (Middle-East, Pakistani, and "third world" countries associated with allegedly substandard medical schools), and non-Western attire.
The lowest ratings went to hypothetical Middle-Eastern, Nigerian, Pakistani and Jamaican experts. One of those was described in his/her vignette as wearing a dashiki and two with heavy accents. The three highest rated (Irish, German, and South African Caucasian) received varying responses but averaged "no effect" on jury perceptions. All of those were hypothetically light skinned, clean shaven, and wearing Western attire.
93% of respondents believed trial venue could affect jury perceptions. Some mentioned individual personal or professional factors that might overcome the stereotypes surveyed.
Conclusions. The results suggest that geographic and ethnic characteristics are relevant for attorneys to consider when retaining testifying psychiatric experts. The complete paper will be published later this year.
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Civil Commitment and the “Gravely Disabled” Criterion
People, even psychiatrists, often associate civil commitment (involuntary hospitalization in a psychiatric hospital) with danger to self or others (meaning danger of suicide or violence). States also allow commitment of patients who, because of severe mental illness or disorder, cannot care for themselves, are in marked danger of mental deterioration, and/or cannot make appropriate treatment decisions. In fact, far more seriously ill patients are unable to care for themselves than are specifically suicidal or a danger to others.
This commitment criterion, often worded in statute as “grave disability,” is almost never intended to be limited strictly to one’s ability to survive. It would be cruel and inhumane indeed to keep a treatable person from getting help merely because he or she can get along outside a hospital without dying. Nevertheless, the Alaska Supreme Court has ruled that a person in that state cannot be civilly commited as gravely disabled unless he or she cannot “survive.”
The case involved a homeless man with severe mania who had refused treatment for several months. He challenged his admission to the Alaska Psychiatric Institute, as well as their giving of medication designed to alleviate his psychosis and allow him to think normally. Upon eventual appeal to the State supreme court, the Court opined that psychotropic medication was “highly intrusive” (a very odd finding), and that it was not enough to show that treatment was in the patient’s best interest, or would restore his quality of life. The Court required that the person be unable to survive outside a controlled environment. The Commitment was disallowed. (Wetherhorn v. Alaska Psychiatric Institute, No. S-11939, 2007 WL 80490 [ Ala. Jan. 12, 2007])
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Proscriptions Against Psychiatrists' Participation in Police Interrogations
Psychiatry has long had ethical proscriptions against forensic (not clinical) evaluations of criminal defendants prior to appointment of defense counsel. A recent article in the Journal of the American Academy of Psychiatry and the Law discusses the professional and ethical implications of participating in interrogations by police, military, or intelligence agencies, a topic which has been debated by the American Psychiatric Association for several years. The author, Jeffrey Janofsky, M.D., says in his introduction that "(d)irect or indirect participation of a psychiatrist with police, military, or intelligence personnel when interrogators use deception of psychological or physical coercion violates the basic principles of ethical forensic psychiatric practice . . . a slippery slope of designing, endorsing, and participating in deceptive techniques and psychologically and physically damaging acts." Janofsky associates many of his comments with physician and psychiatric ethics in interrogations related to the post-9/11 War on Terror. It is interesting to note that some of the principles he describes are echoed by organized psychology, and some are not. (Janofsky JS [2006]. Lies and coercion: why psychiatrists should not participate in police and intelligence interrogations. Journal of the American Academy of Psychiatry and the Law 34[4]:472-478)
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No Recent Sexual Act (“Recent Overt Act”) Required for Wisconsin SVP Commitment
Sexually violent predator commitment requirements don't always require a recent sexually violent act. Convicted sex offenders are routinely committed at the end of their prison sentences, many years after the sexual offense. In a case that illustrates one of the differences between SVP commitments and ordinary civil commitment (mental health commitments), the United States Supreme Court (USSC) refused to review a Wisconsin Supreme Court ruling upholding SVP commitment of a man whose last known sexual offense had occurred some 17 years earlier, even though he had spent considerable time outside prison or inpatient treatment without any known reoffending.
In 1988, Thomas H. Bush was convicted of attempted second degree sexual assault in Wisconsin. Four years later, he completed a prison sex offender treatment program and was paroled to an advanced treatment program outside the state. After release from the inpatient portion of that program, he purchased a car without permission and got into an accident (allegedly related to driving while intoxicated, for which he was acquitted). His Wisconsin parole was revoked and he was returned to prison. At the end of his prison sentence, Wisconsin attempted to commit him as an SVP. Bush argued that the State had not shown that he was "likely to . . . engage in acts of sexual violence" (a requirement for commitment), since he had been in the community and there was no evidence of a recent overt act of sexual violence, thus obviating, for due process purposes, any showing that he was currently dangerous.
The Wisconsin Supreme Court found against Bush, declining to adopt the model of a Washington Supreme Court decision which held that nonsexual offenses do not necessarily illustrate a propensity for current sexual violence and requiring a recent overt sexual act for SVP commitment in that state (Washington) (In re Albrecht, 51 P.3d 73 ([Wash. 2002]). The Wisconsin Court noted, among other things, that Bush's release had involved a supervised program in another state and that only risk assessment (rather than exact prediction of violence) was required for commitment. (Bush v. Wisconsin, 699 N.W.2d 80 [ Wis. 2005], cert. denied, 126 S. Ct. 631 [2005]).
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Physician Licensure and License Problems
Ever wonder how physicians (including psychiatrists) and other clinicians are regulated, investigated, or censured? Are bad doctors ever punished? Or can they pretty much do whatever they want? Can physicians who make mistakes or become impaired be rehabilitated? (We’ll focus on physicians for now, though the process is similar for psychologists and other independently-practicing clinicians.)
It’s reassuring to know that the process for obtaining a medical license is very difficult and complex, with a great many requirements which are carefully examined before a license is issued. Licenses must be renewed regularly, and doctors are expected to demonstrate continuing medical education, good mental health, and freedom from problems which might affect the safety and competence of their practices when they apply for renewal. In addition, there are many ways that a doctor can lose his or her medical license, receive license restrictions or suspensions, or otherwise be punished or censured for not behaving in a way consistent with good care and public safety.
Almost all medical licenses and certificates (with the exception of federal narcotics registration, which allows a physician to prescribe controlled drugs – medications sometimes associated with abuse or addiction) are issued and overseen by state licensing boards or agencies. Those agencies have the authority to make rules that have the force of law in order to qualify physician applicants, receive and investigate complaints, monitor licensees, and levy administrative penalties, fines, or license suspension, or revoke a license altogether. The state or territory licensing agency (which may be called a medical board, board of medical examiners, board of medical quality assurance, or something else) belongs to a national organization called the Federation of State Medical Boards, which coordinates and shares information among the states and territories about licensing requirements, trends, and doctors who have had serious licensing problems.
Licensing board investigations, hearings, and censure processes are administrative actions. Although attorneys may become involved, and some lawyers actually specialize in defending physicians whose licenses are threatened, licensure actions are quite separate from malpractice litigation, and do not involve criminal charges. Cases in which criminal activity is suspected are referred to law enforcement agencies.
If a serious problem or complaint is proved to the licensing agency’s satisfaction, that fact and the board’s decision about punishment and protection of the public is made public, including the name of the doctor. This quarter's published actions by the Texas Medical Board, for example, covered a range which included relatively minor infractions (such as potentially misleading advertising or minor misrepresentation of credentials), more serious ones (such as not keeping proper records or not following patients closely enough), and severe infractions (such as blatantly inadequate care, practicing while intoxicated, or having sex with patients). The punishments varied from fines and letters of reprimand to temporary practice restrictions, special education programs, psychiatric treatment, substance abuse programs, license suspension, substantial practice restriction, and license revocation (multiple punishments and requirements were common).
Each licensing agency has a website at which the public can check the license status of his or her physician. Most also provide public-record information about actions against doctors in the state. Some states identify only those practitioners who have received severe penalties, such as license revocation, restriction or suspension. Others list all actions against licensees, including (in some states) unproved complaints.
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Abandonment, Psychiatrist Liability, and Duty to Manage Suicide Risk
I am often asked about situations under which psychiatrists, psychologists, and other mental health professionals can refuse to see patients. The questions often involve ability to pay. I don’t give legal advice, of course, but the discussion usually turns to whether or not a doctor-patient relationship or other therapeutic alliance has been formed, and the condition of the particular patient or client. One should not turn away patients who are acutely ill or otherwise at risk (e.g., at risk of suicide or a substantial danger to others). A recent New Jersey Supreme Court decision makes an important point, although it does not decide the ultimate issue in the case cited.
A patient with recurrent, severe depressive episodes had been doing well until relatives noticed her symptoms returning. She had thought about killing herself but had no specific plan to do so. She saw a psychiatrist, who diagnosed severe depression and prescribed medication but didn’t hospitalize her because, he said, she had no suicide plan. When she returned for her next visit, a week later, he refused to see her, apparently because he didn’t accept credit cards and she couldn’t otherwise pay for the session. She was given an appointment to return in several weeks, but killed herself in the interim. The family sued, and the doctor raised a defense related to New Jersey statute that shields mental health professionals in situations of danger to others (in contrast to California’s Tarasoff decisions).
The State Supreme Court found that the practitioner was not protected by the New Jersey danger-to-third-parties shield law. The Court also implied that abandonment or other serious disruption of the therapeutic relationship can be associated with increased risk of violence or other tragedy. (Marshall v. Klebanov, 902 A.2d 873 [N.J. 2006]).
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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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Child Custody Evaluations: There Are Rules!
I am amazed at the way many mental health professionals and some courts address one of the most important kinds of litigation we have, that which determines the development -- and safety -- of children when their parents divorce or separate. Family court judges and family lawyers should know that there are at least three fundamental requirements for a child custody evaluation:
The evaluator must be adequately qualified. This usually means a fully-trained, forensically-experienced child psychiatrist or child psychologist. Family counselors, ordinary psychotherapists, and general psychiatrists and psychologists simply have not had the years of special child and adolescent training and experience necessary to understand children’s issues, family interactions, and the child custody process. (There are a handful of adult psychiatrists and psychologists who have the requisite special expertise and experience; they are the rare exception, not the rule.)
There should be no prior relationship between the evaluator and any of the parties. Although Dad’s or Mom’s therapist, the children’s counselor, or a family psychiatrist-friend may offer fact testimony, each has indelible bias, has often not received all the relevant information, almost always has a conflict of interest, and usually doesn’t understand the forensic process and its implications. Courts should not rely on his or her report or testimony for expert opinions (and most judges do not).
The evaluator must observe and interview every reasonably available person who is involved, both individually and within the family relationship. When one or more family members is truly unavailable for interview, that fact should be highlighted in any report or testimony and the possible effect on the expert opinion should be explained.
After allowing for lack of knowledge about what makes an adequate evaluation (and readers of the above paragraphs just lost that excuse), money is probably the most common reason for breaking these rules. Complete evaluations by qualified professionals routinely cost thousands of dollars. They take time. Courts and litigants may have to look outside their communities for specialists who meet both clinical and forensic criteria.
Tough. The child’s interests are the point here, not the parent’s, court’s or state’s pocketbook, feelings, or convenience. To act otherwise is to put children in danger of suffering even more than they must when their parents separate or divorce.
A recent article by Stephen P. Herman, M.D., a New York forensic child psychiatrist, provides an excellent summary of one of these fundamentals, evaluators who don’t assess all parties (Herman SP [2006]. One-sided custody evaluations. American Academy of Psychiatry and the Law Newsletter, September, pp. 9-10). Issues of the Newsletter can often be found in medical libraries or through www.aapl.org. Dr. Herman's website is at www.childforensics.com.
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Student Suicide Risk: Legal Liability for Mental Illness on Campus?
Some college students who develop psychiatric symptoms, especially suicidal thoughts, are being barred from their college campuses. Paul Appelbaum, M.D., former president of both the American Psychiatric Association and the American Academy of Psychiatry and the Law, commented on surprising new policies that appear to reflect college and university administrators’ “fears of legal liability if students commit suicide on campus.”
The article begins with the case, apparently far from unique, of J.N., a George Washington University student who asked friends to take him to a hospital after thinking about another friend who had committed suicide. He admitted himself to the psychiatric unit of GWU hospital. While there, he was personally served with notice that he had violated the school’s “endangering behavior” policy and would not be allowed to return to campus (even to clean out his dorm room). J.N. has sued GWU for alleged violation of the Americans with Disabilities Act, among other causes of action related to the rights of persons with mental disorders.
Although student suicide is rare, and colleges are rarely held liable for them, Appelbaum cites two cases in which courts have ruled that colleges and universities may incur liability based on either a knowledge of potential for suicide and subsequent duty to protect the student (Schieszler v. Ferrum College et al., 236 F Supp 2d 602 [West. Div. VA, 2002]) or existence of a special relationship between university and student creating a duty to protect him or her (Shin v. Massachusetts Institute of Technology et al., 19 Mass L Rep 570 [Middlesex Superior Court, 2005]).
There are two sides to the story. Students should not be punished, in effect, for recognizing emotional problems and trying to get psychiatric or psychological help. On the other hand, colleges and universities must be concerned with the safety of both the mentally ill student and those around him or her (cf., the Shin lawsuit, in which one issue was immolation in a dormitory room). Reasonable efforts to contain the college's risk, including liability risk, should be expected. Nevertheless, many readers’ first reaction may be that colleges can be too heavy-handed with troubled students, and perhaps fear of litigation, justified or not, is getting in the way of higher priorities for higher education.
(Appelbaum PS [2006]. “Depressed? Get Out!”: Dealing With Suicidal Students on College Campuses. Psychiatric Services 57[7]:914-916. http://ps.psychiatryonline.org)
Update (December, 2006): The case of J.N. versus George Washington University, above, has been settled for an undisclosed sum. J.N. had withdrawn from the university after the incident. A recent article in Psychiatric News (December 1, 2006) reports on some colleges' efforts to prevent student suicide, and on the American Psychiatric Association's efforts to help colleges develop appropriate policies and guidelines on related topics.
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Suicide Risk: Stop Prematurely Discharging Suicidal Patients
This is an editorial vignette (and a long one at that). It is based on clinical and forensic experience with which, I believe, the professional literature agrees.
I have seen a great many clinical cases and malpractice lawsuits during the past several years that call out to psychiatrists on inpatient units: “When a patient is admitted to a psychiatric hospital with serious suicide potential, do not discharge him or her after just a few days unless either that risk is substantially lessened or some other adequate measure has been taken to protect the patient.” Before you say to yourself, “I already do that,” please read on.
Given a patient who has recently made a serious suicide attempt or has been judged to be acutely suicidal, it makes no sense to move that patient prematurely from a relatively