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Forensic Psychiatry

1. General comments

a. Often incorporates both intentional and unintentional torts

b. All four elements must be proved

2. Top six allegations of psychiatric malpractice: Risk Management Foundation 1991-1994  forensic psychiatry, insanity, not guilty by reason of insanity

a. Improper diagnosis and/or treatment: 25%

b. Violation of fights: 13%

c. Inadequate monitoring: 11%

d. Sexual misconduct or undue familiarity: 11%

e. Medication-related adverse outcomes: 10%

f. Failure to ensure safety: 9%

3. Respondeat superior: Let the master answer

a. The "master" may be held liable in certain cases for the wrongful acts of the servant  forensic psychiatry, insanity, not guilty by reason of insanity

b. Acts must be within the scope of the employment

c. Supervision example

i. Supervising residents

ii Medication backup

iii. Supervision of non-physicians

iv. I/you sign, the case is thine: Gutheil

4. Abandonment

a. Unilateral and unjustified termination o fa doctor-patient relationship by the physician without reasonable notice, which leaves the patient without treatment; becomes actionable if injury results

b. Examples:

i. The "no show" patient and the 3 letter approach 

ii. Coverage during absences: answering service, reachable, selection of competent coverage

E. Involuntary Commitment.

1. Standards: check your own 'jurisdiction

a Old standard: need for treatment

b. "New" standard: dangerousness

i. To self

ii. To others

iii. Inability to care for self

2. The dangerousness criteria: Problems with prediction:

a. Suicide and homicide as low incidence phenomena; problem is with high number of false positives

b. Risk balancing; issues of "overt acts" and "recent acts" vs. "imminent danger"

c. How accurate are we?

3. Lake v. Cameron, 364 F2d 657 (DC Cir 1966)

a. "Deprivation of liberty solely because of dangers to the ill persons themselves should not go beyond what is necessary for their protection." aka The Least Restrictive Alternative

b. Applies to type of treatment, type of confinement, and type of institution

4. A state cannot constitutionally confine a nondangerous individual who is capable of surviving outside the hospital setting on his own or with the help of others. O'Connor v. Donaldson (U.S. 1974

5. Standard of proof for establishing dangerousness in civil commitment cases is "clear and convincing evidence," more than is required in ordinary cases and less than the criminal standard of "beyond a reasonable doubt." Addington v. Texas, (U.S. 1979)

6. It is unconstitutional for a state to return to a mental hospital an individual found not guilty by reason of insanity where he is found by a court to be dangerous but is also found to be no longer mentally ill. (Foucha v. Louisiana 1992) However, a state may establish procedures for the civil commitment of persons whom, due to a "mental abnormality" or "personality disorder" are likely to engage in 'predatory acts of sexual violence." Hendricks v. Kansas, 1997)

7. Liability issues:

a. False imprisonment

b. Libel/slander/defamation

c. Violation of civil rights: 42 USC 1983

d. Defenses:

i. Good faith defense

ii. Documentation is key

iii. Statutory immunity

iv. Did not know, nor should have known, of violation of constitutional rights

e. Zinermon v. Burch, 110 S.Ct. 975 (1990)

i. State officials may be held liable for deprivation of civil rights under 42 U.S.C. Sec. 1983 where a lack of procedural safeguards allowed an incompetent individual to voluntarily commit himself to a state mental hospital, bringing about a deprivation of liberty interests without due process of law.

ii. Indicates the need to assess competency prior to allowing patients to consent to treatment; the old practice of challenging competency only where the patient disagrees may provide a basis for increased risk exposure

iii. Statute required express and informed consent for voluntary admission; Butch signed the form

iv. State's obligation to provide specific procedural safeguards and constitutionality of Florida commitment procedure not addressed

F. Right to treatment: Individuals who are involuntarily hospitalized and thus deprived of liberty interests must receive some minimal level of treatment

1. Cases:

a. Failure to provide treatment to involuntarily committed patients constitutes violation of rights to due process and equal protection under 14th Amendment of U.S. Constitution. Wyatt v. Stickney (MD Ala. 1971), arid 5th Cir. 1974

b. Nondangerous, involuntarily committed patient cannot be hospitalized, where viable alternatives exist in the community, without receiving treatment. Donaldson v. O'Connor (Sth Cir. 1974).

c. Involuntarily committed, profoundly retarded patient has constitutionally protected fights to safe conditions, freedom from unreasonable physical restraints and minimally adequate training. Youngberg v. Romeo, CLI. S. 1982)

d. Due Process Clause of the 14th Amendment, not a right to treatment, requires conditions that do not fall below the minimum standards of civilized decency. Commonwealth violated these where treatment center staff were "deliberately indifferent" to needs of a violent sex offender with PTSD, borderline personality disorder, and amputations. Commonwealth found to have violated professional judgment standard by ignoring recommendations of mental health professionals. Cameron v. Tomes, 990 F.2nd 14 (lst Cir. 1993)

2. Similar or more extensive requirements may be imposed by some statutes and states. The Supreme Court of the United States has yet to find that there is a specific right to treatment under the U.S. Constitution.

3. Limitations:

a. Applies only to involuntarily committed patients

b. Constitutional requirements apply only to states or private individuals or institutions acting "under color of' state law

c. Does not guarantee optimal treatment, nor does it guarantee effective

d. Does not guarantee a choice of treatments

G. Right to refuse treatment Appelbaun PS The right to refuse treatment with antipsychotic medications: Retrospect and prospect. Am. J. Psychiatry 142:413-419, 1988

1. Principle: All competent individual have a right to make decisions concerning their own medical treatment even though the decision may be at odds with the decision of their physician or with what a majority of others might choose under the same circumstances.

2. Two basic notions:

a. Personal autonomy = right to be left alone and to bodily integrity

b. Constitutional rights: freedom of speech (1 st A), freedom from illegal search and seizure (4th A), protection from self incrimination (5 th A), protection from cruel and unusual punishment (Sth A), right to due process prior to deprivation of rights and equal protection under the law (6th & 14tthA), and fight to privacy ("penumbra")

3. Basic issue: Who makes these decisions for incompetents?

4. History:

a. Voluntary patients: always had right to refuse

b. Involuntary patients, committed under the treatment model of commitment, did not have the right to refuse: parens patriae role of state

5. Case law: Varies by jurisdiction

a. Rogers v. Commissioner (Mass. 1983) 

i. Involuntarily committed competent patients have an absolute  right to refuse treatment with antipsychotic medications which are considered to constitute extraordinary medical treatment because of their powerful effects and long-term, serious side effects

ii Where a patient is not competent to decide, the decision can only be made in a fair and unbiased fashion by a judge after a fun adversarial proceeding using a substituted judgment analysis

iii. Substituted judgment requires determination of what the incompetent patient would have chosen with regard to treatment if competent

iv. Based upon Massachusetts common law and statutes, not constitution

b. Rennie v. Klein (3rd Cir. 1981)

i. Involuntarily committed patients have a qualified fight to refuse treatment with antipsychotic medications which may cause permanent side effects

ii. Mechanism of independent review with physician certification followed by automatic review in 15 days meets constitutional requirements

c. AE & RR v. Mitchell (D. Utah 1980)

i. Involuntarily committed patients have no fight to refuse treatment; incompetence a condition of commitment

ii. Once all the procedural safeguards have been afforded the judgment of the treating professional as to type of treatment is of paramount importance

d. Youngberg v. Romeo, (U.S. 1982)

i. Patients civilly committed to state facilities have constitutional rights to be free from unnecessary physical restraints, to safe living conditions, and to at least minimal habilitation

ii. Decision as to type of treatment should be left with professionals using acceptable professional standards and subject to civil liability for failure to meet standards of care

e. United States v. Charters, 863 F.2d 302 (4th Cir. 1988) (Found not competent to stand trial)

i. "It is...settled that in appropriate circumstances government may properly commit base-line decisions to "deprive" persons of certain liberty (or property) interests to appropriate professionals exercising their specialized professional judgments rather than to traditional judicial or administrative- type adjudicative processes."

ii. "...such a regime, properly conducted, may sufficiently protect against the risk of error in making the medication decision here in issue, and therefore may comport with procedural due process requirements, notwithstanding the absence of any adversarial adjudicative element."

f. Washington v. Harper, 110 S.Ct. 1028 (1990): All individuals, including prisoners like Harper, have a due process liberty interest in refusing an antipsychotic medications. However, these medications may be administered involuntarily to competent or incompetent if; following an independent review panel agree with the treating physician that the prisoner has a serious mental illness, is dangerous to himself or others, or is gravely disabled, and the medication proposed is in the individual's best interests.

g. Perry. v. Louisiana

i. State Supreme Court upheld trial court decision that the state's interest in administering antipsychotic medication to a death row inmate for the purpose of rendering him competent to be executed outweighed the inmate's right to refuse medical treatment. U.S. Supreme Court vacated the decision and remanded it to the stale trial court for reconsideration under Harper. 543 So. 2d 487 (La. Sup. Ct. 1988); 545 So. 2d 1049 (La.. Sup. Ct. 1989); celt granted, 110 S.Ct. 1317 (1990); vacated and remanded, 498 U.S. 38 (1990).

ii. On remand from the U. S. Supreme Court, the Supreme Court of Louisiana held: Forced administration of antipsychotic drugs to restore prisoner's competency to be executed violates the state constitutional fight to privacy and constitutes cruel, excessive, and unusual punishment. Louisiana v. Perry, No. 91-KP-1324 (La. Sup. Ct. Oct. 19, 1992

h. Riggins v. Nevada (1992)

i. Forced administration of antipsychotic medication in order to render a defendant competent to stand trial violated the rights of the defendant under the 6th and 14 th amendments absent a showing by the state that the treatment was hot medically necessary and appropriate.

2. Basic duty to protect/warn if:

a. Therapist knows or should know

b. Of patient's potential for substantial harm

c. To an identified or readily identifiable individual

IV. Psychiatry and the Criminal Justice System

A. Competency in the criminal system

1. Competency to stand trial

a. Standard: Whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and whether he has a rational as well as a factual understanding of the proceedings against him " Dusky v. U.S. (U.S. 1960)

b. Standard of proof for incompetence is "preponderance of the evidence." Cooper v. Oklahoma (U.S. 1996)

c. Principles supporting competency to stand trial

i.  Insure accuracy of the proceedings

ii Guarantee a fair trial/face the accuser all

iii. Preserve the integrity and dignity of the legal process

iv. Insure that the purposes of retribution and individual deterrence are served

c. The trial judge must raise the issue of competency if either the court's own evidence or that presented by the defense or prosecution raises a bona fide doubt of the defendant's competency. Pate v. Robinson, (U.S. 1966) The defendant need not consent. U.S.v. Hugenin (1 st Cir. 1991)

d. Defendant found incompetent to stand trial and committed to a state facility cannot be held indefinitely if there is no hope of restoration of competency, unless he is committed under usual civil commitment standards. Jackson v. Indiana (U..S. 1972)

2. Competency to be Sentenced/Executed

a. Focus on understanding of nature of proceedings, ability to participate in the process

b. Ethical issues with psychiatrist participation: the "Dr. Death" controversy; Long term predictions based on record review

c. Death penalty cases 

i. Estelle v. Smith, 541U.S. 454 (1982) 5th Amendment right to be free from self incrimination and 6th Amendment right to assistance of counsel were denied when psychiatrist who examined him for competency was allowed to testify to his dangerousness at the penalty phase and defendant was not informed of the purpose of the evaluation or fight to the presence of counsel

ii. Barefoot v. Estelle, 463 U.S. 880 (1983)

a. State cannot compel the defendant to submit to a psychiatric evaluation

b. There is no Constitutional barrier to allowing psychiatric experts to testify to the defendant's dangerousness based on hypothetical questions

c. Contrary to the APA's amicus curiae brief pointing out the unreliability of dangerous predictions, Court held that such assessments are not so inherently unreliable that they should be excluded totally. Lack of reliability can be addressed as a credibility issue

iii. Ford v. Wainwright, 477 U.S. 399 (1986)

a. Execution of a prisoner who is insane constitutes cruel and unusual punishment in violation of the 8th Amendment

b. Prisoner is entitled to a full and fair hearing on the issue of competency to be executed

iv. Satterwhite v. Texas, 108 S. Ct. 1792 (1988) Admission of testimony based on psychiatric evaluation conducted without knowledge of defendant's counsel constituted basis for reversal, where it could not be assured that this inadmissible evidence had not influenced the jury

v. Penry v. Lynaugh, 57 USLW 4958 (June 26, 1989)

a. Imposition of the death penalty upon mildly or moderately retarded individual is not unconstitutional per se

b. Texas statute which did not allow jury to consider mitigating factors such as history of mental retardation and child abuse but did allow consideration of aggravating factors, was unconstitutional

3. Competency to serve as one's own attorney or plead guilty: Godinez v. Moran (U.S. 1993): standard is the same as for competency to stand trial

B. Criminal Responsibility

1. Basic premise: "Actus non facit reum nisi mens sit tea." (The act does not make a person guilty unless the intention be guilty also.)

a. Actus reus = the harmful act itself

b. Mens rea= a guilty mind, guilty or wrongful intent

i. Narrow sense: Refers to mental state required as an element of specific crime, eg, larceny = knowingly taking possession of property that is not yours, for your own use, and with an intent to deprive the true owner of its use

ii. General sense: blameworthiness or legal liability. Individual who takes someone else's car for his own use when directed to do so by auditory hallucinations unlikely to be found blameworthy

2. Evolution of the Standards

a. Gradual evolution from "Buy off the spear or bear it." to notion of blameworthiness

b. The M'Naghten test: Cognitive test

i. To establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong

c. Irresistible impulse/loss of control test

i. Defendant with a mental disease or defect would be held not responsible for criminal acts, even if he could tell right from wrong, if such disease or defect deprived him of power to choose right from wrong and the alleged crime was so connected with the mental disease as to have been the product of it solely

d. The New Hampshire and Durham tests. Durham v. U.S., (DC Cir. 1954). An accused is not criminally responsible if his unlawful conduct was the product of mental disease or defect

e. Model Penal Code (American Law Inst.): Combines two older tests: cognitive, irresistible impulse (volition)

i. The test: combines volition and cognitive elements

a. A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of the law

b. As used in this Article, the terms "mental disease or mental defect" do not include an abnormality manifested only by repeated criminal or otherwise anti-social behavior

c. Basic elements:

1) Mental disorder

2) Impairment in functioning as a result of the disorder

3) Clear and direct causal connection or relationship between the behavior impairment and the act

ii. Used in 39 of 62 jurisdictions in U.S. (50 state, 11 federal plus D.C.) in some form

f. APA/Federal Court test:

i. It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.

5. Demographics of the insanity defense:

a. One-tenth of 1% of felony trials; 2 insanity pleas per 1000 felony arrests

b. Success rate varies by state

c. Juries hand down only 5%. 40-50% by judges; rest plea bargained

d. Not a "rich man's defense": acquittees tend to be young (20-30), white, average 8th grade education, employed in unskilled labor

6. Diminished capacity defense.

a. Altered mental state short of NGRI may be used as evidence of diminished ability to understand wrongfulness or conform conduct

b. Voluntary intoxication not a basis for insanity defense

c. Exceptions:

i. Involuntary intoxication

ii. Idiosyncratic intoxication

iii. Delirium tremens

iv. Permanent psychosis, secondary to EtOH

C. Defendant's right to a psychiatric evaluation:

1. States are obligated to give indigent defendants a fair opportunity to prepare their defenses. Just as the state must provide an indigent defendant with an attorney, where the need for psychiatric evaluation is obvious and the defendant cannot afford a psychiatrist, the state must provide access to an independent expert. Ake v. Oklahoma (U.S. 1985).

a. Defendant not entitled to choose expert or to multiple examinations

b. Majority of states already provided this service by statute at the time of the decision

IV. The Role of Psychiatrists in the Legal System

A. Forensic evaluations

1. Not a doctor-patient relationship: The Double Agent Problem.

a. Client is the attorney, court agency, etc.

b. Confidentiality is absent: duty to obtain informed consent from patient regarding examination

c. No criminal evaluations until defendant has had an opportunity to meet with attorney

2. Role of the expert witness

a. Provide scientifically and clinically accurate testimony

b. Provide testimony in an ethically responsible manner

c. Provide answers to the legal questions raised in the proceeding, to the extent possible

i Avoid answering the