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Psychiatrists in Security Hospitals, Double Agentry, and Criminal Defendants

A colleague who evaluates and treats defendants in a security hospital was uncomfortable with a subpoena to testify in a death penalty case. He was reluctant to disclose statements made by what he believed was an incompetent defendant. A brief summary of our discussion creates a useful Update.

Although correctional or security and forensic agency psychiatrists who interview confused or psychotic patients may be required to tell what the patient said, they are ethically obligated to notify the court if the patient (a) was unable to communicate accurately, (b) was unable to appreciate the consequences or context of his statements, (c) was unable to appreciate the psychiatrist’s "double-agentry" in their assessment or treatment (see below), and/or (d) had not been told of that double-agentry.

Many -- perhaps most -- forensic psychiatry scholars believe that one's status as "physician" permeates all, not merely some, clinical practice. Thus a psychiatrist can't say to a patient, "Time-out: I'm not acting as a psychiatrist in this instance, but rather as a (policeman, forensic expert, religious advisor)." How, then, can a psychiatrist in a security institution evaluate and treat patients knowing that his or her notes, reports, and/or testimony may be used against the patient’s interest?

Defendants are often referred to state hospitals for evaluation and treatment with the expectation that clinicians there will also offer opinions -- by report or in testimony -- about their competence, progress, etc. The resolution to this double-agentry is a two-step process involving clarification of one’s professional agency and separation of "expert" and "fact" testimony.

The evaluee/patient must be notified at the outset, and reminded as necessary, (a) that the psychiatrist works both for him (as "his" doctor and treater) and for the State (as the Court's agent, State employee, etc.), (b) that there are significant limitations on confidentiality and patient privilege, and (c) that the psychiatrist may be required to provide an objective report, records, or testimony at some future time. The "agentry" issue should also be clarified to courts, as caveats in any report or testimony. I recommend a brief paragraph or comment which says that the evaluee/patient was told (and understood) that the doctor might later render an opinion about him and that, although the opinions are as honest as possible, the fact that he has been one’s patient may interfere with objectivity.

Some state facilities use consultant (or employee) psychiatrists and psychologists whose only role is to perform expert evaluations (rather than form any clinician-patient relationship), thus separating "patient" from "evaluee" for purposes of objectivity. Others at least specify the role of each clinician (treating staff vs. forensic assessment professional) for each patient/evaluee. This is especially helpful when the prosecuting agency doesn't want to hire its own experts.

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Civil Insanity Allegations After Criminal Conviction

In the midst of society’s dislike of the insanity defense for violent criminals, there is a group of civil plaintiffs who benefit when mental illness is reconsidered after criminal conviction. Surprisingly, many of these people wanted the criminal court not to find insanity a few months before. Consider a few recent cases:

A man with no significant criminal history was convicted of murdering his ex-wife and daughter on his homestead. Their heirs sued to recover from his homeowner’s insurance policy, alleging that the killings were the result of mental illness, not a voluntary act. Videotapes of the sheriff’s interrogation less than an hour after the crime indicated that the perpetrator was nonpsychotic, competent, and able to form intent. No insanity defense was attempted. When interviewed in prison for the civil matter, there was no indication of past incompetence or inability to form intent. He did not testify in the civil trial.

A man angry at his wife threatened to set fire to his house, then carried out the threat. After conviction for arson, he filed an insurance claim for the fire damage. Although he had some history of mental illness, the evidence, including several witness statements, indicated that he was not symptomatic when he set the fire, and had acted voluntarily.

Many years ago, a man with a long history of criminal violence was found not guilty by reason of insanity of a charge of brutal murder, based on a pre-trial diagnosis of severe mental illness. During many years of commitment to a state mental hospital, however, he was generally diagnosed as not having any severe mental illness, and thus not being amenable to treatment. He petitioned for, and eventually gained through Federal Court order, release from the hospital based on absence of mental illness. A few days after release, he raped and murdered a woman, did not offer an insanity defense, and was convicted and imprisoned. The victim’s family sued the state hospital and its doctor for not diagnosing some combination of mental illness and dangerousness which would have allowed them to keep him in the hospital.

Each of these cases illustrates reluctance to give personal responsibility to a convicted criminal when a finding of lack of responsibility would benefit a civil litigant. There was little interest in incompetence or legal insanity at the criminal trials, when seeking punishment for the perpetrator; the criminal courts found each person responsible beyond reasonable doubt. But wishes for compensation (and perhaps misplaced feelings that someone should compensate the victim if the perpetrator can’t) drove a civil process as well.

When such efforts are successful, it is as if the juries ignore real cause and responsibility and simply use the deepest pocket to make the victim whole. Is it unfair to want to "have it both ways"? Often, yes; but sometimes no. The criteria for criminal insanity are different from, and serve a different purpose than, those for civil liability or insurance eligibility. Nevertheless, the trend seems unsettling. 

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Neuroimaging in Court: CAT, MRI, PET, and SPECT

Science marches on, and we all hope that science will eventually make clear all the ambiguities of psychiatry and psychology. Unfortunately, we aren’t there yet. Phrenologists (the guys who interpreted bumps on heads) didn’t find the truth in the last century; CAT, MRI, PET, and SPECT (Computed Axial Tomography, Magnetic Resonance Imaging, Positron Emission Tomography, and Single-Photon-Emission Computed Tomography) aren’t perfect either.

Each of these tools can be great in some areas of medicine, such as locating tumors, measuring tissue density, or research. Their usefulness in mental health is growing, but psychiatry is not usually concerned so much with the anatomic picture of the brain, but rather with very small chemical and electrical defects. With a few exceptions, neuroimaging in psychiatric patients provides statistical inference, not a clear "there’s the root of his antisocial behavior" or "here’s what’s causing her hallucinations." For example, the size of a certain part of the brain or the amount of metabolic activity it demonstrates is almost never diagnostic of a patient’s outward function, but rather something to be correlated with other findings. Even major defects are not always associated with psychiatric symptoms, since the brain is a "plastic" organ in which some parts may train themselves to do the work of others.

Like many medical tests, neuroimaging results are most useful when they can show "before and after" information. If a person appears chronically confused and disoriented, for example, scans that show a decrease in brain size over time provide credible suggestion -- though not proof -- that the problem is neurological, and not caused by depression, functional psychosis, or malingering.

It is sometimes tempting, particularly for civil plaintiffs and criminal defendants, to suggest that neuroimaging can map the psyche as well as well as the anatomy and gross physiology of the brain. A few years ago, Science magazine, usually a pillar of conservative research, displayed color pictures of computer-enhanced electroencephalographs (EEGs). The caption and accompanying story said, in effect, that "brain-mapping" EEG procedures could, with careful manipulation of data from sensors on the scalp, diagnose a number of hitherto hidden mental illnesses. It was exciting but, in my opinion, not at all reliable. We don’t hear much about EEG brain-mapping in psychiatry anymore. A few companies tried to sell the equipment to psychiatrists at national meetings for awhile (the colors were enticing, something to show one’s patients and insurance companies), but the fervor has died down.

There is great potential for new neuroimaging techniques in the hands of neurologists and neuroscientists who see beneath the colorful printouts. Courts’ needs for objectivity, however, can easily be undermined by slick courtroom posters and the appearance of scientific credibility. Reasonable local discretion, within Daubert guidelines, seems acceptable for now. For example, a recent Eighth Circuit finding upheld a refusal to admit PET scan evidence of head injury, agreeing with the lower court’s decision that the scan results were tainted by, among other things, inappropriate comparison to a non-medicated control group of dissimilar age, saying that the district court had broad discretion under Daubert (Penney v. Praxair, Inc. [116 F.3d 330)]).

Expert witnesses speaking for and against such evidence should be conservative, not self-aggrandizing pseudo-experts or thinly-veiled advocates. The credibility of the procedure, the expert, and perhaps science itself is at stake. (Case reference from M. Frank Greiffenstein, Ph.D.)

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Competency, Capacity, and Credibility in Criminal Defendants

Two recent verdict reversals by the Massachusetts Supreme Judicial Court highlight psychiatric factors affecting criminal intent, waiver of Miranda rights, confession, trial competency, and credibility of a defendant's possibly delirious statements. The reliability of defendant understanding and communication while medically impaired and consideration of the Massachusetts "humane practice" jury instruction rule are the common psychiatric threads in Commonwealth v. Sheriff (680 N.E.2d 75) and Commonwealth v. Hooper (679 N.E.2d 602).

After several weeks of odd and paranoid behavior, Sheriff killed his wife in a somewhat unusual fashion (stabbing her 53 times). He was found at the scene unconscious (having taken an overdose of medication), was taken to a hospital intensive care unit, and while there was read his Miranda rights. He apparently was severely ill, intubated, and unable to speak at that time, and the Miranda procedure was repeated two days later, when he listened but would not sign a card indicating he understood. At that point he asked where his wife’s body was (a question which he later denied when it was used against him at trial). Sheriff was variously diagnosed as suffering from a major depression with paranoid delusions, schizophrenia, and paranoid personality disorder. The Supreme Judicial Court found, among other things, that the trial judge had not allowed the jury sufficient opportunity to consider Sheriff’s mental state and had failed to determine whether or not his statements to police were voluntary.

Hooper was hospitalized after arrest for kidnapping and assaulting two young boys. Two days after the incident, while being returned to his room restrained and intubated, he told a hospital orderly "I know you’re taking me to jail." (How he spoke while intubated is not clear, and may be a misunderstanding in the citation. There is a suggestion that he was delirious.) The jury was later allowed to consider those words as evidence that he was indeed the perpetrator. The Supreme Judicial Court questioned the reliability and voluntariness of his statement, found abuse of discretion, and remanded the case.

Arguments over the credibility and admissibility of Miranda waivers, confessions, deathbed statements, victims' descriptions of assailants, and the like are common. Many such statements and waivers are given in hospitals and other medical settings. When that happens, careful review of the medical record is the only direct way to examine the contemporaneous impressions of clinicians and nursing staff present at the time. In the best case, clear medical charting establishes the patient's basic mental status at frequent intervals. More often, however, there is considerable room for misinterpretation of the patient’s condition and statements (and, especially, their forensic significance).

The voluntariness of statements, and to a lesser extent their reliability, is not well correlated with mental illness per se, and is not easily challenged using psychiatric diagnosis alone (with a few exceptions, such as severe mental retardation or substantial dementia). As in many other psychiatric matters, the patient's/evaluee's level of function is the important factor, not the diagnosis. This means that a clinician or forensic expert with information about the acute situation (e.g., from a contemporaneous mental status examination) is generally in a better position to give credible opinions than one who focusses on diagnosis alone.

When a clinician gathers information which is likely to have legal importance (such as statements related to consent, refusal of care, disposal of property, or any statement from a crime victim or criminal defendant), he or she should document the patient’s current mental status in some detail. When a non-clinician such as a law enforcement officer or attorney interviews the patient, it is prudent to ask a qualified clinician to document the mental status at the time of questioning. In some situations, a psychiatrist or psychologist should be summoned for a formal mental status examination. Both clinicians and law enforcement personnel should also be aware that while simple evaluation of mental status is usually permissible, it is unethical for a psychiatrist or psychologist to gather a forensic history or other potentially incriminating information from an arrestee until after counsel has been appointed or refused. (Summaries and commentaries for the cases cited may be found in the Forensic Psychiatry Echo.)

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Negligence and Malpractice Allegations involving Managed Care Organizations

As ERISA protections from malpractice and negligence actions continue to erode for managed care organizations (MCOs), a few forensic psychiatrists are studying such things as standard of care, patient access, conflict of interest, and implied treatment entitlement as they apply to both companies and patients. Texas passed legislation this year which allows managed care companies to be viewed as physicians for purposes of malpractice actions; other states are likely to follow suit. California and other states now have statutes aimed at decreasing financial incentives for doctors to limit care. "Gag rules," which limit information MCO doctors may give to patients about treatment alternatives are rapidly disappearing (voluntarily and via statute), but still exist in some physicians’ managed care participation contracts.

Decisions about how (or whether) to treat patients who can’t pay are not new. One can envision rich Greeks in the time of Hippocrates having their blood let with golden trocars, while the poor made do with iron. It is the expectation of forthcoming care that often sparks friction. If the doctor, clinic, or hospital declines the (non-emergency) patient before offering services, there is no reasonable expectation of care. In managed care plans, however, the patient has the MCO’s and the provider’s agreement that when he or she get sick, care will be provided. That care must at least be adequate, and in some cases is advertised as excellent. So, even before the patient enters the examining room, there is arguably a doctor-patient (or hospital-patient) relationship which incurs a duty of care. Once that relationship is formed, its duties arguably supersedes the limits of the payment contract. The doctor and hospital can’t avoid their own fiduciary responsibility merely by citing the MCO’s financial agreement with the patient, but if the MCO employs the doctor, owns the hospital, or promises a high level of care, it likely participates in their clinical obligation.

What about the differences among "adequate," "good," and "optimal" care? The biggest controversies seem to involve patients who need expensive treatments and managed care plans that allegedly refuse to provide them. One frequent point of contention is whether or not treatment authorization decisions are made by qualified doctors, after sufficient case review. They commonly are not, which can create a cause of action against the MCO and/or reviewing body.

Psychiatric cases rarely involve high-tech procedures or last-resort surgeries, but simple things such as choice of medication or frequency of therapy or monitoring. For example, new antidepressants and antipsychotic drugs (more expensive in the short run) are the treatments of first clinical choice for most depressed or psychotic patients. They are usually more effective, have fewer side effects, and are safer (e.g., in suicide attempts) than the older, cheaper ones. Do the old drugs work? Yes and no. They work for some patients (after all, they were all we had for decades); but for most they are much less effective, difficult to tolerate, or otherwise not the best clinical choice. Even when a doctor or MCO merely has an obligation to treat patients adequately, the older drugs must often be viewed as inadequate.

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HMO Returning Preauthorization Decisions to Physicians

It's a source of clinical frustration, patient anguish, administrative headaches, and countless jokes on late-night television: Third-party payers that require complex justification before a treatment or procedure in order to establish eligibility for (but not necessarily guarantee) coverage. Called "pre-authorization," it ostensibly decreases unnecessary care and saves money, but most doctors agree it costs time and money, may delay necessary treatment, can shape care in clinically unjustified ways, and generally doesn't work as advertised.

United Health Group, one of the largest health care insurers in the U.S., recently announced that it will no longer require preauthorization for many of its covered services. They cited enormous costs of reviewing preauthorization requests, noting that almost all were granted anyway.

Health care cost curves suggest that preauthorization and other managed care efforts are not lowering the cost of care as promised. Whether United Health Group changed its policy for financial or administrative reasons, to decrease liability as managed care organizations are losing many of their legislated exemptions, or just to do what's right, this is a welcome change for both patients and providers.

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Sexual Predator Laws and State Responsibility: We’re Not (Just) In Kansas Anymore

A 1997 U.S. Supreme Court decision has made it clear that states may, within certain parameters, transfer sex offenders from prisons to mental hospitals at the end of their sentences and hold ("treat") them there indefinitely (Kansas v. Leroy Hendricks, No.95-1649). The issue, like the Kansas law that brought it to everyone’s attention, generally refers to people who repeatedly commit sexual crimes against children (sometimes called "sexual predators" in statutes and the media).

Pedophilia and other "paraphilias" (sexual preferences which require aberrant sex objects or activities, but not necessarily children, violence, or even human contact) are considered psychiatric disorders in the American Psychiatric Association diagnostic nomenclature, but are rarely associated with hospitalization. In psychiatric parlance, the patient may or may not act on his (or, less commonly, her) urges, in contrast to criminal concepts which require illegal behavior to establish a crime and justify incarceration. It is uncommon for pedophiles to be found not guilty by reason of insanity, since paraphilia alone is not sufficient to compromise criminal intent.

A wave of state legislative activity to deal with security needs and community fear of these highly recidivistic offenders is sweeping the nation, and state mental health agencies don’t like the portent. They feel such laws will force a shift away from correctional responsibility for such persons and cause expansion of state hospital settings for them. This increases public-sector mental health costs (prisons, even with psychological care, are much cheaper than hospitals) and syphons scarce treatment dollars away from patients with "traditional" serious mental disorders such as schizophrenia and manic-depressive illness.

Many mental health professionals believe it is unreasonable to use the law to force indefinite (perhaps lifelong) hospitalization under those circumstances, some alleging lack of due process or improper use of civil resources. Further, highlighting pedophiles as dangerous by virtue of a mental illness per se increases society’s unwarranted fears of all psychiatric patients. Nevertheless, most psychiatrists would admit that people who have committed serious pedophilic crimes are very likely to continue their criminal and victimizing behavior.

The possibility of increased social and political acceptance of biological treatments for aberrant sexual urges, primarily with long-acting (but reversible) antiandrogenic medications, may be one positive result of pressures to hospitalize "incurable" sexual predators until they are no longer dangerous: . Such treatments have shown great promise for many patients and offenders, but (largely misplaced) social concern about the validity of patient consent has made them difficult to obtain in the U.S.

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Risk Management and Pre-emptive Forensic Consultation

Healthcare organization risk managers are almost never psychiatrists, yet risk of malpractice allegations and other civil litigation is highly correlated with things like emotional needs, mental illness, standards of clinical care, doctor-patient-family communication, and being sure that doctors (and therapists) understand how their behavior and attitude affect patient satisfaction and litigation risk. Managed care organizations (MCOs) and provider plans make this process much more complicated -- and risky -- for all concerned, introducing new decisionmakers, people and entities to blame, clinical and administrative processes, and causes of action. MCOs, mental health systems, hospitals, and large clinics may benefit greatly from consultation with a forensic psychiatrist before inevitable tragedies occur, to prevent them from being construed as malpractice. MCOs and other large systems are particularly vulnerable to both traditional and innovative causes of action, largely because

Health care economics and cost controls have been with us for a long time. Not even kindly Dr. Welby could ignore the impact of cost on care. Today, however, the payer is perceived as (and generally is) much more closely associated with clinical decisions than in the past.

Not being able to afford a procedure is one thing; not being told it is needed or available is quite another. Trusting the doctor and hospital to do the right thing seems a thing of the past now that national and local media are feasting on consumer doubts and anxieties. Today’s potential plaintiffs often think of the doctor not in kindly or even medical terms, but as an employee of a faceless HMO or MCO, "behavioral health professional," or "provider" (a word which instantly suggests patient entitlement).

How can health care organizations use a forensic psychiatrist improve things?

First, by commissioning a thorough overview of the organization, it’s patient-related procedures, and the way it deals with patients, their families, and clinicians (especially doctors), with the specific goal of ferreting out high-risk situations and staff.

Next, by listening with an open mind to the results of that overview, and to additional discussion of patients and families who are at high risk for dissatisfaction or litigation.

Finally, by taking action designed to decrease those risks that can be corrected, and ameliorate those that must still be borne.

Why a forensic psychiatrist?

The job requires experience in mental health system management, clinical care, physician communication & training, and broad issues of liability and quality improvement. The critical issues are clinically-related, but they go far beyond practice protocols and competent doctors. General psychiatrists and other professionals know patients’ clinical needs but don’t often understand the larger picture. Consultants with the above qualifications understand that quality, satisfaction, risk, and litigation are driven by the larger picture, and they know how to deal with it.

(For more discussion of preventive consultation by forensic psychiatrists see A New Resource for Managing Managed Care Malpractice Risks, by Harold J. Burstajn, M.D., and Archie Brodsky, at http://www.forensic-psych.com/articles/artAim.html)

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Separating Civil Commitment from Involuntary Treatment

A recent Illinois case (Matter of Robinson, 679 N.E.2d 818, Illinois Court of Appeals, 1997) illustrates the difference between involuntary hospitalization for the purpose of treatment and involuntary treatment itself. Mental health attorneys and forensic clinicians understand the subtle difference between a committed patient’s right to a safe and adequate environment and the absence of a constitutional "right to treatment." In spite of the care or treatment purpose of civil commitment, there is no federally established right to treatment itself, only a promise of "something more" than confinement. The converse, that an involuntarily hospitalized person cannot be forced to accept treatment (usually with psychotropic medications) based solely on his or her committed status, is less well known.  Robinson joins other states’ precedents in affirming that even when there is cause to petition for involuntary medication, notice and due process requirements mandate that judicial determination of forced-treatment eligibility be addressed separately from the "commitment" issues.

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Prospective Authorization for Information Release

An impaired physician was treated at a psychiatric facility under an agreement with his state medical licensing board. He was aware that sharing clinical information with the Board was a condition of his agreement with them (and of regaining his license), and signed an authorization for release of all medical, psychiatric, and psychological information. A short time later, the physician/patient divulged serious sexual indiscretions with patients, which were routinely recorded as part of his psychosocial history and then addressed in treatment. The physician/patient could have rescinded the release at any time, although he may have suffered consequences from the licensing board.

A few weeks later, the state licensing board asked for the evaluation and treatment records. Having the earlier release, the treatment facility sent them all information, including the history of inappropriate sexual behaviors and sexual disorder diagnosis. Later, when the doctor became eligible for supervised medical practice, the state board limited his license based, in part, on potential danger to patients from his sexual disorder. The physician sued the treatment program for divulging the sexual information to the licensing board, alleging (1) that the authorization he signed did not cover information gained a few days or weeks after it was signed, and (2) that the sexual information should not have been considered "psychiatric" or "psychological."

Under many circumstances, it is routine, and within the standard of care, to assume that an information release is valid "prospectively." In forensic psychiatry, for example, litigants and claimants virtually always sign releases before they are evaluated. In clinical practice, releases signed early in treatment are sufficient to send later-obtained clinical information to insurance companies for certification and payment approval. There are many circumstances under which information must be sent after the patient is no longer even available to sign a new release, and the authorization has not expired or been rescinded.

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Psychotherapists’ Legal and Ethical Concerns

In late 1997, our office surveyed psychologists, counselors, and psychotherapists to determine what they believe are the most important legal and ethical issues in clinical practice. Clinicians from 28 states, representing many different practice settings, styles, and levels of experience, itemized their concerns for their own practices and for their professions as a whole. Here are some of the results.

Topics related to confidentiality, managed care, and participating in legal processes were the most consistent broad concerns, cited by 30-60% of respondents. There was considerable overlap (confidentiality, for example, being cited as a problem in managed care settings). Over 20% of respondents felt that dual relationships, conflict of interest, and standard of care are critical practice problems. Over 10% believed that "boundary" issues (including, but not limited to, sex with patients), other unethical conduct among colleagues, recordkeeping, litigious patients, and staying within one’s professional competence are major problems.

Within managed care, respondents were particularly troubled by issues of confidentiality, utilization review, constraints on (and control over) clinical practice, degradation of care, and inadequate financial coverage. Respondents often said that managed care organizations (MCOs) asked them to practice below their usual standards.

Problematic "forensic participation" topics included child custody assessments, testifying about patients, and working with attorneys. Confusion about issues of dual agency were related to clarity of roles in MCOs, patients’ interests conflicting with those of health care employers and payers, and conflicts between therapeutic and forensic agency.

Various individual clinical and forensic topics were mentioned by fewer than 10% of respondents, including abuse reporting and management (and false accusations), duty to warn or protect, false and repressed memory issues, controversial treatment alternatives, patients who lie about symptoms to get disability payments or file lawsuits, therapist safety, impaired clinicians, informed consent, and being able to touch patients without being accused of impropriety.

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False Memory Verdicts and Settlements

A Texas verdict and an Illinois Settlement highlight recent multi-million-dollar victories for plaintiffs treated for apparently non-existent "repressed memories." Both the methods used and the clinical results of such psychological explorations are often suspect, and juries have little tolerance for the damage that can so easily be done by negligent or unscrupulous psychotherapists. The jury in the Texas case, Lynn Carl v. Judith Peterson (Cause No. H-95-661, US District Court, Southern District, Houston, TX), awarded $5.9 million.

Memory is a fragile thing, not nearly as permanent or reliable as most people believe. Once a patient (or witness, for that matter) becomes amenable to certain processes, such as during hypnosis and some other circumstances, it is quite easy to create or change memories. At that point, two principles become important: (1) the process is so subtle that the person usually does not realize the change is happening; and (2) once the change is made, the new memory is "real", and completely indistinguishable from other memories. The events may never have happened, but the person remembering is sure that they did, and would have no trouble passing a polygraph test (see another Update).

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Declaration Without Authorization

It's sneaky. It's unethical. It's probably illegal. And it's the fastest way I know to irritate an expert witness. It's knowingly listing or declaring an expert without first retaining him or her or, even worse, implying expert opinions which have not been genuinely offered.

From time to time, some attorneys (not the nice ones with whom I like to work, but the few who give lawyers a bad name) list an expert in a complaint or declaration without first asking the person himself/herself. Sometimes it's an honest mistake, but often the lawyer is trying to gain the benefit of an expert without paying the expert's fee, and/or is trying to influence the other side without bothering to get (and pay for) an honest review. Plaintiffs' attorneys are probably the most frequent offenders. Several colleagues have had a (fortunately) small number of experiences with unscrupulous lawyers who try to scare defendants into quick settlements by listing prominent experts who, they aver, are prepared to support their cases but who have no idea that they have been listed. We don't like it, and neither should the large number of ethical experts and lawyers who are damaged by such behavior.

If you're a forensic expert, consider inserting something like the following into your initial contact letter or retention agreement:

"Please note that you may not list me as an expert in the absence of a retainer or other working agreement. You may not imply that I hold any opinion which has not been genuinely rendered."

Such wording should protect both the case and your credibility, and put the few offending attorneys on notice that you will not tolerate having your name used without proper compensation (or in any manner that may compromise your reputation).

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Responsibility, Insanity and the Insanity Defense

Post-traumatic stress disorder and "rape trauma syndrome" were allowed as a defenses to murder in a recent New York case (People v. Polinario, Suffolk County, NY, 1997, cited in Forensic Psychiatry Echo). Although often difficult to prove, these and other "victim" defenses are finding their way into jury deliberations in criminal as well as civil actions. Unfortunately, the psychiatric reasonableness of the defense sometimes takes a back seat to the nature of the alleged crime or injustice and the social climate in which it occurs.

The gulf between the language of courts and the language of mental health professionals is only slightly smaller than that between British and U.S. "English." Many (probably most) psychiatrists confuse statutory concepts of "insanity" or "mental disease or defect" with medical terms (which they are not). Some psychiatrists believe that the mere presence of severe mental illness is per se exculpatory (it is not). Some lawyers confuse psychiatric terms such as "delusion, hallucination," or "schizophrenia" with statutory insanity (they are different). The point, which lawyers know but non-forensic psychiatrists and psychologists often don’t, is one’s ability to form intent and, sometimes, to resist the influence of the mental disorder. While many disorders can at times deprive one of the ability to form intent and comport oneself according to law, mental diseases and defects which always and continuously do so are rare indeed.

It is easy to defend someone who kills what he truly believes is an inhuman demon, or a small child who shoots a sibling without understanding that real guns bring real death. Once one gets beyond the basic premise of intent, however, things get more complicated. What about the depressed young mother who was convinced she was "saving" her children by killing them just before her unsuccessful suicide attempt? Does her belief that their killing met some higher purpose exonerate her? Consider the woman who alleged such fear of an abusive spouse that she felt killing him as he slept was self-defense? Or the delusional fellow who, after his bizarre complaints to police about malevolent people next door were rebuffed, set the neighbor’s home on fire to destroy his imagined persecutors? Or the paranoid who followed God’s instructions, heard in hallucinations, to eradicate fornicators and homosexuals. Each of these cases required careful assessment not only of diagnosis, but of emotional context and ability to resist impulses or hallucinated commands at the time of the act (and, of course, the defendant’s veracity).

Media reports notwithstanding, the insanity defense is not reserved for serious felony charges. Attorneys representing persons with obvious mental illness sometimes view the insanity defense (and, for that matter, challenges to trial competency) as a chance to "help" clients charged with relatively minor offenses. In many cases, however, the client/patient does not really benefit, even if found NGRI or unsuitable for trial. One reason is that such clients almost always spend more time in some form of custody (e.g., a mental hospital) than persons actually convicted of similar charges. This is true even for major crimes; it is very difficult for persons believed to be dangerous and unpredictable to gain release from state hospitals.

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Charles E. Steinberg, J.D.

Good people appear too rarely, and pass too quickly. Charles Steinberg, New York lawyer and teacher at the interface of mental health and the law, died May 22, 1999. From time to time, I will mark such passings. Any omission is due to inadvertence or my error, not a criticism of those unmentioned.

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Lying to Help Patients? Forensic Effects of Altruistic Upcoding

Doctors are often faced with patients who need care but whose symptoms or diagnoses do not meet insurors' payment criteria. In psychiatry, such cases might involve symptoms of a depression, for example, which is worthy of treatment but does not reach the level of mental disorder reimbursed by the patient's HMO. Sometimes the issue is that a particular diagnosis is simply not eligible for reimbursement under the policy. Sometimes the doctor recommends a particular level of treatment, such as hospitalization, which is not covered for a particular diagnosis or set of symptoms.

A recent issue of American Medical News (42[42], 11/8/99) quoted an article in the Archives of Internal Medicine (October 25, 1999) and discussed altruistic "up-coding." According to the Freedman et al. in the Archives, over half of doctors surveyed would support deception of a third-party payer to obtain financial authorization for a coronary bypass, and about a third would do so for a psychiatric referral. Nearly three-fourths said they work within payers' rules so long as patients' interests are not significantly compromised. Only 4.3 % implied their primary allegiance is to payers rules, but by the same token only 3.7% said their sole advocacy is for the patient regardless of third-party payer restrictions.

Although most such inflations of diagnosis and symptoms in psychiatry are done with the patient's benefit in mind, and are not primarily intended to increase the doctor's income, there are at least four good reasons not to do it, one of which is particularly relevant to malpractice exposure.

First, it's dishonest and may constitute fraud. That's simple. Patients (often through their employers) agree to certain levels of insurance coverage. If that coverage is insufficient (and assuming the coverage information is not misleading), it seems fair that they be required to stick to their part of the agreement. (Please don't confuse this point with disregard for patients. It is really a suggestion that people and employers be very careful when choosing their health care coverage.)

Second, it often suggests to the patient that dishonesty (and maybe fraud) is O.K., and that the doctor is colluding with the patient to deceive someone. That's the wrong message to send to a patient, especially in a specialty which values openness and honesty.

Third, it undermines epidemiologic data. Health policy decisions, actuarial tables, and health care research depend on accurate diagnoses from hospitals and other providers. If psychiatrists diagnose "Major Depressive Disorder" twice as often as necessary, then in a few years the prevalence of that disorder will double, and no one will know that the increase is simply because it was easy to get reimbursed for it.

Finally, diagnosis is a big factor in determining the standard of care. I've seen a few cases in which a patient appeared to have a relatively mild disorder (such as "Dysthymia," a troublesome but usually benign form of chronic depression) but a well-meaning doctor listed a more serious one (such as "Major Depressive Disorder, Severe") in the clinical record in order to qualify the patient for care or insurance coverage. Later, a tragedy (such as suicide) befell the patient and the doctor's care was called into question. The treatment may have met the standard for the lesser diagnosis (since that's what the doctor was really treating) but not for the more serious, documented one (since that wasn't really the diagnosis). Such doctors are then faced with a Hobson's choice of either having their care compared to the standard for the more serious diagnosis or admitting that they purposely deceived a hospital or payer.

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Guardianship and Access to Psychiatric Care: Discrimination & Stigma

A few years ago, broad allegations involving private psychiatric hospitals led to wild swings of the mental health public policy pendulum. In Texas, a well-meaning combination of statute and administrative rule now prevents many incapacitated persons (largely elderly ones) from receiving important psychiatric care.

The problem started with claims that some patients were unnecessarily admitted to private psychiatric hospitals (often transferred from nursing homes). The reports quickly got the attention of vocal consumer groups and the common practice of allowing Texans to consent for their own psychiatric hospitalization, routine in every state, was criticized. Several state mental health agency regulators took the position that people who need psychiatric hospitalization are likely to be incompetent to consent to it, and thus they must either be shown completely competent or go through state involuntary commitment procedures (essentially proved mentally ill and dangerous).

Everyone agrees that general competence, relevant knowledge, and voluntariness are fundamental to consent. Nevertheless, most clinicians (and at least one large patient advocacy group, the Texas Depressive and Manic Depressive Association) are troubled by State regulators’ coming between doctor and patient (and often family) in matters of primarily clinical, not bureaucratic, judgment. They note that far more patients are helped by voluntary admission than are hurt by rare abuses of the process. Texas’ commitment statutes, like those of most states, say that voluntary admission is to be preferred over involuntary commitment whenever feasible. Nevertheless, the Department of Health now requires that each psychiatric patient’s competence be measured rather than assumed. The assumption of competence which serves virtually every other consent-related topic (including non-psychiatric hospitalization) has been suspended for this narrow application of health care policy.

The rule requires that if anyone, including but not limited to a physician, has reason to doubt the patient’s complete comprehension of the admission process, including its possible future sequelae, the hospital must not admit him or her. This usually means that the patient must forego admission or be considered for involuntary commitment. Of course, the latter takes time and money, with the patient waiting for hospital care. In addition, the patient may merely be seriously ill, without the requisite imminent dangerousness. If the commitment effort fails, he or she probably will not receive inpatient care at all, no matter how much it is needed and requested, because once one has been found incompetent it is almost impossible to get voluntary psychiatric hospital treatment. (In Texas, guardians can consent to any medical and surgical care except mental hospitalization.) Here’s a case example (used with permission).

A bill which would help some such patients, allowing a reasonable avenue of voluntary hospitalization with guardian participation, stalled in the 1997 Texas legislature. It may be resurrected in 1999.

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Mental Health Class Action Settles; Had Alleged Substandard Care in State Hospitals

K.L. et al. v. Edgar et al. No. 92C5722 US Dist. Court, Northern District of IL, Eastern Division

Several years ago, the Illinois ACLU made broad allegations of substandard care in the Illinois state mental health system. Some estimates of the cost of system changes demanded by the ACLU approached $100 million per year. Over time, the Federal class action was limited to adult inpatient facilities, and both sides retained teams of experts to assess mental health care and system management. After extensive review of records, sites, staff, and patients, both teams agreed that clinical and management conditions and policies were, with few exceptions, adequate. In many instances, they were well above adequate.

A Rule 23(e) settlement finalized July 31, 1997, basically provides that the Department of Mental Health and Developmental Disabilities (DMHDD) will change parts of its restraint and seclusion policies and employ a University of Illinois consultant to provide certain training and technical assistance over the coming year. The agreement is not a "consent decree," nor does it contain extensive monitoring or enforcement requirements. In my opinion, the settlement largely supports the State’s position in the case.

This case is the first in memory in which a large state mental health system has successfully defended a significant class action alleging substandard care. In most such cases, agencies agree to sweeping changes funded by millions (sometimes hundreds of millions) of new budget dollars. Indeed, some plaintiffs and defendants view such lawsuits primarily as near-routine vehicles for forcing legislatures to increase funding.

There were several keys to Illinois DMHDD’s successful settlement: (1) a mental health system which was fundamentally sound, with willingness to make improvements as opportunities arose; (2) agency upper management with confidence in the system and respect for employees’ professional efforts; (3) willingness to retain highly competent outside legal counsel, allowing more efficient management of the defense effort; and (4) extraordinary cooperation among the agency, its facilities, its in-house lawyers, and the private counsel.

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ADA and Parental Rights of the Mentally Ill

The Americans with Disabilities Act (ADA), already often used to limit employers’ rights to terminate (or not hire) employees with mental illness, has now been invoked in an attempt to prevent an abusive mother from losing her parental rights. In State v. John D. (934 P.2d 308 [NM App., 1997]), Anna, a paranoid schizophrenic mother who repeatedly abused her son (even in visits after he was removed from the home) and who refused regular treatment, unsuccessfully appealed termination of her parental rights. Her allegations that the state agency did not make adequate efforts to accommodate her very destructive symptoms were not upheld, but the court did hold that ADA provisions could be used to argue Department violation of the Act. (Excerpted from The Forensic Psychiatry Echo, July, 1997)

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Unabombers and the Right Not to Plead Insanity

This update is no longer applicable to the Kaczynski trial; nevertheless, the topic continues to be pertinent to criminal defense. Early this year, the media reported Ted Kaczynski’s attorneys' frustration that they could not adequately defend him if he would not cooperate with efforts to find him incompetent or insane. Some of the public, angry as they were about his terroristic acts, wondered why such a "sick" person should be allowed to obstruct his own defense. The old saw was once again heard that defendants who loudly assert their sanity are the very ones that might just be crazy. Perhaps he "doth protest too much," or perhaps he wants a forum for his ideas.

The right to use a "political" defense rather than an "insanity" one, even when it is legally doomed, is a valuable part of our heritage. Some of the most stirring words in any country’s history come from hopelessly outgunned defendants who have the public eye just long enough to say something like "I only regret that I have but one life to give for ... ." With apologies to Nathan Hale, one may insert "unborn babies, "clean air," or "the fight against technology" just as easily as "my country."

In the former Soviet Union, hundreds, perhaps thousands, of anti-government activists were locked away in what they (but not I) called "mental hospitals" on the sole premise that anyone who would commit antigovernment acts or protest in the face of certain punishment must be crazy. To Soviet medicine’s discredit, many Russian psychiatrists helped further the process, coining the term "slow schizophrenia" to describe a nonexistent disease guaranteed to be afflicting those who would undermine the State. Psychiatrists who wouldn’t play along often found themselves similarly diagnosed and incarcerated.

Such an intrusion on one’s "right" to be found guilty of crimes (and, in our country, to be heard at public trial) is an abuse of psychiatry, personal freedom, and the legal system. Of course, if a defendant is truly incompetent or legally insane, he or she is entitled to a psychiatric defense, but let’s be careful out there.

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Driver’s License, Duty to Report, and Negligence

Few psychiatrists and psychotherapists realize that some states' dangerous illness reporting rules include a requirement to notify the department of motor vehicles (or local equivalent) when a patient may be unable to operate a car or truck safely. Designed largely for patients with seizure disorders, and sometimes limited to physicians, the statutes nevertheless use generic language which makes any impairment reportable if it reasonably may interfere with public safety. Some patients with substance abuse disorders and a minority of those with bipolar (manic-depressive) disorder, schizophrenia, and other serious conditions, may qualify. Patients with "organic" disorders such as Alzheimer’s dementia or brain injury with psychosis are often also seen by neurologists, who are generally more accustomed to reporting than psychiatrists; nevertheless, the psychiatrist may have the same duty as any other physician.

For those clinicians concerned about confidentiality, most (perhaps all) states do not construe good-faith reporting as a breach of privilege. Not reporting, on the other hand, is dangerous business. It can cause not only damage to the patient and others but also a malpractice or other negligence action against the doctor. The states with which I am familiar do not place the onus of driver’s license restriction or revocation per se on the reporting physician, but rather use the notification to decide whether or not they wish to carry out their own investigation. Physicians and patients who believe this is an unwarranted insertion of government into the doctor-patient relationship may note that we have lived with other forms of mandatory reporting for many years, including that for many infectious diseases, gunshot wounds, and various forms of physical abuse.

Americans take their driving privilege very seriously, and the threat of suspension is sometimes met with denial, depression, and/or anger. Still, the doctor should not go behind the patient’s back; the patient should be notified and the process and reasoning discussed whenever feasible. It is often best to allow the patient to participate in the process, with appropriate monitoring to be certain reporting is accomplished.

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Jail Mental Health Services

About half the jails in the U.S. have some access to a psychiatrist for their inmates. That doesn't mean a psychiatrist on site, or even on staff, but some agreement that can get a psychiatrist in an emergency. Over 90% provide some form of non-medical mental health services. The services vary, of course, with urban areas and large jails generally much more sophisticated, and better staffed, than rural community correctional mental health services. About 80% of jails with over 1000 inmates have some sort of access to a psychiatrist, compared to less than 40% of those with a daily census under 50 inmates. (Source: Mental Health, United States. Center for Mental Health Services, Washington, DC: 1998)

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Insurance Parity for Mental Patients

Psychiatric patients and their families are cautiously celebrating a victory of sorts in their effort to gain parity of coverage for mental illness in employer insurance plans. The Mental Health Parity Act allows exemptions for group health plans that can show that mental health coverage will increase their costs by more than one percent (1%). The Clinton administration initially indicated that employers and insurors could acquire an exemption by estimating, rather than actually showing, such cost increases; however, the administration appears now to be reversing its stand, renewing the spirit of the Act by requiring actual cost figures. Experienced psychiatrists and insurors know, but insurors often do not say, that large group coverage for serious mental illness is actuarially very sound (generally less expensive than dental coverage, although dental insurance is more popular with the average employee/subscriber).

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New Life for Polygraphs?

The Armed Forces Court of Appeals recently ruled, in U.S. v. Scheffer, that a defendant must not be automatically barred from introducing polygraph (sometimes misnamed "lie detector") evidence in his own behalf. The finding, based on Sixth Amendment principles, is now pending before the U.S. Supreme Court. If upheld, such a ruling would alter or overturn the many state and Federal court bans on polygraph use.

In a forensic context, polygraphs are designed to measure changes in various physiological reactions during questioning, based on the premise that emotion-laden thoughts and topics subtly change breathing patterns, pulse, perspiration, and other natural processes. Many factors can affect the validity and reliability of polygraphy (for or against the subject), including the subject’s personality, his or her current mental state, the general reaction to the topic, subject practice or knowledge of the process, the polygraphy setting, the polygrapher’s skill and qualifications, and the manner in which the results are interpreted.

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