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Basic Concepts for Attorneys & Psychiatrists

Involved in Forensic Psychiatry

Basic Information articles and vignettes formerly on the Main Page

 

Contents and concept copyright 1998-2009 by William H. Reid, M.D., M.P.H., unless otherwise assigned. Full-text material from the Journal of Psychiatric Practice is copyrighted by Lippincott Williams & Wilkins, and is used with permission.

 

Basic Information Articles & Vignettes

 
FOR LAWYERS AND CLINICIANS
Important Qualifications for Forensic Psychiatrists -- A "BASIC" information vignette
Clinical Practice and Psychiatric Expert Witnesses -- A "BASIC" information vignette
Pitfalls for Inexperienced Experts (and the Lawyers Who Engage Them)
Why Nonforensic Clinicians Should Decline Forensic Referrals (FULL-TEXT) 3/2003
Should the Treating Clinician Be an Expert Witness? -- A "BASIC" information vignette
More Sources of Conflict When Acting as Both Treater & Forensic Expert -- A "BASIC" information vignette
  Treating Clinicians & Expert Testimony -- (FULL-TEXT) 1998 (older article with detailed discussion of the topics immediately above)
  The Treatment-Forensic Interface -- (FULL-TEXT ) 3/2008 (conflict of interest & other issues when mixing treatment and expert roles)
Child Custody Evaluations: There Are Rules! -- A "BASIC" information vignette 10/2006
Forensic Psychiatrists' Fee Agreements -- A "BASIC" information vignette
Forensic Use & Abuse of Psychological Tests -- A "BASIC" reference (FULL-TEXT) 7/2003
MOSTLY FOR LAWYERS
Dos and Don'ts When Choosing and Working with Expert Witnesses
  Declaration Without Authorization (False or Premature Declarations; Listing an Expert Without Permission)
MOSTLY FOR DOCTORS
When Clinicians Must Testify in Court -- (FULL TEXT) 05/06 (Understanding and preparing to testify about a patient)
The Practice of Forensic Medicine (For Nonpsychiatrist Physicians) (FULL-TEXT) 3-4/2003
Back to Basics: Law and Mental Health -- A "BASIC" reference (FULL-TEXT) 5/2003
  Forensic Work by Nonforensic Clinicians, Part I (initial topics & tasks) (FULL-TEXT) 3/2002
  Forensic Work by Nonforensic Clinicians, Part II (reports, depositions) (FULL-TEXT) 5/2002
Forensic Work by Nonforensic Clinicians, Part III (courts, trials) (FULL-TEXT) 7/2002
AAPL Ethics Guidelines for Forensic Psychiatry
Ethics and Forensic Work (FULL-TEXT) 11/2002
  Staying Ethical Under Pressure (FULL-TEXT) 3/2000
  Top 19 Things to Remember When Working With Lawyers & Courts (for clinicians) (FULL-TEXT) 7/99
  Evaluations in Jails & Prisons (FULL-TEXT) 1/2002
Sexual Predator Evaluations & Commitments (FULL-TEXT) 9/2002
  The Insanity Defense: Mad, Bad, or Both? (FULL-TEXT) 5/2000
   
  Contact Dr. Reid

Clinical experience is critical to most cases. The psychiatrist is hired primarily for his or her ability to clarify the psychological and medical issues of a case, not to interpret legal ones. This does not mean that the forensic psychiatrist must have a large clinical practice, but some contact with clinical care and/or medical teaching is relevant to most (especially civil) cases.

The forensic psychiatrist should be expected to understand the legal concepts and impact of the mental health issues in a case, and to be able to convey his or her psychiatric findings in language that the court can understand and use. Attorneys unfamiliar with mental health law or the potential effect of a psychiatric issue on their cases should be able to rely on the forensic psychiatrist’s knowledge and experience to some extent, but the legal process itself is the province of lawyers and judges.

Attorneys, clients, and courts should also expect that a professional offering expert psychiatric opinions has an M.D. or D.O. degree, has completed approved specialty training, is appropriately licensed, has been "certified" by the American Board of Psychiatry and Neurology, is a member in good standing of professional organizations with ethics codes, actively participates in continuing education, is accepted by clinical/patient-care peers (e.g., serves on medical staffs of hospitals, practices within a clinical community, and/or teaches at a medical school), and enjoys a good reputation within the profession. (Note that there are competent psychiatrists who are not Board-certified or do not belong to professional organizations. Nevertheless, certification and membership are consistent with qualities which are important to consider in forensic settings.) The potential expert’s background should be free of factors which might diminish professional credibility (e.g., license restrictions, frequent personal lawsuits).

General psychiatric training and clinical experience are sufficient for some forensic purposes. In most, however, familiarity with highly specialized clinical issues (e.g., sexual harassment, hospital standards, violence, child psychiatry) and/or forensic topics (e.g., criminal responsibility, competencies & capacities, wrongful death, child custody proceedings) is required. Such expertise may be demonstrated by additional training, relevant experience, special certification (e.g., forensic psychiatry certification), research, or publications related to the topic at hand.

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Dos and Don'ts When Choosing and Working with Expert Witnesses

The July, 2002, Washington State Bar News published a good article by Scott E. Miller (an accountancy expert) on choosing and working with expert witnesses. The generic principles Mr. Miller outlined are similar to those discussed for psychiatrists and psychologists on this website and elsewhere. They include engaging the expert early (I hate it when new lawyers call a few days before trial); being sure he or she is professionally qualified, an excellent communicator, and willing to give the attorney "bad news" about the case if he finds it; agreeing on fees, retainers, etc., in writing; providing clear deadlines with periodic checks on progress; listening to the expert's requests for access to information (and, in mental health matters, often to litigants and corroborating parties); and properly preparing the expert for deposition and trial.

He strongly recommends against such things as waiting until the last minute to engage an expert, choosing one who is inexperienced or merely a "yes man" or "hired gun," not monitoring the expert's work to some extent, and expecting him or her to testify competently without preparation time with the lawyer.

The complete article appears at www.wsba.org/barnews/2002/07/miller.htm. Mr. Miller can be reached through his website at www.millercpa.com.

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Pitfalls for Inexperienced Experts (and the Lawyers Who Engage Them)

Nobody's poerfect (. . . er, perfect), but as I become aware of more and more psychiatrists and psychologists seeking or accepting forensic cases in formerly all-clinical practices, I am moved to suggest caution to both the clinicians and the attorneys who work with them. Most professions have a fine tradition of continuing education. Many forensic proefssionals, including myself, offer occasional seminars, courses, and writings about forensic practice. We may not have said enough about the pitfalls and liabilities of practicing forensic psychiatry or psychology without sufficient training and experience.

One has to learn somewhere. For the past 15 years or so, psychiatric trainees interested in forensic practice have been able to take a fifth year of specialty training (residency) in a supervised forensic fellowship (now required for Board certification in forensic psychiatry). Many other (sometimes excellent) forensic psychiatrists have learned the subspecialty through short courses, reading, mentoring, and experience.

My concern is with those who accept attorney or court referrals without knowing enough about the forensic aspects of the consultation. A firm clinical foundation is important to expertise in most matters of law and mental health, but forensic practice is a subspecialty. Some of its basic principles are found in general psychiatry and psychology, but others are not. An attorney or litigant may not be well served by an expert who has just read his or her first book on forensic practice.

For a more detailed discussion of potential problems, go to a recent article reprinted on this site (Why Non-Forensic Clinicians Should Decline Forensic Referrals).

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Clinical Practice and Psychiatric Expert Witnesses

Dawson v. Prager and The Menninger Clinic (Kansas Supreme Court, 2003, No. 88,077) caught my eye. In that case, a psychiatrist's expert testimony was disqualified because she (Dr. Prager) said that her clinical practice (20 hours per week) occupied only 30-40% of her professional time. Kansas state law requires that at least 50% of an expert's professional time be spent in "clinical practice" if he or she is to testify about the standard of care for health care providers (K.S.A. 60-3412). (Thanks to Dr. Joel Dvoskin for bringing this case to my attention.)

Psychiatrist experts are often asked about their own clinical practices. Lawyers in malpractice or other standard of care matters may try to decrease a medical experts' credibility by implying that he or she does little clinical work, suggesting the witness is not qualified to offer opinions on clinical care. Some states require that experts testifying in malpractice matters be "clinically active" or spend a certain portion of their time doing "clinical" work.

It is important for lawyers, courts, and juries to understand that the concepts of clinical practice and forensic work are by no means mutually exclusive. They often overlap a great deal. In addition, one should not equate relevant "clinical work" or "clinical practice" with direct patient care.

Although it's nice when an expert can answer "yes" when asked "do you see patients, doctor," that question is often irrelevant to whether or not the witness meets some criterion for either clinical practice or expertise. Many very "clinical" physicians, including some psychiatrists and a great many other doctors, don't "treat" at all, but focus on examination, diagnosis, or consultation (even consultation which rarely involves seeing the patient himself, such as in radiology or pathology).

"Clinical" is a broad term which is not limited to the common image of individual patient care. It may include examination, evaluation, or care in many different settings (including forensic ones), supervision of patient examination or care (e.g., in clinical teaching or clinician oversight), consultation and other clinical activity which affects diagnosis or treatment but often creates no doctor-patient relationship, medical teaching on clinical topics (with or without a patient present), attending clinical conferences or continuing education programs, reviewing medical histories or records, and clinical review and research (including reviewing clinical/professional literature).

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Should the Treating Clinician be an Expert Witness?

Plaintiffs and claimants in forensic psychiatry matters have often been treated by a mental health professional and use information from such clinicians to support their cases. Triers should be made aware of some of the pitfalls inherent in the testimony of treating psychiatrists, other physicians, and psychotherapists, especially when they are offered as expert witnesses. Although a common practice in some jurisdictions, questions regarding prudence, conflict of interest, and admissibility of expert testimony from treating clinicians are not idle ones. In a recent case, the treating psychiatrist for a patient had apparently billed her well over $100,000 for psychotherapy, and her lawyer (apparently passed through to the patient) over $100,000 for expert witness services. He testified that he would probably treat the patient for months or years in the future as well.

There are at least four reasons that such a dual relationship is not advisable.

First, a treatment relationship clearly creates a professional and ethical obligation to act in the best interests of the patient. The patient has a right to rely on this attitude in the doctor or therapist during (and after) the treatment relationship. It is a cornerstone of the patient's ability to work in therapy free of concerns about future divulging of confidences, betrayal, or exploitation. Since forensic consultation or testimony, by definition, requires objective comment regardless of the patient's wishes or needs, an inherent clinical and ethical conflict is created. This conflict is recognized in the ethical guidelines of general psychiatrists, forensic psychiatrists and psychologists, often expressed as the patient's right to expect a single, private, treatment role from his or her therapist.

Second, a treating clinician who testifies regarding a current or past patient knows (or should know) that he or she is professionally and ethically required to act in the patient's interest. Having spent many hours (perhaps dozens or hundreds) working with a patient, sometimes quite intimately, clinicians often feel a personal affinity for that patient's viewpoint. There is thus a danger of intentional bias toward the patient.

Third, separate from the clinician's conscious awareness of a duty or wish to act in the patient's interest, the obligation to "do no harm" to the patient is keenly felt by ethical practitioners. Even if they attempt to be objective in forensic reports or testimony, there is a danger of unintended bias toward the patient.

Fourth, the ethical principles of both the American Psychiatric Association and the American Psychological Association require that when a treating psychiatrist or psychotherapist believes it may later become necessary to comment to a third party (such as an employer or insurance company), this is to be discussed fully with the patient as early as is feasible. Clinicians know (or should know) that awareness of the probability of disclosure affects the patient's conversations and disclosures to some extent, and this in turn affects the validity of any forensic participation.

The purpose and goals of the treating clinician are fundamentally different from, and often conflict with, those of the forensic expert. The treater has fiduciary and ethical obligations to the patient which demand that the patient's interests and wishes be placed before all else. The forensic consultant's responsibilities, on the other hand, are to objectivity and the court. Although often a lawyer's agent, both the law and professional ethics demand that the forensic professional be objective in both commission and omission; he or she has no obligation to the litigant or "evaluee" (and does not refer to that person as his "patient"). (See also Strasburger LH, Gutheil TG, Brodsky A: On wearing two hats: Role conflict in serving as both psychotherapist and expert witness. American Journal of Psychiatry 154(4):448-456, 1997.)

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More Sources of Conflict When Acting As Both Treating Clinician and Forensic Expert

Several issues of conflict between treatment and expert (forensic) roles are addressed in another Update vignette (above). A recent case in which I was involved highlighted a few others, emphasizing problems that often arise when forensic evaluators assume a treatment role (as contrasted with the converse, which was emphasized in the vignette above). This list adds another dimension to the discussion: that of potential harm to the evaluee/patient.

Forensic mental health professionals should know about the potential for substantial conflict and should have acquainted themselves generally with the ethical and legal consequences that are likely to arise. Thus the following suggest that those who venture into these waters without very good reason (such as an emergency) are at best imprudent, and at worst knowingly misleading the legal process.

1. If the initial referral is forensic, the forensic professional may do an incomplete clinical evaluation, and/or may not document the evaluation, history, symptoms, diagnoses, treatment plan, and prognosis as completely or objectively as would a treating clinician.

2. If the initial referral is clinical but the role later becomes forensic, the diagnosis, treatment, and/or documentation of care may change, to the detriment of the patient's clinical needs.

3. A forensic expert who is treating a litigant may unconsciously (i.e., without overt malicious intent) create incomplete or skewed treatment documentation. He or she knows that the notes are very likely to be revealed during the litigation. There may be a subtle wish or impulse to support the attorney's case, and/or to please the attorney.

4. A forensic expert who is treating a litigant may unconsciously (i.e., without overt malicious intent) diminish or otherwise change his or her treatment or procedures in a way that (a) creates findings that will support the legal case and/or please the attorney, (b) obscures findings that might refute the attorney's case, (c) avoids (or fails to encourage) potentially effective assessment and treatment procedures (e.g., to keep the patient from improving and decreasing damages), and/or (d) prevents timely referral to nonforensic clinicians.

5. A forensic expert who is treating a litigant may consciously (i.e., with overt intent) create incomplete or skewed treatment documentation and/or diminish or change his or her treatment or procedures in the ways described above.

6. A forensic expert who is treating a litigant may consciously (i.e., with overt intent) use a nominal "treatment" relationship to prevent creation of a legitimate factual treatment situation. That is, by controlling the documentation of clinical care, an unscrupulous expert would be in a position to control, if he or she chose to do so, opposing counsel's access to accurate clinical information.

7. A forensic expert who is treating a litigant could consciously (i.e., with overt intent) collude with the litigant to misrepresent symptoms, diagnoses, treatment response, or disability (note that this may occur with nonforensic clinicians as well, usually out of a misguided effort to help the patient).

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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.

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AAPL Ethics Guidelines for Forensic Psychiatrists

The American Academy of Psychiatry and the Law (AAPL), the oldest and most respected U.S. organization at the interface of psychiatry and the law, is dedicated to excellence in practice, education, and research in forensic psychiatry. AAPL members are expected to adhere to the American Medical Association Principles of Medical Ethics, as well as to the American Psychiatric Association's "annotations" of that AMA document. AAPL members are also provided additional guidelines which address the special activities and situations seen in forensic practice. It should be noted that nothing is taken away from the broader medical and psychiatric principles; specific forensic topics are simply added. After some three years of drafting, with both internal and external review, AAPL recently (May, 2005) issued a new version of its longstanding ethics guidelines.

The complete text is available at www.aapl.org/pdf/ETHICSGDLNS.pdf, or by going to the AAPL home page at www.aapl.org.

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Forensic Psychiatrists' Fee Agreements

Dr. Thomas Gutheil begins a brief article in the Journal of the American Academy of Psychiatry and the Law with the comment that most lawyers who retain psychiatric experts respect the expert witness relationship and deal with fees and charges without any problem. Tom has also been known to say, with the sage smile seen only on that rara avis, professoriae harvardium, that a forensic psychiatrist who doesn't see the necessity of a fee agreement is one who hasn't yet been stiffed by an attorney. His survey indicates that some experienced experts still don't use them, but most do. (Gutheil TG [2000]. Forensic Psychiatrists' Fee Agreements: A Preliminary Empirical Survey and Discussion. J Am Acad Psychiatry Law 28(3):290-292)

Twenty senior forensic psychiatrists responded to his survey, and 11 sent copies of their written fee agreements. Actual fees were not revealed in the article. Almost all specified retainers, some requiring replenishment as work progressed. Most specified the same hourly rates for all billable activities; a few charged different amounts for different activities (e.g., review, testimony, conference, examination, travel). Most had a "day rate" for work that involves longer periods or travel. A minority listed interest rates for overdue bills. Advance deposits against hours or expenses spent in testimony or other time-consuming activity were common. While several mentioned refunds of overpayments (e.g., for unused travel or testimony time), only one (yours truly, in fact) had a sliding refund scale which depended on the amount of cancellation notice received.

I should point out some of the reasons that many experts require payment before releasing a report or scheduling testimony, lest some readers misunderstand and think it crass or greedy. It is neither.

Fiscal practicality aside, there is a strong issue of credibility and ethics which suggests that experts should be paid before opinions are offered or testimony given. An opinion which is rendered with several thousand dollars of unpaid bills can be (and often is) criticized something like this:

Opposing Lawyer: "Doctor, does attorney X owe you any money at this point in your work on her case?"

Expert Witness: "Yes, there is a bill outstanding."

O.L.: "Approximately how much?"

E.W.: "About $3500, plus time and expenses for coming to this trial. Perhaps $8000 in all."

O.L.: "So, it's fair to say that you're testifying with a big bag of money hanging over your head, doctor, and that attorney X may not be pleased if you answer the wrong way?"

(Sound of jury members' turning expectantly to hear how the expert witness answers this one.)

In addition, and unfortunately for a noble profession, some lawyers don't pay their bills, especially after the expert's usefulness has passed (and even more especially if the expert's opinions have not helped win or favorably settle the case).

An advance deposit against billings obviates these problems of credibility, ethics, and practicality. It establishes that one is not paid for his or her opinions per se, but for the time and effort expended in reaching and (if asked) expressing them, and eliminates any appearance of extorted testimony.

A good consultant understands the lawyer's objectives and may help greatly with them, but our task and our compensation are related solely to the consultation process and expressing our findings. Our fees -- and payment of them -- must not depend on the lawyer's view of whether or not those findings were valuable to his case.

A last word to attorney-readers: Most of you are great folks to work with; the rest . . . well, you know who you are.

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Declaration/Listing 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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If you are a legal or judicial professional and wish to discuss a forensic psychiatry matter, please contact

William H. Reid, M.D., M.P.H.

P.O. Box 4015, Horseshoe Bay, TX 78657

(830) 596-0062 (voice) --- (830) 596-9047 (fax) --- Email Dr. Reid

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