Psychiatry and the Law - Basic Principles (Mar 30, 2024)_(3031525884)_(Springer) 9783031525889, 9783031525896

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Psychiatry and the Law Basic Principles Tobias Wasser Rocksheng Zhong Editors Second Edition

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Psychiatry and the Law

Tobias Wasser • Rocksheng Zhong Editors

Psychiatry and the Law Basic Principles Second Edition

Editors Tobias Wasser Frank H. Netter MD School of Medicine Quinnipiac University North Haven, CT, USA

Rocksheng Zhong Department of Psychiatry and Behavioral Sciences The University of Texas Medical Branch at Galveston Galveston, TX, USA

ISBN 978-3-031-52588-9    ISBN 978-3-031-52589-6 (eBook) https://doi.org/10.1007/978-3-031-52589-6 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2017, 2024 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland Paper in this product is recyclable.

Contents

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 Introduction: Why Understanding the Law Matters ����������������������������   1 Tobias Wasser and Katherine Michaelsen

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 Understanding the Law and Legal System����������������������������������������������   9 Will Rutland

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Confidentiality and Privilege��������������������������������������������������������������������  19 Tobias Wasser and Amanda Yuan Sun

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Duties to Third Parties������������������������������������������������������������������������������  33 Katherine Michaelsen

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Informed Consent��������������������������������������������������������������������������������������  51 Simha E. Ravven

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 Voluntary and Involuntary Psychiatric Hospitalization������������������������  61 Marina Nakic

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Involuntary Medications ��������������������������������������������������������������������������  75 Yi Wang

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Decision-Making Capacity������������������������������������������������������������������������  85 Rocksheng Zhong and Maya Prabhu

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 Psychiatric Evaluations Intended for Third Parties ������������������������������  97 Andrew N. Tuck and Ariana Nesbit Huselid

10 Ethics���������������������������������������������������������������������������������������������������������� 113 Karsten M. Heil and Charles Dike 11 Social  Justice and Health Equity�������������������������������������������������������������� 127 Carmen Black, Jessica Isom, and Ignacio Cerdeña 12 Malpractice������������������������������������������������������������������������������������������������ 139 Amanda Kingston and Scott Walmer 13 Suicide Risk Assessment���������������������������������������������������������������������������� 155 Ayala Danzig and Hal Wortzel

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Contents

14 Violence Risk Assessment�������������������������������������������������������������������������� 177 Alexander Westphal 15 Substance  Use Disorders and the Law ���������������������������������������������������� 189 Abhishek Jain and Elie G. Aoun 16 Child  and Adolescent Forensic Psychiatry���������������������������������������������� 203 Carlos A. Salgado 17 Geriatric Forensic Psychiatry ������������������������������������������������������������������ 215 Jessica Abellard 18 Competence  to Stand Trial and the Insanity Defense���������������������������� 229 John K. Northrop and Hassan M. Minhas 19 Working  with Patients with Criminal Justice Involvement ������������������ 241 Michelle Joy 20 Conclusion:  How to Learn More About Forensic Psychiatry���������������� 253 Tobias Wasser Index�������������������������������������������������������������������������������������������������������������������� 259

Editors and Contributors

About the Editors Tobias  Wasser, MD  attended college at Wesleyan University, medical school at the University of Connecticut School of Medicine and completed his psychiatry training at Yale, including serving as chief resident, and completing fellowships in forensic and public psychiatry. After completing his training, he joined the psychiatry department at Yale as faculty. During his time on the faculty, he held academic leadership roles in the public psychiatry and residency training programs and clinical leadership roles in the state forensic mental health system, Yale-New Haven Hospital and the Yale Department of Psychiatry. Dr. Wasser has previously served as president of the Connecticut Psychiatry Society and the American Association of Psychiatric Administration and Leadership. Dr. Wasser is recognized as a regional and national leader in forensic psychiatry and medical education, has held multiple leadership roles for various national organizations, and has received multiple awards both locally and nationally in the areas of medical education, mentorship, and psychiatric ethics. Dr. Wasser now serves jointly as Professor and Chair of Psychiatry for the Frank H.  Netter MD School of Medicine at Quinnipiac University and for Hartford Healthcare as the Chair of Psychiatry and Behavioral Health for the Fairfield Region.

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Editors and Contributors

Rocksheng Zhong, MD, MHS  is Associate Professor and Director of Forensic Services in the Department of Psychiatry and Behavioral Sciences at the University of Texas Medical Branch, as well as Lecturer in the Law and Psychiatry Division of the Yale School of Medicine. He completed medical school at the Yale School of Medicine, general psychiatry residency at the University of Pennsylvania, and forensic psychiatry fellowship at the Yale School of Medicine. He is board certified in general psychiatry, forensic psychiatry, and addiction medicine. Prior to joining UTMB, he served as Medical Director of Northern Arizona for Southwest Behavioral and Health Services, where he supervised the treatment of serious mental illness and addiction and was a court-­ appointed psychiatric examiner for Mohave County Superior Court civil commitment proceedings. Dr. Zhong’s research focuses on the intersection of psychiatry, law, and ethics, with particular emphasis on decision-making capacity and competence. He has written, taught, and presented on issues concerning medical ethics and mental health ethics, including informed consent, physician aid in dying, guardianship, and remorse. Dr. Zhong maintains a clinical practice in general and forensic psychiatry at UTMB, where he provides outpatient mental health treatment as well as expert consultation on a range of criminal and civil matters for courts and attorneys in the Greater Houston and Galveston region.

Contributors Jessica  Abellard  Department of Psychiatry, Yale School of Medicine, New Haven, CT, USA Elie G. Aoun  Columbia University College of Physicians and Surgeons - Division of Law, Ethics, and Psychiatry, New York, NY, USA Carmen Black  Department of Psychiatry, Yale University, New Haven, CT, USA Morehouse School of Medicine, Atlanta, GA, USA Ignacio Cerdeña  Department of Psychiatry, Yale University, New Haven, CT, USA Ayala Danzig  VA Connecticut Healthcare System, West Haven, CT, USA Yale School of Medicine, New Haven, CT, USA

Editors and Contributors

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Charles Dike, MD, MPH  Law and Psychiatry Division, Yale School of Medicine, New Haven, CT, USA Karsten M. Heil  Locardius Psychiatry PC, Los Gatos, CA, USA Jessica Isom  Department of Psychiatry, Yale University, New Haven, CT, USA Codman Square Health Center, Boston, MA, USA Abhishek Jain  Columbia University College of Physicians and Surgeons - Division of Law, Ethics, and Psychiatry, New York, NY, USA Michelle  Joy  Department of Psychiatry, Perelman School of Medicine, Philadelphia, PA, USA Amanda  Kingston  Department of Psychiatry, Abington-Jefferson Health, Abington, PA, USA Katherine  Michaelsen  Department of Psychiatry and Behavioral Sciences, University of Washington School of Medicine, VA Puget Sound Health Care System, Seattle, WA, USA Hassan M. Minhas  Law and Psychiatry Division, Department of Psychiatry, Yale School of Medicine, New Haven, CT, USA Marina Nakic  Law and Psychiatry Division, Connecticut Mental Health Center, Yale School of Medicine, New Haven, CT, USA Ariana Nesbit Huselid  Department of Psychiatry & Behavioral Sciences, Duke University School of Medicine, Durham, NC, USA Department of Psychiatry, University of North Carolina at Chapel Hill, Durham, NC, USA John  K.  Northrop  Department of Psychiatry, Perelman School of Medicine, University of Pennsylvania, Philadelphia, PA, USA Maya  Prabhu  Law and Psychiatry Division, Department of Psychiatry, Yale School of Medicine, New Haven, CT, USA Simha E. Ravven  Law and Psychiatry Division, Department of Psychiatry, Yale School of Medicine, New Haven, CT, USA Will Rutland  University of Alabama Birmingham Heersink School of Medicine— Montgomery Campus, Montgomery, AL, USA Carlos  A.  Salgado  Department of Psychiatry & Behavioral Health, Herbert Wertheim College of Medicine, Florida International University, Miami, FL, USA Amanda Yuan Sun  Department of Psychiatry, Johns Hopkins University School of Medicine, Baltimore, MD, USA Andrew  N.  Tuck  Department of Psychiatry & Behavioral Sciences, Duke University School of Medicine, Durham, NC, USA

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Editors and Contributors

Scott  Walmer  Rocky Mountain Forensic Psychiatry, Parkview Medical Center, Pueblo, CO, USA Yi  Wang  Department of Psychiatry, Hospital of the University of Pennsylvania, Philadelphia, PA, USA Tobias Wasser  Frank H. Netter MD School of Medicine, Quinnipiac University, North Haven, CT, USA Alexander  Westphal  Law and Psychiatry Division, Yale School of Medicine, New Haven, CT, USA Hal Wortzel  University of Colorado School of Medicine, Aurora, CO, USA Rocksheng Zhong  Department of Psychiatry and Behavioral Sciences, University of Texas Medical Branch, Galveston, TX, USA

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Introduction: Why Understanding the Law Matters Tobias Wasser and Katherine Michaelsen

Students, trainees, or mental health practitioners may already have an inclination that understanding the law matters in psychiatry. But what exactly makes the law so important? And why in psychiatry in particular? State and federal laws have a significant impact on the practice of medicine. Psychiatry is particularly affected as it is the most heavily legally regulated of all medical specialties [1]. Far more than any other medical specialty, the law grants psychiatrists the ability to deprive people of their civil liberties. Psychiatrists are permitted to force interventions on patients against their will—including hospitalization, medication, or even other procedures. Further, in a variety of settings, psychiatrists are tasked with determining whether patients have the capacity to make certain decisions for themselves—including decisions related to medical care, finances, and estate planning—or are in need of surrogate decision-makers. In some states, any physician may make these determinations; however, in practice, psychiatrists are most often called upon. The privilege to override individuals’ rights to autonomy is subject to careful legal oversight and protections. State and federal laws delineate the limited circumstances within which psychiatrists may deprive patients of their civil liberties. Patient autonomy is generally protected except in cases involving serious concerns about safety or well-being [2].

T. Wasser (*) Frank H. Netter MD School of Medicine, Quinnipiac University, North Haven, CT, USA e-mail: [email protected] K. Michaelsen Department of Psychiatry and Behavioral Sciences, University of Washington School of Medicine, VA Puget Sound Health Care System, Seattle, WA, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 T. Wasser, R. Zhong (eds.), Psychiatry and the Law, https://doi.org/10.1007/978-3-031-52589-6_1

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The law also regulates aspects of psychiatric practice that may be anxiety-­ provoking or confusing to clinicians because they can present liability concerns. For example, the law sets expectations regarding the confidentiality of a patient’s protected health information, a clinician’s duties to third parties, and deviations from standards of practice that may lead to liability [2]. Regulations vary significantly by state, so practitioners must be familiar with the laws in the states where they practice. A better understanding of psychiatry and the law may also assist clinicians with correctly identifying scenarios that fall within the scope of their practice and cases that may benefit from consultation or referral to a specialist. Further, there are innumerable ways in which bias, discrimination, and racism influence our legal and criminal justice systems. It is important that all clinicians have an understanding of the impact of these forms of prejudice on their patients. Understanding the legal regulation of psychiatry and ways that psychiatry is used to answer legal questions form the basis of the subspecialty of forensic psychiatry. The American Academy of the Psychiatry and the Law (AAPL), the most prominent American professional organization for forensic psychiatrists, is dedicated to excellence in practice, teaching, and research in forensic psychiatry [3]. AAPL defines forensic psychiatry as “a medical subspecialty that includes research and clinical practice in the many areas in which psychiatry is applied to legal issues” [3]. While a fellowship in forensic psychiatry may provide an avenue to expand a psychiatrist’s knowledge and skills at the legal interface, a basic understanding of the law is essential for all psychiatrists, regardless of clinical setting or psychiatric subspecialty (Table  1.1). Further, the increasing number of justice-involved individuals with mental illness creates a need for general psychiatrists to be comfortable treating forensic patients [4, 5]. Even if all forensic psychiatrists dedicated themselves to treating solely incarcerated and/or justice-involved individuals (let alone all the other forensic tasks), there would not be sufficient psychiatrists to address the growing demand [6].

Table 1.1  Impact of the law in various psychiatric subspecialties Clinical setting All Outpatient Inpatient Emergency room Subspecialty Child and adolescent Geriatric Psychosomatic Addiction

Examples Confidentiality, malpractice, informed consent, caring for patients with criminal justice involvement, social justice and health equity, ethics Involuntary outpatient commitment, duties to third parties (i.e., Tarasoff warnings) Civil commitment, involuntary medication Emergency hold and/or emergency involuntary commitment, suicide risk assessment, violence risk assessment Guardianship, termination of parental rights Testamentary capacity (capacity to write a will), decision-making capacity Decision-making capacity Court-ordered substance abuse treatment

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Developing an understanding of the law is particularly important during psychiatry training. Even in the midst of continuing education and professional development, most clinicians continue to practice what they learned through didactics and clinical experience during their training [7]. Currently, there is significant variability in exposure to both forensic teaching and forensic clinical experiences in the USA and Canada [8–10]. There is also evidence that greater experience with forensics in the classroom and, even more so, in clinical settings is associated with increased comfort and/or willingness to treat forensic patients [9–11]. Learning about these concepts during training provides an important foundation for building one’s knowledge, skills, and attitudes during one’s career. Further, it is important to understand which aspects of psychiatry are regulated at the state vs. federal levels, especially if a psychiatrist goes on to practice in different states. The Accreditation Council for Graduate Medical Education (ACGME) recognized a number of legally related requirements in the developmental milestones for psychiatry residents that were originally published in 2014 and more recently updated in 2020 [12]. The ACGME milestones include knowledge, skills, attitudes, and other attributes for each of the ACGME competencies and are organized in a developmental framework from less to more advanced. Each milestone is a descriptor and target for resident performance as he or she progresses from entry into residency through graduation [12]. The six domains of physician competency assessed by the milestones are patient care (PC), medical knowledge (MK), professionalism, systems-based practice (SBP), interpersonal and communication skills (ICS), and practice-based learning and improvement (PBLI). Table 1.2 includes examples of forensic topics described within the milestones. Table 1.2  Examples of forensic psychiatry related ACGME milestones in residency Clinical setting PGY-1 Inpatient psychiatry Inpatient psychiatry Inpatient psychiatry PGY-2 Psychosomatic medicine Psychosomatic medicine PGY-3 Outpatient psychiatry Outpatient psychiatry Outpatient psychiatry

Forensic topics

Milestone

Suicide risk assessment Violence risk assessment Liability

PC1, PROF1 PC1, PROF1 PROF1

Decision-making capacity Informed consent

MK1, ICS1 ICS1

Liability Forensic referral and consultation Confidentiality

PROF1 PC6, PROF1 ICS3

PGY Postgraduate year, ACGME Accreditation Council of Graduate Medical Education, PC Patient care, MK Medical knowledge, PROF Professionalism, SBP Systems-based practice, ICS Interpersonal and communication skills

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Connecting the Law to Clinical Work To highlight the importance of understanding the law in clinical practice, let’s review a fairly typical patient presentation requiring inpatient admission. As the reader thinks critically about each step in the process, the law’s profound impact on psychiatric practice becomes apparent.

Case Example Initial Presentation You are working in the psychiatric emergency room of your local area hospital. While on your shift, the nurse comes to you and says there is a new patient, Max, waiting to be seen. The nurse provides you with the following information about the patient: Max is a 22-year-old single male with a history of schizophrenia who was brought into the hospital by the police after an explosive outburst at his outpatient clinic. Max had an appointment with his therapist in the clinic today, but has had difficulty making it in for his appointments, so a case manager picked him up at home and drove him to the clinic. On the ride to the clinic, Max disclosed that he hadn’t been taking his prescribed medications for several days. When asked further about this decision, Max stated that he had stopped taking the medication because there were microchips implanted in his pills by his therapist to help the clinic staff track his movements around town. He was very upset about these attempts to monitor him and planned to discuss this with his therapist today at his appointment. While in the clinic lobby waiting to meet with his therapist, Max suddenly began screaming at the case manager, stating that the case manager was involved in the microchip conspiracy. Max’s behavior quickly escalated into threatening violence and then he attempted to punch the case manager. Fortunately, he did not make physical contact, and the case manager was not injured. The clinic staff called 911, and when the police arrived, Max attempted to run away from them. He was ultimately apprehended, arrested by the police for misdemeanor assault and resisting arrest, and brought to the emergency room in handcuffs. At the hospital, the police released him into the custody of the hospital with a promise to appear in court the following week. With this background information, you go to interview Max. When you first meet with him, he remains extremely angry with his therapist, whom he believes purposefully incited these events so that he would be hospitalized. When you recommend that he restart his medications, he declines. He says that he does not need to be hospitalized or be given any medications, only to get his therapist “out of the picture.” When you ask him what he means by this, he refuses to answer. Overall, his thought processes seem disorganized.

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Let’s pause for a moment and consider some legal questions that might be important to understand when deciding how best to treat this patient: • What are the criteria for emergency involuntary hospitalization in your state? Does Max meet these criteria? • If Max were interested in signing in voluntarily to the hospital, does he have the capacity to make this decision? How would you make this determination? • Max has made a statement that could be interpreted as a threat of violence against his therapist. Should you report this to his therapist or the police? What are the laws regarding third-party reporting in your state? Are there any other options besides reporting that might fulfill your professional obligation(s)?

Hospital Course Max is admitted involuntarily to the inpatient psychiatric unit. In the first few days of his hospitalization, he presents with labile affect and disorganized thinking. He perseverates on his desire to be discharged and paranoid concerns related to his therapist and medications. When asked about the events leading to his admission, he minimizes the significance of his physical aggression, stating he just “got a little upset.” You recommend that he reconsider taking his medications, but he continues to decline, and he continues to demonstrate symptoms of psychosis for several days. He begins demanding discharge, especially when he learns that the term of the initial emergency involuntary holdends the next day. Legal Questions to Consider: • What are the criteria for involuntarily medicating a patient in your state? Does the patient meet these criteria? • What options are available to you after an emergency involuntary psychiatric hold ends if you believe the patient still requires ongoing hospitalization? What are the criteria and processes for enacting these decisions in your state?

Preparing for Discharge Max is eventually treated with medications, his symptoms improve, he no longer voices thoughts of harming his therapist, and you determine that he is ready to be discharged. On the day of discharge, you receive a phone call from Max’s attorney representing him on the misdemeanor assault and resisting arrest charges stemming from the incident at the outpatient clinic. The attorney informs you that Max has a hearing scheduled in court the following week. He wants to know your opinion about whether you think Max is “competent to stand trial” and whether he would qualify for an “insanity defense” because he was clearly suffering from symptoms of mental illness at the time of the incident. You say that you’re not sure

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• Involuntary hospitalization Emergency Room • Capacity to sign in voluntarily

Hospitalization

• Civil commitment • Involuntary medication

Discharge

• Duties to Third Parties • Complex legal issues*

*Relevant only in cases in which tho patient has incurred legal charges prior to or during hospitalization

Fig. 1.1  Stages of a psychiatric hospitalization and pertinent legal questions

you are the best person to answer these questions, but he insists that since you have just been treating Max in the hospital, you know his “state of mind” better than anyone else. Legal Questions to Consider: • Now that you’re discharging the patient, do you need to call the therapist or the police to warn them about his prior threats? What are the applicable laws in your state regarding duties to third parties? • What does his attorney mean by “competence to stand trial?” • What is an “insanity defense?” Does your state allow such a legal defense? If so, what are the criteria? • Does answering the attorney’s questions raise any ethical or legal concerns? While the majority of these questions cannot be answered in the abstract, as they require a thorough understanding of an individual state’s laws and statutes, clinical psychiatrists will face many of these questions regardless of the setting (see Fig. 1.1). As this case demonstrates, understanding the law is critical to engaging in safe, appropriate, and recovery-oriented psychiatric practice which is respectful of the rights and civil liberties of both our patients and the public.

How to Make Use of This Book This book is designed to introduce students, trainees, and practicing mental health professionals to core concepts at the intersection of psychiatrys and the law, with each chapter focusing on a different topic area. Chapter authors are emerging experts in the field who are well versed in their chapter’s particular subject matter, making them ideally suited to identify the most relevant, high-yield topics for students, trainees, and others looking for a brief primer on the topic. Most chapters begin with a case vignette synthesized from a historical legal case that places readers in the role of a treatment provider and asks them to consider how they would approach the clinical scenario. The chapters will follow up with details of the actual legal case and the case’s historic significance. Each chapter concludes with a discussion of the relevant core principles and practice concepts. Utilizing this

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format, we hope to introduce the reader to the most germane and practical principles of psychiatry and the law in a clinically relevant and succinct format. Given the dynamic and evolving nature of the law, it is not possible to present an up-to-date list of all pertinent laws for each individual state. However, chapters provide an overview of national- and state-based regulations for the reviewed topic and guidance regarding where readers can find up-to-date information. This text can be used as an educational tool in a variety of ways. In the classroom, for faculty invested in teaching residents or medical students, the book can be used to guide the development of an introductory course in psychiatry and the law, with each chapter or a combination of chapters serving as reading material for each seminar. Chapters can also be used individually for relevant stand-alone classes discussing a particular subject area. For example, in a seminar on suicide risk assessment, an instructor might ask the trainees to read the related chapter in advance and come to class prepared to apply what they’ve learned to a discussion of challenging risk assessment cases they have seen in the hospital or clinic setting. Instructors and supervisors should highlight relevant local regulations for trainees. Adult learning theory teaches us that applying the information in these chapters in the clinical learning environment is key to integrating the material into the learners’ practice [13]. Thus, while rotating on an inpatient unit, attendings may ask residents or students to read one of the several chapters discussing inpatient topics (e.g., involuntary medication or civil commitment) and plan to present what they’ve learned during team rounds or describe how it applies to a particular patient the team is treating. Further, self-motivated learners facing a complex clinical scenario might read a chapter to help them to better understand the implications of the law in that particular case. Finally, while this book has been developed with trainees and students in mind, we hope it can also serve as a refresher on these topics for more senior mental health professionals.

References 1. Rosner R, editor. Critical issues in American psychiatry and the law, vol. 2. Berlin: Springer Science & Business Media; 2013. 2. U.S. Department of Health and Human Services; 2016. http://www.hhs.gov/hipaa/. Accessed 8 Dec 2016. 3. American Academy of Psychiatry and the Law; 2016. http://aapl.org/org.htm. Accessed 8 Dec 2016. 4. Lamb HR, Weinberger LE. The shift of psychiatric inpatient care from hospitals to jails and prisons. J Am Acad Psychiatry Law. 2005;33:529–34. 5. Fitch WL. Assessment #3: forensic mental health services in the United States: 2014. National Association of State Mental Health Program Directors; 2014. https://www.nasmhpd.org/sites/ default/files/Assessment%203%20-­%20Updated%20Forensic%20Mental%20Health%20 Services.pdf. Accessed 1 Mar 2017. 6. Forman HL, Preven DW. Evidence for greater forensic education of all psychiatry residents. J Am Acad Psychiatry Law. 2016;44:422–4. 7. Van de Wiel MWJ, Van den Bossche P, Janssen S, Jossberger H. Exploring deliberate practice in medicine: how do physicians learn in the workplace? Adv Health Sci Educ. 2011;16:81–95.

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8. Marrocco MK, Uecker JC, Ciccone JR. Teaching forensic psychiatry to psychiatric residents. Bull Am Acad Psychiatry Law. 1995;23:83–91. 9. Booth BD, Mikhail E, Curry S, Fedoroff JP. Shaping attitudes of psychiatry residents toward forensic patients. J Am Acad Psychiatry Law. 2016;44:415–21. 10. Wasser T, Chandra S, Chaffkin J, Michaelsen K.  A multi-site survey of general psychiatry Residents' forensic training. J Am Acad Psychiatry Law. 2022 Jun;50(2):231–9. 11. Wasser T, Sun A, Chandra S, Michaelsen K. The benefits of required forensic clinical experiences in residency. Acad Psychiatry. 2019;43(1):76–81. 12. The Accreditation Council for Graduate Medical Education. Psychiatry milestones. https:// www.acgme.org/globalassets/PDFs/Milestones/PsychiatryMilestones2.0.pdf. Accessed 11 Nov 2022. 13. Kaufman DM.  ABC of learning and teaching in medicine: applying educational theory in practice. BMJ. 2003;326:213–6.

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Understanding the Law and Legal System Will Rutland

Clinical Vignette You are a psychiatry resident covering the psychiatric emergency department, overnight. After rounding and entering orders, you determine to get a fresh cup of coffee, prior to beginning the night’s charting. While in the hospital atrium, enjoying a much-needed dose of caffeine, you pull out your phone and start scrolling the headline news stories. Glancing down the screen you see a headline that catches your attention. The bold text of the link reads: “FED DIRECTS STATES TO INVESTIGATE SUBSTANCE USERS.” You click the text and look past the byline; it seems the federal government has taken startling action in the name of curbing substance use. The article announces that Congress has passed a bill likely to directly impact your patients. The President has reportedly signed into law, a federal statute that charges each state governor with creating special police units. The law instructs the states to task these units with entering and searching the homes of private citizens, who have any history of hospital admission, at any state-supported facility, for substance use-related conditions. In the news story’s commentary, several champions of the bill justify these invasions as operating “in the public interest,” in the context of curbing the opioid epidemic. The article explains that, in addition to the authority to enter private homes, the new law also authorizes the Centers for Medicare and Medicaid Services to disclose all citizen diagnostic records to state police for the purpose of identifying citizens with past substance use diagnoses. The law then empowers existing local police, in

W. Rutland (*) University of Alabama Birmingham Heersink School of Medicine—Montgomery Campus, Montgomery, AL, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 T. Wasser, R. Zhong (eds.), Psychiatry and the Law, https://doi.org/10.1007/978-3-031-52589-6_2

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addition to the newly-created special police units, to detain these citizens, until substance use care plans can be verified or put into place. According to the news story, citizens who resist or fail to comply with police action in this regard will face criminal prosecution with penalties ranging from fines to incarceration. What is more, the wording of the law leaves open the possibility of prosecuting medical providers through either civil penalties or administrative measures. Notably, lawmakers again justify this taking of liberty and property on the basis of the public interest and curbing the opioid epidemic. Finishing the news story, and gripping your coffee, you struggle with a sense of grave foreboding. Your intention had been to write notes and formulate treatment plans for each of the evening’s patients, as soon as you returned to the Psych ED, but you have a troubling sense that entering any substance use-related diagnosis codes may result in a violation of your patients’ fundamental rights and could even put your livelihood in danger. When you arrive back at the Psychiatric ED, you are startled out of your thoughts by the sight of several hospital administrators, the head of nursing, the chief of the local police force, and the hospital attorney. Your attending catches you at the door and tells you that the hospital lawyer wants to speak with you. A few minutes later, the hospital attorney pulls you into the nursing station and begins: “There is a new federal drug law that may affect your practice, starting tonight. The Fed has instructed CMS to disclose private medical information about our patients, to local state police, for the purpose of compelling investigation of private citizens. In addition, they are telling governors to put together task forces to search people’s homes and are even insinuating possible prosecution of prescribers. It’s outrageous, but it appears to be the law. Honestly, we are fairly certain that these provisions run afoul of several constitutional principles (not to mention the Privacy Act of 1974), and we are suspicious that carrying out any of the directives would put the hospital in legal danger. Accordingly, I have filed an emergency petition with the US Supreme Court. However, the chief of police is concerned that he has a duty to enforce the law, while the Supreme Court is reviewing its constitutionality. So, until we have an answer, you will be operating in a gray space. To help you piece through all of this, I’ve left a copy of Marbury vs. Madison at your work station. Call me if you run into specific trouble.”

Historical Case: Marbury V. Madison, 5 US 137 (1803) The power to ensure the constitutionality of a law is known as the power of Judicial Review, and the Supreme Court’s fundamental responsibility, in this regard, was established in the 1803 decision of Marbury v. Madison (5 US 137) (hereinafter, “Marbury”). In the Marbury decision, the US Supreme Court, led by Chief Justice John Marshall, considered the case of William Marbury. President John Adams had granted Marbury a federal commission as Justice of the Peace of Washington D.C.  The commission was made under Adams’ Constitutional authority as Chief Executive. However, the commission was never delivered, and—following Thomas Jefferson’s inauguration as President Adams’

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successor—Jefferson’s Secretary of State, James Madison, chose not to follow through on the delivery. Marbury sued. Considering the case, Chief Justice Marshall and the US Supreme Court unanimously determined that the Constitutional powers, granted to President Adams, could not be invalidated by a subsequent legislative or administrative act of Secretary Madison. To reach this conclusion, Marshall definitively announced the Supreme Court’s power of Judicial Review, stating: “an act of the legislature, repugnant to the constitution, is void … If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.” [1]

With this opinion, Marshall and the Supreme Court set the basic rule for the law and legal system in the United States: laws must pass constitutional muster, and it is ultimately the jurisdiction of the US Supreme Court to make this determination.

Understanding the Law and Legal System From the organizing principle of Marbury’s Judicial Review, flows the basic standard for understanding US law: If a law is deemed to comport with the Constitution, then it is prima facie (on first impression) enforceable, although the scope and effect of the law can be limited by place, purpose and countervailing legal requirements. To ensure that laws are appropriately enforced, the legal system is structured in several levels of review across multiple jurisdictions: the federal court system, the state court systems, and civil, criminal, specialty and administrative jurisdictions within each. Sitting atop this hierarchy of courts, is the US Supreme Court, the country’s court of final jurisdiction, the core purpose of which is to uphold the basic tenets of the Constitution and to protect the rule of law [2]. In the vignette, above, the new statutory schema gives rise to numerous legal issues, including exercise of police power, vertical federalism (the principle that federal law acts as the “supreme law of the land” under Article VI of the constitution, and, therefore, trumps any state law contradictory to it), the right to privacy, breach of federal statutes, breach of state statutes, and administrative provisions, but the most glaring issue is the new law’s basic assault on the fourth, fifth, sixth and 14th Amendments of the Constitution.1 And as established by Marbury, when a law passed by Congress potentially runs afoul of the Constitution, the Supreme Court is

 A refresher on the relevant portions of these Constitutional Amendments: (a) The fourth Amendment protects citizens from “unreasonable searches and seizure” (i.e., without a search warrant and probable cause); (b) the fifth Amendment protects citizens from deprivation of life, liberty or property without “due process of law”; (c) the sixth Amendment guarantees that due process of law will include a fair trial without undue delay; and (d) the 14th Amendment makes all of these provisions incumbent upon the States. 1

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the final arbiter on the law’s legality. This is why the Hospital’s attorney is hopeful that the Court will take up his emergency petition.

 he Law and Legal System in Practice: Where Do Laws Come T From? [3] As a preliminary matter, it is worth revisiting how a law becomes a law. A federal law starts as a proposed bill in either the US House of Representatives or the US Senate. An individual sponsor (either a Representative or Senator), introduces the bill to their respective chamber and, after introduction, the bill is assigned to a committee with the appropriate subject matter expertise. Once in committee, the subject matter of the bill is debated and amended by the committee members, who then determine whether the bill will “make it out of committee” to the relevant originating full chamber (either the full House or the full Senate—wherever the bill started). If the bill makes it in front of the full chamber, a full chamber vote (often after additional debate and amendment) then determines whether or not the bill makes it “out of the chamber.” If the bill makes it out of the originating chamber, it goes in front of the counterpart chamber (for instance, if the bill makes it out of the House, it goes to the Senate, and vice versa). Once in the counterpart chamber, the bill, again, goes into committee for debate and amendment, and—if it survives—on to the full chamber for further modification and a vote. If the bill passes the full vote of the second chamber, the two chambers then work together to reconcile their respective versions of the bill. Once the two chambers have agreed on a reconciled version, the bill—in its reconciled form—goes back in front of the respective full chambers, where it receives a final vote. If the bill passes these final votes, it goes to the President of the United States for the President’s signature, as chief executive. If the President deems the bill agreeable, the President will then “sign the bill into law,” making the content of the bill the “law of the land.” However, if the President takes issue with the bill, the President can exercise veto power, effectively sending the bill back to Congress. Congress can then either amend the bill, repeating the aforementioned process, or re-vote on the bill, and potentially override the President’s veto. To override the veto, at least two-­ thirds of both chambers must vote in favor of making the bill the federal law of the land. State law, more or less, follows this same procedure, working its way through state legislatures and governor’s offices. And it is worth noting that state law exerts dominion over a great deal of America’s legal system. Article X of the Constitution explains that the federal government is only empowered to make and enforce those laws set forth or supported by the Constitution; so any powers not constitutionally delegated to the federal government are reserved to the States. Accordingly, the states are empowered to make their own state laws, guided by the tenets of their

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unique state constitutions, and these are reviewed by their own state court systems [4].

 he Law and Legal System in Practice: Once Law Is Made, How T are Legal Disputes Resolved [5] Once a law becomes a law, its application is ultimately bound by the provisions of the Constitution. Pursuant to the above, constitutionality is ultimately the purview of the US Supreme Court. However, the Supreme Court cannot offer an opinion on every dispute that arises under the law, throughout the country, and so the load is distributed among the various jurisdictions. For instance, state courts hear state law disputes and federal courts hear federal law disputes. Note that the vast majority of legal disputes have nothing to do with the constitutionality of any laws, at issue, but rather with disagreements over the breach or enforcement of those laws. If the law, at issue, happens to be a state law, and all parties to the dispute are state citizens, the US Supreme Court need not ever get involved. So, to settle any dispute under the law requires that the dispute be adjudicated in front of the court with appropriate and competent jurisdiction. As above, alleged transgressions of state criminal law, are prosecuted in state criminal courts. Alleged transgressions of federal administrative laws are adjudicated in courts of the Federal judiciary. Interestingly, if a citizen of one state is alleged to have violated the laws of another state, the federal trial court will often step in to settle the conflict between the two state jurisdictions under the principle of jurisdictional diversity. In each instance the various court systems have mechanism for trial and appeal. In the federal system, this is the federal district courts and federal circuit courts of appeal, with the US Supreme Court acting as the federal court of final appeal. In the state court systems, the decisions of trial courts are appealed to state courts of appeal, and then on to state Supreme Courts, as warranted.

 he Law and Legal System in Practice: Once a Dispute Is T in the Correct Court, How Is It Actually Settled? Judge or Jury? In both federal and state trials, the facts and applicable law of the case are most often argued in front of a representative jury, though trials are occasionally tried in front of just a judge (this is known as a “bench trial”, the selection of which is up to the defendant). Appeals are held in front of multiple judge panels, and further appeals are held in front of the appropriate grouping of justices on the bench of the court of final appeal, the judgment of which is binding and enforceable without further appeal.

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Standard of Proof Once in front of the appropriate “finder of fact” (legal jargon for the judge or jury making a determination of which facts have been proved by the evidence), the outcome of any case will depend on which side has met the relevant standard (or burden) of proof. For instance, the law described in the vignette, above, contains both civil and criminal provisions, which, if litigated, would likely land citizens in either civil court (where the outcome would usually rest on a preponderance of proof, or the “more likely than not” standard) or criminal court (where the outcome would rest on a “beyond a reasonable doubt” standard) [6, 7]. The concept of the “Standards of Proof” requires a bit more explanation. The standard of proof for a given case is the degree of proof necessary to legally establish a fact that is otherwise in dispute between the parties [8]. This standard can vary depending on the nature of the dispute.

“ Beyond a Reasonable Doubt” For example, if a prosecutor and an accused defendant dispute whether or not the defendant committed a murder, and is therefore subject to either prolonged imprisonment or the death penalty, the stakes of the case are high and the standard of proof that the prosecutor must meet to establish the facts of the crime is proof “beyond a reasonable doubt.” This means that the prosecutor must prove “beyond a reasonable doubt” all of the component facts necessary to satisfy a murder charge. Traditionally these include that: (1) The defendant took a human life; (2) the taking was unlawful; and (3) the taking was committed with “malice aforethought” (an old common law term regarding a defendant’s state of mind). If the prosecutor fails to prove any one of these facts “beyond a reasonable doubt,” then the prosecution has failed to make its case. “ More Likely than Not” In contrast, consider a simple civil lawsuit. Civil cases are generally governed by a “more likely than not” standard, which is known as the “preponderance” standard. This means that the plaintiff must prove it is “more likely than not” that the defendant is responsible for the component elements of the civil claim. For an example of this standard, imagine a civil plaintiff who accuses a defendant of trespass based on allegations that the defendant walked onto the plaintiff’s property and trampled the plaintiff’s flower bed. Here the stakes are relatively low, so the plaintiff would only be required to prove it is “more likely than not” that: (1) the defendant with intention; (2) entered the property; (3) of the plaintiff; and (4) such entry resulted in damage to the plaintiff that can be compensated. Note that although this is a simple civil claim, the plaintiff would still have to prove each of the component facts (albeit by the “preponderance” standard), just like in the criminal case, described above.

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“Clear and Convincing” In between these two standards (“beyond a reasonable doubt” and “preponderance”) is the more specialized standard of proof by “clear and convincing” evidence, which frequently comes up in cases involving Psychiatry. This is because the “clear and convincing” standard is often the standard by which civil commitment cases are decided [9]. In the 1984 case of Colorado v New Mexico, 467 US 310 (1984) (“Colorado”), the US Supreme Court described the “clear and convincing” standard of proof, as follows: [Such proof should produce, in the Fact Finder, an] abiding conviction that the truth of [the offering party’s] factual contentions are “highly probable.” … This would be true, of course, only if the material it offered instantly tilted the evidentiary scale [10].

Citing Colorado, the US Court of Appeals for the Ninth Circuit has attempted to explain the “clear and convincing” standard, as follows: When a party has the burden of proving any claim or defense by clear and convincing evidence, it means that the party must present evidence that leaves you with a firm belief or conviction that it is highly probable that the factual contentions of the claim or defense are true. This is a higher standard of proof than proof by a preponderance of the evidence, but it does not require proof beyond a reasonable doubt [11].

Of course, both the Supreme Court’s dicta in Colorado and the Ninth Circuit’s guidance, above, lack explicit instruction, regarding *exactly* what level of proof is necessary to be “clear and convincing.” So, perhaps the only thing “clear and convincing” about this standard of proof is that none of the definitions with which it is associated are particularly clear or convincing. Nevertheless, it often presents in Psychiatric cases for civil commitment, where the stakes of each case involve constraint of liberty and the facts of each case warrant careful consideration given the constitutional concerns associated with this constraint.

 he Law and Legal System in Practice: Summary—Jurisdiction, T Finders of Fact and Standards of Proof So the type of law that the parties dispute will determine the process relevant to each case. Considerations like whether the relevant law is federal or state, criminal or civil, etc. will set the appropriate jurisdiction and standard of evidence by which the dispute will be determined. Note that there are other procedural details (venue, timeliness, standing, etc.) that must also be considered, but the basics are: (1) which court; and (2) which standard, and these depend on (3) which law (and sometimes, which parties). And herein lies the rub for our fact pattern, and the majority of cases relevant to mental health.

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 he Law and Legal System in Practice: Application to the Facts T of the Vignette The statute described in the vignette might be understood as one directly involving psychiatry—certainly, our ruminating resident would say so! In psychiatry, the legal question, often at issue, relates to Constitutional “Due Process” concerns. As a refresher on this oft used term, the principle of “due process” arises out of the fifth and 14th Amendments of the Constitution, respectively, which establish that “No person shall  …  Be deprived of life, liberty or property, without due process of law … Nor shall any State deprive any person of life, liberty or property, without due process of law” [12]. As a quick aside—to meet the requirements of constitutionality, this “Due Process” must be both procedural and substantive, meaning: 1. procedurally, the government can only take the “life, liberty or property” of a defendant: (a) after the defendant has been notified of the claim against them; (b) had an opportunity to dispute this claim through a fair trial; and (c) such trial has been decided by a neutral fact finder; and 2. substantively, the government can only take the “life, liberty or property” of a defendant: if the basis for such taking is a compelling governmental interest (note that there are several levels of how compelling this interest must be, depending on the nature of the taking) [13]. For the purposes of the vignette, these provisions are important because the new law discussed in the vignette appears to be fundamentally unconstitutional. The provisions of the law, as described in the vignette, allow the government (through both federal and state agents) to take the liberty and property of patients, without affording these patients recourse to a trial and based on the nebulous justification of “the public interest.” Given these apparently unconstitutional provisions, any taking of liberty or property under the provisions of the new law would likely be a violation of due process, and—as Marbury proclaims—“a law repugnant to the Constitution is void” [14]. This is the conclusion that the Hospital attorney hopes the Court will reach, in regard to his emergency petition. To be fair, there are loads of additional issues with the vignette’s statue, and these would likely be resolved in both state and federal courts, by both juries and judges, and under several different standards of proof (given the criminal, civil, and—potentially—“clear and convincing” standards at issue). In any event, (thankfully) such a law would not likely pass muster. As in the vignette, when psychiatry and the law overlap, the question of “due process” often comes up. Frequently this is in regard to questions of competency to stand trial. The US Supreme Court, in Pate v. Robinson (383 US 375 (1966)), established that a determination of competency is a “due process” requirement under the Constitution, and any conviction that neglects to establish competency, when competency is at issue (as it can be in cases involving defendants living with Serious Mental Illness), is void for failure of constitutionality [15]. Please see chapter on

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Specialized Issues in Forensic Psychiatry later in this text to learn more about competency to stand trial.

The Law and Legal System in Practice: Take Away Points Regarding these topics, the basic points to take away are as follows: (1) that the US Constitution is both the foundation for, and the definitive standard by, which all law in America is ultimately judged; and (2) the definitive judgment on whether a law meets constitutional muster lies with the US Supreme Court under its power of Judicial Review. If the relevant law does not meet the standards of Judicial Review, it is void. However, if a law is found to be constitutional and enforceable in the appropriate court (state, federal, criminal, civil, administrative, etc.), the determination of whether the law has been broken, or not, is subject to the applicable standard of evidence, and rests with the jury or judge in the court of competent jurisdiction. Along the way, issues like the appropriate venue and the standing of the parties must be settled, but all of this is secondary to the basic constitutionality of the law, and Chief Justice Marshall and Marbury, gave us a full-throated proclamation of this. “A LAW REPUGNANT TO THE CONSTITUTION IS VOID.”

References 1. Marbury v. Madison, 5 U.S. 137 (1803), at 177–178. 2. Hughes CE. The supreme court of the United States. Columbia University Press; 1966. 3. See generally, How Laws are Made. In USA.gov; 2023. https://www.USA.gov/how-­law-­are-­ made#. Accessed 25 June 2023. 4. US Const. Amendment X. 5. See generally, Court Role and Structure. In uscourts.gov; n.d. https://www.uscourts.gov/about-­ federal-­courts/court-­role-­and-­structure#. Accessed 25 June 2023. Fine, Toni. American Legal Systems: A Resource and Reference Guide; 1997. 6. Leubsdorf J. The surprising history of the preponderance standard of civil proof. Florida Law Rev. 2015;67(5):1569–619. 7. Patterson v. New York, 432 US 197; 1977. 8. See generally, Burden of Proof. In law.Cornell.edu; 2022. https://www.law.Cornell.edu/wex/ burden_of_proof#. Accessed 25 June 2023. 9. Testa M, West SG.  Civil commitment in the United States. Psychiatry (Edgmont). 2010;7(10):30–40. 10. Colorado v New Mexico, 467 US 310, 317; 1984. 11. United States Courts for the Ninth Circuit. Manual of Model Civil jury Instructions: 1. Preliminary instructions: 1.7 Burden of Proof—Clear and Convincing Evidence. In center. USCourts.gov; 2017. https://www.ce9.uscourts.gov/jury-­instructions/node/48. Accessed 30 June 2023. 12. US Const. Amendments V & XIV. 13. See, e.g. Dred Scott v. Sanford, 60 US 393 (1856) (substantive due process); Powell v. Alabama, 287 US 45 (1932) (procedural due process). 14. Marbury supra at 177. 15. Pate v. Robinson 383 US 375; 1966.

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Confidentiality and Privilege Tobias Wasser and Amanda Yuan Sun

Clinical Vignette You are a psychiatrist working in an outpatient clinic. One day, you are sitting in your office when the secretary calls and informs you that you have a new patient, Mrs. James, ready for you in the waiting room. You go out to greet the patient and she informs you that she would prefer to be referred to as Officer James, as she is a police officer in the local police department. You ask Officer James what brings her to the clinic and she indicates that she is there to comply with the police department’s request that she engage in mental health treatment following a recent traumatic event she experienced while on the job. She explains that a few weeks prior, she was the first officer to respond to a “fight in progress” call at an apartment complex. As she arrived at the scene, two young women ran toward her squad car, waving their arms and shouting that there had been a stabbing in one of the apartments. Officer James relayed this information to her dispatcher and requested an ambulance. She then exited her car and walked toward the apartment building. Before Officer James reached the building, several men ran out, one waving a pipe. She ordered the men to get down on the ground, but they ignored her. Fearing for her life, she drew her firearm. Suddenly, two other men burst out of the apartment building. One of the men, Mr. Todd Aiken, was chasing the other man while brandishing a butcher knife. Officer James repeatedly directed Mr. Aiken to drop the knife, but he disregarded T. Wasser Frank H. Netter MD School of Medicine, Quinnipiac University, North Haven, CT, USA e-mail: [email protected] A. Y. Sun (*) Department of Psychiatry, Johns Hopkins University School of Medicine, Baltimore, MD, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 T. Wasser, R. Zhong (eds.), Psychiatry and the Law, https://doi.org/10.1007/978-3-031-52589-6_3

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her directives. Fearing that Mr. Aiken was about to fatally wound the other man, Officer James fired her gun and shot Mr. Aiken. Mr. Aiken died at the scene. After the shooting, Officer James missed several days of work. When she returned, she was noted by her employer to appear distant and distracted, and her work performance declined. As a result, the department recommended she engage in mental health treatment. You perform a psychiatric evaluation and diagnose Officer James with post-­ traumatic stress disorder (PTSD). You recommend medication and that Officer James begins a course of psychotherapy for her PTSD. Officer James begins attending treatment regularly and after several months completes a course of the recommended therapy. Mr. Aiken’s family subsequently files a lawsuit in federal court alleging that Officer James had used excessive force resulting in Mr. Aiken’s death. Legal proceedings commence, and during a court hearing, Mr. Aiken’s family learns that Officer James had participated in treatment with you immediately following the shooting. The family takes legal action to attempt to access the medical records describing Officer James’s psychotherapy sessions so they can use it during the trial. The attorney representing Officer James and the police department vigorously resist this request, but the judge ultimately sides with Mr. Aiken’s family and grants their request to access the records. Several months after you have completed your course of treatment with Officer James, you are sitting in your office at the end of the day finishing up your work. Suddenly one of the clinic’s front office staff comes bounding into your office. They inform you that a court marshal has come to the office asking for you in order to issue you a subpoena ordering that you come to Officer James’s hearing tomorrow. The subpoena further stipulates that you should bring copies of all of the medical records and any psychotherapy notes pertaining to your treatment of Officer James. What do you do?

 istory of the Real Case and Its Significance: What H Really Happened Jaffee v. Redmond, US Supreme Court, 1996 [1, 2] Mary Lu Redmond, a police officer, shot and killed Mr. Ricky Allen while Officer Redmond was out on patrol. Officer Redmond said that Mr. Allen was chasing another man while brandishing a butcher knife and that Mr. Allen disregarded her repeated commands to drop the weapon. Ms. Carrie Jaffee, the executor of Mr. Allen’s estate, filed a lawsuit in Federal District Court alleging that Officer Redmond had violated Mr. Allen’s constitutional rights by using excessive force against him. After the shooting, Officer Redmond participated in approximately 50 counseling sessions with Ms. Karen Beyer, a licensed clinical social worker. During the lawsuit, Officer Redmond and Ms. Beyer refused to provide the court access to treatment notes concerning their sessions together. They asserted that the

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conversations were protected against involuntary disclosure by a psychotherapistpatient privilege. The trial judge rejected this argument. The judge then issued instructions to the jury that Officer Redmond’s refusal to turn over Ms. Beyer’s treatment notes had no “legal justification” and that the jury could therefore presume that the contents of the notes would have been unfavorable to Officer Redmond. The jury awarded $545,000 in damages to Mr. Allen’s estate. Officer Redmond appealed the decision to the Seventh Circuit Court of Appeals (a federal appeals court). The appeals court reversed the trial court decision, concluding that “reason and experience” compelled the recognition of a psychotherapist-­ patient privilege in federal courts. Ms. Jaffee then appealed the decision to the US Supreme Court. The US Supreme Court affirmed the decision of the appeals court and ruled that the conversations between Officer Redmond and Ms. Beyer were protected from compelled disclosure. The Court recognized the existence of a federal psychotherapist-­patient privilege which applied to confidential communications made to psychiatrists, psychologists, and licensed social workers during the course of psychotherapy. As supporting evidence, the Court noted that all 50 states and the District of Columbia had enacted some form of privilege for psychotherapists and that such a privilege served the public interest since the mental health of citizens is “a public good of transcendent importance.”

Core Principles in Understanding Confidentiality Confidentiality is a core principle critical to the practice of medicine and psychiatry. According to the American Psychiatric Associations Annotations Especially Applicable to Psychiatry of the American Medical Association’s Principle of Medical Ethics, a physician shall “safeguard patient confidences and privacy within the constraints of the law” as “confidentiality is essential to psychiatric treatment” [3]. The American Academy of Psychiatry and the Law and the American Psychological Association have similarly stressed the importance of confidentiality in patient care [4, 5]. Furthermore, confidentiality can significantly affect patients’ willingness to seek care and disclose health information [6–8]. This chapter aims to provide clarity on how to approach confidentiality through discussion of important core concepts, common questions regarding the Health Insurance Portability and Accountability Act (HIPAA), and typical exceptions to confidentiality including mandatory reporting duties.

Distinguishing Confidentiality vs. Privilege Confidentiality is defined as the physician’s obligation to safeguard the patient’s personal and health information and not divulge that information gathered in confidence without the patient’s informed consent [9–11]. It is a broad concept describing physicians’ ethical obligation, which is related to but distinct from their legal

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duty to protect patients’ private information, the latter of which arising from HIPAA and state laws. Another related concept, privacy, addresses the question of who has access to personal information and under what conditions. In health information management, privacy refers to the patient’s sense of freedom to share personal information with a practitioner knowing that this sensitive information will be safeguarded. The importance of confidentiality is based on both its utilitarian benefits as well as the patient’s right to privacy. A utilitarian view of confidentiality recognizes the value in promoting the integrity of the therapeutic relationship and patient trust in the physician, which enhances patients’ willingness to be honest about their medical problems [12]. Many ethicists also argue that privacy of personal health information has inherent value by advancing patient autonomy and individuality and conveying respect and dignity for the patient [11]. By comparison, privilege is the legal protection of extant communications from being disclosed in open court (e.g., spousal, attorney-client, clergy, and—importantly for medical providers—physician-patient and therapist-patient) [13]. Assigning a privilege to protect communications between two parties is a departure from what typically happens in a court of law, where the pursuit of truth and justice generally compels disclosure of everything a witness knows or experienced. This legal concept of privilege stems from the recognition that society places a high value on preserving the sanctity of certain special relationships. For example, consider the societal value of the doctor-patient relationship. If a patient feared that a doctor could be compelled to disclose in court what the patient shared with their physician, the patient may be less likely to seek care or when receiving care may be more likely to withhold important information. This in turn would impede the physician’s ability to provide accurate diagnosis and treatment, impairing society’s ability to receive appropriate healthcare.

Table 3.1  Exceptions to confidentiality [4, 17] “Motto”: exceptions to the duty of confidentiality Mandatory The provider may reveal confidential information to comply with reporting duties mandatory reporting duties Obtain consent The provider may disclose confidential information if the patient, conservator, guardian, or other surrogate decision-maker provides consent Threat to self or If a patient is deemed an imminent danger to himself/herself or others, others the clinician has a responsibility to protect those individuals Treatment A provider may disclose confidential information if necessary for coordination/ continued treatment of the patient, for example, to obtain necessary continuation consultations, coordinate treatment with other specialties and clinics, care coordination, facilitate payment Order from a court If a provider receives a court order by a court of competent jurisdiction, he/she may release confidential information

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Common Exceptions to Confidentiality Given the heterogeneity in state statutes and institutional policies, it is important to investigate specific exceptions to confidentiality in your jurisdiction or workplace. However, here are some common exceptions to confidentiality to consider, summarized in Table 3.1 [3, 14–16]: • The patient poses a danger to self (e.g., suicidal) or others (e.g., assaultive, homicidal). • To comply with mandatory reporting duties (see section on “Mandatory Reporting Duties” below). • Court-related exceptions: –– A judge-issued court order. (*Of note, a subpoena is not equivalent to a court order in many jurisdictions, and you should consult a legal representative upon receiving a subpoena. Generally, under a subpoena, the patient may waive or invoke privilege, following which a trial judge would then determine if the treating clinician must comply with the subpoena by issuing a court order.) –– The patient is a litigant in a court case and needs records to establish emotional or mental damages as part of the lawsuit. –– As part of an evaluation by a court-appointed psychologist or psychiatrist to determine competence or sanity in a criminal proceeding (of note, in many states, any disclosures made during the interview would not be confidential, but the patient must sign a release of information for the clinician to access the patient’s medical records). • To continue provision of healthcare: –– To provide and coordinate needed professional services (e.g., electronic medical record systems, care coordinators, integration of medical care with other specialties and clinics) –– To obtain appropriate professional consultations –– To obtain payment for services, in which insurance companies, management companies, pharmacy benefit managers, utilization reviewers, quality improvement consultants, and others may receive patient health information without requiring their consent or knowledge Importantly, exceptions generally do not include [3, 14, 18]: 1. Using confidential information for teaching purposes, unless (1) reasonable steps are taken to protect the individual’s identity, (2) the patient has provided written consent, or (3) legal authorization was provided to use the information. 2. Reporting to law enforcement a patient’s criminal activity (unless the patient’s behavior is ongoing and poses a threat to the life or safety of others, or the disclosure is for the purposes of “identifying or locating a suspect, fugitive, material witness or missing person”).

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3. The patient’s death. If the patient is deceased, the duty of confidentiality is transferred to an executor, administrator, or other person with authority under state or regional law to act on the deceased individual’s behalf. The topic of confidentiality is particularly complex when caring for children and adolescents. This is because the physician has a dual responsibility to keep parents apprised of information relevant to their child’s care and to respect the child’s right to privacy, which becomes increasingly important as they develop greater autonomy during adolescence. The law dictates that parents or guardians must consent to treatment on a minor’s behalf, with the following exceptions [14, 19–22]: • The minor meets the state’s legal conditions for emancipation (e.g., married, military service, or otherwise obtained court permission). • The law deems an unemancipated minor to be mature under the mature minor doctrine, a legal concept that determines whether a minor may be considered “mature” and thus affords them the ability to consent to their own medical care after considering the age, situation, and intelligence of the minor. • The patient is requesting confidentiality regarding conditions that receive statutory protection, such as sexually transmitted illnesses, substance use, contraception, and reproductive healthcare services. • The parent has consented to allowing a confidential relationship between the clinicians and minor. Some authors advocate that there is intrinsic value in adolescents’ retaining a right to confidentiality since they are more likely to seek care when confidentiality is ensured [23]. Regardless, it is important to discuss confidentiality with adolescents during their first visit and offer conditional confidentiality with explicit discussion of the circumstances under which confidentiality would be broken [24]. In scenarios requiring release of confidential information, one must employ the minimum necessary standard as outlined by HIPAA, which states that a clinician should make the minimal disclosure necessary to achieve the disclosure’s intended purpose [25]. For example, if one is compelled to disclose to law enforcement a patient’s name and address, you should disclose only that information and should not provide additional extraneous clinical information (e.g., diagnoses, medications). Additionally, it is always important to discuss the limits of confidentiality at the outset when beginning any doctor-patient relationship, and as needed thereafter.

Mandatory Reporting Duties Another important exception to confidentiality are situations in which a mental health provider is legally required to become a “mandated reporter” of certain concerning events or conditions. For example, one significant category of mandatory reporting duties relates to the protection of vulnerable persons from harm. Below are several common scenarios in which clinicians have a duty as mandated reporters.

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Child Abuse and Neglect Most states require physicians and other mandatory reporters to breach confidentiality to disclose child maltreatment [26, 27]. In deciding whether or not to report a suspected case, mandatory reporters should know that the law requires only suspicion or reason to believe that neglect or abuse has occurred, and the burden of proof does not lie with the reporter [27]. If reported in good faith, reporters have immunity from civil and criminal liability. The process involves submitting both an oral report by phone and written notification to the relevant public office, such as Child Protective Services [15, 27, 28]. Generally, states find it helpful to know a reporter’s identity, and in some states, mandatory reporters must provide their name and contact information; thus reporting anonymously may not be possible. However, in the majority of states, reporters may submit anonymously, and their information is protected from disclosure to alleged perpetrators [27]. Institutions frequently have their own internal policies and procedures for handling reports of child abuse and neglect, and most states have mandatory procedures which must be followed. Therefore, it is important to investigate and understand the state laws and institutional policies in the area where you practice (see www.childwelfare.gov for mandatory reporting laws by state).

Abuse and Neglect of Older and Disabled Persons Abuse or neglect of the elderly is also required to be reported in most states when occurring in the home and in all states when it occurs in an institution [29]. The reporting agency in greater than three quarters of US states is the State Social Service Department (Adult Protective Services) and in the remainder of states is the state unit on aging [29]. If one suspects abuse or neglect in an institution, contact the local long-term care ombudsman office. The telephone numbers for these agencies may be found through the Eldercare Locator (800-677-1116 or www.eldercare.gov) or the National Center on Elder Abuse (855-500-3537 or www.ncea.acl.gov). Like reporting for the elderly, the designated reporting agency in these situations is generally the state social service department [30]. There is also often the option of calling a state-designated hotline [31].

Other Vulnerable Populations Other vulnerable persons falling under mandatory reporting may include victims of human trafficking (sex and/or labor trafficking), intimate partner violence (IPV), and identifiable third parties deemed at risk for violence (see Chap. 4 for further details) [32, 33]. With reporting of IPV, some states require reporting weapon-­ related injuries; some require reporting injuries resulting from violations of criminal laws, violence, or non-accidental means; and others mandate disclosure for any form of IPV itself [34].

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Public Health Conditions Lastly, medical conditions that must be reported to state agencies include certain infectious diseases (e.g., HIV, gonorrhea, chlamydia, syphilis, hepatitis, Lyme disease, Zika virus, COVID-19) and noninfectious conditions (e.g., certain types of cancer, elevated lead levels, and carbon monoxide poisoning) [35].

HIPAA The Health Insurance Portability and Accountability Act (HIPAA) is a federal law implemented in 1996 that addresses how to manage protected health information (PHI), defined as identifying information related to [36]: • The individual’s past, present, or future mental or physical condition • The provision of healthcare services or treatment • The individual’s past, present, or future payment for said services or treatment PHI includes common identifiers such as name, address, birth date, and Social Security number. HIPAA also dictates the patient’s right to (1) obtain copies of their own records, (2) request modification of incorrect or incomplete information, and (3) receive information on outside entities to whom their records were disclosed, unless the information requested takes the form of psychotherapy notes or the release of this information would threaten the life or safety of the patient or others [37]. Contrary to how it has come to be understood by clinicians, some of the intended purposes of HIPAA were to expand the circumstances in which PHI may be released, expand medical record accessibility, and “improve portability and continuity of health insurance coverage” [38]. With the growth of third-party payors in the mid-­1900s and development of managed care systems in the 1980s and 1990s, the expansion of the number of people with access to patient medical records revealed

Table 3.2  Health Insurance Portability and Accountability Act (HIPAA)-related legislation after 1996 [36] Regulation/ legislation HIPAA Privacy Rule HIPAA Security Rule HIPAA Breach Notification Rule

Description Established national standards for the use and disclosure of protected health information (PHI) Established the safeguards and security measures to protect the confidentiality, integrity, and availability of electronic PHI that covered entities and their business associates must implement Required notification of affected individuals, the US Department of Health and Human Services (HHS) and in some cases the media, of any breach of PHI (generally no later than 60 days after discovering a breach)

HIPAA Health Insurance Portability and Accountability Act, PHI Protected health information

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flaws in the existing framework of consent [13, 39]. In response, HIPAA was an effort to establish national privacy standards of individually identifiable health information that would help build a new health information infrastructure and balance protecting patient medical privacy against allowing uses and disclosures for treatment and payment [20]. Table 3.2 outlines subsequent legislation enacted after 1996 to enforce the principles and goals that HIPAA delineated. The HIPAA Privacy Rule does not provide special protections for mental health records and does not differentiate between psychiatrists’ documentation of PHI and that of other medical specialties, with the notable exception of psychotherapy notes [20]. The Privacy Rule defines psychotherapy notes as “notes recorded by a health care provider who is a mental health professional documenting or analyzing the contents of a conversation during a private counseling session or a group, joint, or family counseling session and that are separate from the rest of the patient’s medical record” and do not include information about [40]: • • • • • • •

Medication prescription or monitoring Modalities and frequencies of treatment Therapy session start and stop times Symptoms Test results Summaries of diagnosis Prognosis

Psychotherapy notes are managed differently due to the particularly sensitive nature of their contents and because they are the therapist’s personal notes, not to be used for treatment or payment purposes. They are more akin to what have historically been referred to as “process notes” and are distinct from typical mental health treatment or progress notes (which would be included in the patient’s medical record and thus would not receive these special protections). Thus, a covered entity must, with few exceptions, obtain the patient’s specific authorization for all disclosures of psychotherapy notes [41]. The Privacy Rule also does not provide patients the right to access their own psychotherapy notes, a significant exception to the Privacy Rule’s provision of individuals’ right to access their health information [14]. The HIPAA Privacy Rule allows communication between providers and third parties when the patient has capacity to make healthcare decisions and does not object [20, 42]. This may include explicitly requesting the patient’s permission and providing the patient the opportunity to agree or disagree. It also applies in circumstances implying the patient does not object (e.g., the patient has invited the individual to participate in a clinical encounter). If an adult patient with capacity refuses to consent to communications with outside parties, the Privacy Rule permits disclosure only if the patient is deemed a serious and imminent threat to the safety of self or others. However, HIPAA does allow providers to listen to third parties who wish to express concern about the patient’s safety and well-being as long as the provider does not themselves disclose any private information. Further, this prohibition does not prevent a healthcare provider from communicating with another treatment

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provider for the purposes of safety and continuing care. If the patient later requests access to their medical record, the provider may withhold information relating to a disclosure given by a third party under the promise of confidentiality if this information would likely reveal to the patient the source of the information [43]. This allows third parties to openly share relevant safety information without fear of damaging their relationship with the patient. To safeguard the protection of patient confidentiality, it is important to adhere to the following recommended practices [3, 44]: 1. Make sure doors and partitions are closed when discussing confidential information, particularly in locations like the emergency department where privacy is difficult to ensure. 2. Avoid discussing patient information within earshot of unauthorized persons. 3. Limit health information conveyed and number of colleagues, consultants, or other staff receiving the patient’s information to what is necessary for the identification, evaluation, and treatment of patients. 4. Maintain privacy of paper and electronic medical records and electronic communication, such as by locking computers when stepping away and only using encrypted email to discuss patients. 5. Do not share passwords that may lead to the compromise of and unauthorized access to electronic patient information. 6. Correctly dispose of patient information when no longer needed by shredding and placing in a designated locked receptacle for proper disposal. 7. Obtain informed consent before disclosing information to third parties (family, friends, law enforcement officers, observers such as students) or allowing them to visit. 8. Obtain written informed consent before recording or filming the patient and before disseminating, publishing, or broadcasting patient images or information. Trying to distinguish and differentiate HIPAA from state confidentiality laws can be challenging. Generally, HIPAA creates a “uniform floor of protection throughout the country” that supersedes state law only when HIPAA is more protective of patients’ privacy than the existent state law [13, 14]. However, states retain the authority to require a more stringent level of protection than is required by HIPAA if desired. See the Health Privacy Project (https://cdt.org/insights/health-­ privacy-­101/) to learn more about each state’s privacy laws [45].

SAMHSA’s CFR 42: Part 2 In 1975, the federal Substance Abuse and Mental Health Services Administration (SAMHSA) developed Title 42 of the Code of Federal Regulations (CFR) Part 2: Confidentiality of Substance Use Disorder Patient Records. The purpose of CFR 42 Part 2 was to address concerns about the potential use of the medical records of patients with substance use disorders (SUD) in non-treatment-based settings such

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as administrative or criminal hearings related to the patient. Its purpose is to ensure that a patient receiving SUD treatment does not face adverse consequences for participating in treatment (e.g., in criminal or domestic proceedings such as those related to child custody, divorce or employment). CFR 42 Part 2 protects the confidentiality of SUD patient records by restricting the circumstances under which SUD treatment programs or other lawful holders can disclose such records. Part 2 programs receive federal funding (thus they must comply with CFR 42) and are generally prohibited from disclosing any information that would identify a person as having or having had a SUD unless that person provides written consent [46].

Conclusion Physicians and other mental health clinicians must face the challenge of effectively balancing the obligation to safeguard their patients’ personal health information and the task of using protected health information to efficiently deliver treatment and payment. To do so, it is important to keep the following principles in mind: • Confidentiality is the physician’s obligation to safeguard the patient’s personal and health information, whereas privilege is the legal protection of communications between two people from disclosure in court (e.g., physician-patient and therapist-patient privilege). • Common exceptions to confidentiality can be summarized by the acronym “MOTTO”: to comply with mandatory reporting duties, to obtain consent, in circumstances where the patient is a threat to self or others, for purposes of treatment coordination or continuation, and to comply with a court order [17]. • One should become familiar with the mandatory reporting guidelines in the state where one practices. Typical mandatory reporting exceptions include abuse or neglect of vulnerable populations such as children, the elderly, and disabled persons. • HIPAA establishes minimum federal privacy requirements while providing exceptions to confidentiality. States and institutions may implement additional requirements, and one should become familiar with the local regulations and policies where one practices. When in doubt, seek consultation from a colleague, risk manager, or attorney.

References 1. Supreme Court of the United States. Jaffee v. Redmond (95–266), 518 U.S. 1 (1996). Cornell University Law School Legal Information Institute; 1996. https://www.law.cornell.edu/supct/ html/95-­266.ZO.html. Accessed 7 Dec 2022. 2. Jaffee v. Redmond; 1996. http://www.apa.org/about/offices/ogc/amicus/jaffee.aspx. Accessed 7 Dec 2022.

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3. American Psychiatric Association. The principles of medical ethics with annotations especially applicable to psychiatry, 2013 Edition Revised; 2013. https://www.psychiatry.org/File%20 Library/Psychiatrists/Practice/Ethics/principles-­medical-­ethics.pdf. Accessed 18 Apr 2023. 4. American Psychological Association. Ethical principles of psychologists and code of conduct; 2010. http://www.apa.org/ethics/code/. Accessed 7 Dec 2022. 5. American Academy of Psychiatry and the Law. Ethics guidelines for the practice of forensic psychiatry; 2005. http://www.aapl.org/ethics.htm. Accessed 7 Dec 2022. 6. Fehrs LJ, Foster LR, Fox V, Fleming D, McAlister RO, Modesitt S, Conrad R. Trial of anonymous versus confidential human immunodeficiency virus testing. Lancet. 1988;332(8607):379–82. 7. Cheng TL, Savageau JA, Sattler AL, DeWitt TG.  Confidentiality in health care: a survey of knowledge, perceptions, and attitudes among high school students. JAMA. 1993;269(11):1404–7. 8. Sankar P, Moran S, Merz JF, Jones NL.  Patient perspectives on medical confidentiality: a review of the literature. J Gen Intern Med. 2003;18:659–69. 9. National Health Service Department of Health. NHS confidentiality code of practice; 2003. http://www.doh.gov.uk/ipu/confiden. Accessed 7 Dec 2022. 10. Conner VW. Patient confidentiality in the electronic age. J Intraven Nurs. 1999;22(4):199. 11. Committee on Health Research and the Privacy of Health Information: The HIPAA Privacy Rule. Beyond the HIPAA Privacy Rule: enhancing privacy, improving health through research. In: Nass SJ, Levit LA, Gostin LO, editors. . Washington, DC: National Academies.: Institute of Medicine (US); 2009. p. 75–110. 12. Weiner BA, Wettstein RM. Confidentiality of patient-related information. Arch Ophthalmol. 1994;112:1032–6. 13. Appelbaum PS.  Privacy in psychiatric treatment: threats and responses. Am J Psychiatry. 2002;159:1809–18. 14. U.S. Department of Health and Human Services Office of the Secretary. Standards for privacy of individually identifiable health information; final rule. Fed Regist. 2000;65:82462–829. 15. American Psychological Association. Exceptions to confidentiality for mental health providers (in California); 2011. http://supp.apa.org/books/Essential-­Ethics-­for-­Psychologists/exceptions.pdf. Accessed 7 Dec 2022. 16. U.S. Department of Health and Human Services Office of the Secretary. Standards for privacy of individually identifiable health information. Fed Regist. 2002;67:53,182–273. 17. Merideth P.  The five C’s of confidentiality and how to DEAL with them. Psychiatry (Edgemont). 2007;4(2):28. 18. U.S. Department of Health and Human Services. Individuals’ right under HIPAA to access their health information 45 CFR 164.524. https://www.hhs.gov/hipaa/for-­professionals/privacy/guidance/access/. Accessed 7 Dec 2022. 19. Cornell University Law School Legal Information Institute. Emancipation of minors. https:// www.law.cornell.edu/wex/emancipation_of_minors. Accessed 7 Dec 2022. 20. U.S.  Department of Health and Human Services Office for Civil Rights. HIPAA Privacy Rule and sharing information related to mental health; 2014. https://www.hhs.gov/hipaa/for-­ professionals/special-­topics/mental-­health/. Accessed 7 Dec 2022. 21. USLegal.com. The mature minor doctrine. https://healthcare.uslegal.com/treatment-­of-­ minors/the-­mature-­minor-­doctrine/. Accessed 7 Dec 2022. 22. Maradiegue A. Minor’s rights versus parental rights: review of legal issues in adolescent health care. J Midwifery Womens Health. 2003;48(3):170–7. 23. Proimos J. Confidentiality issues in the adolescent population. Curr Opin Pediatr. 1997;9:325–8. 24. American Medical Association Council on Scientific Affairs. Confidential health services for adolescents. JAMA. 1993;269(11):1420–4. 25. U.S. Department of Health and Human Services Office for Civil Rights. Minimum necessary [45 CFR 164.502(b), 164.514(d)]; 2002. https://www.hhs.gov/sites/default/files/ocr/privacy/ hipaa/understanding/coveredentities/minimumnecessary.pdf. Accessed 7 Dec 2022. 26. National District Attorneys Association National Center for Prosecution of Child Abuse. Mandatory reporting of child abuse and neglect; 2012. http://www.ndaa.org/pdf/

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Mandatory%20Reporting%20of%20Child%20Abuse%20and%20Neglect-­n ov2012.pdf. Accessed 7 Dec 2022. 27. Child Welfare Information Gateway. Mandatory reporters of child abuse and neglect. U.S.  Department of Health and Human Services, Children’s Bureau; 2016. https://www. childwelfare.gov/topics/systemwide/laws-­policies/statutes/manda/. Accessed 7 Dec 2022. 28. State of Connecticut Department of Children and Families. Report of suspected child abuse or neglect, DCF-136; 2015. http://www.ct.gov/dcf/lib/dcf/policy/forms/DCF-­136_Rev_05_2015. pdf. Accessed 7 Dec 2022. 29. Kaplan DB, Berkman BJ.  Elder abuse. In: Merck manual: professional version; 2016. http://www.merckmanuals.com/professional/geriatrics/elder-­abuse/elder-­abuse. Accessed 7 Dec 2022. 30. National Adult Protective Services Association. Get informed: what is abuse? 2017. http:// www.napsa-­now.org/get-­informed/what-­is-­abuse/. Accessed 7 Dec 2022. 31. Illinois Department of Human Services Office of the Inspector General. FAQs of reporting abuse/neglect of people with disabilities. http://www.dhs.state.il.us/page.aspx?item=29428. Accessed 7 Dec 2022. 32. Durborow N, Lizdas KC, O’Flaherty A, Marjavi A. Compendium of state statues and policies on domestic violence and health care. Family Violence Prevention Fund; 2010. https://www. acf.hhs.gov/sites/default/files/fysb/state_compendium.pdf. Accessed 7 Dec 2022. 33. English A.  Mandatory reporting of human trafficking: potential benefits and risks of harm. AMA J Ethics. 2017;19(1):54–62. 34. Health Cares About IPV. Understanding reporting requirements; 2015. http://www.healthcaresaboutipv.org/getting-­started/understanding-­reporting-­requirements/. Accessed 21 Jan 2017. 35. Centers for Disease Control and Prevention National Notifiable Diseases Surveillance System. 2016 Nationally notifiable conditions (Historical); 2016. https://wwwn.cdc.gov/nndss/conditions/notifiable/2016/. Accessed 7 Dec 2022. 36. U.S. Department of Health and Human Services Centers for Medicare and Medicaid Services. HIPAA basics for providers: privacy, security, and breach notification rules; 2016. https:// www.cms.gov/Outreach-­and-­Education/Medicare-­Learning-­Network-­MLN/MLNProducts/ Downloads/HIPAAPrivacyandSecurity.pdf. Accessed 7 Dec 2022. 37. U.S.  Department of Health and Human Services Office for Civil Rights. Your rights under HIPAA. https://www.hhs.gov/hipaa/for-­individuals/guidance-­materials-­for-­consumers/. Accessed 7 Dec 2022. 38. 104th Congress. Health Insurance Portability and Accountability Act of 1996. Public Law 104-191. U.S.  Government Printing Office; 1996. https://www.gpo.gov/fdsys/pkg/ PLAW-­104publ191/html/PLAW-­104publ191.htm. Accessed 7 Dec 2022. 39. Corcoran K, Winslade WJ. Eavesdropping on the 50-minute hour: managed mental health care and confidentiality. Behav Sci Law. 1994;12:351–65. 40. U.S. Department of Health and Human Services. CFR 164.501 Definitions. https://www.gpo. gov/fdsys/pkg/CFR-­2004-­title45-­vol1/pdf/CFR-­2004-­title45-­vol1-­sec164-­501.pdf. Accessed 7 Dec 2022. 41. U.S. Department of Health and Human Services Office for Civil Rights. CFR 164.508 Uses and disclosures for which an authorization is required. https://www.gpo.gov/fdsys/pkg/CFR-­2007-­ title45-­vol1/pdf/CFR-­2007-­title45-­vol1-­sec164-­508.pdf. Accessed 7 Dec 2022. 42. U.S. Department of Health and Human Services Office for Civil Rights. CFR 164.510 Uses and disclosures requiring an opportunity for the individual to agree or object. https://www.gpo. gov/fdsys/pkg/CFR-­2007-­title45-­vol1/pdf/CFR-­2007-­title45-­vol1-­sec164-­508.pdf. Accessed 7 Dec 2022. 43. U.S. Department of Health and Human Services Office for Civil Rights. CFR 164.524 Access of individuals to protected health information. https://www.gpo.gov/fdsys/pkg/CFR-­2011-­ title45-­vol1/pdf/CFR-­2011-­title45-­vol1-­sec164-­524.pdf. Accessed 7 Dec 2022. 44. Moskop JC, Marco CA, Larkin GL, Geiderman JM, Derse AR. From Hippocrates to HIPAA: privacy and confidentiality in emergency medicine—part II: challenges in the emergency department. Ann Emerg Med. 2005;45(1):60–7.

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45. Health Privacy Project. The state of health privacy: second edition. Institute for Health Care Research and Policy, Georgetown University; 2009. https://www.cdt.org/files/pdfs/The%20 State%20of%20Health%20Privacy%20(Volume%201).pdf. Accessed 7 Dec 2022. 46. Confidentiality of Substance Use Disorder Patient Records. Department of Health and Human Services. 42 CFR Part 2. https://www.govinfo.gov/content/pkg/FR-­2017-­01-­18/pdf/2017­00719.pdf. Accessed 18 Apr 2023.

4

Duties to Third Parties Katherine Michaelsen

Clinical Vignette You have just started your third year of psychiatry residency and are assigned to complete your outpatient training in the mental health clinic of a University Health Center. At the clinic, you typically treat undergraduate and graduate students enrolled at the university with psychotherapy and medication management. While you are working in the intake clinic, a young man named Brian comes to the clinic seeking counseling at the urging of his roommate. Brian presents to the evaluation as a young, thin male dressed in rumpled clothing and smelling faintly of beer. He exhibits slowed speech and movements, though does not appear intoxicated. He does not appear to be responding to internal stimuli. During the evaluation Brian informs you that he just finished his junior year of college at the University. Last fall he met a young woman, Laura, in a yoga class at the dormitory where he was living. The two became good friends, and a few months later, at a party, they kissed. After this kiss, Brian realized how much he loved Laura and believed that she felt the same about him. He planned to tell her his feelings and expected that the two would enter into a romantic relationship. However, when he approached Laura and expressed his feelings, Laura told him that she had been drinking too much that night and that she didn’t like him “like that.” Over the ensuing weeks, he made repeated efforts to show her how much he cared for her but without a change in her response. Brian says that when he finally realized Laura would not return his romantic feelings, it “broke [his] heart.” Brian reports that over the final month of the semester, he stopped attending classes and his GPA plummeted. He spent hours in his room contemplating what he K. Michaelsen (*) Department of Psychiatry and Behavioral Sciences, University of Washington School of Medicine, VA Puget Sound Health Care System, Seattle, WA, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 T. Wasser, R. Zhong (eds.), Psychiatry and the Law, https://doi.org/10.1007/978-3-031-52589-6_4

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had done wrong and why Laura would not love him back. He became more and more depressed and started neglecting his hygiene and appearance. He says that he now spends most of his time alone in his room drinking beer and playing video games or watching movies. Encouraged by his friends, he decided to seek counseling, prompting his visit to the clinic today. You recommend that Brian engage in ongoing treatment at the clinic. He indicates that he is not interested in taking medications, but agrees to begin meeting with you for psychotherapy. You begin meeting with him, and he spends the majority of each session talking about Laura. Initially these discussions focus on how depressed he is that she does not return his love. Over time, he focuses more on his anger toward her and his developing belief that Laura is involved in an intricate plot with the university administrators to cause him to fail out of school. After several sessions, Brian tells you, “I’ll make her pay.” You inquire further, and he discloses to you that he intends to buy a gun and kill Laura once she returns to school after summer vacation. What do you do?

What Really Happened?  arasoff v. The Regents of the University of California, Supreme T Court of California 1974 Prosenjit Poddar was a graduate student from India, studying at the University of California, Berkeley. He met Tatiana Tarasoff, a college freshman, at a school dance. They saw each other regularly and at one event, kissed. Mr. Poddar had never had a romantic relationship before and was not familiar with American traditions. He felt he had a special relationship with Ms. Tarasoff and felt betrayed when she engaged with other men and did not reciprocate his further advances. Over the summer, Ms. Tarasoff was abroad for a few months. At the urging of a friend, Mr. Poddar went to see a psychologist, Dr. Moore, at the University Mental Health Service. During the course of their therapy, he shared his intention to obtain a gun and shoot Ms. Tarasoff. When asked further about his plan, Mr. Poddar terminated therapy. Dr. Moore sent a letter to the campus police requesting that they detain Mr. Poddar and take him to a psychiatric hospital. Campus police detained and interviewed Mr. Poddar and concluded that he was not dangerous. He promised to stay away from Ms. Tarasoff, and the police released him. When the psychiatrist in charge of the Mental Health Service learned of Dr. Moore’s actions, he instructed Dr. Moore not to take any further actions and to destroy the letter that was sent to the police. When Ms. Tarasoff returned from vacation, Mr. Poddar stalked her and stabbed her to death. Ms. Tarasoff’s parents sued the campus police, the Mental Health Service employees, and the Regents of the University of California for failing to warn them of their daughter’s danger. The California trial court dismissed the case. Prior to the Tarasoff decisions, psychotherapists had a duty to their patients, not to third parties. The Appeals Court supported the dismissal.

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In 1974, the California Supreme Court disagreed with the trial and appellate court decisions. It held that a therapist has a duty to use “reasonable care” to give a threatened victim the warning needed to avert a foreseeable danger arising from a patient’s condition (Tarasoff I decision), creating a “duty to warn” [1]. However, psychiatrists, police, and others protested the decision due to concerns about psychiatrists’ inability to accurately predict violence and the chilling effect the decision might have on patients’ willingness to seek care. The California Supreme Court reheard the case in 1976 (this became known as the Tarasoff II decision).

 arasoff v. The Regents of the University of California, Supreme T Court of California 1976 (“Tarasoff II”) This time the court held that when a therapist determines or should have determined that a patient presents a serious danger of violence to another, he or she has an obligation to use reasonable care to protect the intended victim against this danger [2]. Fulfilling this duty may require a therapist to take one or more steps, including notifying the intended victim, notifying law enforcement, and/or hospitalizing the patient. Thus, the court replaced the “duty to warn” with a “duty to protect.” As supporting evidence, the court noted that doctors have the responsibility to warn others of certain contagious diseases and concluded that the “protective privilege ends where the public peril begins” [2].

Duties to Third Parties: Introduction The Tarasoff decisions addressed clinicians’ duty to “third parties”—that is, their legally defined duty to consider the welfare of someone beyond their direct patient. As the Tarasoff II decision alludes to, there is some precedent for this in other situations. For example, the diagnosis of certain contagious diseases requires physicians to break confidentiality with their patients and inform the health department, which may in turn warn the patient’s recent contacts of their exposure. In mental health care, prior to the Tarasoff decisions, some duty to protect or warn potential victims was recognized in cases involving violence by patients found to be negligently released from a hospital [3]. The Tarasoff cases formally extended this responsibility to the outpatient setting as well. As a result, the duty to protect or warn third parties of a patient’s potential violence became commonly referred to as a “Tarasoff duty.” The Tarasoff decisions created a new responsibility or “duty” for clinicians in California—once a patient makes a threat—to the patient’s intended victims. In other words, the court found that Mr. Poddar’s threat to kill Ms. Tarasoff should have triggered Dr. Moore’s duty to protect Ms. Tarasoff. Which situations may trigger this duty and which actions may be required to “discharge,” or satisfy, the duty have varied over time and place. For example, the Tarasoff I court defined

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discharging the duty as warning a potential victim of the threat. This would have required informing Ms. Tarasoff of the threat so that she could then take steps to protect herself. However, the Tarasoff II court redefined discharging the duty as protecting a potential victim from the threat. This, among other things, may have required hospitalizing Mr. Poddar, warning Ms. Tarasoff, and/or informing the police. Although Tarasoff was a California State Supreme Court decision and applied only in California, the ruling had national repercussions. Courts and legislatures have addressed duties to third parties in other states, though the duty varies significantly between states. There are two main ways a state can create a Tarasoff duty: through the courts and through legislative action. Many courts have heard cases with similar characteristics and turned to Tarasoff for guidance, creating precedents in their jurisdictions (also known as “common law” or “case law”). Many state legislatures have also passed statutes which explicitly outline a clinician’s duty to warn or protect third parties in that state. Various states define the duty to third parties differently, and some states don’t recognize any duty. Many professionals have heard of Tarasoff and its implications, but statutes or case law in a clinician’s state may differ significantly from the original Tarasoff decisions. The interstate variability, difficult-to-­ interpret case law, and ongoing changes to Tarasoff regulations create a number of challenges for practicing clinicians. Tarasoff regulations can cause anxiety about liability, but, in certain situations, Tarasoff duties can play a legally protective role for the clinician. For example, Tarasoff laws may create liability if a clinician fails to act (when they should have) and a patient commits a violent act; however, they may also provide legal protection if a clinician appropriately acts and a patient later sues for breach of confidentiality [4].

Trends in Duties to Third Parties After the original Tarasoff decisions, courts in other jurisdictions began to expand clinicians’ Tarasoff duties. Courts held clinicians accountable for patient violence toward unidentified victims in the general public [5], patient violence toward property [6], and even violence toward victims who were already aware of the risk posed by the patient [7]. Some courts also expanded the definition of clinician responsibility to include an extended period after termination of treatment. For example, a court found that even when violence occurred five and a half months after hospital discharge, clinicians could still be found negligent for failing to foresee a patient’s potential to act violently [8]. Courts further expanded clinician duties with a series of so-called “driving cases,” where clinicians were held liable for unintentional violence committed by their patients in the form of traffic accidents [9–11]. The driving cases in particular caused concern about the expanding scope of dangerous activity for which clinicians could be held liable, regardless of negligence in care [10, 11]. Critics argue that Tarasoff-like reasoning should not be applied to driving-related

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injury. The injury is not clearly an extension of the mental illness-derived intentional violence that justifies a Tarasoff duty, but rather is more likely related to negligent driving, and clinicians are unable to predict a patient’s future negligence [11]. As a result of clinicians’ and professional organizations’ arguments that court rulings created unreasonable expectations, many state legislatures have passed “Tarasoff-limiting statutes”: statutes that try to clearly define and limit the circumstances that trigger a duty to potential victims and the discharge of the duty. Details of statutes vary greatly, but they typically require that the threat be explicit and credible, that the patient has the ability to carry it out, and that it is directed at an identifiable victim(s) [12–14]. Similarly, some courts, both on their own and in response to statutes, have moved to reject or limit Tarasoff’s application to clinicians’ duties. Soulier et al. reviewed appellate cases (1985–2006) and identified 70 Tarasoff-­ related cases, only six of which were decided in favor of plaintiffs (typically individuals or families of individuals injured or killed by a patient, with a clinician as the defendant) [13]. Courts decided in favor of the defendant clinician even with scenarios similar to the cases that were decided for the plaintiff in the early days after Tarasoff. The authors attributed this trend to legislation limiting the scope of Tarasoff duties, an increase in judicial sympathy toward clinicians evaluating threats, and an ill-defined “social climate change” [13]. They found that in contrast to earlier cases, defendant clinicians were exonerated when a patient did not communicate a threat directed at an identifiable victim, when victims were aware of their danger, or when violence occurred long after termination of treatment. Soulier et al. divided states based upon whether laws mandated, permitted (allow but do not mandate), or do not allow warnings or protection. They concluded that states that mandate warnings or protection in Tarasoff situations were the most protective of clinicians, whereas as permissive states may expose clinicians to more legal liability [13]. Notably, the protections of Tarasoff-limiting laws did not extend to negligent care and poor clinical judgment—that is, when a clinician’s care failed to meet the standards that could be reasonably expected for clinicians in a similar position—such as failing to assess a patient’s violence risk when there are clearly reasons for concern (e.g., agitation with a history of violence). The authors give the Bragg v. Valdez case as an example, in which an individual who had been involuntarily hospitalized was discharged due to lack of insurance (rather than clinical readiness) and went on to assault his mother [15]. Although reassuring, Soulier et al.’s findings are somewhat limited by the authors’ difficulty capturing cases settled out of court or decided in local courts. More recent cases have raised concerns about the pendulum swinging back toward expansion of Tarasoff duties. Even in states with Tarasoff-limiting statutes, courts have been inconsistent in their interpretation of the statutes and have sometimes even disregarded them. Kachigian and Felthous reviewed cases involving a possible Tarasoff duty that courts decided after passage of Tarasoff statutes in those states [16]. They found that many court decisions did not reference or did not use the state’s Tarasoff statute in the analysis for the court’s conclusions. Other courts considered the Tarasoff statutes but found that a clinician’s common law duty to potential victims (established

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by the courts) still applied, regardless of any limits set by the state statutes. The authors concluded that courts were not reasonable or consistent in their interpretations of Tarasoff-type statutes and contended that statutes have not provided the hoped-for clarity for the duty to protect [16]. Weinstock and colleagues, while advocating for states to implement statutes so as to provide guidance to clinicians and courts, also expressed concerns about their unintended consequences, including the “criminalization of Tarasoff,” a practice where prosecutors use Tarasoff statutes to force therapists to testify as prosecution witnesses against their patients [17]. In a notable example of statute-court interaction, the Washington State Supreme Court in Volk v. DeMeerleer decided that the state’s Tarasoff-related statute (RCW 71.05.120) only applied to involuntary treatment. Their decision expanded mental health professionals’ duty to protect “foreseeable victims” from their voluntary patients’ “dangerous propensities,” rather than the statute’s requirement of protecting identified victim(s) from a patient’s actual communicated threat of violence [18]. This leaves Washington mental health professional following two different standards––with involuntary patients relatively protected by a standard that limits circumstances triggering a Tarasoff duty––whereas voluntary patients risk having their violent fantasies, angry words, or hostile emotions lead to breaches of confidentiality. Further, the potentially endless nature of “foreseeable” victims raises concerns about potential conflict with HIPAA (below the typical minimum requirements for breach of confidentiality) and potential conflict with the American Medical Association’s Code of Medical Ethics professional guidelines (which require an identifiable victim, a patient who presents a serious threat of physical harm, and the probability of physical harm) [19]. The California experience is also illustrative of the struggles around regulating and interpreting duties to third parties. After the original Tarasoff court decisions, the legislature passed a statute codifying and limiting the duty. However, subsequent court cases expanded the duty to include threats communicated by other parties (e.g., family members of the patient rather patients themselves) and held that a warning was necessary to discharge a Tarasoff duty (rather than one of several options) [17]. Subsequent efforts to limit the types of threat that trigger a Tarasoff duty and to codify a duty to “protect” led to further revisions of the statute [17, 20]. Even with these changes, expanded duties, including a duty to protect the general public (rather than an identified victim) and a duty triggered without an explicit threat, continue to be litigated in the California courts [21]. Moreover, despite efforts to revise California’s statute away from a duty to “warn,” gun legislation requiring a clinician to issue a report to the police when patients trigger a Tarasoff duty creates a de facto warning requirement [22].

Duties to Third Parties: Concerns and Controversy Since the original Tarasoff cases, professionals have debated the best ways to conceptualize, regulate, and discharge a duty to third parties. This section will review some of these areas of concern.

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Though civil legal liability is frequently the focus of the literature and of clinician anxiety, there is also potential administrative liability (e.g., state medical boards and professional organizations). However, many experts give moral and clinical concerns precedence in their consideration of the Tarasoff duty [e.g., 12, 14, 23, 24]. When considering the ethical basis for a duty, some focus on the moral claims of the potential victim [4], while others prioritize the claims of the patient in treatment— including confidentiality, agency, and avoiding the consequences of having harmed another person [14, 23, 25]. Clinicians must grapple with the difficulty of predicting future violence and then using relatively uncertain predictions to develop management plans that balance patient and public concerns. Professionals also disagree on the best method for discharging a duty to third parties, with some focusing on treatment and others on issuing warnings [e.g., 12, 23, 24, 26].

Assessing Threats How do we best understand the Tarasoff duty? Clinicians must weigh the risks to the patient (involuntary detention, loss of privacy, embarrassment, damage to therapeutic alliance) with those to the potential victim (risk of harm). Mossman notes that Tarasoff and similar court decisions and statutes assume that clinician judgments can take a binary form of “yes-or-no” assessments about whether a patient presents a serious danger of violence [14]. In reality, therapists’ judgments place individuals into categories of risk for violence, which do not translate well into a “yes-or-no” answer. Further, there is no guidance about the threshold of risk that should trigger a Tarasoff duty, because society cannot agree upon which level of risk is serious enough to prompt a Tarasoff-type response at the expense of a patient’s freedom or privacy [14]. While structured risk assessments—ranging from lists of pre-identified variables associated with higher risk of violence to actuarial instruments that use statistical methods of estimating the risk of a particular event—may improve overall violence prediction, there are limits to their use in clinical practice [27, 28]. For example, violence prediction techniques may not be accurate enough in outpatient clinical settings to sufficiently distinguish high- from low-risk patients [14, 28]. Similarly, base rates of violence are so low that they are unlikely to be useful when considering violence risk in a specific patient and victim [14, 28, 29]. The implications of bias in our society raise additional concerns. In the criminal justice system, some have hoped that risk assessment tools and standardized criteria may help with decreasing bias in assessments and, to some extent, they may. However, risk assessment tools can disproportionately misclassify Black defendants as high risk––leading to high bail, pretrial detention, and longer sentences [30]. In effect, many violence risk instruments assess as increased risk based on characteristics or histories that are more common among Black individuals due to systemic issues rather than actual risk of violence or re-offense (e.g., criminal history) [30]. There is also a low representation of Black and other minority groups in study populations and norming groups for the risk assessments [30]. Further, there

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is evidence that Americans perceive young Black men as bigger and more physically threatening than young White men and, ultimately, that young Black men require more aggressive measures to control them [31]. It is hard to imagine that individual clinicians would be immune from these biases in their risk assessments, which may in turn impact who experiences loss of confidentiality or is referred for involuntary hospitalization. Similarly, most research into violence and risk assessment is based on male research models. In female populations, there are limited studies, they are often in specialized populations, and there is limited validation of actuarial violence risk assessments. Further, studies indicate that clinicians often underestimate violence risk in women, especially women in mental health settings [32–35]. There is even less information on transgender or gender-nonconforming individuals.

Responding to Threats Due to difficulties inherent in Tarasoff situations, several experts advocate centering the best interest of the patient, which likely includes helping the patient avoid violent acts and their consequences [e.g., 14, 23]. Mossman suggests regarding the patient as an end unto himself or herself (i.e., intrinsically valuable and important) rather than as a source of statistical risk [14]. He proposes an approach (and statutes that support this approach) where duty is triggered when a patient utters a credible threat that the patient can feasibly carry out, thereby avoiding the need for prediction and letting a patient’s actions be the trigger for a protective duty and guide an appropriate response. In general, the uncertain role of mental illness in violence complicates responses. Individuals with mental illness are more likely to be victims of violence than perpetrators [36]. Though there is evidence of increased risk of violence among individuals with mental illness [37, 38], major mental health disorders and psychiatric disturbances are poor predictors of violence [39]. In one estimate, only 3–5% of violent acts in the community were attributable to mental illness [37]. Considered at a population level, unusual events, like violence after a threat, are inherently difficult to detect and prevent, and many people would need to be confined in order to prevent even a few acts of violence [24, 28]. For example, Buchanan estimated that given a population with a baseline rate to assault with a weapon or cause serious injury of 3.6% (a rate derived from the Clinical Antipsychotic Trials of Intervention Effectiveness study), 15 patients would need to be detained and hospitalized in order to prevent one injury (based on the accuracy of risk assessment tests) [28]. So how should we respond? Mossman argues that focus on violence prediction alone may be a futile approach to decreasing violence and that, instead, treatment is the most effective response [24]. Clinical interventions, which are simultaneously beneficial to the patient, may also decrease the patient’s risk of violence, including treating substance use disorders and improving treatment adherence through community monitoring [24].

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When analyzing the original Tarasoff case through this lens, Gutheil argues that keeping Mr. Poddar in treatment and working to decrease his shame, rage, and dangerousness would have been a better response to his threats—for both Mr. Poddar and Ms. Tarasoff—than warning Ms. Tarasoff or hospitalizing Mr. Poddar. At the time of the threats, Ms. Tarasoff was not in imminent danger (she was out of the country), it is unlikely that commitment would be justified (given the lack of imminent danger) or extended long enough to protect Ms. Tarasoff, and warnings would have been of questionable efficacy [23].

Warnings There is also some disagreement about the importance of the distinction between the duties to “warn” versus to “protect.” Some argue that a duty to “protect” allows the clinician more legally (and clinically) acceptable options when managing Tarasoff situations [20]. Others interpret “protect” as giving clinicians additional responsibilities to control their patients and allowing more leeway for courts to find clinicians responsible for bad outcomes [40]. Still others argue that regardless of statutory language, court interpretations suggest there exists only a duty to warn [26]. Warnings themselves are not straightforward, nor is the threshold for triggering a warning [4, 23, 41]. Despite concerns that warnings might have a chilling effect on therapy, an early study found that warnings incorporated into treatment seldom had a negative impact on the therapeutic relationship, and only warnings not discussed with the patient or given without good reason were harmful to the relationship [42]. The study’s author surmised that discussed warnings might strengthen the therapeutic alliance because they demonstrate an ability to retain therapeutic concern even in the face of imminent danger. However, despite an apparent lack of therapeutic harm and potentially serving as the clinician’s most legally protective recourse, warning alone is rarely clinically appropriate and may not protect the potential victim [23]. There is often little that the victim can do after receiving a warning [23], and warnings may exacerbate the danger by further upsetting the patient [20]. In addition, warnings may not be feasible or warranted at the time of an evaluation (e.g., for an admitting physician in the emergency department with no control over discharge) and do not address the underlying causes of the threat [20].

State-by-State Variation In addition to the concerns described above, the lack of regulatory consistency across jurisdictions—when a Tarasoff duty applies and what it requires—complicates clinical practice. The variation in court responses to Tarasoff, even in states with statutes, adds to the confusion. Current variations in regulations between states include the types of legal guidance, the types of health professionals included, the types of threats included, whether the victim must be identifiable, and whether a specific intervention is mandated (see Table  4.1). Of note, published articles and

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Table 4.1  State variations in legal regulation of Tarasoff duties [4, 42, 43] Examples of Tarasoff duty variables Legal regulation Health professionals  •  Mandatory  • “Mental health  •  Permissive provider”  • No (definition guidance varies)  •  Physicians only  •  Not specified

Threats  •  Imminent  •  Serious

Victims  •  Identifiable  • Reasonably foreseeable  •  Property

Intervention  • Many options  • Warning required (target of the warning varies)

national resources that list state regulations, including the ones relied upon to develop the summary resources below are often out of date and may be incomplete. They should not be the primary source of information for clinicians looking up the regulations in their state. There are three general types of legal guidance [4]. In mandatory jurisdictions, the provider is required by law (statute or case law) to break confidentiality and act on threats by doing something to warn or protect the potential victim(s), and the provider is protected from liability when so doing (see Fig. 4.1). Statutes often contain language distilled down to these main criteria: an explicit, credible threat that the patient intends and is able to carry out and against an identifiable or reasonably identifiable person or group of people [4, 12, 44, 45]. In permissive jurisdictions, providers may breach confidentiality if their patients make serious threats and will be legally protected if they do, but providers are not obligated to protect or warn a potential victim [4]. However, there is no legal protection if the provider chooses not to act and the patient later harms a third party. In the third type of jurisdiction, providers have neither a legally established duty to warn or protect potential victims nor a justification to breach confidentiality to make a warning [4]. Providers in these states are potentially open to legal risk no matter how they proceed. If they breach confidentiality, the patient can sue. If they fail to breach confidentiality and a patient harms an individual, then the victim can sue. Some states specify the types of professionals who have a duty to third parties [4]. For example, some state regulations specifically include psychiatrists, psychologists, clinical social workers, and sometimes even associates of those professions, and other states include the above, plus physicians not accredited in psychiatry. Several states do not specifically include psychiatrists. States also differ in which types of threats trigger a Tarasoff duty [4]. Some states limit the duty to an “imminent” threat but vary in the definition of imminent—ranging from days to months and often also differing from the definition of imminent used for civil commitment. A few states limit the duty to a “serious” threat, which may be defined related to the nature of the threat or the likelihood it will be acted on, without a particular time frame [4]. Some states also recognize threats communicated by third parties (such as family members) or threats that can be inferred by a patient’s actions or circumstances (e.g., a patient’s escalating agitation that has in the past been associated with violent outbursts), rather than limiting the duty to

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Fig. 4.1  Regulation of Tarasoff duties by state [44]

threats directly and explicitly stated by a patient [26]. Most states require that the victim be identifiable [4, 45], though some require only that the victim be “foreseeable” [18]. A few states also reference threats to harm property [44]. Some states also specify a course of action the clinician must follow—usually whether a warning is required and who must be warned, including identified victims, law enforcement, or both [4].

Discharging a Tarasoff Duty  iven All This Confusion, What Do You Actually Do to Fulfill Your G Professional Duty? In general, a Tarasoff situation raises three questions: • Does the client pose a serious risk of violence to another person [29]? • If so, what steps might reasonably be taken to protect the victim [29]? • How can we balance the risk to a potential victim while considering the patient’s care and—to the extent possible—maintaining confidentiality? For an overview of the steps involved in assessing and managing risk in these situations, please see Table 4.2.

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Table 4.2  Discharging a Tarasoff duty: summary When a patient makes/presents a threat Before  •  Understand local Tarasoff-type regulations Assess risk  •  Thorough clinical assessment  •  Individualized assessment of factors that may contribute to violence  • Treat threat as a therapeutic issue for assessment (and management) purposes  •  Obtain collateral (records, contacts)  •  Consider    –  General risk factors associated with increased risk of violence    –  Risk factors associated with increased risk after a threat    –  Where is patient on path toward violent action? ACTION questions Manage risk  • Consider competing interests: autonomy, confidentiality, others’ safety, etc.  •  Address risk factors that are amenable to intervention  •  Increase treatment (consider hospitalization)  •  Increase monitoring  •  Warnings, if appropriate    –  Consider involving the patient    –  Protect patient’s confidentiality as much as possible  •  Consult colleagues or legal counsel if uncertain Clearly  •  Risk assessment document  •  Management plan  •  Rationale behind choices

Risk Assessment For a more detailed discussion of violence risk assessment, please review the chapter dedicated to this topic by Dr. Westphal. A basic approach to violence risk assessment in clinical settings where a Tarasoff-type situation arises begins with familiarity with the Tarasoff duty in the state where a professional is practicing. A clinician must conduct a thorough assessment of the patient—including a thorough history and evaluation of current mental state, seek appropriate collateral, strive for objectivity, show respect for all parties involved, and demonstrate understanding of the limits of accuracy that can be expected from psychiatric violence risk assessments [27]. Not everyone who makes a threat poses a threat, and not everyone who poses a threat actually makes a threat [29]. It is important to take an individualized approach to assessment and intervention based on the facts at hand [23]. Ideally, as part of a clinical assessment, clinicians should address the threat toward third persons as a therapeutic issue with the patient [42]. This may provide additional risk assessment information, minimize harm to the therapeutic relationship, and provide ongoing opportunity for risk containment. Clinicians may want to explore the meaning of the threats and discuss their concerns with patients. Clinicians should consider additional sources of information that will help them better assess a patient’s risk of dangerousness, including past medical records and collateral sources such as partners, friends, and relatives. If circumstances permit, a clinician should consider discussing the decision to breach confidentiality with a

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patient in advance—both for collecting collateral and issuing warnings—to try to preserve the relationship with the patient [12, 42]. However, in a psychiatric emergency (including risk of violence), the need to preserve life supersedes the need to obtain consent from the patient [12]. It is helpful to document this decision carefully. There is only a weak statistical association between a patient making a threat and his or her later risk of engaging in violence, but there is an association [43]. A patient’s risk can be conceptualized as a pathway from idea to action [29]. As part of a clinical risk assessment, clinicians must determine whether a patient is progressing on the pathway toward a violent act. Clinicians may consider characteristics associated with a greater risk of violence in general psychiatric settings, including factors related to past history [27]: • • • • • • • •

Prior violence (it is helpful to get details about past acts, context of past acts) Prior arrest Young age at time of first arrest Drug and/or alcohol abuse Cruelty to animals and people Fire setting Risk taking Behavior suggesting loss of control or impulsivity And factors related to current context and clinical picture [27]:

• • • • • • • •

Male under 40 years Noncompliance with treatment Access to weapons Role of significant other and/or caretaker (either provocative or not protective) Seeing self as victim Lack of compassion/empathy Intention to harm Lack of concern over consequences of violent acts

Depending on setting, clinicians may want to consider other risk factors. For example, in psychiatric settings, women have roughly the same level of risk compared with men. In the emergency room and inpatient unit [27]: • Aggressive attributional style: hostile, suspicious, or believing others intend to harm • Command auditory hallucinations to harm others • Poor therapeutic alliance An assessment should include special consideration of factors that are associated with a greater risk of violence after a threat (albeit not always violence directed at the original target) [43]: • • • •

Substance abuse Not receiving mental health care Limited education Prior history of violence

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Clinicians should integrate their understanding of a patient’s risk factors, personality, symptoms, and environment with potential causes of violence in an individual case [27]. For example, in the case of Mr. Poddar, though he had delusions about and violent ideation toward Ms. Tarasoff, there was no indication he presented a risk to anyone else or that he presented a risk to her while she was out of the country. As part of their integrated assessment, clinicians may want to consider ACTION questions to evaluate where an individual patient is on the pathway toward violent action [29]: • Attitudes that support or facilitate violence (Belief that use of violence is justified under the circumstances? Belief that violence will accomplish the goal?) • Capacity or means to carry out the violence • Thresholds crossed (Behaviors to further a plan? Especially consider acts that require rule and law breaking.) • Intent (Distinguish between fantasies/ideas and intent/commitment to action) • Others’ reactions and responses (What responses did/does the patient receive/ anticipate? Do collateral sources believe the patient is serious?) • Noncompliance with risk reduction interventions

Risk Management Assessing violence risk is not the same as managing risk. The basic principle behind risk management includes identifying risk factors that are amenable to treatment interventions (dynamic risk factors), such as active substance use and lack of mental health treatment, and targeting treatment interventions to these factors. Clinicians must evaluate and attempt to balance competing interests, including the patient’s right to autonomy and confidentiality and other individuals’ right to safety. As noted above, it is difficult to determine what risk threshold should trigger a duty to warn/protect, so some advocate for primary focus on treatment as having the greatest likelihood of benefiting the patient, while also potentially protecting the victim [14, 23]. However, it is still important to be aware of state requirements affecting this threshold, including whether a victim must be identifiable and whether a threat must be imminent or serious. Once clinicians determine that there is a risk, there is an array of treatment options, depending on the specifics of the situation and on state regulations [12]: • • • • •

Hospitalization More frequent therapy sessions Starting or increasing medication Other forms of closer monitoring Warnings to victim and/or police

Hospitalization may have the following advantages over warnings: keeps parties safe during crisis, minimizes the scope of the breach of confidentiality, allows more time for assessment, and allows for intensive treatment that may provide an effective means of reducing a patient’s risk.

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If clinicians are unsure about how to manage a particular case, they should seek appropriate supervision or consultation. Clinicians may seek clinical consultation (i.e., from an attending or colleague) or legal consultation from the facility’s legal counsel. This can also be helpful in malpractice cases as it is more difficult to prove that a “reasonably prudent practitioner” would not have made the same decision, when two psychiatrists arrived at the same conclusion [12]. Finally, risk assessments and management plans are not one-time events––they should be regularly updated and adjusted as appropriate.

Warnings If, based upon the characteristics of the situation and local regulations, a clinician decides to make a warning, it is important to discuss this with the patient if possible [42]. If appropriate, clinicians may consider working with the patient and having the patient give the warning in session [23]. This allows the patient to maintain control of the disclosure, the victim is put on notice, and no professional rules are violated. In addition, a warning handled in this manner may decrease the danger by facilitating communication between the parties. Importantly, warnings may provide little protection to the victim or the patient [23], and warnings alone are usually appropriate only in emergency situations (e.g., if the patient leaves a clinician’s office after making a threat and before the clinician has a chance to obtain additional information or to hospitalize the patient). Warnings should be made as discretely as possible to protect the patient’s confidentiality (i.e., give only the minimum necessary information to law enforcement/ potential victim) [12]. Zonana suggests that if a warning may have legal consequences (e.g., a threat against the president), clinicians may suggest that the patient consult with an attorney regarding how to handle the consequences and how to protect the patient’s rights [25]. He also cautions against assuming a role as agents of the police or assisting with extracting confessions. This is especially important in situations where there may be legal ramifications for a threat.

Documentation Good clinical documentation is critical. It provides the patient’s future clinicians with important information for further assessment and treatment and may also be protective in case of a lawsuit. Notes should demonstrate that the clinician performed a careful risk assessment and provided a rationale for implementing a reasonable risk management plan based on the risk assessment [12]. Importantly, including the rationale for risk management choices demonstrates that the clinician was using reasonable professional judgment when choosing certain actions and not others [12]. Clinicians should document their assessment of the specific threat made or posed by the patient, the identity of the potential victim, the patient’s ability to carry out the stated threat, consultations, collateral information (and attempts to communicate with collateral sources), treatment choices, and other risk management strategies—including any

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attempts made to contact the potential victim or law enforcement [12, 45]. Notes should also include information on noncompliance with treatment recommendations and, when possible, include direct quotes from the patient [12].

Liability Practicing to the “standard of care” does not mean that psychiatrists must predict violence or prevent all tragic events [12]. The legal expectation in all patient care–– including Tarasoff-type situations––is that a clinician will follow the standard of care for their profession in the state in which they practice. Professionals are most likely to be assessed based on whether they considered information that most similarly trained professionals would (or should) consider and, in light of that information, whether their conclusion was one that a reasonable professional would also have reached [29]. Psychiatric malpractice cases involving harm to third parties often depend on foreseeability [12]. Did someone complete a reasonable assessment of risk and create a plan that reasonably addresses the level of risk? A clinician is more likely to be found liable if she or he made a judgment based on mistaken beliefs due to not having obtained sufficient data (e.g., due to failure to review medical records), than if she or he made an informed clinical decision that turned out to have been a mistake. In states without a duty to warn, legally there is no protection for breaching confidentiality, but there may be a clinical and moral duty to act to ensure the safety of your patient and potential victims. When in doubt, consult with colleagues or legal counsel in your state.

Conclusion The Tarasoff cases have had a significant impact on state regulations and clinical practice. However, duty to third parties remains one of the more complicated and confusing areas of practice regulation. The difficulty inherent in violence prediction has led some to advocate for a focus on the information at hand (rather than probabilities) and on treatment as directed by this information. Although legal concerns receive a lot of attention, clinical and moral considerations may transcend these. • Regulation of Tarasoff duty is complicated: know the local state regulations. • Complete thorough assessments of patients, including collateral—from the medical record and from individuals close to the patient. • Develop thoughtful plans for treating patients and managing identified risks. When possible, treat a threat as a therapeutic issue and focus on treatment. • Consider consultation (clinical and/or legal). • Thoroughly document evaluations, plans, and rationale. Acknowledgments  I would like to thank Juan Guzman-Rodriguez for his assistance with summarizing the Tarasoff cases.

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References 1. Tarasoff v. The Regents of the University of California. P2d: Supreme Court of California; 1974. p. 553. 2. Tarasoff v. The Regents of the University of California. P2d: Supreme Court of California; 1976. p. 334. 3. Walcott DM, Cerundolo P, Beck JC. Current analysis of the Tarasoff duty: an evolution towards the limitation of the duty to protect. Behav Sci Law. 2001;19(3):325–43. 4. Johnson R, Persad G, Sisti D. The Tarasoff rule: the implications of interstate variation and gaps in professional training. J Am Acad Psychiatry Law. 2014;42(4):469–77. 5. Lipari v. Sears Roebuck And Co. FSupp: U.S.  District Court for the District of Nebraska; 1980. p. 185. 6. Peck v. Counseling Service of Addison County, Inc. A2d: Supreme Court of Vermont; 1985. p. 422. 7. Jablonski v. United States. F2d: 9th Circuit; 1983. p. 391. 8. Naidu v. Laird. A2d: Supreme Court of Delaware; 1988. p. 1064. 9. Petersen v. Washington. P.2d: Supreme Court of Washington; 1983. p. 230. 10. Pettis RW.  Tarasoff and the dangerous driver: a look at the driving cases. Bull Am Acad Psychiatry Law. 1992;20(4):427–37. 11. Pettis RW, Gutheil TG. Misapplication of the Tarasoff duty to driving cases: a call for a reframing of theory. Bull Am Acad Psychiatry Law. 1993;21(3):263–75. 12. Knoll JL. The psychiatrist’s duty to protect. CNS Spectr. 2015;20(3):215–22. 13. Soulier MF, Maislen A, Beck JC. Status of the psychiatric duty to protect, circa 2006. J Am Acad Psychiatry Law. 2010;38(4):457–73. 14. Mossman D. Critique of pure risk assessment or, Kant Meets Tarasoff. U Cincinnati Law Rev. 2006;75:523–609. 15. Bragg v. Valdez. 3 California Reporter: California Court of Appeal; 2003. p. 804. 16. Kachigian C, Felthous AR. Court responses to Tarasoff statutes. J Am Acad Psychiatry Law. 2004;32(3):263–73. 17. Weinstock R, Vari G, Leong GB, Silva JA. Back to the past in California: a temporary retreat to a Tarasoff duty to warn. J Am Acad Psychiatry Law. 2006;34(4):523–8. 18. Volk v. DeMeerleer. 386 P.3d: Supreme Court of Washington; 2016. p. 254. 19. Piel JL, Opara R. Does Volk v DeMeerleer conflict with the AMA Code of Medical Ethics on breaching patient confidentiality to protect third parties? AMA J Ethics. 2018;20(1):10–8. 20. Weinstock R, Bonnici D, Seroussi A, Leong GB. No duty to warn in California: now solely and unambiguously a duty to protect. J Am Acad Psychiatry Law. 2014;42(4):533. 21. Levin A. APA signs onto amicus brief supporting confidentiality. Psychiatric News [Internet]. http://psychnews.psychiatryonline.org/doi/full/10.1176/appi.pn.2016.8b4. Accessed 8 Nov 2016. 22. Weinstock R, Darby WC, Bonnici DM, Seroussi A, Leong GB.  The ever-evolving duty to protect in California. J Am Acad Psychiatry Law. 2015;43(2):262. 23. Gutheil TG.  Moral justification for Tarasoff-type warnings and breach of confidentiality: a clinician’s perspective. Behav Sci Law. 2001;19(3):345–53. 24. Mossman D.  The imperfection of protection through detection and intervention. Lessons from three decades of research on the psychiatric assessment of violence risk. J Legal Med. 2009;30(1):109–40. 25. Zonana H. Physicians should not be agents of the police. Psychiatr Serv. 2005;56(8):1021. 26. Herbert PB, Young KA. Tarasoff at twenty-five. J Am Acad Psychiatry Law. 2002;30(2):275–81. 27. Buchanan A, Binder R, Norko M, Swartz M. Psychiatric violence risk assessment. Am J Psychiatry. 2012;169(3):340. 28. Buchanan A. Risk of violence by psychiatric patients: beyond the “actuarial versus clinical” assessment debate. Psychiatr Serv. 2008;59(2):184–90.

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29. Borum R, Reddy M.  Assessing violence risk in Tarasoff situations: a fact-based model of inquiry. Behav Sci Law. 2001;19(3):375–85. 30. Sreenivasan S, DiCiro M, Rokop J, Weinberger LE. Addressing systemic bias in violence risk assessment. J Am Acad Psychiatry Law. 2022;50(4):626–35. 31. Wilson JP, Hugenberg K, Rule NO. Racial bias in judgments of physical size and formidability: from size to threat. J Pers Soc Psychol. 2017;113(1):59–80. 32. Lam JN, McNiel DE, Binder RL. The relationship between patients' gender and violence leading to staff injuries. Psychiatr Serv. 2000;51(9):1167–70. 33. Robbins PC, Monahan J, Silver E. Mental disorder, violence, and gender. Law Hum Behav. 2003;27(6):561–71. 34. Skeem J, Schubert C, Stowman S, Beeson S, Mulvey E, Gardner W, Lidz C.  Gender and risk assessment accuracy: underestimating women’s violence potential. Law Hum Behav. 2005;29(2):173–86. 35. Skeem JL, Mulvey EP, Odgers C, Schubert C, Stowman S, Gardner W, Lidz C. What do clinicians expect? Comparing envisioned and reported violence for male and female patients. J Consult Clin Psychol. 2005;73(4):599–609. 36. Choe JY, Teplin LA, Abram KM. Perpetration of violence, violent victimization, and severe mental illness: balancing public health concerns. Psychiatr Serv. 2008;59(2):153–64. 37. Swanson JW. Mental disorder, substance abuse, and community violence: an epidemiological approach. In: Monahan J, Steadman H, editors. Violence and mental disorder. Chicago: University of Chicago Press; 1994. p. 101–36. 38. Swanson JW, McGinty EE, Fazel S, Mays VM. Mental illness and reduction of gun violence and suicide: bringing epidemiologic research to policy. Ann Epidemiol. 2015;25(5):366–76. 39. Rice ME, Harris GT. The treatment of mentally disordered offenders. Psychol Public Policy Law. 1997;3(1):126. 40. Felthous AR, Kachigian C. To warn and to control: two distinct legal obligations or variations of a single duty to protect? Behav Sci Law. 2001;19(3):355–73. 41. Felthous AR. Warning a potential victim of a person’s dangerousness: clinician’s duty or victim’s right? J Am Acad Psychiatry Law. 2006;34(3):338–48. 42. Beck JC.  When the patient threatens violence: an empirical study of clinical practice after Tarasoff. Bull Am Acad Psychiatry Law. 1982;10(3):189–201. 43. Warren LJ, Mullen PE, Ogloff JR. A clinical study of those who utter threats to kill. Behav Sci Law. 2011;29(2):141–54. 44. National Conference of State Legislatures (NCSL). Mental Health Professionals’ Duty to Warn [Internet]. Updated 3/16/2022. https://www.ncsl.org/health/mental-health-professionals-dutyto-warn. Accessed 2 Nov 2023. 45. Lambert K, Wertheimer M. What is my duty to warn? Psychiatric News [Internet]. http://psychnews.psychiatryonline.org/doi/full/10.1176%2Fappi.pn.2016.1b1. Accessed 1 Nov 2016.

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Informed Consent Simha E. Ravven

Clinical Vignette You are a psychiatrist working as a member of your hospital’s ethics committee when you receive an ethics consult about a patient who is in a debilitated state. The clinical team has placed a consult because they were asked by the patient’s parents to terminate the artificial nutrition and hydration (ANH). The team is looking for guidance on how to proceed. You are asked to serve as the Ethics Committee’s representative and to gather more information about the case. You begin by reviewing the records and learn that the patient is a young woman who suffered an anoxic brain injury 3 years earlier in a motor vehicle accident when she experienced more than 10 min of oxygen deprivation. Neuroimaging has shown cortical atrophy and ventricular enlargement. Neurological assessments have described the cerebral cortical atrophy as irreversible, permanent, and progressive. When you meet her, she has unassisted respiration and circulation. She is unaware of her environment, with the exception of grimacing in response to sound and painful stimuli. You observe spastic quadriplegia and contractures of her limbs with muscle and tendon damage that has been described as irreversible. She is not able to swallow food or water. Her medical record notes that this deficit is long-standing and it is believed that she will not be able to recover this ability. She has a gastrostomy tube in place to provide hydration and nutrition. This was placed a year prior, with the consent of the family. Her family was hopeful about her prognosis and potential for improvement at that time. She has not experienced the improvement that they hoped for.

S. E. Ravven (*) Law and Psychiatry Division, Department of Psychiatry, Yale School of Medicine, New Haven, CT, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 T. Wasser, R. Zhong (eds.), Psychiatry and the Law, https://doi.org/10.1007/978-3-031-52589-6_5

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You learn from her family that several years before her motor vehicle accident, when she was in her mid-20s, your patient had expressed to a roommate that if she were injured or ill, she would not want to live unless she could live at least a “halfway normal” life. The patient’s parents have requested that her medical team terminate artificial nutrition and hydration (ANH). Upon speaking to the team, you learn this would mean certain death for her. What recommendations would you make to the clinical team? You consider the ethical duties of a physician, including the duty as a physician of non-maleficence or the Hippocratic duty to “First, do no harm.” Your patient does not have a written directive and in her current state is not able to give meaningful informed consent for withdrawal of life-prolonging treatment. Would withdrawal of life-prolonging treatment be considered harm? Is continuation of ANH, thus continuing life in a state the patient had expressed that she would not want to live in, a harm imposed on her? Is harm done in prolonging a state where she may be suffering? You consider what the team should do in caring for a patient whose prior wishes regarding life-sustaining treatment are unclear or unknown. Is it possible for the physician to follow state law favoring the preservation of life and still maintain the physician’s traditional duties to the patient of non-maleficence, beneficence, and autonomy? What would you do?

History of the Case: Cruzan v. Director, Missouri Department of Health, 110 SCt 2841 (1990) On January 11, 1983, at age 25, Nancy Cruzan lost control of her car in Jasper County, Missouri. She was found in a ditch “without detectable respiratory or cardiac function.” She was successfully resuscitated at the site and transported to the hospital unconscious. She was diagnosed by a neurosurgeon as having “probable cerebral contusions” and anoxic brain injury [1]. Ms. Cruzan remained in a coma for 3 weeks and then progressed to a persistent vegetative state (PVS). A clinical study of PVS from 1985, around the time of Ms. Cruzan’s treatment for the condition, defined diagnostic criteria for PVS as “(1) wakefulness with periods of normal-appearing sleep; (2) no signs of awareness of self or environment or evidence of interpersonal response; (3) no comprehensible utterance or signal; (4) only reflex or purposeless motor response to stimuli; and (5) normal pulse, blood pressure, and respiration” [2]. Ms. Cruzan was unable to utilize oral nutrition to meet her metabolic needs. In order to ease feeding and recovery, surgeons implanted gastrostomy and hydration tubes with the consent of Ms. Cruzan’s then-husband. However, her condition did not improve. At the time of the Supreme Court decision, Cruzan v Missouri Department of Health [1], Ms. Cruzan lay in a persistent vegetative state at a Missouri State Hospital. The State of Missouri covered the cost of her medical care. When it became clear she had virtually no chance of recovery, Ms. Cruzan’s parents

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requested that hospital employees terminate artificial nutrition and hydration (ANH). Ms. Cruzan’s medical team agreed that this action would cause death and refused to honor this request without court approval. Ms. Cruzan’s parents then sought and received authorization from the state trial court for termination of ANH. The trial court found that a person in Ms. Cruzan’s condition had a fundamental right under the Missouri and Federal Constitutions to refuse or direct the withdrawal of “death prolonging procedures.” The trial court found that Ms. Cruzan’s conversations with her roommates at age 25, in which she expressed that she would not want to continue her life if she were ill or injured unless she could “live at least halfway normally,” were sufficient evidence that Ms. Cruzan would not want to continue ANH and continue her life in its current state [1]. Both the State of Missouri and Ms. Cruzan’s guardian ad litem (a person appointed by the court to protect Ms. Cruzan’s interests) appealed the trial court’s decision to allow termination of ANH.  In 1988, the Supreme Court of Missouri reversed the trial court’s decision [3], citing Missouri’s policy prioritizing preservation of life. The court stated that medical treatment could not be withdrawn for an incompetent person without the formalities outlined in the living will statute or unless “clear and convincing, inherently reliable” evidence was present. The court found that neither of these were present in Ms. Cruzan’s case. The case was appealed to the US Supreme Court, who agreed to hear the case “to consider the question of whether Cruzan has a right under the US Constitution which would require the hospital to withdraw life-sustaining treatment from her under these circumstances” [1]. The US Supreme Court affirmed the decision of the Missouri Supreme Court on the grounds that the Constitution “did not forbid a state (such as Missouri) from requiring clear and convincing evidence of an incompetent individual’s wishes regarding the withdrawal of life-sustaining treatment” [1]. Justice Rehnquist described, in Cruzan, precedent dating back to the nineteenth century that supported the right to bodily integrity and right to refuse medical treatment. He noted that until the 1976 Quinlan case [4], there were relatively few right to refuse cases, many of which focused on medical treatment forbidden by religious belief. Judge Rehnquist further noted in his decision, “On balance, the right to self-­ determination ordinarily outweighs any countervailing state interests, and competent persons generally are permitted to refuse medical treatment, even at risk of death [1].” In Cruzan, the Supreme Court held that first, the US Constitution allows Missouri to require that evidence of an incompetent person’s wishes regarding life-sustaining treatment be proved by the standard of “clear and convincing evidence” (a level of evidence greater than a “preponderance of the evidence” (approximately a 51% chance), but less than the “beyond a reasonable doubt” (standard required in criminal cases). Second, a competent person would have a constitutionally protected right to refuse life-saving hydration and nutrition and an incompetent person is not able to make an informed choice and does not possess the same right. Third, the state is not required to accept substituted judgment from family members “in the absence of substantial proof that their views reflect the patient’s.”

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In their dissenting opinion, Supreme Court Justices Brennan, Marshall, and Blackmun expressed the view that Nancy Cruzan’s right to be free of unwanted artificial nutrition and hydration outweighed the state’s interest in preservation of life. Moreover, requiring a high degree of confidence to withdraw life-sustaining measures could have the paradoxical effect of discouraging healthcare providers or families from even starting them in the first place [1]. Justice Stevens’s dissenting opinion further highlighted the concern that a “person’s constitutional right to be free from unwanted medical treatment is thereby categorically limited to those patients who had the foresight to make an unambiguous statement of their wishes while competent. The Court’s decision affords no protection to children, to young people who are victims of unexpected accidents or illnesses, or to the countless thousands of elderly persons who either fail to decide, or fail to explain, how they want to be treated if they should experience a similar fate” [1]. After the 1990 Supreme Court ruling, Ms. Cruzan’s family petitioned the Missouri trial court to rehear their request to withdraw ANH. The Cruzan family brought additional witnesses who had prior discussions with Ms. Cruzan about her wishes regarding life-sustaining treatments. Cruzan’s treating physician also testified that he was in favor of discontinuation of tube feedings. The state of Missouri withdrew its opposition to withdrawal of ANH. In December of 1990, Judge Teel ruled by “clear and convincing evidence” that Nancy Cruzan’s desire, if she were competent, “would be to terminate her nutrition and hydration.” Artificial nutrition and hydration were withdrawn and Nancy Cruzan died 12 days later [5].

Basics of Informed Consent Informed consent refers to the active collaborative process in which the health care professional and patient discuss potential risks and benefits of an intervention or treatment. Informed consent is a fairly recent concept and has evolved since the 1914 case, Schloendorff v. Society of New York Hospital, established the basic right to consent to medical care [6]. Central to the concept of informed consent is the idea that an individual requires adequate information in order to meaningfully participate in making important medical decisions or the decision to participate in research. In other words, patients require information about likely risks and outcomes in order to make decisions that express their preferences and values [7]. The American Psychiatric Association (APA) delineates the psychiatrist’s duty in assuring meaningful informed consent and identifies core components of informed consent. The APA Commentary on Ethics in Practice states: “Psychiatrists should recognize the importance of informed consent for assessment or treatment as an essential means to recognition of and respect for the patient’s autonomy and personhood. Informed consent is an ongoing process that involves disclosing information important to the patient and/or decision-maker, ensuring the patient/ decision-­maker has the capacity to make treatment decisions, and avoiding coercive influences” [8]. The basic elements of disclosure include “an accurate description of

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the diagnosis and the proposed treatment, its potential risks and benefits, any relevant alternatives, including no treatment at all, and the relative risks and benefits of each option.”

Core Principles of Cruzan Cruzan Affirmed Competent Decision-Making Cruzan affirmed the right of competent persons to refuse medical treatment. While this was not the central focus of the Cruzan family’s initial petition, it was an important component of the Supreme Court’ decision [9]. Cruzan emphasized patient autonomy and self-determination and the right of competent persons to make informed treatment decisions. Cruzan highlighted the need for physicians to respect the treatment preferences and desires of competent persons regarding end-of-life and life-sustaining treatments [9, 10]. This decision was a departure from paternalism in medical decision-making.

 reatment Decisions of Incompetent Patients Should Be Based T on Previously Expressed Preferences Cruzan emphasized the importance of following individuals’ expressed desires regarding life-sustaining treatments while they are legally competent and have the capacity to understand the complexities of such decisions. Healthcare professionals and healthcare systems should systematically initiate conversations about patient’s desires for life-sustaining treatments and document these discussions [9–11]. Cruzan brought advance directives to the center of the conversation on end-of life care. State statutes and institutional policies vary on advance directives. The two most common directives for healthcare are a Living Will and Durable Power of Attorney. The National Institute on Aging defines a Living Will as “a legal document that tells doctors how you want to be treated if you cannot make your own decisions about emergency treatment. In a living will, you can say which common medical treatments or care you would want, which ones you would want to avoid, and under which conditions each of your choices applies” [12]. A Durable Power of Attorney for healthcare is a “document that names your health care proxy, a person who can make health care decisions for you if you are unable to communicate these yourself” [12]. This proxy should be familiar with an individual’s values and wishes. It may be helpful for patients to have both a Living Will and a proxy decision-maker. The Cruzan decision supported decisional autonomy and choice at the end of life. Subsequent decisions, Vacco v. Quill (1997) [13] and Washington v. Glucksburg (1997) [14], relied heavily on Cruzan. Vacco v. Quill affirmed the right to refuse life-sustaining treatment, but prohibited medical aid in dying or assisted suicide. Washington v. Glucksburg established that a ban on physician-assisted suicide did

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not violate the Due Process Clause of the Fourteenth Amendment. Most elderly persons and people with chronic illnesses have given thought to their preferences regarding life-sustaining treatments and want to discuss this with a physician [15]. A 2014 study of approximately 8000 community-dwelling US adults found that about a quarter had an advance directive in place [15]. The most frequently noted reasons for not completing an advance directive were, “I don’t know what advance directives are,” and, “My family knows my wishes.” While older age was associated with completion of an advance directive, 32% of respondents 55 years of age or older did not have one in place. Having an advance directive was more frequent among women, people who identified their race as White, married persons, persons with a chronic disease, those who reported having a regular source of medical care, and those with greater formal educational attainment [15]. A systematic review from 2011 to 2016 showed that approximately one-third of Americans had an advance directive completed [16]. Other studies have shown that engagement among Black and Hispanic persons is consistently lower, with a quarter or less having completed an advance directive [16]. Healthcare providers can have an instrumental role in helping patients understand potential decisions at end-of-life and make informed choices. Advance directives make it more likely that people’s choices regarding life-sustaining treatment will be recognized later, when they may lack the capacity to discuss options or provide informed consent. A healthcare provider can engage a patient in conversations about debilitated states and the complex implications of different life-­ sustaining treatments. These conversations should be initiated and documented before injury and disability. Decisional capacity exists on a continuum, from fully able to assimilate and manipulate new information and engage in complex decision-making all the way to a comatose state. Shared decision-making models between clinicians and patients, as opposed to a paternalistic model where clinicians make decisions on behalf of patients, are gaining increasing prominence in healthcare policy and clinical practice [12]. Cruzan was a departure from paternalistic decision-making to a patient-­ centered one, by affirming a competent person’s right to make medical decisions, including the refusal of care. The paradigm of substituted judgment or recreating the incompetent patient’s choice through proxies and written documents has been “proposed as the main method to address this problem of diminished capacity in dying patients” [17]. The purpose of such documents and substitute decision-makers is to convey patient choice in end-of-life situations, when the patient cannot cogently express a choice. Ms. Cruzan’s parents could discontinue her care only if Ms. Cruzan had previously expressed such a choice. The Cruzan decision allowed Missouri to require that a higher evidentiary standard be applied to choices regarding the withdrawal of life-­ sustaining treatment. One critique of advance directives suggests that quality-of-life assessment and quality-of-care policies “offer a better way to improve human dying than bolstering individual patient choice” [17]. Choices and preferences may change with circumstances. Sullivan, for example, shares the story of a woman with significant

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dementia who enthusiastically enjoys activities and interactions and whose “bliss seems to grow as her personhood fades” [17]. He asks us to imagine that she develops a treatable pneumonia and has executed a formal document that outlines that she does not wish to have life-sustaining treatment should she develop Alzheimer’s disease. Should the patient’s advance directive be honored and should she be allowed to die? Sullivan details that the patient experiences many joys in her life, despite her profound dementia. One cannot, of course, predict the circumstance of one’s death: this presents a clear limitation to the utility of advance directives. This analysis argues for the development of a consensus on what constitutes a good death—that this idea is not wholly idiosyncratic and each individual need not entirely reinvent what a good death is. There are potential difficulties in substitute decision-making. Patients may change their minds, as described above. Spouses or other surrogate decision-makers may not know the individual’s preferences. Those involved with the patient may also have competing interests or may not act in the individual’s best interest. There may also be external pressures that either explicitly or implicitly influence decision-­ making, for example, financial pressures (from insurance companies, taxpayers, families, or the individual’s own concerns about money).

Be Familiar with Relevant Statutes and Institutional Policies It is important for physicians and other healthcare providers to know their state statutes and institutional policues relevant to the care of patients who lack capacity to make decisions and do not have advance directives in place. All US states and the District of Columbia have statutes that address advanced directives [18]. Many state statutes outline proxy or surrogate decision-makers who may be consulted “if an incapacitated patient has not previously designated a decision maker” [18]. Language used to describe substitute decision-making and decision-­makers can vary from state to state. Most states use the term “proxy” to describe a designated substitute decision-maker, while other states use the term “surrogate” [18].

 ruzan Defined Artificial Nutrition and Hydration C as Medical Treatment The Cruzan decision legally defined ANH as medical treatment. In Justice O’Connor’s concurring opinion she wrote, “…Artificial feeding cannot readily be distinguished from other forms of medical treatment…Accordingly, the liberty guaranteed by the Due Process Clause must protect, if it protects anything, an individual’s deeply personal decision to reject medical treatment, including the artificial delivery of food and water.” By defining ANH as medical treatment, the Cruzan decision supported a position long held by American physicians and courts [10].

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The American Medical Association (AMA) Code of Medical Ethics addresses withholding and withdrawal of life-sustaining treatment [19]. Consistent with Cruzan, the code dictates that an individual with decisional capacity has the right to decline or request cessation of any medical intervention, even when it is expected that this will lead to death. A surrogate decision-maker may also decline or ask for a medical intervention to be stopped “in keeping with ethics guidance for surrogate decision making.” The Code goes on to describe that while there “may be an emotional difference between not initiating an intervention at all and discontinuing it later in the course of care, there is no ethical difference between withholding and withdrawing treatment. When an intervention no longer helps to achieve the patient’s goals for care or desired quality of life, it is ethically appropriate for physicians to withdraw it.” The AMA’s Code of Medical Ethics gives practical guidelines to aid in accurate and respectful substitute decision-making regarding life-sustaining treatments. The Code emphasizes inclusion of the patient’s surrogate decision-maker early in the course of care, even when the patient retains decisional capacity. It outlines a number of safeguards and protections for the patient when withholding or withdrawing life-sustaining treatment, including making a plan to assess if a medical intervention has achieved its goals and circumstances that should elicit consultation with an ethics committee or equivalent body.

Cruzan and the Potential for Defensive Medicine Cruzan raises the issue of whether life-sustaining treatment must be given to terminally ill, incompetent patients. There has been concern after Cruzan that the ruling would engender uncertainty and promote defensive medicine [11]. The concern has been that hospitals and healthcare providers, when faced with legal uncertainty about initiation or withdrawal of life-sustaining treatment, would routinely administer treatment to terminally ill patients or would frequently seek prior judicial approval of decisions [11]. A 1991 commentary following Cruzan highlights the potential for misinterpretations of the law dealing with life-sustaining treatments and their termination. One example of unintended consequences and inappropriate care is the 1989 case of Samuel Linares. Chicago physicians mistakenly believed that the state law prohibited them from discontinuing mechanical ventilation of 15-month-old Linares. The child had lain comatose for more than 6 months without reasonable hope of recovery. The parents were frustrated that the hospital would not remove life support. Ultimately, the situation ended dramatically when the child’s father disconnected the child’s mechanical ventilation and held him until he died, while holding hospital staff away at gunpoint [20]. According to a New York Times article, Mr. Linares told the police, “I did it because I love my son” [21]. There have been other examples where treatment was recommended by hospital counsel: A dying woman in Massachusetts was resuscitated 70 times in 24 h; placement of a pacemaker was

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planned in a brain-dead patient; and family members had to bar the door of a patient’s room to prevent unwanted resuscitation [11].

Conclusion While many of the outcomes of the Cruzan decision were consistent with established standards of medical practice, Cruzan brings up ethical dilemmas that healthcare providers can face when they find their professional ethical obligations are in conflict with legal directives. The clinical scenario outlined in this chapter poses the question of whether withdrawal of ANH (which would in effect end the patient’s life) is considered harm when the patient does not have a written directive and is unable to give meaningful informed consent. Going one step further, a response to Cruzan raises the following question: “Beyond doing no harm, physicians are bound to provide care that is beneficial to the patient. This argues against offering interventions that provide no net benefit even if they do no direct harm. The provision of artificial hydration and nutrition, or other interventions, simply keep the patient in a state that is not desired by the individual and do not appear to create a net benefit. Can the physician follow the ruling of the state and over-ride her traditional duties to the patient of non-maleficence, beneficence and autonomy?” [9]. One could argue that the cost of care accrued by Ms. Cruzan’s indefinite and intensive treatment invoke the moral requirement of justice in distribution of healthcare resources given “the context of scarce and relatively fixed health-care resources” [22]. There are important recent incursions into the healthcare provider’s ability to engage in responsible, evidence-based conversations about informed consent with patients. Some state legislatures are dictating the language used for informed consent for important medical decisions in ways that can be at odds with a healthcare provider’s professional judgment or ethics. Targeted laws have been introduced that dictate informed consent language for healthcare services like reproductive healthcare, including abortion and gender-affirming care. Several practical points can be taken from Cruzan. Healthcare providers must respect the treatment decisions of competent adults, including the decision to refuse life-sustaining treatment. Healthcare providers need to proactively discuss patient’s preferences regarding life-sustaining treatment when they have capacity to make these decisions. Cruzan emphasizes a move away from paternalistic decision-­ making and affirms the right of competent persons to make medical decisions for themselves. In light of Cruzan, treatment preferences expressed by an individual when competent are valued over family or caretaker preferences and quality-of-life concerns. Shared decision-making models can be an important tool to help people make informed treatment decisions. Given that decisional capacity lies on a continuum, shared decision-making is preferable to substitute decision-making when some decisional capacity is preserved. Shared decision-making models respect autonomy for those requiring decisional support, rather than reflexively turning to substitute decision-making.

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Healthcare providers should record patients’ wishes regarding treatment decisions use of a surrogate or proxy decision-maker in a legally acceptable format. While advance directives are imperfect, they are currently the best tool available to allow competent patients to convey their treatment preferences for a time in the future when they lack competence. Healthcare providers should be familiar with relevant state statutes and their own institutional policies regarding medical decision-­making and life-sustaining treatment.

References 1. Cruzan v. Director. Missouri Department of Health, 110 SCt 2841; 1990. 2. Walshe TM, Leonard C.  Persistent vegetative state. Extension of the syndrome to include chronic disorders. Arch Neurol. 1985;42(11):1045–7. 3. Cruzan v. Harmon. 760 S.W.2d 408; 1988. 4. In re Quinlan. 70 N.J. 10, 355 A.2d 647; 1976. 5. Cruzan v. Harmon. Mo.Cir. Ct. Jasper County. December 14, 1990. 6. Schloendorff v. Society of New York Hospital, 105 N.E. 92 NY; 1914. 7. Murray B. Informed consent: what must a physician disclose to a patient? Am Med Assoc J Ethics. 2012;14(7):563–6. 8. American Psychiatric Association. APA Commentary on Ethics in Practice. Copyright the American Psychiatric Association; 2015. (Copyedited 2017) (Minor Addition 2021). 9. Pawlson LG. Impact of the Cruzan case on medical practice. Law Med Health Care. 1991;19:l. 10. White BD, Siegler M, Singer PA, et al. What does Cruzan mean to the practicing physician? Arch Intern Med. 1991;151:925–8. 11. Lo B, Steinbrook R. Beyond the Cruzan case: the U.S. Supreme Court and medical practice. Ann Intern Med. 1991;114:895–901. 12. National Institute of Health: National Institute on Aging. Advance Care Planning: Advance Directives for Health Care. (Advance Care Planning: Advance Directives for Health Care | National Institute on Aging (nih.gov)) Accessed 20 Apr 2023. 13. Vacco v. Quill :: 521 U.S. 793; 1997. 14. Washington v. Glucksberg :: 521 U.S. 702; 1997. 15. Rao JK, Anderson LA, Lin FC, et al. Completion of advance directives among U.S. consumers. Am J Prev Med. 2014;46(1):65–70. 16. Yadav KN, Gabler NB, Cooney E, Kent S, Kim J, Herbst N, et  al. Approximately one in three US adults completes any type of advance directive for end-of-life care. Health Af. 2017;36(7):1244–51. 17. Sullivan MD. The illusion of patient choice in end-of-life decisions. Am J Geriatr Psychiatry. 2002;10(4):365–72. 18. Cerminara K. The law and its interaction with medical ethics in end-of-life decision making. Chest. 2011;140(3):775–80. 19. American Medical Association, Code of Medical Ethics, Copyright the American Medical Association; 2016. https://www.ama-­assn.org/about-­us/code-­medical-­ethics. Accessed 20 Apr 2023. 20. Lantos JD, Miles SH, Cassel CK. The Linares affair. Law Med Health Care. 1989;17:308–15. 21. Associated Press. Father is cleared in ill baby’s death. The New York Times. May 19, 1989. 22. Gillon R. Persistent vegetative state and withdrawal of nutrition and hydration. J Med Ethics. 1993;19:67–8.

6

Voluntary and Involuntary Psychiatric Hospitalization Marina Nakic

Clinical Vignette You are working as an attending psychiatrist in a psychiatric emergency department to which a 22-year-old man is brought in by his parents. According to the parents, the patient, who is attending his third year of college in a different state, suddenly returned home 2 weeks ago and announced that he planned to drop out of school. The parents are concerned as their son spends most of his time in his bedroom, refuses to bathe, and is increasingly preoccupied with concerns that the government is spying on him through the TV and his cell phone. He has taken multiple steps to protect himself, including destroying his cell phone, setting his computer on fire, and taping shut all the windows. After his parents expressed concern and suggested bringing him to the hospital, the patient accused parents of conspiring with the government. He then physically assaulted his father causing him a wrist fracture. The patient eventually agreed to accompany his parents to the hospital so that his father could have his wrist evaluated, and once in the emergency room, he agreed to speak to a psychiatrist. When you meet with the patient, he agrees with the history provided by his parents but does not seem to appreciate that there is anything concerning about his behavior. He states that his father’s injury was an accident but threatens further injury to parents if they insist on his psychiatric treatment. He also reports hearing voices telling him to stop talking with you, refuses treatment, and states that he wishes to return home with his parents. What do you do? Does the patient need to be hospitalized or not? If so, how can you accomplish this over his objection and what legal justification do you have for

M. Nakic (*) Law and Psychiatry Division, Connecticut Mental Health Center, Yale School of Medicine, New Haven, CT, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 T. Wasser, R. Zhong (eds.), Psychiatry and the Law, https://doi.org/10.1007/978-3-031-52589-6_6

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making this decision? If the patient agrees to hospitalization, should he be admitted as a voluntary patient?

History of the Real Legal Case Addington v. Texas (1979) was a landmark decision of the US Supreme Court that determined the legal certainty required for civil commitment. The Court ruled that a “clear and convincing” standard of proof is required by the Fourteenth Amendment in civil commitment proceedings [1]. Mr. Addington, who had a history of schizophrenia, violence, property damage, and threatening his family and others, was committed multiple times to Texas state mental hospitals between 1969 and 1975. In 1975, his mother filed a petition for his indefinite commitment. After her request was granted Mr. Addington requested a trial by jury to challenge his commitment. The trial court judge tasked the jury with determining if Mr. Addington was mentally ill and dangerous based on “clear, unequivocal, and convincing evidence.” The jury found that Mr. Addington met the criterion, and he was indefinitely committed to the state hospital. Mr. Addington appealed to the Texas Court of Civil Appeals, conceding that he suffered from mental illness but contesting the legal standard used in his case. He argued that any standard of proof for commitment less than that of “beyond reasonable doubt” (the highest possible legal standard used in criminal court cases) violated his procedural due process rights. The Texas Court of Civil Appeals agreed with Mr. Addington and reversed the trial court’s judgment. The Texas Supreme Court then reversed the appeals court decision holding that the legal standard for civil commitment is “preponderance of the evidence.” Mr. Addington appealed to the US Supreme Court. The US Supreme Court held that “preponderance of the evidence” standard was insufficient given the significant deprivation of liberty that required due process protection. On the other hand, “beyond a reasonable doubt” standard was deemed inappropriate because of the uncertainties of psychiatric diagnoses, imposing a burden that states could not meet, and erecting an unreasonable barrier to needed medical treatment. The court held that the state needs to prove the presence of an individual’s mental illness and dangerousness by the standard of “clear and convincing evidence” [1].

Introduction Although most patients with mental illness can manage their symptoms on an outpatient basis, few would question that individuals who are suicidally depressed, manically reckless, failing to thrive due to a cognitive impairment or eating disorder, or overwhelmed with persecutory delusions and aggressive urges toward others, are in need of a higher level of psychiatric care. In such cases, psychiatric hospitalization may be necessary. The majority of patients are admitted to psychiatric hospitals on a voluntary basis. However, severe mental illness may impair a person’s

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perception, thinking, and behavior, and compromise insight and judgment, making refusal of care relatively common in psychiatry. To ensure safety and administer necessary treatments, psychiatrists may need to resort to involuntary or civil commitment, a legal process through which an individual with symptoms of severe mental illness is court-ordered into psychiatric care.

Voluntary Hospitalization The first US statute allowing voluntary admission was enacted in Massachusetts in 1881, but it took almost one hundred years before voluntary admissions became the norm in this country. Presently, all states permit patients to be voluntarily admitted for psychiatric hospitalization. For adolescents, the age of consent to psychiatric hospitalization ranges from 12 to 18 years [2]. Many state statutes have provisions to allow for two types of voluntary admissions. The first is under a “pure” or “informal” status where the patient can be voluntarily admitted, but must be discharged immediately upon their request, unless there are grounds to apply for involuntary commitment. A second provision occurs under “conditional” or “formal” status, where the patient agrees at the time of admission to the facility that the facility has the right to detain the patient for a brief period, usually several days, after patient requests discharge. This period gives the patient’s treatment team the time to determine if the patient can be safely discharged. If a determination is made that the patient’s discharge cannot be safely arranged, the treatment team may initiate for involuntary commitment proceedings. This statutorily defined waiting period also gives patients time to fully consider their decision to terminate hospitalization [2–4]. Confusion sometimes exists as to whether patients who request voluntary admission should be permitted to sign in voluntarily if there are questions about their decision-making capacity. Early statutes authorizing voluntary admissions made it an explicit requirement that a patient be competent to sign in voluntarily. More recent laws, designed to encourage patient autonomy, omit such requirements in all but a handful of states [2]. Allowing a patient to sign into the hospital voluntarily when they lack the requisite knowledge of what the hospitalization entails leaves psychiatrists and hospitals legally vulnerable. On the other hand, the procedural burden and involuntary nature of commitment, may deter patients from seeking necessary treatment. The threshold for decision-making capacity to be voluntarily admitted to a psychiatric hospital was addressed in the 1990 US Supreme Court case of Zinermon v. Burch [2, 5]. In December 1981, Mr. Darell Burch was found on a highway in Florida, disoriented and psychotic. A passerby brought him to a private hospital where he was psychiatrically hospitalized and from which he was later transferred to Florida State Hospital. At both facilities, Mr. Burch was permitted to sign in as a voluntary patient. Mr. Burch remained hospitalized for a total of 5 months and later filed a lawsuit in federal district court against both the private and state facilities. In the lawsuit, he alleged that he was inappropriately detained in violation of his

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constitutional rights when he was allowed to sign in as a voluntary patient despite lacking the capacity to do so. Mr. Burch argued that he was entitled to the procedural safeguards of the involuntary commitment procedures. The case was appealed up to the US Supreme Court, which held that in those states that require a patient to be competent before signing in voluntarily, the failure to assess competency violates patients’ constitutional rights [2, 5, 6]. The question remains as to the degree of knowledge and understanding necessary to determine whether a patient has the capacity to be voluntarily admitted to a psychiatric hospital. Even patients with severe mental illness may be competent to make certain medical decisions, including admission to the psychiatric hospital. This question was addressed by the American Psychiatric Association Task Force in 1993 [2, 7, 8]. The task force established criteria for psychiatrists to apply when assessing this specific decision-making capacity. To preserve the preference of voluntary admissions, “the task force suggested that only a minimal level of capacity be required.” It recommended in-hospital administrative decisions (as opposed to judicial hearings) predicated on easy-to-meet substantive standards that the patient demonstrates the ability to communicate choices and the ability to understand relevant information. These tests would be satisfied when the patient expresses “an agreement with admission and treatment in any way, verbal, behavioral or written,” and display some minimal understanding of where the patient is and why [2, 7].

Involuntary Hospitalization Involuntary commitment decisions present a unique challenge for psychiatrists [2– 4, 6]. Psychiatric interventions are guided by ethical principles of medical practice—non-maleficence, autonomy, beneficence, and justice [2, 3, 9–14]. Physicians are expected to refrain from causing harm to their patients (non-maleficence) and obliged to provide treatments that are in their patients’ best interest (beneficence). The principle of autonomy recognizes the right of an individual to self-­determination and requires that a physician respects the authority of competent individuals to make decisions about their own medical care. The principle of justice dictates that medical benefits should be dispensed fairly. Challenges arise when principles of autonomy and beneficence are in conflict, such as when considering involuntary commitment. As clinical decisions related to depriving patients of their civil liberties carry tremendous responsibility, psychiatrists rely on laws and hospital regulations to guide their decision-making process [9–13]. Involuntary commitment deprives individuals of their freedom and other liberty interests, and as such, several procedural and substantive safeguards have been established by federal and state laws to ensure that such measures are only enacted when an individual’s life is in peril [15–20]. Procedural and substantive safeguards are delineated in the Fifth and Fourteenth Amendments to the US Constitution in the due process clauses. Due process guarantees fair treatment throughout the judicial process and protects individuals from governmental abuse of power. There are two basic types of due process—procedural and substantive. Procedural due process

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ensures formal proceedings that are carried out in accordance with established rules and principles. Substantive due process is a judicial requirement that enacted laws may not result in the unfair, arbitrary, or unreasonable treatment of an individual [14, 15]. Procedural due process in civil commitment includes requirement that the patient is examined by one or more psychiatrists or other qualified individuals designated by the court, provision of notice of hearing, court appointment of a legal representative, and an opportunity to participate in an adversarial hearing. At the hearing, there is an opportunity for cross-examination of witnesses and examination of evidence. The hearing may take place, depending on the state, in a district, superior, family or probate court, or at the hospital. Most civil commitment cases are heard by judges, and the decision whether to commit the individual is based on written reports and oral testimonies. A small number of states guarantee the patient the right to have a jury-rendered decision on the question of commitment; the vast majority of cases are heard solely by judges. In some states, the duration of the commitment is explicitly limited and recommitment after that specified period requires additional hearings, while other states do not specify the duration. In most states a periodic review of the patient’s status is statutorily required to determine if the criteria for involuntary commitment continue to be met or if the patient should be discharged [18–21]. Substantive due process in civil commitment requires the establishment of legal standards for imposing commitment. Although jurisdictions vary regarding the details of their statutory provisions, the essential requirements in most states are that the decision-maker establishes the presence of a mental illness, that there is clear and convincing evidence that the patient presents a risk of harm to themselves (including by reason of grave disability) or others due to their mental illness, and that no less restrictive treatment setting is appropriate or available [18–21]. Statutes often define a “person with psychiatric disabilities” as anyone who has a mental or emotional condition that substantially and adversely affects his or her ability to function and who requires care and treatment. The term “dangerous to himself or others” conveys that there is a substantial risk that the individual will inflict physical harm to themselves or others. The term “gravely disabled” refers to a person who, due to mental or emotional impairment, is in danger of serious harm because of inability to secure basic needs such as food, clothing, shelter, or safety [2]. In the US legal system, there are three standards of proof in criminal or civil proceedings [15, 16, 18, 20]. The standards serve to allocate the risk of error between the parties. The lowest standard of proof is “preponderance of the evidence.” This standard is met if the proposition is assessed by the fact finder to be more likely true than not. This standard of proof is used in most civil cases. At the other end of the spectrum is the highest standard of proof, “beyond a reasonable doubt,” used in criminal cases where erroneous decisions may have severe consequences for the accused, such as long-term loss of liberty or even life. In such cases, the risk is imposed almost entirely on the state to prove the accused’s guilt “beyond a reasonable doubt.” The third and intermediate standard, “clear and convincing evidence,” is used in civil commitment proceedings and requires that the trier of fact must be

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firmly convinced that the evidence presented is substantially more likely to be true than not. This standard for civil commitment proceedings was established in the landmark US Supreme Court case Addington v. Texas [1].

 rief History of Involuntary Commitment Laws B in the United States Contemporary involuntary commitment statutes are the product of over two centuries of work aimed at balancing individual liberty rights and concerns for patients’ best interests [2, 6]. Traditionally, the state’s power to involuntarily commit individuals is derived from two basic legal doctrines: parens patriae and police power. Parens patriae translates from Latin as “parent of the nation.” It originally referred to the sovereign’s duty to care for the members of the society who were unable to care for themselves. In modern times, the term refers to a doctrine that grants the government the power to care for and protect persons who are legally declared unable to act on their own behalf. The doctrine of police power refers to the government’s obligation to preserve societal order and protect the public from harm. Both powers are limited by the provisions of the US Constitution that protects civil rights of individuals, such as the right to privacy; the right to protection from the interference of the government in private matters, including medical decisions; the right to freedom of thought and expression; and the right to freedom from bodily restraints and confinement [19–21]. Many individuals with mental illness in early American communities were cared for by their family members, confined in county jails, or detained in shelters for the poor [2, 3, 22–26]. The first organized societal effort to care for the mentally ill in the US began in 1752, when Quakers opened Pennsylvania Hospital in Philadelphia. In the nineteenth century, social reformers such as Dorothea Dix fought for more humane alternative to jails and poorhouses. In response to their efforts, the first generation of American mental asylums were created, and the states began to assume increasing responsibility for the care of indigent mentally ill. Admissions of individuals with mental illness to asylums were often initiated at the request of family members who were willing to cover the cost of care or overseers of the poor representing indigent persons. The sole requirement for admission was that the individual needed treatment. Admission on an involuntary basis was an accepted norm since the mental illness was thought to compromise mental faculties to such an extent that patients would not be capable of requesting care or consenting to care [2, 3]. Although the establishment of early asylums was motivated by humanitarian impulses, patients in such institutions suffered from stigmatization, clinicians’ limited understanding of neuropsychiatric disorders, and lack of effective treatments [19, 21–26]. In the absence of effective treatments, interventions consisted primarily of restraints, sedation with medications such as bromides and chloral hydrate, or exposure to various experimental treatments such as purging, bloodletting, cold or hot water immersions, and prayer [20–25]. Many of the chronically symptomatic

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patients were subjected to trepanations (having holes drilled into the skull) or being placed in “tranquilizing” or “gyrating” chairs. Many patients remained confined with virtually no rights for the rest of their lives. As such, early asylums primarily served to sequester individuals with mental illness from the rest of society [2, 19, 21]. With time, asylums became notorious for their poor living conditions, lack of hygiene, overcrowding, and widespread abuse. In the mid-­nineteenth century, several cases began to challenge the exiting norms. The case of Josiah Oakes in 1845 first articulated the basis for civil commitment in the US [27]. Mr. Oakes was committed at McLean Asylum in Massachusetts at the behest by his children after he became engaged to a young woman within days of his wife’s death. After 4 years, he challenged his commitment. Even though the Massachusetts Supreme Court decision was not favorable for Mr. Oakes, it began to establish criteria to be used for involuntary hospitalization. In 1860, Elizabeth Packard successfully challenged her 3-year-long confinement to the Illinois State Hospital at the behest of her husband who committed her after she challenged his religious beliefs [25]. At that time, Illinois statute allowed for the commitment of wives by their husbands without wives’ consent or any formal hearing. Following Ms. Packard’s release from the hospital, her lobbying efforts on behalf of disempowered women contributed to changing the commitment laws in four states [25]. These cases were instrumental in initiating societal debates on the substantive criteria and procedural mechanisms for involuntary commitment and resulted in significant legal reform by the end of the nineteenth century that established safeguards against unjust commitments. In the first half of the twentieth century, commitment statutes based on parens patriae doctrine predominated, requiring only the presence of mental illness and the need for treatment. Statutes often equated involuntary hospitalization with global incompetency and those civilly committed suffered many violations of their basic human rights, including the right to register to vote [2, 3, 28]. In the 1950s, the US nationwide inpatient census peaked at around half a million, with many individuals remaining hospitalized for decades with little or no hope of relieving their symptoms, discharge from the hospital, or resuming a meaningful life outside of an institution. At that time, a confluence of cultural and political factors altered the practice of psychiatry and affected civil commitment laws in the United States [2–4, 6]. In 1946, in response to increasing number of mental health problems in Second World War veterans, President Truman signed the National Mental Health Act, calling for the establishment of the National Institute of Mental Health to advance treatment and understanding of psychiatric disorders. The discovery of the mood-stabilizing effect of lithium carbonate in 1948 and antipsychotic effect of chlorpromazine in 1955 dramatically advanced psychiatric treatment. In the 1960s, the civil rights movement exposed the abysmal conditions in state asylums. Together with criticism from within the psychiatric profession and increase in governmental funding for community support, these events shifted paternalistic commitment criteria to criteria based on dangerousness and grave disability [2–4, 6] and initiated the process of replacing long confinements in psychiatric hospitals with community mental health services. In 1964, Washington, DC, instituted a standard for civil commitment

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establishing that prior to involuntary hospitalization a person must be found to have mental illness and pose a threat of harm to self or others, or be assessed gravely disabled [2, 3, 19]. Implementation of similar statutes in other states followed until it became the prevailing standard for civil commitment in the USA. Several landmark cases from that period added additional substantive and procedural safeguards. In 1966, in the case of Lake v. Cameron, the US Court of Appeals for the District of Columbia Circuit ruled that civilly committed patients may not be held in a hospital if a less restrictive alternative for treatment delivery is available [29]. Similar reasoning was subsequently adopted by most states with only a few exceptions [2, 3, 19, 21, 29]. The most radical legal protection of patients’ autonomy came from the Wisconsin Federal District Court, in the case of Lessard v. Schmidt in 1971 [30]. Ms. Alberta Lessard challenged mental health professionals’ assessment that she should be permanently committed to a state psychiatric hospital as a result of her schizophrenia. She filed a class action lawsuit on behalf of all involuntarily committed adults in Wisconsin arguing that Wisconsin’s involuntary commitment statute violated her due process rights. The court ruled in her favor, reasoning that because civil commitment represented a significant deprivation of liberty, the state was required to prove mental illness and dangerousness “beyond a reasonable doubt” and that a less restrictive treatment setting was unavailable [30]. The decision in Lessard established several rights due to the confined individual, including the right to a jury trial, the right to counsel, the right to exclude hearsay evidence, and the right to have it proven that the individual is both mentally ill and dangerous. In 1975, the US Supreme Court heard the case of Kenneth Donaldson, who was committed to Florida State Hospital following a petition of his father [31]. After about 15 years of treatment with “milieu therapy,” no significant psychotherapy or pharmacotherapy, and having his repeated requests for discharge denied, Mr. Donaldson sued the hospital contending that his constitutional right to liberty had been violated without providing adequate treatment. The court found Mr. Donaldson’s commitment unconstitutional holding that, “A State cannot constitutionally confine a non-dangerous individual who is capable of surviving safely in freedom by themselves or with the help of willing and responsible family members or friends” [31]. In 1979, as discussed above, Addington v. Texas case addressed the issue of burden of proof in civil commitment hearings [1]. The Court in Addington balanced individual liberty interests against the societal interest in committing dangerous mentally ill individuals. The Court reasoned that possible injury to the individual from an erroneous decision is significantly greater than any possible harm to the state; therefore, the state must justify confinement by a standard higher than the “preponderance of the evidence.” The court also distinguished civil commitment proceedings from criminal proceedings which require “beyond a reasonable doubt standard,” emphasizing that civil commitment is not a punishment. Rather, individuals with mental illness are entitled to treatment, to periodic and recurrent review of their mental condition, and to release when they are no longer dangerous to themselves or others [1–4, 6]. Decisions in these historic legal cases reverberate in contemporary commitment statutes.

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Practical Aspects of Contemporary Commitment Processes Evaluations to assess whether to involuntarily commit patients are usually performed in emergency settings where patients are brought by the ambulance, police, family, friends, or coworkers. Common reasons that prompt such evaluations include acute mental status changes, expressions of suicidal or homicidal ideation, engagement in self-injurious or violent behavior, or the inability to care for oneself. Additionally, patients may be referred by their outpatient clinicians when assessed to be at risk for self-harm or harming others. If, after a thorough evaluation and review of collateral information, the patient is assessed to be in need of acute psychiatric hospitalization, the patient can be offered a voluntary admission. If the patient declines hospitalization or is deemed to not have the capacity to make such a decision, two mechanisms for involuntarily hospitalizing the patient are generally available to the psychiatrist—emergency commitment and civil commitment [3, 6, 19, 21].

Emergency Commitment Relying on emergency commitment laws, psychiatrists may initiate an emergency commitment for which court involvement is often not initially required for a brief period, ranging from 3 days to 2 weeks. Most states require that a physician or psychologist sign the commitment certificate, but some states require more than one professional to sign, and some allow state agencies, such as the police or the courts, to initiate commitment when no mental health professional is available. The purpose of an emergency commitment is to ensure a patient’s safety during a time of crisis and implementation of necessary mental health treatments [19, 21, 32]. In most states procedural safeguards are implemented to protect the rights of the patient to contest emergency confinement. For example, many states allow the patient to challenge their emergency confinement in probate court; in some states such hearings are referred to as a “probable cause hearings.” At the hearing, the decision-maker, usually a probate court judge, is charged with determining whether a probable cause existed to believe that the patient met emergency commitment standards at the time of the initial psychiatric evaluation. At the conclusion of the hearing, the judge may decide to either release the patient or commit them to the hospital for the remaining duration of the emergency certificate [21, 32]. A 2016 review of the US emergency commitment laws by Hedman [32] found that even though every state in the United States and the District of Columbia has emergency commitment laws, states’ laws varied regarding the duration allowed for emergency holds, who can initiate an emergency hold, the extent of judicial oversight, and the rights of patients during the hold. The core criterion justifying an involuntary hold in all states was the presence of mental illness that results in danger to self or others, but many states had additional specifications. Only 22 states required some form of judicial review of the emergency commitment process, and only nine required a judge to certify the commitment before a person is

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hospitalized. Five states did not guarantee an assessment by a qualified mental health professional during the emergency hold [32].

Civil Commitment Civil commitment is a more complex process than emergency commitment and involves filing a petition for civil commitment with the court of proper jurisdiction. This process is typically utilized in two types of situations. First, if a patient committed on an emergency basis is determined to still require hospitalization beyond the duration of the emergency commitment certificate, civil commitment procedures may be invoked prior to the expiration of the emergency commitment. Second, when a patient who was initially hospitalized voluntarily requests discharge and the clinical team determines that discharge would be unsafe, the team may petition the court for civil commitment in an attempt to continue treatment [2, 19, 21]. In some states, when an inpatient has been adequately stabilized but has a history of treatment noncompliance and frequent hospitalizations, an evaluation for outpatient civil commitment may be initiated prior to discharge [19, 21, 33–35].

Involuntary Outpatient Commitment Following hospitalization, some psychiatric patients discontinue or have no access to treatment and their condition may rapidly decompensate. To address concerns related to frequent rehospitalizations and risk of dangerousness in the community as well as, increase access to needed care, many states have developed involuntary outpatient commitment or assisted outpatient treatment programs [33–38]. Such programs offer intensive outpatient services, including medication management and a variety of psychosocial services, and are usually coordinated by a case manager. Although treatment plans may include adherence to psychotropic medications (when indicated), involuntary medication administration on an outpatient basis is subject to the same review processes as when patients are hospitalized. As of 2015, 45 states and the District of Columbia have commitment statutes permitting involuntary outpatient commitment. States usually provide due process protections equivalent to those afforded patients subjected to involuntary hospitalization. Despite protections, several ethical concerns have been raised about the excessive use of involuntary outpatient commitment when there is insufficient evidence of the patient’s risk of dangerousness, its disproportionate use for patients identifying as racial and/or ethnic minority groups, and the inability of states to implement the treatment programs mandated by these laws due to inadequate state resources [35–37].

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Involuntary Commitment of Minors The US Supreme Court granted due process rights to minors in 1967, in the case of In re Gault in 1967 [39]. The case involved an adolescent boy, Gerald Gault, who had been found guilty of making obscene phone calls to his neighbor and subsequently committed to a state industrial school until his adulthood without notification to his parents. Gault’s parents challenged his commitment. The Court ruled that minors accused of crimes must be afforded many of the same due process rights as adults, such as the right to timely notification of the charges, the right to confront witnesses, the right against self-­incrimination, and the right to counsel. A decade later, in 1979, the US Supreme Court established a constitutional minimum for involuntary psychiatric commitment of minors, holding that there was no requirement for an adversarial hearing. Rather, a “neutral fact finder” (e.g., a doctor not involved in the patient’s care) would review and oversee cases, placing a greater emphasis on medical rather than judicial decision-­making [40]. This decision was later challenged on the grounds that it violated due process by not providing adequate protections for mature minors and wards of the state [41].

Conclusion In psychiatry, as in all of medicine, refusal of care by patients who need it most presents particular challenge. Current legal standards and procedural safeguards have been developed over the past two centuries in an attempt to balance safety concerns and patient liberty interests. These standards continue to evolve and may differ across states, patients age, and clinical contexts, including emergencies, inpatient, and outpatient settings. In order to successfully balance competing interests at stake in involuntary commitment while remaining considerate of inherent ethical concerns, mental health professionals should ensure familiarity with continuing evolution of commitment laws as well as legal guidelines in their particular area of practice.

References 1. Addington v. Texas. 441 U.S. 417; 1979. 2. Appelbaum PS, Gutheil TG. Clinical handbook of psychiatry and the law. 4th ed. Philadelphia: Lippincott Williams & Wilkins; 2007. 3. Testa M, West SG. Civil commitment in the United States. Psychiatry. 2010;7(10):30–40. 4. Appelbaum PS, Hamm RM.  Decision to seek commitment. Arch Gen Psychiatry. 1982;39:447–51. 5. Zinermon v. Burch, 494 U.S. 113; 1990. 6. Schwartz HI, Appelbaum PS, Kaplan RD. Clinical judgements in the decision to commit. Arch Gen Psychiatry. 1982;41:811–5. 7. American Psychiatric Association. Consent to voluntary hospitalization. Washington, DC: American Psychiatric Association; 1993.

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8. Appelbaum BC, Appelbaum PS, Grisso T.  Competence to consent to voluntary hospitalization; a test of a standard proposed by American Psychiatric Association. Psychiatr Serv. 1998;49:1193–6. 9. Grace PJ, Hardt EJ. Ethical issues: when a patient refuses assistance. Am J Nurs. 2008;108:36–8. 10. Anfang SA, Appelbaum PS. Civil commitment–the American experience. Isr Psychiatry Relat Sci. 2006;43(3):209–18. 11. American Psychiatric Association. The principles of medical ethics with annotations especially applicable to psychiatry. Washington, DC: Author. 12. Beauchamp TL, Childress JF.  Principles of biomedical ethics. 7th ed. New  York: Oxford University Press; 2013. 13. Riddick FA Jr. The code of medical ethics of the American medical association. Ochsner J. 2003;5(2):6–10. 14. Bagby R, Thompson JS, Dickens SE, Nohara M. Decision making in psychiatric civil commitment: an experimental analysis. Am J Psychiatry. 1991;148:28–33. 15. Epstein L, Walker TG. Constitutional law for a changing America: rights, liberties, and justice. 9th ed. Washington D.C.: CQ Press; 2016. 16. Harvard Law Review Association Developments in the Law. Civil Commitment of the Mentally Il. Harv Law Rev. 1974;87:1190–406. 17. Good lawyering and bad role models: the role of respondent’s counsel in a civil commitment hearing. The Georgetown Journal 26. of Legal Ethics; 2000. 18. Thackery E, Cengage G. Involuntary hospitalization. Encyclopedia of Mental Disorders; 2003. 19. Schwartz HI, Mack DM, Zeman PM. Hospitalization: voluntary and involuntary. In: Rosner R, editor. Principle and practice of forensic psychiatry. 2nd ed. New York, NY: Arnold. p. 107–15. 20. Lehman J, Phelps S. Commitment. West’s Encyclopedia of American Law, 2nd ed.; 2005. 21. Mirad D, Watson C. In: Drogin EY, Datillio FM, Sadoff RL, Gutheil TG, editors. Handbook of forensic assessment. Hoboken, NJ: Wiley; 2011. p. 479–501. 22. Gamwell L, Tomes N. Madness in America: cultural and medical perceptions of mental illness before 1914. New York: Cornell University Press; 1995. 23. Porter R. Madness: a brief history. New York: Oxford; 2002. 24. Appelbaum PS. Almost a revolution. New York: Oxford University Press; 1994. 25. Whitaker R. Mad in America: bad science, bad medicine, and the enduring mistreatment of mentally ill. New York: Basic Books; 2019. 26. Anfag SA, Appelbaum PS.  Civil commitment—the American experience. Isr J Psychiatry Relat Sci. 2006; 27. In Re Josiah Oakes, 8 Law Rep. 123 (Mass.); 1845. 28. Rubenstein MA, Zonana HV, Crane LE. Civil commitment reform in Connecticut. A perspective for physicians. Appendix: a practice manual for physicians. Conn Med. 1977;41(11):709–17. 29. Lake v. Cameron, 364 F.2d 657; 1966. 30. Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis.); 1972. 31. O’Connor v. Donaldson, 422 U.S. 563; 1975. 32. Hedman LC, Petrilla J, Fisher WH, Swanson JW, Dingman DA, Burris S. State laws on emergency holds for mental health stabilization. Psychiatr Serv. 2016;67:529–35. 33. Swanson JW, Swartz MS, George LK, Burns BJ, Hiday VA, Borum R, Wagner HR. Interpreting the effectiveness of involuntary outpatient commitment: a conceptual model. J Am Acad Psychiatry Law. 1997;25(1):5–16. 34. Swanson JW, Swartz MS, Elbogen EB, Wagner HR, Burns BJ. Effects of involuntary outpatient commitment on subjective quality of life in persons with severe mental illness. Behav Sci Law. 2003;21(4):473–91. 35. Swartz MS, Bhattacharya S, Robertson A, Swanson J. Involuntary outpatient commitment and the elusive pursuit of violence prevention. Can J Psychiatr. 2017;62:102–8. 36. Starrett D, Miller RD, Bloom J, Weitzel WD, Luskin RD. Involuntary commitment to outpatient treatment: report of the task force on involuntary outpatient commitment. Washington, D.C.: American Psychiatric Association; 1987.

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37. Swartz MM, Hoge SK, Pinals DA, Lee E, Lee L, Sidor M, Bell T, Ford E, Scott JR. Resource document on involuntary outpatient commitment and related programs of assisted outpatient treatment. Washington, D.C.: American Psychiatric Association; 2015. 38. Swanson JW, Swartz MM, Van Dorn RA, Monahan J, McGuire TG, Steadman HJ, Robbins PC.  Racial disparities in involuntary outpatient commitment: are they real? Health Aff. 2009;28:816–26. 39. In re Gault, 387 U.S. 1; 1967. 40. Parham v. J.R., 42 U.S. 584; 1979. 41. Tiano LV, Parham v. J.R. “Voluntary” commitment of minors to mental institutions. Am J Law Med. 1980;6:125–49.

7

Involuntary Medications Yi Wang

Clinical Vignette You are a psychiatrist working for the state Department of Correction, in a facility intended for the housing and care of convicted offenders with major mental illnesses. Your role is clinical: you provide diagnosis and treatment for these inmate patients, primarily through prescribing psychotropic medications. One such patient comes to your attention: a middle-aged man by the name of Mr. Harris. He was convicted 5 years ago of a violent robbery and has been incarcerated since. Mr. Harris has bipolar disorder, an illness that has negatively impacted his ability to function within the state penal system. He often declines to take medications for managing his bipolar disorder, and subsequently becomes uncooperative or even violent during acute mood episodes. Twice before, these episodes have led to transfers from general population to your special treatment center where he voluntarily accepted medications, improved, and returned to his prior facility to continue his sentence. When he does take medications, his behavior is clearly safer for himself, other inmates, security staff, and the general operation of the facility. However, he has recently started to refuse medications again, and has been transferred to your unit for evaluation and treatment. You evaluate Mr. Harris and diagnose him with a manic episode with psychotic features based on his pressured speech, distractibility, psychomotor agitation, irritable mood, and grandiose and persecutory delusions. He denies suicidal or homicidal ideation and has not actively attempted to harm himself or anyone else during this current episode. However, he has also not been able to function safely in his prior housing unit due to the level of disruption that he has created. You recommend

Y. Wang (*) Department of Psychiatry, Hospital of the University of Pennsylvania, Philadelphia, PA, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 T. Wasser, R. Zhong (eds.), Psychiatry and the Law, https://doi.org/10.1007/978-3-031-52589-6_7

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treatment with mood stabilizing and antipsychotic medications. Mr. Harris insists that he does not have an illness and is unwilling to take medications voluntarily. The facility superintendent informs you that Mr. Harris will not be able to return to his prior penal setting in his current mental state and asks you to begin treatment over the patient’s objection in order to speed along his restabilization. The superintendent shows you an internal Department of Correction policy indicating that involuntary treatment is allowed if the proposed treatment is reviewed and approved by an administrative panel composed of institutional staff. The superintendent informs you that he is planning to assemble such a panel to pursue involuntary treatment for Mr. Harris. How do you proceed?

 istorical Case: Washington v. Harper, US Supreme Court, H 1990 [1] Walter Harper was convicted of robbery in the state of Washington in 1976 and was incarcerated at the Washington State Penitentiary from 1976 to 1980, spending most of his time voluntarily receiving antipsychotic medications. Upon his parole in 1980, he was civilly committed to a state psychiatric hospital, but this status was revoked in 1981 after he assaulted two nurses. Mr. Harper was sent to the Special Offender Center (SOC), an institute developed within the state Department of Corrections (DOC) for convicted felons with major mental illness. He was diagnosed by that facility’s psychiatrist with manic-depressive illness. After a year of voluntarily accepting medications, Mr. Harper began to refuse them, and his condition deteriorated. The institution attempted to treat him over his objection based on an SOC policy developed in light of prior US Supreme Court rulings. This policy provided for involuntary treatment of incarcerated felons under particular circumstances, and included four parameters intended to protect the inmates’ Constitutional rights: 1. The inmate must be found by a psychiatrist to have mental illness and be gravely disabled or present a likelihood of serious harm to himself or others. 2. The inmate is entitled to a hearing before a special committee composed of a psychiatrist, psychologist, and the Center’s Associate Superintendent, none of whom may be directly involved in the inmate’s treatment. The majority of the committee must agree with both the initial psychiatrist’s diagnosis of mental illness and assessment of disability and/or risk of harm in order to proceed with involuntary treatment. 3. The inmate has several procedural rights leading up to the hearing, including at least 24-h notice of the Center’s intent, notice of the preliminary diagnosis, a right to present evidence in his support, the right to cross-examine witnesses, and the right to assistance from a lay (non-attorney) adviser. In the case of an adverse decision, the inmate may appeal to the superintendent.

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4. Involuntary treatment can only continue with periodic review by the DOC, initially after 1 week by the administrative committee and then every 14 days by the DOC Medical Director. In 1982, the committee found that Mr. Harper did meet the above requirements and proceeded with involuntarily medicating him. In 1985, Mr. Harper filed suit in state court, alleging that the state had infringed on his constitutional due process, equal protection, and free speech rights. The Washington Supreme Court found that the SOC policy was insufficient for protecting inmates’ rights and that medications could be administered involuntarily only after a full judicial hearing in court. Upon appeal, the US Supreme Court reversed the decision, determining that a state may treat an incarcerated individual with mental illness against his will if that inmate poses a threat to himself or others and the treatment is medically appropriate. The Supreme Court found that the SOC policy fulfilled these requirements without full judicial review.

Core Considerations A person’s right to refuse medical interventions is protected on both legal and ethically normative grounds, even when the refusal appears to be contrary to self-­ interest. Under certain conditions, however, the right to refuse medications can be overridden, leading to involuntary treatment, or treatment over objection. Decisions about administering medications over objection must balance a patient’s individual autonomy with competing governmental interests, such as parens patriae (providing care and protection for who are not able to care for themselves) and police power (in their responsibility for protecting the public), or to ensure timely prosecution and fair trial.

 istory of Involuntary Medications: From the Beneficence H Model to the Autonomy Model of Care In the United States prior to the 1970s, the concept of a hospitalized patient’s right to refuse medication was not well delineated. Treatment with medications was generally tied to hospital commitment itself: that is, if a patient were to be hospitalized for the purposes of treatment, it was assumed that he or she should receive the clinically indicated medical interventions whether he or she desired them or not. Under this “Beneficence” or “Treatment-Driven” model of care, involuntarily committed patients were presumed to lack capacity to make their own decisions about medications. The treating psychiatrist was expected to use his or her clinical expertise to serve the best interests of the patient and was given maximum discretion over medical decision-making [2]. In the late 1960s, in the setting of mounting public awareness of the potentially coercive power of psychiatric commitment, states increasingly recognized the need

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to protect psychiatric patients’ civil liberties. Courts in various jurisdictions reified psychiatric patients’ rights with respect to treatment decisions, and the shift toward the “Autonomy” or “Rights-Driven” model of care placed priority on informed consent rather than on physicians’ recommendations for treatment.

Involuntary Medications for Civilly Committed Patients The right to refuse treatment derives broadly from several Constitutional Amendments, including the first (protection of free speech and by extension, free thought), eighth (protection against cruel and unusual punishment), fourteenth (due process and equal protection), and from privacy rights in the first, fourth, fifth and ninth amendments [3]. In general, psychiatric patients have the right to refuse psychotropic medications while hospitalized, to take part in treatment decisions while hospitalized, and to have judicial review of their competency before receiving forced medications. A series of landmark cases has shaped our approach to navigating involuntary medications. Rennie v. Klein [4] was the first case in the United States that established that, absent an emergency, an involuntarily committed psychiatric patient who has not been found incompetent has a constitutional right to refuse psychiatric medications. John Rennie was a pilot and a flight instructor who had a psychotic illness and a history of multiple hospitalizations at the Ancora Psychiatric Hospital in New Jersey. Among other symptoms, Mr. Rennie had persistent religious delusions and suicidal thoughts. During his twelfth hospitalization, he received Prolixin decanoate, a long-acting injectable antipsychotic medication. Mr. Rennie sued in federal district court to prevent the hospital from administering psychotropic medications to him absent a clear emergency. The case was turned into a class action suit claiming that involuntarily committed patients had the Constitutional right to refuse antipsychotic medications administered against their will. In its decision, the District Court agreed that an involuntarily committed patient who has not been found incompetent, barring an emergency, has a qualified right to refuse psychotropic medication pending a full due process hearing. The district court also applied the least restrictive alternative concept for which medication should be chosen. On appeal, The Third Circuit agreed that there was a Constitutional right to refuse treatment and agreed with the “least restrictive” medications analysis but disagreed with the need for full hearing. The U.S. Supreme Court granted certiorari (i.e., agreed to review the case), but then remanded the case back to the Third Circuit court. The U.S. Supreme Court instructed the lower court to reconsider their decision in light of its decision in Youngberg v. Romeo [5], which featured a man with profound intellectual disability (rather than mental illness) who had been committed to an institution and who sued the state for relief from heavy use of physical restraints and frequent injuries. In that opinion, in line with other decisions of that time, the Court wrote, “The mere fact that Romeo has been committed under proper procedures does not deprive him of all substantive liberty interests.” However, the Court also found that “decisions

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made by the appropriate professional are entitled to a presumption of correctness” and “courts must show deference to the judgment exercised by a qualified professional.” Although this opinion has often been interpreted as giving greater latitude to physician decision-making, it may have limited use in guiding decisions about involuntary medication treatment in psychiatric hospitals, given differences in both treatment population (patients with intellectual disability versus mental illness) and medical interventions (medication versus physical restraint). The Third Circuit reaffirmed its earlier findings that there was a qualified right to refuse. But, in light of the Supreme Court’s decision in Youngberg, the Third Circuit decided that the least restrictive alternative was not a concept that could be mandated for treatment, and shifted decision-making back to “accepted professional judgement.” Rogers v. Okin [6, 7] was another landmark case that established that, absent an emergency, psychiatrically hospitalized patients could not be forcibly medicated. The case began as a federal class action suit filed in Federal District Court in 1975 by patients at Boston State Hospital calling themselves The Mental Patients Liberation Front. The patients challenged the hospital’s policies for placing patients in seclusion and for giving involuntary medications. The District Court held that patients are assumed competent until adjudicated otherwise, and that, absent an emergency, they had a right to refuse treatment. The judge found that psychotropic medications are “indisputably mind-altering” and that, since the capacity to think and to decide is a fundamental element of freedom, giving psychotropic medications over objection raised concerns regarding patients’ First Amendment rights. The judge also rejected the idea that the state had a parens patriae obligation to provide medications, since by involuntarily committing a patient, the State had already fulfilled its goal to protect the general public by confining the patient in a safe place. The First Circuit upheld the District Court’s decision, but broadened the definition of “emergency situation” to include “further suffering of that patient or the rapid worsening of his clinical condition.” The Supreme Court granted certiorari but then remanded the case back to the Court of Appeals. The Supreme Judicial Court of Massachusetts decided that a court (not a guardian, as per the original District Court ruling) must make the decision on whether an incompetent person should be treated. They further opined that a court must use a substituted judgment standard (i.e., what the patient would have chosen were he or she competent). Moreover, the substituted judgement decision would require a full evidentiary hearing. This requirement for a full judicial hearing before meds can be given over objection would later be adopted by a number of other states, and stands in contrast with the decision in Rennie. There are no Supreme Court-level decisions regarding the right of purely civilly committed psychiatric patients to refuse treatment; rather, we have decisions from state supreme courts and federal district courts or circuit courts of appeals to guide our decision-making.

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Involuntary Medications in Criminal Proceedings Criminally incarcerated individuals retain basic Constitutional rights and, like civilly committed patients, can generally refuse unwanted medications. Treatment over objection within carceral settings involves different considerations than in civil settings, and landmark cases have shaped procedural and substantive standards for the proper involuntary medication of incarcerated persons. These cases attempt to balance prisoners’ autonomy rights with competing governmental interests, such as parens patriae; police power; and fair and timely prosecution. In Washington v. Harper [1], referenced in the vignette above, the Supreme Court held that the interest of a mentally ill and dangerous prisoner in avoiding forced medication may be outweighed by the state’s interest in reducing the prisoner’s dangerousness to self or others. The Court outlined due process obligations prior to involuntarily medicating a mentally ill inmate, although in contrast to the two lower court cases Rennie and Rogers, accepted that an administrative panel process (rather than full judicial hearing) granted sufficient due process protections to the individual inmate. Subsequently, the 1992 US Supreme Court case of Riggins v. Nevada [8] established that involuntary treatment of a pretrial defendant may be justified even if the defendant is not at risk of danger to self or others, if adjudication of guilt or innocence cannot be achieved by less intrusive means. The Riggins court, however, did not articulate a specific standard for determining whether a pretrial defendant should receive involuntary medications. This standard was addressed in Sell v. United States [9], a 2003 U.S. Supreme Court decision regarding involuntary medication of a mentally ill defendant facing charges in federal court for the purpose of competency restoration. The defendant, a dentist named Charles Sell, had been found incompetent to stand trial due to a severe delusional psychiatric illness. He refused medication for competency restoration at a federal hospital. In 2000, a magistrate judge authorized treatment over objection; Dr. Sell appealed but the order was upheld by the District Court and the Court of Appeals. The Supreme Court agreed to hear the case, and ruled that involuntary medications, for the purpose of rendering a non-dangerous mentally ill defendant competent for trial, may be allowed under four conditions: 1. Important government interests are at stake 2. The medication is substantially likely to render the defendant competent to stand trial and substantially unlikely to have side effects interfering with the fairness of the trial 3. The medication is necessary to further government interests and less intrusive treatments are unlikely to achieve the same results 4. The medication is “medically appropriate”

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 onsiderations Regarding Involuntary Treatment C with Medications Emergency Versus Non-Emergency Situations Legislatures and courts have given much broader latitude to the use of involuntary medications in emergency situations. The specific factors that comprise an “emergency” for the purposes of involuntary treatment, however, are delineated by individual state law or court case opinions. Imminence of danger or risk of death or serious injury to the patient or others is usually considered. When faced with the decision of whether to treat involuntarily, it is important to be familiar with local laws. Involuntary treatment under non-emergency situations becomes much more complex. In some states, the decision to non-emergently medicate a non-consenting patient may turn on the patient’s elevated dangerousness to self or others. This is similar to the determination that must be made in most jurisdictions for the initial involuntary commitment decision itself, which generally requires a finding of dangerousness to self or others (or in some cases “grave disability” or similar). For example, the state of Connecticut allows for involuntary treatment with medications if either a nonjudicial administrative panel in the institution or probate court judge finds that the patient has capacity to provide informed consent but still refuses medication treatment, and has an illness that places the patient or others in “direct threat of harm” and which can only be treated with medications [10]. In settings where the goal for treatment is not to reduce harm but to restore competency for trial (i.e., Sell cases), the seriousness of the alleged crime and the facts of the individual case are considered in addition to the efficacy and side effects of proposed medication; whether the medication is appropriate for the defendant given his or her medical history; and whether there are less intrusive alternatives for treatment. A medication’s formulation, route of administration, and length of action affect these considerations [9, 11].

Medication Classes and Formulations Historically, antipsychotic medications have been treated differently by courts compared to non-antipsychotic medications, due to fears that they would cause more severe side effects and suppress “normal” behaviors or personality features. This fear is easily understood when considering the high dosing strategies that were adopted in the early days of antipsychotic use. Because of these concerns, some jurisdictions require a higher level of judicial review prior to treatment over objection with antipsychotic medications, similarly to other invasive treatments such as psychosurgery and ECT [2]. The advent of atypical or “second generation” antipsychotics as well as the development of novel delivery mechanisms such as long-acting injectable formulations have also raised questions about how medication properties (e.g.,

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intrusiveness, efficacy, length of action, side effects) affect decision-making when using medications over objection [11].

 pproaches to Involuntary Treatment: Treatment-Driven A Versus Rights-Driven The court decisions referenced above, along with other local court precedents, state laws, and departmental policies, have led to a state-by-state patchwork of mechanisms for authorizing medications over objection. These approaches can be broadly categorized into those driven by treatment needs (Beneficence or Treatment-Driven Models) versus those driven primarily by considerations of a patient’s legal rights (Autonomy or Rights-Driven Models). Treatment-driven models may still be used in jurisdictions in which neither legislatures nor courts have forced a higher standard of review [12]. They may apply variations in which an independent reviewer such as an institution’s medical director or administrative panel considers the appropriateness of the medication in the case of patient refusal. However, under these models, the patient’s due process rights may be insufficiently protected. Over the past several decades, many states have moved toward processes designed to preserve patients’ legal rights, such as determination of a patient’s competency to refuse medications prior to treatment with medications over objection. Whether competency decisions ought to be legal determinations made by a judge/ magistrate or clinical determinations made by a non-treating independent clinician (or group of clinicians) continues to be debated and vary by state. Even among states that use a full judicial process, there is debate as to how the judge should proceed with an incompetent patient. Some states impose the “best interest” standard, in which the judge imposes medical treatment in the patient’s best interests as the judge sees them. Other states use the “substituted judgment” standard, in which the judge orders medical treatment that is most consistent with what an incompetent patient would have chosen if he or she were competent [2]. This standard is fraught with its own challenges: in the absence of a clear stated preference prior to the onset of major mental illness (a conversation that few patients may be able to have, especially as psychotic illnesses tend to have a young age of onset), to reach a determination the fact finder may have to rely on sparse or piecemeal observations about the patient’s family dynamics, cultural practices, religious preferences, or other circumstantial concerns.

Consequences for Inappropriately Administered Treatment In light of such complicated and variable requirements for legally overriding a patient’s treatment refusal, a psychiatrist may be tempted to proceed with medication unabated, but the consequences from such a decision can be significant. Below

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is a non-exhaustive list of potential deleterious consequences that may arise from proceeding inappropriately with the administration of involuntary medications:

Professional Ethics Complaints Patients may file ethics complaints with the agencies or societies tasked with monitoring medical professionals. These include state licensing boards or the American Psychiatric Association district branch ethics committee. Outcomes could include professional censure, loss of professional society membership, license probation or suspension, or, in more severe cases, license revocation.

Criminal Charges The forcing of pills or needles into a person who does not want them, without the proper legal oversight, could lead to criminal charges of battery or assault. Despite this possibility, courts have not typically pursued criminal charges against doctors who improperly conduct treatments, more frequently preferring civil remedies.

Malpractice Suits A patient targeted by inappropriate involuntary treatment could consider filing a suit for malpractice, a special form of negligence. The usual parameters of a successful malpractice lawsuit require that a practitioner deviated from the standard of care, resulting directly in damages to the patient to whom that practitioner had a duty of care (see Malpractice chapter within this text for additional details). To the extent that professional standards of care regarding informed consent and involuntary treatment conform with statutory laws and case law, a psychiatrist who fails to follow them becomes increasingly vulnerable to such a claim.

Civil Rights Violations A US federal law from the post-Civil War Reconstruction era provides a mechanism for citizens to sue for monetary damages anyone who, under color of state law or ordinance, violates their constitutional rights or privileges [13]. This is another way for patients to pursue legal remedies when they believe their management in a facility is oppressive or inappropriate. The cases of Rennie, Rogers, and Washington described previously all began with such a federal court complaint. Malpractice insurance is unlikely to cover the financial damages that would result from a successful suit under this law [2].

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Summary A person’s right to refuse medical interventions is protected on both legal and ethically normative grounds, even when the decision to do so appears to be contrary to self-interest. The right to refuse, however, can be overridden under certain conditions. Prior to the 1970s, state and local governments offered little oversight of inpatient psychiatric prescribing practices, generally assuming that once a patient was committed, he or she should also receive the recommended treatment by their treating psychiatrist regardless of the patient’s preference. Since that time, a variety of court decisions and legislative statutes have led, in general, to far greater rights for patients who wish to refuse psychiatric treatment, including medication. Legal approaches to overriding this refusal vary across state and federal jurisdictions and even between criminal and civil settings within the same geographic area. • Prescribing clinicians should be aware of the legal limitations to involuntary treatment in their area of practice and times when these limitations may not apply (e.g., during life-threatening emergencies). • Clinicians should understand the appropriate legal mechanisms to enact in their jurisdiction when a patient refuses a recommended course of treatment that is deemed necessary for the health and safety of the patient and/or others. • Failure to understand and practice within these guidelines could lead to serious consequences for a psychiatrist, including monetary damages, loss of licensure, or even criminal liability.

References 1. Washington v. Harper, 494 U.S. 210; 1990. 2. Appelbaum PS, Gutheil TG. Clinical handbook of psychiatry & the law. 4th ed. Philadelphia: Lipincott Williams & Wilkins; 2007. 3. Ciccone JR, Tokoli JF, Clements CD, Gift TE. Right to refuse treatment: impact of Rivers v. Katz. Bull Am Acad Psychiatry Law. 1990;18(2):203–15. 4. Rennie v. Klein, 653 F.2d 836 (3d Cir.); 1981. 5. Youngberg v. Romeo, 457 U.S. 307; 1982. 6. Rogers v. Okin, 478 F. Supp. 1342 (D. Mass.); 1979. 7. Rogers v. Okin, 634 F.2d 650 (1st Cir.); 1980. 8. Riggins v. Nevada, 504 U.S. 127; 1992. 9. Sell v. United States, 539 U.S. 166; 2003. 10. State of Connecticut Department of Mental Health and Addiction Services Commissioner’s Policy Statement and Implementing Procedures. Chapter 6.15: Emergency and Involuntary Medication; 2021. https://portal.ct.gov/-­/media/DMHAS/Policies/Emergency-­and-­ Involuntary-­Medication-­Policy%2D%2Dupdated2022.pdf. Accessed 12 Feb 2023. 11. Wang Y, Lanzillotta C, Weiss KJ. Involuntary Administration of long-acting injectable antipsychotics for competency restoration. J Am Acad Psychiatry Law. 2022;50(2):283–93. 12. Appelbaum PS. The right to refuse treatment with antipsychotic medications: retrospect and prospect. Am J Psychiatry. 1988;145:413–9. 13. Civil action for deprivation of rights. 42 U.S.C. § 1983; 1871.

8

Decision-Making Capacity Rocksheng Zhong and Maya Prabhu

Clinical Vignette: Part One You are a PGY1 resident rotating on an internal medicine rotation at a small community hospital. Because it is a small hospital, when you take call for the medical service, you also cover admissions for the obstetrical service. One night while you are on call, a married female patient presents in labor, soon to deliver her first child. You conduct a standard history and physical examination of her including a psychiatric screening. The patient is cooperative with the examination and both excited and scared about the upcoming delivery but responds easily to your reassurances. You don’t identify any significant medical or psychiatric concerns. During the course of your admission evaluation, your patient tells you that she is a Jehovah’s Witness and that she does not wish any blood or blood products to be given to her regardless of the circumstances. This is your first time working with a patient who is a Jehovah’s Witness and you are unsure what to do. You ask your senior resident, who directs you to the hospital form for Jehovah’s Witness patients. The form is a release of liability which relieves the hospital and employees from legal responsibility for any adverse effects which might result from her refusal to use blood or blood products. The patient and her husband sign the release. You review the case with the attending physician and move on to your next patient.

R. Zhong (*) Department of Psychiatry and Behavioral Sciences, University of Texas Medical Branch, Galveston, TX, USA e-mail: [email protected] M. Prabhu (*) Law and Psychiatry Division, Department of Psychiatry, Yale School of Medicine, New Haven, CT, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 T. Wasser, R. Zhong (eds.), Psychiatry and the Law, https://doi.org/10.1007/978-3-031-52589-6_8

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Later that evening, the patient gives birth to a healthy baby but starts to hemorrhage due to retained placenta. Your attending physician recommends a dilation and curettage (D&C) to stop the bleeding. The patient agrees to undergo the procedure but once again reminds the team she does not want any blood transfusions. Prior to the D&C, the patient signs a second release requesting no blood products and relieving the hospital from liability. Your patient undergoes the D&C but continues to bleed and subsequently requires transfer to the intensive care unit because she needs to be placed on a respirator. Several alternatives to a blood transfusion are tried to treat the patient’s condition, but she continues to deteriorate. All involved in her care agree that nothing short of a blood transfusion will save this patient’s life. The clinical team is divided about how to proceed with the patient’s care. Some of your colleagues express strong feelings that the patient’s refusal to accept blood products when her own life is at stake is an indication of irrational thinking and that her wishes should be overruled by the team in favor of giving her a transfusion. Even though the patient seemed to speak for herself in a clear and organized manner, your colleagues express concern that she may have felt pressured by her husband to refuse the blood products. They argue that the hospital and the medical team have an obligation to provide the best possible care for the patient and that failing to take to do so constitutes medical negligence. One team member argues that the hospital has a duty to act in the best long-term interest of the patient’s newborn child, who is also the hospital’s patient, and thus has a duty to transfuse to save the mother’s life. You are confused—initially you did not see any reason not to follow the patient’s request, but now you are less certain. Your attending physician speaks with the hospital attorney. After this discussion, the hospital attorney files a request with the court asking for permission to transfuse the patient. You are informed that a judge from the court will come to the hospital to conduct an emergency bedside hearing. Your attending physician instructs you to review the medical record as you will be asked to describe your interactions with the patient and what she discussed with you. As you quickly review the chart, you wonder what kinds of questions you will be asked.

Questions to Consider Based on Part One What aspects of your history and physical are relevant to the question the court is deciding? What are the interests at stake for the patient, for you as a member of the clinical team, and for the hospital? Looking back, what additional discussions might you have had with the patient prior to the delivery that would help inform your current decision about whether to provide a transfusion?

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Clinical Vignette: Part Two The judge arrives and appoints the patient’s husband as her substitute decision-­ maker as the patient is now unconscious and unable to communicate her wishes. Her husband testifies that because of his wife’s beliefs as a Jehovah’s Witness, she would continue to refuse transfusions if she were able to communicate her wishes herself, notwithstanding the danger to her life. Your attending physician testifies that within a “reasonable degree of medical certainty,” the patient will die without blood transfusions and that all nonblood options have been exhausted. You provide testimony about the patient’s expressed wishes to you and her medical and mental state at the time she discussed her wishes. After hearing all of the testimony, the judge grants permission to the hospital to administer blood transfusions against the patient’s (and her husband’s) wishes. Your patient recovers and is later discharged home from the hospital with her baby. You are happy that your patient survived, but you continue to wonder whether the court came to the right decision.

History of the Real-Life Legal Case This vignette is based on the legal case Stamford Hospital vs. Nelly E. Vega, 674 A. 2d 821 (Conn., 1996) [1], which was argued before the Supreme Court of Connecticut in October 1995 and decided in 1996. Mrs. Vega had presented to Stamford Hospital in order to deliver her first child. On the night of her admission, Mrs. Vega, a Jehovah’s Witness, signed a hospital form which indicated that no blood or its derivatives be administered to her during her hospitalization; the form explicitly relieved the hospital and its personnel from liability for any adverse effects that might result from her refusal to permit the use of blood in her treatment. Mrs. Vega’s husband also signed the release. Mrs. Vega was able to deliver the baby successfully but then began to bleed due to retained placenta. The patient agreed to the obstetrician’s request for a D&C in order to stop the bleeding. Before the procedure, she signed a second waiver requesting that she be given no transfusions and releasing the hospital from liability. Despite undergoing the procedure, Mrs. Vega continued to hemorrhage. All available treatments (other than blood transfusions) were attempted but were unsuccessful. Her condition continued to deteriorate until she eventually required a respirator and transfer to the ICU.  Throughout this period, Mrs. Vega and her husband were insistent that it was against their religious beliefs to allow a transfusion, even though they were aware she could die without one. Eventually, Stamford Hospital, on behalf of the physicians caring for Mrs. Vega, sought a court order to transfuse Mrs. Vega. The judge came to the hospital in the middle of the night, and a hearing was held at the patient’s bedside even though Mrs. Vega’s attorney had not yet arrived by the start of the hearing. Her husband, Mr. Vega, was formally appointed by the court as Mrs. Vega’s substitute decision-maker. The court ultimately ruled that Mrs. Vega should be given the transfusion; she subsequently recovered.

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Mrs. Vega and her family appealed the decision in the case. What is unusual about this case from a procedural perspective is that although the immediate question of whether or not to provide her a blood transfusion was “moot,” (i.e., no longer immediately pressing since the issue had been resolved), the Supreme Court of Connecticut agreed to hear the case on appeal. Recognizing that similar cases were likely to arise in the future, the court agreed to provide future “guidance,” at the request of the patient, her family, the Watchtower Bible Society of New York (the parent organization of the Jehovah’s Witness faith), and the hospital. The question the court addressed is whether the hospital was right to administer a transfusion against the patient’s wishes to prolong her life; it also considered whether the hospital was correct in seeking to protect her child’s “long-term interest” in being raised by her biological mother. The Supreme Court of Connecticut ruled in favor of the patient’s right to medical self-determination, in this case, the refusal of a relatively safe and effective intervention that would avoid death. The court reasoned that the “right to refuse medical treatment” is “deeply rooted” in the US’s tradition of “self-determination” and in the common law. It cited a 1891 precedent from the US Supreme Court stating, “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his or her own person, free from all restraint or interference of others, unless by clear and unquestioned authority of law.” The court stated that the hospital did not have the right to “substitute its judgment for that of the patient” under the presumption that it better represents societal interests, the State, or the profession of medicine. It did recognize the right of a healthcare facility “as a practical matter” to seek guidance before going ahead, or holding back, in such life-and-death situations [1]. On the subject of liability, the court concluded that Mrs. Vega’s decision as a “competent” “fully informed” adult “immunized” the hospital from adverse consequences since she “knew the possible price of her refusal.” The ruling is also significant for its enumeration of important societal interests, including the hospital’s interest in preserving life and protecting the integrity of the medical profession. Nonetheless, the court found that these interests were “not sufficient to take priority over (a person’s) common law right to bodily integrity, even when the assertion of that right threatens her own life” [1].

Clinical Discussion Before proceeding, it is important to distinguish between the terms “civil competency” vs. “civil capacity” as they are sometimes used interchangeably. “Civil competence” is in fact a legal term of art, not a medical one, which “refers to the degree of mental soundness necessary to make decisions about a specific issue” [2]. By contrast, capacity is “an individual’s ability to make an informed decision” [2]. In other words, a determination about competency reflects the outcome of a legal process, whereas an opinion about capacity reflects the assessment of an evaluating physician. Capacity determinations are intended to be narrow and related to the patient’s ability to make a decision about a specific clinical issue. However, given

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the similarities between these concepts, it is not uncommon for consulting psychiatrists to be asked to determine if a patient is “competent.” In such cases, the psychiatrist should clarify that the request is for a capacity assessment regarding the patient’s ability to make a specific medical decision and clarify the specific concern that has prompted the consult. For the remainder of the chapter, the term “capacity” will be used as it refers to the clinical considerations and steps taken by the psychiatrist. The case of Stamford Hospital vs. Vega raises three significant issues for physicians: (a) Medical Capacity: The presumption that patients have the right to choose or refuse treatment for themselves, including the right to refuse lifesaving treatment so long as they have decision-making capacity (b) Substitute Decision-Making: How to proceed if there are concerns about a patient’s decision-making capacity, in other words, when to turn to a proxy decision-maker (c) Jehovah’s Witnesses: Special considerations in the treatment of Jehovah’s Witness patients

Medical Capacity The notion of capacity touches on two related but distinct concepts: informed consent and decision-making capacity. The concept of “informed consent” is now a fundamental principle of ethical medical care. Informed consent requires that patients be apprised of the nature of their illness, potential treatment options, risks and benefits associated with those options, potential for complications, and all alternatives, including the option of no treatment at all. Encompassed in the notion of informed consent is that physicians must provide the relevant material information to allow patients to make their own decisions, free of coercion. It is also based on the principle that “respect for persons” encompasses persons’ right to decide what happens (and does not happen) to their bodies. This idea was signaled in the Stamford case when the court noted that respect for decision-making must be granted even in the “most serious” “matters of life and death” [1]. Also implicit in the idea of informed consent is the assumption that a patient has the ability to understand and use the information provided to make a decision that reflects their own wishes and values. Patients are presumed to have this ability unless proven otherwise. Common causes of decisional impairment include mental illness, cognitive impairment, and delirium. However, the mere fact of a diagnosis, whether it is schizophrenia, Alzheimer’s dementia, or encephalopathy, does not necessarily mean that a patient has lost decision-making capacity. Rather, the illness must cause them to be so impaired that they cannot make an informed choice regarding their care. Once an acute psychiatric or medical decompensation has resolved, capacity may be restored.

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Although psychiatrists are often called upon to assist in more complicated capacity evaluations, any clinician familiar with a patient’s case may make a capacity determination. In fact, some writers have posited that in capacity evaluations, “treating physicians may in fact have the advantage of greater familiarity with the patient and with available treatment options. Psychiatric consultation may be helpful in particularly complex cases or when mental illness is present [3].” Concerns about a patient’s decision-making capacity tend to be prompted when patients disagree with a medical recommendation. However, even when there is “no reason to anticipate need for a formal court proceeding, a clinician is expected to consider a patient’s decisional capacity” [4]. Although the Stamford case represents a scenario where the capacity of the patient did not appear to be in question, there is evidence that physicians frequently underestimate decisional incapacity among their patients [5].

Assessment of Capacity Appelbaum and Grisso have articulated the dominant paradigm for capacity assessment [6]. Their model states that capacity has four components: (a) The ability to understand relevant information. (b) The ability to appreciate a situation and its consequences. (c) The ability to reason, or rationally manipulate relevant information. (d) The ability to communicate a choice. These abilities are assessed against a “sliding scale,” in which the degree of ability needed to make a decision should scale according to the complexity and consequences of the decision [3]. More complex and riskier decisions require greater degrees of the four decisional abilities, while less complex and less risky decisions require correspondingly lower degrees of ability. For instance, individuals who agree to experimental chemotherapy—a typically risky decision with unclear benefits—are held to a higher standard of decisional abilities than individuals who agree to a multivitamin—a relatively benign intervention. This formulation is meant to strike a balance between an individual’s right to make autonomous decisions about their healthcare and the need for society to protect vulnerable impaired persons from making choices to their own detriment. It can lead to some surprising and counterintuitive conclusions. A person can have capacity to consent to a medical intervention while simultaneously lacking the capacity to refuse the very same intervention [7]. This is because the risk profiles of the two decisions differ. Medications or procedures are usually recommended precisely because their benefits outweigh their risks. Refusing a beneficial intervention is riskier than agreeing to that intervention, so the corresponding standard of capacity is higher on the sliding scale when refusing than when accepting. A partially impaired person may retain enough decisional abilities to accept the beneficial intervention while also lacking the requisite abilities to refuse it.

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The bedside evaluation of capacity entails a clinical interview that examines the person’s four decisional abilities with respect to the medical decision at hand. In addition to thoroughly screening for any medical, psychiatric, or neurological condition impacting cognition, clinicians should probe the person’s comprehension of their illness, treatment options, and consequences of each option and of no treatment. Patients should demonstrate some ability to engage in a considered discussion and weigh and manipulate their choices and the effects of those choices, not only in general, but also applied to their own medical situation and in light of their goals and values. The reasons patients provide need not accord with the evaluator’s value system but should nevertheless be persuasive and coherent. Finally, patients must be able to communicate their wishes and preferences in a consistent and stable enough fashion that the decision can be implemented. Numerous tools exist to aid clinicians in determining capacity. Cognitive screening instruments such as the Mini-Mental Status Exam (MMSE) or the Montreal Cognitive Assessment (MoCA) can help reveal cognitive impairments that may affect decisionmaking abilities, though readers are cautioned that while impaired cognition is correlated with impaired capacity, the two are not synonymous, since capacity at its core is a functional assessment independent of diagnosis [4]. In addition, there are several tools which have been developed to aid specifically in the assessment of clinical capacity. These include the Aid to Capacity Evaluation (ACE), the Hopkins Competency Assessment Test (HCAT), the Understanding Treatment Disclosure (UTD) test, and the MacArthur Competence Assessment Tools for Treatment [8]. Some of these instruments use standardized vignettes, and others use semi-­structured interview questions. The use of these is limited in clinical practice for a variety of reasons, including lack of availability for clinician use, lack of large-scale validity studies, and lack of consistency across instruments in what is being measured [9]. One mnemonic developed by Chow et  al. for determining medical decision-­ making capacity which some readers might find helpful is “CURVES,” which stands for [10]: • • • • • •

C—choose and communicate U—understand R—reason V—value E—emergency S—surrogate

The first four letters correspond to Appelbaum and Grisso’s four abilities, with value standing in for appreciation in light of a person’s values. Emergency and surrogate remind clinicians that in acute emergency situations, if no surrogate is available, then an emergency exception to informed consent may apply. That is, in the absence of other relevant information, incapacitated individuals are presumed to give implied consent during a medical emergency.

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Capacity Restoration and Conflict Resolution Once a patient is determined to lack capacity, clinicians should first attempt to restore capacity. Some patients’ lack of understanding may be remedied by additional education and disclosure of information [11]. They may benefit from health literacy tools, teaching aids, natural supports (like family or clergy), or simply from multiple conversations to review complex topics. Others may find it difficult to assimilate new information or accommodate to their new health circumstances. They may need time to work through denial, anger, grief, and other emotions before fully coming to terms with a serious diagnosis [12]. Still others may have temporary impediments to communication that are readily addressed, such as inpatients with hearing or vision loss who have left their hearing aids or corrective lenses at home. Sometimes, the natural history of an illness involves periods of improvement and periods of decline. It may be appropriate to defer important decisions to moments when the patient’s decisional abilities recover. To the extent that requests for capacity assessment may be motivated by disagreements between patients, families, and treatment providers, mediation and conflict resolution may be more useful than determining capacity status. Experts in consultation-liaison psychiatry recommend that consultants look beyond the narrowly stated capacity question to address underlying problems. Requests for capacity assessment can mask charged interpersonal interactions, difficult ethical dilemmas, challenging family dynamics, or breakdowns in the therapeutic alliance [12, 13].

When to Proceed with a Proxy or Substitute Decision-Maker In the event that the patient lacks the capacity to make treatment decisions, and capacity cannot be restored, the treatment team must turn to a healthcare proxy or representative who has been designated to make decisions about treatment. The healthcare representative is supposed to exercise substituted judgment and make decisions on the patient’s behalf based on what the patient’s wishes might have been [14]. Sometimes, substituted judgment is impossible, such as in cases of small children, severe intellectual disability, or situations where the patient’s wishes are unknown, and decision-makers must instead use the best interests standard, which advocates for what generally would be beneficial for the patient. Depending on jurisdiction, there are some treatments such as electroconvulsive therapy for which even a proxy cannot give consent but instead require special hearings before a judge [15]. A patient’s healthcare proxy can be formally identified in an “advance directive” [16]. Advance directives include “living wills,” which record patients’ wishes about care at the end of life and during critical illness, as well as “durable powers of attorney,” which appoint a surrogate decision-maker. Ideally, the designation of a healthcare proxy has been documented in writing, and a copy of the legal paperwork is in the chart throughout a hospital admission. However, in some circumstances, medical decisions are made at the bedside hastily

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in the context of an emergent situation. When there have been no prior arrangements made, patients who are unable to make their own decisions should be asked whom they would like to make decisions on their behalf. The choice of a surrogate decision-­maker is increasingly thought to require a less rigorous standard of capacity [5]; a social worker or chaplain (depending on hospital protocol) may be able to complete the proxy paperwork with the patient immediately. Oftentimes medical teams will turn to the most readily available family member to help make decisions for the patient. However, it is strongly recommended that providers review hospital policy regarding the hierarchical order in which family members should be considered for this role. The family members most often considered are spouses, parents, adult children, and siblings, though the preferential order will vary by state. In some cases, a conservator or guardian may have already been appointed by a probate court because the patient has previously been found to be unable to make decisions about his or her medical treatment (civilly incompetent). Probate courts are distinct from criminal courts, which handle potential violations of criminal law, and civil courts, which handle noncriminal disputes. Rather, probate courts are specialized forums that hear matters related to the personal and financial rights of adults who may be unable to care for themselves. Conservators and guardians can be considered “permanent” decision-makers for patients who have been found to be unlikely to regain decision-making capacity (e.g., a patient with dementia). Ideally, if a conservator has already been appointed, the clinical team has already been made aware of this and is in communication with the conservator regarding treatment decisions. Probate proceedings, terms, and procedures differ from state to state.

Considerations with Regard to Jehovah’s Witness Patients Jehovah’s Witnesses (JW) is a Christian organization which was founded in the 1870s in Pennsylvania [17]. While there is variability about what individual patients may consider acceptable, many JW members do not accept transfusions of whole blood or any blood component [18]. Since the Stamford case was decided in 1996, blood and surgical technology have advanced such that multiple substitutions for blood products have emerged which may allow for many alternate avenues before transfusions need to be considered. Indeed, best transfusion practice is trending toward limiting blood products for all patients, not just those with religious objections, except in the most high-risk situations [19]. However, life-threatening hemorrhage is not an unforeseeable situation in obstetrical patients. Belaouchi et al. strongly recommend that obstetric patients who reject blood transfusion be evaluated as early as possible “in order to select a specific blood management protocol should it be needed, taking into consideration that not all JW refuse all blood products and that each case is different.” Topics for discussion would include which transfusion alternatives the patient would accept, who her surrogate decision-maker will be should she be unable to communicate her wishes,

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what information can be discussed with family members, and which decisions should be kept private from family [20]. Careful planning would include having the patient sign consent documents in advance and making sure that copies of advance directives are in the chart. Advance directives may take the form of a “blood refusal” card. Since Stamford, the law is more settled, as is medical practice, with regard to the accommodations that must be made to recognize and respect the wishes of a JW patient. In the past, physicians have attempted to force patients and children to accept transfusions when deemed medically necessary through the use of court orders [21]. However, this is hardly considered the standard of care in current practice. What is paramount in such situations, however, is to engage all patients in anticipatory decision-­making, discussions about available treatment options, and the designation of substitute decision-makers. Making use of an interdisciplinary team in such situations, including consultation with psychiatry, ethics, and anesthesiology, may also mitigate anxiety on the part of both patients and clinical teams. Although much attention is given to cross-cultural differences when they refer to differences in the patient’s ethnic background, equal respect for a patient’s religious beliefs is also essential.

Conclusions • Always inquire and document whether a patient has a conservator or guardian, healthcare representative, or advance directive. • In reviewing complex or high-risk decisions with patients, be sure to review and document discussions about illness, options for treatment (including no treatment), the patient’s opinions, consistency of opinion, and significant potential adverse consequences of all treatment options (including no further treatment). • When there is concern about a mental illness or complex family/team/patient dynamics, consider a psychiatry or ethics consult. • Capacity assessment is part of the necessary skill set for all physicians, in particular psychiatrists, so readers should become familiar with a range of capacity assessment aids (including the Grisso and Appelbaum framework described above). • It is important to investigate hospital protocol when working with a JW patient, including any requirements for special documentation, and be sure to note any existing advance directives in the medical chart.

References 1. Stamford Hospital vs. Nelly E Vega, 674 A. 2d 821 (Conn.); 1996.

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2. Resnick PJ, Sorrentino R.  Forensic issues in consultation-liaison psychiatry. Psychiatric. Times. 2005. http://www.psychiatrictimes.com/articles/forensic-­issues-­consultation-­liaison-­ psychiatry. Accessed 22 May 2017. 3. Appelbaum PS. Assessment of patients’ competence to consent to treatment. N Engl J Med. 2007;357:1834–40. 4. Palmer BW, Harmell AL.  Assessment of healthcare decision-making capacity. Arch Clin Neuropsychol. 2016;31:530–40. 5. Sessums LL, Zembrzuska H, Jackson JL.  Does this patient have medical decision-making capacity? JAMA. 2011;306:420–7. 6. Appelbaum PS, Grisso T. Assessing patients’ capacities to consent to treatment. N Engl J Med. 1988;319:1635–8. 7. Wilks I. The debate over risk-related standards of competence. Bioethics. 1997;11(5):413–26. 8. Karlawish J.  Measuring decision-making capacity in cognitively impaired individuals. Neurosignals. 2008;16:91–8. 9. Dunn LB, Nowrangi MA, Palmer BW, Jeste DV, Saks ER. Assessing decisional capacity for clinical research or treatment: a review of instruments. Am J Psychiatry. 2006;163:1323–34. 10. Chow GV, Czarny MJ, Hughes MT, Carrese JA. CURVES: a mnemonic for determining medical decision-making capacity and providing emergency treatment in the acute setting. Chest. 2010;137:421–7. https://doi.org/10.1378/chest.09-­1133. 11. Ganzini L, Volicer L, Nelson WA, Fox E, Derse AR. Ten myths about decision-making capacity. J Am Med Directors Assoc. 2005;6(3):S100–4. 12. Kontos N, Querques J, Freudenreich O. Capable of more: some underemphasized aspects of capacity assessment. Psychosomatics. 2015;56(3):217–26. 13. Siegel AM, Bleier HR.  The role of negotiation in consultation-liaison psychiatry. Psychosomatics. 2017;58(2):187–90. 14. Berger JT, DeRenzo EG, Schwartz J. Surrogate decision making: reconciling ethical theory and clinical practice. Ann Intern Med. 2008;149(1):48–53. 15. Harris V. Electroconvulsive therapy: administrative codes, legislation, and professional recommendations. J Am Acad Psychiatry Law. 2006;34(3):406–11. 16. Silveira MJ, Kim SY, Langa KM. Advance directives and outcomes of surrogate decision making before death. N Engl J Med. 2010;362(13):1211–8. 17. Watchtower Online. https://wol.jw.org/en/wol/d/r1/lp-­e/1102000101?q=history&p=par#h=2. Accessed 7 May 2017. 18. Lawson T, Ralph C.  Perioperative Jehovah’s witnesses: a review. Br J Anaesth. 2015;115:676–87. 19. Shander A, Gross I, Hill S, Javidroozi M, Sledge S. A new perspective on best transfusion practices. Blood Transfus. 2013;11:193–202. 20. Belaouchi M, Romero E, Mazzinari G, et al. Management of massive bleeding in a Jehovah’s Witness obstetric patient: the overwhelming importance of a pre-established multidisciplinary protocol. Blood Transfus. 2016;14:541–4. 21. Sagy I, Jotkowitz A, Barski L.  Reflections on cultural preferences and internal medicine: the case of Jehovah’s Witnesses and the changing thresholds for blood transfusions. J Relig Health. 2017;56:732.

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Psychiatric Evaluations Intended for Third Parties Andrew N. Tuck and Ariana Nesbit Huselid

Case Vignette You are a psychiatrist who conducts independent medical evaluations in addition to seeing patients in an outpatient private practice. Many of these evaluations are done for employers who desire pre-employment psychological evaluations for prospective employees. In your latest evaluation, you are tasked with conducting a psychological screening for a man applying for a position as a police officer. You explain to the examinee the nature and purpose of the evaluation, and that, in your state, he may be entitled to further explanation of the conclusion you make. During the evaluation, you learn that the examinee has a history of vocational and financial instability. He dropped out of college after being placed on academic suspension, has held and resigned from several different jobs during a brief period of time, and made a claim for unemployment benefits that was ultimately found to be unsubstantiated. Additionally, he has defaulted on several loans and has a history of multiple motor vehicle charges. This history raises your concern for his ability to perform the duties of a police officer adequately. After your evaluation, which includes several validated psychometric tests, you conclude that the examinee has a diagnosis of a personality disorder that would render him ineffective in the position

A. N. Tuck Department of Psychiatry & Behavioral Sciences, Duke University School of Medicine, Durham, NC, USA e-mail: [email protected] A. Nesbit Huselid (*) Department of Psychiatry & Behavioral Sciences, Duke University School of Medicine, Durham, NC, USA Department of Psychiatry, University of North Carolina at Chapel Hill, Durham, NC, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 T. Wasser, R. Zhong (eds.), Psychiatry and the Law, https://doi.org/10.1007/978-3-031-52589-6_9

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for which he is applying. You recommend to the employer that the examinee not be hired. The examinee is not hired by the employer and is displeased with this result. He sues you for medical malpractice, alleging that your diagnostic process did not meet the standard of care and that he experienced harm in the form of losing an employment opportunity. Is there a basis for his lawsuit? Does your evaluation—conducted for a third party and with no intention of treatment—imply the presence of a physician-­patient relationship? How do you proceed?

 hat Actually Happened: Lambley v. Kameny, 682N.E.2d 907 W (Mass. App. Ct. 1997) In March 1991, Mark Lambley applied for a position as a reserve police officer in the city of Lynn, Massachusetts. His prospective employer noted several features from his history that they found concerning, but consideration of his candidacy for the position moved forward, nevertheless. Like all prospective police officers in Massachusetts, Lambley was required to undergo psychological screening as part of this process. Lambley’s evaluation was conducted by a psychologist, Donald Seckler, and a psychiatrist, Stuart Kameny. The examiners used multiple validated diagnostic tests, including the Minnesota Multiphasic Personality Inventory (MMPI) and the California Psychological Inventory (CPI), as part of their evaluation [1, 2]. They ultimately diagnosed Lambley with passive-­aggressive personality disorder, a diagnosis listed in the then-current DSM-III-R. Lambley asserted that this diagnosis was inaccurate and that he was negligently misdiagnosed because his examiners never demonstrated that he met the criteria for this disorder. He alleged that, among other damages, he experienced harm from his examiners because their evaluation ultimately cost him the job. In Massachusetts, a medical malpractice lawsuit is evaluated by a medical malpractice tribunal to screen out frivolous claims against psychiatrists. The tribunal for Lambley’s case concluded that his offer of proof (i.e., his ability to demonstrate that the defendant was a healthcare provider, failed to operate at the standard of care, and caused harm) was insufficient. Lambley appealed this decision, presenting additional evidence, including a recantation of the diagnosis from Seckler and a new evaluation from a different psychologist concluding that he did not have passiveaggressive personality disorder. The Massachusetts Court of Appeals, without commenting on the substance of the plaintiff’s case, ultimately vacated the tribunal’s conclusion that Lambley’s offer of proof was insufficient, and the case was allowed to proceed.

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Conclusion Physicians’ liability for adverse outcomes in third-party evaluations varies greatly from state to state. When it comes to the duty of care owed to the examinee, some states have a standard of no duty owed at all, and some use a limited version of the usual duty of care (e.g., restricted to a duty not to harm). In other states, such as Massachusetts, physicians are held to the full duty of care, including the elements covered in a typical medical malpractice claim. Relatedly, the presence of a physician-patient relationship entailed by third-party evaluations varies based on jurisdiction. In many states, including Massachusetts, evaluations like the one in the vignette above consider independent medical evaluations to constitute a limited physician-patient relationship. Therefore, the duties and privileges of physician conducting a third-party evaluation are contingent on the jurisdiction in which it is conducted.

Third-Party Evaluations: General Principles Treating psychiatrists are often called upon to perform evaluations for third parties (i.e., parties not directly involved in a person’s medical treatment and with whom there is not a doctor-patient relationship). Due to the wide variety of third-party evaluations, trainees and early-career psychiatrists may feel overwhelmed and unprepared when such an evaluation is requested. Even seasoned psychiatric providers can expect to encounter novel legal and ethical challenges when completing these evaluations. A broadly applicable overview of third-party evaluations is difficult because they are defined and regulated by a complex matrix of federal, state, and local laws, as well as guidelines from different professional bodies. Furthermore, as scientific understanding of and cultural attitudes toward mental illness continue to evolve, these laws and guidelines are liable to change. Therefore, physicians responsible for third-party evaluations will need to stay abreast of legal and cultural developments as much as medical ones. This chapter aims to provide a framework for psychiatrists to understand the roles they might assume in conducting third-­party evaluations and their associated medical, legal, and ethical responsibilities. We also offer a brief review of some of the most common third-party evaluations that providers can expect to encounter in general practice. Of note, this chapter will focus on the roles, terms, and evaluations most commonly encountered by a general psychiatric practitioner. Many types of third-party evaluations are conducted by psychiatrists with forensic training or experience. Although some of these will be discussed here, they are not covered in detail. The American Academy of Psychiatry and the Law offers practice guidelines for such assessments [3].

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Roles and Their Responsibilities Treating Psychiatrist A treating psychiatrist is a psychiatrist who is treating a patient for a medical condition, generally within a physician-patient relationship. In the physician-patient relationship, the medical evaluations performed by the treating psychiatrist are done primarily for the purposes of assessing and treating the patient to promote the patient’s health and well-being. However, most physicians will, at some point in their careers, be asked by a patient to provide an evaluation for a third party. These can range from evaluations for disability benefits, guidance given to employers on an employee’s medical leave and return to work, letters in support of an emotional support animal (ESA), and more. Thus, even in the role of the treating psychiatrist, requests for third-­party evaluations are inevitable. The rationale behind having the treating psychiatrist complete such evaluations is simple: it is usually more efficient and cost-­effective to have the psychiatrist most familiar with the patient’s condition, course, and current status complete the evaluation as part of the routine clinical workflow than it is to employ a physician with forensic training or an independent medical examiner who is unfamiliar with the patient. This approach, however, presumes that the treating psychiatrist is familiar enough with the type of evaluation being requested to complete them accurately. It is also premised on psychiatrists providing unbiased assessments of their patients. However, the nature of the physician-patient relationship makes it difficult for treating psychiatrists to complete third-party evaluations. The patient-physician relationship is a concept that carries significant legal import. For example, the physician-­patient relationship entails a duty owed by the physician to the patient to provide adequate medical care, and establishing the presence of such duty is a prerequisite for medical malpractice lawsuits. It also entails restrictions on the disclosure of the patient’s health information (confidentiality), and the extent to which a provider can be compelled to testify against their patient in legal proceedings (privilege) [4]. Understanding how one’s legal obligations are reconciled with the work involved in third-­party evaluations can be complex. Outside of legal considerations, the physician-patient relationship has historically been regarded as a sacred one by physicians, and its moral implications are a primary focus of medical ethics, as demonstrated in the ancient principle of non-­ maleficence (“first, do no harm”) [5]. In evaluations intended for third parties, the physician may face the dilemma of balancing his or her societal and ethical obligations to report one’s findings truthfully against the principle of not harming a patient or acting in their best interest. This can evoke feelings of discomfort in treating psychiatrists, especially when the patient knows the outcome of the evaluation or when the psychiatrist’s conclusions are undesired by the patient and can negatively affect therapeutic rapport. Because the term “third-party evaluations” covers a broad range of activities, there are few universal rules to guide psychiatrists that would be applicable in all situations. This is further complicated by the fact that such evaluations are subject

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to federal, state, and local laws, and because the exact question being asked by the third party will vary. In general, psychiatrists should only accept requests for evaluations that are within the range of their expertise, that they fully understand, and that they believe they are able to complete while striving for objectivity. Whenever possible, they should ensure that their patients are aware of the evaluation, what is being evaluated, and how the psychiatrist will evaluate it. It is never appropriate to falsify information in an evaluation, even if it is for the patient’s benefit. Psychiatrists may derive some solace by remembering that, while evaluations done for a third party may be difficult to reconcile with traditional principles like non-maleficence, they are usually still compatible with the respect for persons that is a shared goal of both medicine and the law, as well as general and forensic psychiatry [6]. Usually, the best approach is for psychiatrists to become familiar with the specific evaluation they are tasked with completing, including specific jurisdictional considerations, and to ask for help or additional information when necessary. Often, there are precedents or frameworks that allow psychiatrists to balance traditional medical ethics with the fulfillment of legal or societal obligations. For example, when asked to testify in a legal case involving a patient under their care, it is recommended that psychiatrists provide their notes from the patient’s medical record rather than testify in person, which can create a situation where they are, or appear to be, testifying “for” or “against” their patient, often with the patient present [7].

Independent Medical Examiners In cases where two parties have conflicting interests regarding their interpretation of a medical concern, the dispute is often resolved by an independent medical examination (IME). Independent medical examiners are usually physicians or other providers who are paid to conduct medical evaluations on one party on behalf of another. In the field of psychiatry, independent medical examiners may be forensic or general psychiatrists with training in conducting certain types of evaluations for third parties. Typical scenarios include when an employer and their employee disagree over a workers’ compensation claim, or a disability insurer evaluates a policyholder’s claim. The physician’s role in this case is to examine the examinee as a neutral third party, rather than to provide treatment to the patient. Independent medical exams are distinct from medical exams conducted as part of a physician-patient relationship. The examinee is not receiving treatment, and the primary fiduciary duty is not owed to the examinee. Yet, it is not accurate to say that no duty is owed to the patient, as limited circumstances exist in which the examiner is obliged to act on behalf of the patient. For example, if the independent medical examiner learns that the examinee is suicidal or otherwise experiencing a psychiatric emergency, they may need to take steps to ensure safety. Rather, the physician is providing a service for the agent who is paying for the evaluation. In practice, this is usually a vendor who is hired by the employer or insurer, and the vendor in turn pays the physician.

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IMEs fill a vital economic role in that they provide an impartial medical opinion in scenarios where a financial or legal outcome is contingent on an individual’s health or ability. However, as in other types of evaluations, there does exist the potential for conflicts of interest or other ethical challenges. In cases like evaluations for disability insurance, independent medical examiners are often employed as a second opinion after the examinee’s treating physician’s report is disputed by the insurer. Although independent medical examiners are, by definition, not hired directly by the insurer or employer, the vendors who employ them generally have a financial incentive to maintain a favorable relationship with whichever party is paying them. This can indirectly influence physicians in their employ. Furthermore, many examinees will not be accustomed to medical evaluations done for a purpose other than their own treatment, and role confusion may arise. Because of such considerations, there are a variety of laws and guidelines under which independent medical examiners operate. The American Medical Association’s Code of Ethics delineates some of these obligations (Table 9.1). First, an examiner must disclose to the patient that they are acting as an agent of the third party. Second, they must inform the examinee that their role is to provide an accurate assessment of the patient’s health or level of ability and explain how their role differs from that of a typical treating clinician. Third, they must observe “professional standards of confidentiality” in managing the patient’s personal health information. Finally, if medically important findings are uncovered incidentally in the course of the evaluation, the examiner must inform the patient of these and suggest, or even assist with arranging, appropriate follow-up care [8]. In this last case, the communication of such information to an examinee’s personal physician should be documented fastidiously [9]. Because the purpose of the IME is evaluative, medical advice should not be offered [10]. In addition to explaining that the exam is not for the purposes of medical treatment, physicians conducting IMEs should take special care to ensure that the examinee understands the purpose of the exam, its limits, and for whom the physician is

Table 9.1 American Medical Association’s Code of Ethics for Independent Medical Examinations. [8] In keeping with their core obligations as medical professionals, physicians who practice as industry-employed physicians or independent medical examiners should:  1. Disclose the nature of the relationship with the employer or third party and that the physician is acting as an agent of the employer or third party before gathering health information from the patient.  2. Explain that the physician’s role in this context is to assess the patient’s health or disability independently and objectively. The physician should further explain the differences between this practice and the traditional fiduciary role of a physician.  3. Protect patients’ personal health information in keeping with professional standards of confidentiality.  4. Inform the patient about important incidental findings the physician discovers during the examination. When appropriate, the physician should suggest the patient seek care from a qualified physician and, if requested, provide reasonable assistance in securing follow-up care.

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conducting the exam. The examinee must consent to the exam before it is conducted. The examiner should explain to the examinee that any apparent efforts to mislead the examiner or omit important information may be mentioned in their report. In cases where a patient does not understand the role of the exam, does not offer consent, or appears to be deliberately misleading the examiner, it is reasonable to decline the examination or to terminate it early [10]. Independent medical examiners should take care to determine exactly what question their evaluation is supposed to answer, even when they are experienced with such evaluations, or the question seems obvious. Disability insurance claims, for example, may involve widely varying definitions of disability based on the agency requesting the evaluations (e.g., the Social Security Administration, the Department of Veteran Affairs, workers’ compensation programs that vary state to state, and individual private insurers). Furthermore, the independent medical examiner should represent the scope of their expertise accurately and decline evaluations that are outside of their abilities to adequately complete. Although the referring agent (typically an attorney, employer, or insurer) always receives a copy of this report, whether other parties (e.g., the examinee or their personal physicians) are entitled to the report varies based on jurisdiction [9, 11]. Similarly, some jurisdictions may limit examiners in what they can offer an opinion on (e.g., opinions on prognosis or future needs may not be permitted). Examiners should be familiar with the laws in their jurisdiction. Last, a physician conducting an IME is obligated to maintain impartiality and avoid any conflicts of interest, either real or perceived [9]. For this reason, a preexisting physician-patient relationship generally precludes conducting an IME on a given examinee. The role filled by IMEs is a significant one, and has consequently garnered substantial analysis from medical, legal, and financial perspectives. This chapter is only intended to offer a brief introduction to the topic. Further training, certification, and assistance can be obtained from professional bodies, such as the American Board of Independent Medical Examiners. Additionally, the AMA publishes a comprehensive guide to evaluation of medical disability in the form of the AMA Guides to the Evaluation of Permanent Impairment, which is currently in its sixth edition [12].

Witness In a civil or criminal legal proceeding, a psychiatrist may be called upon as a witness. A witness is a person held to have special knowledge or experience on a particular matter. Witnesses can be divided into fact witnesses (persons who have firsthand knowledge of an event; e.g., an eyewitness to a crime) and expert witnesses (persons who possess special expertise or knowledge of a subject relevant to the proceeding at hand) [13]. The role of the fact witness—sometimes also referred to as a lay witness—is to report on their firsthand observations of the matter being discussed. They may not offer opinions on the legal implications of their testimony. The role of expert witnesses, on the other hand, is to use their expertise in a

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particular field to inform legal proceedings by offering interpretations of the subject matter and explaining it in a way that judges, juries, and other courtroom personnel will find accessible. Expert witnesses often have experience or specific forensic training in their field and can offer opinions on how their conclusions may apply to legal questions. In the United States, treating psychiatrists summoned as witnesses in legal proceedings are generally doing so in the role of a fact witness. On the other hand, forensic psychiatrists or psychiatrists who have evaluated an individual outside of a treating role (e.g., during an independent medical examination) generally participate in the role of an expert witness. However, if summoned as a witness, the psychiatrist should always confirm their expected role with the attorney.

Physicians as Fact Witnesses When their patient is involved in litigation, treating psychiatrists may be asked to serve as fact witnesses. There is a broad range of circumstances in which this may occur. For example, they may be asked to testify to their patient’s premorbid functioning in a lawsuit against a third party alleging psychological injury. They could also be asked to testify about a patient’s psychological condition prior to a crime for which they are being tried. Regardless of the circumstance, when serving as a fact witness, treating psychiatrists should limit themselves to reporting on their observations of past events rather than opining on legal or even general psychiatric matters [7]. When psychiatrists are asked to testify in legal proceedings concerning a patient they have treated, they find themselves in an unusual dual role: that of treating psychiatrist and that of witness for the court. Therefore, they may find themselves torn between acting in the best interests of their patient (thereby preserving two pillars of medical ethics, beneficence and non-maleficence), and acting in the best interests of society through the pursuit of justice. In this case, there is the potential for a conflict of interest. A psychiatrist serving as a fact witness may, consciously or otherwise, be influenced by a number of factors, including concerns about their patient’s wellbeing, a desire not to alienate the patient, the financial incentive to avoid losing a patient who is displeased with one’s testimony, or even anticipated legal action from a disgruntled patient [7]. Negative countertransference can also result in even the most well-intentioned psychiatrist inadvertently casting their patient in a negative light. Psychiatrists can avert, or at least mitigate, most of these issues by providing their treatment records on the patient instead of testifying [7]. This allows psychiatrists to provide what they are being asked to provide—i.e., their firsthand observations of a person’s medical and psychiatric state during the time in which treatment was provided—while reducing the risk of actual or perceived bias in their testimony. It also helps psychiatrists serving as fact witnesses to avoid a position where they are inadvertently tasked with the role of an expert witness, a role for which they

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may be inexperienced and for which they are not being paid [7]. Courts may not always be satisfied with medical treatment records, alone. In such cases where a psychiatrist has been subpoenaed to testify as a fact witness, the psychiatrist should explicitly note the aspects of any questions being asked that would require an expert opinion and limit their answer to their firsthand observations. A court appearance can be daunting for treating psychiatrists. Consultation with the requesting attorney to clarify the logistical elements of the court proceeding and the attorney’s intentions of involving the psychiatrist as a fact witness is recommended. When testifying, the psychiatrist should strive to maintain impartiality; avoid jargon, jokes, or informalities; and aim for a confident but humble demeanor. Psychiatrists should anticipate being asked challenging or leading questions to provoke an emotional response. Additionally, thorough preparation, including refamiliarizing oneself with the details of the patient’s treatment to date, is always a good idea and usually has the additional benefit of increasing the psychiatrist’s sense of confidence.

Physicians as Expert Witnesses Psychiatrists may assume the role of the expert witness in criminal or civil cases after conducting an IME or other forensic evaluation. In contrast to lay witnesses, expert witnesses are empowered to give opinions and interpretations of the psychiatric matters being discussed in a legal context. Generally, treating psychiatrists should avoid serving as an expert witness in their patients’ cases because there are significant legal, clinical, and ethical incompatibilities between these two roles [14]. For example, as described above, the treating psychiatrist’s primary duty is to their patient. In contrast, the expert witness’ primary duty is to tell the truth, even if such truth-telling harms the patient. Furthermore, treating psychiatrists do not begin their treatment by warning their patients about the possibility of self-incrimination, and they may violate the confidentiality expected to occur within a treatment framework. Finally, expert witnesses approach evaluations from a position of skepticism, always considering malingering and relying heavily on collateral sources of information. In contrast, treating psychiatrists primarily rely upon the patient’s self-­ report and their own observations [7]. In rare circumstances, a psychiatrist may serve as a dual witness: that is, both a fact witness and an expert witness. The potential for conflicts of interest when a treating psychiatrist serves as a fact witness is magnified greatly by the addition of the role of expert witness. Due to the ethical and legal complications of such a role, the American Academy of Psychiatry and the Law’s ethical guidelines recommend that “[t]reating psychiatrists should therefore generally avoid acting as an expert witness for their patients or performing evaluations of their patients for legal purposes” [14]. However, these situations may nevertheless occur on occasion, including in correctional or military settings where psychiatrists have both a duty to their patients and to the institutions in which they are practicing (Table 9.2).

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Table 9.2  American Medical Association’s Code of Ethics for Medical Testimony [15] Medical evidence is critical in a variety of legal and administrative proceedings. As citizens and as professionals with specialized knowledge and experience, physicians have an obligation to assist in the administration of justice. Whenever physicians serve as witnesses they must:  (a) Accurately represent their qualifications.  (b) Testify honestly.  (c) Not allow their testimony to be influenced by financial compensation. Physicians must not accept compensation that is contingent on the outcome of litigation. Physicians who testify as fact witnesses in legal claims involving a patient they have treated must hold the patient’s medical interests paramount by:  (a) Protecting the confidentiality of the patient’s health information, unless the physician is authorized or legally compelled to disclose the information.  (b) Delivering honest testimony. This requires that they engage in continuous selfexamination to ensure that their testimony represents the facts of the case.  (c) Declining to testify if the matters could adversely affect their patients’ medical interests unless the patient consents or unless ordered to do so by legally constituted authority.  (d) Considering transferring the care of the patient to another physician if the legal proceedings result in placing the patient and the physician in adversarial positions. Physicians who testify as expert witnesses must:  1. Testify only in areas in which they have appropriate training and recent, substantive experience and knowledge.  2. Evaluate cases objectively and provide an independent opinion.  3. Ensure that their testimony:  (a) Reflects current scientific thought and standards of care that have gained acceptance among peers in the relevant field;  (b) Appropriately characterizes the theory on which testimony is based if the theory is not widely accepted in the profession;  (c) Considers standards that prevailed at the time the event under review occurred when testifying about a standard of care.

Specific Evaluations In addition to the general roles and responsibilities involved in third-party evaluations described above, we offer the following list of potential third-party evaluations that a treating psychiatrist may be asked to complete. Because legislation regulating these evaluations varies widely based on jurisdiction and can change with time, the intent of including these evaluations is not to offer a comprehensive guide to physicians who are preparing to conduct them. Rather, they are intended to offer a brief introduction to some of the most common third-party evaluations to demonstrate their variety and illustrate the importance of familiarizing oneself with state and local laws before completing them.

Social Security Disability Programs In the United States, the Social Security Administration (SSA) administers several programs through which benefits are provided based in part on medical status/disability. The Social Security Disability Insurance (SSDI) Program is a form of

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disability insurance available to workers who have previously contributed to the Social Security trust fund through taxes. In contrast, Supplemental Security Income (SSI) is a means-tested program that provides cash benefits to adults and children based on disability (e.g., blindness), age (65 years or older), and financial need [16]. The process of becoming enrolled in these programs generally involves an examination and report from one’s treating clinician on the patient’s disability status. Because treating psychiatrists assume a dual role of third-party examiner and clinician when doing these evaluations, it can be difficult for the treating psychiatrist to provide an unbiased opinion while maintaining the therapeutic relationship. Given this role conflict, psychiatrists should consider referring to an independent medical examiner in these circumstances. The SSA provides guidance for examiners in Disability Evaluation Under Social Security, a document sometimes referred to as the “Blue Book” [17]. According to the SSA, an individual is “disabled” if they are unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months” [17]. Examiners should note that “any substantial gainful activity” means that the individual is unable not only to work at jobs that they have historically held, but to do any kind of work, including part-time work. For example, a former neurosurgeon with an early-­onset neurocognitive disorder would not receive SSA if they were still able to work in retail. When conducting a disability examination for the SSA, the psychiatrist should carefully review each of the “Paragraphs” in the “Blue Book” to determine whether the examinee meets the criteria as defined by the SSA for (1) a qualifying diagnosis or “listed” mental health disorder; (2) functional limitations resulting in an inability to work; and (3) chronicity of illness [17].

Workers’ Compensation Workers’ compensation is a system similar to disability insurance in which financial and/or medical benefits are provided to employees who experience illness or injury through their work. Employers are responsible for purchasing insurance coverage through private insurers, or, in some states, from the state itself. Employees who accept benefits through workers’ compensation programs relinquish their rights to sue their employer over the injuries they sustained, and the employer takes on a much greater degree of liability for injuries in return. The rationale of these programs is that an employee will more reliably receive payments after an injury compared to litigation and perhaps benefit from a safer workplace due to employers’ enhanced incentive to reduce workplace accidents [18]. Meanwhile, the employer will avoid lawsuits in which a very large payout could lead to financial instability or even insolvency. In addition, both parties are spared the stress and costs of a court battle. In the United States, workers’ compensation programs are compulsory for most private businesses in 49 states, with the sole exception being Texas [19]. Legislation and regulation surrounding these programs is generally at the state level, although federal employees have their own program. Consequently, case law,

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statutory requirements, and administrative practices will vary based on workplace and jurisdiction. The goal of a workers’ compensation evaluation is to determine whether there is a causal nexus between the employment and the injury. In other words, the examiner is asked to assess whether the injury was caused or exacerbated by the workplace [11, 20]. Most states and the federal government require examiners to use the American Medical Association’s (AMA) Guides to the Evaluation of Permanent Impairment to determine whether the individual meets the criteria for workers’ compensation [17]. Under the AMA Guides, only mood, anxiety, and psychotic disorders are considered qualifying diagnoses. However, psychiatrists should clarify whether their jurisdiction uses this guide (and, if so, which edition) prior to completing a workers’ compensation evaluation [11, 20]. Unlike SSA evaluations which require the individual to be totally and chronically disabled in order to receive benefits, in workers’ compensation cases, compensation may be awarded for partial and temporary disabilities, too. Many jurisdictions categorize psychiatric workers’ compensation claims into three categories: physical-mental, mental-physical, and mental-­mental [11]. A physical-mental claim is considered when a physical injury leads to a mental disorder (e.g., post-traumatic stress disorder following a serious physical injury at work). In a mental-physical claim, an emotional injury leads to a physical injury (e.g., excessive work-related stress results in a myocardial infarction). Mental-mental claims are those that claim that a psychological trauma led to a mental health disorder (e.g., witnessing a bank robbery leads to PTSD). Mental-mental claims are the most controversial, and mental-mental claims due to chronic stress rather than a signal traumatic event are especially difficult to prove. Because of this, some jurisdictions have implemented methods to limit potential compensation in mental-­mental cases by excluding certain types of stressors as qualifying injuries [11, 20]. As with disability evaluations, if asked to complete a workers’ compensation evaluation, psychiatrists should strive to impartially answer the specific question being asked of them. In cases where the medical question is outside the scope of their expertise, or when they are concerned about their ability to impartially complete the evaluation without damaging the therapeutic relationship they have with their patient, they should decline to perform the evaluation and refer to an independent medical examiner.

Private Disability Insurance As described in the above sections, financial benefits available to disabled workers under the SSA and workers’ compensation are limited. Therefore, some insurance companies offer individuals and/or groups (typically paid for by the group’s employer) additional disability benefits. Generally, when a person is seeking private disability benefits for a mental health disorder, their treating psychiatrist is asked to complete claim forms describing their psychiatric impairment and provide copies of

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the medical records. However, regulations and protocols vary widely, and psychiatrists should familiarize themselves with the specifics of the insurance policy— including the policy’s definitions of “disability” and “impairment”—prior to completing such an evaluation. As with workers’ compensation and SSA evaluations, if the disability company has additional questions or concerns, or if the treating psychiatrist is uncomfortable completing the evaluation while striving for objectivity, an independent medical examination may be requested [11].

Emotional Support Animals/Service Animals Although pets have been kept by humans for companionship for millennia, the development of service animals and ESAs, and their expanding role in society, is a relatively new phenomenon. The use of guide dogs became widespread after World War I, as soldiers returned home with visual impairments due to mustard gas exposure. Over time, dogs have been trained to support and perform tasks for individuals with many other different types of disabilities [21]. Treating psychiatrists may be asked to write a letter to support a patient’s request for an emotional support animal (ESA) or service animal. This is a rapidly evolving area of the law, and it is important for psychiatrists to be familiar with their relevant local, state, and federal regulations. It is also important for psychiatrists to understand the difference between the different types of therapeutic animals (Table 9.3). For example, service animals are protected by the Americans with Disabilities Act (ADA), and are defined as “a dog [or in some cases, a miniature horse] that is individually trained to do work or perform tasks for the benefit of an individual with a disability” [22]. Examples of tasks that a psychiatric service animal may be trained to do include deep pressure therapy, reminding the patient when to take medications, preventing oversleeping, or interrupting or redirecting obsessive-compulsive behaviors. In contrast, an ESA is an animal of any species that alleviates a patient’s psychiatric disability not by performing specially trained tasks, but rather through companionship [23]. Unlike service animals, ESAs do not need any type of training to become designated as an ESA. Instead, a mental health provider simply needs to write a letter certifying that the patient has a psychiatric disability and requires the support of their animal to improve their functioning. Furthermore, service animals are protected by the ADA while ESAs are not. However, other laws do afford certain rights to owners of ESAs. Most notably, the Fair Housing Act requires that housing providers make “reasonable accommodations” for ESAs that belong to people with disabilities (e.g., an ESA is allowed in the residence despite a “no pets” policy, or a pet fee is waived) [24]. ESA and service animal evaluations are both disability evaluations. When considering whether to write a letter in support of such an animal, the psychiatrist must first determine whether the patient has a psychiatric disability (i.e., a chronic mental impairment that substantially limits his/her functioning in one or more life areas), and then determine whether the ESA or service animal will alleviate these impairments. To note, although research has demonstrated benefits for psychiatric service animals and pet ownership, there is limited evidence to support the use of ESAs [23].

Species Dogs or miniature horses only

Dogs or miniature horses only

Any

Any

Any

Term Service Animal

Psychiatric Service Animal

Emotional Support Animal

Therapy Animal

Pet

Owner

Various (can be used in large group settings or individual psychotherapy)

Individual owner with the psychiatric disability Individual owner with the psychiatric disability

Who is helped Individual owner with the disability

No

Animal and handler trained in obedience and socialization

Training required Individually trained to assist one person Individually trained to assist one person No Yes, related to the owner’s psychiatric disability No, provides emotional comfort, well-being, support, or companionship No, provides emotional comfort, well-being, support, or companionship No, provides comfort and companionship to owner

Performs specific task Yes, related to the owner’s disability

No

No, used to mitigate suffering/ illness, but not legal disability

Yes, disability from psychiatric illness Yes, disability from psychiatric illness

Mitigates an individual’s disability Yes, any disability under the ADA

No

No

No

Yes

Legal right to enter public establishment Yes

No

Yes

No

Yes, with some restrictions

Legal right to enter medical settings Yes, with some restrictions

Table 9.3  Description of animals used in therapeutic and non-therapeutic settings from the APA resource document on ESAs [23]

None

State and local laws

FHA, ACAA, IDEA, state & local laws

ADA

Regulations ADA

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Proponents of ESAs often assert benefits for conditions like anxiety or depression based on the companionship or sense of security that these animals provide their human owners, while opponents argue that lax regulation and lack of standardized certification procedures ultimately place an unfair burden on others who are asked to accommodate them. For example, the Air Carrier Access Act (ACAA) initially classified ESAs as service animals, which allowed owners to take their ESAs aboard with them into the cabin, avoiding the usual fees associated with transporting pets as cargo. However, concerns regarding safety (e.g., large increases in animal bites and waste) and exploitation by passengers (e.g., transportation of kangaroos, peacocks, and turkeys; transporting multiple animals at once) ultimately led the Department of Transportation to revise its ACAA regulation to exclude ESAs as service animals in December 2020 [25]. Like all evaluations for third parties, psychiatrists considering writing a letter in support of a patient obtaining an ESA or service animal should be aware of the potential for role conflict. Because these evaluations are disability evaluations, they should be conducted rigorously, and the psychiatrist should consider their own biases and the potential impact that an assessment that does not support the patient’s desire for an ESA or service animal may have on the therapeutic relationship [23].

Summary Most psychiatrists will be tasked with completing an evaluation for an outside party during the course of their career. The variety of possible evaluations ranges from a treating psychiatrist writing a letter in support of a patient’s emotional support animal to a forensic psychiatrist determining whether a patient is competent to stand trial. Equally broad is the range of potential ethical or legal questions that psychiatrists may encounter when conducting these evaluations. Uncertainty regarding conflicts of interest, the definition of the physician-patient relationship, and medical ethics can arise. The breadth of these evaluations and the federal, state, and local laws that govern them make it difficult to offer universally applicable instruction to psychiatrists who are completing them. Perhaps ironically, the lone consistent principle is that psychiatrists should endeavor to familiarize themselves with the specifics of the situation they are facing. This includes clarifying exactly what question their examination is supposed to answer, the legal duties entailed toward the patient, the third party, or society generally, and the extent of any physician-patient relationship that may be established by the evaluation they are completing.

References 1. Gough HG.  The California Psychological Inventory. Testing and assessment in counseling practice, 2nd ed. Contemporary topics in vocational psychology. Mahwah, NJ: Lawrence Erlbaum Associates Publishers; 2000. p. 45–71.

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2. Hathaway SR.  Minnesota multiphasic personality inventory. Minneapolis: University of Minnesota: Distributed by National Computer Systems, Inc; 1982. 3. Glancy GD, Ash P, Bath EP, Buchanan A, Fedoroff P, Frierson RL, et al. AAPL practice guideline for the forensic assessment. J Am Acad Psychiatry Law. 2015;43(2 Suppl):S3–S53. 4. Institute. CLSLI.  Doctor-Patient Privilege; October 2022. https://www.law.cornell.edu/wex/ doctor-­patient_privilege. 5. Gillon R. “Primum non nocere” and the principle of non-maleficence. Br Med J (Clin Res Ed). 1985;291(6488):130. 6. Appelbaum P. A theory of ethics for forensic psychiatry. J Am Acad Psychiatry Law Online. 1997;25(3):233–47. 7. Strasburger LH, Gutheil TG, Brodsky A. On wearing two hats: role conflict in serving as both psychotherapist and expert witness. Am J Psychiatry. 1997;154(4):448–56. 8. Association. AM.  Opinion 1.2.6. Work-related & independent medical examinations. Code of medical ethics of the American Medical Association. American Medical Association Press; 2022. 9. Ameis A, Zasler ND. The independent medical examination. Phys Med Rehabil Clin N Am. 2002;13(2):259–86. ix 10. Wong BS, Woo JE, Kothari S. Ethics and law. Brain Injury Med. Elsevier. 2021:380–4. e2. 11. Gold LHMJ, Buck JB. Psychiatric disability evaluations, workers’ compensation, fitness-forduty evaluations, and personal injury litigation. In: Richard Rosner CS, editor. Principles and practice of forensic psychiatry. 3rd ed. Boca Raton, FL: Taylor & Francis Group; 2017. 12. Rondinelli RD, Genovese E, Katz RT, Mayer TG, Mueller KL, Ranavaya MI, et al. AMA guides to the evaluation of permanent impairment. 6th ed. American Medical Association; 2021. 13. Legal Information Institute. CLSLI.  Expert Witness. https://www.law.cornell.edu/wex/ expert_witness. 14. Law AAoPat. Ethics Guidelines for the Practice of Forensic Psychiatry 2005. https://www. aapl.org/ethics.htm. 15. Association AM. Opinion 9.7.1. Medical testimony. Code of Medical Ethics of the American Medical Association. American Medical Association Press; 2022. 16. Heinlen JM. Tort law and the psychiatrist. In: Richard Rosner CS, editor. Principles and practice of forensic psychiatry. 3rd ed. Boca Raton, FL: Taylor & Francis Group; 2017. 17. Administration SS. Disability evaluation under Social Security (Blue Book) (SSA Publication No. 64-039).2021. https://www.ssa.gov/disability/professionals/bluebook/. 18. Haupt MK. Workers’ compensation law & the remedial waiver. Barry Law Review; 2016:21. 19. Insurance TDo. Workers’ compensation: employer coverage requirements; 2023 [updated February 13, 2023. 20. Larson LL, et al. Workers’ compensation law: cases, material, and text. 4th ed. Newark, NJ: Matthew Bender and Company; 2008. 21. Individuals with disabilities and their assistance animals: a brief history and definitions. ADA Knowledge Translation Center Legal Brief No. 2.3.; 2019. 22. Justice. USDo. Americans with Disabilities Act Title II Regulations; 2016. https://www.ada. gov/law-­and-­regs/title-­ii-­2010-­regulations/. 23. Renee L, Binder MD, Tanuja Gandhi MD, Meera Menon MD, Audu A, Nesbit A, Ridout KK, et al. Considerations for the writing of certification letters endorsing use of emotional support animals. Psychiatr Serv. 2023;74:963–9. 24. Development. USDoHaU. “Assistance Animals.”; 2020. 25. Transportation USDo. “U.S.  Department of Transportation Announces Final Rule on Traveling with Air Service Animals.”; 2020. https://www.transportation.gov/briefing-­room/ us-­department-­transportation-­announces-­final-­rule-­traveling-­air-­service-­animals.

Ethics

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Karsten M. Heil and Charles Dike

Clinical Vignette You are a committee member on your state’s medical board. You are asked to review a case of possible unprofessional behavior by a physician who is licensed to practice in your state and decide what sanctions, if any, this physician should face. Dr. James has been practicing medicine for 10  years. A few months ago, the medical licensing board in your state received a complaint by the author of a scholarly article published decades ago. The author is alleging that Dr. James plagiarized one of his articles and claims that this is not the only instance of plagiarism by Dr. James. The board has decided to investigate the claim. You review extensive evidence which clearly shows that Dr. James plagiarized several scholarly articles when he was a medical student. He took scholarly articles previously published by other researchers, changed data in the articles, and then republished them under his own name in other journals. He did this several times over the span of several years while in medical school, but never repeated this behavior after completing medical school. A review of his recent clinical work does not reveal any substandard clinical care. In fact, many patients sent letters of support to the medical board advocating on Dr. James’s behalf stating that he is an excellent doctor and that they are very happy with his care. In considering this situation, would you vote in favor of Dr. James being sanctioned by the medical board? If so, how severe should the sanctions be and what specific sanction(s) would you impose? K. M. Heil (*) Locardius Psychiatry PC, Los Gatos, CA, USA e-mail: [email protected] C. Dike Law and Psychiatry Division, Yale School of Medicine, New Haven, CT, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 T. Wasser, R. Zhong (eds.), Psychiatry and the Law, https://doi.org/10.1007/978-3-031-52589-6_10

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What Really Happened? In the 1989 case Alsabti v. Board, the Supreme Judicial Court of Massachusetts (the highest court in the Commonwealth of Massachusetts) decided [1] on a very similar issue: Dr. Alsabti graduated from medical school in 1980 and completed his internship at a hospital in Massachusetts. He had not practiced medicine in Massachusetts since completing his internship but had been practicing medicine in Pennsylvania. In 1979, prior to graduating from medical school, four scholarly articles in which he was lead or coauthor were published in medical journals. These articles were almost identical to previously published work by other scholars. The differences in the data and wording between the original articles and Dr. Alsabti’s articles were minor and considered immaterial by the Massachusetts Board of Registration in Medicine (the Board) that was investigating the case. Three of the four articles had been previously published by other authors in different medical journals than the journals Dr. Alsabti published his articles in. The fourth article he published had been filed as part of another researcher’s grant application. Dr. Alsabti did not cite the original authors in his manuscripts and could not explain to the Board the substantial similarities between his articles and the previously published work. All four of the articles in question were submitted in 1978. Dr. Alsabti argued that he was not enrolled in medical school at that time (it is unclear why he was not enrolled 2 years before graduation), nor was he yet a physician. He also stated that he had not counted the published articles toward any requirements to obtain his medical degree and, therefore, should not be sanctioned by a medical licensing authority. The Board received letters from over 20 of Dr. Alsabti’s patients describing him in uniformly positive terms. Board members did not challenge his clinical care or professional conduct during his time as a practicing physician. The Board nonetheless decided to revoke Dr. Alsabti’s state medical license after concluding that he lacked the “good moral character” that Massachusetts law required for practitioners of medicine. Board members argued that his misconduct formed a pattern and was not isolated and that he had likely gained a dishonest advantage in employment following medical school due to his misconduct. Further, the Board argued that he had harmed the public by damaging the integrity of the pool of common scientific knowledge by making it appear as though there were more evidence to support the original work he plagiarized than was merited based on the available empirical work of others. Dr. Alsabti appealed the revocation of his license to the Supreme Judicial Court of Massachusetts, which affirmed the Board’s decision. The court found the Board’s arguments to be sound and, citing prior legal precedents, elaborated on the importance of physicians’ integrity [2] and good moral character [3] for the promotion of public health, welfare, and safety. They wrote: “The board was clearly justified in assessing as serious Alsabti’s disregard at that time for basic fairness to competitors and for the possible consequences to patients who might be exposed to medical treatment by physicians relying on experiments Alsabti purported to have done but never did” [1].

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Testimonials from Dr. Alsabti’s patients were not taken into consideration by the Board, and the Massachusetts Supreme Judicial Court held that the Board was not required to do so.

 essons from the Case: Ethics, Morality, Law, L and the Medical Profession One of the major reasons for investing the government with the power to decide who can and cannot practice as a physician is the protection of patients from incompetent providers who might harm their patients [4]. Dr. Alsabti’s medical skills were not questioned in this case, however. Instead, his unethical behavior itself, which was also illegal in Massachusetts, was deemed to be damaging to the public’s health, welfare, and safety. The damage was viewed as so severe that the loss of his medical license—the ultimate power a state licensing board has—was deemed appropriate. There is copious debate in philosophy about the delineation of ethics and morality. One useful way to think about the difference is to think of morality as the personal understanding of right and wrong, and of ethics as a more systematized way of thinking about how our understanding of right and wrong should guide individual and group behavior [5]. The relationship between law and ethics is complex. While there is great overlap, they are not interchangeable—what is ethical may be illegal and vice versa. For example, civil protests by a psychiatrist may be illegal if there is a law banning protests, but it may not be unethical, especially if the protests are in support of patients. On the other hand, a psychiatrist engaging in a sexual relationship with a patient’s consenting adult relative would not be illegal, but it would be considered unethical. In Dr. Alsabti’s case, his behavior was both unethical and illegal. As demonstrated by Alsabti v. Board above, unethical behavior by physicians can have severe professional consequences. In the USA, each state has jurisdiction over the licensure of medical professionals practicing in its territory. It is therefore important to keep in mind that while many of the laws and rules governing licensure are very similar between states, they are not the same. Alsabti’s plagiarism contravened the “good moral character” that Massachusetts law requires physicians to possess in order to gain or maintain their state medical license. Courts interpreting legal standards such as “good moral character” can rely on their own understanding of such terms but can also look at what they perceive the ethical standards of the group in question (here physicians) to entail. Nongovernmental entities such as specialty boards, e.g., the American Board of Psychiatry and Neurology (ABPN), also require high standards of ethical behavior from everyone seeking or holding certification and have procedures to sanction unethical behavior up to the revocation of board certification [6]. Likewise, professional bodies, such as the American Medical Association (AMA), American Psychiatric Association (APA), and American Academy of Psychiatry and the Law (AAPL), publish and regularly update codes of ethics that they hold as binding for physicians [7], psychiatrists [8], and forensic psychiatrists [9], respectively.

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These associations have very little formal power to sanction offending members other than revoking their membership, which, unlike state medical licenses or board certifications, is generally not required for clinical practice. Indirectly however, being sanctioned by a professional organization could have significant consequences for practice and could embolden a complainant to seek redress through litigation in civil court. Additionally, physicians who practice in subspecialty areas cannot afford to ignore their ethical guidelines even if they do not belong to the subspecialty organization. For example, in one such case in 1996, the Supreme Judicial Court of Massachusetts held that the ethical guidelines of AAPL applied to a psychiatrist who was practicing in a forensic role, even though the psychiatrist was not board certified in forensic psychiatry and not a member of AAPL [10]. In this chapter, we will highlight ethical guidelines relevant to the practice of psychiatry in general, as well as introduce those specific to forensic psychiatry. We will discuss some of the key ethical issues addressed by the AMA, APA, and AAPL ethical codes.

Principles of Medical Ethics as Applicable to Psychiatry The ethics of medical practice date back to the classical Hippocratic Oath (said to have originated in the late fifth century BC) that, to this day, guides the ethical practice of physicians in one form or another. The bond between the physician and patient is highlighted by quotes from this text such as: “I will keep them (the sick) from harm and injustice,” and “Whatever houses I may visit, I will come for the benefit of the sick, remaining free of all intentional injustice, of all mischief and in particular of sexual relations with both female and male persons, be they free or slaves” [11]. The Oath further defines this relationship as including a commitment to: beneficence (doing the best physicians can for the patient’s benefit), non-maleficence (keeping the patient from harm), and justice (protecting the patient’s legal and civil rights). It also states that these commitments should not be influenced by the patients’ socioeconomic status, race, ethnicity, or gender (“be they free or slaves”). Hence, the Hippocratic Oath established the primacy of the patient’s benefit in all physician-patient interactions. Since its founding in 1847, the American Medical Association has published a Code of Medical Ethics to which its members commit themselves and that seeks to guide all members of the medical profession [7]. The code, comprised of the principles of medical ethics and the opinions of the AMA’s Council of Ethical and Judicial Affairs (CEJA), is updated regularly to address the changing nature of medicine and was last updated in June 2016. The AMA’s principles of medical ethics [7] begin by reminding physicians of the ethical “responsibility to patients first and foremost, as well as to society, to other health professionals, and to self.” These principles “are not laws, but standards of conduct that define the essentials of honorable behavior for the physician.” They are

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the foundation of the ethical guidelines for all AMA-affiliated specialty medical organizations. The principles state that a physician shall: 1. Provide competent and compassionate care, and respect human dignity and rights. 2. Uphold the standards of professionalism, be honest, and report physicians who are incompetent or deficient in character. 3. Respect the law but also seek to change laws that are contrary to the best interests of patients. 4. Safeguard patients’ privacy within the constraints of the law. 5. Continue to further their knowledge and remain committed to medical education. 6. Be free to choose whom to treat and in which setting they want to practice, except in emergencies. 7. Participate in activities that improve the community and public health. 8. Regard responsibility for the patient as paramount. 9. Support access to medical care for all people [7]. These principles of medical ethics can be summarized as reflecting the following four ideals—justice (fairness), beneficence (benefitting the patient), non-­maleficence (do no harm), and autonomy (respect for persons) [12]. The AMA ethical rules are far reaching and their application in individual cases can be quite complicated. They would be difficult to interpret for and apply to the practice of psychiatry without further elaboration. As a result, the APA developed annotations to the principles of medical ethics that are applicable to psychiatry [8]. For ease of discussion, we have grouped psychiatrists’ ethical guidelines into three areas: (1) the physician-patient relationship, (2) psychiatrists’ relationships with other providers and third parties, and (3) other ethical duties of psychiatrists.

The Physician-Patient Relationship The physician-patient relationship is the cornerstone of psychiatric practice. As noted in the APA Commentary on Ethics in Practice (Topic 3.1.1), “Patients often lack medical expertise and sometimes struggle with symptoms that adversely affect their autonomous decision-making; the psychiatrist is responsible for rendering medical care in the patient’s best interest while respecting the patient’s goals and autonomy.” The relationship is a “collaborative endeavor between two autonomous individuals … every effort should be made to have the relationship begin by mutual consent” [13]. Important elements of this relationship include: • All treatment should be voluntary and provided only after the informed consent of the patient has been secured, except in emergencies or when a patient lacks the capacity to give informed consent to treatment. Even when such exceptions apply, it is unethical to certify the necessity of involuntary treatment or detention without a personal examination of the person in question.

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• The care provided to patients should be competent. This means psychiatrists should not provide services for which they are not qualified. If necessary, the psychiatrist should consult with, or refer the patient to, a more qualified colleague. • Treatment should be based on the best available evidence and science. When established treatments have failed, psychiatrists may offer non-established or novel interventions. Risks and benefits of treatment, risks and benefits of ­alternatives to such treatments, as well as risks and benefits of no treatment must be discussed with the patient to empower the patient to be able to provide informed consent. Offering treatments that lie outside of the scientific consensus, such as unapproved chemical compounds, is problematic except within the context of clinical trials. • Because of the highly personal and intensely emotional nature of the physician-­ patient relationship in psychiatry, proper boundaries should be maintained at all times. Engaging in any form of sexual intimacy with one’s patient or former patient is unethical (and in some States illegal). This ethical injunction extends to a patient’s close relatives and friends. • Address boundary and privacy issues when using the internet or other electronic means of communication. Psychiatrists should inform patients of the appropriate use of these technologies. Their use in emergency situations, if applicable, should be discussed and documented. Psychiatrists should be alert to the risk of HIPAA (The Health Insurance Portability and Accountability Act of 1996) violations when using electronic means to transmit patients’ personal information. Likewise, the dangers of boundary violations are high when patients can easily access a psychiatrist’s personal information through social media or in other places online. Due to rapidly advancing and changing technologies, the ethics in this area are likely to evolve. Psychiatrists should be vigilant when using novel communication technologies and consult APA ethical guidelines as necessary. • It is ethical to charge for missed appointments or appointments not canceled within a stipulated period in advance as long as that policy was communicated to the patient beforehand. • It is paramount that patients’ privacy be protected. Further, any clinical information used in teaching or scholarly writing must be disguised to effectively conceal patients’ identities. However, in certain clinical situations, breaking confidentiality is not only permissible but required. For example, when a patient’s behavior presents a high risk of danger to the patient or other persons, breaking confidentiality is permissible (and may be required) to avert danger. • It is ethical to refuse psychiatric treatment of persons who are not suffering from a mental illness amenable to treatment. • If a patient’s care is transferred to another provider, the psychiatrist should cooperate with the patient’s request to share information with and release files to the new provider [8, 13]. Important ethical issues that frequently come up during clinical training include: maintaining boundaries, when to break confidentiality, and how to handle situations where involuntary treatment or detention may be warranted.

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Maintaining clear boundaries with your patients is meant to protect both you and the patient from harm and increase the chances of treatment success. Compassionate care should not be confused with becoming emotionally involved with a patient. An emotionally involved psychiatrist could refrain from asking a patient uncomfortable questions or providing vital but distressing information to the patient for fear of hurting the patient’s feelings, situations that could be harmful to the patient in the long run. On the other hand, the quality of care provided by psychiatrists is positively influenced by compassion and the establishment of clear boundaries between the psychiatrist and the patient. Where these boundaries lie in individual cases is often nuanced and may be influenced by culture and personal style. There are some hard lines, however. For example, sex with a current or former patient is unethical in all circumstances. According to the APA, sex with a former patient is always unethical regardless of how much time has elapsed since treatment was discontinued. Although some scholars disagree with this absolutist stance [14], there is wide agreement on this point in the US psychiatric community. Another important issue of great concern involves accepting large financial gifts from current or former patients—it is generally viewed as unethical and should be avoided. With regard to confidentiality, psychiatrists owe an ethical obligation not to reveal a patient’s personal information without the patient’s informed consent, as well as a legal duty to protect a patient’s privacy (APA Commentary on Ethics in Practice, Topic 3.2.1 [13]). For example, when discussing cases with colleagues not involved in a patient’s care, it is important to maintain privacy by effectively disguising the patient’s identity even if the clinical case is somewhat altered in the process. Unlike ethical obligations, there are substantial differences in the legal duty to protect a patient’s privacy depending on the jurisdiction a psychiatrist is practicing in, as well as the role the psychiatrist is serving (e.g., treating psychiatrist versus forensic psychiatric evaluator). These legal obligations are discussed in greater detail in this text’s chapter on confidentiality. Involuntary treatment or detention is one of psychiatry’s most controversial topics, not least because of historically rampant abuse of involuntary treatment procedures by psychiatrists and society [15]. Psychiatrists recognize that enforced treatment contains an inherent tension among several ethical values: respecting the individual’s autonomy, providing care for that individual, and protecting the community (APA Commentary on Ethics in Practice, Topic 3.2.5) [13]. In psychiatric emergencies, such as threats of harm to oneself or others, the psychiatrist has an ethical obligation “to ensure the safety of the public or the care and protection of patients through involuntary psychiatric treatment” [13]. Making use of involuntary treatment modalities requires sensitivity on the part of the psychiatrist to balance these competing values. When involuntary treatment is imposed, it should “ensure the least restrictive clinically appropriate alternative and, to the extent possible, respect the informed consent process and the patient’s decision-making capacity” [13]. However, there are several notable psychiatrists who disagree with the concept of involuntary treatment or commitment in principle (Thomas Szasz is a well-known example) [15].

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One of the important ethical standards of the APA is the requirement that a psychiatrist may certify a patient for involuntary commitment or treatment only after he or she has personally evaluated the patient [8]. Psychiatry residents, depending on their licensing status and the jurisdiction in which they practice, often have the legal authority to certify a patient for involuntary commitment. Residents can find themselves in clinical situations where other medical staff—including more senior colleagues or supervisors—sometimes pressure residents to certify a patient for involuntary commitment without a personal examination of the patient. Residents have both a legal and an ethical obligation to resist such pressures. Telepsychiatry—the practice of psychiatry via telecommunications technology without direct face-to-face interaction between psychiatrist and patient—has steeply risen since the COVID-19 pandemic. Its inherent benefits and limitations pose new ethical (as well as legal) questions about how and when it should be used and when direct face-to-face evaluation is required. This area of ethics is actively developing [16].

 sychiatrists’ Relationship with Other Providers P and Third Parties The nature of psychiatric practice often requires that psychiatrists work with colleagues from different disciplines who have their own ethical obligations. In addition, an increasing number of psychiatrists do not work directly with patients but with third parties such as insurance companies, the legal and correctional system, the military, remotely advising other medical providers, and so on. These situations create unique challenges that require psychiatrists to develop clear ethical guidelines to protect patients and society. Important considerations include: • Referrals to other providers, psychiatric or otherwise, should only be made to persons who are competent to deliver the necessary treatment [13]. • Consultants should only be given information relevant to the specific situation (the “minimum necessary” information needed to provide competent consultation) [13]. • Information provided to other health providers, employers, insurance companies, or other third parties must be truthful [13]. • Progress notes should only contain the information necessary to ensure good continuity of care. Including nonessential information in progress notes can put the patient’s privacy at risk and make successful continuity of care more difficult [13]. • A psychiatrist can be reimbursed for providing supervision to other providers (e.g., by charging an hourly rate or a flat fee for the supervision) [13]. • Fee splitting, where other providers pay a percentage of their fees to a referring or consulting psychiatrist, is unethical. The concern with fee splitting is that it could lead to an increase in inappropriate referrals to the provider as the referring

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psychiatrist would obtain financial benefit with each referral (and thus would be incentivized to increase the number of referrals made) [13]. • If a psychiatrist takes on a supervisory role for non-physician professionals (or medical trainees), the psychiatrist must ensure that they spend adequate time to ensure effective supervision; the psychiatrist cannot act as a mere figurehead. Further, matters requiring professional medical judgment must not be delegated to nonmedical professionals (e.g., delegating the decision about what medication to prescribe to a social worker) [13]. • Psychiatrists are mandated to protect patients from impaired or incompetent physicians and non-physician mental health professionals. If possible, these issues should first be addressed through informal processes. If those efforts are unsuccessful, psychiatrists should address the issue through other appropriate channels such as the state’s impaired physician program, the state medical board, the chief of the service/hospital, hospital medical staff procedures, or other available routes (APA Commentary on Ethics in Practice, Topic 3.3.5) [13]. • Relationships with pharmaceutical and other industries should be handled with caution. At a minimum, potential conflicts of interest must be disclosed to patients and in public speeches and writings, even if the psychiatrist feels that these are inconsequential [8, 13]. Some of the ethical duties listed earlier provide a unique challenge to medical students and trainees because of the power differential they face relative to their supervisors. A related problem is the case of a supervisor who is intoxicated or otherwise not providing competent care. While the power differential makes it especially difficult for trainees to report unethical and/or incompetent behavior of supervisors, they are nonetheless obligated to do so. Every training program should have procedures in place that encourage trainees to report unethical behavior of supervisors without fear of retribution. In recognition of these challenges, it is the ethical responsibility of psychiatrists to ensure that trainees are treated with respect in an environment conducive to learning. It is not ethically permissible for a supervisor to sign notes or orders written by trainees absent a supervisory relationship.

Other Duties of the Ethical Psychiatrist • When working in an organized system of care, the psychiatrist must communicate to the patient certain requirements of the organization such as treatment restrictions or triage protocols. The psychiatrist must also help identify treatment alternatives outside of their own system of care if it is more beneficial (or more affordable) for the patient’s treatment [13]. • It is unethical for a psychiatrist to publicly offer a professional opinion on persons (including public figures) whom the psychiatrist has not personally examined and from whom the psychiatrist has not obtained authorization to disclose a professional opinion about their behavior, including their mental state. This is

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called the Goldwater Rule (named after Barry Goldwater, U.S. presidential candidate in 1964, whose mental state many psychiatrists publicly opined about without having performed a direct psychiatric examination of Mr. Goldwater). However, there has recently been active debate on the application and boundaries of this rule [17]. Law breaking that bears directly on a psychiatrist’s practice, such as falsifying medical records, submitting a false bill, and providing false documents to excuse a patient from obligations, is unethical. However, breaking laws that bar civil protests may not be unethical, even if illegal [13]. Psychiatrists should not contribute to discrimination based on ethnic origin, race, sex, creed, age, socioeconomic status, sexual orientation, or gender identity [13]. Psychiatrists should not participate in legally authorized executions [13]. Psychiatrists should not participate directly or indirectly in interrogations of those detained by law enforcement or intelligence agencies [8, 13].

Ethical Guidelines for the Practice of Forensic Psychiatry The American Academy of Psychiatry and the Law’s (AAPL) ethical guidelines begin by noting that the unique intersection of psychiatric practice and the law exposes forensic psychiatrists to many potential conflicts. AAPL ethical guidelines define forensic psychiatry as “a subspecialty of psychiatry in which scientific and clinical expertise is applied in legal contexts involving civil, criminal, correctional, regulatory or legislative matters, and in specialized clinical consultations in areas such as risk assessment or employment” [9]. These ethical guidelines apply to all psychiatrists practicing in a forensic role. They are intended to “supplement the Annotations Especially Applicable to Psychiatry of the American Psychiatric Association to the Principles of Medical Ethics of the American Medical Association” [9]. The traditional physician-patient relationship is different in a forensic psychiatric context. Consider the case of a forensic psychiatrist hired by a defense attorney or the court to evaluate an individual accused of a criminal offense. Here, the psychiatrist’s primary duty is to the hiring attorney or the court and not the defendant because their primary role in the legal process is to contribute to the administration of justice. This is very different from traditional psychiatric practice in which the psychiatrist’s primary duty is to the patient. However, if the defendant expresses suicidal or homicidal ideation during a forensic evaluation, the psychiatrist must shift focus, put on a doctor-patient hat, and act to protect the defendant and others from harm. This careful balancing of roles highlights the need for additional ethical structures when engaging in forensic psychiatric practice. One of the paramount issues at play in forensic psychiatry is managing dual agency (serving two agencies or serving in two roles at the same time), given the prominent role of third parties in forensic assessments. Other core ethical principles that are crucial to forensic psychiatric practice and further described in the AAPL

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guidelines include informed consent, confidentiality, honesty, and striving for objectivity.

Dual Agency The multiple overlapping roles that forensic psychiatrists serve lead to competing commitments and obligations. Psychiatrists practicing outside of a forensic context have a primary, but not absolute, duty to their patients. However, forensic psychiatrists do not act within a traditional physician-patient relationship in much of what they do. For example, psychiatrists working in a forensic hospital or correctional facility are often asked to provide reports to the courts and may testify in court in cases involving their patients. Their testimony (and reports) could help or harm their patients. In these complicated circumstances, when a treating psychiatrist provides information in court on a patient’s diagnosis, treatment provided, and response to treatment only, the psychiatrist is serving as a fact witness, as they are solely testifying about their past experiences working with the patient in a clinical setting. However, when the same psychiatrist forms an opinion regarding the patient’s dangerousness or risk of engaging in criminal behavior based on psychiatric data and the additional collateral information available, the psychiatrist is acting as an expert witness (as they are using their psychiatric expertise to form an opinion about the patient) and, in this case, has now become a dual agent, working both for the patient and the legal system. AAPL ethics recommend that treating psychiatrists should avoid acting as forensic experts in relation to patients they are treating (whenever possible) in order to avoid inherent biases that could influence their opinion. It is, however, not unethical to do so and may be necessary in certain situations (e.g., if the psychiatrist is practicing in a rural area without proximally located colleagues who could perform the forensic evaluation instead). The psychiatrist must carefully balance these competing roles without acting unethically. Similar role conflicts often arise with psychiatrists working in correctional and military settings where there are limits on what kind of information can be kept confidential between the psychiatrist and the patient. The most common dual agency issue that occurs in general psychiatric practice involves completing Social Security (or private insurance company) disability forms for patients. Others include Workmen’s Compensation forms and fitness for duty evaluations. In these situations, treating psychiatrists are asked to state their professional opinion regarding their patient’s ability to perform certain tasks, armed with only that information provided by the patient. The ethical values of honesty and striving for objectivity call for an unbiased assessment of the patient’s ability, a very difficult task indeed, especially if the psychiatrist’s opinion conflicts with the patient’s desire. The risk of rupturing the therapeutic alliance is high.

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Informed Consent and Confidentiality Unlike traditional psychiatric practice, what is discussed between a forensic psychiatrist and an evaluee is generally not protected by traditional physician-patient confidentiality. If the psychiatrist is hired by the evaluee’s own attorney, their discussions may be protected by an extension of the attorney-client privilege referred to as the “work product rule,” but this does not keep the information private from the hiring attorney or their co-workers. In addition, whatever information the evaluee presents may be discussed in open court or at deposition (a legal process where sworn testimony is provided to attorneys from both sides without a judge or jury present). The evaluee may be unaware of these potential disclosures before agreeing to a forensic evaluation. It is, therefore, the duty of the forensic evaluator to ensure the evaluee understands the limited nature of confidentiality in these assessments. The psychiatrist must inform the evaluee that the psychiatrist performing the evaluation is hired by a named third party (e.g., an attorney), the reason for the evaluation, and the limits of confidentiality described earlier. This should be done at the beginning of any forensic evaluation, with reminders during the assessment as necessary. Without these warnings, any consent given to the psychiatrist would not be considered an informed consent.

Honesty and Striving for Objectivity The unique adversarial nature of the US legal system which pits two opposing sides against one another creates inherent tensions for a psychiatrist hired by one side in a legal dispute. The desire to “win” the case increases the potential for unintended bias in psychiatrists practicing in US court systems, different from other countries without an adversarial judicial process [18]. Several of the ethical rules described earlier are meant to protect the forensic psychiatrist from becoming a “hired gun”— an expert who will say whatever is helpful to the hiring party. However, some unconscious bias is inevitable in any forensic evaluation. The US legal system attempts to balance this by allowing experts to be retained by both sides and by holding forensic experts to ethical standards such as those described by the APA and AAPL. A psychiatrist who strives for objectivity would render an honest opinion based on a personal examination of an individual, interview of all collateral sources as available and necessary, and review of all pertinent data related to the case. In addition, the psychiatrist should not alter or distort their professional opinion in support of the retaining attorney and should not agree to payment that is contingent on the outcome of the case. Further, the psychiatrist should state the limits of their opinion as necessary. For example, if the evaluee (or collateral sources) could not be interviewed after an “earnest effort” [9] to do so, it should be stated in the report because the absence of this information could limit the conclusions drawn from the evaluation.

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Other Ethical Issues Pertinent to Forensic Psychiatry • It is unethical to conduct a psychiatric evaluation of an individual charged with a crime before the person has had access to legal counsel, except in medical emergencies for the purposes of treatment. • Forensic psychiatrists may not bully, be rude, or use name-calling to obtain information from evaluees. However, persistent questioning about inconsistencies and the exploration of areas that make the evaluee uncomfortable are ethical and often warranted in forensic evaluations. • In cases where a psychiatrist is asked to assess material relevant to a legal case (such as medical records, correspondence, or police interrogation videos) but has not examined the evaluee in person, any opinion rendered must be qualified, indicating in reports and testimony that there was no personal examination. • It is unethical to change diagnoses or other major findings in a forensic report upon the request of an attorney in order to strengthen a case. It is permissible, however, to accept requests for changes in phrasing that make the expressed opinion clearer or more easily understandable to a nonpsychiatric audience. • It is unethical to claim expertise in areas where one does not have actual knowledge, skills, and experience [8, 9]. Take-Home Messages • Professional bodies such as the AMA, APA, and AAPL set forth ethical codes of conduct. They do not carry the direct force of law, but nonadherence to them can lead to severe professional and legal consequences including loss of medical licensure and board certification. These potential sanctions may be imposed even if one is not a member of any of these professional organizations, so it is important for all psychiatrists to familiarize themselves with these guidelines. • All psychiatrists are physicians first and all forensic psychiatrists are psychiatrists. That is why multiple codes of ethics often apply simultaneously to the same individual. • Tread carefully when you observe unethical behavior of others as you are obligated to address it and to report it if the problem persists. It is advisable to familiarize yourself with the reporting procedures of your training program or institution. • Forensic psychiatrists, especially when acting as forensic evaluators, face unique ethical challenges arising from their special role and the lack of a typical physician-­patient relationship. Forensic psychiatrists should strive for honesty and objectivity and resist pressures to sway their opinion in favor of the hiring party.

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References 1. Supreme Judicial Court of Massachusetts. Alsabti vs. Board of Registration in Medicine, 404 Mass. 547; 1989. http://masscases.com/cases/sjc/404/404mass547.html. Accessed 28 Feb 2023. 2. Supreme Judicial Court of Massachusetts. David A.  Levy vs. Board of Registration and Discipline in Medicine, 378 Mass. 519; 1979. http://masscases.com/cases/sjc/378/378mass519. html. Accessed 28 Feb 2023. 3. Supreme Judicial Court of Massachusetts. Sherwin H.  Raymond vs. Board of Registration in Medicine, 387 Mass. 708; 1982. http://masscases.com/cases/sjc/387/387mass708.html. Accessed 28 Feb 2023. 4. Federation of State Medical Boards. About Physician Licensure; 2023. https://www.fsmb.org/ u.s.-­medical-­regulatory-­trends-­and-­actions/guide-­to-­medical-­regulation-­in-­the-­united-­states/ about-­physician-­licensure/. Accessed 16 Jun 2023. 5. Gert B, Gert J. The definition of morality. In: Stanford Encycl Philos; 2020. https://plato.stanford.edu/entries/morality-­definition/. Accessed 28 Feb 2023. 6. American Board of Psychiatry and Neurology—Policies. https://www.abpn.com/about/policies/. Accessed 28 Feb 2023. 7. Council on Ethical and Judicial Affairs. American Medical Association. Code of medical Ethics; 2016. https://www.ama-­assn.org/about-­us/code-­medical-­ethics. Accessed 28 Feb 2023. 8. American Psychiatric Association. The principles of medical ethics with annotations especially applicable to psychiatry; 2013. https://www.psychiatry.org/FileLibrary/Psychiatrists/ Practice/Ethics/principles-­medical-­ethics.pdf. Accessed 28 Feb 2023. 9. American Academy of Psychiatry and the Law. Ethics guidelines; 2005. http://www.aapl.org/ ethics.htm. Accessed 28 Feb 2023. 10. Supreme Judicial Court of Massachusetts. Sugarman vs. Board of Registration in Medicine, 422 Mass. 338; 1996. http://masscases.com/cases/sjc/422/422mass338.html. Accessed 28 Feb 2023. 11. Edelstein L. The Hippocratic oath: text; translation, and interpretation. In: Cross cultural perspectives in medical ethics. 2nd ed. Baltimore: The Johns Hopkins; 1943. p. 3. 12. Beauchamp TL, Childress JF.  Principles of biomedical ethics. New  York, NY: Oxford University Press; 2013. p. 101–301. 13. American Psychiatric Association. APA Commentary on Ethics in Practice; 2021. https:// www.psychiatry.org/FileLibrary/Psychiatrists/Practice/Ethics/APA-­Commentary-­on-­Ethics-­ in-­Practice.pdf. Accessed 28 Feb 2023. 14. Appelbaum PS, Jorgenson L. Psychotherapist-patient sexual contact after termination of treatment: an analysis and a proposal. Am J Psychiatry. 1991;148:1466–73. 15. Szasz T. Involuntary mental hospitalization: a crime against humanity. In: Biomedical ethics and the law. Boston, MA: Springer; 1976. p. 151–71. 16. Trachsel M, Sedlakova J. Ethics of telepsychiatry versus face-to-face treatment: let the patients make their autonomous choice. J Med Ethics. 2022;48(1):32–3. 17. McLoughlin A.  The Goldwater rule: a bastion of a bygone era? Hist Psychiatry. 2022;33(1):87–94. 18. Timmerbeil S. The role of expert witnesses in German and U.S. civil litigation. Annu Surv Int Comp Law. 2003;9:163. Article 8.

Social Justice and Health Equity

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Carmen Black, Jessica Isom, and Ignacio Cerdeña

Clinical Vignette A clinical intake is performed at a large, prestigious academic medical center by a third-year psychiatry resident that is observed by other residents and faculty behind a one-way mirror. A 19-year-old male patient, AB, was referred from neurology to the psychiatry resident clinic to initiate psychotherapy for post-traumatic stress disorder. AB is experiencing nightmares and insomnia after experiencing gun violence and is now having increased seizure frequency. AB begins the interview by offering: “You won’t understand me. I only came because my uncle pushed me.” No one asks AB’s racial identity. His complexion is ambiguous. AB avoids eye contact, is withdrawn in posture, and wears the hood of his black sweatshirt pulled over his head. AB was raised in an urban neighborhood by his mother, who has cocaine use disorder. His father was absent. He recounts fights at school, juvenile court-ordered residential placement after these fights, and violence at home. He specifically recalls one incident of theft where he stole food from a convenience store because he was hungry. AB reports onset of his seizure disorder after being hit in the head with a baseball bat at age 14. Though quiet throughout the rest of the interview, AB increases the volume of his voice and becomes more animated when describing the shooting altercation. “They’d just shot me in the arm! I couldn’t even go to the hospital because they would’ve killed me if I went in that direction! My friend, he wouldn’t shoot them C. Black (*) · I. Cerdeña Department of Psychiatry, Yale University, New Haven, CT, USA e-mail: [email protected]; [email protected] J. Isom Department of Psychiatry, Yale University, New Haven, CT, USA Codman Square Health Center, Boston, MA, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 T. Wasser, R. Zhong (eds.), Psychiatry and the Law, https://doi.org/10.1007/978-3-031-52589-6_11

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back! That’s messed up.” He forms his hands into the shape of a gun when describing how his friend would not shoot at his assailants. Questions to Consider • How do clinicians safeguard neutrality when performing diagnostic evaluations of racially minoritized patients? • What are important systems- and provider-level factors to consider when clinicians perform a violence risk assessment for this patient? • AB first became animated when describing the gun violence incident. How does this behavior best inform your diagnosis and treatment plan? The introductory chapter of the text highlights forensic psychiatry skills that every practicing psychiatrist should know, especially in Tables 1.1 and 1.2. Many of these competencies are equally situated within a larger context of historical, structural, cultural, and ongoing medicalized racism which includes violence risk assessment, malingering, decision-making capacity, informed consent, and more. The many published statistics of racialized health disparities are retrospective in nature, as the harms to the patients already occurred long before the time of publication. Nonetheless, these harms can oftentimes be difficult to discern and therefore prevent unfolding health inequities in real-time, before the events are tabulated in a disparities paper. General and forensic practitioners striving to avoid racial bias must develop techniques at each stage of an assessment to protect the psychiatrist from propagating, although not entirely, the influences of structural and cultural racism in real-time professional practice. In this chapter, we have intentionally refrained from reiterating well-known statistics of health inequity harming racially minoritized patients in the practice of psychiatry and the law. Rather, we will focus on advancing health equity practices, which transcends the limitations of citing a litany of disparities research by tangibly encouraging racial equity-oriented forensic practices to racially minoritized evaluees. On a systemic level, this chapter will explore how multi-level racism and white normativity are deeply entrenched within the foundation of American psychiatry ubiquitously and the practice of forensic psychiatry today. On a practitioner level, we will then discuss how mitigating the impact of racism in relation to the law is made more difficult in real-time forensic practice through the influence of aversive and colorblind racism on practitioners. Once we illuminate the presence of a social justice focus on racial dynamics within forensic psychiatry, we will support practitioner discernment of real-time opportunities to consciously transcend aversive and colorblind racism. These strategies will shift students, trainees, and practitioners towards critically engaging how racially biased, normative knowledge within psychiatry and the law synergize with counterproductive racial ideologies to perpetuate racism within the forensic evaluation process. Developing learners’ and practitioners’ capacity for identifying real-time clinical racial bias is a requisite preceding step towards implementing multi-level health equity strategies and associated knowledges available

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Fig. 11.1  Critical engagement of normative versus equitable knowledges in real-time

elsewhere throughout the field. Figure  11.1 illustrates how these concepts are interconnected when taking a critically engaged approach to learning about these domains.

Interrogating the Neutrality of Normative Knowledges Society grants healthcare providers and academic clinicians the power to construct the medical knowledges represented in medical education, research, and patient care. Similarly, society grants politicians and lawyers the power to construct and interpret the governing laws of the United States. However, the foundations of these knowledges were overwhelmingly influenced by the social perceptions, political and economic interests, and racial biases of privileged white people, especially white men. This influence occurred through centuries of white racial dominance nourished by a false belief in white supremacy and systematic legal and social exclusion of racially minoritized persons within the United States. Thus, the American healthcare and legal system were foundationally influenced by the non-­ neutral interests of cisgender, heterosexual, able-bodied, white men of privilege [1]. As one macro example within the American judicial system, there have been 116 US Supreme Court justices since its founding in 1789. However, the Supreme Court was singularly dominated by white men of privilege until the first Black Supreme

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Court Justice, Thurgood Marshall, in 1967, and only four total justices have not been white [2]. A critical lens applied to the body of knowledge constructed within forensic psychiatry reveals the need to interrogate how oppressive racial ideologies manifest within medical and legal knowledges and norms contributing to social injustice. These knowledges and social norms perpetuate and uphold manifestations of Anti-Black racism and other gendered, ableist, ageist, socioeconomic, and racialized forms of discrimination [3]. In addition, these flawed foundational knowledges continue to perpetuate the health inequity that we are combatting today [4]. Unlike centuries before, however, the American healthcare system is increasingly denouncing these often critically uninterrogated forms of racism through numerous public apologies and mission statements to increase diversity tied to equity and inclusion efforts. Forensic psychiatry, too, is beginning to dedicate attention to the role that race and racism may serve in forensic psychiatric assessments [5, 6]. Despite recognition of these biases and robust health equity recommendations for improving practice, thus far clinicians have insufficiently incorporated and executed racial equity principles into their daily practice in a manner capable of producing meaningful improvement. To the contrary, recent evidence suggests that racialized health inequity and diverse representation of physicians may be getting worse rather than better [7, 8]. What factors might be sustaining that disconnect? This chapter aims to help students, trainees, and practitioners identify our own roles in perpetuating aversive and colorblind racism within real-time evaluations.

 eterrents from Detecting Racism in Real-Time: Aversive D and Colorblind Racism Aversive racism manifests during instances when healthcare professionals, in this case forensic psychiatrists, engage in behaviors or uphold policies and practices that manifest racism while being starkly resistant to acknowledging how one’s own thoughts, behaviors, and policies embody internalized racism. The following passage from Dovidio and Gaertner lends an expert, concise definition of aversive racism in comparison to more traditional, obvious forms of racism [9]: Dominative racism is the “old-fashioned,” blatant form… Aversive racists, in comparison, sympathize with victims of past injustice, support the principle of racial equality, and regard themselves on nonprejudiced, but, at the same time, possess negative feelings and beliefs about blacks, which may be unconscious. Aversive racism is hypothesized to be qualitatively different than blatant, “old-fashioned,” racism, is more indirect and subtle, and is presumed to characterize the racial attitudes of most well-educated liberal whites in the United States. Nonetheless, the consequences of aversive racism… are as significant and pernicious as those of the traditional, overt form.

While aversive racism unconsciously deters providers from making explicitly racialized and/or racist statements during clinical and professional practices, colorblind racism offers providers convenient mechanisms to endorse racist ideology

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and/or consider racist rationales without ever overtly espousing racism. The four mechanisms of colorblind racism in healthcare include (1) naturalizing the existence of an inequitable health outcome through race-based, biological, and/or genetic explanations, (2) blaming observed health inequities to be the end result of freely chosen poor decisions amidst a landscape of equal opportunity, (3) minimizing the ongoing relevance of racism in creating and sustaining health inequity, and/or (4) attributing inequitable health outcomes to maladaptive cultural values or beliefs held by racially minoritized communities [10]. To illustrate a general example of colorblind racism in action, let us take the well-known phenomenon that racially minoritized communities, especially Black communities, are prone to increased levels of violence and crime. A historically informed, antiracist explanation of this phenomenon would clearly name racism as the culprit that creates and sustains community-level oppressive systems that make individuals surviving in this system resort to activities that have been criminalized to survive. A colorblind explanation might wonder if Black people are biologically prone to be more aggressive through differential hormone production, or if Black people would have equal access to a safe community if only they freely made less violent choices, or whether racism is irrelevant when discussing community violence, or if Black culture glorifies gang members instead of respecting the law. All of these explanations blame the observed end result of racism without ever naming racism directly. In the current context, as the medical field increasingly shuns overt expressions of medical racism, practitioners are becoming, likely unknowingly, increasingly vulnerable to aversively racist and colorblind racist behaviors and ideas. For example, societies like the American Medical Association (AMA) and American Psychiatric Association (APA) have publicly announced their stances to combat racism, yet have not intensely addressed manifestations of these types of racism [11, 12]. Moreover, because white normative knowledges are presented nearly ubiquitously throughout medical education and practice, practitioners of all racialized identities are at risk of harming racially minoritized patients and clients despite mounting pressures to avoid these very racialized harms.

 orensic Psychiatry and Increased Vulnerability to Aversive F and Colorblind Racism Forensic psychiatry may be especially vulnerable to the lure of aversive and colorblind racism, as the field’s professional values guide practitioners to strive to render an “unbiased” or “neutral” expert opinion about an evaluee. Furthermore, in forensic psychiatry, aversive and colorblind racism may be more difficult to tackle than other branches of medicine as the forensic psychiatrist must contend with not only the negative feelings and beliefs propagated within medicine, but also a politicized and racialized criminal justice system. In this context, it is also noteworthy that in contrast to the AMA and APA, the American Academy of Psychiatry and the Law (AAPL) is notably silent on the topic of racism within its field. Without active

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resistance and undoing, the effects of false and prejudicial narratives pervade the treatment of evaluees by the judicial system, through the framing of forensic questions, the content of collected collateral, and ultimately the forensic formulation expounded upon in forensic psychiatric reports. Each branch of the US judicial system has a living history of racism and white normativity that pervade its current practices. Structural competency is an aspirational set of knowledge aimed at combating racism. A forensic psychiatrist who wishes to develop competency in how racism influences public systems must become knowledgeable about how a system’s upstream practices (i.e., policies, culture, history) have a downstream impact on an evaluee’s presentations (e.g., symptoms, attitudes, and disease). Examples of pioneering authors in these domains include Michelle Alexander’s work on the criminal justice system, Dorothy Robert’s work on the foster system; and Johnathan Metzl’s work on the evolving diagnostic criteria of schizophrenia [13–15]. Modern-day examples of how systems-level biased ideology manifested as pseudo-psychiatric concepts include the judicial system’s history of juvenile “super predators” and the “crack epidemic,” which both became part of a larger political and professional discourse that lead directly to harms to forensic evaluees [16, 17].

 ccessing Health Equity Knowledges in Facilitated A Learning Environments The clinical vignette at the beginning of this chapter is adapted from a real patient encounter that is presented to second year (PGY2) psychiatry residents during their first annual session of the Human Experience Track (HET) within Yale Psychiatry’s Social Justice and Health Equity Curriculum (SJHEC), revised in 2020–2021 to be entitled “Contextualizing Power as Knowledge.” [18, 19] Although geared towards a general psychiatry residency audience, the case intimately covers topics common to the practice of forensic psychiatry, including estimating violence risk and understanding how a patient’s carceral history impacts their clinical presentation, diagnosis, and treatment planning. Over our multiple years of engaging in this educational work with trainees and discussing the workshop and vignette above, residents have consistently coupled health equity concepts with critical theory while centering the patient’s narrative to produce evidence-based, culturally sensitive diagnoses— namely, post-traumatic stress disorder (PTSD). Additionally, as opposed to pathologizing AB as inherently “bad” or “dangerous,” learners appreciate how AB’s unfortunate familial and educational struggles are a by-product of intentionally racialized and discriminatory policies harming inner-city families. Thus, additional diagnoses and considerations include depression, chronic stress exposures, and a probable traumatic brain injury from being hit with the baseball bat. Proposed clinical interventions aptly include psychotherapy, further diagnostic clarification, and antidepressant medication.

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Traditional forms of health equity curriculum may equip learners to suggest clinically sound, trauma-informed diagnoses and treatment plans. However, health equity didactic lectures and interactive trainings are often sheltered from the distractions of busy, biased, real-time clinical practices. Therefore, health equity knowledges are inconsistently accessed or implemented beyond the safety of an artificial, facilitated learning environment. Learners are then confronted with hegemonic, discriminatory, and foundational medical knowledges making the application of health equity knowledges challenging. Educational efforts ought to strive to redirect attention back towards health equity by experientially recreating self-­reflection and critical engagement of personal biases in real-time through real case discussions. The second half of the case presentation reveals the limitations of health equity knowledge when it is not intimately partnered with critical self-­awareness of how we may benefit from discriminatory healthcare systems.

Clinical Vignette Continued Faculty and residents met after the clinical intake ended to discuss next steps. AB was diagnosed with antisocial personality disorder and deemed too potentially violent to receive care in the resident clinic following risk stratification with an actuarial tool assessing for the patient’s future risk of violence. Faculty and residents were troubled by the observation that AB became most animated when describing violent experiences. They were knowledgeable that Black neighborhoods are often plagued by urban trauma, and exposure to chronic violence could predispose AB to perpetuate violence himself. Providers noted his withdrawn behavior as reflecting mistrust from a life of violence and cultural mismatch between him, a Black teenager, and the resident, who was not Black. Therefore, his mistrust of mental healthcare and habituation to Black urban violence caused him to “lack remorse” in comparison to the fright and revulsion that healthy people would have felt under similar circumstances. This lack of remorse was reasoned to warrant a diagnosis of antisocial personality disorder. The dangerousness of this diagnosis and risk stratification on the actuarial tool were felt to be too acute for resident clinic, which only had unarmed security officers stationed at the ground floor entrance of the high-rise building. The non-­ university, state-funded community psychiatry clinic assumedly possessed more diverse staff and case managers to meet his needs of cultural congruence, and evidently, treatment for sociopathy. No one explicitly mentioned the perception that the community psychiatry clinic had increased security presence to handle AB’s projected risk of violence. Faculty and residents also discussed revamping resident clinic screening procedures to avoid future referrals like AB, again, due to projected risk of violence. Summarily, it was decided that a Black teen with sociopathy would be more wholistically served by the state-funded psychiatric clinic down the street.

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 eeing Ourselves as Members of a Fundamentally S Flawed System Racial equity failures at the level of individuals, provider groups, and institutions are partially rooted in a lack of critical self-reflexivity preventing an interrogation of the normative lens through which well-intentioned conclusions may be drawn. For example, the shortcomings of actuarial violence risk assessment tools can be revealed when viewed through a historically informed critical lens. These tools include demographic, social, and judicial variables that are at baseline more prominent in racially minoritized populations. The group-based nature of these predictors are criticized for further marginalizing racially minoritized populations who are already enduring economic and political disenfranchisement [20]. This is another example of how anti-Black racism is embedded within a normative assessment tool. Barriers to confronting personally biased behavior in real-time exemplify aversive racism in action. Providers unknowingly benefit from avoiding the critical engagement of personal prejudices in real-time because they are able to avoid the discomfort that comes from acknowledging unfavorable realities, such as possessing racial bias, which can foster active ignorance [21]. It is important to note that practitioners in both the vignette and real life may be seemingly knowledgeable of the vernacular and facts of cultural competency, racialized disparities statistics, and health equity yet still engage in active ignorance. Seeing ourselves as participating members of a fundamentally flawed medical and legal system is uncomfortable, as participating in racialized inequity conflicts with our professional identities as “unbiased” experts and ethical obligations to beneficence and nonmaleficence. Selectively accessing dominant knowledges uncritically with its embedded, normative biases allowed practitioners to retain a sense of mastery over equitable psychiatric diagnoses and treatment without directly confronting the less glamorous elements of their rationale or diagnoses. It is also critical to note that in the vignette the physicians and trainees assigned this young man a Black racial identity. Yet, his complexion was ambiguous, and no one actually ever asked his identity. Furthermore, in this clinical context, withdrawn body language could easily have been interpreted as trauma-related, especially given that his referral diagnosis from the neurology clinic was PTSD. Additionally, no one consciously considered the fact that this patient had been safely treated in the neurology clinical for multiple years before referral to psychiatry, as this evidence would contradict the real-time construction of a violent, sociopathic narrative. Instead, Blackness was problematically provider-assigned versus self-identified, likely due to racist associations of urban delinquency and violence [22]. This replicates the extensive literature about how anti-Black racism and its intersections are insidiously embedded into medical practice [22, 23]. Because these providers were unable to critically engage their flawed—albeit normative—construction of healthcare knowledge/power, they did not recognize the real-time opportunity to challenge their assumptions embedded in hegemonic narratives describing AB as violent, Black, and mistrusting.

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A critically engaged health equity learner may consciously consider the extensive literature about the racialization of violence in healthcare and be open to reflect how this normative knowledge encouraged projected racial imaginations of Blackness or antisocial tendencies upon AB. Moreover, besides factually knowing that Black patients may mistrust healthcare, critically engaged learners must constantly monitor their own behavior to safeguard against actively creating reasons for racially minoritized patients to question their trustworthiness. Because of the extensive legacy of racism within normative knowledges of psychiatry and the law, we must first see ourselves as components of an inequitable system before we can see ourselves of agents of health equity.

 ombatting Racism at the Intersection of Psychiatry C and the Law The following is a list of suggestions to combat racism that every psychiatrist should consider when evaluating racially minoritized patients and/or evaluees at the intersection of psychiatry and the law. 1. Understand the case context: Familiarize yourself with the specific forensic case at hand. Consider the details of the case, the individuals involved, and any relevant historical or contextual factors that may contribute to racial biases or inequities. 2. Tangibly incorporate the potential for personal biases and racial ideologies into case formulations: Although providers certainly aim to be as neutral and objective as possible, recognize that racism and personal racial biases can impact forensic evaluations. Understand that implicit biases, stereotypes, and cultural misunderstandings may influence assessment, diagnosis, and treatment recommendations. Emphasize the need for self-reflection and awareness among forensic psychiatrists to identify and address their own biases including a tendency towards aversive and colorblind racism. Normalize open conversations of potential bias, as opposed to sublimating them through aversive and colorblind racism. 3. Evaluate cultural and contextual factors: Assess how cultural and contextual factors specific to the individual’s racial background may influence their presentation, behaviors, and experiences. Recognize the importance of considering cultural norms, values, and systemic barriers that may affect mental health, including experiences of discrimination or racial trauma. 4. Utilize culturally sensitive assessment tools: Choose assessment tools that are validated and culturally sensitive. Ensure that they have been tested across diverse racial and ethnic populations to avoid biased or inaccurate interpretations. Select tools that account for cultural variations in symptom expression and provide culturally appropriate normative data. Furthermore, it is imperative to gain familiarity with disparities literature to identify and potentially limit the

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use of assessments that have already been shown to potentiate further harm against racially minoritized populations. 5. Establish rapport and trust: Build rapport with the individual being evaluated to foster a therapeutic alliance. Create a safe and non-judgmental environment that encourages open communication. Acknowledge and address any concerns the individual may have regarding racial biases or discrimination within the forensic process. If one is truly to earn the trust of a minoritized patient, it is imperative to explicitly validate the reality that legal and medical systems discriminate against racially minoritized patients. Furthermore, cultural mistrust of these institutions may be a normative and adaptive response amongst minoritized populations that facilitates survival while having to endure social injustice [24]. Refrain from automatically assigning a white normative, pathological connotation to an evaluee’s expressions of mistrust in the medical and/or legal system. 6. Conduct a comprehensive evaluation: Perform a thorough and culturally competent assessment of the individual’s mental health. Utilize open-ended questions to allow the person to express their experiences, beliefs, and cultural background. Consider how racial biases may impact the individual’s self-­ reporting, symptoms, and overall presentation. 7. Collaborate with cultural consultants: Engage with cultural consultants or experts from the individual’s racial or ethnic community to gain insights and understanding. Seek their input to enhance cultural understanding, clarify any cultural nuances, and ensure the evaluation process is culturally appropriate. Take initiative to consult the disparities literally in instances where you discern a need to better understand a minoritized perspective. 8. Avoid stereotyping and overgeneralization by consciously considering details that may conflict with the narrative being constructed about an evaluee: Be cautious about making assumptions based on stereotypes or overgeneralizations related to race. Recognize the individual’s unique experiences and identities beyond their racial background. Treat each person as an individual and avoid perpetuating colorblind racism by essentializing or pathologizing their experiences solely based on their race. Intentionally create space to consider and analyze details that conflict with the evolving case formation of an evaluee. 9. Address racial bias in diagnosis and recommendations: Remain mindful that normative knowledges are frequently racialized knowledges. Analyze potential biases in diagnosis and treatment recommendations. Consider the impact of racial biases on potential diagnoses and challenge assumptions that may disproportionately pathologize individuals from certain racial groups. Encourage a practice of consulting the vast array of disparities literature to see if the specifics of your case may possibly fall under one of the detailed disparities. 10. Continuous professional development: Encourage ongoing education and training for forensic psychiatrists to enhance cultural competence, address racial biases, and promote equitable evaluation practices. Advocate for cultural sensitivity training, workshops, and discussions to foster a more inclusive and antiracist approach within forensic psychiatry.

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11. Advocate for systemic change: Recognize that individual efforts alone are not sufficient to address racial inequities within forensic psychiatry. Advocate for systemic changes within the field, such as promoting diversity and inclusion in forensic psychiatry training programs, addressing racial disparities in the criminal justice system, and influencing policy reforms that aim to reduce racial biases and promote equitable mental health evaluations.

Conclusion No educational program can ever claim to “solve” health inequity within general or forensic psychiatry. Nevertheless, beyond relegating personal contributions to health disparities to unconscious bias or lacking informational awareness, the enhanced knowledge and understanding of these concepts exposes how providers may unknowingly, and sometimes knowingly, benefit from perpetuating disparities through an experiential education journey that juxtaposes idealized hegemonic knowledges with real-world, real-time inequitable outcomes. For instance, providers in the presented case shielded themselves from discomfort by viewing their medical knowledge construction as beneficent versus discriminatory when they suggested that a “violent” Black patient would be better served elsewhere. Ironically, because providers mislabeled racially discriminatory care as culturally informed, they may have even claimed self-proficiency over health equity concepts, too. Only by seeing ourselves as an ongoing part of the problem we can work to become a more dedicated agent of antiracist solutions. Given the high degree of vulnerability to the influences of systemic injustice, there is no field better positioned to combat racism at the intersection of psychiatry and the law than forensic psychiatry.

References 1. Feagin J, Bennefield Z. Systemic racism and U.S. health care. Soc Sci Med. 2014;103:7–14. 2. Campisi J, Griggs B. Of the 115 supreme court justices in US history, all but 7 have been white men. CNN Politics. 2022. https://www.cnn.com/2022/03/24/politics/supreme-­court-­justices-­ minorities-­cec/index.html. 3. Nong P, Raj M, Creary M, Kardia SLR, Platt JE. Patient-reported experiences of discrimination in the US Health Care System. JAMA Netw Open. 2020;3(12):–e2029650. 4. Jegarl AM, Jegede O, Isom J, Ciarleglio N, Black C. Psychotic misdiagnosis of racially minoritized patients: a case-based ethics, equity, and educational exploration. Harv Rev Psychiatry. 2023;31(1):28–36. 5. Heilbrun K, Kavanaugh A, Grisso T, Anumba N, Dvoskin J, Golding S. The importance of racial identity in forensic mental health assessment. J Am Acad Psychiatry Law. 2021;49:478–87. 6. Ratkalkar M, Jackson C, Heilbrun K.  Race-informed forensic mental health assessment: a principles-based analysis. Int J Forensic Ment Health. 2023;22:1–12. 7. Morris DB, Gruppuso PA, McGee HA, Murillo AL, Grover A, Adashi EY.  Diversity of the National Medical Student Body—four decades of inequities. N Engl J Med. 2021;384(17):1661–8.

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8. Odlum M, Moise N, Kronish IM, et  al. Trends in poor health indicators among Black and Hispanic middle-aged and older adults in the United States, 1999-2018. JAMA Netw Open. 2020;3(11):e2025134. 9. Dovidio JF, Gaertner SL. Aversive racism. In: Advances in experimental social psychology, vol. 36. San Diego, CA: Elsevier Academic Press; 2004. p. 1–52. 10. Bonilla-Silva E.  Color-blind racism in pandemic times. Sociol Race Ethn. 2020;8:2332649220941024. 11. American Psychiatric Association. APA apologizes for its support of racism in psychiatry. American Psychiatric Association; 2021. https://www.psychiatry.org/newsroom/news-­ releases/apa-­apologizes-­for-­its-­support-­of-­racism-­in-­psychiatry. Accessed 15 May 15 2022. 12. American Medical Association. AMA releases plan dedicated to embedding racial justice and advancing health equity. American Medical Association; 2021. https://www.ama-­assn. org/press-­center/press-­releases/ama-­releases-­plan-­dedicated-­embedding-­racial-­justice-­and-­ advancing. Accessed 15 May 2022. 13. Metzl J.  The protest psychosis: how schizophrenia became a black disease. Boston, MA: Beacon Press; 2010. 14. Roberts DE. Torn apart: how the child welfare system destroys black families—and how abolition can build a safer world. 1st ed. Basic Books; 2022. 15. Alexander M. The new Jim crow: mass incarceration in the age of colorblindness. The New Press; 2010. 16. Hartman DM, Golub A. The social construction of the crack epidemic in the print media. J Psychoactive Drugs. 1999;31(4):423–33. 17. Miller KS, Potter GW, Kappeler VE. The myth of the juvenile superpredator. In: Handbook of juvenile justice. Routledge; 2006. p. 207–26. 18. Balasuriya L, Isom J, Cyrus K, et al. The time is now: teaching psychiatry residents to understand and respond to oppression through the development of the human experience track. Acad Psychiatry. 2021;45(1):78–83. 19. Isom J, Jordan A, Goodsmith N, et al. Equity in progress: development of health equity curricula in three psychiatry residency programs. Acad Psychiatry. 2021;45(1):54–60. 20. Silver E, Miller LL. A cautionary note on the use of actuarial risk assessment tools for social control. Crime Delinq. 2002;48(1):138–61. 21. Medina J. Color blindness, meta-ignorance, and the racial imagination. Crit Philosophy Race. 2013;1(1):38–67. 22. Sun M, Oliwa T, Peek ME, Tung EL. Negative patient descriptors: documenting racial bias in the electronic health record. Health Aff (Millwood). 2022;41(2):203–11. 23. Agarwal AK, Seeburger E, O’Neill G, et al. Prevalence of behavioral flags in the electronic health record among Black and white patients visiting the emergency department. JAMA Netw Open. 2023;6(1):–e2251734. 24. Alang S, McAlpine DD, Hardeman R. Police brutality and mistrust in medical institutions. J Racial Ethn Health Disparities. 2020;7(4):760–8.

Malpractice

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Amanda Kingston and Scott Walmer

The Scenario Ms. Smith is a 53-year-old woman with a 30-year history of schizophrenia who was admitted to the inpatient psychiatric unit of a community hospital, following a suicide attempt in the context of symptoms of psychosis. You have cared for Ms. Smith during three previous admissions in the past year to the same unit. You consider her history and previous response to treatment and elect to place her on suicide precautions and start a second-generation antipsychotic to treat the psychosis. During the first few days of the hospitalization, Ms. Smith shows progress with treatment. However, one week after admission she remains very symptomatic and you are concerned that Ms. Smith is regressing and so you increase the dose of her antipsychotic. Over the next few days, Ms. Smith shows improvement in her symptoms on the higher dose of medication and the team begins to work on discharge planning. Eleven days after admission to the unit, you ask Ms. Smith whether she would hurt herself if discharged. She replies, “I hope not.” In discussing discharge with her, Ms. Smith expresses anxiety about being discharged home but is not able to articulate her reasoning for the anxiety. Based on your evaluation, she has ongoing paranoia and fear related to her family; however, she has also demonstrated clinical improvement on her current treatment. The following day, Ms. Smith continues to have a similar presentation and you decide to discharge her home. You consider her history of hospital readmissions and set up a discharge plan that includes several safeguards that were not in place during A. Kingston (*) Department of Psychiatry, Abington-Jefferson Health, Abington, PA, USA e-mail: [email protected] S. Walmer Rocky Mountain Forensic Psychiatry, Parkview Medical Center, Pueblo, CO, USA © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 T. Wasser, R. Zhong (eds.), Psychiatry and the Law, https://doi.org/10.1007/978-3-031-52589-6_12

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previous admissions. These include a follow-up appointment with her outpatient therapist the morning after discharge, daily visits by a home health psychiatric nurse to check on her mental state and to monitor for medication adherence, and family agreement to regularly check in with the patient and secure her home environment. Three days after discharge, you receive a call learning that Ms. Smith was found dead in her apartment by presumed suicide. What went wrong? Should you have seen this coming? Was there anything you could have done differently? Could you be found liable for her death?

What Really Happened Thompson v. Patton, Supreme Court of Alabama, 2008 [1] On November 11, 1999, Peggy Sue Ellis, a 53-year-old woman with a 30-year history of schizophrenia, suicide attempts, and multiple hospitalizations, was admitted to Baptist Medical Center Montclair in Birmingham, Alabama following a suicide attempt. The psychiatrist treating her was Dr. Rita W. Patton, who had cared for her during three prior admissions the same year. On admission to the hospital, Ms. Ellis was placed on a suicide watch and was started on quetiapine to treat the symptoms of schizophrenia. Ms. Ellis’ hospital course was marked by a waxing and waning of her clinical symptoms; however, by day 11 of the hospitalization, she was progressing toward discharge. Dr. Patton queried Ms. Ellis as to whether or not she would hurt herself if discharged. Ms. Ellis replied, “I hope not.” She expressed fear about discharge and demonstrated evidence for anxiety and paranoia that seemed to be related to her family. The following day, Dr. Patton discharged Ms. Ellis from the hospital. The discharge plan included all of the elements described above in the example scenario. Ms. Ellis presented to her outpatient follow-up therapy appointment the day after discharge. During that encounter, her therapist noted that Ms. Ellis had not filled her prescription for quetiapine, was frightened, confused about her medications, obsessed with psychotic thoughts, and demonstrated an inappropriate and blunted affect. Dr. Patton was not aware that Ms. Ellis had failed to fill her prescription for quetiapine. Two days later, Ms. Ellis was found dead in her apartment secondary to an overdose, deemed to be suicide by the coroner. After the suicide, Marty Thompson, the administrator of Ms. Ellis’ estate, filed a lawsuit in the Jefferson Circuit Court (Alabama) against Dr. Patton and her employer (“the Clinic”) on grounds of wrongful death under the Alabama Medical Liability Act. The basis for the wrongful death claim was that Dr. Patton deviated from the standard of care by prematurely discharging Ms. Ellis from the hospital, failing to formulate an appropriate outpatient treatment plan, failing to readmit Ms. Ellis to a psychiatric unit, and failing to implement proper suicide precautions. At trial, expert witnesses specializing in psychiatry testified for each side. The expert witness for Ms. Ellis’ estate argued that based on the facts in the case, there was a probability that Ms. Ellis might attempt suicide if discharged from the

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hospital on the day that she was released. The expert for the defense argued that Dr. Patton had made appropriate discharge arrangements based on the information known at the time and that Ms. Ellis’ treatment fell within the standard of care. The jury deadlocked and the trial court declared a mistrial. Dr. Patton and the Clinic then appealed to the Alabama Supreme Court. The Alabama Supreme Court ruled that the trial court “blurred the distinction between the different elements necessary to establish medical malpractice” by conflating proximate causation (the event occurred directly because of the preceding act and would not have occurred but for the act) with the foreseeability of suicide. The Court emphasized that breaching the relevant standard of care is not sufficient for a medical malpractice claim to be successful. A second required element is that the deviation from the standard of care must be a proximate cause of the wrongful death (death resulting from a wrongful act of another person). Because the “proximate cause” issue was not addressed by the trial court, the Alabama Supreme Court remanded the case back to the lower court for it to be answered. In rehearing the case with a new jury, the trial court entered judgment in favor of Dr. Patton and the Clinic. Mr. Thompson then appealed to the Alabama Supreme Court, which heard the case a second time and affirmed the judgment of the lower court. In its ruling, the Court held that the testimony of Mr. Thompson’s expert witness, while establishing that there was some possibility that Ms. Ellis would attempt suicide, was insufficient to establish proximate causation, as causation requires proof “that the alleged negligence probably caused, rather than only possibly caused, the plaintiff’s injury.” The Court concluded “evidence that a health-care provider’s alleged negligence possibly caused an injury is not substantial evidence of proximate causation under Alabama law.” The Court also held that in cases of wrongful death suicide malpractice, expert witness testimony is required to establish a proximate causation link between negligence and suicide, as the relevant factors are beyond the knowledge of lay jurors. In the death of Ms. Ellis, the Court observed that there were several variables in play, and all testifying psychiatrists felt that the discharge plan adequately met the standard of care. As Mr. Thompson’s expert failed to testify as to the issue of proximate causation, the Court entered judgment in favor of Dr. Patton and the Clinic.

Discussion Practicing psychiatry, as with any area of medicine, is fraught with numerous challenges relating to patient care. What is the diagnosis and how should it be treated? Is the patient safe to be treated in the community or do they need a higher level of care? What evidence-based treatments exist for this particular diagnosis? Questions such as these routinely confront treating psychiatrists, yet the practice of medicine involves decision-making based on imperfect knowledge. There will always be some patients who experience bad outcomes as a result of clinical decision-making. The critical question to answer is if the physician’s decision-making was negligent or not.

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In the law, a tort is when a person suffers harm due to a wrong. According to the law, the wronged person (the plaintiff) can then bring a legal action in civil (noncriminal) court against the individual who wronged them (the defendant), asking for compensation for the harm suffered. There are many types of torts. One such category is called negligence, in which an individual fails to perform an action that another reasonable person would have done if in the same circumstances. When a tort claim of negligence is applied to the practice of medicine and legal action is sought against a physician, we typically call this being sued for “malpractice.”

Requirements for Malpractice The exact requirements for a medical malpractice suit vary by state but are all based on the same general principles. For a plaintiff to be successful in a malpractice claim, four basic elements are required, commonly called the “Four D’s.” These are: 1. Duty 2. Dereliction of duty 3. Damages or harm 4. Direct causation The plaintiff (patient or the executor of their estate) must prove the presence of these four elements by a “preponderance of the evidence,” which translates roughly as “more likely than not.” This is a less stringent standard than the “beyond reasonable doubt” standard used in criminal cases and the “clear and convincing” standard used in most civil cases including civil commitment. Failure to meet the preponderance standard for all four elements will result in a finding for the defendant (physician or healthcare system). Proving these four elements is required for a successful malpractice claim but filing a claim for malpractice only requires allegations of these four elements. Therefore, there are many suits filed each year which are not successful. Conversely, there are patients harmed each year who do not file a claim for malpractice. Research on the topic has revealed that poor physician-patient rapport and interpersonal communication are the most important risk factors for being party to malpractice claim [2]. In fact, previous studies have shown no relationship between objective measures of a physician’s technical skills and risk of malpractice claims [3].

Duty The first required element for a malpractice suit to be successful is a duty to the patient. Psychiatrists cannot be held liable to the harm suffered by a person if there is no doctor-patient relationship established. A doctor-patient relationship is established explicitly when the physician agrees to treat a given patient for his or her

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condition, with or without the patient’s assent (i.e., involuntary commitment). However, a doctor-patient relationship can exist implicitly as well if, on the basis of the conduct of the physician, the patient might reasonably be led to assume that a doctor-patient relationship has been established [4]. For example, a physician may be asked to give their opinion on the treatment of a patient without meeting the patient (“curb side consult”) or may provide medical advice to friends, family, or acquaintances in the community. More recent cases have examined the establishment of a physician-patient relationship in the evolving landscape of medicine including voice-only (phone call) evaluations, online surveys, and intake forms [5]. It is important to review the applicable laws in your state to have a good understanding of the parameters in your area. Once the doctor-patient relationship has been established, the physician has a duty to continue to treat the patient or appropriately terminate the relationship. The physician-patient relationship can be terminated by the patient or physician; however, abandoning the patient without appropriate referrals, notice, or the opportunity to provide continuity of care places the physician at an increased risk of malpractice [6]. To help mitigate this risk, it is important to employ strategies such as developing a policy for providing advanced written notification along with a reasonable amount of medication to ensure that the patient does not run out while finding a new provider [4]. The reasonable time frame varies by jurisdiction and the specific patient and patient population served, but often is at least 30 days of notice and medications. It is important to consider the amount of time it takes for a patient to engage in alternative medical care in your area when setting a time frame. In addition to the traditional idea of a doctor-patient relationship, psychiatrist may also have an established duty to a patient when that patient is engaged in care with an employee of the psychiatrist such as a psychotherapist, counselor, or trainee. This duty is established under the doctrine of respondent superior (let the superior make answer) [7] and establishes a duty with the employer or supervisor for the actions of their employees within the course of their work. Psychiatrists serve as the leader of the treatment team for a patient and are therefore ultimately liable for the actions and care provided by all members of the team. In an academic setting, the attending physician also serves as the supervisor for resident physicians, interns, and other trainees in the clinic setting and is held liable for the care they provide. There are few exceptions to the establishment of a doctor-patient relationship. The most commonly seen is in the setting of a forensic psychiatric evaluation. In this setting an evaluation is performed of an evaluee but no specific treatment is administered or overseen. It is vital to advise the evaluee of this special circumstance before the beginning of the evaluation and documenting the advisement and evaluee’s understanding with the reported findings. Other examples could include discussion of hypothetical cases with colleagues in which no specific patient is mentioned and the details of the case are not specific enough to identify a particular patient, cases discussed in clinical supervision or peer review, and general education on treatment topics where no specific patient can be identified.

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Dereliction of Duty Once it is established that a physician has a duty to the patient, this duty may be negligently breached if the physician deviates from the “standard of care.” Within psychiatry, standards are less established or published in treatment pathways. Therefore, the most commonly used standard includes what a physician, possessing “that reasonable degree of knowledge and skill that is ordinarily possessed by other members” practicing in the same specialty would do for the same type of patient, in similar circumstances [8]. Some jurisdictions instead use the “reasonably prudent practitioner standard,” which states that “a physician could be held liable if he failed to provide reasonable and prudent care in light of all the circumstances, even though the physician did adhere to the customary practice of the average physician in the field” [6]. Both standards do not require the psychiatrist to be perfect or practice at a level above the average physician, but do require that the psychiatrist makes reasonable efforts to gather the appropriate information and acts on that information in a way that the average psychiatry would agree with. Two different psychiatrists can approach the same patient differently. As long as the differing approach is reasonable and one that at least some minority (usually at least 5% or more) of other reasonable practicing psychiatrists use in their practice, the approach could be considered to fall within the standard of care [6]. For example, when a patient presents with symptoms of depression, different psychiatrists may choose different initial antidepressants. However, if the psychiatrist failed to screen for a history of bipolar disorder and the antidepressant triggered a manic episode, the psychiatrist could be found negligent in their care. Within psychiatry, there is no single authority that provides the definitive answer as to what constitutes the usual behavior of ordinary members of the profession. Some references that are important to review include published journal articles, textbooks, pharmaceutical package inserts, and practice guidelines, such as the American Psychiatric Association’s Practice Guidelines [9]. This is one reason why continued CME and ongoing education is important to our practice so that physicians can stay abreast of the newest treatments and recommendations. In addition to knowing the applicable statutes and cases in your jurisdiction relating to standards of care, there are also statutory differences between jurisdictions that directly impact the way in which psychiatrists are able to practice (e.g., different laws relating to emergency involuntary commitment or involuntary medication). However, in most jurisdictions, the generally accepted standard of good medical practice crosses state lines. In other words, a patient with bipolar disorder in Missouri should be evaluated, diagnosed, and treated similarly to how that same patient would receive care in New York. Some jurisdictions make exception to the national standard of care rule, which is outlined in the respective state statute. Despite accepted differences and latitude within the field, psychiatrists can and do make “mistakes.” A psychiatrist may make what is considered to be a reasoned decision about the treatment of a patient, but by failing to obtain all of the relevant information necessary to make an informed decision, an “error of fact” has occurred. Without adequate information, the psychiatrist is acting blind and the ultimate

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judgment is flawed. For this reason, errors of fact may be considered negligent conduct and result in liability for the physician [10]. Errors (bad outcomes) can also occur when doctors make well-informed decisions that turn out to be wrong, with a good faith belief that the intervention will be helpful to the patient. This is called an error of judgment. In contrast to errors of fact, errors of judgment are less likely to result in liability for the physician [10]. Both errors of fact and judgment can be due to acts of commission (due to taking action) or omission (failing to take action). Case law, as seen in Thompson described above, illustrates that expert witness testimony is required to establish deviation from the standard of care [1, 11]. Physicians are held to the standard of their average peer and courts have held that jurors do not possess the specialized knowledge needed to establish deviation from the standard of care. By definition the medical standard of care requires specialized medical knowledge that an average lay juror is unlikely to possess [1]. The expert witness can provide the relevant education and context to the jurors regarding the standard of care and any potential breaches they identify. One exception to the requirement for expert witness testimony is the doctrine of Res Ipsa Loquitur, translated as “the thing speaks for itself” [4]. There are occasionally malpractice cases where the facts are particularly egregious. While most lay people would acknowledge that they do not know the standard of care for psychotherapy, all would agree that a sexual relationship with a patient is clearly outside of the care provided by the average psychiatrist. This example illustrates several of the elements required for Res Ipsa Loquitur. The harm suffered by this patient would be unlikely to have occurred but for the actions of the doctor. The power differential present in the doctor-patient relationship places the patient in a vulnerable position and the doctor is aware of the legal and ethical ban on having a sexual relationship with a patient. Additionally, because the patient was under their care for psychotherapy, the physician carries special knowledge of the patient and thereby the harm that has occurred. For these reasons, in cases of Res Ipsa Loquitur, the burden shifts to the defendant (i.e., the physician) to prove that the harm did not occur. Res Ipsa cases are rare in psychiatry [6], but do arise with allegations of assault or sexual relationships.

Damages Despite the efforts of physicians to relieve suffering, patients can have untoward outcomes. A bad outcome does not equate to malpractice. There must be negligence (deviation from the standard of care) on the part of the physician that directly led to the harm to constitute a claim of malpractice. If the patient suffers harm, but no negligence is demonstrated, the malpractice claim is unlikely to be successful. Common claims of negligence in psychiatry include failure to treat, failure to diagnose, failure to hospitalize, and failure to warn. In each of these examples, the physician has a responsibility to act according to the standard of care within his/her scope of practice and failed to adhere to the standard.

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When an injured party wins a malpractice suit, the financial damages can be either compensatory or punitive. Compensatory damages provide the injured party financial reimbursement for loss directly related to the harm suffered and may be economic and/or noneconomic. Some examples may include lost wages, past and future medical expenses, physical or mental pain and suffering, reduced quality of life, and permanent disability. Most states have instituted caps on the amount of money that can be awarded for Compensatory damages which ranges from $250,000 to $500,000 [7]. Punitive damages are what they sound like—a punishment for the defendant because of particularly egregious, careless, or malicious behavior. Compensatory damages are the usual type of damages awarded in malpractice cases. However, rarely, situations arise in which the conduct of the defendant is viewed as warranting the additional punitive damages, such as with a sexual misconduct or patient assault. There are no caps on punitive damages and it is important to note that most malpractice insurance coverage does not cover punitive damages, placing the full financial liability on the physician.

Direct Causation The fourth required element for successful malpractice claims is proximate causation. Psychiatrists who deviate from the standard of care and whose patients suffer harm are not necessarily liable if there is no relationship between the deviation from the usual care and the harm suffered. That is, there must be a causal relationship between the negligence and the harm. When a compelling argument can be made that the harm is related to the action (or inaction) of the physician, a successful malpractice claim nevertheless requires the causation to be proximate. It is not sufficient that the physician’s action played some role or that it possibly contributed to the harm. Proximate causation requires a “but for” relationship in that the harm would not have occurred but for the action of the physician (i.e., the harm wouldn’t have happened had the physician acted differently). Because of the unique nature of psychiatry, many courts have adopted a “relaxed causation” rule which prevents defendants from dismissing claims because of a patient’s pre-existing condition. Under this rule the physician’s actions must “increase the patient’s risk” of illness or injury [7]. In addition, malpractice cases often hinge on the concept of foreseeability as it applies to proximate causation. Foreseeability can be defined as “the reasonable anticipation that harm or injury is likely to result from certain acts or omissions” [12]. Case law, as in Thompson, has established that the intervening event must be a substantial factor in bringing about the injury. Thompson illustrates how courts may look at adjudicating the actions of a physician and states that the mere possibility of harm is insufficient; a substantial probability is required for a finding of negligence [1]. Another piece of proximate causation is the time interval that has elapsed between the doctor’s care of the patient and the resulting harm. This idea of

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proximate timing is very nebulous and open to interpretation based on the facts of the case. There is no established time period that constitutes “proximate” or “imminent.” However, the more time that has elapsed between the physician’s care and the harm suffered, the more likely there was another intervening event that contributed to the harm, and therefore less likely for the malpractice claim to be successful.

Common Claims of Malpractice in Psychiatry Recently published literature suggests that psychiatrists face a yearly risk of malpractice suits of 2–3% versus 7% for all physicians [7]. Although this is less frequent than in other medical specialties, psychiatrists are unfortunately more likely to face state board discipline than other specialists [13]. Reich et al. demonstrated that the most important areas of discipline action against psychiatrists are patient suicide, sexual misconduct, inappropriate prescribing, and physician substance abuse. In addition, when psychiatrists do face civil action, the mean defense costs of both paid and unpaid malpractice claims are higher than most other medical specialties [14]. The reasons for this higher cost are not well described in the literature but possible factors include increased need for expert witnesses, need for more expert witnesses, and higher indemnity pay-outs for successful claims. The published literature suggests that psychiatric malpractice claims are more common with male-­ gendered psychiatrists and are less common when the psychiatrist holds board certification [15]. Psychiatrists may be found liable for any number of reasons. As the case described in this chapter illustrates, malpractice suits are often multi-layered and involve multiple, interrelated claims of negligence; it is rare for a suit to contain just a single allegation [4]. As of 2019, the most common claims that result in a finding of liability against a psychiatrist are suicide or attempted suicide, incorrect treatment, breaches of confidentiality, failure to assess risk for violence, boundary violations, improper psychopharmacology, and failure to complete mandatory reporting of child abuse [7]. However, less than 10% of cases get to trial [4], with over 90% of all malpractice cases being settled outside of court [7]. On average a malpractice claim that is settled takes 11.6 months to reach a resolution and a litigated claim takes 25.1 months [7]. Many plaintiffs that do not prove the 4Ds and some patients that could prove the 4Ds never file a claim. Most claims of malpractice boil down to a failure of rapport between the physician and patient. Retrospective reviews of malpractice claims have shown that lawsuits arise more commonly when the plaintiff feels that the physician did not acknowledge or respond when damage occurred [2, 3]. And conversely, many patients do not file a malpractice claim despite a bad outcome because of the positive relationship they have with their physician. The following are brief examples or important points to remember about some of the more common types of psychiatric malpractice cases.

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Suicide Malpractice Viewed retrospectively by plaintiffs who have lost a loved one, suicide can be seen as something that should have been predictable. However, currently published literature in psychiatry does not support this. With well-informed risk assessments that take into account both known risk factors and the specific patient being evaluated, the risk of suicide, but not the act itself, can be reasonably predicted [16]. In other words, it is not possible to predict beforehand if or when a particular patient will die by suicide. Hindsight bias (tendency to look back at an event that we could not predict at the time and think the outcome was easily predictable) largely accounts for this skewed perspective and is a common pitfall in malpractice claims. Given that the act of suicide is inherently difficult to predict, the foreseeability of the actual act of suicide is less germane than the foreseeability of the risk of suicide. Psychiatrists are expected to consider the static risk factors (factors that do not change), such as previous suicide attempts, male sex, older age, and family history of suicide, as well as dynamic risk factors (factors that can change) and other modifiable clinical variables that may converge in an individual case to convey a risk of suicide [17]. Examples of dynamic variables include insomnia, anxiety, depression, psychosis, substance use, impaired attention, and access to means/weapons. Once the psychiatrist has made a determination that there is a foreseeable risk that a patient could be in an acute suicidal crisis, the psychiatrist must take precautionary steps. The standard of care focuses on reasonable assessment and mitigation of suicide risk by addressing dynamic risk factors. This includes appropriate history gathering, sound clinical judgment, appropriate medication management, and selection of the appropriate treatment environment. One issue that complicates suicide malpractice is the issue of proximate causation. Because the ultimate act of suicide, by definition, requires that the patient take his or her own life, the claim that the suicide occurred proximately because of the actions of the psychiatrist would on its face seem to make malpractice impossible. However, due to their pre-existing condition, suicidal individuals may lack the ability to appreciate the impact of their behaviors. Thus, despite the patient engaging in suicidal behavior, psychiatrists may nevertheless be held liable for contributory negligence, which is defined as negligence in which the party played some role in the harm suffered. This has led many jurisdictions to adopt the “relaxed causation” standard as described above.

Medication Malpractice Two of the more common types of psychiatric malpractice are claims of failure to diagnose and failure to treat. In both of these cases, malpractice claims may be challenging due to the fact that two reasonably prudent practitioners may differ in their

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selection of drug to treat a given condition. However, liability may be found if the psychiatrist should have diagnosed a condition that would have altered the rational selection of one drug over another, but failed to do so. Take, for example, a patient with poor focus, distractibility, and increased energy is placed on a stimulant medication for treatment of attention-deficit/hyperactivity disorder (ADHD). The physician does not inquire about additional history of mood episodes, psychosis, or other symptoms of major psychiatric disorders. Although stimulant medications are a common and rational approach for the treatment of ADHD, the failure to obtain the relevant history which included manic episodes could result in a finding of liability if the patient goes on to become manic and suffers harm as a consequence. Another area of common malpractice claims relates to informed consent to treatment including psychotropic medications. Informed consent requires three elements: (1) Disclosure of the information that a reasonable person would want to know; (2) Competency of the patient to make a decision; and (3) Voluntary nature of the decision [18]. In practice, this includes evaluation of the individual’s decision-­ making capacity, lack of coercion, and education of the risks, benefits, and alternatives to the proposed treatment. Failure to document a discussion of informed consent prior to starting psychotropic medications can open up the psychiatrist to liability. Responsible prescribing practices are also vital for protection against liability as psychiatrists can be held liable for patient abuse of prescription medications if the psychiatrist’s prescribing is found to be negligent [19].

Sexual Misconduct Malpractice It may be surprising that in one study, 5–10% of therapists admitted to sexual activity with their patients [4]. Mental health professionals are in positions of power over their patients, who often seek out treatment in moments of vulnerability. It goes without saying that sexual contact with patients violates every published ethics guideline by every organizing body and association in medicine and mental health. Because of the intentional nature of the conduct, which is perceived to be wanton and exploitative, punitive damages can be awarded, in addition to the compensatory damages of unintentional tort cases. In addition to civil action, sexual misconduct is a primary reason for disciplinary action by state medical boards and can result in criminal charges in some states. Suicide, medication, and sexual misconduct represent just three of the many possible reasons that a psychiatrist could face a malpractice suit. A comprehensive review of the different types of psychiatric malpractice and a complete discussion of each is beyond the scope of this chapter. Psychiatrists involved in malpractice cases, as a defendant or an expert witness, should consider reviewing the relevant case law and statutory language in their jurisdiction.

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Malpractice Defense A psychiatrist’s best defense against malpractice is to practice responsibly, build rapport with their patients, maintain open communication, and strive for excellent care of their patients. By staying up to date on published literature and being aware of published ethical and practice guidelines, psychiatrists can reduce the risk of falling below the standard of care. Physicians should remember that prudent care of patients includes a treatment approach that is agreed upon by a respectable minority of similar providers. When in doubt about how to proceed in a clinical scenario, consider supervision and/or consultation with a colleague. If the case is ambiguous or if malpractice concerns are present, you should also consider speaking with legal counsel or your malpractice insurance carrier. An adage exists that “if it isn’t documented, it didn’t occur.” While this is an oversimplification, physicians who take documentation seriously and document not only the diagnosis and treatment, but the rationale for how they arrived at their decisions, will be better protected should a malpractice claim be brought against them. Each patient encounter should include an assessment of suicide and homicide risk which is clearly documented as well as recommending and assuring appropriate follow-up care. The constraint of daily clinical practice places real-life limitations on documentation. Nevertheless, well-thought-out and reasoned documentation is far superior to longer but superficial notes. Should a malpractice claim be brought, testimony by deposition may be required (testimony provided by a witness outside of court for the purposes of establishing what will be presented if the case goes to trial). If a deposition is required, it is imperative to prepare beforehand, both individually, as well as with your defense attorney. Psychiatrists should review the DSM criteria for the relevant diagnoses, as well as be prepared to describe the diagnoses and treatments to a lay audience without the use of scientific jargon. Knowing key dates, clinical thinking, and interventions in the time leading up to the adverse outcome is particularly important. Ultimately, the ability to demonstrate reasoned thinking behind the clinical decision-­making, as well as consideration of foreseeable harm and steps taken to prevent it, will go a long way toward the success or failure of the malpractice claim. Physicians can have the patient record available at the time of the deposition; however, they should not rely on it exclusively and should make an effort to memorize important data and times. It is impossible to be over-prepared for a deposition. It is vital that the physician not attempt to alter any treatment records or recreate missing records. In many states, this action is also punishable under criminal law [3]. In the event that a psychiatrist becomes involved in a malpractice claim that is going to trial, the physician should attend the trial in person. Failure to be physically present is often perceived as the physician prioritizing day-to-day work over the trial. Juries often perceive their physical presence positively and meaning that the case is more important than other businesses outside the courtroom [3].

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Considerations for the Forensic Expert Witness There is case law requiring expert witnesses testifying to the conduct of a physician to be from the same specialty of medicine as the physician being sued [20]. Expert witnesses practicing in different fields of medicine are unlikely to be allowed to opine about the standard of care in a different field [21]. In some cases a psychologist may testify to the care provided by a psychiatrist and vice versa if the subject matter in question is within their scope of practice; however, having an expert witness matched as closely as possible carried more weight in the courtroom. Most states rely on the Daubert standard for determining admissibility of expert testimony and whether it is based on scientifically valid reasoning that can be properly applied to the facts of the case [22]. Some states still rely on the older Frye standard [23]. It is important to be familiar with the standard in your jurisdiction and be prepared to testify to the elements of the applicable standard. When preparing expert testimony for a malpractice claim, the physician must first familiarize themselves with the relevant case law and statutes governing tort law, negligence, and malpractice law in their jurisdiction and tailor testimony to meet those standards. It is not uncommon to have multiple experts on both sides of a malpractice case and physicians must be prepared to present their own opinion as well as respond to questions about the other experts’ opinions and reports. It is very important to be familiar with the opinions and reports of the other experts prior to preparing testimony. In court, to encourage testimony, there is a witness immunity doctrine that prohibits lawsuits against witnesses based on testimony given in court. Even when an opinion is reached negligently, the immunity holds. This does not protect against criminal liability from perjury. However, although far less common than claims against clinical psychiatrists, forensic psychiatrists are not immune from claims of malpractice. Examples of claims that may be brought include defamation, invasion of privacy, breach of contract, failure to deliver a timely report, and failure to properly diagnose. As with clinical medicine, practicing within the standard of care applies.

Conclusions There are many different varieties of psychiatric malpractice and most suits involve multiple simultaneous claims. Liability against the psychiatrist may be found when there is negligent dereliction of a duty owed to the patient, directly resulting in harm. This negligence must arise from a deviation from the standard of care accepted by a respectable minority of practicing psychiatrists. Psychiatrists wishing to minimize the risk of malpractice must be knowledgeable about the current standards of care within psychiatry and the published ethical and practice guidelines. They will strive to practice at or above the established standards, encourage open

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communication and good rapport with their patients, and adhere to established ethical principles. Rational, evidenced-based, and informed assessment and treatment that is clearly thought-out and articulated in the documentation will go a long way toward reducing malpractice risk. Take-Home Pearls • In order to be successful, a malpractice claim must prove that that the psychiatrist did not meet the standard of care. • Common areas of psychiatric malpractice risk include suicide, psychotropic medications, and sexual misconduct. • Always perform and document a risk assessment of suicide and homicide at every encounter. • Practicing and documenting evidenced-based care can reduce malpractice risk. • Doctor-patient rapport and open communication also can reduce malpractice risk. • All psychiatrists should become familiar with the applicable statutes and case law in their jurisdiction.

References 1. Thompson v. Patton (Ala. 2008), 6 So.3d 1129. 2. Levinson W.  Physician-patient communication: a key to malpractice prevention. JAMA. 1994;272(20):1619. https://doi.org/10.1001/jama.1994.03520200075039. 3. Entman SS, Glass CA, Hickson GB, Githens PB, Whetten-Goldstein K, Sloan FA.  The relationship between malpractice claims history and subsequent obstetric care. JAMA. 1994;272(20):1588–91. https://doi.org/10.1001/jama.1994.03520200044033. 4. Appelbaum PS, Gutheil TG.  Clinical handbook of psychiatry & the law, 4E.  Philadelphia: Lippincott, Williams & Wilkins; 2007. p. 111–25. 5. AMA Advocacy Resource Center. 50-state survey: establishment of a patient-physician relationship via telemedicine. AMA; 2018. https://www.ama-­assn.org/system/files/2018-­10/ama-­ chart-­telemedicine-­patient-­physician-­relationship.pdf. 6. Resnick PJ.  Psychiatric malpractice. Presented at the 46th annual meeting of the American Academy of Psychiatry and the law pre-meeting forensic psychiatry review course, October 19–21, 2015. 7. Frierson RL, Joshi KG. Malpractice law and psychiatry: an overview. Focus (Am Psychiatr Publ). 2019;17(4):332–6. https://doi.org/10.1176/appi.focus.20190017. 8. Slovenko R. Psychiatry in law, law in psychiatry. New York: Brunner–Routledge; 2002. 9. American Psychiatric Association. Clinical practice guidelines. 2016. http://www.psychiatry. org/psychiatrists/practice/clinical-­practice-­guidelines. Accessed 28 Feb 2017. 10. Knoll IV JL. Lessons from litigation. Psychiatric Times. 2015. http://www.psychiatrictimes. com/career/lessons-­litigation. Accessed 12 Dec 2016. 11. Patton v. Thompson (Ala. 2006) 958 So.2d 303. 12. Simon RI.  Therapeutic risk management of the suicidal patient. In: Simon RI, Hales RE, editors. Textbook of suicide assessment and management. 2nd ed. American Psychiatric Publishing: Washington, DC; 2012. p. 553–80.

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13. Reich J, Schatzberg A. An empirical data comparison of regulatory agency and malpractice legal problems for psychiatrists. Ann Clin Psychiatry. 2014;26:91–6. 14. Seabury S, Chandra A, et  al. Defence costs of medical malpractice claims. N Engl J Med. 2012;366(14):1354–6. 15. Reich JH, Maldonado J.  Empirical findings on legal difficulties among practicing psychiatrists. Ann Clin Psychiatry. 2011;23:297–307. 16. Muzina DJ. Suicide intervention: how to recognize risk, focus on patient safety. Curr Psychiatr Ther. 2007;6(7):30–46. 17. Freeman S.  Suicide assessment: targeting acute risk factors. Curr Psychiatr Ther. 2012;11(1):52–7. 18. Shah P, Thornton I, Turrin D, Hipskind JE. Informed consent. Stat Pearls; 2022. 19. Edersheim JG, Stern TA. Liability associated with prescribing medications. Prim care companion. J Clin Psychiatry. 2009;11(3):115–9. https://doi.org/10.4088/pcc.08r00717. 20. Petryshyn v. Slotky (Ill. App. Ct. 4th Dist., 2008) 902 N.E.2d 709. 21. Seal v. Woodrows Pharmacy (Mont. 1999) 988 P.2d 1230. 22. Daubert v. Merrell Dow Pharmaceuticals Inc, 509 US 579. 1993. 23. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

Suicide Risk Assessment

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Ayala Danzig and Hal Wortzel

Clinical Vignette A 46-year-old male presents to his primary care physician’s office for a routine follow-up appointment. While completing a pre-evaluation questionnaire he indicates that he has had daily thoughts about ending his life over the past 2 weeks. During her evaluation of the patient, the primary care physician asks about the patient’s mood and suicidal ideation and discovers that the patient has a history of posttraumatic stress disorder, alcohol use disorder, and borderline personality disorder. She learns that the patient has had multiple suicide attempts in the past and that he has experienced chronic, daily suicidal ideation for the past two decades. Concerned about the patient’s risk, the primary care physician calls you, a psychiatrist embedded in the primary care clinic, to see the patient. She describes the patient as “high risk for suicide” and asks if she should call 911 and send the patient to the emergency department. On your evaluation, the patient reveals a long history of psychiatric treatment that began in his adolescence after he witnessed his mother’s suicide. He has participated in outpatient treatment, intensive outpatient (IOP) treatment, and a variety of residential treatment programs over the years. He has had more than 15 psychiatric hospitalizations, the most recent of which was 6 months ago. At that time, he purchased a firearm with the intention of killing himself after his father revealed a plan to move overseas for a job. He had been drinking heavily at the time, turning A. Danzig (*) VA Connecticut Healthcare System, West Haven, CT, USA Yale School of Medicine, New Haven, CT, USA e-mail: [email protected] H. Wortzel University of Colorado School of Medicine, Aurora, CO, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 T. Wasser, R. Zhong (eds.), Psychiatry and the Law, https://doi.org/10.1007/978-3-031-52589-6_13

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to alcohol to cope with his feelings of abonnement. The patient had a 2-week hospitalization at the local psychiatric hospital after giving up his gun, where he detoxed from alcohol, was psychiatrically stabilized, and was then discharged to an intensive outpatient program (IOP). The patient shares that he graduated from IOP and has since been working through his distress about his father’s move with his therapist and psychiatrist with whom he feels closely connected. The focus of his current treatment is on maintaining abstinence from alcohol and on improving his ability to cope with distress. The patient’s current suicidal ideation is daily, consistent with his baseline for the past two decades. He denies any intent to end his life, nor does he have a plan to do so. The patient has a safety plan that he has created with his therapist and he reviews the plan regularly. He has not had any alcohol since he presented to the hospital 6 months ago. The patient wonders if he erred by answering the depression questionnaire honestly, worrying that he will now be sent to the hospital. After meeting with the patient you return to the primary care physician’s office to share your findings and recommendations. Based on the information you gathered, how do you conceptualize this patient’s risk for suicide? What do you recommend as the most appropriate next step for this patient?

Introduction Suicide risk assessment is a core psychiatric competency. Yet, the standard of care for adequate suicide risk assessment and management has evolved considerably over the preceding decades. Long gone are the days wherein “no SI” (and associated documentation) constitutes a sufficient risk assessment. Gone too are notions that suicide risk assessment and management are solely the purview of psychiatry or mental health, with increasing expectations that clinicians in various settings (e.g., emergency rooms, primary care, pain management) actively participate in screening for suicide risk, and take appropriate steps to ensure patient safety, when indicated. Various organizations have offered guidance relating to suicide risk assessment and management, with notable examples including the American Psychiatric Association’s Practice Guideline for the Assessment and Treatment of Patients with Suicidal Behaviors [1], The Joint Commission’s National Patient Safety Goal for Suicide Prevention [2], and VA/DoD Clinical Practice Guidelines for the Assessment and Management of Patients at Risk for Suicide [3]. Importantly, none of these guidelines are entirely prescriptive, recognizing that there is no one-size-fits-all approach to suicide risk assessment and management, given realities pertaining to clinical practice, patient preference, and the need to provide patient-centered care while fostering therapeutic relationships. Comprehensive review of these various guiding documents is beyond the scope of this chapter, as is a discussion of risk assessment and management expectations across various settings and disciplines. However, these guiding documents consistently align on the expectation that mental health professionals will perform screening for suicide risk, and subsequent

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comprehensive risk assessment and management when indicated. For clinicians, the chapter that follows offers an approach to suicide risk assessment and management that will consistently meet, if not exceed, the standard of care. Suicide risk assessment is not about prediction, and the medical literature clearly establishes that neither clinical risk assessment nor various structured instruments effectively determine who will, or will not, die by suicide. Stated differently, there is no standard of care mandating prediction. Instead, suicide risk assessment should serve the purpose of identifying a level of risk which informs appropriate interventions to mitigate suicide risk, in conjunction with interventions targeting conditions and psychosocial factors that contribute to suicide risk. Optimal suicide risk assessment and management is thoughtfully integrated into mental health treatment more broadly, serving therapeutic agendas, and does not prioritize risk management over treatment goals. This means that risk assessment and management should try to optimally balance the sometimes competing medical ethics principles that come into play when treating patients at high risk for suicide: autonomy, beneficence, and non-maleficence [4–7].

Therapeutic Risk Management The optimal approach to suicide risk assessment is one that is rooted in good clinical care. Rather than viewing the psychiatrist’s need for medicolegal protection as separate from—or even at odds with—the patient’s clinical needs, a therapeutic risk management strategy is based on the understanding that excellent psychiatric treatment is synergistic with risk management. At its foundation, psychiatric treatment, including suicide risk assessment and management, must be performed in a manner that is patient-centered, and that supports treatment and the therapeutic alliance. That said, the driving forces behind defensive practices are hardly a mystery. The most common source of medical malpractice claims brought against psychiatrists are related to patient suicide attempts and deaths [6]. Although psychiatrists are less likely to be sued compared to many other medical specialists, the number of malpractice claims faced by psychiatrists has increased considerably in recent years [7–9]. Psychiatrists whose patients attempt suicide or die from suicide report a variety of emotional reactions which range from feelings of loss and failure to a desire to leave psychiatric practice altogether. This is compounded by the emotional distress that is experienced when a psychiatrist is sued [7, 10]. Given these realities, avoidance of litigation can easily become a driving force in a psychiatrist’s decision-­ making. However, taking a defensive stance to target suicide risk can actually cause more harm than benefit [1]. For instance, unnecessarily hospitalizing a patient who is experiencing suicidal ideation, but who has no associated intent or plan to end their life, might assuage the psychiatrist’s anxiety but has the potential to disrupt the patient’s social and socioeconomic supports, and the therapeutic relationship. This can ultimately enhance a patient’s vulnerability with regard to their suicide risk. Suicide postvention, which includes proactively developing a plan for what to do in the event that a patient dies by suicide, is recommended, and can help mitigate both

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treater anxiety and defensive practices. A suicide postvention preparation plan should address both requisite professional responses to a death by suicide, as well as self-care strategies. See Nazem et al. for further information on suicide postvention preparation [10]. The physician-patient relationship is paramount in psychiatry. Establishing and maintaining a therapeutic and collaborative relationship with patients in psychiatric practice is a prerequisite to progress toward treatment goals and facilitates risk assessment and management. Talking about suicide is an emotion-laden task, and willingness to openly engage in risk assessment is far more likely in the context of a strong therapeutic relationship. Maintaining focus on the patient’s treatment goals, and avoiding fear-based interventions, is the best strategy for creating and maintaining that relationship. This is not to say that hospitalization—even involuntary hospitalization—is never appropriate. What is necessary is that the appropriateness of any intervention be weighed in the context of the particular patient’s unique clinical needs and that informed consent and shared decision-making with the patient or substitute decision-maker are utilized appropriately in making treatment decisions. Open discussions and education about what circumstances might warrant hospitalization, including involuntarily, can be helpful in alleviating the patient’s fears about discussing suicide.

Clinical Evaluation Assessing suicide risk begins with conducting a thorough clinical evaluation. In fact, a comprehensive psychiatric evaluation should always include assessment of suicide and violence risk. Exploring a patient’s history, current symptoms, and psychosocial and cultural circumstances is needed to assess their suicide risk just as it is necessary to develop a diagnostic formulation and a treatment plan [4, 5]. Recognizing these tasks as inseparable makes it possible for the psychiatrist’s inquiry about suicide risk to flow seamlessly within the psychiatric evaluation. This is especially important as the psychiatric evaluation presents a crucial opportunity to build and nurture the therapeutic alliance with a patient. The mainstays of a psychiatric evaluation include interviewing the patient, gathering data via review of medical records, and obtaining information from collateral sources such as family, friends, and other treaters [11]. Information about past and present suicidality should be part of the data that is gathered. One must not assume that a patient will spontaneously share their history of suicidal thoughts or attempts, nor can one assume that a patient will bring up their current suicidality without prompting. Asking direct and specific questions in an empathetic and nonjudgmental manner is essential.

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Exploring Past Suicidality Past suicidal behavior is a strong risk factor for future suicidal behavior. Consequently, it is not sufficient to only inquire about a patient’s current suicidality. One should explore a patient’s history of suicide attempts and history of preparatory behavior for suicide. This data will inform the assessment of chronic risk as well as provide context that will be needed to assess acute risk. A past suicide attempt includes any behavior in which self-directed violence resulted in, or had the potential to result in, injury or death for which there was evidence of suicidal intent [12]. The evidence of suicidal intent could be explicit (i.e., a suicide note) or implicit (i.e., the means of self-injury indicates that the intent was to end one’s life). Past attempts can be aborted or interrupted. Inquiries about past suicide attempts should be direct and clear. For example, one can ask, “have you ever intentionally tried to kill yourself?” and then follow up with more specific questions from there, depending on the patient’s response. Vague inquiries should be avoided, as lack of clarity on this important subject can compromise risk assessment, and may also unintentionally stigmatize the subject, suggesting that this is not a topic appropriate for open and safe dialogue. Preparatory suicidal behavior includes behavior that is preliminary to self-­ directed violence, but occurs before there is potential for injury. Examples of such acts include amassing a stockpile of pills, purchasing supplies such as a rope or a gun, researching suicide methods, giving away one’s possessions, or updating one’s will [13]. Rehearsing for suicide falls under the umbrella of preparatory acts as well. For example, a patient might pour pills into their hand or wrap a rope around their neck to see how it feels without intending to end their life at that moment. When asking about past preparatory behavior direct questions are also best. One can ask, “What is the closest you have ever come to killing yourself?” If needed, more specific questions can be asked. Some examples include: “Have you ever collected or purchased items you planned to use to hurt yourself?” “Have you ever written a suicide note?” “Have you ever googled or researched ways to kill yourself?” The answers to these questions should be used to further guide questioning and discussion. Once information about past attempts and/or preparatory behavior has been collected, one should probe for information about the context. Was there a precipitating event or issue which the patient links to their attempt? Were there warning signs that the patient was attuned to in advance of the attempt? Was intoxication a factor? If an attempt was aborted, or if a patient engaged in preparatory behavior after which they did not make an attempt, it is helpful to understand what changed. This could unveil protective factors that were present. The data that is collected about past suicidality will help elucidate the patient’s unique risk factors, protective factors, warning signs, and will directly inform the assessment of current suicidality, safety planning, and the treatment interventions that are offered. Importantly, methods utilized in past suicide attempts are more likely to feature in subsequent suicidal behaviors, and thus inform lethal means safety interventions.

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Exploring Suicidality: Ideation, Intent, Plan, and Means Assessment of a patient’s current suicidality requires a focus on suicidal ideation, intent, plan, and access to means. Simply asking a patient if they are currently thinking about suicide is inadequate. A better question to ask would be “do you ever think about killing or harming yourself?” From there one can ask about the most recent suicidal ideation. How often a patient thinks about suicide, what details their thoughts include, and how long the thoughts last are important to ask about as this can vary significantly among patients and can also change over time for an individual. Like any symptom in medicine, the severity, frequency, and duration of suicidal ideation informs the associated risk, and the level of intervention. For example, a severe headache that lasts all day, most days of the week, warrants different evaluation and treatment than a fleeting headache of modest severity that occurs infrequently. Similarly, for some patients thoughts of suicide are frequent, brief in duration, and do not include details of how suicide might be accomplished. For others, suicidal thoughts last longer and include specifics about plans and means. Understanding the particular patient’s pattern of ideation informs the larger clinical picture, level of acute and chronic risk, and also helps to establish a baseline against which ongoing assessments of suicidal ideation are measured. Changes in frequency, intensity, and duration of suicidal ideation are vital data points in the ongoing assessment of risk and often signal that an urgent evaluation and/or change in level of care is warranted. For example, a patient with infrequent and fleeting thought of suicide at baseline who develops daily suicidal ideation with ideation persisting for hours will require immediate assessment to ascertain the cause of this change in ideation and how it informs their acute suicide risk. It is important to understand what precipitates suicidal thoughts and how the patient responds to these thoughts. Some patients might have a clear understanding of what triggers their suicidal ideation, while for others more probing and exploration may be necessary. Reflecting on prior attempts or past preparatory behavior can help the psychiatrist and patient better understand the antecedents and the consequences of the suicidal ideation. The meaning and function of suicidal ideation varies between patients. Understanding the unique import of suicidal ideation for each patient will facilitate a more robust and accurate assessment of their risk as well as guide interventions that are best suited for their specific needs. For example, a patient who thinks about jumping from a bridge multiple times each day for many years and understands this as an “escape mechanism” that prevents him from feeling trapped in his current life circumstances will require a different approach than a patient with chronic psychosis whose daily auditory hallucinations suggest that he end his own life. As always, the uniqueness of each patient guides the treatment approach and intervention. Chain analysis can be a useful technique to help discern the specific sequence of events, and the associated thoughts, feelings, and behaviors, which culminate in suicidal thoughts or behaviors for the individual patient, and in turn facilitate individualized safety planning. Chain analyses involve exploration of the factors maintaining suicidal ideation and behavior based on positive and negative reinforcement.

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By uncovering the factors causing suicidal ideation and behavior to persist, personalized intervention strategies can be identified to target these pathways [13]. After inquiring about suicidal ideation, one must assess the patient’s intent to act upon their suicidal thoughts. Here the focus should be on what motivates the patient to act on thoughts of suicide, and what prevents them from acting on them. Differently phrased, one should try to understand the patient’s reasons for living and reasons for dying. Here too, details matter. How compelling are the patient’s reasons for living and dying? For instance, a longstanding and deeply held religious or cultural belief against suicide might carry more weight than one’s sense of responsibility to a new romantic partner. Conversely, the loss of a meaningful relationship might overshadow the meaning one derives from their employment. The permanence of a barrier to suicide should be considered and explored as well. This is particularly important in longitudinal work as loss of a reason for living or for dying may change the calculus of treatment and the assessment of acute risk. While discussing suicidal intent directly with a patient is crucial, it is equally important to observe for objective markers of intent. A patient might deny intent to act on their suicidal thoughts while their behaviors might signal otherwise. Attunement to patient behaviors such as disengaging from care, canceling future plans, giving away personal items, obtaining lethal means, etc., should raise concern even if a patient reports no intent for self-directed violence. On the other hand, if a patient states that they intend to act on their suicidal thoughts, but are making clear plans for the future, this needs to be included in the risk assessment. To be clear, this is not to suggest that one should take lightly a patient’s stated intent to end their life because their behavior suggests future orientation. Statements conveying suicide intent should always be taken seriously. In such cases, a nuanced and thoughtful approach that aims to understand and integrate conflicting information in the context of the patient’s life and illness is required. Clinicians should document competing signals in a nonpejorative fashion, with the terms “subjective intent” (i.e., a patient reporting intent for suicide) and “objective intent”(i.e., behaviors that indicate intent for suicide regardless of patient’s reported intent) being useful in this context. Regardless of the severity of a patient’s intent for suicide, it is imperative to ask about plans for suicide, preparation for suicide, as well as access to lethal means. How detailed is the plan the patient has considered? Has the patient engaged in preparatory behavior? Is the plan feasible? All of these answers will factor into the assessment of risk, and the level of acute risk in particular. A carefully considered, detailed plan that is feasible for the patient to enact will raise more concern for acute risk than a plan that is contingent upon a possible future event and that is not feasible. When assessing the patient’s plan for suicide, one should include questions about whether means have been procured, whether any part of the plan has been rehearsed, or whether the patient has taken other actions to prepare for their life to end (i.e., adjusting one’s will or giving away possessions) as such actions may signal high acute risk and warrant immediate response. Given that access to firearms significantly increases the risk of dying from suicide, and given the dynamic nature of suicidality, access to firearms should be discussed directly as part of a

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comprehensive suicide risk assessment, whether or not a patient reports intent for suicide or endorses a plan involving firearms [14].

Warning Signs, Risk Factors, and Protective Factors Exploring warning signs, risk factors, and protective factors for suicide are an important part of the clinical evaluation. Importantly, risk factors and warning signs, while often conflated, are not the same. In the context of an individual risk assessment, warning signs are the most clinically useful as they are typically indicators of a crisis in progress while risk factors are not necessarily so. Here we explore the differences between these terms.

Warning Signs Warning signs are emotions, thoughts, or behaviors that are proximally associated with a suicidal act and reflect high acute risk. Warning signs often signal a crisis in progress and can portend an escalating acute risk for suicide. The spectrum of warning signs for suicide is wide, and the specific warning signs that are relevant to a patient will depend upon that individual’s particular social context, psychiatric illness, and history. Has the patient returned to substance use after a period of abstinence, or have they increased or changed their substance use in the period immediately preceding their attempt? Was the patient experiencing worsening symptoms of depression, anxiety, or insomnia at the time of a past attempt? When exploring a patient’s prior history of suicidality, attention should be paid to warning signs that were present at the time of the previous attempt(s), and preparatory behavior, so that these can be monitored for longitudinally. While many warning signs are idiosyncratic, or unique to the individual, some are more broadly applicable. There are a number of warning signs whose presence signals an urgent need for immediate mental health evaluation with serious consideration for hospitalization. These are often referred to as direct warning signs and include suicidal communications (e.g., a suicide note), preparation for suicide, seeking access to lethal means, or recent suicide attempt(s). These direct warning signs generally indicate a suicidal crisis in progress, and the inability to independently remain safe, such that hospitalization for safety and stabilization are indicated [15, 16]. The following tables list some important warning signs, including the direct warning signs that have been addressed in this section.

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General Warning Signs Substance use: Escalating use of drugs and alcohol, using increased quantities or increasing frequency of use Sleep disturbances: Insomnia (difficulty falling asleep or staying asleep) or significantly increased sleep Social withdrawal: Isolating from family, friends, colleagues or withdrawing from activities Impulsivity: Engaging in reckless or risky behaviors (such as driving recklessly, engaging in high-risk sexual activity) Self-neglect: Not engaging in self-care, appearing ungroomed, malodorous, or unkept (when that is not baseline) Mood changes:  –  Feeling depressed, hopeless, or losing interest in usual activities  –  Experiencing rage, irritability, and/or seeking revenge  –  Feeling agitated, anxious, unable to relax  –  Sudden calm after period of depression or agitation Hopelessness: Feeling that there is nothing that can be done to improve one’s situation Purposelessness: Having no sense of purpose or no reason for living Guilt or shame: Expressing overwhelming remorse or self-blame

Direct Warning Signs Suicidal communication: Expressing either verbally or in writing a wish to die, intention to act on suicidal thoughts, or threatening to hurt or kill self Preparations for suicide: Taking steps to implement a suicide plan or making arrangements that indicate plans to die such as updating one’s will, saying goodbye to loved ones, etc. Seeking access to lethal means: Procuring weapons, medications, toxins, or other lethal means

Risk Factors and Protective Factors Certain characteristics have been identified through empirical research to be associated with increased or decreased suicide risk, respectively termed risk factors and protective factors. While each patient’s risk profile is unique and informed by their distinct constellation of risk and protective factors, these data points can be useful in developing a comprehensive picture of a patient’s risk. These factors may play an important role in suicide prevention efforts, as identifying and targeting these factors for intervention can modify suicide risk for individuals and communities. The psychiatrist should seek to identify risk and protective factors as part of a systematic inquiry into suicide risk [17]. Risk factors can be stratified into static and dynamic risk factors. Static (non-­ modifiable) risk factors for suicide are historical elements that are associated with an increased risk for suicide. These factors are typically not amenable to intervention. Thus, while they may have a significant influence on a patient’s chronic risk for suicide, they seldom inform the patient’s level of acute risk. For example, a history of multiple prior suicide attempts suggests increased chronic risk for suicide, but does not typically inform the acuity of suicide risk. Conversely, dynamic (modifiable) risk factors may relate to psychiatric or medical symptoms, or psychosocial events and stressors, and thus present targets for treatment or intervention. Since

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these risk factors are more fluid in nature, they should be assessed on an ongoing basis [17–19]. Modifiable risk factors that are particularly salient include the presence of mood disorder symptoms, ongoing substance use, and access to lethal means. Suicide is a complex phenomenon, and is seldom attributable to any single diagnosis or life event. For example, greater than 90% of people who have died from suicide were found to have a diagnosed psychiatric illness at the time of their suicide [20]. Mood disorders were implicated in more deaths from suicide than other psychiatric disorders, including psychotic, personality, and substance use disorders [20]. On the other hand, most people with psychiatric disorders, including mood disorders, never attempt suicide. Even among those with mood disorders—the highest risk group—lifetime suicide rates are under 50% [21]. Similarly, prior suicide attempts are a known risk factor for future suicidality, yet up to two-thirds of suicide deaths occurred during an individual’s first suicide attempt [21].

Protective Factors Equally important in suicide risk assessment is consideration for protective factors. These are qualities, capacities, or resources that increase resilience and promote growth, stability, and health in a way that equips individuals to manage changing life events and stressors in more adaptive ways, without resorting to self-directed violence. Important protective factors include effective mental health care, social connectedness, problem-solving skills, and contacts with caregivers. It is worth noting that the degree to which each individual factor increases or decreases a person’s risk for suicide is variable. Importantly, a person’s particular demographic and cultural characteristics impact these factors in ways that are poorly understood and that are impossible to capture in these measures [22]. Comparison of population studies suggests that the import of specific risk and protective factors may be associated with particular demographic or cultural elements such as a patient’s gender, race, ethnicity, or country of origin [20–23]. Further, the association between risk factors is multidimensional. For instance, while a diagnosis of depressive illness and being unemployed are both risk factors for suicide, they also are independently correlated. Separating out the impact of one risk factor from another is not always possible. Similarly, interpretation of protective factors requires a nuanced and personalized approach that considers the patient’s unique context. One must also consider that risk and protective factors are not binary [24]. For example, a job can provide both a sense of purpose yet also be a source of considerable stress. Depending on the experience of the patient at a given time, that job might increase or decrease their suicide risk. Hence, risk/protective factors can be dynamic. While a full examination of the epidemiologic data is beyond the scope of this chapter, there are a few important limitations that should be acknowledged. Firstly, reliable suicide rates are difficult to obtain [22]. This is largely due to the stigma surrounding suicide which is particularly strong among members of certain cultural and religious groups. Underestimation of suicide in certain populations can result in

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underappreciation of vulnerabilities or experiences that are important in understanding suicide risk. Further, suicide data are ever evolving as rates of suicide among different groups change over time. For example, rates of suicide among Black youth in the United States have been rising, closing the gap with white youth who were previously thought to be at higher risk for suicide [20, 25]. It is therefore necessary to pay ongoing attention to the epidemiological data to ensure accurate consideration of risk and protective factors. As with many aspects of healthcare, more research and work is needed to better serve inclusivity and diversity in the context of suicide risk assessment and management.

Structured Instruments Structured instruments can play an important role in therapeutic risk assessment. These tools can be used for both screening and assessment of suicide risk. Some validated tools that are commonly used include the Beck Hopelessness Scale [26], Reasons for Living Inventory [27], the Columbia Suicide Severity Rating Scale [28], and Beck Scale for Suicidal Ideation [29], though many other useful measures exist. When deciding on a tool to utilize, it is necessary to consider multiple factors such as the training and credentials required for its use, the cost of the instrument, and the time it takes to administer. While the clinical evaluation serves as the foundation of effective suicide risk assessment, using structured instruments to augment the clinical assessment provides numerous benefits. An unstructured clinical evaluation, no matter how thorough, may miss important risk or protective factors that directly impact the nature and severity of a patient’s risk. Validated tools can help ensure that important risk and protective factors are considered [24]. A multifaceted approach to suicide risk assessment, that relies on both clinical evaluation and structured instruments, also affords more opportunities for important clinical data to be shared. For example, a patient that is reluctant to state their thoughts of suicide out loud may be willing to disclose them by circling a number. From the medicolegal perspective, a medical record that reveals clinical risk assessment that is complemented by the use of structured suicide risk assessment tools will almost assuredly meet, if not exceed, applicable standards of care [30]. Structured instruments can also be used to track changes in suicidality over time, as deviations from a baseline are sometimes more easily recognized when measures introduce quantitative data. A person’s acute risk for suicide can fluctuate considerably along with changes in their medical, psychiatric, and psychosocial circumstances. While a clinical evaluation should be attentive to these changes, a standardized measure can reveal trends in risk that are harder to appreciate using a clinical evaluation alone [4, 30]. Take for example a clinician asked to evaluate a patient on an urgent basis, a patient they have never seen before. In this context, distinguishing between high chronic risk that is consistent with the individual’s baseline level of risk, versus a spike in suicidality indicative of an acute crisis, may be challenging. A structured instrument that involves standardized questions and

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assigns numerical values may help translate risk across time and evaluators. So in this clinical scenario, if the covering clinician discovered that the patient’s out-­ patient provider had episodically assessed suicide risk with the Beck Scale for Suicidal Ideation, that measure may be repeated, and responses compared to those offered historically, offering a more quantifiable method for determining any deviation from baseline risk for suicide.

Stratifying Risk While there is no standard of care that expects the clinician to accurately predict suicide, the standard of care does mandate efforts to assess suicide risk, and to implement treatment plans that cogently address the nature and severity of that risk. Hence, the purpose of therapeutic risk assessment is to stratify the risk for suicide in a way that informs clinical interventions. Thus, for risk assessment to be useful to the patient and clinician, it must capture the dynamic nature of suicide risk in a way that actually informs the treatment plan. To accomplish this, the severity of both chronic and acute risk must be accounted for. A bi-dimensional approach that stratifies risk in terms of both severity (i.e., low, moderate, high) and temporality (short-­ term or acute vs long-term or chronic) is recommended. Historically, many assessment schemes utilized a one-dimensional approach that encapsulated risk as high, moderate, or low. But failing to discriminate between acute and chronic risk results in underdeveloped and imprecise risk formulations that lack the requisite nuance to guide clinical decision-making. Using formulations that stratify risk based on rough composites of acute and chronic factors can easily result in under or overestimation of risk. Interventions appropriate to mitigating acute risk are very different to those needed to mitigate chronic risk. For example, hospitalizing a patient in the midst of a suicide crisis affords the safety and support of the psychiatric unit, and represents a potentially lifesaving intervention in the context of high acute risk. But admission does not typically benefit a patient at high chronic risk for suicide (absent an acute crisis). That individual typically requires long-term treatments to target the drivers of suicide risk, such as emotion regulation and distress tolerance skills, to help them better tolerate future life stressors without turning towards self-directed violence. In fact, hospitalization can potentially exacerbate chronic risk if it fosters dependency on external supports to remain safe [19, 31]. These concepts are well-illustrated via the case vignette at the start of this chapter. The hypothetical patient seen for consultation in the primary care clinic is not unlike many patients treated in medical and psychiatric settings, and highlights the challenge inherent to assigning a single suicide risk severity designation to complex patients. On the one hand, the patient’s history of psychiatric illness, family history, and prior suicide attempts all suggest high risk for suicide, while his psychosocial stability, engagement in treatment, and lack of present intent or plan all mitigate his level of risk. How can these competing data points be accounted for simultaneously in a way that informs treatment planning? Simply describing the patient as high risk

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for suicide fails to account for his absent intent and plan, and suicidal ideation at baseline. Hospitalizing this patient is unlikely to afford any benefit, and may actually be disruptive to his current relative stability and outpatient treatment. But calling this patient low risk for suicide on the basis of their current baseline level of suicidal ideation, with no intent or plan, fails to account for important historical risk factors, and would not withstand scrutiny given the myriad high-risk elements in his history. As is evident here, a one-dimensional risk designation cannot adequately accomplish this. Instead, a two-dimensional risk stratification that accounts for both severity and temporality is needed. In this case, the patient is at high chronic risk for suicide and at low acute risk for suicide. This risk stratification recognizes both the high long-term risk for future suicidal behaviors and the low risk for such in the short term, and justifies ongoing management on an outpatient basis with efforts to mitigate drivers of chronic risk.

Acute Risk for Suicide Understanding a patient’s acute risk is essential to determine the immediate interventions that are needed to optimize safety and treatment. Special attention to warning signs, particularly direct warning signs, is needed to assess acute risk. For patients with chronic suicidal ideation, attention to intent, plan, and reasons for living versus reasons for dying, will be crucial elements informing the level of acute risk. Acute risk is dynamic and can change considerably (and quickly) in response to changing illness or psychosocial circumstances. This is particularly true for patients at high chronic risk. Below we outline and distinguish between high and moderate forms of risk, as this can often be the most challenging distinction for less experienced clinicians. Low risk is not specifically addressed as can be presumed when criteria for high or moderate risk are not met. When the acute risk for suicide is determined to be high, inpatient hospitalization is generally the most appropriate intervention for safety. For patients in other treatment settings (e.g., emergency room, medical unit), efforts to make the environment safe (e.g., use of a one-to-one, removing potential lethal means) are indicated. When acute risk for suicide is moderate, enhancing care in the outpatient setting is warranted. This might involve increasing the frequency of visits, transitioning to an intensive outpatient treatment program, or between-appointment check-ins using visual or audio telehealth. Voluntary hospitalization may be warranted under other circumstances. Efforts to update and ensure ready access to a safety plan are always warranted in the setting of moderate acute risk. The following risk stratification table was adapted from the Rocky Mountain Mental Illness Research Education and Clinical Center’s (MIRECC) risk stratification tool and provides a summary of features associated with high and intermediate acute risk categories as well as recommended actions for each [31].

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Essential features

Likely features

Recommended actions

A. Danzig and H. Wortzel High acute risk Suicidal ideation with intent to end one’s life AND An inability to maintain safety without external support or help Suicide plan Access to means Recent or ongoing preparatory behaviors and/ or a recent suicide attempt Acute psychiatric symptoms (i.e., depression, anxiety, substance use, psychosis) Dysregulation due to exacerbation of underlying personality disorder (or traits) Acute psychosocial stressor (i.e., job loss, relationship change) Usually requires psychiatric hospitalization to maintain safety and aggressively target modifiable factors Until on a secure unit, need to be directly observed with limited access to lethal means During hospitalization co-occurring psychiatric symptoms should also be addressed

Intermediate acute risk An ability to maintain safety without external support or help

May present similarly to those at high acute risk except for: Lack of intent or preparatory behaviors Reasons for living Ability/desire to abide by safety plan

Can consider psychiatric hospitalization if factors driving risk are amenable to inpatient treatment (e.g., acute psychosis) Outpatient management of suicidal thoughts and/or behaviors should be intensive and include: frequent contact, regular re-assessment of risk, and a well-articulated safety plan. Mental health treatment should also address co-occurring psychiatric symptoms

Chronic Risk for Suicide Understanding the patient’s baseline risk is necessary to formulate a comprehensive and patient-centered treatment plan and to longitudinally monitor the patient’s level of acute risk. A clear understanding of the baseline risk, particularly if it is highly chronic, can protect against unnecessary escalations in care (i.e., needless and potentially countertherapeutic admissions) [32].

 igh Chronic Risk H Patients with high chronic risk for suicide often have some combination of chronic psychiatric or medical illness, prior suicide attempts, unstable psychosocial circumstances (financial instability, housing insecurity, lack of stable relationships), and

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limited coping skills. These patients are at chronic risk of becoming acutely suicidal, often in response to unpredictable future events (e.g., new psychosocial stressor, exacerbation of a medical or psychiatric condition). High chronic risk warrants regular psychiatric treatment that emphasizes treatment of the underlying illness, fortification of protective factors, and interventions to enhance coping skills. Patients at high chronic risk for suicide require ongoing assessment for acute suicide risk, and should regularly be engaged with updated safety planning (to include lethal means safety).

 oderate Chronic Risk M Patients with moderate chronic risk for suicide may possess some of the same risk factors as those with high chronic risk (chronic psychiatric or medical illness, prior suicide attempts, etc.) but are generally better equipped to manage crises without turning to suicidal thoughts or behaviors, by virtue of more adaptive coping strategies and resiliency. Some of the factors that enable these patients to manage crises include enhanced reasons for living, more psychosocial stability, and better-­ developed coping skills. Routine psychiatric care that emphasizes maintenance and enhancement of coping skills as well as ongoing monitoring of suicide risk is recommended for patients with moderate chronic risk for suicide. Safety planning is also typically warranted in this setting. The following risk stratification table was adapted from the Rocky Mountain Mental Illness Research Education and Clinical Center’s (MIRECC) risk stratification tool and provides a summary of features associated with high and intermediate chronic risk categories as well as recommended actions for each [31]. Essential features

High chronic risk Chronic suicidal ideation (common warning sign) Common risk factors:  –  Chronic serious mental illness and/or personality disorder  –  History of prior suicide attempt(s)  –  History of substance use disorder/dependence  –  Chronic pain  –  Chronic medical illness  –  Unstable or turbulent psychosocial status (e.g., unstable housing, erratic relationships, marginal employment)  –  Limited coping skills  –  Limited ability to identify reasons for living

Intermediate chronic risk May have similar risk factors to those with high acute risk (including psychiatric, substance use, medical and pain disorders) Often have a number of the following protective factors:  –  Adaptive coping skills  –  Reasons for living  –  Relative psychosocial stability

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A. Danzig and H. Wortzel High chronic risk These individuals typically require:  –  Regular mental health follow-up  –  A well-articulated safety plan, including means safety (e.g., no access to guns, limited medication supply)  –  Regular suicide risk screening  –  Coping skills building  –  Treatment of co-occurring psychiatric symptoms

Intermediate chronic risk These individuals typically require:  –  Routine mental health care to optimize psychiatric treatment and maintain/enhance coping skills and protective factors  –  A well-articulated safety plan, including means safety (e.g., no access to guns, limited medication supply)  –  Treatment of co-occurring psychiatric symptoms

Safety Planning Evolving standards in suicide risk management involve interventions to mitigate risk through safety planning. Use of contracts that involve a patient committing to refrain from harming themselves is not recommended. Such contracts lack empirical support, are not patient-centered, and can provide a false sense of reassurance to both the patient and clinician. Use of such contracts can result in increased medicolegal exposure for the clinician who is at risk of underestimating the patient’s suicide risk due to reliance on the patient’s promise to not harm themselves [33–35]. Further, use of such contracts can interfere with the therapeutic relationship as patients might hesitate to share their suicidal thoughts, fearing that they will be seen as dishonest or unreliable given the promise they offered in the contract. This can deepen feelings of shame or failure in cases where patients do attempt suicide. Fundamentally, no-suicide contracts fail to account for the complexity of suicidal impulses and behaviors. Instead of asking patients to make promises about what not to do in crises, we recommend equipping them with skills and options they can employ to safely navigate a crisis. The goal of safety planning is to provide the patient with graded strategies that they can engage as needed to navigate or de-escalate a suicidal crisis. Ideally, this culminates in the ability to independently recognize and abate a sequence of events that might have previously culminated in self-directed violence. Alternatively, the patient is provided with various external supports that can be used to help maintain safety. Working with the patient to develop a safety plan can be a powerful way to establish and enhance therapeutic rapport, through collaboration and planning that centers upon the patient’s individual needs and experiences. A safety plan is a practical tool that should be designed to be accessible and useful to each individual patient. Explaining the rationale for safety planning is critical. Using the patient’s own words and a format that they find easy to access are both important as well, helping to engender a sense of ownership and collaboration in relation to the plan. Once in a crisis, a patient’s ability to think and plan clearly can be compromised—that is why having an accessible plan available for guidance in the midst of

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a crisis is crucial. Assembling a clear plan for action in advance of crisis, practicing those steps, and having the plan accessible, enables the patient to walk the steps without having to engage in novel problem solving in the moment. Ensure that the patient knows where to find their safety plan and understands how to use it. Ideally, a patient will review their safety plan regularly to develop fluency with the plan and the steps it provides to navigate a crisis. For a safety plan to be most useful, each step should be individualized to the patient and the steps should be as specific as possible. Key components in a safety plan are identification of warning signs, coping strategies, strategies for distraction, personal and professional contacts who can be reached for help, and ways to increase the safety of the environment [33, 36]. Critical components of a safety plan include: Identification of Warning Signs The first step in creating a safety plan involves identifying the unique suicide warning signs that are relevant to the patient. These can include images, thoughts, feelings, behaviors, or physical sensations that signal to a patient that their risk is increasing. When patients recognize that they are experiencing warning signs, they can then utilize the safety plan by following the next steps. Internal Coping Strategies For this step, patients identify and list coping strategies that they can employ on their own, without contacting another person. The purpose of these strategies is to take the patient’s mind off the crisis and to prevent it from escalating. The specific strategies a patient lists should be guided by their own interests and experiences. Some examples of coping strategies include “take a walk around the reservoir in Park X” or “listen to playlist Y while sitting on the comfy chair.” Note that these items are specific and include details so that the patient can follow the plan while in crisis without having to think through details while under duress. More general items such as “exercise” or “listen to music” would be less helpful. Strategies for Distraction If coping strategies do not sufficiently reduce the level of suicidal ideation or intent, patients can then turn to external means of providing distraction from their distress. This can include going to public places where others are gathered, engaging in a group activity, or calling a friend to chat. Importantly, this step does not involve reaching out for declared help with the suicidal crisis, but rather involves placing oneself in settings or interactions that afford distraction and allow the patient to take their mind off the crisis. Personal Contact to Reach Out for Help If the crisis is not resolved via internal and external sources of distraction the next step involves contacting others for help. Patients should list friends and family members they would be comfortable reaching out to when in crisis and should include contact information so it is readily accessible. Patients should be encouraged to include contacts they trust and with whom they have reliable and stable

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relationships. Ideally, the safety plan should be shared with these contacts to facilitate their ability to offer support and guidance. Professional and Agency Contacts to Reach Out for Help If a patient continues to be in crisis after completing the previous steps, they should reach out to professionals for help. On their safety plan, patients should list the names and contact information for their therapist, psychiatrist, and/or emergency resources such as the 988 Suicide and Crisis Lifeline. Patients can also list addresses for crisis centers or psychiatric emergency departments where they can present in person. When planning for this step it is important to speak openly with patients about what to expect when they reach out for help. Providing clear information about individual treaters’ work hours and accessibility for emergencies is necessary so that patients do not reach out for help where it is not available. When listing crisis lines or agencies, one should make sure that the patient understands under what circumstances an emergency response will be triggered.

Environmental Safety and Access to Lethal Means When planning for safety, consider the patient’s environment, including their home, work, and social environments, as well as other places the patient may spend time. Enhancing the safety of the patient’s environment involves both adding things that promote safety and removing things that increase risk. Understanding an individual’s reasons for living as well as their warning signs can help guide these actions. For example, items that remind the patient of their reasons for living can enhance safety, like placing a photo of children, grandchildren, or pets near a patient’s gun safe or medication lock box. Posting the safety plan in strategic locations may also contribute to environmental safety. Similarly, removing access to items that increase risk is vitally important. Access to lethal means is a critical component of safety planning, as individuals with access to lethal means are more likely to die from suicide than individuals without. Studies of people who have survived suicide attempts have shown that the time between deciding to attempt suicide and the time of the attempt averages under 10 min [37]. Thus, increasing the time it takes for a person in crisis to access lethal means is key for suicide risk mitigation [38, 39]. While it is not practical to remove access to all potential lethal means, removing or restricting access to high lethality means should be undertaken. The specific lethal means to be addressed with each patient depends, in part, on the patients’ particular plan, history, and risk. For example, access to both prescribed and over-the-counter medications should be addressed with patients who have a plan to overdose or have attempted suicide by overdose [13]. In some cases, it can be useful to lock medications away so that patients do not have immediate access or prescribe limited supplies of medications that are lethal in overdose. In cases where the patient has previously attempted suicide while intoxicated, removal of alcohol or drugs can be helpful too.

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Firearms require special consideration as a high lethality means for suicide. Since firearm access is an independent predictor of suicide, addressing firearm access with any patient at risk for suicide, even those with no history of attempts via firearm, is recommended. This includes inquiring about the number of firearms to which a patient has access, how and where those firearms are stored, and the availability of ammunition. For clinicians who lack familiarity with firearms, seeking out education about firearms can be useful, allowing for more comfortable and informed discussions. This can be an intimidating subject for providers and patients, given differing perspectives on safety and gun rights that may be present. But current evidence indicates that most patients respond favorably to discussions about firearm access when it is presented in the context of suicide risk [13]. The optimal strategy for mitigating suicide risk for those with firearm access is to remove the firearm from the home. If a patient is unwilling or unable to have the firearm removed, safe storage of the firearm in the home should be discussed as another option. When making a recommendation to remove a firearm from a patient’s home, it is necessary to consider to whom the firearm will be transferred. A firearm should not be transferred into the custody of a person who is at high risk for suicide. Additionally, one must be mindful of firearm transfer laws that can limit the options in certain states. For those who do not have a person that can safely and legally store their firearm, other potential options for safe storage include law enforcement stations, shooting ranges, firearm clubs, and firearm retailers [13].

Medications for Suicide Prevention Pharmacological Strategies for Depression and Suicide There is little evidence to suggest that medication management in the setting of suicide risk should deviate substantially from practice guidelines applicable to underlying psychiatric conditions. But in the setting of suicide risk, the safety of medications potentially becomes more important. For example, in the setting of depression and the use of antidepressants, selective serotonin reuptake inhibitors, and serotonin norepinephrine reuptake inhibitors offer relatively favorable profiles in relation to safety, tolerability, side effects, and potential pharmacological interactions. Such a profile makes for a good first-line choice, whether treating depressive disorders, anxiety, or any other psychiatric condition, and this remains true in the setting of increased suicide risk. Risk-benefit analysis on a case-by-case basis should inform clinical decision-­ making in the selection of an appropriate medication. Lithium serves as an illustrative example. Though there is a body of literature suggesting that lithium offers some protection in relation to suicide risk, the strength of that evidence is modest [39]. Clearly though, lithium is dangerous, potentially lethal, in overdose. Thus, individualized decision-making about lithium use in the setting of suicide risk requires attention to details relating to the patient in the room. For example, for a patient that has historically struggled with treatment adherence, and has a history of

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multiple impulsive suicide attempts involving overdose, the risks attendant to lithium likely outweigh the potential for modest protective effects. Psychiatrists should clearly document risk-benefit analysis and informed consent when collaboratively arriving at decisions about medication choices in the setting of suicide risk.

Conclusion Suicide risk assessment and management is a necessary aspect of psychiatric evaluation and treatment, for both clinical and medicolegal reasons. We can simultaneously attend to all these reasons with an evidence-informed approach that emphasizes patient-centered care and prioritizes the therapeutic relationship. Therapeutic suicide risk assessment should begin with a clinical evaluation that is augmented by the use of structured instruments, and collateral data, yielding a multifaceted approach to gathering data pertinent to risk stratification. The goal is to arrive at a risk stratification that addresses both acute and chronic risk, and which cogently informs safety needs and treatment plans. To mitigate suicide risk, clinicians should work collaboratively with patients to arrive at an individualized safety plan, one which addresses access to lethal means, and affords the patient with a series of steps they can engage in as needed, to abate or safely navigate a suicidal crisis. The standard of care for suicide risk assessment and management has evolved considerably and will assuredly continue to do so. Clinicians will need to remain abreast of changes in this evolving area of psychiatric practice to optimize patient safety.

References 1. https://psychiatryonline.org/pb/assets/raw/sitewide/practice_guidelines/guidelines/suicide.pdf. 2. https://www.jointcommission.org/-/media/tjc/documents/resources/patient-safety-topics/suicide-prevention/r3_18_suicide_prevention_hap_bhc_5_6_19_rev5.pdf?db=web&hash=88718 6D9530F7BB8E30C28FE352B5B8C. 3. h t t p s : / / w w w . h e a l t h q u a l i t y . v a . g o v / g u i d e l i n e s / M H / s r b / VADoDSuicideRiskFullCPGFinal5088212019.pdf. 4. Wortzel HS, Matarazzo B, Homaifar B.  A model for therapeutic risk management of the suicidal patient. J Psychiatr Pract. 2013;19(4):323–6. https://doi.org/10.1097/01. pra.0000432603.99211.e8. 5. Wortzel HS, Nazem S, Bahraini NH, Matarazzo BB. Why suicide risk assessment still matters. J Psychiatr Pract. 2017;23(6):436–40. https://doi.org/10.1097/PRA.0000000000000263. 6. Simon RI. Therapeutic risk management of the suicidal patient. In: Simon RI, Hales RE, editors. Textbook of suicide assessment and management. 2nd ed. Washington, DC: American Psychiatric Publishing; 2012. p. 553–80. 7. Simon RI, Shuman DW. Therapeutic risk management of clinical-legal dilemmas: should it be a core competency? J Am Acad Psychiatry Law. 2009;37(2):155–61. 8. Large MM.  The role of prediction in suicide prevention. Dialogues Clin Neurosci. 2018;20(3):197–205. https://doi.org/10.31887/DCNS.2018.20.3/mlarge. 9. Appelbaum PS.  Malpractice claims in psychiatry: approaches to reducing risk. World Psychiatry. 2021;20(3):438–9. https://doi.org/10.1002/wps.20907.

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10. Nazem S, Pao C, Wortzel HS. Therapeutic risk management and suicide postvention. Law and psychiatry column. J Psychiatr Pract. 2020;26(3):235–40. 11. Shea SC. Psychiatric interviewing. Philadelphia: W B Saunders Company; 1998. 12. https://www.mirecc.va.gov/visn19/docs/Clinical_tool.pdf. 13. Borges LM, Nazem S, Matarazzo B, Barnes S, Wortzel HS.  Therapeutic risk management: chain analysis. Law and psychiatry column. J Psychiatr Pract. 2019;25(1):46–53. 14. Simonetti JA, Wortzel HS, Matarazzo BB. Therapeutic risk management and firearm-related lethal means safety. J Psychiatr Pract. 2021;27:456–65. 15. Rudd MD, Berman AL, Joiner TE Jr, Nock MK, Silverman MM, Mandrusiak M, Van Orden K, Witte T. Warning signs for suicide: theory, research, and clinical applications. Suicide Life Threat Behav. 2006;36(3):255–62. https://doi.org/10.1521/suli.2006.36.3.255. 16. Qin P, Agerbo E, Mortensen P. Suicide risk in relation to socioeconomic, demographic, psychiatric and familial factors. Eur Psychiatry. 2002;17(S1):138s. https://doi.org/10.1016/ S0924-9338(02)80606-X. 17. Brown GK, Beck AT, Steer RA, et al. Risk factors for suicide in psychiatric outpatients: a 20-year prospective study. J Consult Clin Psychol. 2000;68:371–7. 18. Berman L. Assessing and formulating acute risk for suicide. Defense Centers of Excellence for Psychological Health & Traumatic Brain Injury; 2009. http://www.dcoe.mil/event_docs/ suicide_prevention_conf/12_JAN_09_BERMAN_1405-1445_LONESTAR_D_Assessing_ and_Formulating_Acute_Risk_for_Suicide.pdf. Accessed 28 Dec 2013. 19. Hirschfeld RM, Russell JM.  Assessment and treatment of suicidal patients. N Engl J Med. 1997;337(13):910–5. https://doi.org/10.1056/NEJM199709253371307. 20. Mann JJ.  A current perspective of suicide and attempted suicide. Ann Intern Med. 2002;136(4):302–11. 21. Bachmann S. Epidemiology of suicide and the psychiatric perspective. Int J Environ Res Public Health. 2018;15(7):1425. https://doi.org/10.3390/ijerph15071425. 22. Malone KM, Oquendo MA, Haas GL, Ellis SP, Li S, Mann JJ.  Protective factors against suicidal acts in major depression: reasons for living. Am J Psychiatry. 2000;157(7):1084–8. https://doi.org/10.1176/appi.ajp.157.7.1084. 23. Nock MK, Hwang I, Sampson N, Kessler RC, Angermeyer M, Beautrais A, et al. Crossnational analysis of the associations among mental disorders and suicidal behavior: findings from the WHO World Mental Health Surveys. PLoS Med. 2009;6(8):e1000123. 24. Alvarez K, Polanco-Roman L, Breslow AS, Molock S. Structural racism and suicide prevention for ethnoracially minoritized youth: a conceptual framework and illustration across systems. 2022. 25. Beck AT, Steer RA.  Manual for beck hopelessness scale. San Antonio, TX: Psychological Corporation; 1988. 26. Linehan MM, Goodstein JL, Nielsen SL, Chiles JA.  Reasons for staying alive when you are thinking of killing yourself: the reasons for living inventory. J Consult Clin Psychol. 1983;51(2):276–86. https://doi.org/10.1037//0022-006x.51.2.276. 27. Cochrane-Brink KA, Lofchy JS, Sakinofsky I. Clinical rating scales in suicide risk assessment. Gen Hosp Psychiatry. 2000;22(6):445–51. https://doi.org/10.1016/s0163-8343(00)00106-7. 28. Beck AT, Steer RA, Ranieri WF. Scale for suicidal ideation: psychometric properties of a selfreport version. J Clin Psychol. 1988;44:499–505. 29. Homaifar B, Matarazzo B, Wortzel HS. Therapeutic risk management of the suicidal patient: augmenting clinical suicide risk assessment with structured instruments. J Psychiatr Pract. 2013;19:406–9. 30. Wortzel HS, Homaifar B, Matarazzo B, Brenner LA.  Therapeutic risk management of the suicidal patient: stratifying risk in terms of severity and temporality. J Psychiatr Pract. 2014;20(1):63–7. https://doi.org/10.1097/01.pra.0000442940.46328.63. 31. https://www.mirecc.va.gov/visn19/trm/docs/RM_MIRECC_SuicideRisk_Table.pdf. 32. Matarazzo BB, Homaifar BY, Wortzel HS.  Therapeutic risk management of the suicidal patient: safety planning. J Psychiatr Pract. 2014;20(3):220–4. https://doi.org/10.1097/01. pra.0000450321.06612.7a.

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33. Range LM, Campbell C, Kovac SH, et al. No-suicide contracts: an overview and recommendations. Death Stud. 2002;26:51–74. 34. Rudd MD, Madrusiak M, Joiner TE. The case against no suicide contracts: the commitment to treatment statement as a practice alternative. J Clin Psychol. 2006;62:243–51. 35. Stanley B, Brown GK. Safety plan treatment manual to reduce suicide risk: veteran version. Final Version 8-20-2008. www.mentalhealth.va.gov/docs/VA_Safety_planning_manual.pdf. 36. Deisenhammer EA, Ing CM, Strauss R, et al. The duration of the suicidal process: how much time is left for intervention between consideration and accomplishment of a suicide attempt? J Clin Psychiatry. 2009;70:19–24. 37. Charles SC, Wilbert JR, Franke KJ. Sued and nonsued physicians’ self-reported reactions to malpractice litigation. Am J Psychiatry. 1985;142:437–40. 38. Simon TR, Swann AC, Powell KE, et al. Characteristics of impulsive suicide attempts and attempters. Suicide Life Threat Behav. 2002;32:49–59. 39. Cipriani A, Hawton K, Stockton S, et al. Lithium in the prevention of suicide in mood disorders: updated systematic review and meta-analysis. BMJ. 2013;346:f3646.

Violence Risk Assessment

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Alexander Westphal

Clinical Vignette You are a psychiatrist on an inpatient unit at a state mental hospital. A middle-aged man with schizophrenia has been held at the hospital for over a decade after being found not guilty by reason of insanity for the murder of a police officer. He is being considered for a reduction in oversight so that he can walk unaccompanied from his unit to group and individual therapy sessions, a 5-minute walk. The hospital campus is not contained, so theoretically he would have the opportunity to leave the campus during this walk. He would be required to call the unit upon reaching the therapist’s office. With this arrangement if he did leave without permission, the hospital should be aware of the situation in less than 10 minutes. The patient is currently restricted to the unit, unless accompanied by staff. There are several concerns with reducing his oversight. First, he has a history of extensive violence beyond the index offense, including numerous assaults directed against hospital staff. However, he has not been violent in over a year. Second, during individual therapy, he has described fantasies of shooting his wife, a woman who was previously a patient at the hospital but has now been discharged and is living in a nearby community. He denies any intention of acting on these fantasies. The psychologist to whom he disclosed the fantasies, while alarmed by what the patient described, points out that he has never been violent with women, and that his pattern of violence is explosive and oppositional, and in the past, has arisen only during interactions with authority figures or during the commission of another crime. As far as anyone knows, he has never planned a violent act. She also emphasizes that he identifies the thoughts as fantasies rather than a plan. He has a slew of static risk factors, A. Westphal (*) Law and Psychiatry Division, Yale School of Medicine, New Haven, CT, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 T. Wasser, R. Zhong (eds.), Psychiatry and the Law, https://doi.org/10.1007/978-3-031-52589-6_14

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including age and gender, as well as dynamic ones, including active substance abuse and a psychotic disorder. You conduct a mental status examination as part of your assessment. The exam is unremarkable other than for mild irritability, evident in curt, dismissive answers to several of your questions. He has no signs or symptoms of active psychosis. He categorically denies any intention of harming anyone, even while he acknowledges the fantasies described by the psychologist. He says that the reason he brought them up to the psychologist was because they bothered him and wanted help getting rid of them and points out that if he were planning to act on them, he would not have told anyone about them. He feels that it is unfair that they are being considered as a factor in the decision whether to reduce his level of oversight. He says that he just wants to get back to his normal life, and has spent enough time in the hospital. Would you support this reduction of oversight? If so, assuming no setbacks, how rapidly would you allow the patient to progress to longer periods without supervision? Should the patient be allowed to visit his wife? And should his wife be warned about the fantasies?

History of the Real Case and Its Significance On December 7, 1979, Dwayne White, a patient confined to St. Elizabeth’s Hospital in Washington DC left the grounds and stabbed his wife, Genoa White, more than 50 times with a pair of scissors. At the time of the attack, Dwayne White had “grounds privileges” which required that he stay on the hospital campus, but only required that he check in to the unit twice a day at 9 AM and 9 PM and permitting him to go anywhere on the Hospital premises between 9  AM and 9  PM without supervision. The hospital, while maintaining some security measures, had an open campus [1]. Mr. White had been admitted to St. Elizabeth’s 10 years earlier on a court order after he had been acquitted of the murder of a police officer by reason of insanity, otherwise known as not guilty by reason of insanity (NGRI). The murder occurred when five police officers attempted to arrest Mr. White’s father. Since then, Mr. White remained violent at the hospital, with numerous assaults on staff and the hospital’s law enforcement. He escaped from the hospital once, and assaulted a cab driver in an attempt to rob him. But over the years, Mr. White became less violent. He became involved in a relationship with Mrs. White, who at the time was also a patient at the hospital, and they married. The hospital began to ease the restrictions on Mr. White, and over the course of a year he progressed from passes to walk across campus to attend therapy to complete freedom on the campus during the day. He had been on this status for 6 months when he left the campus without permission and attacked his wife. During the year preceding the assault, Mr. White had told his therapist that he had fantasies about shooting his wife. Because of a hospital policy designed to encourage the therapeutic alliance between patients and their providers, his therapist did not participate in administrative decisions regarding his status, and did not

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notify the hospital about the fantasies, and Mrs. White was not notified. The psychologist felt that his risk level for acting on the fantasies was low because Mr. White had no history of assaulting women and had not assaulted anyone for more than a year. Mr. White was criminally charged for assaulting his wife and in the legal case against him he again used the insanity defense, but this time it was unsuccessful, and he was convicted of assault with intent to kill. Mrs. White brought a Federal Tort Claims Act action against the hospital claiming that the hospital should have warned her of this threat, and by failing to do so, had breached a duty to her. Furthermore, she claimed that the hospital was negligent by not taking reasonable precautions to ensure that he did not leave hospital grounds. The District Court found that Mr. White’s psychotherapist was acting within professional standards of competence and that St. Elizabeth’s had not been negligent in granting Mr. White unsupervised access to the hospital grounds because it was not foreseeable that he would leave and attack his wife. The decision was appealed, and the Court of Appeals affirmed that the psychotherapist was not negligent, referencing Tarasoff: In defining the duty to warn, the courts have made it clear that the duty is not triggered by the mere existence of a threatening statement by a patient to his psychotherapist. Such statements are commonly expressed to psychiatrists and merely pose but do not answer the difficult question of whether danger is actually present. Before a hospital or psychotherapist incurs an obligation to warn, the patient must present a ‘serious danger of violence’ to a ‘foreseeable victim of that danger.’ [2]

The Court of Appeals found, however, that St. Elizabeth’s Hospital was negligent, overturning the previous court’s decision. They cited evidence that the hospital had downplayed Mr. White’s potential for elopement and violence to support this decision. This case has several implications, not the least of which is that institutions, rather than individual clinicians, bear the brunt of the liability for risk assessment.

Core Principles of the Topic Introduction The vignette case, described above, highlights some of the challenges of assessing whether someone poses a risk for violence. The patient had several risk factors for violence, including a history of violence, a major mental illness, and fantasies about violence. While the fantasies he described to his psychotherapist were alarming, she balanced this against the fact that they were fantasies rather than a plan, and while they were about violence, seemed to be qualitatively different than his personal past history of violence (e.g., he had never acted violently towards women, nor had he been violent other than while committing a crime or responding to a perceived threat). She also considered the fact that he had not acted violently recently. She

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decided not to take measures to contain the risk. She made a clinical judgment of the type that people involved in mental health care make so frequently. In this case, her assessment was incorrect, but the court did not find that she was negligent, illustrating that they recognized that a degree of error is inevitable in this sort of assessment. As the court recognized, there is no simple formula for risk assessment for violence. However, it is one of psychiatry’s most important tasks, and while it is frequently encountered in emergency psychiatric evaluations, it is also something clinicians need for the day-to-day management of stable patients. Risk assessment is, in many ways, unlike other aspects of psychiatry in which the primary duty is to the patient. While a psychiatrist conducting a risk assessment certainly has a duty to the patient they are assessing, they must balance this against a duty to the public. These distinct tasks can cause competing interests, which can lead to very complex situations.

Approaches to Risk Assessment Clinicians frequently approach risk assessment on a case-by-case basis, tailoring their approach to the individual. This is sometimes described as a “clinical judgment” approach, and when done well, allows the clinician to create a detailed, dynamic, and qualitative portrait of the individual and their risk [3]. In this approach, the clinician integrates what they know about the patient’s personality, symptoms, and environment with their understanding of the likely causes of violence. As a sole approach, it is limited. It is, by definition, idiosyncratic and thus not reproducible or transparent; it cannot be compared across time or populations. Clinical judgment approaches are contrasted with “actuarial” approaches. Actuarial approaches refer to a body of research that has identified risk factors across groups of subjects and use the results to make predictions about the risk of individuals [4]. The results are quantitative and so can be compared over time and populations. An example of an actuarial risk assessment tool, the VRAG, is discussed below. There are various problems with actuarial approaches as the sole tool for risk assessment, mostly related to applying facts derived from aggregate data to the individual. A fundamental problem with actuarial approaches is a consequence of the rarity of violence. In principle, the more rarely an event occurs, the more difficult it is to predict; the occasional true predictions get lost in the noise of false positives. This creates a clinical predicament: If a positive prediction of violence very likely represents a false positive, treating everyone who tests positive (e.g., securing them in psychiatric hospitals) would be completely unreasonable. Furthermore, even if this approach were taken, it would inevitably miss people from lower risk categories who are going to act violently. Another type of approach, based on machine learning, is increasingly utilized in violence risk assessment. Machine learning algorithms can be trained on data sources that include criminal histories, psychiatric evaluations, and social media activity. These algorithms can then be used to predict the likelihood of future violence based on specific risk factors, such as history of violent behavior or substance

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abuse [5]. This is essentially a modified, actuarial approach that is able to use massive amounts of information. One approach to using machine learning for violence risk assessment is to develop predictive models that assign a risk score to individuals. These models typically use a combination of risk factors and historical data to make predictions about future violence. By analyzing large amounts of data, these models can identify patterns and risk factors that might otherwise be obscured. While machine learning has the potential to improve violence risk assessment, there are concerns about bias and accuracy, as well as ethical problems. Machine learning algorithms are only as good as the data they are trained on, and if the data is biased or incomplete, the predictions will also be biased or incomplete. In addition, machine learning algorithms may miss contextual factors that could impact an individual’s risk of violence [6]. Structured Professional Judgment (SPJ) approaches are intended to address the weaknesses of clinical judgment and actuarial approaches when used in isolation. SPJ combines both clinical and actuarial approaches into a predetermined interview structure that incorporates what is known about actuarial risk factors while also considering the specific, dynamic aspects of the case. Some risk assessment instruments are designed to accomplish this task. An example is the HCR-20, discussed below [7]. A thorough consideration of the risk factors in any psychiatric interview is clearly central to reducing risk, and the responsibility of anyone involved in psychiatric decision-making. Risk assessments conducted by independent clinicians (not directly involved in patient care) with specialized training in risk assessment can be an important resource. However, when this is not available, clinicians should still do their best to consider actuarial risk factors, to combine them with the dynamic risk factors of the case, and to link all of the risk factors to a management plan directed at reducing the identifiable and malleable risks. When there is any concern for risk, it is simply not enough to ask someone whether they have violent intentions or access to weapons, and call it a day.

Risk Factors for Violence The American Psychiatric Association Resource Document on Psychiatric Violence Risk Assessment [3] identifies several risk factors as most important in determining violence risk: 1. Prior violence 2. Prior arrest 3. Young age at the time of first arrest 4. Drug and/or alcohol abuse 5. Cruelty to animals and people 6. Fire setting 7. Risk taking 8. Behavior suggesting loss of control or impulsivity

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9. Present circumstances and mental state 10. Male under 40 11. Noncompliance with treatment 12. Access to weapons 13. Role of significant other and/or caretaker (either provocative or not protective) 14. Sees self as victim 15. Lack of compassion/empathy 16. Intention to harm 17. Lack of concern over consequences of violent acts The most authoritative study of risk factors to date, the MacArthur Violence Risk Assessment Study, followed 1136 subjects from civil admissions in inpatient hospitals [8]. The subjects were interviewed in the hospital and then twice more after discharge over a 20-week period. Information was gathered from interviews with the patient, as well as interviews with collateral sources and official records, such as hospital or arrest records. The outcome measure, violence, included threats made with a weapon in hand even in the absence of physical assault. About 20% of the subjects went on to act violently within the time period. Among the major risk factors identified by the MacArthur study were psychopathy (the most powerful predictor of violence) and a mental health diagnosis. These are discussed in more detail below. They confirmed several well-established risk factors, including gender, prior violence, childhood experiences of physical abuse, and socioeconomic status. They also clarified several risk factors related to the symptoms of mental illness. The presence of delusions, whatever the content, was not related to violence, even though a “suspicious attitude” was. Neither hallucinations in general, nor even “command” hallucinations increased the risk of violence. However, command hallucinations in which the subject was commanded to act violently did increase the risk. So too did daydreaming or thinking about harming others. Anger, measured by a scale, was also strongly associated with violence. Risk factors for violence fall broadly into two categories that in some ways mirror the distinction between clinical and actuarial approaches. Static risk factors are those that do not change over time and are captured by actuarial approaches. An example is a history of a prior violent act. Once a person has acted violently, they are at higher risk for acting violently again, even if there are substantial changes in their situation, and the likelihood of this can be quantified. Dynamic risk factors, on the other hand, are amenable to change. These are often best communicated by qualitative descriptions. An example is alcohol intoxication. The level of risk for violence for that particular individual varies according to whether he or she is intoxicated. As discussed above, mental illness has been identified as a risk factor for violence. The relationship between mental illness and violence is complex. Early papers indicated that mental illness increases the risk for violence (e.g., Swanson et al. [9], Hodgins [10]). As research evolved, it was apparent that subtypes of mental illness had very different risk profiles. In addition, there are many types of violence. For example, the kind of planned violence perpetrated by someone robbing a bank to support a drug habit is very different than the confused violence of a person

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with dementia who misperceives that they are being attacked. Furthermore, mental health diagnoses appear to alter conventional risk factors. The APA resource document briefly reviews the literature on this topic: The tendency for violent acts to be conducted by men is still present but less strong, first offenses occur later and the likelihood of acting violently does not fall off so rapidly with advancing age. The protective effect of stable relationships may also be less, particularly where someone’s social and occupational functioning is poor. In other respects, however, the correlates of violent offending in the general population apply also to people who suffer from mental disorders [3].

The concept of psychopathy has played an important role in understanding violence. It has been repeatedly described as the single greatest risk factor for violence [11, 12]. In The Mask of Sanity (1941), Cleckley described a group of symptoms, including superficial charm, lack of remorse, and affective poverty, all in the absence of delusions or irrational thinking, that he defined as psychopathy [13]. The concept has been expanded by Hare, the author of the Psychopathy Checklist-Revised (PCL-R), an instrument commonly used during risk assessments [14]. Psychopathy is most closely related to the mental health diagnosis of antisocial personality disorder, described in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) [15]. The term psychopathy is also frequently used interchangeably with sociopathy. Most commonly psychopathy and sociopathy are distinguished on the basis of the causal ingredients [16]. Psychopaths are thought to be hardwired that way, their behaviors a reflection of intrinsic factors. There are many contexts in which traits of psychopathy are adaptive, promoting survival. As such, a stable percentage of any population, whatever their background, would be expected to have psychopathy. Sociopathy, on the other hand, is used to describe people with psychopathic-like behaviors that are the result of adverse life experiences, such as witnessing violence. The more difficult the environment, the more frequently the traits emerge. Both psychopathy and sociopathy are manifest in the behaviors that define antisocial personality disorder, and so antisocial personality disorder is the broadest category, encompassing both psychopathy and sociopathy [16]. There are polarized opinions on whether to conceive of antisocial personality disorder as a mental illness, particularly in the legal setting. The nature and source of the disorder is often a central issue in criminal cases, where it may be introduced as a mitigating condition (evidence that there were factors beyond the individual’s control at play in their behavior). But it also may be introduced as an aggravating condition (evidence that the defendant cannot be rehabilitated). Skeem et al. [17], in a study of 165 high-risk patients, described three subtypes of violent individuals. The first and most violent subtype had psychopathic traits, antisocial lifestyles, and extensive legal involvement. The second had higher levels of baseline function, less legal involvement, and did not have antisocial traits but were generally highly reactive and sensitive to personal problems. These two subtypes shared common features of depression or dysphoria and heavy substance use. The third and least violent group had very low levels of baseline function, suffered from delusions, and were the least likely to use substances.

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Skeem’s constructs are more complex and rich than diagnostic categories, and when considered with the results of the MacArthur study described above, several clear themes emerge. Cluster B personality disorders, particularly those with psychopathic (antisocial) and reactive (borderline) traits, are associated with violence. To a lesser degree, psychotic illness that includes command hallucinations to act violently is also associated with violence. For patients with mental illness, several other important risk factors have been identified—active substance abuse and treatment noncompliance increase the risk dramatically [18].

Risk Assessment Instruments The VRAG (Violence Risk Appraisal Guide) is a tool that weighs actuarial risk factors [19]. It is available for free online and is recommended as a guide to clinicians without specialized training who want to be sure that they are addressing risk factors appropriately. It is a 12-item risk assessment tool that weighs actuarial factors, including criminal history, and places people in broad risk categories. It does not factor in dynamic or clinical variables, such as the strength of the individual’s support system. The SORAG (Sexual Offender Risk Appraisal Guide), a 14-item sexual offender version, is similar but also factors in history of sexual offenses and phallometric test results (the measurement of changes in penile circumference in response to sexual and nonsexual stimuli as a measure of sexual arousal to both appropriate and deviant sexual material). A number of structured risk assessment instruments exist that are designed to incorporate both actuarial information and clinical judgment. These structured risk assessment instruments are used less commonly in general clinical work and are more often used in high-risk cases and forensic assessments or research and require specialized training to administer. Singh et al. [20] conducted a survey of 2135 mental health professionals from 44 countries who had conducted at least one risk assessment during their careers. They found that 58% of risk assessments used some sort of structured instrument, and over 400 instruments were described. Half of these instruments were commercially available. The rest were developed for individual or within institution use. The VRAG (discussed above) was one such instrument. Some of the other most commonly used, empirically validated instruments are described below.

HCR-20 The Historical Clinical Risk Management-20 (HCR-20) is a 20-item assessment tool for violence risk prediction that includes three domains: historical, clinical, and risk management [21]. The historical domain includes an inventory of risk factors, such as a history of violence and the presence of psychopathy (incorporating a PCL-R score). The clinical domain captures current symptoms, attitudes and insight,

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and related factors. The risk management domain captures variables related to future risk, including the strength of the person’s support system and the likelihood that they will be exposed to destabilizing forces. According to Singh et al. [20], the HCR-20 is the most commonly used instrument globally for risk assessment, management, and monitoring.

PCL-R The PCL-R is a 20-item inventory of personality traits associated with psychopathy obtained from a direct interview and a review of collateral information [14]. While the PCL-R is not explicitly designed to measure violence risk, it is designed to identify psychopathy, the diagnostic construct most associated with violence. It does not factor in other diagnoses (e.g., schizophrenia) that may be related to violence risk. It requires specialized training to administer. The PCL-R generates a score and has an established cut-off for psychopathy. According to Singh et al. [20], the PCL-R is the second most common instrument used in risk assessment, management, and monitoring.

LSI-R The Level of Service Inventory-Revised (LSI-R) is a 54-item risk and need assessment tool used most extensively in correctional settings. It blends static and dynamic risk factors, identifies target areas for intervention, and predicts the likelihood that the offender will return to prison [22].

ICT The Iterative Classification Tree (ICT) is an actuarial tool intended to assess violence risk of people discharged from psychiatric facilities [23]. As with the other instruments, it assigns risk based on actuarial information. However, it is based on the idea that risk factors interact with one other, rather than being additive. Questions are asked on the basis of answers to previous questions. Different combinations of factors produce different profiles of risk.

Reconsideration of the Clinical Vignette and Actual Case Returning to the case of the patient who stabbed his wife, the important question is whether the risk was preventable. The clinical vignette details a number of risk factors, including broad risk factors (e.g., male gender) as well as very specific ones (that the subject had murdered a police officer). Several of the factors, such as the nature of the subject’s previous violence, seem intuitively relevant but are not

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factors identified by risk assessment research at this point. A factor that was downplayed was the subject’s violent fantasies; yet the MacArthur study and others linked violent fantasies to future violence. It is not clear from the information how the risk factors were weighed. In the actual case, the breakdown may have been one of communication between the clinician and the hospital: a well-intended policy to foster therapeutic alliances impeded the process of risk containment. This argues for the value of independent risk assessments (i.e., conducted by clinicians who are not part of the direct care of the patient) as part of any management plan of people who have substantial risk factors, including those found NGRI.

Summary and Recommendations In summary, no matter the experience of the provider or the quality of the instrument, risk of violence cannot be predicted with enough accuracy to justify any single approach. Unstructured approaches are unreliable, but data-based approaches do not capture the whole picture and are limited in what they can say about individuals. While risk factors may continue to be identified as society changes and as science develops (e.g., research on the brain processes underlying empathy), there are fundamental limitations to what aggregate data can tell us about the individual. The science of risk assessment, at least as it stands, will never be able to give categorical, or even satisfying answers about individuals. What is very clear is that a thorough consideration of the risk factors in any psychiatric interview can reduce risk. Independent risk assessments of high-risk patients may contribute valuable information. There are a number of ways to approach this including the burgeoning use of machine learning. Risk assessment tools, such as the HCR-20, allow clinicians to make a structured assessment and be sure that they have covered all of the important risk ingredients. For the busy clinician who may not have training on a specialized risk assessment instrument, it is important to rationalize any decision clearly, referencing current knowledge on risk. This means that they should be aware of the static risk factors identified in the literature (and can use the VRAG, which is available for free online) to help guide this, spend enough time with the individual they are evaluating to be able to describe the dynamic risk factors, and directly link the identified risk factors to a risk management plan which aims to reduce the individual’s risk of acting violently in the future.

References 1. White v. United States of America, 780 F.2d 97 (D.C. Cir. 1986). 2. Tarasoff v. Regents of the University of California, 131 Cal. Rptr 14 (Cal. 1976). 3. Buchanan A, Binder R, Norko M, Swartz M. Psychiatric violence risk assessment. Am J Psychiatry. 2012;169(3):340. 4. Norko MA, Baranoski MV.  The state of contemporary risk assessment research. Can J Psychiatry. 2005;50(1):18–26.

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5. Parmigiani G, Barchielli B, Casale S, Mancini T, Ferracuti S. The impact of machine learning in predicting risk of violence: a systematic review. Front Psych. 2022;13:1015914. 6. Moore C, Ferguson E, Guerin P. How accurate are rebuttable presumptions of pretrial dangerousness? A natural experiment from New Mexico. J Empir Leg Stud. 2023;20:377. 7. Webster CD, Douglas KS, Eaves D, Hart SD. HCR-20: assessing risk for violence (version 2). Vancouver: Mental Health, Law, and Policy Institute, Simon Fraser University; 1997. 8. Monahan J, Steadman H, Robbins P, Appelbaum P, Banks S, Grisso T, Heilbrun K, Mulvey E, Roth L, Silver E. An actuarial model of violence risk assessment for persons with mental disorders. Psychiatr Serv. 2005;56:810–5. (ICT) 9. Swanson J, Holzer C, Ganju V, Jono R.  Violence and psychiatric disorder in the community: evidence from the epidemiologic catchment area surveys. Hosp Community Psychiatry. 1990;41:761–70. 10. Hodgins S. Mental disorder, intellectual deficiency and crime: evidence from a birth cohort. Arch Gen Psychiatry. 1992;49:476–83. 11. Hare RD. Psychopathy and violence. In: Hays JR, Roberts TK, Soloway KS, editors. Violence and the violent individual. Jamaica, NY: Spectrum; 1981. p. 53–74. 12. Serin RC. Psychopathy and violence in criminals. J Interpers Violence. 1991;6(4):423–31. 13. Cleckley HM. The mask of sanity: an attempt to clarify some issues about the so-called psychopathic personality. Saint Louis: C.V. Mosby Co; 1964. 14. Hare RD.  Hare psychopathy checklist-revised (2nd edition) (PCL-R). In: Cutler B, editor. Encyclopedia of psychology and law. Thousand Oaks CA: Sage Publications; 2008. 15. American Psychiatric Association. Diagnostic and statistical manual of mental disorders. 5th ed. Washington, DC: DSM; 2013. 16. Pemment J. Psychopathy versus sociopathy: why the distinction has become crucial. Aggress Violent Behav. 2013;18(5):458–61. 17. Skeem JL, Mulvey EP, Appelbaum P, Banks S, Grisso T, Silver E, Robbins PC. Identifying subtypes of civil psychiatric patients at high risk for violence. Crim Justice Behav. 2004;31:392–437. 18. Swartz M, Swanson J, Hiday V, Borum R, Wagner H, Burns B.  Violence and severe mental illness: the effects of substance abuse and nonadherence to medication. Am J Psychiatry. 1998;155(2):226–31. 19. Harris GT, Rice ME, Quinsey VL. Violent recidivism of mentally disordered offenders: the development of a statistical prediction instrument. Crim Justice Behav. 1993;20:315–35. 20. Singh JP, Desmarais SL, Hurducas C, Arbach-Lucioni K, Condemarin C, Dean K, Otto RK.  International perspectives on the practical application of violence risk assessment: a global survey of 44 countries. Int J Forensic Ment Health. 2014;13:181–94. https://doi.org/1 0.1080/14999013.2014.922141. 21. Douglas KS, Hart SD, Webster CD, Belfrage H.  HCR-20V3: assessing risk of violence— user guide. Burnaby, Canada: Mental Health, Law, and Policy Institute, Simon Fraser University; 2013. 22. Andrews DA, Bonta JL. LSI-R: the level of service inventory manual. North Tonawanda, NY: Multi-Health Systems; 1995. 23. Steadman H, Silver E, Monahan J, Appelbaum P, Robbins P, Mulvey E, Grisso T, Roth L, Banks S. A classification tree approach to the development of actuarial violence risk assessment tools. Law Hum Behav. 2000;24:83–100.

Substance Use Disorders and the Law

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Abhishek Jain and Elie G. Aoun

Clinical Vignette Samantha is 27 years old. Her parents bring her to the psychiatric emergency room where you are the psychiatrist on shift. Samantha is visibly intoxicated. Samantha’s parents tell you she lives with them in another state but has been staying locally with friends for the past month. Her parents flew in today after learning she relapsed, but they are unsure on which substances. She has a history of alcohol, cannabis, and heroin use. Her parents understand she needs to be medically evaluated and acutely stabilized. However, they are also concerned about her long-term prognosis. Samantha has inconsistently been in substance use treatment for 5 years and frequently signs out against medical advice. Samantha’s parents are especially concerned because they suspect she is pregnant and may have pending criminal charges for intoxicated driving and a recent bar fight, and they are unfamiliar with local laws and resources. They have sought education and support over the years, yet understandably still have many questions. 1. Is Samantha’s continued substance use a disease or choice? 2. If she refuses treatment, can she be involuntarily hospitalized or committed to rehabilitation? 3. Can Samantha’s criminal charges be excused due to her substance use history or can she be diverted to treatment instead of punishment? 4. If she is sentenced to jail or prison, will she receive monitoring and treatment? 5. What is her future risk for violence if she continues using? A. Jain · E. G. Aoun (*) Columbia University College of Physicians and Surgeons - Division of Law, Ethics and Psychiatry, New York, NY, USA e-mail: [email protected]; [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 T. Wasser, R. Zhong (eds.), Psychiatry and the Law, https://doi.org/10.1007/978-3-031-52589-6_15

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6. Can her previous psychiatrist provide her treatment from another state? 7. What other treatment interventions might be available in the future?

Core Principles Addiction as a Disease or Choice Attitudes regarding addiction, or more formally substance use disorders (SUDs), have varied considerably in different communities and over time. A prevailing view in medical and scientific communities today is that SUD is a disease and its diagnosis and treatment “should be recognized as an essential part of medical and psychiatric care” [1, 2]. Often conceptualized as a brain disorder, it is associated with neurobiological abnormalities and genetic influence and diagnosable when clearly defined criteria are met [3, 4]. However, societal and legal settings have also framed addiction as a moral failing or character weakness of those who are incapable of or averse to abstaining from substance use [5]. Alternatively, as seen with the recent opioid epidemic, some addiction may be posited as an iatrogenic condition contributed by physicians overprescribing controlled substances [6, 7]. In a recent survey of addiction medicine physicians, most identified biological factors (76%), environmental factors (71%), and psychiatric comorbidities (57%) as “very much” causes of SUDs. Personal choices were seen by most (72%) as “somewhat” causes, while the majority viewed moral failings (77%) and spiritual malady (57%) as “not at all” causes [8]. For at least two centuries, US policymakers have similarly grappled with disparate views surrounding addiction and substance use [5]. Physicians such as Benjamin Rush in the early 1800s began conceptualizing alcoholism as a disease of the mind. In 1870, the American Association for the Study and Cure of Inebriety was founded and promoted the idea of addiction as a medical disorder requiring treatment. Federal laws, such as the Food and Drug Act of 1906, the Harrison Anti-Narcotic Tax Act of 1914, and Prohibition in the 1920s, shifted more towards regulation and criminalization of substance use. In 1970, the Comprehensive Drug Abuse Prevention and Control Act further regulated pharmaceuticals and established the Schedule I-V categorization of controlled substances. In the 1970s and 1980s, harsher penalties for drug offenders came during “The War on Drugs.” As President George H. W. Bush designated the 1990s as the “Decade of the Brain,” neuroscience research helped elucidate the reward pathway in the brain and its role in addictive disorders, along with the development of effective treatments. Now, as evidenced by recent cannabis legalization and other drug decriminalization laws, attitudes regarding substance use appear to be shifting again. As the pendulum swings, legal and ethical implications, such as the relative quantification of one’s agency when it comes to substance-related behaviors, also continue to be debated. While specific medical approaches and safety considerations, like in Samantha’s case, largely depend on individual circumstances,

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appreciating historical and philosophical views can help frame why certain clinical or legal options may or may not be available. For example, those who adhere strictly to the medical model of addiction as a brain disease tend to view substance-related behaviors as deterministic rather than volitional. If substance-related behavior is attributed to the “undue influence” of the neurobiological changes and genetic predisposition, an individual with addiction would be considered wholly incapable of exerting free will in moderating or modifying their behaviors [9, 10]. Conversely, those who ascribe to a volitional or “free will” model may note that substance use is not fully involuntary, as evident by those who can quit “cold-turkey” without medical support or economic patterns showing reductions in substance use when its cost increases [11–13]. As a middle ground, some may argue that with addiction one’s control over substance-related behaviors is diminished but not entirely obliterated [14]. Such concepts are incorporated in scientific research models using alternative reinforcers such as cash [15, 16]. This is also the basis for diversion programs in the criminal justice system where substance use treatment and abstinence is rewarded with reduced charges.

Diagnoses and Terminology Diagnostic terminology is important to consider, especially to help distinguish use of substances from addiction to substances. “Addiction” was replaced in the 1980 DSM-III with two separate entities, substance abuse and substance dependence, which were further combined under the rubric of substance use disorders (SUDs) in the 2013 DSM-5 [3]. Though the etymology of “addiction” carries particular significance. Its Latin root is derived from addico meaning “giving away,” and ancient Greek civilizations referred to enslaved individuals as “addictus.” From this lens, the modern understanding of “addictions” reflects the inability of the afflicted individual to break free from using the addictive substance [17]. Under the DSM-5, the determination of whether an individual has a mild, moderate, or severe SUD is based on the number of symptoms. While no longer a formal diagnosis, the term “addiction” continues to be discussed in the DSM in reference to the “severe problems related to compulsive and habitual use of substances” [3]. Helpful to remember is that an SUD diagnosis not only incorporates the quantity of substance use, but how substance use may impact cognitive and executive functioning processes and decision-making. This concept is demonstrated by the DSM-5 diagnostic criteria, where only one reflects the amount of alcohol or drugs consumed while ten relate to substance-related phenomena and behaviors. In assessing whether diagnostic criteria for an SUD is met, the clinician should assess the individual’s current and historical substance use patterns; social and health consequences of substance use; recognition of the relationship between their use and subsequent behaviors; and physical adaptation to substance use (e.g., tolerance, withdrawal) [3].

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Legal Precedents Two US landmark cases from the 1960s provide a helpful backdrop for legal thinking about substance use: Robinson v. California (1962) [18] and Powell v. Texas (1968) [19]. In Robinson, the Supreme Court of the United States in a 6–2 decision held that punishment for a medical condition is unconstitutional. Specifically, a California law that criminalized being addicted to narcotics was a violation of the Eighth Amendment ban on cruel and unusual punishment [18]. In this case, a 1959 California statute stated: “No person shall use, or be under the influence of, or be addicted to the use of narcotics, excepting when administered by or under the direction of a person licensed by the state to prescribe and administer narcotics.” Under this law, a police officer had stopped appellant Lawrence Robinson, who was observed to have “track marks” indicating a history of heroin use. Robinson was convicted of a misdemeanor and sentenced to 90 days imprisonment. Robinson appealed to the Los Angeles County Superior Court, which upheld the conviction and constitutionality of the law. The case was further appealed to the Supreme Court of the United States, which reversed the state’s decision [18]. Writing for the majority opinion, Justice Potter Stewart famously stated: “In this Court counsel for the State recognized that narcotic addiction is an illness. Indeed, it is apparently an illness which may be contracted innocently or involuntarily … Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.” In dissenting opinions, deliberation included the extent the statute provided treatment instead of punishment; that the incarceration period is not unreasonable given that voluntary use of substances poses a serious threat to the State; and that in reversing “At the very least, [The Court] has effectively removed California’s power to deal effectively with the recurring case under the statute where there is ample evidence of use but no evidence of the precise location of use” [18]. In Powell, by contrast, the Supreme Court of the United States in a 5–4 decision held that criminalizing public intoxication did not violate the Eighth Amendment. In 1966  in Texas, Leroy Powell was arrested after being found intoxicated with alcohol—for which he had been similarly arrested about 100 times since 1949. He was found guilty and fined $20 by the Corporation Court of Austin. His attorney appealed and argued that Powell was “afflicted with the disease of chronic alcoholism” and his public appearance while intoxicated was “not of his own volition.” The trial judge also found him guilty, and this time fined him $50. Mr. Powell’s attorney then appealed to the Supreme Court of the United States, which upheld the decision [19]. The plurality opinion stated that Mr. Powell “was convicted, not for being a chronic alcoholic, but for being in public while drunk on a particular occasion.” The dissenting opinion argued various points, including: “It is entirely clear that the jailing of chronic alcoholics is punishment. It is not defended as therapeutic, nor is there any basis for claiming that it is therapeutic (or indeed a deterrent). The alcoholic offender is caught in a ‘revolving door’—leading from arrest on the street

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through a brief, unprofitable sojourn in jail, back to the street and, eventually, another arrest” [19]. Robinson and Powell distinguish how the status of being “addicted” is conceptualized differently than behaviors during intoxication [20]. This provides some insight into how courts have deliberated these nuances and how policymakers may approach a range of topics surrounding substance use, such as involuntary treatment, criminal responsibility, and public safety.

Civil Commitment and Involuntary Treatment Samantha’s parents raise an important concern and common frustration regarding the options available when patients with SUDs refuse substance use treatment. For instance, the 2021 National Survey on Drug Use and Health found that, of the 43.7 million Americans aged 12 and over who had an illicit drug or alcohol use disorder in the past 12 months, more than 90% did not feel they needed treatment [21]. The possibility of involuntary treatment or civil commitment (separate from criminal drug court) is often brought up in these situations, especially by patients’ families. Depending on the jurisdiction, this may or may not be permitted. Currently, over 30 US states have statutory provisions that allow civil commitment for SUDs, such as Casey’s Law in Kentucky and Marchman Act in Florida. However, some states explicitly prohibit civil commitment for substance use disorders alone without a co-occurring psychiatric diagnosis [22, 23]. Yet, even when available, involuntary treatment laws vary considerably across states. To whom these laws apply (e.g., adults, minors), for which substances (e.g., alcohol, opioid), the setting (e.g., inpatient, outpatient), the duration of commitment (e.g., 72-h emergency hold, 1-year rehabilitation), who pays (e.g., the petitioner, the state) are just some of considerations. Local interpretation of the legal criteria and the practical availability of such resources (e.g., treatment settings, beds) further play a role in the extent to which these laws are actually able to be implemented [8, 23, 24]. Whether these involuntary treatment laws are effective, and what specific resources (e.g., treatment setting, treatment modality) are necessary for positive outcomes, remains unsettled. The usefulness of involuntary interventions also needs to be carefully weighed depending on the individual and specific situation. In other words, just because a law is on the books, it is not always clear whether it will be the optimal course or even practically available. Indeed, a review found that while Florida and Massachusetts annually committed thousands of individuals under these statutes, many other states (e.g., Texas, Illinois, Utah) applied their statutes rarely or never [23]. Ethical debates surrounding civil liberties, autonomy, appropriate use of resources, and even potential detrimental outcomes (e.g., increased risk for overdose following relapse after the commitment ends) have similarly continued since at least the 1800s. Like other legal deliberations surrounding substance use, the extent addiction is perceived as a medical disorder (rather than autonomous choice)

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and contemporary societal considerations (such as the recent increase in opioid overdose), impact how much involuntary commitment laws are favored [5, 24]. Whether or not involuntary treatment will be effective is currently left case by case. Moreover, unique situations may emerge, such as Samantha’s parents’ concern about her possible pregnancy. For instance, currently three states (Minnesota, South Dakota, and Wisconsin) to varying degrees consider substance use during pregnancy grounds for civil commitment. This is clearly another area for clinical and ethical debate [25]. When exploring involuntary treatment options, practitioners can start with becoming familiar with their local laws and what might be available in their jurisdiction. In a recent national survey, 1 out of 3 addiction physicians were unfamiliar with civil commitment for SUD laws and over 1 out of 4 were unsure if their own state permitted these commitments, with the majority of respondents endorsing more clinician education (92%) and more research (87%) on the topic [8].

Criminal Defenses, Drug Courts, and Correctional Settings Substance Use and Criminal Responsibility With Samantha potentially facing criminal charges, a common question is whether her substance use, or a diagnosis of SUD, can be used as a legal defense. Generally, voluntary acute intoxication does not serve as a basis to fully excuse criminal responsibility. Depending on the jurisdiction and crime, however, voluntary acute intoxication may be used to argue “diminished capacity.” In these cases, intoxication could be a basis to argue that the defendant was not able to form the requisite specific intent or “mens rea” for certain crimes. For instance, a successful “diminished capacity” defense may reduce first-degree murder (a crime requiring specific intent) to a lesser crime such as voluntary manslaughter. This defense is not available in all jurisdictions and, if available, typically only applies to a limited number of crimes. By contrast, voluntary acute intoxication usually is not a valid defense for general intent crimes (e.g., disorderly conduct) in which only the willingness to commit the crime is required [26]. In insanity defense cases, some jurisdictions may allow the concept of “settled insanity.” This is generally described as substance use triggering chronic psychotic symptoms beyond acute intoxication, even if the intoxication was voluntary. If successful, this could be the basis of an acquittal of the criminal charges (i.e., not guilty by reason of insanity). Separately, involuntary intoxication in which the individual does not know they ingested an intoxicating substance, or they were not aware of its possible effects, may be more likely to be accepted as a defense in many jurisdictions. Involuntary intoxication may even include adverse effects of prescribed medications. In these cases, the court would need to determine if the intoxication was involuntary and whether the jurisdictional insanity defense criteria was met. Many cases are complex with both the presence of intoxication (voluntary and/or involuntary) as well as underlying psychiatric conditions. In such cases, jurisdictional legal

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standards, whether the substance was indeed ingested, if the intoxication was voluntary or involuntary, the timing and potential impact of the substance, and the defendant’s knowledge of possible psychiatric effects of the substance, may be relevant areas to explore [27, 28].

Drug Courts and Diversion While Samantha is less likely to qualify for a fully exonerating criminal defense, a more realistic outcome is diverting her from punishment towards treatment. In this context, diversion refers to the interventions aimed at redirecting persons towards needed treatment as an alternative to incarceration. Diversion is based on the therapeutic jurisprudence principle of using the coercive authority of the courts to further clinical therapeutic goals. Justice-involved individuals with SUDs are of particularly high importance given the relationship between their substance use and their criminal behaviors and that they may not otherwise seek treatment. Intercepting individuals during their justice encounters can be an invaluable opportunity to usher them into recovery and potentially modify their trajectories through the criminal justice system [29, 30]. Drug courts, a type of problem-solving court, are one of the most frequently cited diversion programs. Qualifying defendants may be offered the opportunity to participate in these non-adversarial special-jurisdiction courts where they could be mandated to participate in SUD treatment and ongoing sobriety monitoring [31]. Currently, across the United States, there are over 3800 drug courts [32]. There is variability among drug courts regarding whether diversion opportunities are offered preceding or following adjudication. The successful completion of a pre-­adjudication drug court programs typically leads to a defendant’s charges being dropped. In contrast, defendants who plead guilty before successfully completing a post-­adjudication drug court program may receive a sentence of time served or probation [33]. A multisite investigation of 23 adult drug courts found that participants were less likely to use drugs or alcohol, with benefits persisting even following the completion of the program. The impact of drug courts on criminal recidivism was most significant for drug-related or property crimes compared to violent crimes [34]. These findings were consistent with a meta-analysis of 92 studies evaluating drug courts outcomes, where the impact of drug court programs on criminal recidivism was noted to persist for as long as 36 months [35].

Substance Use Treatment in Correctional Settings If a criminal defense or diversion are not available to Samantha, and she is sentenced to a period of incarceration, consideration for substance use treatment remains important. In a 2016 position statement, the American Psychiatric Association noted that all inmates should be screened and offered appropriate treatment for SUDs, withdrawal syndromes, and comorbid illness (e.g., mood and

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anxiety disorders, infectious diseases). Similarly, correctional healthcare providers should be educated in the screening and treatment of SUDs and withdrawal syndromes. Within jails and prisons, awareness of drug testing options and that illicit substance use is frequently encountered, is important for clinicians [36]. Available treatment options should include pharmacologic and non-­ pharmacologic interventions (e.g., individual counseling, group psychotherapy), along with provisions for adequate follow-up after release. The APA position paper particularly identified methadone (long-acting full opioid agonist) and buprenorphine (partial opioid agonist) as preventing relapse and reducing opioid overdose risk, and that naloxone (opioid antagonist) rescue kits should be readily available, staff should be appropriately trained to use them, and kits should be provided upon release. With community re-entry being an especially vulnerable period for incarcerated individuals, probation or parole conditions should include substance use treatment and programming when clinically appropriate. Partnership among treatment providers, correctional staff, courts, and community providers can help improve understanding and outcomes around SUDs [36].

Clinical Considerations SUDs, Violence, and Crime Substance use can result in impaired behavioral, emotional, and cognitive control, which can lead to aggression and violence. A meta-meta-analysis of 32 meta-­ analyses found a consistent impact of drug and alcohol use on violence perpetration across different models of violence. Male gender and an underlying psychotic disorder were found to strengthen this relationship. Alcohol use specifically was associated with an increased risk of violence victimization [37]. According to 2007–2009 survey data, about 40% of those convicted of a crime reported being in a state of intoxication at the time of committing the offense [38] The survey also found that roughly 40% of all property crime arrests were committed with the intent of procuring financial means to obtain drugs or alcohol [38]. The 2007 National Crime Victimization Survey described that, in the United States, each year more than 750,000 violent crimes were committed under the influence of drugs or alcohol [39]. Alcohol-related crimes particularly have been noted to be more common and more costly to society than drug-related crimes [40]. While non-­ violent property crimes and substance-related crimes are more common than violent crimes, violent crimes are more closely associated with alcohol than drug use [41]. Longitudinal studies also demonstrate that the initiation of drug or alcohol use commonly precedes criminal offending behaviors [42]. Historically, Paul Goldstein’s taxonomy provides one helpful framework to conceptualize the causal relationship between substance use and criminal behaviors [43]. It identifies three common driving factors between criminal offending and substance use:

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1. Economic-compulsive crimes whose purpose is to fund the procurement and use of substances. For example, a pickpocket with opioid use disorder uses the money stolen to purchase heroin. 2. Psychopharmacological crimes related to the direct effects of substances use on the individual’s behaviors and cognitive processes. This can follow a forward causation (substance use leads to criminal activity) or a reverse causation (substance use helps commit an already planned crime). 3. Systemic crimes intrinsically associated with the drug trade, including the production, transportation, and sale of drugs. For example, a drug cartel grows coca plants to produce and distribute cocaine.

Practitioner Laws and Regulations Clinicians who provide substance use treatment should be aware of relevant federal and state laws, regulations, and patient protections. This has become even more important with the growing need for access to treatment and the increased use of telehealth services. A key provision first promulgated in 1975 that applies to federally assisted programs, Title 42 of the Code of Federal Regulations (CFR) Part 2: Confidentiality of Substance Use Disorder Patient Records protects patients against inappropriate disclosure of their SUD information in non-treatment settings. Laws such as the 2016 Comprehensive Addiction and Recovery Act (CARA) and the 2018 Substance Use-­ Disorder Prevention that Promotes Opioid Recovery and Treatment (SUPPORT) for Patients and Communities Act have also been passed specifically in response to the rise in opioid overdose deaths [44]. These laws provided funding for provider education and SUD prevention and treatment programs with the goal of increasing access to treatment for those who would benefit from such services. Similarly, the Drug Enforcement Administration (DEA) has established requirements for practitioners. For example, the Medication Access and Training Expansion (MATE) Act that was passed as part of the Consolidated Appropriations Act of 2023 enacted an 8-h training requirement for all DEA-registered practitioners on the treatment and management of patients with opioid or other SUDs [45]. Moreover, individual states may have additional requirements for DEA-registered prescribers. Staying up to date on such requirements is important for practitioners and helps promote patient and prescriber safety. With the COVID-19 pandemic, telemedicine has rapidly expanded, raising further legal, regulatory, and reimbursement considerations. Understanding these issues can help mitigate licensure violations and malpractice liability. Awareness is particularly important when prescribing Schedule II and other controlled substances, and when providing treatment across state lines. Historically, cases like Hagaseth v. Superior (2007) highlight some risks, even of criminal conviction, when prescribing online without an appropriate license [46]. Likewise, The Ryan Haight Online Pharmacy Consumer Protection Act of 2008 was passed in response to the death of 18-year-old Ryan Haight following an overdose on hydrocodone/

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acetaminophen purchased over the Internet [47]. After initial telehealth flexibilities during COVID-19 pandemic, increased restrictions are expected, such as minimum in-person appointment requirements to continue prescribing controlled medication prescriptions [48]. For situations such as Samantha’s, if she wants to continue receiving treatment from a provider while she is in another state, generally the physician must be licensed to practice in the state where she is physically located during the visit. Additional important factors include the type of treatment, if controlled medications are being prescribed, access to local providers, and provisions for emergency interventions. Practitioners can seek guidance regarding their state requirements, practice and institutional policies, medical malpractice coverage, and any professional organizational resources.

Future Directions A wide range of matters at the intersection of law and addiction continue to evolve. For instance, Waller et al. proposed 4 Cs to help guide ongoing opioid use treatment and management demands: Capacity to fill community needs; Competency of those who provide treatment; Consistency of high-quality care; and Compensation with appropriate financial reimbursement [49]. Within such frameworks, treatment system can aim for effective laws and regulations that support the development of evidence-­based monitoring and interventions (e.g., medications, psychosocial interventions) across practice settings (e.g., community, criminal justice system). One specific area for ongoing investigation is the impact of cannabis legalization. As of November 2022, 21 states have legalized its recreational use and 37 states have legalized its medicinal use [50]. As new cannabis policies continue to emerge, criminal and health-related consequences, such as risk for aggression, need to be evaluated [51]. For example, in a retrospective cohort study of healthcare claims data involving over 63 million beneficiaries, states cannabis policies were not associated with psychosis-related health outcomes [52]. However, an observational study involving over three million individuals from Veterans Health Administration records from 2005 to 2019 found that medical and recreational cannabis laws played a significant role in the overall increase in cannabis use disorder (Hasin et al. 2023). Other matters, such as novel approaches to substance use treatment (e.g., vaccines) and even the use of psychedelic drugs (e.g., MDMA, LSD, psilocybin) will require careful examination. These future deliberations can have broad policy and clinical practice implications.

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Conclusion/Key Points Samantha’s case helps identify critical areas at the intersection of SUDs and the law. How she, her family, her treatment providers, and the judicial system approach her case ultimately depends on the legal and clinical limits and availabilities in her jurisdiction. The many gray areas and approaches can be guided by individual circumstances and historical, ethical, and scientific underpinnings. Some key points and principles include: 1. Addiction as a disease versus choice has been debated in the United States for at least 200 years. This has impacted clinical and legal approaches to SUD treatment. A prevailing view among medical professionals today is that SUDs are brain disorders. 2. For individuals who do not seek SUD treatment on their own, various approaches have been tried. Civil commitment (involuntary treatment) is one approach legally available in many US states. However, its clinical utility remains case by case with ongoing ethical deliberations, jurisdictional variability, mixed evidence-­base, and practical nuances. 3. Criminal responsibility and SUDs are a complex area of law. Voluntary intoxication does not typically serve as a basis for an insanity defense. However, the type of crime (e.g., involving specific intent), circumstances of the case (e.g., underlying psychosis), or unique situations (e.g., involuntary intoxication, settled insanity) may open the door for intoxication as a potential or partial defense in some jurisdictions. 4. SUD treatment is a critical topic in the criminal justice system. This ranges from drug courts as a diversion from incarceration to treatment provisions in jails and prisons. 5. SUDs, crime, and violence are often intertwined. This may be related to factors such as the direct physiological impact of the substance use itself, economic motivations to procure substances, and crimes associated with the drug trade. 6. Clinicians should review relevant federal and state laws and regulations, especially when providing SUD treatment, prescribing controlled substances, and using newer modalities such as telehealth. 7. The intersection of addiction and law presents a wide range of areas for ongoing investigation, such as the impact of cannabis legalization, regulation of novel medications for SUD and psychiatric treatment, and approaches to SUDs through the legal system.

References 1. American Society of Addiction Medicine. Definition of addiction. 2019. https://www.asam. org/quality-­care/definition-­of-­addiction. Accessed 9 Apr 2023.

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2. American Psychiatric Association. Position statement on substance use disorders. 2019. https:// www.psychiatry.org/getattachment/4a20c2f3-­3 99b-­4 cfd-­a a25-­8 bda8de1825d/Position-­ Substance-­Use-­Disorders.pdf. Accessed 9 Apr 2023. 3. American Psychiatric Association. Diagnostic and statistical manual of mental disorders (DSM-5). Arlington: American Psychiatric Pub; 2013. 4. National Institute on Drug Abuse. Drug misuse and addiction. 2020. http://nida.nih.gov/ publications/drugs-­brains-­behavior-­science-­addiction/drug-­misuse-­addiction. Accessed 9 Apr 2023. 5. Hall KT, Appelbaum PS. The origins of commitment for substance abuse in the United States. J Am Acad Psychiatry Law. 2002;30(1):33–45. 6. Centers for Disease Control and Prevention. Understanding the opioid overdose epidemic. 2022. https://www.cdc.gov/opioids/basics/epidemic.html. Accessed 9 Apr 2023. 7. Beauchamp GA, Winstanley EL, Ryan SA, Lyons MS. Moving beyond misuse and diversion: the urgent need to consider the role of iatrogenic addiction in the current opioid epidemic. Am J Public Health. 2014;104(11):2023–9. 8. Jain A, Christopher PP, Fisher CE, Choi CJ, Appelbaum PS.  Civil commitment for substance use disorders: a national survey of addiction medicine physicians. J Addict Med. 2021;15(4):285–91. 9. O’Brien CP. Progress in the science of addiction. Am J Psychiatry. 1997;154(9):1195–7. 10. Koob GF, Le Moal M.  Addiction and the brain antireward system. Annu Rev Psychol. 2008;59:29–53. 11. Ainslie G. A research-based theory of addictive motivation. Law Phil. 2000;19:77. 12. Heyman GM. Do addicts have free will? An empirical approach to a vexing question. Addict Behav Rep. 2017;5:85–93. 13. Pickard H. Responsibility without blame for addiction. Neuroethics. 2017;10(1):169–80. 14. Copersino ML, Schare ML. Caffeine expectancy and individual differences in caffeine consumption. Pharmacol Biochem Behav. 1997;3(57):611. 15. Haass-Koffler CL, Swift RM, Leggio L. Noradrenergic targets for the treatment of alcohol use disorder. Psychopharmacology. 2018;235:1625–34. 16. Kenna GA, Lomastro TL, Schiesl A, Leggio L, Swift RM. Review of topiramate: an antiepileptic for the treatment of alcohol dependence. Curr Drug Abuse Rev. 2009;2(2):135–42. 17. Aoun E, Fusick A, Wagoner R.  What’s in a name? Deciphering the meaning of the word “addiction”. Am Acad Psychiatry Law Newslett. 2017;42(2):22–31. 18. Robinson v. California, 370 U.S. 660; 1962. 19. Powell v. Texas, 392 U.S. 514; 1968. 20. VanDercar AH, Jain A, Freitas C, Aoun EG. Fifty years post-Powell: addiction and culpability. Am Acad Psychiatry Law Newslett. 2020;45(1):22–8. 21. Substance Abuse Center for Behavioral Health Statistics and Quality. Results from the 2021 National Survey on Drug Use and Health: Detailed Tables, SAMHSA. Accessed 9 Apr 2023. 22. Williams AR, Cohen S, Ford EB. Statutory definitions of mental illness for involuntary hospitalization as related to substance use disorders. Psychiatr Serv. 2014;65(5):634–40. 23. Christopher PP, Pinals DA, Stayton T, Sanders K, Blumberg L. Nature and utilization of civil commitment for substance abuse in the United States. J Am Acad Psychiatry Law Online. 2015;43(3):313–20. 24. Jain A, Christopher P, Appelbaum PS. Civil commitment for opioid and other substance use disorders: does it work? Psychiatr Serv. 2018;69(4):374–6. 25. Hall RC, Friedman SH, Jain A. Pregnant women and the use of corrections restraints and substance use commitment. J Am Acad Psychiatry Law. 2015;43(3):359–68. 26. Sorrentino R, Jain A, Schaefer A. Legal dilemmas when victims of sexual assault are voluntarily intoxicated. J Am Acad Psychiatry Law. 2022;50(4):611–7. 27. Feix J, Wolber G. Intoxication and settled insanity: a finding of not guilty by reason of insanity. J Am Acad Psychiatry Law. 2007;35(2):172–82. 28. Piel J. The defense of involuntary intoxication by prescribed medications: an appellate case review. J Am Acad Psychiatry Law. 2015;43(3):321–8.

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29. Wexler DB, Winick BJ. Therapeutic jurisprudence. Principles of Addiction Medicine; 2008. 30. Hora P, Schma W, Rosenthal J. Therapeutic jurisprudence and the juvenile court movement: revolutionizing the criminal justice system’s response to drug abuse and crime in America. Notre Dame Law Rev. 1999;74(2) 31. Huddleston III CW, Freeman-Wilson JK, Marlowe DB, Roussell A. A National Report Card on Drug Courts and Other Problem Solving Court Programs in the United States. US Dept Justice. 2008;2(1). 32. U.S. Department of Justice. Drug courts. 2022. https://www.ojp.gov/pdffiles1/nij/238527.pdf. Accessed 9 Apr 2023. 33. National Association of Drug Court Professionals. Drug Court Standards Committee, United States. Drug Courts Program Office. Defining drug courts: the key components. US Department of Justice, Office of Justice Programs, Drug Courts Program Office; 1997. 34. Rossman SB, Roman JK, Zweig JM, Rempel M, Lindquist CH. The multi-site adult drug court evaluation: the impact of drug courts. 35. Mitchell O, Wilson DB, Eggers A, MacKenzie DL. Assessing the effectiveness of drug courts on recidivism: a meta-analytic review of traditional and non-traditional drug courts. J Crim Just. 2012;40(1):60–71. 36. American Psychiatric Association. Position statement on treatment of substance use disorders in the criminal justice system. 2016. https://www.psychiatry.org/getattachment/45b40a54-­ cf57-­4b94-­be6c-­f03fd5440d0e/Position-­2016-­Substance-­Use-­Disorders-­in-­the-­Criminal-­ Justice-­System.pdf. Accessed 9 Apr 2023. 37. Duke AA, Smith KM, Oberleitner L, Westphal A, McKee SA. Alcohol, drugs, and violence: a meta-meta-analysis. Psychol Violence. 2018;8(2):238. 38. Bronson J, Stroop J. Drug use, dependence, and Abuse among state prisoners and jail inmates, 2007–2009. Washington, DC: Bureau of Justice Statistics; 2017. 39. Bureau of Justice Statistics. Criminal victimization in the United States, 2007. Washington, DC: Bureau of Justice Statistics; 2008. 40. Miller TR, Levy DT, Cohen MA, Cox KL. Costs of alcohol and drug-involved crime. Prev Sci. 2006;7:333–42. 41. Pierce M, Hayhurst K, Bird SM, Hickman M, Seddon T, Dunn G, Millar T. Quantifying crime associated with drug use among a large cohort of sanctioned offenders in England and Wales. Drug Alcohol Depend. 2015;155:52–9. 42. Pierce M, Hayhurst K, Bird SM, Hickman M, Seddon T, Dunn G, Millar T. Insights into the link between drug use and criminality: lifetime offending of criminally-active opiate users. Drug Alcohol Depend. 2017;179:309–16. 43. Goldstein PJ.  The drugs/violence nexus: a tripartite conceptual framework. J Drug Issues. 1985;15(4):493–506. 44. Substance Abuse and Mental Health Servies Administration. Laws and regulations. 2022. https://www.samhsa.gov/about-­us/who-­we-­are/laws-­regulations. Accessed 9 Apr 2023. 45. U.S. Department of Justice Letter to DEA Registered-Practitioners. 2022. https://deadiversion. usdoj.gov/pubs/docs/MATE_Training_Letter_Final.pdf. Accessed 9 Apr 2023. 46. Hageseth v. Superior Court, 150 Cal. App. 4th 1399, 59 Cal. Rptr. 3d 385 (Cal. Ct. App. 2007). 47. Ryan Haight Online Pharmacy Consumer Protection Act of 2008. https://www.govinfo.gov/ content/pkg/BILLS-­110hr6353enr/pdf/BILLS-­110hr6353enr.pdf. Accessed 9 Apr 2023. 48. U.S. Department of Health and Human Services. Telehealth policy changes after the COVID-19 public health emergency. 2023. https://telehealth.hhs.gov/providers/policy-­changes-­during-­ the-­covid-­19-­public-­health-­emergency/policy-­changes-­after-­the-­covid-­19-­public-­health-­ emergency. Access 9 Apr 2023. 49. Waller RC, Clark KJ, Woodruff A, Glossa J, Ostrovsky A. Guide for future directions for the addiction and OUD treatment ecosystem. NAM perspectives. 2021. 50. Hasin DS, Wall MM, Choi CJ, Alschuler DM, Malte C, Olfson M, Keyes KM, Gradus JL, Cerdá M, Maynard CC, Keyhani S. State cannabis legalization and cannabis use disorder in the US veterans health Administration, 2005 to 2019. JAMA Psychiatry. 2023;80(4):380–8.

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51. Ghossoub E, Hayek SE, Trad K, Maalouf FT, Tamim H. Association between cannabis use disorder and self-and other-directed aggression. J Am Acad Psychiatry Law. 2022;50(4):590–9. 52. Elser H, Humphreys K, Kiang MV, Mehta S, Yoon JH, Faustman WO, Matthay EC.  State cannabis legalization and psychosis-related health care utilization. JAMA Netw Open. 2023;6(1):e2252689.

Child and Adolescent Forensic Psychiatry

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Carlos A. Salgado

Clinical Vignette You are a resident working in an outpatient Child and Adolescent Psychiatry clinic. You are about to see a 12-year-old girl that was brought in for an initial psychiatric evaluation by her mother due to concerns regarding depressive symptoms. The mother reports that her daughter has been increasingly withdrawn, irritable, and tearful. She has also noticed that her daughter has had difficulty concentrating and that there has been a decline in her school performance. The mother expresses confusion regarding her daughter’s symptoms, stating, “I just don’t understand why she’s so sad all the time. There’s nothing I can think of that could be causing her to feel this way.” The girl has a past medical history of asthma, which is well controlled with the use of an inhaler. She has no known allergies and is not currently on any medications. She has no previous psychiatric history or interventions. Family history is significant for depression in the girl’s maternal grandmother. There is no reported history of substance use or other psychiatric disorders in the family. The girl was interviewed both individually and in the presence of her mother. During the interview with her mother, the girl appeared guarded and provided limited information. When interviewed alone, she was more willing to discuss her concerns, and shared that she had been keeping a secret about her stepfather for the past year. She has never told anyone about this, as her stepfather instructed her to keep the secret. The girl did not want her mother to find out, as she believed that her mother would become upset. She appeared visibly distressed when discussing the secret and hesitated before revealing more details. “I don’t know if I can tell you... I’m scared,” she whispered, looking down at her hands. “He told me not to tell anyone.” C. A. Salgado (*) Department of Psychiatry & Behavioral Health, Herbert Wertheim College of Medicine, Florida International University, Miami, FL, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 T. Wasser, R. Zhong (eds.), Psychiatry and the Law, https://doi.org/10.1007/978-3-031-52589-6_16

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After providing her with reassurance, she hesitantly revealed that the secret involved inappropriate activities initiated by her stepfather. She shared that her stepfather had been touching her inappropriately and engaging in other activities that made her feel uncomfortable and unsafe. She added, “He told me it’s our secret and that I shouldn’t tell anyone, but it’s been making me feel really scared and sad.” You then meet with the mother and the girl to discuss the concerns that emerged during your conversation with the girl. You obtained the girl’s permission to share the information with her mother, emphasizing the importance of addressing the situation to help the girl recover and ensure her well-being. Upon disclosing the girl’s experiences of inappropriate activities with her stepfather, the mother was shocked and distressed, unaware of the situation. You reassure both the mother and the child that your primary concern is the girl’s safety and well-­ being. You explain your role as a mandated reporter, which requires you to report any suspicions of child abuse or neglect to the appropriate authorities. In this case, you would need to report the information to Child Protective Services (CPS) to ensure the girl’s protection and initiate an investigation. The mother expresses concern about the possibility of losing her daughter. You clarify that CPS’s primary goal is to ensure the safety and well-being of children. CPS will work to determine the best course of action to protect the girl while involving the mother in the process and providing support and resources to the family. Both the girl and her mother were emotional during the conversation. The mother comforted her daughter, assuring her that they would get through this together. You offer support and emphasize the importance of the girl’s brave step in sharing her experience, committing to help her receive the necessary support and resources during this challenging time. As a psychiatry resident, how would you navigate the ethical complexities of the situation? Specifically, consider when and how you would breach confidentiality by informing her mother, Child Protective Services, or other necessary entities about the disclosed experiences. How would you balance these potential breaches with maintaining therapeutic rapport and trust with your young patient?

Landeros v. Flood, California Supreme Court, 1976 [1] Landeros v. Flood is a landmark California Supreme Court case from 1976 that established the duty of healthcare providers to report suspected child abuse. The plaintiff, Gita Landeros, was an infant who was brought to the San Jose Hospital by her mother on April 26, 1971. The defendant, Dr. A. J. Flood, was a physician at the hospital that examined Gita. The infant presented with “a comminuted spiral fracture of the right tibia and fibula, which gave the appearance of having been caused by a twisting force.” Additionally, Gita had other injuries on other parts of her body, which included a healing nondepressed linear fracture of the skull. However, Dr. Flood did not take x-rays of Gita’s skull, and thus did not identify the skull fracture.

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It was alleged that proper medical evaluation would have led to the conclusion that the child was exhibiting signs and symptoms consistent with “battered child syndrome” and that, if Dr. Flood were to have identified the child as having been a victim of abuse, he would have been expected to report the abuse to the local authorities. This would have led to further investigation. Instead, Gita was released into the custody of her mother and her mother’s partner. The physical abuse resumed. Gita was eventually taken to another hospital in July 1971. She was diagnosed with battered child syndrome and eventually placed in foster care. However, she suffered permanent injuries because of the abuse. Gita was a minor so she was appointed a guardian ad litem (an individual appointed by the court to protect the interests of someone who cannot care for themselves). Gita, through her guardian ad litem, filed a lawsuit against Dr. Flood in a California Superior Court, alleging that he was negligent in failing to report the suspected child abuse as required by California law. The trial court granted Dr. Flood’s motion for summary judgment, finding that he owed no legal duty to Gita to report the abuse. Gita appealed the decision to the California Court of Appeals. The California Court of Appeals affirmed the trial court’s decision, agreeing that Dr. Flood did not have a legal duty to report the suspected child abuse. Gita then appealed the decision to the California Supreme Court, which granted review to consider the important issue of whether healthcare providers have a duty to report suspected child abuse and can be held liable for failing to do so. The California Supreme Court held that healthcare providers had a duty to report suspected child abuse based on the mandatory reporting law in place at the time. The court reasoned that the purpose of the statute was to protect children from abuse and neglect by requiring healthcare providers to report suspicions of abuse, and that this duty extended to the child patients themselves. Justice Stanley Mosk wrote the opinion for the court. In its opinion, the court concluded that healthcare providers could be held liable for damages caused by their failure to report suspected child abuse, as required by law. In reaching this decision, the court acknowledged the important role that healthcare providers play in identifying and reporting child abuse, and emphasized the need for strict adherence to mandatory reporting laws.

Introduction There are a variety of forensic issues that arise when working with minors. One critical aspect is the evaluation and management of suspected child abuse. Healthcare workers must be aware of their legal responsibilities and the mandated reporting laws that require them to report suspected child abuse. Failure to report such incidents may result in legal liability, making it crucial to understand the legal framework surrounding these issues. It is also important to recognize the special place juveniles occupy within the legal system and the evolution that has occurred through the centuries, leading to the current protections and processes afforded to juveniles.

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This has included the development of the Juvenile Court system and its ongoing reform, how the concept of culpability plays a role when determining the appropriate punishment for juvenile criminal behavior, and the U.S. Supreme Court’s review of such cases and how they have contributed to this evolving understanding.

Mandatory Reporting of Suspected Abuse or Neglect Concerns associated with child abuse can date as far as 450 BCE [2]. The definition of child abuse varies across different jurisdictions and encompasses a broad range of abusive behaviors and maltreatment [3]. The emergence of mandated reporting laws began in the 1960s, when Dr. C. Henry Kempe and his colleagues published a groundbreaking article entitled “The Battered Child Syndrome” in the Journal of the American Medical Association in 1962. This article highlighted the medical profession’s responsibility to recognize and report cases of child abuse. It was a significant turning point in acknowledging child abuse as a matter of public health, requiring systematic efforts to address it [4]. The medical recognition of the battered child syndrome spurred interest among medical and legal professionals and increased public awareness. In response to this growing concern, all state legislatures enacted some form of child abuse reporting law between 1963 and 1967 to address child abuse [5]. The Child Abuse and Prevention Act of 1974 (CAPTA) was passed by Congress, which provided funding for states to develop programs that educate mandated reporters on identifying these situations and conditions, as well as being well-informed about reporting procedures. Adequate funding was required for hiring and training protective service personnel, along with resources to support affected families [6]. With the passing of CAPTA, the era of government-sponsored child protective services was established [7]. Mandatory reporting laws vary slightly by jurisdiction, but all have common elements. These commonalities include requiring certain professionals, including healthcare providers, to report suspected child abuse or neglect to the appropriate authorities, providing a legal basis for breaching confidentiality to protect the welfare of children. As an example, Florida Statute § 39.201 requires that any person who knows, or has reasonable cause to suspect, that a child is abused, abandoned, or neglected by a parent, legal custodian, caregiver, or other person responsible for the child’s welfare, is legally required to report such knowledge or suspicion to the Florida Department of Children and Families (DCF) via the central abuse hotline. The statute also requires reporting when a person knows or suspects that a child requires supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care. Florida’s law applies to all individuals, not just specific professions. However, certain professionals, such as healthcare providers, teachers, and social workers, have additional reporting responsibilities due to their regular contact with children. Failure to report is considered a misdemeanor in Florida, which is potentially punishable by incarceration and/or a fine [8].

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Differences Between Minors and Adults in the Judicial System From a medical perspective, children are vastly different from adults. There are biological, social, and psychological differences that may be obvious to a medical professional whose background can help them appreciate the neuropsychological aspects of child and adolescent development. These differences have been further solidified by developments in the areas of neural imaging, functional imaging, and physiology. While this is not a new concept in modern-day society, laws differentiating adults and children were not always clearly delineated, especially when it came to civil liberties and protections. For example, before 1875 there was no formal organization dedicated to the prevention of abuse toward children [7], and it was not until 1938 that there was a federal law delineating fair child labor practices [9]. By the same token, when considering the expanse of our country’s legal history, it was not until relatively recently that a judicial jurisdiction was developed to be focused solely on the adjudication of juveniles (i.e., juvenile court). The first juvenile court was established in Illinois in 1899. Before that, children 14 years of age and older were tried in adult court and were presumed to be fully culpable as adults. The juvenile courts’ jurisdiction was meant to handle more minor offenses involving children under the age of 16. The idea was to transition their sentencing and experience within the juvenile justice system to have more of a rehabilitative (rather than punitive) focus [10]. By 1935, all states had established juvenile courts. The theory of parens patriae (the State has the power and responsibility to intervene in the best interest of children and those adults who are unable to protect themselves) also contributed to these changes, as the State was seen as bearing the responsibility to protect their youth rather than solely to punish them [11]. In his 1909 article, Judge Julian Mack questioned the approach society took toward juvenile offenders. He argued that instead of treating them harshly, they should be treated similarly to neglected children, with the care and understanding of a wise and compassionate parent who guides their own child whose misdeeds remain undiscovered by the authorities. Judge Mack further asserted that the state’s responsibility should extend beyond simply determining whether a child has committed a specific offense. The state should evaluate the child’s physical, mental, and moral well-being and, upon recognizing that the child is on a path toward criminal behavior, intervene with a focus on rehabilitation rather than punishment. He emphasized the importance of uplifting rather than degrading these young individuals, fostering their growth and development instead of suppressing it, and ultimately helping them become responsible citizens rather than perpetuating criminality [12]. With time, the juvenile court system was perceived to have adopted a relaxed posture. This included the informal and inconsistent process of juvenile waiver and transfer to adult court (the process by which certain juvenile cases were deemed to be more appropriately handled in and transferred to adult court). The lax posture stemmed from the idea that formal proceedings in juvenile court would lead to an adversarial environment [13]. However, as stated by Justice Fortas in 1966, “…there may be cause for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and

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regenerative treatment postulated for children [14].” This inconsistent process directly impeded the due process protections that guarantee that all legal proceedings are fair, and that the defendant will be given appropriate notice of the proceedings and have an opportunity for a hearing before any decision by the court. The following year, the Supreme Court ensured additional due process protections were granted for juveniles engaged with the juvenile court system [15]. Thus, when presented with the possibility of requesting waivers of juveniles from juvenile court to adult court, juveniles were assured a hearing, representation by legal counsel, access to information for the basis of the waiver decision, and a statement justifying the reason for the waiver [16]. Despite this reformation, there was eventually a pendulum swing that brought with it pessimism and skepticism about the lenient nature of the juvenile court system. This was also paired with an increase in violent offenses committed by juvenile offenders in the late 1980s and early 1990s [17].

Juvenile Culpability Culpability is a legal concept related to having committed an act or fault [18], which also adds the aspect of moral blame associated with a particular act [17]. Additionally, for a “crime” to have been committed there must exist both the act itself (actus rea) and a person’s understanding that the act is criminal (mens rea). In the legal system, children are considered incapable of being blamed for their actions. The lessened culpability in children has been documented as far back as the sixteenth century BCE where Hebrew Scriptures referenced offenses where you could or could not impose blame and stated that offenses committed by children were blameless as children could not weigh the moral implications of their behavior. This can also be seen in the doli incapax doctrine of the seventeenth century, which holds that children under the age of seven are incapable of committing a crime since they do not have the criminal intent or malice needed for a crime to have been committed [19]. Thus, when the offender is a young child, the question of culpability becomes easier in the sense that it is an obvious decision. However, between age 7 and 13 this notion of the capacity to form criminal intent or malice could be challenged in court [17]. Thus, in adolescence, the concept of “partial culpability” came into question. The United States Supreme Court (“the Court”) decisions have shed light on the factors and rationale that contribute to the partial or lessened culpability that juveniles as a class are privileged to in our legal system. In Thomson v. Oklahoma, the Court made specific reference to “the teenager’s capacity for growth,” which related to the ongoing development and maturation that adolescents undergo [20]. The Court also referred to the concept of parens patriae, stating that it was “societies’ fiduciary obligation to its children.” In our society, a line has been drawn at the age of 18 as being the age of majority. Prior to age 18, there are certain civil liberties that juveniles are not permitted to engage in, which served as evidence of the adolescent’s inability to assume the full responsibilities of adulthood. The Court has also considered other factors that contribute to juveniles’ lesser culpability, including a lack of maturity, greater vulnerability to negative influences, and incomplete

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character and personality development. As a result, according to the Court, adolescents thus do not merit the death penalty [21], nor do they merit penalties in which there is an eradication of hope that the individual may demonstrate growth and maturity, thus forbidding a juvenile from being sentenced to life without the possibility of parole [22]. Other factors that contribute to this reduced culpability include a heightened degree of impulsivity, an inability to refrain from wrongful actions, and that they may be in a developmental stage of increased aggression [17]. The Surgeon General’s report on youth violence indicates that violent offenses are more common in adolescents, citing that 30–40% of boys under the age of 17 had already committed a serious violent offense. The report also mentions that only 20% of those adolescents continue to display violent offenses into adulthood [23], indicating these behaviors may be more reflective of their developmental stage rather than life-long ingrained personality traits. It has also been shown that the peak age of onset for violent offending occurs between 15 and 16 years of age [24]. Thus, during adolescence there is greater aggression, less ability to refrain from engaging in aggressive behaviors, and a greater likelihood for violent offending. This appears to be a relatively time-limited phenomenon, however, which may reflect the individual’s increased ability to control aggressive impulses as they transition into adulthood. As opposed to adult offenders, juvenile offenders tend to commit violent offenses in groups rather than acting independently [24]. This is clear evidence of the vulnerability to being negatively influenced by peer groups. Peer influence, through social comparison and conformity, makes adolescents more likely to align their behavior with that of others in their peer group and to measure their own behavior against that of their peers [25]. Immaturity is another influential factor, specifically the cognitive limitations inherent to adolescents as they lack the ability to completely weigh the potential consequences of their choices. In addition, psychosocial immaturity (the underdeveloped social and emotional awareness displayed by children as they transition to adulthood) may be another reason juvenile offenders both engage in criminal behavior and are susceptible to peer influence [17]. There are also important neurocognitive considerations regarding adolescent development to consider when understanding their culpability for their actions. In the brain, the socio-emotional system develops before the cognitive control system. The cognitive control system relies on the frontal cortex and is involved in impulse control, planning, assessment of risk and rewards, and reasoning. Thus, because the development of the socio-emotional system, controlled by the limbic system, precedes the development of the brain structures that control these emotions, this discrepancy can lead to an increased tendency in adolescence to engage in impulsive and higher risk behaviors [26]. Finally, it is important to consider the concept of unfinished character development that was mentioned in Roper v. Simmons, whereby the Court specifically cited the American Psychiatric Association’s Diagnostic and Statistical Manual’s (DSM) provision that antisocial personality disorder should not be diagnosed before the age of 18 [27]. This is further reinforced by the idea that as character development progresses into adulthood, violent offending often does not continue [17, 23]. The

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Court in Roper stated that due to this transient character development, “a heinous crime committed by a juvenile is not evidence of irretrievably depraved character [21].” Thus, with the ongoing development of the juvenile’s character, there is the hope that adolescents will eventually be able to demonstrate their “growth and maturity” [22].

The Supreme Court and Juvenile Sentencing The first juvenile offender that was executed in the United States was Thomas Graunger who in 1642 was convicted of bestiality in Plymouth Colony, Massachusetts [16]. Although not a commonplace phenomenon, youth offenders tried in court as adults are at risk of receiving adult sentences. Although the Juvenile Court’s focus was on rehabilitation, there were greater concerns regarding the leniency of the Juvenile Court and the increase in violent juvenile offenses during the 1980s and 1990s. This led to an increase in juvenile transfers to adult court. In the adult criminal court system, youthful offenders were held as fully responsible for their crimes and allowed the possibility of their being sentenced to death. During the 1990s, the United States was one of only six nations that executed individuals who had committed crimes as juveniles. The other countries included Pakistan, Iran, Yemen, Nigeria, and Saudi Arabia [16, 28]. The Court has dealt with the concept of death sentences for juveniles in various ways. In 1982, the Court laid the groundwork for the consideration of age and upbringing as mitigating factors that should be considered at the sentencing phase of a death penalty case. For example, Monty Lee Eddings was 16 when he was convicted of murder and sentenced to death. Although his age was a mitigating factor, the other aspects of his family life, exposure to violence, and emotional problems were not considered mitigating factors independently. When the decision was eventually overturned by the Court, Justice Powell’s opinion stated, “so must the background and mental and emotional development be duly considered [29].” In the Court’s review of Thomson v. Oklahoma in 1988 [20], the question that was raised was whether the execution of an offender who was 15-years-old at the time he committed the offense violated the Eighth Amendment right against cruel and unusual punishment. In the Court’s opinion, they asserted that the death penalty is supposed to serve the purposes of retribution and deterrence. In the case of a juvenile offender, the Court acknowledged the lesser culpability that youth retain, adding that given, “the teenager’s capacity for growth, and society’s fiduciary obligations to its children, this conclusion is simply inapplicable to the execution of a 15-year-old offender.” In the Court’s opinion, sentencing to death someone who committed the crime when under the age of 16 would not achieve the intended purpose of capital punishment. Thus, this sentence would cause the “purposeless and needless imposition of pain and suffering.” They added that there were several laws that all states had enacted that included prohibitions against 15-year-old children being allowed to vote, serve on a jury, drive, or marry without parental consent, purchase pornographic material, or participate in legalized gambling. These factors

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aided the Court in its conceptualization that 15-year-old children were not prepared to assume the same level of responsibility as adults. In the following year, the Court was faced with a similar question regarding whether it was cruel and unusual punishment under the Eighth Amendment to impose the death penalty for all juvenile offenders. However, the sentences in question in the 1989 case of Stanford v. Kentucky [30] involved juvenile offenders who were 16- and 17-years-old at the time they committed murder. The Court’s ultimate opinion was supported by a lack of consensus in state and federal decisions, which the Court asserted did allow for the imposition of death for 16- and 17-year-old adolescents. Thus, the Court held that the Eighth Amendment’s prohibition of cruel and unusual punishment did not prevent states from imposing the death penalty to juvenile offenders over the age of 15. The same question again arose in 2005 when the Court reviewed the case of Christopher Simmons (Roper v. Simmons) [21], in which a 17-year-old had been convicted of murder and sentenced to death. Since the Court’s decision in 1989, the Roper court opined that there had been a change in the national consensus. At that time in 2005, 30 states prohibited juvenile death penalty; 12 states had abolished the death penalty completely and 18 had specific prohibitions against the death sentence for juvenile offenders. Additionally, the Court stated that executing juveniles had become a rare practice even in states where it was legally allowable, as there had only been six states that had carried out executions of juvenile offenders since the 1989 decision of the Court. Thus, all these factors were considered evidence of a national consensus that American society viewed youthful offenders as less culpable as a class. The Court opined that at that time there was also international consensus on the issue, as the United States was one of the few remaining countries in the world that had not yet banned the practice of sentencing juveniles to death. In its opinion, the Court provided three reasons why juveniles were as a class less culpable: (1) lack of maturity and an underdeveloped sense of responsibility that could result in poorly thought-out decisions, (2) juveniles are more vulnerable to negative influences, such as peer pressure, and (3) their character and personality traits are not as well formed as those of adults. As a result, the Court held that the Eighth Amendment forbade the imposition of the death penalty on juvenile offenders under 18. The Court then addressed additional developmental considerations that made juvenile offenders’ culpability different as a class when they reviewed the case of Graham v. Florida in 2010, finding that life without the possibility of parole for such individuals was also unconstitutional (Table 16.1).

Conclusion Working with children and adolescents brings with it various challenges and considerations that involve the evolution of legal statutes and case law. Child abuse concerns have existed throughout history, with definitions varying across jurisdictions. A significant shift occurred in the 1960s with the publication of “The Battered Child Syndrome,” leading to the establishment of mandated reporting laws and the Child

Year 1988 1989 2005 2010

Case Thompson v. Oklahoma Stanford v. Kentucky Roper v. Simmons Graham v. Florida

Table 16.1  Supreme court cases regarding juvenile sentencing Significance of decision The death sentence for juveniles under the age of 16 is unconstitutional The death sentence is not cruel and unusual punishment for 16- and 17-year-olds The death sentence for anyone under the age of 18 is cruel and unusual Life without possibility of parole is unconstitutional for anyone under the age of 18

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Abuse Prevention Act of 1974 (CAPTA). These laws require certain professionals, including healthcare providers, to report suspected child abuse or neglect, allowing for a breach of confidentiality to protect the welfare of children. While laws differ across jurisdictions, they share a common goal of identifying and addressing child abuse and supporting affected families. Children and adolescents are biologically, socially, and psychologically different from adults, with ongoing neuropsychological development continuing into adulthood. Historically, laws did not always differentiate between adults and children, but the establishment of the first juvenile court in 1899 marked a change toward a more rehabilitative approach. The concept of parens patriae also contributed to the change, with the State seen as responsible for its youth. The US Supreme Court has grappled with the issue of sentencing for juveniles as it pertains to life without parole and death sentence. The Court has acknowledged that juvenile culpability is considered lesser than that of adults, with factors such as immaturity, vulnerability to negative influences, and incomplete character development taken into account. Adolescents display heightened aggression and impulsivity but are also more likely to grow out of these behaviors. Neurocognitive factors, including the imbalance between the socio-emotional and cognitive control systems, contribute to impulsive and risky behaviors in adolescence. The concept of unfinished character development highlights the potential for growth and maturity in young offenders.

References 1. Landeros v. Flood, 17 Cal.3d 399, 131. 1976. 2. Clark RE, Clark JF, Adamec CA. The encyclopedia of child abuse. Infobase Publishing; 2007. 3. Liu BCC, Vaughn MS.  Legal and policy issues from the United States and internationally about mandatory reporting of child abuse. Int J Law Psychiatry. 2019;64:219–29. https://doi. org/10.1016/j.ijlp.2019.03.007. Epub 2019 May 10 4. Kempe CH, Silverman FN, Steele BF, Droegemueller W, Silver HK. The battered-child syndrome. JAMA. 1962;181(1):17–24. https://doi.org/10.1001/jama.1962.03050270019004. 5. Goodpaster GS, Angel K.  Child abuse and the law: the California system. Hastings Law J. 1975;26(5):1081–126. 6. Stein TJ. The child abuse prevention and treatment act. Soc Serv Rev. 1984;58(2):302–14. 7. Myers JEB.  A short history of child protection in America. Family Law Quarterly. 2008;42(3):449–63. 8. Fla. Stat.§ 39.201. 2022. 9. Grossman J.  Fair Labor Standards Act of 1938: Maximum Struggle for a Minimum Wage United States Department of Labor. https://www.dol.gov/general/aboutdol/history/flsa1938. 10. Burke AS. Under construction: brain formation, culpability, and the criminal justice system. Int J Law Psychiatry. 2011;34(6):381–5. 11. Landess J. Civil and constitutional rights of adjudicated youth. Child Adolesc Psychiatr Clin N Am. 2016;25(1):19–26. 12. Mack JW. The juvenile court. Harvard Law Rev. 1909;23:104–22. 13. Ash P. Adolescents in adult court: does the punishment fit the criminal? J Am Acad Psychiatry Law. 2006;34(2):145–9. 14. Kent v. United States. United States Reports: United States Supreme Court. 1966. p. 541. 15. In re Gault. United States Reports. 1967. p. 1.

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16. Office of Juvenile Justice and Delinquency Prevention Bulletin. Juveniles and the Death Penalty. Coordinating Council on Juvenile Justice and Delinquency Prevention. 2000. 17. Ash P. But he knew it was wrong: evaluating adolescent culpability. J Am Acad Psychiatry Law. 2012;40(1):21–32. 18. The Law Dictionary. 2023. https://thelawdictionary.org/culpable/. 19. Lennings NJ, Lennings CJ. Assessing serious harm under the doctrine of Doli Incapax: a case study. Psychiatry Psychol Law. 2014;21(5):791–800. 20. Thompson v. Oklahoma. United States Reports. 1988. p. 815. 21. Roper v. Simmons. United States Reports. 2005. p. 551. 22. Graham v. Florida. United States Reports. 2010. p. 48. 23. U.S. Health and Human Services. Youth violence: a report of the surgeon general. Psychiatr Serv. 2001;52(3):399. 24. Gardner M, Steinberg L. Peer influence on risk taking, risk preference, and risky decision making in adolescence and adulthood: an experimental study. Dev Psychol. 2005;41(4):625–35. 25. Siegel DM. The supreme court and the sentencing of juveniles in the United States: reaffirming the distinctiveness of youth. Child Adolesc Psychiatr Clin N Am. 2011;20(3):431–45. 26. Lee SJ, Kraus LJ. Transfer of juvenile cases to criminal court. Child Adolesc Psychiatr Clin N Am. 2016;25(1):41–7. 27. Diagnostic and statistical manual of mental disorders: DSM-5. 5th ed. Washington, DC: American Psychiatric Association; 2013. xliv, 947. 28. Tanenhaus DS. Juvenile justice in the making. New York, NY: Oxford University Press; 2004. 29. Eddings v. Oklahoma. United State Reports. 1982. p. 104. 30. Stanford v. Kentucky. United States Reports. 1989. p. 361.

Geriatric Forensic Psychiatry

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Jessica Abellard

Introduction The intersection of geriatric and forensic psychiatry is a nascent field. There is presently a dearth of literature or case law regarding modern approaches to forensic psychiatric issues in older adults, but changing demographics in the United States suggest a growing need for attention to this special population. According to the 2021 Report of Older Adults, the population age 65 and older is expected to increase to 95 million in 2060 [1]. The Report also predicts that the 85 and older population will more than double from 6.7 million in 2020 to 14.4 million in 2040. Due to declining fertility rates and exponential growth in the baby boomer population, the adult population age 65 and older is expected to surpass the number of children by 2034 [2]. As adults live longer and novel therapeutic agents, such as lecanemab, are developed for the treatment of mild cognitive impairment and early stages of Alzheimer’s dementia, psychiatrists will need to develop the tools to adequately assess complex medicolegal questions in this group [3]. Another projected demographic change among older Americans is an increase in racial and ethnic diversity over the next 20 years. Racial and ethnic minorities are projected to increase to 27.7 million (34% of older adults) by 2040 [1]. The increasing prevalence of intergenerational households with aging adults, complicated by these racial and ethnic shifts, means that it is important for psychiatrists to familiarize themselves with the cultural formulation as an essential component of clinical and forensic assessments. Psychiatrists will need to respect individuals’ psychological and sociocultural lived experiences and remain humble about their own proficiency assessing various minority groups [4]. In particular, intergenerational and J. Abellard (*) Department of Psychiatry, Yale School of Medicine, New Haven, CT, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 T. Wasser, R. Zhong (eds.), Psychiatry and the Law, https://doi.org/10.1007/978-3-031-52589-6_17

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cross-cultural narratives can provide a deeper understanding and may uncover concerns about abuse, social isolation, and barriers to access, among other factors. For additional information about these topics, see also Chap. 11.

Testamentary Capacity Clinical Vignette You are a psychiatrist working at a community health care clinic. As you review your schedule, you notice an initial psychiatric evaluation scheduled in the afternoon for Mr. Smith, a single 61-year-old man with a history of schizophrenia. He was referred to you by his primary care physician for a cognitive impairment assessment. Mr. Smith’s last psychiatric hospitalization took place about 10 years ago when he believed that he was abducted by aliens and that evil spirits pursued him. He exhibited agitation, depression, and eventually stopped eating or showering which led to his last hospitalization. A long-acting injectable antipsychotic was started during his hospital stay to ensure adherence to his psychotropic regimen. He has a history of self-discontinuing medications and self-medicating with edibles which would exacerbate his paranoid delusions. He is currently prescribed a monthly long-­ acting injectable, an anti-hypertensive, and a thyroid medication. He also receives weekly visiting nurse services. Although he continues to harbor paranoid and persecutory beliefs, his monthly injectable medication has attenuated his symptoms. As you delve further into Mr. Smith’s records, you learn that he has never been married, is childfree, and currently resides with his younger sister. Prior to moving in with his sister, he lived with his parents until their passing several years ago. His parents owned several cottages in Vermont that he and his sister inherited. He is employed part-time at the local grocery store loading boxes. He drives to his destination without periods of disorientation, nor has he gotten into accidents while driving. He manages his finances independently and denies having any cognitive difficulties. His sister is concerned that he has become increasingly forgetful over the past 2 years and that it takes him longer to complete tasks, such as balancing his check book; however, he has not made any late payments. He despises technology and prefers his landline and checkbooks to cellphones and the world of online banking. The front desk staff alerts you of Mr. Smith’s arrival and you greet him in the waiting room. He appears older than his stated age and is appropriately dressed. There is no evidence of tremors or unsteady gait. His sister is out-of-town and could not accompany him to his appointment, but he gives verbal consent for you to speak with her. During your initial assessment, you conduct a Montreal Cognitive Screening Assessment (MoCA), and he scores a 24/30 (a score of 26 or above is considered normal) with some difficulties with abstraction, delayed recall, and fluency. You learn that he was in special education in middle school and graduated from high school. He is oriented to person, place, and time and does not report

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symptoms of depression or mania. There is no history of suicidal or homicidal ideations or attempts. A week after the initial psychiatric evaluation, you receive a detailed voicemail from his sister’s attorney asking whether you believe he has dementia. The attorney comments on Mr. Smith’s sister’s observation that Mr. Smith often repeats himself, takes longer to manage his checkbook, and appears to have difficulty engaging in business transactions of his various rental properties. The attorney references a will Mr. Smith created several years earlier with the assistance of his attorney, but his sister questions his ability to amend his will because of the history of psychiatric hospitalizations and Mr. Smith’s bizarre comments about alien abductions. Does Mr. Smith have a cognitive impairment that interferes with his ability to make a will? As his treating psychiatrist, do you complete the attorney’s request to opine on his capacity to make a will? What additional collateral information would you like to obtain from his sister?

Historical Case: Banks v. Goodfellow, Court of Queen’s Bench, 1870 [5] John Banks was a businessman with a history of delusional beliefs and epilepsy. In 1838, he made a will designating his sister as heir, but she predeceased him. His sister’s husband later remarried and fathered a son, who served as the defendant in this case. Following his sister’s death, he executed a will in 1863 giving his properties to his niece, Margaret Goodfellow, who had resided with him. Mr. Banks held several delusional beliefs, including that evil spirits pursued him and that a local resident, Featherstone Alexander, molested him, even well after Mr. Alexander’s death. The mere mention of Mr. Alexander’s name would throw Mr. Banks into a rage which subsequently led to his institutionalization at the county lunatic asylum in 1841. Despite his underlying delusions and history of institutionalization, Mr. Banks managed several cottage rental properties as corroborated by the agent, Mr. Tolson, who collected his rent. In 1865, Mr. Banks died unmarried and without children. Ms. Goodfellow died 2 years after her uncle and was underage, unmarried, and childfree. In 1869, John Banks, Jr., his half-brother’s son, contested the will in question due to the elder Bank’s proclivity to delusions, agitation, and epilepsy. Several people testified, including Mr. Tolson, an agent who received Mr. Banks’s rent of several cottage rental properties, and a “medical man” who treated him in 1863 for epileptic fits. The “medical man” testified that during his altered mental state, Mr. Banks was “insane” and incapable of managing business transactions. However, Mr. Tolson testified that he engaged in business transactions with Mr. Banks and even agreed to Mr. Banks’s business proposition to lease out rental properties to Mr. Tolson for 7 years. Mr. Ansell, Mr. Banks’s attorney, was present at the time Mr. Banks executed his amended will and prepared a leasing agreement between Mr. Banks and Mr. Tolson.

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The verdict ultimately favored the defendant, stating the will was “a good and valid will” [5]. The plaintiff appealed the ruling on the grounds of misdirection by the presiding judge and that the verdict did not consider the weight of evidence. In 1870, Lord Chief Justice Cockburn gave a pivotal ruling on the case, stating that Mr. Banks demonstrated capacity to make a will, and there was no evidence that he exhibited delusions at the time he executed a will. Justice Cockburn had a newfound understanding of neuroscience and the complexities of the mind as evidenced by his reasoning: The senses, the instincts, the affections, the passions, the moral qualities, the will, perception, thought, reason, imagination, memory, are so many distinct faculties or functions of the mind. The pathology of mental disease and the experience of insanity in its various forms teach us that while, on the other hand, all the faculties, moral, and intellectual, may be involved in one common ruin, as in the casing of the raving maniac, in other instances one or more only of these faculties or functions may be disordered, while the rest are left unimpaired and undisturbed [5].

In the mid-nineteenth century, there was an emergence of neuroscience research that paved the way for Chief Justice Cockburn’s pioneering assessment of testamentary capacity, or the mental ability to create or execute a valid will. The prevailing doctrine prior to Banks v. Goodfellow emphasized that any degree of delusions precluded testamentary capacity, irrespective of whether or not delusions played a role. In Waring v. Waring, the Judicial Committee of the Privy Council argued that the mind was considered indivisible, and if an individual was “unsound” in one area, then it would be impossible for an individual to make rational decisions in other areas [6]. However, in the wake of the Phineas Gage case in 1848 and Dr. Paul Broca’s seminal work on the localization of the speech center of the brain, attitudes about the brain and its function began to shift [7]. Justice Cockburn incorporated this knowledge of the brain—no longer an undifferentiated organ—and delivered his groundbreaking ruling. In the case of Mr. Banks, his beliefs regarding Mr. Alexander or the evil spirits that pursued him did not lead him to make an irrational decision about how he wanted to distribute his properties. The presence of eccentricities, delusions, or cognitive impairment does not preclude decision-making capacity. It’s important to differentiate “insane delusions,” a legal term of art, from modern clinical definitions of delusions. “Insane delusion” is defined as a “wholly irrational belief that the testator [person making a will] adheres to and which affects dispositions in a will,” whereas “delusion” in a clinical context refers to a fixed false belief that may not necessarily affect one’s rational decision-making in areas unrelated to the delusional beliefs [8]. Mr. Banks may have had a history of psychosis, but his last will and testament were valid because he retained a factual and rational understanding of the will, his assets, and how he wished to distribute the will. Invalidating his will would have required evidence of a decompensated psychiatric illness that impaired his ability to understand or reason about these tasks [9]. Despite the archaic language of Justice Cockburn’s ruling, Banks v. Goodfellow remains one of the landmark cases for assessing testamentary capacity to this day.

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Core Principles of Testamentary Capacity Jurisdictions in the United States continue to use the testamentary capacity criteria first articulated in Banks v. Goodfellow, with minor variations among states. Testamentary capacity has four major components. The testator must understand: (1) the nature and extent of their property, (2) the natural objects of their bounty, (3) how the will would dispose of their property, and (4) the rational plan as to the disposition of their property [10]. In most states, the burden to prove that a testator does or does not have testamentary capacity falls on the party disputing the will [11]. The law presumes that most adults have the capacity to execute a will, even in the presence of mental illness. It is common for a testator to execute a will without a physician’s formal assessment of testamentary capacity. Advanced age or the mere presence of cognitive impairment or other vulnerabilities does not automatically eliminate a person’s testamentary capacity. Even individuals who have guardians or conservators may still retain the capacity to make a will. Because of these nuances, psychiatrists can provide valuable assistance to courts in will contests when issues of mental illness or cognitive impairment arise [12]. Assessments of testamentary capacity may be contemporaneous (an evaluation that takes place at or around the time the will is executed) or extemporaneous (a retrospective assessment that takes place after a disputed document was executed and often after the testator’s death). The former has the advantage of direct interviews with the testator. The latter would warrant a scrupulous review of records, including neurological records, if available, and collateral information from former clinicians and family members. When conducting a retrospective assessment, the psychiatrist has the challenging task of reviewing the decedent’s capacity at the time the will was executed, oftentimes with limited data or prior assessments at the time the will was executed [13].

The Forensic Evaluation In a forensic assessment, the forensic psychiatrist serves as a consultant to an attorney or court and is not in a classic patient-physician relationship with the testator. The assessment should include a comprehensive review of records, such as medication trials, inpatient and outpatient treatment, neuropsychological testing, imaging reports, financial documents, and estate balance sheets, as well as collateral information from reliable sources, such as family members and treatment providers. Visits to, or interviews conducted in, an evaluee’s home may be useful and can provide insight into the person’s living conditions, level of independence, and family dynamics. Table 17.1 provides questions that can probe an evaluee’s specific abilities to understand and reason about aspects of their will [9]: In addition, hypothetical questions can be fruitful in gauging judgment and enable screening for susceptibility to undue influence. For example, an evaluator can inquire how a testator might respond to an attorney involved in helping them

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Table 17.1  Testamentary capacity assessment 1.  Can you describe what a will entails? 2.  Has a prior will been made and were any amendments made over time? If so, why? 3. What is your current financial worth? Keep in mind that the client may provide an approximate amount. 4. Can you describe your financial assets and types of banking accounts with the balance of each (checking, savings, investments)? 5.  What is your monthly income and expenses? 6.  Who are your heirs, and can you describe your relationship with each of them? 7. How do you intend to divide your inheritance, and can you explain why you intend to leave the proposed amounts? 8. Are there relationships outside your family or organization to whom you intend to leave your inheritance? 9. Have you excluded relatives, or do you intend to lower the proposed gift in the will than might be expected? If yes, why?

execute a will who requests that the majority of the proposed gifts in the will be awarded to the attorney [9].

What Is Undue Influence? A will created by a person lacking testamentary capacity is invalid, but even if a person has testamentary capacity, a will can still be contested by claiming the presence of undue influence [10]. Undue influence states that the influence of another person has usurped the free agency of the testator and has substituted the testator’s wishes [14]. Undue influence is different from due influence. A testator can, for instance, knowingly and rationally bequeath assets to a romantic interest, charity, or caregiver as a reasonable response to that relationship. Jurisdictions vary in their specifics, but in general, influence becomes undue when: (1) there is a confidential relationship between the testator and the influencer, (2) the influencer utilized the relationship to change the testator’s disposition of their estate, (3) the change in the estate plan was unconscionable or did not reflect the wishes of the testator, and (4) there was evidence that the testator was susceptible to influence [10]. Many mental disorders in older adults can interfere with capacity and create a vulnerability to undue influence, including mood disorders, psychotic disorders, dementia, and substance use disorders [15]. When considering neurocognitive disorders, it is important to note that mild cognitive impairment, dementia, and delirium are syndromes with considerable heterogeneity in their presentation, course, prognosis, treatment, and reversibility. More severe cognitive disorders are more likely to create a susceptibility to undue influence. Of note, advanced age is not, in itself, a mental disorder, and age-related cognitive decline without associated functional impairments is not sufficient to establish a mental disorder.

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Cognitive screenings, such as the Folstein Mini-Mental State Examination, Montreal Cognitive Assessment, or the Clock-Drawing Test, are helpful tools in identifying the presence and type of cognitive impairment, though more advanced instruments are often needed to fully characterize a person’s mental deficits [15]. Once it is established that a vulnerability due to mental disorder is present, an evaluator must ask additional questions aimed at assessing the influencer’s effects on the vulnerable person. For example, if the will distributes assets in an unusual manner, does not adequately provide for heirs, or disproportionately favors a friend, caregiver, or advisor, then there is a greater likelihood that the will can be successfully challenged [10]. Similar challenges can arise if the influencer isolates the testator from their support or manipulates the testator to eliminate contact with loved ones. In the most extreme cases, an influencer can even place a testator under duress, defined as “a threat of physical, financial, or psychological violence to force a testator to sign a will that does not represent his or her true testamentary intent” [10].

Guardianship Clinical Vignette As the inpatient consultation-liaison psychiatrist, you are consulted on the case of Ms. T to assess her ability to make medical decisions. Ms. T is a divorced, 79-year-­ old woman with a history of minor neurocognitive disorder and hoarding disorder who lives alone. One late summer afternoon, her neighbor called 911 after Ms. T was found slumped over her porch disoriented and groaning in pain. As emergency respondents assessed Ms. T, they noticed her house was in disarray with countless boxes blocking the foyer and hallways, multiple books sitting on top of her stove, and a non-functioning heating, ventilation, and air conditioning system. In the emergency room, laboratory testing and urinalysis revealed electrolyte abnormalities and a urinary tract infection which led to her admission to the medical floor. What would have been a short hospitalization lasted several weeks as she became disoriented believing she had to leave for work and attempted to leave the hospital several times. She attempted to strike her nurse or anyone else who got in her way and required soft limb restraints. The inpatient medical team raised concerns about her ability to safely care for herself at home. Physical and occupational therapy noted her deconditioned state and recommended inpatient short-term rehabilitation to which Ms. T adamantly refused. Due to her insurance coverage, Ms. T’s hospitalization is further compounded by limited access to at-home services, including visiting nurse services. Ms. T is estranged from her three adult children who vow to have no contact with her. Your attempts at reaching her adult children, including her oldest son who quips, “Never call again!” have been unproductive and lead to feelings of helplessness and frustration as you navigate the absence of collateral information and unclear baseline level of functioning. None of Ms. T’s children have spoken to her in years. There is discussion of the hospital’s ethics committee plan to review the

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case. During a lengthy and arduous court process involving the housing authorities, you are also alerted that Ms. T’s house was deemed unsafe to return home and subsequently condemned. What is your recommendation to the primary team and the ethics committee regarding Ms. T’s ability to make medical decisions? At what point is guardianship warranted and how does this differ between outpatient and inpatient settings?

Legal Process of Guardianship Guardianship is a legal process of appointing an alternate decision maker to an incapacitated individual or “ward.” It is intended to provide an incapacitated person who is unable to safely manage personal decisions or affairs with continued care and supervision. Most jurisdictions require that petitioners establish by clear and convincing evidence (a more stringent standard than mere preponderance of the evidence) that the proposed ward, or respondent, is unable to make decisions for themselves due to mental or physical disability [16]. The guardianship proceeding takes place at the probate or local civil court for the district where the respondent resides. If there is evidence to proceed with a hearing for guardianship, then a defense attorney for the proposed ward may be assigned if private counsel is not available [17]. Depending on the jurisdiction, the court may appoint a guardian ad litem (GAL) in order to protect the interests of the individual at risk of losing some or all autonomy. The GAL, who is usually an attorney, has a duty to act on behalf of the proposed ward and/or on behalf of the court for the duration of the hearing [18]. While the procedural requirements for the appointment of a guardianship vary by state, the burden of proof falls on the petitioner [18]. Guardians are typically relatives, friends, or court-appointed professionals, such as an attorney. In some states, the term “guardianship” may be used interchangeably with “conservatorship.” Once a guardian is appointed, additional procedures may be needed to terminate the guardianship if it is no longer appropriate (e.g., the ward’s mental condition improves). In Connecticut, for example, a guardian can be rescinded by the probate court after notice and a hearing finding that termination of the guardianship is in the best interests of the ward [19]. The process to restore rights varies by jurisdiction so it is prudent to be familiar with local state practices. In addition, these interstate variations can make transferring a guardianship across state lines (e.g., if the ward moved closer to family or to receive medical treatment) difficult. The judge, guardian, or lawyer must then navigate how to enact the transfer so that the guardianship will be recognized in another state [20]. Guardianship exists on a spectrum with other forms of supportive or surrogate decision-making. In 2017, the American Bar Association (ABA) prepared a resolution to the ABA House of Delegates urging states to amend their guardianship statutes to require supported decision-making as a less restrictive alternative to guardianship [21]. In supported decision-making, a person with marginal autonomy may avert the adversarial process and designate a trusted person or persons, whether a friend, family, advocate, or community member, to support them in making their own decisions.

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Several states have enacted legislation recognizing supported decision-­making as a viable alternative to guardianship, with Texas becoming the first state in 2015 to allow individuals to create a written supported decision-making agreement [22, 23]. Table 17.2 provides a brief overview of different types of decision-­making models. Of note, physicians, family members, and even attorneys often confuse the designation of a power of attorney (POA) with guardianship. POAs involve the private execution of a legal document but do not involve a court hearing or judicial order. Guardianship proceedings often require that a physician opine about a proposed ward’s functional capacities. Once guardianship established, the ward is adjudicated legally incompetent, and decision-making authority is given to the guardian. In contrast, the execution of a POA does not require clinician involvement, but physicians must determine that a person lacks decision-making capacity before the POA takes effect. Although there are numerous formal mechanisms for shared or surrogate decision-­ making, informal arrangements should not be overlooked, since family members or trusted supports often assist impaired adults in making decisions about their healthcare or finances. Sometimes, a formal route may not be available due to financial costs associated with legal fees. Other times, guardianship may be unnecessary if family members or other supports are trustworthy and reliable. Another intervention that bypasses the judicial process is mediation, in which an impartial third-party facilitator helps to communicate and negotiate in the context of familial conflict [25]. This process allows for a more individualized approach in order to optimize communication with all parties as well as to empower the respondent to ensure their voice is heard [20]. The intersection of ethical, legal, and healthcare considerations should incorporate a collaborative approach to address the complexities of guardianship [26]. On a micro level, in what way can psychiatrists assist probate courts in the guardianship process? Table 17.2  Four types of services for medical decision-making and financial management [24] Examples of variations of decisional authority for older adults Supportive Shared Delegated  • Retains  • Shared  • Older adult decisional and decisional and executes executional executional decisional authority authority authority prior  •  Examples:  •  Examples: to incapacity    – Power of    – Joint through Attorney Accounts advanced    – Bill Paying    –  Trusts directives Services  •  Examples:    –  Trusts   – Living Wills    – Durable Power of Attorney    – Durable Powers of Attorney for Health Care    –  Trusts

Surrogate  • Transfer of authority through formal mechanisms  •  Examples:    – Representative Payee designated by Social Security Administration or other governmental agency    – Limited Guardianship    – Plenary or full guardianship

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Guardianship Assessment Expert testimony can be an invaluable resource during guardianship proceedings. As with any forensic assessment, the physician must have a clear understanding of the legal question. A thorough assessment includes the course and prognosis of the illness and the extent by which the illness impacts the proposed ward’s overall functioning. The formulation should be outlined in the report, which varies by state. Some states have devised a standardized form that must be completed by a physician without the need for an additional report(Table 17.3). In addition, collateral information is critical, particularly if the evaluee is a limited historian. When collecting collateral data, evaluators should ensure that the information is relevant, reliable, and sufficient to form an opinion [17]. Potential sources of collateral information include the primary care physician, family members, friends, and hospital records. To avoid any appearance of conflict of interest, one must be mindful of the location of the interview and weigh the advantages and disadvantages, such as transportation difficulties or office availability. Unless clinically appropriate, it is advised against interviewing the client with an attorney or potential beneficiary of the ward present, since the presence of other actors may affect the evaluee’s performance, even if unintentional. On the other hand, the

Table 17.3  What to include  •  Identifying data in the report [17, 18, 27, 28]  •  Referral source  •  Informed consent  • Evaluee’s appreciation of guardianship and the consequences of guardianship  • Evaluee’s ability to understand and manipulate information and make reasoned choices  •  History of present illness and current medications  •  Medical and psychiatric history  •  Educational history  • Activities of daily living and instrumental activities of daily living    – Examples: Can the evaluee independently prepare meals, drive, and manage their medications and finances? Do they require assistance with bathing, toileting, grooming, and feeding?  •  Mental status examination  • Cognitive testing, such as a clock drawing test or Folstein Mini Mini-Mental State Examination  • Reversible causes of impairment, such as delirium, depression, or iatrogenic causes  • Mitigating factors, such as hearing loss, bereavement, malnutrition, educational or cultural barriers  • Less restrictive alternatives to guardianship, such as health care advance directive or a financial power of attorney

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presence of counsel might be ideal during the introduction if it will optimize the evaluee’s engagement with the interview [17].

Risk Factors for Elder Abuse and Mistreatment Whenever conducting assessments of older adults, whether for testamentary capacity or guardianship, evaluators should always be vigilant about the potential for vulnerable individuals to be victimized. According to the World Health Organization (WHO), globally one in six people aged 60 years and older experience abuse in the community, with even higher rates in institutions, and these rates are projected to rise commensurate with the rapid increase in the global aging population [29]. Therefore, it is imperative to understand the risk factors and signs of elder abuse, particularly in instances of severe cognitive impairment and dependence on a family member. The Centers for Disease Control and Prevention define elder abuse as an “intentional act or failure to act that causes or creates a risk of harm to an older adult (age 60 or older)” [30]. Types of abuse include physical, emotional, or financial neglect or mistreatment. Risk factors for elder abuse include cognitive impairment, poor physical and/or mental health, functional dependence or disability, and low socioeconomic status [31]. Perpetrators are likely to be dependent on their victim for housing and/or financial support and may have a history of mental illness, caregiver depression, or substance misuse [31]. Whether in clinical practice or when conducting a forensic evaluation, it is recommended to interview suspected victims of abuse alone, since the evaluee may deny abuse or fear intimidation while the perpetrator is present [32]. While it might pose a challenge to recognize more subtle signs of abuse, one must be cognizant of the risk factors as well as the procedures for reporting suspected abuse.

Summary Older adults make up an increasing proportion of the American population. Accordingly, practitioners must develop an understanding of the medicolegal considerations in this group. Testamentary capacity is the ability to make a will and requires that the testator understands the nature and extent of their property, the people who would have a claim to the estate, the nature and purpose of a will, and manner in which the will would distribute the estate. The plan described in the will must be rational, and the testator must be free of undue influence. Guardianship aims to protect vulnerable, impaired individuals who cannot manage their own affairs by assigning decision-making authority to another person. Because of the significant imposition on the ward’s rights and autonomy, guardianship involves numerous procedural safeguards and periodic review.

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References 1. 2021 Profile of Older Americans. 2022. https://acl.gov/sites/default/files/Profile%20of%20 OA/2021%20Profile%20of%20OA/2021ProfileOlderAmericans_508.pdf. Accessed 8 Feb 2023. 2. United States Census Bureau. 2018. https://www.census.gov/library/stories/2018/03/graying-­ america.html. Accessed 8 Feb 2023. 3. van Dyck CH, Swanson CJ, Aisen P, Bateman RJ, Chen C, Gee M, et  al. Lecanemab in early Alzheimer’s disease. N Engl J Med. 2023;388(1):9–21. https://doi.org/10.1056/ NEJMoa2212948. 4. Griffith E. Ethics in forensic psychiatry: a cultural response to stone and Appelbaum. J Am Acad Psychiatry Law Online. 1998;26(2):171–84. 5. Banks v. Goodfellow. 5 LRQB. 549. 1870. 6. Waring v. Waring. 13 Eng. Rep. 715; 6 Moore PC 341. 1848. 7. Bennett H. Neurolaw and Banks v Goodfellow (1870): guidance for the assessment of testamentary capacity today. Australas J Ageing. 2016;35:289–90. https://doi.org/10.1111/ ajag.12365. 8. Simmons TE. Testamentary incapacity, undue influence, and insane delusions. South Dakota Law Rev. 2015;60(2). 9. Roof JG.  Testamentary capacity and guardianship assessments. Psychiatr Clin North Am. 2012;35(4):915–27. https://doi.org/10.1016/j.psc.2012.08.011. 10. Frolik LA. The strange interplay of testamentary capacity and the doctrine of undue influence: are we protecting older testators or overriding individual preferences? Int J Law Psychiatry. 2001;24:253–66. 11. Kate McEvoy, 20 Conn. Prac., Conn. Elder Law § 4.18 (2023 ed.). 12. Frost M, Lawson S, Jacoby R.  Testamentary capacity: law, practice, and medicine. Oxford University Press; 2015. 13. Plotkin DA, Spar JE, Horwitz HL. Assessing undue influence. J Am Acad Psychiatry Law. 2016;44(3):344–51. 14. Perr IN.  Wills, testamentary capacity and undue influence. Bull Am Acad Psychiatry Law. 1981;9(1):15–22. 15. Shulman KI, Cohen CA, Kirsh FC, Hull IM, Champine PR.  Assessment of testamentary capacity and vulnerability to undue influence. Am J Psychiatry. 2007;164(5):722–7. https:// doi.org/10.1176/appi.ajp.164.5.722. 16. Kelly AM, Hershey LB, Marsack-Topolewski CN.  A 50-state review of guardianship laws: specific concerns for special needs planning. J Financ Serv Prof. 2021. 17. Drogin EY, Barrett CL. Evaluation for guardianship. Evaluation for guardianship. New York, NY: Oxford University Press; 2010. 18. American Bar Association/American Psychological Association Assessment of Capacity in Older Adults Project Working Group. Assessment of older adults with diminished capacity: a handbook for psychologists. 2008. 19. Kate McEvoy, 20 Conn. Prac., Conn. Elder Law § 14:32 (2023 ed.). 20. Wood EF. Recharging adult guardianship reform: six current paths forward. J Aging Longevity Law Policy. 2016;1(1):8–46. 21. American Bar Association/Commission on Disability Rights, Section of Civil Rights and Social Justice Section of Real Property, Trust and Estate Law, Commission on Law and Aging. Supported decision making resolution 113 to the ABA house of delegates. 2017. 22. Peterson A, Karlawish J, Largent E. Supported decision making with people at the margins of autonomy. Am J Bioeth. 2021;21(11):4–18. https://doi.org/10.1080/15265161.2020.1863507. 23. Center for Public Representation (CPR): U.S.  Supported Decision-Making Laws. 2023. https://supporteddecisions.org/resources-­on-­sdm/state-­supported-­decision-­making-­laws-­and-­ court-­decisions/. Accessed 13 July 2023.

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24. Wilber KH, Reynolds SL.  Rethinking alternatives to guardianship. The Gerontologist. 1995;35(2):248–57. https://doi.org/10.1093/geront/35.2.248. 25. American Arbitration Association, et  al. Model standards of conduct for mediators. 2005. https://www.adr.org/sites/default/files/document_repository/AAA-­M ediators-­M odel-­ Standards-­of-­Conduct-­10-­14-­2010.pdf. Accessed 3 July 2023. 26. Moye J, Catlin C, Kwak J, Wood E, Teaster PB. Ethical concerns and procedural pathways for patients who are incapacitated and alone: implications from a qualitative study for advancing ethical practice. HEC Forum. 2017;29(2):171–89. https://doi.org/10.1007/s10730-­016-­9317-­9. 27. Leatherman ME, Goethe KE.  Substituted decision making: elder guardianship. J Psychiatr Pract. 2009;15(6):470–6. https://doi.org/10.1097/01.pra.0000364290.86080.2f. 28. Moye J, Butz SW, Marson DC, Wood E.  A conceptual model and assessment template for capacity evaluation in adult guardianship. The Gerontologist. 2007;47(5):591–603. https://doi. org/10.1093/geront/47.5.591. 29. World Health Organization. Tackling abuse of older people: five priorities for the United Nations Decade of Healthy Ageing (2021–2030). 2022. https://www.who.int/publications/i/ item/9789240052550. Accessed 17 July 2023. 30. Centers for Disease Control and Prevention. 2021. https://www.cdc.gov/violenceprevention/ elderabuse/fastfact.html. Accessed 18 Feb 2023. 31. Pillemer K, Burnes D, Riffin C, Lachs MS. Elder abuse: global situation, risk factors, and prevention strategies. Gerontologist. 2016;56:S194–205. https://doi.org/10.1093/geront/gnw004. 32. Rodgers C, Siegert M.  Abuse and neglect of adults. In: Handbook of forensic assessment: psychological and psychiatric perspectives; 2011. p.  391–415. https://doi. org/10.1002/9781118093399.ch17.

Competence to Stand Trial and the Insanity Defense

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John K. Northrop and Hassan M. Minhas

Introduction A forensic psychiatrist is often asked by the courts in criminal matters to provide insight into the mental state of a defendant concerning two distinct matters: competence to stand trial and insanity at the time of the offense. This chapter first explores core concepts of competency and the important components of an evaluation of the defendant’s capacity for criminal proceedings. Next, the chapter explores from a historical perspective the insanity evaluation, which analyzes a defendant’s mental state at the time of the alleged offense. In performing these criminal forensic evaluations, the psychiatrist relies on a core set of skills, and in particular an assessment of malingering. Though these matters are relevant worldwide and addressed by many disciplines, this chapter focuses primarily on the practice of forensic psychiatry in the United States.

Competence to Stand Trial Clinical Vignette At case conference in your community psychiatry clinic, a colleague relates that she has been contacted by the family member of one of her patients who is in jail and J. K. Northrop (*) Department of Psychiatry, Perelman School of Medicine, University of Pennsylvania, Philadelphia, PA, USA e-mail: [email protected] H. M. Minhas Law and Psychiatry Division, Department of Psychiatry, Yale School of Medicine, New Haven, CT, USA © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 T. Wasser, R. Zhong (eds.), Psychiatry and the Law, https://doi.org/10.1007/978-3-031-52589-6_18

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waiting for transfer to a state psychiatric hospital for treatment of his mental illness before he can be released. She and the family are very concerned that this person has not been receiving his usual medications and he has been kept under special observation wearing a protective gown for this entire time. Another one of your colleagues says that something similar is happening with one of his patients. She has serious mental illness, and she has been incarcerated, but this has been nothing like when she was in the emergency department waiting for transfer to an inpatient psychiatric unit. Her lawyer has told the family that because she has been determined to be incompetent to stand trial, her case cannot move forward. How can you help your colleagues and their patients’ families make sense of this?

What Really Happened An older man suffering from schizophrenia and experiencing homelessness was arrested on charges of retail theft. The court found him incompetent to stand trial on these charges and committed him to the forensic unit of the state psychiatric hospital for treatment and competency restoration. Since the court’s determination and competency restoration order, he has been detained for almost a year in the local jail awaiting an opening for transfer and treatment at the state hospital. Based on the length of the waiting list, he can expect to wait at least another 2 months or more before transfer. He and several other defendants in similar situations facing long wait times for competency restoration have filed a class action civil lawsuit against the state challenging for reforms to the competency restoration process [1].

Core Principles of Competence to Stand Trial Competency evaluations are one of the most common types of evaluations that forensic psychiatrists perform. The nature of competency evaluations in criminal cases is analogous to clinical evaluations of medical decision-making capacity. Just as a consult-liaison psychiatrist may be asked to assess whether a patient has capacity to make decisions about their treatment, a forensic psychiatrist may be asked to assess whether an evaluee has the capacity to assist in their criminal defense. As a matter of basic fairness, defendants have a right to understand the proceedings against them and to be able to aid in their defense. If they lack the capacity to do either, they are not legally competent to stand trial and their proceedings are stayed until they do. Competence to stand trial relates to the defendant’s present state of mind during criminal proceedings, not during the commission of the alleged crime (the latter is an issue of criminal responsibility, discussed below). The concept of competence to stand trial dates back at least to seventeenth-­ century England [2]. At that time, in an attempt to avoid entering a plea, some defendants would remain mute. In these situations, the court would decide whether the defendant was intentionally mute or mute by natural causes. Defendants found

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to be willfully mute to avoid criminal responsibility had increasingly heavy weights placed on their chests until they responded. Defendants found legitimately unable to speak, on the other hand, did not have to undergo this ordeal. Thus, one of the core concepts of competency is whether a difficult defendant is simply unwilling to assist in their defense, or if they are truly incapable of doing so because of medical reasons outside their control. Concerns about a defendant malingering incompetency continued to be found in early jurisprudence in the United States, where the standards to be found competent to stand trial were minimal and based simply on orientation to person, place, and time [3]. In the 1960 landmark case Dusky v. United States, the U.S. Supreme Court established both the constitutional right to be competent to stand trial, as well as the minimum standards to protect that right in all U.S. jurisdictions [3]. To be considered competent to stand trial a defendant must have “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and a “rational as well as factual understanding of the proceedings against him” [3]. A later landmark U.S.  Supreme Court case, Drope v. Missouri, affirmed and added that the defendant must also be able “to assist in preparing his defense” [4]. Although the court in Dusky did not specify what conditions may make a person incompetent to stand trial, most states require the presence of a psychiatric illness. Conversely, the presence of a psychiatric illness, although often necessary, is not alone sufficient to demonstrate a lack of competency. This principle and several other caveats concerning the use of psychiatric diagnoses for forensic purposes are discussed in the foreword to the DSM-5 [5], along with additional analyses in a special section of the Journal of the American Academy of Psychiatry and the Law [6]. In order to demonstrate a lack of competency, the psychiatric illness must result in an inability to understand the proceedings of the court, and/or an inability to participate in one’s defense. For example, a defendant may have severe schizophrenia, but nonetheless still be able to understand the workings of the court, the charges against him, and be able to provide his attorney with relevant details pertinent to his defense. With a preserved ability to parallel process, even a defendant with a decompensated psychiatric illness may nonetheless still be able to rationally assist in their defense. Later case law has further refined the understanding of a defendant’s right to be competent to stand trial. While not a binding nationwide precedent, the decision in Wilson v. District of Columbia in 1975 set a model for other courts to follow that amnesia for the alleged offense does not automatically equate with incompetency [7]. Then in a nationwide biding precedent, the U.S. Supreme Court established in Godinez v. Moran in 1993 that the Dusky standards for competency apply broadly to all aspects of adjudicative capacity for criminal proceedings, including plea bargaining and sentencing, not just trial [8]. However, the U.S. Supreme Court subsequently held in Indiana v. Edwards in 2008 that the standard to waive counsel and proceed pro se (i.e., represent oneself in court without an attorney) is higher than that elaborated by Dusky [9]. Thus, a state may compel a defendant to be represented by a defense attorney if the incapacitated defendant cannot knowingly and intelligently waive their right to counsel. In Edwards, the court did not define the

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standards to waive counsel and proceed pro se, other than to say it is a higher capacity than what must be demonstrated with the Dusky standards, which presume the assistance of defense counsel.

Core Principles of the Competency Evaluation A robust guide to understanding and performing a competency evaluation has been put forth by the American Academy of Psychiatry and the Law [2]. In practice, the forensic psychiatrist will find substantial common elements to other familiar evaluations, but with a focused emphasis on acquiring data relevant to the defendant’s capacity for criminal proceedings. Prior to performing a competency evaluation, the psychiatrist should learn about the charges that the state has levied against the defendant. During the evaluation, the psychiatrist will complete a thorough biopsychosocial assessment, including developmental history, social history, psychiatric and medical history, and more. Data concerning the defendant’s capacity for criminal proceedings begins with ascertaining the defendant’s knowledge of the allegations that have been made, along with the potential punishments for the charges faced. The psychiatrist will assess the defendant’s appreciation of the various components involved in legal proceedings. This includes knowledge of the roles of the judge, prosecutor, and defense attorney, as well as a rational understanding of their relationships to the defendant. Also of critical importance is the defendant’s knowledge of the workings of a plea bargain and a trial, including a rational balancing of the relative advantages and disadvantages of each. Other important aspects to assess include the defendant’s ability to behave properly during court proceedings, an understanding of available pleas and their implications, knowledge of and capacity to understand and engage in a plea-bargaining process, capacity to engage in appropriate, self-protective behavior, and the defendant’s ability to retain and apply new information effectively. Obtaining collateral data from records and interviewing others familiar with the defendant may also provide useful information that may assist in forming a more complete understanding of the defendant’s psychiatric status. After the evaluation is complete, the psychiatrist will summarize the findings in the form of a report, including an opinion to a reasonable degree of medical certainty whether the defendant meets that specific jurisdiction’s standards to be considered competent to stand trial. If the opinion recommends that the defendant be found not competent, then the expert must further opine whether the defendant is restorable. Meaning, whether psychiatric treatment and/or education is likely to aid the defendant in achieving a state of competence, and what would be the least restrictive setting needed to achieve this restoration (e.g., inpatient vs. outpatient). Importantly, while the psychiatrist presents her opinion to the court, the final decision is made by the judge who takes into consideration the report, and if needed, the doctor’s testimony.

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Most states have restoration programs for defendants found to be not competent but restorable, through treatment of the underlying disorder and/or education. Individuals with intellectual disability and similar conditions can also be referred to habilitation programs to achieve competency. Regardless, these programs largely include educating defendants about courtroom personnel and procedures, as well as the specific charges they face. A psychiatric expert may opine that based on the nature of a defendant’s psychiatric condition; the defendant may have no reasonable prospect of competency restoration in the foreseeable future. For example, individuals with intellectual disability impervious to habilitation efforts, major neurocognitive disorders, treatment refractory psychosis, or other persistent conditions may never achieve a sufficient understanding of criminal proceedings necessary to rationally assist in their defense. For these non-restorable cases, in 1972 the U.S. Supreme Court ruled in Jackson v. Indiana that competency restoration cannot be an indefinite commitment, and the time frame must bear some relation to the maximum potential sentence for the crimes charged [10]. It is left to the states to determine specific competency restoration policies and procedures. When a defendant is found to be not competent but is refusing psychiatric medication, there is a provision to forcibly administer medications if the defendant meets certain criteria. In the 2003 case Sell v. United States, the U.S. Supreme Court established criteria that must be met for the involuntary administration of psychotropic medication solely for the purpose of restoring competency [11]. The Court held that medication could be administered against the defendant’s will only when an important government issue is at stake. Expert psychiatric opinion is relevant to the remaining criteria. First, whether there is a substantial probability that the medication will enable the defendant to become competent without exposing them to substantially undermining side effects. Second, whether the medication is necessary to restore the defendant’s competency, without any alternative or less intrusive procedures that would produce the same results. Should a defendant require involuntary treatment due to dangerousness to oneself or others, then the ordinary civil commitment procedures may be followed, albeit with modifications based on the jurisdiction relevant to justice-involved persons. Importantly, involuntary treatment for safety takes precedence over competency restoration, and may be pursued even if such treatment may result in competency restoration [12]. In cases where a defendant is incompetent and non-restorable, the courts must decide whether to keep the defendants in the criminal justice system or to effectively dismiss or suspend the charges. In those cases, defendants found non-­ restorable but who still potentially pose a danger to others might be civilly committed to a state hospital or other institution for safety and continued treatment.

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Conclusions –– Defendants in criminal proceedings in the United States have a right to understand the proceedings against them and to be able to rationally assist in their defense. If they are unable to do so, then they are not competent to stand trial. –– If a concern is raised by any party about the defendant’s competence, then a psychiatric evaluation can be requested and proceedings halted until a determination can be made regarding the defendant’s capacity for criminal proceedings. –– A competency evaluation involves a thorough biopsychosocial assessment along with gathering of data regarding a defendant’s competence to stand trial. The examiner renders an opinion whether the defendant has a factual and rational understanding of the proceedings and whether they are able to rationally assist in their defense. –– If the defendant is found to be not competent, an assessment must be made regarding whether there is a substantial likelihood that the defendant can be restored to competency. If so, the least restrictive environment to achieve this goal should be used. –– The expert may also be called upon to inform the court whether competency restoration is improbable in the foreseeable future. The court may also rely on expert testimony as to whether involuntary treatment is likely to achieve competency restoration.

Not Guilty by Reason of Insanity Clinical Vignette At lunch during a national conference, you meet up with colleagues from residency who are now practicing across the country. Conversation steers to a criminal trial in the headlines. Each of your colleagues begins to argue whether the defendant is “insane” or not. Not only do they have differing opinions on the merits of the evidence, but they each seem to be applying different standards for criminal responsibility. One says that it is a question of whether the defendant knows right from wrong. Another argues instead that a defendant’s actions need to be a result of their mental illness to be considered insane. A third colleague recalls these issues from residency, but she believes that there is no longer an insanity defense in her state, and instead it is simply a question of whether the defendant had a specific criminal intent. You recognize these issues, and you also think that a defendant’s capacity to behave according to the law is important. How can you help your colleagues make sense of this?

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What Really Happened Mr. Monte Durham, who had a long history of psychiatric illness and several inpatient hospitalizations for psychosis, was arrested and charged with housebreaking. He was initially found not competent to stand trial and committed to a hospital for competency restoration. After 6 months, he was restored, and he proceeded to trial. There was not sufficient evidence of mental illness impacting his mental state at the time of the offense, and based on the presumption of sanity, he was found guilty. However, the court of appeals overturned the conviction stating, “An accused is not criminally responsible if his unlawful act was the product of mental illness or mental defect.” [13] With this decision in 1954, Washington DC (briefly) joined New Hampshire in applying the “product test” for the insanity defense, rather than the stricter knowledge test.”

Core Principles of the Insanity Defense The insanity defense, referred to in many jurisdictions as Not Guilty by Reason of Insanity (NGRI), is an affirmative defense in criminal cases based on the premise that the defendant is not responsible for their actions due to a psychiatric illness. In U.S. criminal law, this defense is related to the concept of mens rea (guilty mind) and has been present in one form or another for several centuries of legal precedents. Notably, there has been significant public controversy around this defense. It has been under the public spotlight at various times, especially around acts of violence against prominent government officials. Whether in the 1843 case in the United Kingdom of Mr. Daniel M’Naghten’s insanity verdict in the killing of the Prime Minister’s private secretary or the more recent example in the 1982 trial of Mr. John Hinckley following the attempted assassination of President Ronald Reagan. In the aftermath of both cases, there was a shift toward making the insanity defense more difficult to apply and prove. This section first reviews the history of the insanity defense in its various iterations, underlying concepts, and recent developments. The section then focuses on the special role of the forensic evaluator in assessing the mental state of the defendant as it relates to the different standards for criminal responsibility. Actus non facit reum nisi mens sit rea—this legal principle was put forward in the 1600s by English jurist Sir Edward Coke and translates as “an act does not make a person guilty unless their mind is also guilty.” This principle underlines the importance of mens rea, or “guilty mind” and highlights the interplay between mental state and culpability. In the 1700s the “wild beast test” stated that to be found insane, a defendant must be “totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, a brute, or a wild beast” [14]. This standard continued to evolve, and in 1800, Mr. James Hadley attempted to assassinate King George III. At his trial for treason, the defense presented expert medical testimony that his delusions were the product of head injuries from battle, and they challenged the limited interpretation of insanity at that time. Mr. Hadley

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was acquitted on the grounds of insanity, but rather than be released, he was committed indefinitely to Bethlem Royal Hospital under the Criminal Lunatics Act of 1800 that was rapidly passed just days after the verdict [15]. In 1843, Mr. Daniel M’Naghten shot the Prime Minister’s private secretary Mr. Edward Drummond believing him to be the Prime Minister. Mr. Drummond died of his wound. At trial, Mr. M’Naghten claimed that persecution by the Tories had driven him to act, and he pleaded not guilty by reason of insanity. After hearing witness testimony and other evidence of his mental state, a verdict of not guilty by reason of insanity was returned [16]. The Queen, concerned with the outcome, asked the justices of the House of Lords to clarify the test of legal insanity. This led to the M’Naghten Rule, where a defendant was presumed sane, and to qualify for the insanity defense, a mental illness must be present. Then due to mental illness, one of two cognitive components was required: either an inability to know the nature and quality of the act, or an inability to know the wrongfulness of the conduct. The first refers to the physical quality of the act as opposed to the moral quality. For example, someone who had the delusion that they were slicing a cake when they were actually cutting off someone’s limb would not know the nature and quality of their act. However, if the same individual did know that they were cutting off a limb, but delusionally believed that it was Satan’s (and thus it was morally correct to do so), he or she would be aware of the nature and quality of the act, but not the wrongfulness of the act. The M’Naghten rule began to be adopted by states in the United States in the mid-1800s and was eventually adopted by most states. In contrast, in 1869, New Hampshire adopted a test of insanity referred to as the product rule: “No man shall be held accountable, criminally, for an act which was the offspring and product of mental disease” [17]. With the Durham case (presented in the clinical vignette), the District of Columbia also adopted a product rule. While some federal and state courts briefly followed this approach, it was ultimately criticized for lacking a clear legal standard for insanity and instead allowing the forensic psychiatric expert to usurp the role of the judge and jury as trier of fact. In 1972, D.C. abandoned the product rule, and instead adopted a version of the Model Penal Code (discussed below) [18]. Another test that has been used to determine insanity is the irresistible impulse test. Although this test has been argued since the late 1800s, it gained acceptance in the United States around the 1950s. The test is based on the inability of an individual to conform their behavior to the requirements of the law. That is, even though they appreciated that their actions were morally wrong, they were unable to control their conduct due to their mental illness [19]. A well-publicized case utilizing this defense was the case of Ms. Lorena Bobbitt, who was charged with malicious wounding for cutting off her husband’s penis while he slept. Ms. Bobbitt’s defense team presented evidence to demonstrate that her husband had abused and raped her in the past. Using this evidence, they argued that even though she knew the action itself was wrong, she was unable to curtail her impulse. The jury found her not guilty due to insanity causing an irresistible impulse to sexually wound her husband [20].

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In 1962, the American Law Institute (ALI) formulated the Model Penal Code, providing a compromise between the narrow, stricter M’Naghten Rule and the broader product rule [21]. The Model Penal Code defense for insanity became widely adopted by most states in the United States. The test states: “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 of his conduct or to conform his conduct to the requirements of law” [21]. This test essentially combines the M’Naghten Rule and the irresistible impulse defenses, with some modifications. It is important to note that the wording “appreciate” is broader than “knowing” wrongfulness—a defendant may “know” that shooting somebody is unlawful, but may not “appreciate” the wrongfulness if he believed that he acted on orders from the FBI (as part of a delusion), and that it was therefore the morally righteous thing to do. The insanity defense attracted public spotlight and criticism when Mr. John Hinckley attempted to assassinate President Ronald Reagan, wounding him and three others. Mr. Hinckley was found not guilty by reason of insanity. The verdict resulted in public outcry, and this led several states to drop the insanity defense entirely (Montana, Utah, Idaho, and later Kansas). Other states enacted measures to increase the difficulty of defendants obtaining an insanity defense, including abandoning the Model Penal Code standard in favor of the stricter M’Naghten Rule. Still other states adopted a Guilty but Mentally Ill (GBMI) verdict, which on the face may resemble the Model Penal Code but is not a defense to a crime or an acquittal. Rather, it is a guilty verdict, which also identifies that the defendant needs mental health treatment while incarcerated [22]. On the federal level, after the Hinckley verdict, the Insanity Reform Act of 1984 was passed. Previously, if the insanity defense was raised in federal court, the burden of proof shifted to the prosecution to demonstrate the defendant was not insane. The Act amended this and shifted the burden of proof from the prosecution to the defense, which was now required to prove insanity by clear and convincing evidence. Clear and convincing is a lesser standard than beyond reasonable doubt, but a higher standard than preponderance of the evidence, which is the standard for a finding of insanity in most states. Both these changes made the defense more difficult to successfully obtain in federal courts [22]. Several states have abolished or curtailed the insanity defense, while other states and jurisdictions apply very different standards for determining insanity and criminal responsibility. Unlike competence to stand trial which has a rich body of U.S. Supreme Court rulings elaborating constitutional minimums for all states to follow, there is no comparable body of landmark cases for the application of the insanity defense. Recently, however, the U.S. Supreme Court agreed to hear a challenge to Kansas’s elimination of the wrongfulness prong of the knowledge test on the grounds that it violated fundamental due process. In 2020, the Court ruled in Kahler v. Kansas that due process does not require a state to adopt an insanity defense that turns on a defendant’s ability to recognize that the act was morally wrong [23]. While common law has for centuries recognized insanity as a defense to a crime, the definition of insanity has varied historically, as have the definitions

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of mental illness, such that no one version may be considered fundamental. The dissenting opinion looked at the same history and concluded that reduced moral culpability is the core of the insanity defense and thus fundamental to due process. Nonetheless, the Court has left the question of defining insanity defense to the individual states, where authority over criminal matters has traditionally resided.

Core Principles of the Insanity Evaluation Presently, each state has a different insanity test, and it is important that the forensic psychiatrist performing an insanity evaluation be knowledgeable regarding the specific insanity rule for each case. This can best be obtained by asking the attorney retaining you for the relevant portion of the statute and any applicable case law in the jurisdiction in which the case is being tried. For a comprehensive list of state insanity defense statutes, along with best practices for the insanity evaluation, the reader can refer to the American Academy of Psychiatry and the Law’s Practice Guideline for forensic psychiatric evaluation of defendants raising the insanity defense [22]. The Insanity Defense is an affirmative defense, meaning that the burden of proving that they were legally insane at the time of the act is on the defendant. This differs from most criminal cases in which the burden is on the prosecutor to prove the defendant is guilty of the alleged acts beyond a reasonable doubt. However, the defendant need only prove they were insane at the time by a preponderance of the evidence (except in federal courts where the defense must meet the higher standard of clear and convincing). Once the defense decides to enter a plea of Not Guilty by Reason of Insanity, they almost always provide the court with evidence from a psychiatric expert. The prosecution may choose to get an evaluation by another psychiatric expert, whose evaluation may or may not come to the same conclusion as that of the expert report presented by the defense. An insanity evaluation performed by a forensic psychiatrist begins with clarifying the specific laws regarding criminal responsibility applicable to that jurisdiction and understanding the defendant’s legal charges and how the jurisdiction defines each offense. Then the defendant is interviewed (often several times), and psychological testing may be obtained if appropriate. A thorough examination includes gathering further corroborating information, such as past medical and treatment records, school records, employment history, etc. Since an insanity evaluation is a retrospective examination of the defendant’s mental state at the time of the alleged conduct, collateral records and reports around the time the act allegedly took place become extremely important. If a defendant is found insane, the defendant is not released from custody, but is instead committed to a psychiatric hospital in most cases. Many times, the confinement at the psychiatric hospital can be for longer than what they would have served in prison had they been found guilty of the crime, though specific procedures for managing individuals found insane vary state by state. Moreover, mounting an ultimately unsuccessful insanity defense may lead to a harsher sentence if the

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defendant is still found guilty. Once committed to the state hospital, the expert psychiatrist may be asked to evaluate the insanity acquittee for current stability and future dangerousness in order to determine whether the individual must remain confined to a high-security forensic psychiatric hospital or begin to progress through less restrictive levels of care.

Conclusions –– The insanity defense has a long and controversial history, with notable changes in jurisprudence and public opinion driven by highly publicized cases involving the defense. –– The U.S. Supreme Court has not determined whether a constitutional right to an insanity defense exists, but it has ruled that fundamental due process does not require any one form of the insanity defense. In the face of a controversial and evolving history, it has deferred to the states and let stand the several different versions and even elimination of the insanity defense. As a result, some states have no provision for the insanity defense, though most apply some version of a M’Naghten Rule or the ALI Model Penal Code standard. –– Thus, the forensic evaluator must familiarize herself/himself with the specific statutes and case law concerning insanity in their jurisdiction. –– After being found not guilty by reason of insanity, defendants are generally committed to psychiatric hospitals, though specific procedures for detaining and treating these individuals vary state by state. Whether they may be treated in a less restrictive environment is also informed by forensic expert opinion on dangerousness and stability.

Summary Most psychiatrists engaged in forensic examinations still spend most of their professional time in the role of a clinical psychiatrist. In that role, there is a fiduciary ethical duty to one’s patient. Stepping into the role of a forensic psychiatric evaluator requires one to recognize the different ethical guidelines that apply to this work [24]. In the domain of criminal forensic evaluations, there is no clear “good” outcome for the defendant in either evaluation of competency or insanity. Forensic psychiatrist is often faced with concrete ethical dilemmas, such as minimizing the harms of proceeding to trial with impaired capacity versus prolonged detention awaiting treatment and restoration. In confronting these real-life ethical dilemmas head-on, the forensic evaluator is best served by adhering to the duty to striving for objectivity. In the role of objective seeker of the truth, the forensic psychiatrist owes a duty to assess for and frankly address malingering. A clinician understands that even with patients where malingering is manifest, it is never the only clinical consideration. Exaggeration and even manufacturing of some symptoms often co-occur with

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other psychiatric conditions that require treatment regardless of the exaggeration. Similarly, feigning symptoms to minimize or avoid criminal responsibility may be present in any forensic setting, including criminal evaluations of mental state. Identifying malingering serves both the public trust and the truth. Striving for objectivity also demands that evidence of malingering not be the only consideration in the evaluation. Rather, it should be assessed in the context of all factors that impact an individual’s mental state, both in relation to their ability to assist in their defense and in their potential criminal responsibility.

References 1. JH, et al vs. Miller, US District Court for the Middle District of Pennsylvania, Civil Action No. 1:15-cv-02057-SHR. 2. Mossman D, Noffsinger SG, Ash P, Frierson RL, Gerbasi J, Hackett M, Lewis CF, Pinals DA, Scott CL, Sieg KG, Wall BW, Zonana HV, American Academy of Psychiatry and the Law. AAPL practice guideline for the forensic psychiatric evaluation of competence to stand trial. J Am Acad Psychiatry Law. 2007;35:S3–72. 3. Dusky v. United States. 362 U.S. 402. 1960. 4. Drope v. Missouri. 420 U.S. 162. 1975. 5. Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR, 2022). 6. Special section on DSM-5 and forensic psychiatry. J Am Acad Psychiatry Law Online. 2014;42(2):132–5. 7. Wilson v. District of Columbia, 338 A.2d 437. 1975. 8. Godinez v. Moran, 509 U.S. 389. 1993. 9. Indiana v. Edwards, 554 U.S. 164. 2008. 10. Jackson v. Indiana, 406 U.S. 715. 1972. 11. Sell v. United States 539 US 166. 2003. 12. United States v. Loughner, No. 11-10339 (9th Cir. 2012). 13. Durham v. United States. 214 F.2D 862 D.C. Cir. 1954. 14. Rex v. Arnold. Howell’s state trials. 1724. 15. Moran R. The origin of insanity as a special verdict: the trial for treason of James Hadfield (1800). Law Society Rev. 1985;19(3):487–519. 16. M’Naghten’s Case. Eng. Rep. 718. 1843. 17. State v. Pike. 49 N.h. 399. 1869. 18. United States v. Brawner, 471 F.2d 969 (D.C. Cir. 1972). 19. Parsons v. State. 81 Ala. 577, 2 So. 354. 1887. 20. https://www.nytimes.com/1994/01/22/us/lorena-­b obbitt-­a cquitted-­i n-­m utilation-­o f-­ husband.html. 21. American Law Institute. Model penal code: official draft and explanatory notes: complete text of model penal code as adopted at the 1962 annual meeting of the American Law Institute at Washington, DC; 1962. 22. American Academy of Psychiatry and the Law. AAPL practice guideline for forensic psychiatric evaluation of defendants raising the insanity defense. J Am Acad Psychiatry Law. 2014;42:S3–S76. 23. Kahler v. Kansas - 140 S. Ct 1021. 2020. 24. American Academy of Psychiatry and the Law Ethics guidelines for the practice of forensic psychiatry. 2005.

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Clinical Vignette You receive a call from a parole officer asking if their supervisee had been treated at the community mental health center where you work. Not only do you not have a signed release for this person, but you also do not recognize the name. After politely explaining confidentiality requirements, you hang up the phone and search the electronic medical record for the patient. You see several missed appointments but, indeed, have never met L.B. Some months later, an unfamiliar face signs into the afternoon access clinic you are covering. The patient is disheveled, malodorous, and slightly agitated. You recognize L.B.’s name and redirect him to your office. Alternating between sitting and standing, the patient tangentially speaks about conspiracies involving the police, who have been listening to his thoughts through his teeth. L.B. adds that his parole officer is “in on it” and said that if he doesn’t see “a psych,” he will return to prison. You calmly ask L.B. about himself, attempting to engage him in providing some history and building rapport. He limitedly listens to you, providing primarily irrelevant information. You ask if he had “been upstate” with compassion in your voice. L.B. looks in your direction, nodding his head in agreement. Between other mutterings, he tells you he did “a dime and a half…in turtle suits or butt-ass naked half the time…walls screaming at me…” You know he means that he had been incarcerated for ten and half years and likely under suicide precautions or in other isolation for part of that time. As you start to ask another question, L.B. hears a police siren outside and darts out of your office with a terrified look on his face. Wondering whether L.B. might return today or sometime soon, you think about his presentation and next steps. How should you get more information about him? How should you have already been provided with information regarding Mr. L.B.? M. Joy (*) Department of Psychiatry, Perelman School of Medicine, Philadelphia, PA, USA © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 T. Wasser, R. Zhong (eds.), Psychiatry and the Law, https://doi.org/10.1007/978-3-031-52589-6_19

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You contemplate what treatment he may have been provided with—or may have needed but not received—while incarcerated. You reflect on just how L.B.’s history of incarceration may have affected his presentation today.

Bowring v. Godwin 551 F.2d 44 (4th Cir. 1977) Background/Facts In Virginia in the late 1960s, Larry Grant Bowring attempted to rob a young nurse, stating he had a gun [1]. During a separate incident, he robbed and sexually molested a preteen boy [2]. Bowring was convicted on charges of robbery, attempted robbery, and kidnapping—sentenced to 5- and 9-year period of incarceration. Bowring was denied parole for several reasons, including receipt of a psychological evaluation that noted he “would not successfully complete a parole period” [3].

Process and Outcome The incarcerated person sued the state, seeking psychiatric and psychological treatment to be eligible for parole [3]. Bowring contended that failure to provide diagnosis and treatment constituted cruel and unusual punishment as well as denial of due process of law. The U.S. District Court for the Western District of Virginia summarily dismissed Bowring’s claim as being without any denial of Constitutional rights. He appealed to the 4th U.S. Circuit Court of Appeals, which reversed the lower court’s judgment. The panel of three judges noted that the district court had incorrectly conflated the issues under federal statute 42 U.S.C. § 1983—known as the “Ku Klux Klan Act” for its intended protection of Black people—civil action for deprivation of rights [4]. The Bowring Court provided the background context that Constitutional rights apply to prisoners, whose incarcerated status means that the public is required to care for this population. The judges noted a historical tendency for federal courts to avoid intervening in the operations of correctional institutions but, citing Estelle v. Gamble [5], decided that these institutions must provide reasonable medical care based on requirements of the Eighth and Fourteenth Amendments. Based on “modern science,” the opinion equated mental health diagnosis and treatment to medical care for physical problems. The case was remanded to an evidentiary hearing to determine whether Bowring had a “‘qualified’ mental illness.” The prison would be ordered to provide treatment if his symptoms were evidence of a serious disease, his disease could be alleviated, and delay or denial of care would cause a substantial possibility of harm. The court noted the provision of treatment was not based on being merely desirable; it needed to be medically necessary. Adequate care could be provided for reasonable costs and durations. Though it specifically mentioned “counseling, medication, and therapy,” the court’s opinion avoided offering judgments about the “propriety or

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adequacy of a particular course of treatment,” as well as about clinical “negligence, mistake, or difference of opinion.” The opinion stated that appropriate mental health care would further the penal goal of rehabilitation to help incarcerated people become “useful and productive citizens upon their release.” However, the fundamental basis of the appellate court’s decision was viewing the Eighth Amendment’s language through “evolving standards of decency.” [6] Following the lineage of Estelle v. Gamble, “deliberate indifference” to mental health treatment was held to be unconstitutional because it caused the “unnecessary and wanton infliction of punishment.”

Legal Principle A prisoner with mental illness is constitutionally entitled to medically necessary, adequate psychiatric care.

Vignette Review: The Reality Unfortunately, as Mr. L.B.’s presentation demonstrates, there is often a significant gap between care required by the Bowring Court and the reality of treatment for incarcerated individuals in the United States. Following the deinstitutionalization of psychiatric hospitals in the 1970s, the correctional system became the de facto interface between people with serious mental illness (SMI) and mental health treatment [7]. This trend is directly related to inadequate community resources [8]. Correctional institutions, as arbiters of punishment, are not intended to be institutions of care. Yet, in the United States, they are responsible for treating more people with mental illness than psychiatric hospitals [9, 10]. In the country with the highest rates of incarcerated citizens, statistics reveal the continued overrepresentation of imprisoned individuals with SMI in the United States [11]. While 4.2% of American adults have a serious mental illness, this percentage bloats to 20–26% of people in jail, 15% of people in state prisons, 9% of people on probation, and 7% of those on parole. The SMI population tends to alternate between interfacing with psychiatric and general emergency rooms, jails, and prisons [12]. The disproportionate rates of incarcerated people with mental illness present an enormous burden on correctional and behavioral health systems of care, communities, families, and those with diagnoses [13]. However, it is crucial to recognize that despite its elevated prevalence in correctional institutions, serious mental illness is not associated with violence apart from distinct periods and subgroups (please see this text’s in Chap. 14 for further details). Most incarcerated individuals with SMI are charged with or convicted of misdemeanors, and even widespread adoption of best practices for mental health treatment would not eliminate crime [13].

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Incarcerated people in local, state, and federal jails and prisons, including pretrial detainees, have a constitutional right to adequate psychiatric care. Despite case law, published standards of care, and institutional policies, correctional mental health care provision and delivery remain uneven, at best, and typically inadequate. Facilities are under-resourced for adequate service delivery [7]. Implementing standards of care is highly variable—from screening for mental health needs to treatment and post-release coordination [7]. Thus, the vignette about L.B. displays a situation with which most practitioners might be familiar. Furthermore, correctional environments tend to exacerbate mental health problems [13]. Persons with SMI are confined for extended periods and are at elevated risk of self-harm and suicide [7, 11]. This population is often denied time out of their cells; individuals with SMI are affected by overcrowding, victimization, segregation, and exploitation. Yet incarceration is also difficult for people without preexisting mental disorders [9]. Correctional institutions are stressful, crowded places lacking privacy where violence, manipulation, and extortion abound. Family and other supports are limited, as are opportunities for work, education, and other productive endeavors. Recently, the COVID-19 pandemic negatively impacted isolation, prison visits, and the provision of mental health services [14]. However, many aspects of care have improved in recent years, including SUD services. This trend is in part based on the structural racism inherent to the “War on Drugs” and approaches that softened with white people’s prominent inclusion in the opioid epidemic [15]. The psychiatric impact of justice involvement on mental health begins long before incarceration. Police contact itself is associated with an increase in mental health symptomatology. Persons with mental disorders have substantially higher rates of contact with police than the general population [16], including fatal and other violent encounters. Rates are also elevated for Black adolescent and emerging adult males in urban areas due to structural racism [15, 17]. Such data explains why people with mental illness and Black people tend to distrust the police [18]. Crisis Intervention Training (CIT) of police officers and dispatch programs tends to be cost-effective and enhance diversion into treatment. There is significant officer-level improvement in stigma, cognitions, and attitudes about mental illness [19, 20]. An essential component of CIT is the ease of officer-initiated access to care for detainees. CIT is part of the spectrum of services that can potentially reduce the involvement in and negative impact of the criminal justice system [21]. For the average psychiatrist, however, contact with justice-involved patients occurs in community mental health centers and other public care systems. Upon release, discontinuing benefits, medications, and other resources complicates care transitions. Unfortunately, the period following incarceration is one of high risk for recidivism, relapse, overdose, suicide, hospitalization, and other adverse outcomes. The risk of recidivism is highest for those with SMI or SUD [10, 22]. Thus, policies regarding reentry coordination and relapse prevention are of particular importance. Reentry should include interagency “warm hand-offs” to exchange information. Specific fiduciary relationships between correctional and community institutions might facilitate such communication.

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Standard of Care In actuality, Ruiz v. Estelle defined essential components of quality mental health care in 1980 [23] following Bowring. After these two decisions, professional organizations began to provide guidance on correctional mental health care [24]. A 2004 report by the Council on State Governments (CSG) recommended providing incarcerated people with mental health consistent with community standards [25]. The American Psychiatric Association (APA) reiterated this goal in 2018 [26]. In 2022, the American College of Physicians (ACP) expanded this recommendation to include the implementation of the community standard for ethical principles [27]. Numerous groups have published standards of care for correctional health systems. The National Commission on Correctional Health Care (NCCHC) is perhaps the most widely recognized authority on standards for mental health care in correctional settings [28]; it also provides accreditation, certification, education, and technical assistance. Indirectly referencing Bowring and related cases, NCCHC defines medical necessity. The concept is determined through “clinical decision by a qualified health practitioner based on clinical judgment in keeping with current community standards of practice to meet a serious health need” [29]. As in Bowring, NCCHC notes that not all medical requests are appropriate though all must be evaluated for appropriateness. NCCHC characterizes mental health treatment as essential, requiring “a variety of psychosocial and pharmacological therapies, either individual or group, including biological and social, to alleviate symptoms, attain appropriate functioning and prevent relapse” [30, 31]. Ruiz v. Estelle’s enumeration of essential components of mental health care included systematic screening and evaluation; treatment that is more than mere seclusion or close supervision; participation by trained mental health professionals; accurate, complete, and confidential records; safeguards against unsafely prescribed psychotropic medication; and a suicide prevention program [23, 32]. Accordingly, NCCHC standards exist for both jail and prison, for mental health screening and evaluation, basic mental health services, suicide prevention, restraint and seclusion, emergency psychotropic medication, discharge planning, and sharing health records. Recommendations regarding intoxication and substance use disorders (SUD) are contained therein. Quality indicators for correctional mental health services have also been developed. For example, the Prisoner Re-entry Institute of John Jay College of Criminal Justice published such guidelines in 2007. These guidelines include recommendations that there should be documentation of psychopharmacological adherence; regular monitoring of abnormal involuntary movements and metabolic laboratory values for antipsychotic medication recipients; monitoring of incarcerated people on higher risk mood stabilizers; suicide screening using validated measures; training for correctional staff in suicide risk management; individualized treatment plans; and limitation of pharmacology for insomnia for vague reasons or long durations [32, 33]. Other authoritative resources on correctional mental health have been published by the American Academy of Psychiatry and the Law (AAPL) [34], the

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U.S. Department of Justice (DOJ) and the Federal Bureau of Prisons [35, 36], the American Psychiatric Association (APA) [26, 37], the American College of Physicians (ACP) [27], the National Institute of Corrections (NIC) [38], the Federal Bureau of Prisons (BOP), the Council of State Governments [39, 40], the American Correctional Association (ACA) [41], the Substance Abuse and Mental Health Services Administration (SAMHSA) [40, 42], and the International Corrections and Prisons Association (ICPA) [43]. These guidelines provide many recommendations, including the following: • Reducing seclusion and restraints • The use of telepsychiatry [37] • Balancing security and treatment needs, including collaboration of leadership from both domains • Quality improvement reviews • Psychiatric advocacy [26] • Adequately funded policies and procedures • Partnership with public health authorities • Alternatives to incarceration and evidence-based correctional treatment for individuals with substance use disorders • Adequate housing and support [27] • Psychotherapy • Informed consent • Management of adverse effects of medications • Psychoeducation [34] • Care for transgender persons [44] • Education and training • Research involving incarcerated persons • Interprofessional relationships • Cultural competence • Ethical issues • Diversion • Release planning [40, 45] • Medication-assisted treatment for opioid use disorder [42] • Prioritization of the needs of the seriously mentally ill • Improvement of community-based mental health services • Gender-responsive programming [11]

Clinical Vignette: Rewind …Still in your reverie, you imagine what an intake with L.B. might look like. Though this is your first time meeting him, you were aware of L.B.’s upcoming appointment and history because a social worker at the state prison had called you before his release. Before the appointment, you receive a release summary—much like the documents you appreciate reviewing after a patient is discharged from an

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inpatient psychiatry hospitalization. L.B.’s parole officer had been included in the communications as well. Awaiting L.B.’s arrival, you review the clinical documentation you received, abstracted below: • Upon arrival to the facility 2 years ago, L.B. had undergone an immediate mental health screening by a trained correctional officer, who noted that he had been previously diagnosed with schizophrenia; he had numerous past psychiatric hospitalizations; he was not suicidal at the time but had several previous suicide attempts, including in the last year; he occasionally took olanzapine but had not filled the prescription since his most recent hospitalization just 2 weeks prior; and had been using crack cocaine daily. • At intake, L.B. appeared disheveled, with well-worn tattoos; he was alert and slightly agitated but able to communicate that he heard voices that were not bothering him. The intake record documented that L.B. was a cisgender male. • L.B. was placed in the general population—without needing withdrawal monitoring—and referred to same-day mental health services. • Just hours later, a psychologist interviewed L.B. and documented additional history in addition to confirming elements of the screening. The incarcerated person had a history of lifelong exposure to community violence but no record of sexual or physical abuse. L.B. had attempted suicide three times, most recently by hanging after an argument with a female friend. He did not need medical attention but was involuntarily hospitalized for 2 weeks. He had no prior violent offenses; he said he would get into fights sometimes, but no one had been seriously injured. L.B. had dropped out of high school but never attended special education classes. At the time of the evaluation, he was hearing multiple voices commenting to himself and each other, but he reported he could block them out better than he had in the past, though they tended to scare him at night and interfere with his sleep. L.B. told the psychologist he would think about taking olanzapine but requested a lower dose than the 20 mg at bedtime he had been previously prescribed. This was L.B.’s third incarceration after violating his parole. He hoped he wouldn’t have to be “in as long as the judge had said.” He shared that his mother was sick, which was causing him distress. • L.B.’s Adverse Childhood Experiences (ACE) score was 4; his Post-Traumatic Screening Disorder (PTSD) Checklist indicated that he had been physically assaulted, including with a weapon, and learned about serious violent deaths— his score was 25; his score on the Montreal Cognitive Assessment (MoCA) was 22; L.B.’s PHQ-9 (Patient Health Questionnaire-9) suggested mild depression with a score of 8. • A referral for psychiatric evaluation and treatment was placed for provisional diagnoses of schizophrenia, severe cocaine use disorder, and possible unspecified trauma-related disorder, as well as individual psychotherapy. Releases of information were signed for previous hospitalizations, and a treatment plan was developed. The psychologist instructed L.B. to place a health service request for mental health concerns and immediately contact staff for emergencies.

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• L.B. met with a psychiatrist the next day, and you recognize the name as your prior co-resident. Throughout residency, she had been deeply committed to social justice issues, and seeing her name brings a smile to your face. Of course, her documentation was thorough, and the treatment plan was entirely appropriate, from the transition to aripiprazole after noting that L.B. was diagnosed with diabetes to the supportive psychotherapy interventions using elements of cognitive behavior therapy for recovery (CBT-R). • Skimming over the records from the following 2 years and reviewing the release summary, you look forward to meeting L.B. He was seen every 2–3 months by the psychiatrist, every month by the psychologist, and eventually transitioned to long-acting injectable medication. For approximately 1 month, early in his incarceration, he had received inpatient treatment within the facility after he had become more acutely psychotic and agitated. While the treatment had considered transferring him to an outside mental health facility, L.B.’s symptoms had diminished significantly with the resumption of antipsychotic medication that he had been checking for the previous weeks. • Eventually, the parole board decided that he was ready to return to the community with the support of specialized supervision services. • As you finish reading, the front desk staff notify you that L.B. and his case manager have arrived for the appointment. His Medicaid information has been verified, as well. • You let staff know you are coming to greet the patient. Grabbing your ID and walking out to the waiting room, you reflect on L.B.’s history, what might be unique to treating this individual, and how to engage him in the appointment and future care. [The above vignette was modeled on NCCHC’s Standards for Mental Health Services in Correctional Facilities: Second Edition [46], Standards for Health Services for Jails and Prisons [30, 31], as well as the Position Statement on Sharing of Patient Health Records Upon Release from Incarceration [47].]

The Sequential Intercept Model: A Conceptual Framework Over the years, many conceptual frameworks have been developed to try and understand the ways in which individuals with severe mental illness and substance use disorders become involved with the criminal justice system. These frameworks have been used to both enhance our shared understanding and to identify potent opportunities for intervention. One such framework that has been utilized by countless public and research entities across the country is the Sequential Intercept Model (SIM). The SIM was developed over several years in the early 2000s by Mark Munetz, MD, and Patricia A. Griffin, PhD, along with Henry J. Steadman, PhD, of Policy Research Associates, Inc. The SIM was developed as a conceptual model to inform community-­based responses to the involvement of people with mental and substance use disorders in the criminal justice system [48].

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The sequential intercept model is a systems-level framework for criminal justice, mental health, and addictions stakeholders to divert adults with serious mental illness from the criminal justice system to community mental health and addictions services. This framework identifies points where individuals with serious mental illness move through the criminal justice system, each of which offer diversion opportunities. These intercept points include crisis services and law enforcement (intercept 1), detainment and initial hearing (intercept 2), jail and court-based programs (intercept 3), reentry (intercept 4), and community supervision and support (intercept 5). The goal is that people with mental illness will be intercepted at the earliest point in the criminal justice system and diverted to needed community-­ based services. An accessible, effective, and comprehensive mental health system is identified as the “ultimate intercept” that strives for the auspicious goal of preventing individuals with mental illness and substance use disorders from entering the justice system. Practitioners caring for individuals with criminal justice involvement should have a basic understanding of this framework to aid them in identifying potential opportunities for intervention and treatment that reduce the risk of further criminal justice entanglement.

Conclusion Most recommendations for improving correctional care highlight increasing access to and quality of community mental health care [10]. Proposals must acknowledge the need for adequate resources and funding—a lack of which disproportionally affects populations that are justice-involved, of lower socioeconomic status, or otherwise non-majority and disenfranchised. Continuity or reinstatement of Medicaid benefits is critical. Probation and parole officers can also provide linkage to care or specialized supervision services [49]. Unfortunately, clinician stigma against working with criminal justice-involved patients exists, while other professionals are under-informed about this population’s unique needs. Medical students, residents, and psychiatrists would benefit from education about bias and racism, underserved populations, and the unique experiences, needs, and opportunities of working with patients with past or present justice involvement. Psychiatrists who are more comfortable with these concepts can educate others. They must also advocate for improving mental health policies and systems, funding these domains, public health approaches, and the rights of disadvantaged populations.

References 1. Bowring v. Cox, 320 F. Supp. 688 (W.D. Va. 1970). 2. Bowring v. Cox, 320 F. Supp. 687 (W.D. Va. 1970). 3. Bowring v. Godwin, 551 F.2d 44 (4th Cir. 1977). 4. 42 U.S.C. § 1983.

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5. Estelle v. Gamble, 429 U.S. 97. 1976. 6. U.S. Const. amend. XIII. 7. Semenza D, Novisky M. Mental health and services in prisons and jails. Prisons and community corrections. Routledge; 2020. p. 189–202. 8. Foulks EF. Commentary: racial bias in diagnosis and medication of mentally ill minorities in prisons and communities. J Am Acad Psychiatry Law Online. 2004;32(1):34–5. 9. Abramsky S, Fellner J. Ill-equipped: US prisons and offenders with mental illness. New York: Human Rights Watch; 2003. 10. Mongelli F, Georgakopoulos P, Pato MT.  Challenges and opportunities to meet the mental health needs of underserved and disenfranchised populations in the United States. Focus. 2020;18(1):16–24. 11. Garcia M, Haskins P. Identifying needs related to managing seriously mentally ill individuals in corrections. Correct Today. 2020:23. 12. Dempsey C, Quanbeck C, Bush C, Kruger K.  Decriminalizing mental illness: specialized policing responses. CNS Spectr. 2020;25(2):181–95. 13. Joy M. Collaborative reduction of criminal justice involvement for persons with mental illness. In: Sowers WE, McQuistion HL, Ranz JM, Feldman JM, Runnels PS, editors. Textbook of community psychiatry: American Association for Community Psychiatry. Springer Nature; 2022. 14. Johnson L, Gutridge K, Parkes J, Roy A, Plugge E. Scoping review of mental health in prisons through the COVID-19 pandemic. BMJ Open. 2021;11(5):e046547. 15. Bailey ZD, Krieger N, Agénor M, Graves J, Linos N, Bassett MT. Structural racism and health inequities in the USA: evidence and interventions. Lancet. 2017;389(10077):1453–63. 16. Livingston JD. Contact between police and people with mental disorders: a review of rates. Psychiatr Serv. 2016;67(8):850–7. 17. McLeod MN, Heller D, Manze MG, Echeverria SE. Police interactions and the mental health of black Americans: a systematic review. J Racial Ethn Health Disparities. 2020;7:10–27. 18. Thompson M, Kahn KB. Mental health, race, and police contact: intersections of risk and trust in the police. Policing. 2016;39(4):807–19. 19. Rogers MS, McNiel DE, Binder RL. Effectiveness of police crisis intervention training programs. J Am Acad Psychiatry Law. 2019;47(4):414–21. 20. Watson AC, Compton MT, Draine JN. The crisis intervention team (CIT) model: an evidence-­ based policing practice? Behav Sci Law. 2017;35(5–6):431–41. 21. Joy M. Incarceration reform. In: Sowers WE, Ranz JM, editors. Seeking value: balancing cost and quality in psychiatric care. American Psychiatric Pub; 2020. 22. Zgoba KM, Reeves R, Tamburello A, Debilio L. Criminal recidivism in inmates with mental illness and substance use disorders. J Am Acad Psychiatry Law. 2020;48(2):209–15. 23. Ruiz v. Estelle, 503 F. Supp. 1265 (S.D. Tex. 1980). 24. Penn JV. Standards and accreditation for jails, prisons, and juvenile facilities. Oxford textbook of correctional psychiatry. 2015. pp. 359–64. 25. The Council of State Governments. Report of the re-entry policy council: charting the safe and successful return of prisoners to the community. 2005. 26. American Psychiatric Association. Position Statement on Psychiatric Services in Adult Correctional Facilities. APA Official Actions; 2018. 27. Kendig NE, Butkus R, Mathew S, Hilden D. Health care during incarceration: a policy position paper from the American College of Physicians. Ann Intern Med. 2022;175(12):1742–5. 28. National Commission on Correctional Health Care: Standards. https://www.ncchc.org/standards/. Accessed 17 Sept 2023. 29. National Commission on Correctional Health Care. CorrectCare. 2002;16(4). 30. National Commission on Correctional Health Care. Standards for Health Services in Prisons. 2018. 31. National Commission on Correctional Health Care. Standards for Health Services in Jails. National Commission on Correctional Health Care; 2018. 32. Tamburello A, Kaldany H, Dickert J. Correctional mental health administration, vol. 29. Taylor & Francis; 2017. p. 3–10.

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33. Hoge SK, Greifinger RB, Lundquist T, Mellow J. Mental health performance measurement in corrections. Int J Offender Ther Comp Criminol. 2009;53(6):634–47. 34. Tamburello A, Metzner J, Fergusen E, Champion M, Ford E, Glancy G, et al. The American Academy of Psychiatry and the Law practice resource for prescribing in corrections. J Am Acad Psychiatry Law. 2018;46(2):242–3. 35. U.S. Department of Justice Federal Bureau of Prisons. Program Statement 5310.16: treatment and care of inmates with mental illness. 2014. 36. National Standards for Jail Suicide Prevention. Jail Suicide/Mental. Health Updat. 1995;6(4):1–5. 37. Work Group to Revise the APA guidelines on psychiatric Services in Correctional Facilities. Psychiatric Services in Correctional Facilities. American Psychiatric Association; 2015. 38. Hills H, Sigfried C, Ickowitz A. Effective prison mental health services: guidelines to expand and improve treatment. 2004. 39. Asse D, Wurzburg S. Improving responses to people who have co-occurring mental illnesses and substance use disorders in jails. The Council of State Governments; 2020. 40. Blandford AM, Osher F. Transition of people with behavioral health disorders from jail and prison. In: Council of State Governments Justice Center, editor. SAMHSA’s GAINS Center for Behavioral Health and Justice Transformation; 2013. 41. American Correctional Association. 2016 Standards Supplement. In: Commission on Accreditation for Corrections, editor. 2016. 42. Substance Abuse and Mental Health Services Administration. Use of medication-assisted treatment for opioid use disorder in criminal justice settings. Evidence-based Resource Guide Series. 2019. 43. Aufderheide D. Mental illness in America’s prisons: an inconvenient truth …the need for a public safety/public health model. Adv Correct. 2021(12). 44. Federal Bureau of Prisons. Medical Management of Transgender Inmates. Clinical Guidance; 2016. 45. Weinstein HC, Burns KA, Newkirk CF, Zil JS, Dvoskin JA, Steadman HJ.  Psychiatric services in jails and prisons: a task force report of the American Psychiatric Association. 2nd ed. Washington, DC: American Psychiatric Association; 2000. 46. National Commission on Correctional Health Care. Standards for Mental Health Services in Correctional Facilities. National Commission on correctional Health Care; 2015. 47. National Commission on Correctional Health Care. Sharing of Patient Health Records Upon Release From Incarceration. 2021. 48. Munetz MR, Griffin PA. Use of the sequential intercept model as an approach to decriminalization of people with serious mental illness. Psychiatr Serv. 2006;57(4):544–9. 49. O’Connell DJ, Visher CA, Becker P. Linking individuals on probation to health care: a pilot randomized trial. Health Justice. 2020;8(1):1–7.

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The authors hope that this text has been a helpful introduction to the intersection of psychiatry and the law across a number of domains and subspecialty areas. Chapter authors have highlighted important core concepts related to the particular focus of their chapter to acquaint readers with these topics. It would be unrealistic, however, to expect readers to feel completely comfortable with all of these areas simply as a result of reading this text. Thus, knowing how and when to refer to a colleague with greater expertise and how to explore additional educational opportunities in forensic psychiatry may be of interest. After reading this text, readers’ increased understanding will improve their capacity to discern which forensic issues are within the scope of their general psychiatry practice and which are beyond it. For those issues that are beyond the reader’s level of comfort or knowledge, it may be beneficial to consult with or refer to a forensic psychiatrist with more specialized expertise and training in these areas. Subspecialty consultation can help clinicians understand and apply the law as it applies to their clinical work. Forensic psychiatrists also work with legislators and policy makers to help inform policies and statutes for legally regulated aspects of psychiatric practice (e.g., civil commitment and involuntary medication). Examples of areas that might benefit from referral to a forensic psychiatrist include requests from attorneys or clinical teams for complex violence or suicide risk assessments or specific types of forensic evaluations (e.g., to answer questions regarding competence to stand trial or criminal responsibility). For those readers who have an interest in gaining a greater level of expertise in forensic psychiatry, it may be worthwhile to pursue additional training through a forensic psychiatry fellowship. As of 2023, there are 48 US forensic psychiatry

T. Wasser (*) Frank H. Netter MD School of Medicine, Quinnipiac University, North Haven, CT, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 T. Wasser, R. Zhong (eds.), Psychiatry and the Law, https://doi.org/10.1007/978-3-031-52589-6_20

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fellowships accredited by the Accreditation Council for Graduate Medical Education (ACGME) and eight programs in Canada accredited by the Royal College of Physicians and Surgeons of Canada (see Table 20.1) [1]. Given the large number of fellowship programs, with significant variability in the didactic curricula and hands­on experiences of each program, it is not possible to provide a comprehensive overview of the specific learning opportunities that fellows are exposed to at all programs. However, the ACGME has developed forensic psychiatry milestones to provide forensic fellowship programs a framework for the assessment of the forensic psychiatry fellow’s development. These milestones were first developed in 2015 and updated in 2022 (see Table 20.2 for a summary of these milestones) [2]. For those readers considering forensic fellowship, these milestones also serve as a broad overview of the key elements taught in most forensic fellowships to develop competency in the subspecialty field of forensic psychiatry. In an effort to assist applicants to forensic psychiatry fellowships, the Association of Directors of Forensic Psychiatry Fellowships, a council of the American Academy of Psychiatry and the Law (AAPL), has developed a set of guidelines regarding application, interview, and acceptance procedures for fellowship positions [1]. These guidelines set common standards for forensic psychiatry fellowship programs in striving for as fair a process as possible for both applicants and fellowship programs. For the 2023–2024 fellowship year, programs began accepting applications on May 1, 2022 and conducted interviews between August 1, 2022, and October 3, 2022. These guidelines are updated regularly based upon a review of prior years’ data and agreement between fellowship directors, so potential applicants are advised to check the AAPL website for the latest guidance. As of 2023, forensic psychiatry fellowships do not use a match process. Programs that still have openings after the formal interview term will consider later applications. Additional opportunities to learn about forensic psychiatry are available via engagement with professional organizations and scholarly journals. AAPL, the largest American professional organization for forensic psychiatry, hosts a 4-day annual meeting at various sites throughout the country every October [1]. The annual meeting consists of dozens of presentations by the nation’s leading experts in the field and provides opportunities for those interested in forensic psychiatry to learn about current major issues, update their existing knowledge base, and engage in discussion with peers on the standards governing the profession. Each year, prior to the start of the annual meeting, there is also an intensive 3-day forensic psychiatry review course, which provides an in-depth review of selected topics in forensic psychiatry and relevant landmark cases covering basic concepts as well as recent updates in case law [1]. AAPL also has its own professional journal, entitled the Journal of the American Academy of Psychiatry and the Law, which is published quarterly [3]. The International Academy of Law and Mental Health (IALMH) is an international professional society focusing on the interaction of law and mental health through multidisciplinary and cross-national approaches. It draws on law, the health professions, the social sciences, and the humanities [4]. Every 2  years IALMH holds an International Congress on Law and Mental Health, bringing together the

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20  Conclusion: How to Learn More About Forensic Psychiatry Table 20.1  List of forensic psychiatry fellowships in the USA and Canada USA Albert Einstein College of Medicine, New York Brown University, Rhode Island Case Western Reserve University, Ohio Columbia/Cornell, New York

Emory University, Georgia Harvard Medical School, Massachusetts Hackensack Meridian Hospital Jersey Shore University Medical Center/Ocean UnviersityUniversity Medical Center, New Jersey Louisiana State University, New Orleans, Louisiana

Canada McMaster University, Ontario Queen’s University, Ontario University of Alberta, Alberta University of British Columbia, British Columbia University of Montreal, Quebec University of Ottawa, Ontario University of Toronto, Ontario Western University, Ontario

Louisiana State University, Shreveport, Louisiana Medical College of Georgia, Georgia Medical College of Wisconsin, Wisconsin Medical University of South Carolina, South Carolina New York University Medical Center, New York Northwestern University, Illinois Ohio State University, Ohio Oregon Health and Science University, Oregon Pine Rest Christian Mental Health Services, Michigan State University, Michigan Rutgers University—Robert Wood Johnson Medical School, New Jersey Saint Elizabeth’s Hospital/Department of Behavioral Health, Washington, DC Stanford University School of Medicine, California State University of New York (SUNY) at Buffalo, New York State University of New York (SUNY) Upstate Medical University, New York The National Capital Consortium Military Forensic Psychiatry Program, Washington, DC Tulane University School of Medicine, Louisiana University of Arkansas for Medical Sciences, Arkansas University of California, Davis, California University of California, Los Angeles (UCLA), California University of California, San Francisco, California University of Cincinnati, Ohio University of Colorado, Colorado University of Florida, Florida (continued)

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Table 20.1 (continued) USA University of Maryland School of Medicine, Maryland University of Massachusetts, Massachusetts University of Miami, Florida University of Michigan, Center for Forensic Psychiatry, Michigan University of Minnesota, Minnesota University of Missouri, Columbia, Missouri University of Nevada, Las Vegas, Nevada University of North Carolina, North Carolina University of Pennsylvania, Pennsylvania University of Rochester, New York University of South Carolina, South Carolina University of South Florida, Tampa, Floria University of Virginia, Virginia University Texas Southwestern Medical School, Texas University of Southern California (USC) Institute of Psychiatry, Law & Behavioral Medicine, Los Angeles, California West Virginia University, West Virginia Yale University, Connecticut

Canada

Table 20.2  ACGME forensic psychiatry milestones Sub-competency Patient Care 1

Patient Care 2

Patient Care 3

Medical Knowledge 1

Summary of corresponding ACGME forensic psychiatry milestone(s) Patient Care in Forensic Settings  –  Provides psychiatric care that manages security concerns, dual agency, the potential for conflicts with therapeutic efforts, and other treatment issues unique to a forensic setting Procedural Skills in Criminal Forensic Psychiatry  –  Performs common criminal forensic evaluations, such as to determine competency to stand trial, criminal responsibility, diversion, and risk assessment  –  Prepares an appropriate criminal forensic report and provides testimony in a clear and professional manner Procedural Skills in Civil Forensic Psychiatry  –  Performs common civil forensic evaluations  –  Prepares an appropriate civil forensic report and provides testimony in a clear and professional manner Knowledge of Legal Principles Related to the Practice of Forensic Psychiatry  –  Knowledge of legal principles and state and federal laws relevant to their forensic practice  –  Knowledge of civil law relevant to forensic psychiatry practice  –  Knowledge of criminal law relevant to forensic psychiatry practice

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Table 20.2 (continued) Sub-competency Medical Knowledge 2

Systems-Based Practice 1

Systems-Based Practice 2 Systems-Based Practice 3

Systems-Based Practice 4

Practice-Based Learning and Improvement 1 Practice-Based Learning and Improvement 2

Professionalism 1

Professionalism 2

Professionalism 3

Summary of corresponding ACGME forensic psychiatry milestone(s) Knowledge of Clinical Psychiatry Especially Relevant to Forensic Psychiatry  –  Applies knowledge of Diagnostic and Statistical Manual (DSM) criteria to psychiatric presentations specific to forensic psychiatric practice  –  Knowledge of the types of standardized assessment tools used in forensic psychiatry Patient/Evaluee Safety and the Healthcare Team  –  Medical errors and improvement activities  –  Regulatory and educational activities related to patient/ evaluee safety/risk Quality Improvement  –  Participates in quality improvement System Navigation  –  Safe and effective transitions of care/hand-offs in complex situations  –  Awareness of healthcare funding and regulations related to community resources in forensic psychiatry  –  Uses local resources effectively to meet the needs of a population and community Physician Role in Health Care Systems  –  Understanding and working within systems  –  Describes core administrative knowledge needed to transition to practice Evidence-Based and Informed Practice  –  Locates, applies and appraises the best available evidence relevant to clinical and/or forensic practice problems Reflective Practice and Commitment to Personal Growth  –  Seeks performance data with openness and humility  –  AnalyzesAnalyses, reflects on, and institutes behavioral changes to narrow the gaps between one’s expected and actual performance  –  Creates and implements an individual learning plan Professional Behavior  –  Responds appropriately to professionalism lapses of colleagues and other forensic evaluators Compassion, Integrity, Respect for Others, Sensitivity to Diverse Patient Populations, Adherence to Ethical Principles  –  Develops an appropriate care plan or forensic recommendation in the context of potential biases  –  Identifies evolving ethical issues within forensic psychiatry practice and can discuss opposing viewpoints Accountability to Self, Patients, Colleagues, Legal Systems, Professionals, and the Profession  –  Displays increasing autonomy and leadership in taking responsibility for ensuring that patients receive the best possible care  –  Taking responsibility for the provision of forensic consultation and in ensuring that the special conditions of forensic psychiatric evaluations are implemented (continued)

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Table 20.2 (continued) Sub-competency Professionalism 4

Interpersonal and Communication Skills 1

Interpersonal and Communication Skills 2

Summary of corresponding ACGME forensic psychiatry milestone(s) Well-Being  –  Prioritizes and balances conflicting interests of oneself, family, and others to optimize medical care and practice of the profession Relationship Development and Conflict Management with Patients, Evaluees, Colleagues, Members of the Health Care or Forensic Team, Attorneys, and Members of the Legal System  –  Develops working relationships with patients/evaluees in complicated situations Consultation to Medical Providers and Non-Medical Systems  –  Provides recommendations as a consultant and collaborator to medical providers and non-medical systems (e.g., military, schools, businesses, forensic)  –  Team-based communications and conflict resolution

international community of researchers, academics, practitioners, and professionals in the field. IALMH also has its own official publication, the International Journal of Law and Psychiatry, which is intended to provide a multidisciplinary forum for the exchange of ideas and information among professionals concerned with the interface of law and psychiatry [5]. There are also a number of other scholarly journals related to forensic psychiatry published by other organizations, including the Journal of Forensic Psychiatry & Psychology [6], Law and Human Behavior [7], and Behavioral Sciences & the Law [8], among others. The authors hope that this text has contributed to readers’ interest in the field of forensic psychiatry and will stimulate their enthusiasm for acquiring further knowledge and expertise in this rewarding and exciting field.

References 1. American Academy of Psychiatry and the Law. 2023. http://aapl.org/org.htm. Accessed 3 Jan 2023. 2. Edgar L, Noffsinger S, Orlovski D, Sampson T, Scott C, Stevenson KA, Stolar A, Wagoner R. Forensic psychiatry milestones. The Accreditation Council for Graduate Medical Education. 2022. https://www.acgme.org/globalassets/pdfs/milestones/forensicpsychiatrymilestones.pdf. 3. Journal of the American Academy of Psychiatry and the Law. 2023. http://jaapl.org/. Accessed 3 Jan 2022. 4. International Academy of Law and Mental Health. 2017. http://ialmh.org/. Accessed 3 Jan 2023. 5. International Journal of Law and Psychiatry. 2023. https://www.sciencedirect.com/journal/ international-­journal-­of-­law-­and-­psychiatry. Accessed 3 Jan 2023. 6. Journal of Forensic Psychiatry & Psychology. 2023. https://www.tandfonline.com/toc/rjfp20/ current. Accessed 3 Apr 2023. 7. Law and Human Behavior. 2023. https://www.apa.org/pubs/journals/lhb/. Accessed 3 Jan 2023. 8. Behavioral Sciences & the Law. 2023. https://onlinelibrary.wiley.com/journal/10990798. Accessed 3 Jan 2023.

Index

A Academic suspension, 97 Accreditation Council for Graduate Medical Education (ACGME), 3, 254 ACGME forensic psychiatry milestones, 256–258 Adams, John, 10 Addiction, 190, 191 Addington v. Texas Court of Civil Appeals, 62 involuntary commitment, 68 preponderance of the evidence, 62 psychiatric diagnoses, 62 schizophrenia, 62 standard of proof, 62 Adult learning theory, 7 Advance directives, 56, 57, 92 Adverse Childhood Experiences (ACE) score, 247 Aid to Capacity Evaluation (ACE), 91 Air Carrier Access Act (ACAA), 111 Alsabti v. Board, the Supreme Judicial Court of Massachusetts, 114, 115 American Academy of Psychiatry and the Law (AAPL), 2, 115, 122, 131, 245, 254 American Bar Association (ABA), 222 American Board of Psychiatry and Neurology (ABPN), 115 American College of Physicians (ACP), 245, 246 American Correctional Association (ACA), 246 American healthcare system, 130 American judicial system, 129

American Medical Association (AMA) Code of Medical Ethics, 58, 102, 106 American Medical Association’s (AMA) Guides to the Evaluation of Permanent Impairment, 108 American Psychiatric Association (APA), 54, 64, 115, 120, 131, 144, 245, 246 Americans with Disabilities Act (ADA), 109 Antipsychotic medications, 81 Antisocial personality disorder, 183 Article X of the Constitution, 12 Artificial nutrition and hydration (ANH), 51–54, 57, 58 Association of Directors of Forensic Psychiatry Fellowships, 254 Attention-deficit/hyperactivity disorder (ADHD), 149 Attitudes, 190 Attorney-client privilege, 124 “Autonomy” or “Rights-Driven” model of care, 78, 82 Aversive racism, 130–132, 134 B Banks v. Goodfellow, 217, 218 Behavioral Sciences & the Law, 258 “Beneficence” or “Treatment-Driven” model of care, 77 Bipolar disorder, 75 psychotic features, 75 treatment, 76 “Blue Book”, 107 Bowring Court, 242 Bragg v. Valdez case, 37

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2024 T. Wasser, R. Zhong (eds.), Psychiatry and the Law, https://doi.org/10.1007/978-3-031-52589-6

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260 C California Psychological Inventory (CPI), 98 Capacity assessment, 89, 90 Capacity for criminal proceedings, 231, 232 Causation, 146 Centers for Medicare and Medicaid Services, 9 Child abuse child and adolescent judicial system, 207, 208 juvenile culpability, 208–210 Landeros v. Flood, 204, 205 mandatory reporting laws, 206 patient history, 203, 204 Supreme Court and juvenile sentencing, 210–212 Child Abuse and Prevention Act of 1974 (CAPTA), 206 Child Protective Services (CPS), 25, 204 Chlorpromazine, 67 Civil capacity, 88 Civil commitment, 62, 63, 65, 67–70 “Civil competence”, 88 Civil legal liability, 39 Clinical Antipsychotic Trials of Intervention Effectiveness study, 40 Clinical interventions, 40 Cognitive behavior therapy for recovery (CBT-R), 248 Colorblind racism, 128, 130–132, 135, 136 Community mental health center, 241, 244 Competence to stand trial competency evaluation, 232, 233 overview, 229, 230 principles, 230–232 Competency restoration, 230, 233 Comprehensive Drug Abuse Prevention and Control Act, 190 Confidentiality, 36, 124 common exceptions, 22–24 definition, 21 HIPAA (see Health Insurance Portability and Accountability Act) privacy, 22 vs. privilege, 22 recommended practices, 28 utilitarianism, 22 Conservatorship, 222 Consolidated Appropriations Act of 2023, 197 Constitutional Amendments, 11, 78 Constitutional principles, 10 Constitutional rights, 64, 80 Contagious diseases, 35 Correctional mental health services, 245

Index Correctional system, 243 Council on State Governments (CSG), 245, 246 COVID-19 pandemic, 197, 244 “Crack epidemic”, 132 Criminal justice involvement Bowring v. Godwin 551 F.2d 44 (4th Cir. 1977), 242 L.B.’s parole officer, 247 legal principle, 243 process and outcome, 242, 243 Ruiz v. Estelle, 245 SIM, 248, 249 vignette review, 243, 244 Criminal justice system, 39 Crisis Intervention Training (CIT), 244 Critically engaged approach, 129 Cruzan v. Director advance directives, 57 ANH, 53, 54, 57, 58 anoxic brain injury, 52 clear and convincing evidence, 53 competent decision-making, 55 decisional capacity, 56 defensive medicine, 58, 59 life-sustaining treatments, 56 paternalistic decision-making, 56 probable cerebral contusions, 52 proxies and written documents, 56 PVS, 52 quality-of-care policies, 56 quality-of-life assessment, 56 US Supreme Court decision, 53 Culpability, 208–210 D Decisional capacity, 56, 58, 59 Decisional impairment, 89 Decision-making capacity, 63, 85–94 Defensive medicine, 58, 59 Degree of liability, 107 Dementia, 220 Department of Corrections (DOC), 76 Dereliction of duty, 144, 145 Dilation and curettage (D&C), 86 Disability Evaluation Under Social Security, 107 Disability insurance, 102, 103, 107, 108 Dix, Dorothea, 66 Documentation, 47 Dominative racism, 130 Donaldson, Kenneth, 68 Drug Enforcement Administration (DEA), 197

Index Dual agency, 123 Dual witness, 105 Due process, 16, 62, 64, 68, 70, 71, 80 procedural due process, 64, 65 substantive due process, 65 Due Process Clause, 57 Dusky v. United States, 231 Duties to third parties assessing threats, 39, 40 driving cases, 36 patient violence, 36 regulation of, 43 responding to threats, 40, 41 state variations, legal regulation, 41–43 trends in, 36–38 warnings, 41 Duty to protect, 35, 38 Duty to warn, 35, 36, 41, 42, 46, 48 E Education and professional development, 3 Elder abuse, 225 Emergency commitment laws, 69, 70 Emotional support animal (ESA), 100, 109–111 Equitable knowledge, 129 Estelle v. Gamble, 243 Ethics AAPL guidelines, 122 application and boundaries of rule, 122 challenges, 120, 121 delineation of, 115 nature of psychiatric practice, 120 treatment restrictions/triage protocols, 121 F Fair Housing Act, 109 Federal and state laws, 64 Federal Bureau of Prisons (BOP), 246 Federal court system, 11 Fee splitting, 120 Food and Drug Act of 1906, 190 Forensic expert witness, 151 Forensic fellowship programs, 254 Forensic psychiatry, 2, 3, 17, 124, 130, 131 AAPL ethical guidelines, 122 dual agency, 123 elder abuse and mistreatment, 225 ethical issues pertinent to, 125 fellowships, 255–256 guardianship

261 assessment, 224, 225 hoarding disorder, 221, 222 legal process, 222, 223 minor neurocognitive disorder, 221, 222 informed consent and confidentiality, 124 paramount issues, 122 review course, 254 testamentary capacity Banks v. Goodfellow, 217, 218 forensic assessment, 219, 220 principles, 219 schizophrenia, 216, 217 undue influence, 220, 221 traditional physician-patient relationship, 122 Fundamentally flawed system, 134, 135 G Goldwater Rule, 122 Graham v. Florida, 211 Grave disability, 81 Guardian ad litem (GAL), 222 Guardianship assessment, 224, 225 hoarding disorder, 221, 222 legal process, 222, 223 minor neurocognitive disorder, 221, 222 Guilty but Mentally Ill (GBMI), 237 H Hagaseth v. Superior (2007), 197 Hallucination, 182 Harrison Anti-Narcotic Tax Act of 1914, 190 Healthcare providers, 129 Healthcare proxy, 92 Health equity, 127–137 Health information privacy, 22 Health Insurance Portability and Accountability Act (HIPAA), 38, 118 legislation, 26, 27 national privacy standards, 27 PHI, 26 Privacy Rule, 27 Hippocratic duty, 52 Historical Clinical Risk Management-20 (HCR-20), 184, 185 Hopkins Competency Assessment Test (HCAT), 91 Hospitalization, 46

Index

262 I Independent medical examination (IME), 101–104, 109 Indiana v. Edwards, 231 Informed consent, 21, 28, 89, 124, 149 advance directives, 56, 57 ANH termination, 52–54 basics, 54, 55 defensive medicine, 58, 59 gastrostomy tube placement, 51 hydration tube placement, 52 life-prolonging treatment withdrawal, 52 life-sustaining treatments, 53, 58 living will statute, 53 paternalistic decision-making, 56 proxies and written documents, 56 PVS, 52 surrogate decision-maker, 58 trial court decision, 53 Insanity defense, see Not Guilty by Reason of Insanity (NGRI) Intelligence agencies, 122 International Congress on Law and Mental Health, 254 International Corrections and Prisons Association (ICPA), 246 International Journal of Law and Psychiatry, 258 Intimate partner violence (IPV), 25 Involuntary commitment, 81, 144 chronically symptomatic patients, 67 due process, 64–66 federal and state laws, 64 history of, 66–68 minors of, 71 outpatient, 70 practical aspects, 69–71 psychiatric disabilities, 65 psychiatric interventions, 64 US legal system, 65 Involuntary medication, 119, 144 beneficence model to autonomy model of care, 77 civilly committed patients, 78, 79 classes and formulations, 81 criminal proceedings in, 80 emergency vs. non-emergency situations, 81 inappropriately administered treatment, 83 civil rights violations, 83 criminal charges, 83 malpractice lawsuit, 83

professional ethics complaints, 83 treatment-driven vs. rights-driven, 82 Iterative Classification Tree (ICT), 185 J Jaffee v. Redmond, US Supreme Court, 1996, 20–21 Jehovah’s Witness (JW), 85, 87–89, 93, 94 Journal of Forensic Psychiatry & Psychology, 258 Journal of the American Academy of Psychiatry and the Law, 254 Judicial process, 82 Judicial Review, 10, 11, 17, 78 Jurisdiction, 15 K Kahler v. Kansas, 237 L Lake v. Cameron, 68 Landeros v. Flood, 204, 205 Law and legal system, 17 due process, 16 judge/jury, 13 levels of review, 11, 12 scope and effect of, 11 standards of proof, 14, 15 Law enforcement, 122 Lay witness, 103 Legal guidance, 41, 42 Legal regulation, 2 Lessard v. Schmidt, 1971, 68 Level of Service Inventory-Revised (LSI-R), 185 Liability, 36, 37, 42, 48 Life-prolonging treatment, 52 Lithium carbonate, 67 “Living wills”, 53, 92 M MacArthur Competence Assessment Tools for Treatment, 91 MacArthur Violence Risk Assessment Study, 182 Machine learning, 180, 181 Malpractice claims of, 145 compensatory damages, 146

Index decision-making, 141 defense, 150 dereliction of duty, 144, 145 direct causation, 146, 147 duty to patient, 142, 143 financial damages, 146 forensic expert witness, considerations for, 151 insurance, 83 interpersonal communication, 142 patient history, 139, 140 physician-patient rapport, 142 plaintiff, 142 in psychiatry claims of, 149 defense, 147, 150 discipline action, 147 forensic expert witness, 151 male-gendered psychiatrists, 147 medication, 148, 149 sexual misconduct, 149 single allegation, 147 suicide, 148 punitive damages, 146 requirements for, 146 sexual misconduct, 149 suicide, 148 Thompson v. Patton, 140, 141 torts, 142 Mandatory reporting duties child abuse and neglect, 25 disabled persons abuse, 25, 26 elder abuse and neglect, 25 Marbury v. Madison, 5 US 137 (1803), 10, 11 Massachusetts law, 114, 115 Medical capacity, 89 Medical ethics AMA, code of, 116 physician-patient relationship, 117–120 principles of, 116, 117 Medicalized racism, 128 Medical malpractice lawsuit, 98 Medical testimony, 106 Medication Access and Training Expansion (MATE) Act, 197 Medication malpractice, 148, 149 Medications over objection, 77, 79, 82 Mens rea, 235 Mental health treatment, 243 Mental illness, 182, 183 Mental-mental claims, 108 Mental-physical claim, 108 Microchips implantation, 4

263 Mini-Mental Status Exam (MMSE), 91 Minnesota Multiphasic Personality Inventory (MMPI), 98 M’Naghten Rule, 236, 237 Montreal Cognitive Assessment (MoCA), 91, 247 Morality, 115 N National Commission on Correctional Health Care (NCCHC), 245 National Institute of Corrections (NIC), 246 National Mental Health Act, 67 Neuropsychiatric disorders, 66 Neutrality, 129, 130 Normative knowledge, 129 Not Guilty by Reason of Insanity (NGRI) insanity evaluation, 238, 239 overview, 234, 235 principles, 235–238 O Oakes, Josiah, 67 Officer James case history, 19, 20 Officer Redmond case history, 20, 21 P Packard, Elizabeth, 67 Passive-aggressive personality disorder, 98 Patient autonomy, 1 Patient rights, 78, 82 Persistent vegetative state (PVS), 52 Personality disorder, 97 Physical-mental claim, 108 Physician-patient relationship, 99–101, 103, 111, 117–120 Police power, 66, 77 Post-traumatic stress disorder (PTSD), 20, 127 Powell v. Texas (1968), 192, 193 Power of attorney (POA), 223 Privilege, 22 Procedural due process rights, 62, 65 Process and outcome, 242, 243 Protected health information (PHI), 26 Proxy, 92, 93 Psychiatric commitment, 77 Psychiatric disorders, 67 Psychiatric subspecialties, 2 Psychiatry and law, 135–137 Psychometric tests, 97

264 Psychopathy, 182, 183 Psychopathy Checklist-Revised (PCL-R), 183, 185 Psychotropic medications, 79 Q “‘Qualified’ mental illness”, 242 Quinlan case, 53 R Res Ipsa Loquitur, 145 Right to refuse treatment, 77–79, 88 Risk assessment, 39, 40, 44–46 Risk management, 46, 47 Risk of death, 81 Robinson v. California (1962), 192 Rocky Mountain Mental Illness Research Education and Clinical Center’s (MIRECC) risk stratification tool, 167, 169 Roper v. Simmons, 209 S Schizophrenia, 62, 247 discharge preparation, 5–6 hospital course, 5 hospitalization stages, 6 microchips implantation, 4 “Second generation” antipsychotics, 81 Sequential Intercept Model (SIM), 248, 249 Serious mental illness (SMI), 243 Service animals, 109, 111 Sexual misconduct malpractice, 149 Sexual Offender Risk Appraisal Guide (SORAG), 184 Sliding scale, 90 Social justice, 127–137 Social Security Administration (SSA) administers, 106 Social Security Disability Insurance (SSDI) Program, 106 Societal interest, 88 Sociopathy, 183 Special Offender Center (SOC), 76, 77 Stamford Hospital vs. Nelly E. Vega, 88–90, 93, 94 Standard of care, 83, 144, 245 Standard of proof, 14, 15, 62, 65 Stanford v. Kentucky, 211

Index State and federal laws, 1 Statute-court interaction, 38 Structured Professional Judgment (SPJ) approaches, 181 Substance Abuse and Mental Health Services Administration (SAMHSA), 246 Substance use disorders (SUDs), 245 addiction, 190, 191 cannabis legalization, 198 Capacity, 198 civil commitment and involuntary treatment, 193, 194 Compensation, 198 Competency, 198 Consistency, 198 correctional settings, 195, 196 criminal responsibility, 194, 195 diagnostic terminology, 191 drug courts and diversion, 195 legal precedents, 192, 193 patient history, 189, 190 practitioner laws and regulations, 197, 198 psychedelic drugs, 198 violence and crime, 196, 197 Substantial probability, 146 Substantive due process rights, 65, 66 Substituted judgment, 82, 92, 93 Suicide malpractice, 148 Suicide risk assessment, 7 clinical evaluation diagnostic formulation, 158 ideation, intent, plan and access to means, 160–162 past suicidal behavior, 159 protective factors, 164, 165 risk factors, 163, 164 treatment plan, 158 warning signs, 162, 163 environment safety and access to lethal means, 172, 173 pharmacological strategies, 173, 174 risk stratification acute risk, 167, 168 chronic risk, 168–170 overview, 166, 167 safety planning, 170–172 structured instruments, 165, 166 therapeutic risk assessment, 157, 158 Supplemental Security Income (SSI), 107 Supreme Judicial Court of Massachusetts, 116 “Supreme law of the land”, 11

Index T Tarasoff duties, 35, 36, 38 discharging, summary, 44 documentation, 47 liability, 48 regulation of, 43 risk assessment, 44–46 risk management, 46, 47 state variations, legal regulation, 42 warning, 47 “Tarasoff-limiting statutes”, 37 Tarasoff v. The Regents of the University of California, Supreme Court of California 1974, 34–35 Tarasoff v. The Regents of the University of California, Supreme Court of California 1976, 35 Task force, 64 Telepsychiatry, 120 Testamentary capacity Banks v. Goodfellow, 217, 218 forensic assessment, 219, 220 principles, 219 schizophrenia, 216, 217 undue influence, 220, 221 Third-party evaluation general principles, 99 Lambley v. Kameny, 98 physicians’ liability for adverse outcomes, 99 roles and responsibilities ESA/service animal, 109 IME, 101–103 private disability insurance, 108 social security disability programs, 106, 107 treating psychiatrist, 100, 101 witness, 103–106 workers’ compensation, 107, 108 Thompson v. Patton, 140, 141, 145, 146 Thomson v. Oklahoma, 208, 210 Transfusions, 86–88, 93, 94 U “Ultimate intercept”, 249 Understanding Treatment Disclosure (UTD) test, 91 U.S. Circuit Court of Appeals, 242

265 U.S. Department of Justice (DOJ), 246 U.S. judicial system, 132 US legal system, 124 Utilitarianism, 22 V Violence, 40 case history, 178, 179 extensive violence, 177 mental status examination, 178 risk assessment, 185, 186 “actuarial” approach, 180 ‘clinical judgment’ approach, 180 HCR-20, 184, 185 ICT, 185 LSI-R, 185 machine learning, 180, 181 mental health care, 180 PCL-R, 185 risk factors, 179, 181–184 SORAG, 184 SPJ approaches, 181 VRAG, 184 schizophrenia, 177 Violence Risk Appraisal Guide (VRAG), 184 Violence risk assessments, 40, 44 Voluntary hospitalization, 63 decision-making threshold, 63 degree of knowledge, 64 task force, 64 Vulnerability, 131 W Waiver of liability, 85 Washington v. Harper, US Supreme Court, 1990, 76, 77 Wilson v. District of Columbia, 231 Witness expert, 103, 105, 106 fact, 103–105 Workers’ compensation, 107, 108 Z Zinermon v. Burch involuntary commitment procedures, 64 private and state facilities, 63