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PSYCHIATRY & THE LAW

Forensic psychiatry is the medical subspecialty, recognized by the American Psychiatric Association since 1991, in which psychiatric expertise is applied to legal issues. The American Board of Psychiatry and Neurology started in 1994 to examine individuals for "added qualifications in forensic psychiatry." There are about 40 1-year fellowship programs in forensic psychiatry accredited by the Accreditation Council for Graduate Medical Education, USA. There are four divisions of forensic psychiatry. The first pertains to the legal aspects of general psychiatric practice, such as the civil commitment of involuntary patients, the doctrine of informed consent, the requirement to protect third parties from dangerous patients, and matters of privilege and confidentiality. The second division of forensic psychiatry covers the assessment of mental disability. This includes the evaluation of individuals who have been injured on the job, the assessment of a plaintiff who claims that he or she was injured and is now seeking compensation from a defendant, and the assessment of the competency of individuals to perform specific acts such as making a will. The most colorful aspect of forensic psychiatry deals with individuals who have been arrested. This division includes the evaluation of competency to stand trial, the evaluation of a person's competency to waive his or her Miranda rights, the assessment of criminal responsibility, evaluations that relate to sentencing, and the treatment of incarcerated individuals. The fourth division of forensic psychiatry is forensic child psychiatry, which includes child custody evaluations, the evaluation of children who may have been abused, and consultation regarding minors who are involved with juvenile court.

LEGAL ASPECTS OF PSYCHIATRIC PRACTICE


Professional Liability
Psychiatrists are less likely than other physicians to be sued for professional negligence. However, we live in a litigious societymost psychiatrists will be the subject of at least one professional liability claim during the course of their professional careers. In a case of professional liability or malpractice, a patient (the plaintiff) sues the psychiatrist (the defendant). In order to prevail legally, the plaintiff must prove each of four elements: (1) The psychiatrist had a duty of care to the patient, (2) there was a breach of the duty to the patient, (3) the patient was injured, and (4) the negligent care was the proximate cause of the patient's injury. That is, if it were not for the negligent act, the injury would not have occurred. At a trial, the plaintiff will attempt to prove each of the four elements by a preponderance of the evidence. Both the plaintiff and the defendant may ask expert witnesses to testify. Psychiatrists are at risk of being sued in many clinical situations. For example, a psychiatrist may be held responsible when a patient commits suicide if: (1) the suicide was foreseeable, (2) the psychiatrist failed to take a proper history from the patient or other individuals, and/or (3) he or she failed to take appropriate precautions. A psychiatrist may be liable for negligent psychopharmacology if a patient sustains injury as a result of: (1) failure to obtain an adequate history, (2) use of a drug

that is not efficacious or not indicated, (3) use of the wrong dosage of medication, or (4) failure to recognize or treat side effects. A particular concern is the occurrence of tardive dyskinesia (a serious side effect caused by certain psychotropic medications), especially if the patient and family members were not warned of the risk and if the psychiatrist did not monitor the patient properly for side effects. A lawsuit may arise out of the use of electroconvulsive therapy if its use was inappropriate or if informed consent was not obtained. A lawsuit may arise out of the use of psychoanalysis if the patient did not give informed consent for this treatment, for example, was not advised of alternative treatments to consider. Psychiatrists have been sued for engaging in sexual conduct with a patient or with the spouse of a patient. Because it has been clearly stated by professional organizations that sexual activity with patients is a breach of the psychiatric standard of care, the major issue in these cases is to prove that the sexual activity occurred. In some cases patients have made false allegations of sexual conduct against psychiatrists. Even if the sexual activity never occurred, the psychiatrist may have mishandled the case through boundary violations that created the foundation for the false allegations (i.e., through negligent management of the transference).

Informed Consent
Informed consent refers to the continuing process through which a patient understands and agrees to the evaluation and treatment proposed by the physician or other mental health professional. Although informed consent is a concept that all psychiatrists claim to endorse, many practitioners do not understand what the concept means or give only lip service to its implementation. There are three components to informed consent: mental competency, adequate information, and voluntariness. The assessment of competency is discussed later in this chapter. Regarding the disclosure of adequate information, this generally means the patient should know the nature and purpose of the proposed treatment, the potential benefits and risks, and the alternative treatments that may be considered. The states have set different criteria for the amount of information that a physician should disclose. Some states have adopted the rule that a physician should disclose the amount of information that a reasonable physician would disclose in a similar situation. Most states have adopted a more progressive rule, that a physician should disclose the information that areasonable patient would want to know about the proposed treatment. Regarding the requirement for giving consent voluntarily, this means the patient should not be coerced or offered inducements by the physician, other members of the treatment team, or family members. Informed consent is more than just a signature on a form. As treatment progresses there should be a continuing dialogue regarding the nature of the treatment and its possible side effects. In some circumstances, such as starting a psychotic patient on neuroleptic medication, the patient will be able to discuss these topics coherently only after treatment has begun. In some cases informed consent should involve a discussion with close family members as well as the patient. When a chronically suicidal patient is being discharged from the hospital, for instance, it is useful for the immediate family to understand both the pros and cons of the discharge and for all parties (i.e., patient, family, and psychiatrist) to share and accept the inherent risks.

Civil Commitment
In some circumstances, psychiatric patients are hospitalized involuntarily. The legal bases for involuntary or civil commitment are the principle of parens patriae (i.e., the government may act as

"father of the country" to protect individuals who are unable to take care of themselves) and the police power of the state (i.e., the government has the authority to protect society from dangerous individuals). Psychiatrists participate in this process by evaluating patients as to whether they meet criteria for civil commitment. Although the specific procedures vary from state to state, the criteria for involuntary commitment generally include all of the following: (1) The patient has a serious psychiatric disorder, such as a psychosis or bipolar disorder, (2) there is significant risk that the patient will harm himself or others, and (3) hospitalization is the least restrictive alternative. In some jurisdictions, civil commitment is hard to justify (requiring an overt act rather than mere risk of danger) or less difficult to justify (allowing civil commitment if the patient is not likely to take care of basic personal needs).

The Rights of Patients


On many occasions, hospitalized psychiatric patients and institutionalized mentally retarded persons have been railroaded, warehoused, and abused. As a result, state and federal courts and legislators have declared that patients have specific rights. For example, the right to treatment means that civilly committed mental patients have a right to individualized treatment. Likewise, patients also have the right to refuse treatment. That is, a patient who is civilly committed may still be competent to decide whether to agree to use psychotropic medication. If the psychiatrist proposes to use medication even though the patient refuses, he or she should follow the appropriate local procedures. Such procedures may include referring the question to a treatment review committee or asking the court to appoint a guardian for the patient. In some jurisdictions, psychiatric patients have the following rights: to receive visitors; to send uncensored mail; to receive uncensored mail from attorneys and physicians, although other mail may be examined before being delivered; to confidentiality; to have medical records available to authorized individuals; and to a written statement outlining these rights. An important patient right is that seclusion and mechanical restraint will not be used unless required for the patient's medical or treatment needs. Seclusion and restraint may not be used for punishment or for the convenience of staff.

Confidentiality
Psychiatric patients have a right to be assured that information they have related in therapy will not be revealed to other individuals. The American Medical Association has promulgated ethical principles for many years, and these principles include the importance of confidentiality. The American Psychiatric Association has published both general principles and detailed guidelines regarding patient confidentiality. In some states, the medical licensing act or a separate statute defines the physician's obligation to maintain patient confidentiality. In 1996, the United States Congress passed the Health Insurance Portability and Accountability Act and in 2001, the U.S. Department of Health and Human Services implemented "Standards for Privacy of Individually Identifiable Health Information" (the "Privacy Rule"), which created national standards to protect individuals' medical records and other personal health information. The federal government took an important medical principle (Hippocrates said, "Whatsoever things I see or hear concerning the life of men, which ought not to be noised abroad, I will keep silence thereon, counting such things to be sacred secrets.") and created a very detailed set of rules. Many providers responded by becoming unnecessarily legalistic and restrictive in the way they handle protected healthcare

information. The issue of confidentiality in clinical practice is complex. In some situations, confidentiality should be given great importance; but in other situations, it is therapeutically important to share information with other clinicians or people involved in the patient's daily life. For example, the treatment of chronically ill patients may require continuing collaboration with the individual's family members and close friends. The sharing of clinical information is almost always done with the patient's knowledge and consent. In treating a minor, the importance of confidentiality will depend on the patient's age and developmental level, his or her psychopathology, his or her relationship with the parents, and the specific topic in question. For example, most therapists would maintain confidentiality regarding an adolescent's sexual activities and occasional drug usage that might be considered part of youthful experimentation. However, therapists would want parents to become aware of a teenager's sexual promiscuity, pregnancy, serious delinquent behavior, and serious substance abuse. The expectation of confidentiality is not absolute. Table 501 lists some of the many exceptions to confidentiality in clinical and forensic practice, which are mentioned in the Privacy Rule that followed from the Health Insurance Portability and Accountability Act. Clinicians have a strong impulse to discuss case material with colleagues, and these conversations sometimes occur in elevators, cafeterias, and other public places where they can be overheard by strangers. The urge to discuss cases occurs because clinical material is both extremely interesting (so the therapist wants to tell about it in order to show off in some way) and extremely anxiety provoking (so the therapist wants to find reassurance by sharing the case with a colleague). If a psychiatrist is concerned or puzzled about a clinical issue, he or she should confer in a formal setting with a consultant or a supervisor.

The clinician should be aware that any written record may later be read by the patient or by many other people. The wise psychiatrist will protect himself or herself from future chagrin by always keeping this in mind when he or she dictates an evaluation or writes a progress note. Prospective patients should know the limits of confidentiality. One way that therapists can ensure patient understanding of such limits is to provide them with an office brochure that explains that the therapist values confidentiality very highly but that particular exceptions to confidentiality exist. The right to confidentiality continues after a patient's death, but it must be balanced against the family's right to certain information. After a patient's suicide, for instance, it may be appropriate for

the patient's therapist to meet with family members and close friends and for all of them (i.e., including the therapist) to try to make sense of what happened. That meeting might involve the therapist's sharing certain kinds of information with the family (e.g., the diagnosis of bipolar disorder, the affection the deceased expressed toward a spouse), but it need not involve extensive or detailed revelations.

Privilege
Confidentiality and privilege are related concepts because they both assert the privacy of information that one person has shared with another. "Confidentiality" is a broad concept that prohibits professionals from revealing information about a client to anyone. "Privilege"a narrower concept describes specific types of information that may not be disclosed in a legal setting. Privileged information is almost always confidential; not all the confidential information is privileged. A person has the right of testimonial privilege when he or she has the right to refuse to testify or to prevent another person from testifying about specific information. For instance, a woman may claim privilege and refuse to testify about conversations she had with her attorney because such discussions are considered private under the concept of attorney-client privilege. Likewise, a man may claim that his therapy is covered by physician-patient privilege and prevent the psychiatrist from testifying about him. On the other hand, the man may waive the right to physician-patient privilege and allow his psychiatrist to testify. It is up to the patient, not the psychiatrist, to make that decision. The psychiatrist should ordinarily go ahead and testify if the patient has waived his right to privilege.

Protection of Third Parties


Occasionally, a patient may reveal that he or she has murderous feelings toward a particular other person. The psychiatrist should assess, of course, the cause and the seriousness of these feelings. In addition, the psychiatrist should devise a treatment plan to protect the other person (i.e., the third party). Ideally, the psychiatrist and patient should cooperate in devising a safety plan. For example, a psychiatrist was treating a patient who had chronic schizophrenia and who expressed thoughts of hurting his parents. The psychiatrist and the patient agreed to a joint telephone call to the parents to inform them of the danger, the patient's medication was adjusted, and the patient signed a written statement that he would not visit the parents until the crisis had been resolved. If the psychiatrist and patient cannot agree on a safety plan or if it is clinically inappropriate to attempt such an agreement, the psychiatrist must take steps unilaterally to protect the third party. For example, an acutely paranoid man has told his psychiatrist that he intends to take revenge against his former boss. The psychiatrist protects both the patient and the boss by arranging for the patient's involuntary commitment to an inpatient facility. Warning a potential victim is usually done with the patient's knowledge, if not with his or her permission. But this is not always possible. For example, an extremely angry and jealous man, who has been threatening his wife, has eloped from a supposedly secure inpatient program. It is no longer possible to discuss the issue therapeutically. The psychiatrist immediately notifies the wife and also the police. State legislatures have adopted a variety of laws and local courts have held a variety of opinions, so psychiatrists should become familiar with the local standards. There could be contradictory practices as a professional moves from one state to another. Some states have laws that protect mental health

professionals from liability if they disclose in good faith confidential information to the patient's intended victim.

ASSESSMENT OF MENTAL DISABILITY


There are several circumstances in which psychiatrists evaluate individuals to determine degree of disability, if any. These circumstances include claims under workers' compensation programs; personal injury lawsuits; and evaluations to determine mental competence to perform specific acts.

Disability & Workers' Compensation


The Social Security Administration provides financial benefits for individuals who are not able to work at any occupation for at least 12 months because of a serious physical condition or psychiatric illness. Through the Department of Veterans Affairs, the federal government provides benefits to veterans who are partially or fully disabled because of a service-related condition. Individual states administer workers' compensation programs that provide defined and limited compensation to individuals who were injured during the course of their employment. Finally, some people have individual or group disability insurance policies and apply for benefits from an insurance company. Individuals who are seeking disability benefits or workers' compensation should be evaluated in a thorough and systematic manner. The clinician should carefully read the referral information because the agency or company may be asking the evaluator to address very specific questions. In some cases the cause or the date of onset of the illness may be very important. In other cases the issue may be whether the person can currently engage in a particular occupation. In addition to a thorough interview and mental status examination, a psychiatric disability evaluation may include the following: psychological testing, neuropsychological assessment, review of medical and psychiatric records, review of military and employment records, and interviews of family members and other informants. The evaluator should actively consider the possibility of malingering or of the exaggeration of either psychological (e.g., depression, anxiety, fearfulness) or cognitive (e.g., problems with memory and concentration) symptoms. The American Medical Association has published guidelines for the assessment of physical and mental disability.

Personal Injury
Personal injury litigation is part of a large domain called tort law, the law of civil wrongs. A person who injures another can be arrested and tried (under criminal law) or sued (under tort law). A successful tort action requires proof of the four elements mentioned previously: (1) a duty was owed to the plaintiff by the defendant, (2) the duty was breached, (3) an injury occurred, and (4) the breach of duty directly caused the injury. Courts allow plaintiffs to be compensated for both physical and psychological injuries. If a person was severely injured physically, it is easy to see how he or she may have sustained psychological damage as well. In some circumstances courts will allow compensation for psychological injury even when no physical injury occurred at all. This may happen when the plaintiff was so close to the incident (within the "zone of danger") that he or she could have been physically injured or when the plaintiff was not in the zone of danger but observed a close relative being injured. Psychiatrists become involved in these cases by evaluating whether a plaintiff has been psychologically injured and whether the injury was the direct result of the negligent act by the defendant. The evaluator should interview the plaintiff carefully and ask the referring attorney to

collect information from other sources (e.g., school records in children, military records in adults) in order to compare the person's psychological and social functioning before and after the alleged trauma. Several psychiatric conditions may follow a serious trauma: posttraumatic stress disorder, generalized anxiety disorder, phobias, panic disorder, adjustment disorder, dysthymia, and major depression. The evaluator should clarify whether the condition antedated the alleged trauma, whether other psychological stressors could have caused the symptoms, and whether there was a direct relationship between the alleged injury and the psychiatric disorder. It is common for a psychiatrist to be asked to take on multiples roles with the same patientfor example, treating an individual and also describe the person's mental condition for some legal or administrative purpose. This is the problem of dual agency (Strasburger 1997). For example, a psychiatrist may already have a treatment relationship with an individual who is injured on the job and subsequently requires an evaluation to support his claim for workers' compensation benefits. It is usually preferable for the psychiatrist to avoid taking on both roles, but recommend that the patient have a separate, independent medical evaluation for purposes of the claim for benefits. An independent medical evaluation is an examination by a physician who evaluates, but does not provide care for, the individual. Although the problem of dual agency is an important issue for psychiatrists and psychologists, it is not so much an issue for other medical specialists. For example, orthopedic surgeons and neurologists may be ideally suited to provide both treatment and forensic evaluation for the same individual.

Competence
In psychiatry, competence refers to a person's mental ability to perform or accomplish a particular task. Some writers make a distinction: "mental capacity" is assessed by a physician or a mental health professional, while "mental competency" is a legal finding determined by a court. Although the details of the competency evaluation will depend on the circumstances (Table 502) of the case, the general principles are the same. There are four functional abilities to consider in assessing competence (Grisso and Appelbaum 1998):

THE ABILITY TO EXPRESS A CHOICE For example, an elderly woman who is making a will must be able to communicate her intentions either verbally, in writing, or in some other manner. It may be important to interview the person on two or three occasions to make sure her choice remains consistent. THE ABILITY TO UNDERSTAND RELEVANT INFORMATION For example, the elderly woman must understand that she is meeting with her attorney and they are preparing a legal document. She must know the extent of her property and who the potential heirs are. THE ABILITY TO APPRECIATE THE SIGNIFICANCE OF THAT INFORMATION FOR ONE'S OWN SITUATION For example, the woman who is drafting her will must realize that her children will not receive anything if she puts her entire estate in a trust fund for her cats. THE ABILITY TO REASON WITH REGARD TO THAT INFORMATION ENGAGING IN A LOGICAL WEIGHING OF OPTIONS If the woman decides to leave her estate to her childrenand not to the trust fund for her catsthe evaluator should assess whether her decision was made in a rational manner. A person who makes the "right decision" for the wrong reason, such as a delusion, would not be competent.

INDIVIDUALS WHO HAVE BEEN ARRESTED


Forensic psychiatrists sometimes evaluate individuals who have been arrested and are awaiting trial. Usually, it is the defense attorney who is concerned about the defendant's mental competency to go

to trial and his or her state of mind at the time of the alleged offense.

Competency to Stand Trial


In order to be competent to stand trial, the defendant must understand the charges that have been brought against him or her and the nature of the legal proceedings. For example, the defendant needs to understand the roles of the defense attorney, prosecuting attorney, judge, and jury. The defendant must be aware of the possible outcome of the legal proceedings (e.g., release to the community, imprisonment, capital punishment). Finally, the defendant must be able to cooperate with his or her attorney, disclose to the attorney the facts regarding the case, and testify relevantly. If the defendant is found not competent to stand trial, the court will arrange for psychiatric treatment in the jail or at a state psychiatric facility. In some cases a defendant becomes competent following psychotropic medication or psycho-educational intervention. A person, who is permanently incompetent, such as a severely retarded individual, may never go to trial. He or she may simply be released or, if dangerous to self or others, civilly committed.

Competency to Waive Miranda Rights


Almost every U.S. citizen has heard the admonition: "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to be speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense." If the police have taken a person into custody, they must advise the person of his or her Miranda rights prior to interrogation. They must not continue to question a person who has asserted her right to remain silent or has requested an attorney. A person who has not been taken into custody may be questioned by police without any Miranda warning. Forensic psychiatrists sometimes evaluate whether a criminal defendant was mentally competent to waive his Miranda rights after being arrested and prior to questioning by police. That is, whether the individual waived his Miranda rights in a knowing, intelligent, and voluntary manner. In general, "knowing" means the person is aware of what is happening and the possible consequences of making a statement to police; "intelligent" means the person has weighed the pros and cons in a logical manner; and "voluntary" means the lack of coercion. These criteria are comparable to the components of informed consent, in that "knowing" for the Miranda waiver is equivalent to "disclosure of adequate information" of informed consent, and "intelligent" for the Miranda waiver approximates the ability to reason in a logical manner that is required for informed consent. Some people are particularly vulnerable in the sense that they are overly willing to waive their Miranda rights. For example, individuals with mental retardation may not understand the gravity of the situation and may be overly compliant in following the request of the police officer to answer questions. People with serious psychiatric disorders may be so mentally disorganized they are incapable of exercising good judgment when they are arrested. Children and adolescents who have been arrested may simply assume that they should be obedient and do what the police officer wants them to do.

Criminal Responsibility
A person who has committed a crime is not held responsible for his or her behavior if he or she was legally insane at the time the crime was committed. In this sense, "insanity" is a legal term that implies a severe mental disorder or a significant degree of mental retardation. The courts have applied several standards to define criminal insanity. The most common are the M'Naghten rule and the

American Law Institute test. The M'Naghten rule provides for only a cognitive test for the insanity defense. That is, the person is held not responsible for a crime if "the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong." The American Law Institute test provides for both a cognitive and a volitional test. That is, a defendant would not be responsible for criminal conduct "if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law." Insanity is determined by a person's mental functioning, not by a specific diagnosis. To be considered insane, however, the defendant must have a serious psychiatric condition such as bipolar disorder, paranoid schizophrenia, or another severe mental disorder. Some jurisdictions explicitly state in their insanity statute that "mental disease or defect" does not include any disorder that is manifested simply by antisocial conduct. If a judge or jury finds a defendant not guilty by reason of insanity, the person does not go to prison. Nor does he or she go home. Usually the disposition is to a secure inpatient facility to determine if the person can be civilly committed to either hospital or outpatient treatment. Some states provide an alternative outcome, in that the defendant can be found guilty but mentally ill. That is, the defendant had a mental illness at the time of the alleged offense, but it was not severe enough to acquit him or her. The defendant found guilty but mentally ill goes to prison, where treatment is presumably available.

Diminished Capacity
Like insanity, the concept of diminished capacity also refers to the defendant's mental condition at the time of the alleged offense. In order to convict a defendant, the prosecution must prove that a criminal act occurred (referred to as the "actus reus") and that the perpetrator of the act had a particular mental state (referred to as the "mens rea"). For some crimes, it is simply required that the actor has the mental state of "knowing" what he or she is doing. For some crimes, it is required that the actor have the mental state of "intending" what he or she is doing, a higher level of mental activity than simply knowing. For some forms of first-degree murder, it is required that the actor has the mental state of "premeditation," a higher level of mental activity than either intending or knowing. States have various definitions for these terms. Some states allow mental health professionals to testify regarding a person's capacity to form a particular mental state at the time of the alleged offense. For example, a forensic psychiatrist might be asked to evaluate whether a man who was very intoxicated by both alcohol and cocaine was mentally capable of premeditating a crime when he violently killed another person in a bar fight. If a judge or jury finds the defendant was not capable of premeditation and therefore did not commit firstdegree murder, the person is not usually acquitted and sent home. Usually, the person is found guilty of a lesser-included offense such as second-degree murder or voluntary manslaughter. A successful insanity defense is exculpatory and the person is found not guilty of any crime. A successful diminished capacity defense usually means the person is found guilty of a crime with a shorter sentence.

Prison Psychiatry
American jails and prisons have much higher proportions of mentally ill and mentally retarded individuals than are found in the general population. Forensic psychiatrists provide treatment to these individuals, who may have serious conditions manifested by chronic depression, violent and aggressive behavior, and overt psychosis.

FORENSIC CHILD PSYCHIATRY


The interface between child psychiatry and the law is a very young discipline. The forensic child psychiatrist is likely to be consulted regarding child custody disputes, child maltreatment (such as physical, sexual, and psychological abuse), minors involved in the juvenile justice system, and personal injury (see page 715).

Child Custody Evaluation


When parents divorce and disagree regarding the custody of the child, mental health professionals sometimes evaluate the family and make recommendations to the court. Since the 1920s, lawmakers and courts have emphasized "the best interests of the child," which implies that the needs of the child override the rights of either parent. The American Academy of Child and Adolescent Psychiatry (1997) developed practice parameters for child custody evaluations. In conducting these evaluations, it is best to have access to all members of the family, including both parents. In some circumstances the psychiatrist may conduct a one-sided evaluation by interviewing only one parent and the child. In such a case the psychiatrist may make only limited observations and recommendations, such as commenting on the psychiatric condition of one parent and his or her relationship with the child. Usually the psychiatrist would not be able to make any recommendations regarding custody because he or she had no way of evaluating the relative merits of the mother and father. Typically, the psychiatrist has an initial conference with both parents together (if this is not too disruptive); meets with each parent individually in order to complete a psychiatric evaluation and to assess each person's parenting attitudes and skills; and meets twice with the child, so that each parent can bring the child for an appointment at least once. The psychiatrist may find it helpful to collect information from outside sources such as grandparents, babysitters, the pediatrician, and teachers. It is important to speak to previous and current psychotherapists of the child and of the parents. Decisions regarding custody are guided by the best interests of the child, but there are no standard guidelines for the specific factors that should be taken into consideration and what weight should be given to each factor. The following factors are generally considered important: parental attitudes and parenting skills; which parent has been more involved with day-to-day child rearing; continuity of placement (it is usually presumed preferable to maintain the status quo unless there is good reason to change it) the physical health of the parents the mental health of the parents (psychiatric diagnosis is less important than the person's parenting skills in the present and the future) substance abuse by the parents the relative merits of the two households (e.g., whether the parent has remarried) allegations of physical or sexual abuse the child's attachment to the parents and the child's preference, if he or she articulates a definite preference for reasons that seem valid.

Child Maltreatment

Psychiatrists in private practice, as well as those employed by courts or other agencies, see children who are alleged to have been psychologically, physically, or sexually abused. The purpose of the evaluation may be to assist the court in determining what happened to the child, to make recommendations regarding placement or treatment, or to offer an opinion on the termination of parental rights. The evaluation of a child, who is alleged to have been maltreated, is described in Chapter 42.

Juvenile Justice
Forensic child psychiatrists may consult with the juvenile justice system to evaluate a juvenile's competency to go to trial and his or her state at the time of the alleged offense, if an insanity defense is being considered. Psychiatrists can also assist the court in determining if a juvenile, who has been accused of committing an unusually serious offense, should be tried as an adult ("waiver to adult court"), the risk the child presents of violent or sexual offending, the reasons for the child's behavior, and the best disposition.

THE PSYCHIATRIST IN COURT


The Written Report
The report should be carefully written. It will be read by several people and the reader will tend to attach great significance to particular sentences or phrases. Probably the best approach is to make the report detailed enough for the reader to understand fully the procedure that was followed and the basis for the conclusions and recommendations but not to include every scintilla of data. Table 50 3 offers an outline of a typical forensic report.

Role Definition
There are many times when the psychiatrist must keep straight in his or her own mind, and for others, both who is the client and what precisely is the psychiatrist's role in the current situation. The client may be the person the psychiatrist is examining or it may be somebody else. The psychiatrist may have the role of therapist or simply that of an evaluator. In forensic work, any confusion regarding the psychiatrist's role will be magnified and highlighted by the legal process and will compromise his or her work, whether the psychiatrist is intending to be a therapist, an evaluator, a consultant, or an administrator.

The Problem of Bias


Psychiatrists and other mental health professionals may not realize how easily and how often they become biased in their work with patients and families. Despite all that is known about unconscious processes (such as countertransference) and conscious motivations (such as greed and the desire for popularity or fame), it is common for therapists to base their conclusions on preconception rather than on the data that have been presented. Bias is more prevalent in forensic cases because the evaluator may be exposed to anger, threat, deceit, tragedy, innuendo, hypocrisy, flattery, or inducement. It is extremely important for the psychiatrist to be aware of his or her own motivations, as well as the agenda of the other professionals involved in the case.

Bias is a distorting glass through which the evaluator views the situation. For example, an evaluator who is a very strong believer in law and order may always interpret the facts to support criminal responsibility rather than a finding of not guilty by reason of insanity. The psychiatrist who enters a case with a particular bias is likely to change a situation despite a belief that he or she is studying it objectively. For example, an evaluator predisposed to find child abuse may interview children in such a suggestive manner that the children allege abusive acts that did not occur. Several safeguards against bias are available. The psychiatrist should try to be aware of his or her own conscious and unconscious motivations. It may be helpful if the psychiatrist says something like this to himself or herself: "My job is not to win this case. My task is to help the court by collecting accurate and pertinent data and organizing it in a way that is scientifically and medically valid." Another safeguard against bias is for the psychiatrist to carefully indicate in the written report the reasons for his or her conclusions, so that the court will truly understand the basis for the opinion. Some forensic psychiatrists misuse their expertise by manipulating the court into believing something that may not be true. Sometimes, unscrupulous psychiatrists use obfuscating jargon in order to cloak shaky reasoning with a false air of certainty.

Degrees of Certainty
An important aspect of legal decisions is the standard of proof or the level of certainty that must be established in order for a particular decision or verdict to be reached. There are several levels of certainty. The least exacting level of certainty to achieve is probable cause. In criminal law, probable cause is the set of circumstances sufficient to lead a reasonable man to suspect the person arrested had committed a crime. In psychiatric practice, that may be a sufficient level of certainty to report a suspected instance of child abuse. In civil cases the side that prevails is the one that establishes a fair preponderance of the evidence. This can be expressed roughly as being 51% certain. In some cases that involve psychiatric evidence, the level of certainty is clear and convincing proof, which is proof necessary to persuade by a substantial margin, and more than a bare preponderance. In most states civil commitment, paternity suits, and legal insanity must be proven to a degree that is clear and convincing. In most circumstances, the proof that child abuse has occurred or that parental rights should be severed must be clear and convincing. Criminal cases require proof that is beyond a reasonable doubt, which means that the jury is satisfied to a moral certainty that every element of a crime has been proven. The term means that no reasonable alternative could explain the evidence. To convict a specific person of child abuse would require proof beyond a reasonable doubt. One of the most puzzling terms in forensic psychiatry is reasonable degree of medical certainty. When a physician testifies in court, he or she is frequently asked if his or her opinions are given with a reasonable degree of medical certainty. Unfortunately, there is no specific meaning for that term. At one time or another, physicians have taken it to mean about the same as "beyond a reasonable doubt," the same as "clear and convincing," and even the same degree of certainty as "preponderance of the evidence." It has been proposed that reasonable medical certainty is a level of certainty equivalent to that which a physician uses when making a diagnosis and starting treatment.

The implication is that the degree of certainty depends on the clinical situation. For example, the diagnosis of syphilis is accomplished with almost 100% certainty because there is a reliable laboratory test for that purpose. The determination that a patient has posttraumatic stress disorder as a result of a specific event can be made with considerably less certainty.

CONCLUSION
Forensic psychiatry is an unusual medical specialty because of the diverse clinical situations and the broad scope of practice that it encompasses. For instance, a forensic evaluation might involve a very young child (regarding child maltreatment), a very old person (regarding competency to make a will), or anybody in between. The forensic practitioner must be familiar not only with the clinical literature but also with the applicable law and important legal precedents. Several important legal cases have influenced both the practice of law and the practice of psychiatry (Table 504).

In addition, it is challenging to apply psychiatric expertise to legal situationsboth through written reports and oral testimonyin a manner that is evenhanded and unbiased. Finally, forensic psychiatrists experience a wealth of human relationships and a variety of roles. They may consult with clients and evaluees in the office, in the hospital, in jail, on death row, and in the corporate boardroom. After conducting an evaluation, they frequently take on the role of teacher or lecturer, as they explain their findings to family members, attorneys, and perhaps a judge and jury. The diversity of forensic psychiatry gives this medical specialty its own blend of suspense, accomplishment, and satisfaction.