Principles and Practice of Forensic Psychiatry

Richard Rosner, Charles Scott

• Publisher: CRC Press
• Year: 2017
• ISBN:
  9781482262308
• Edition: 3
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

The third edition of this award-winning textbook has been revised and thoroughly updated. Building on the success of the previous editions, it continues to address the history and practice of forensic psychiatry, legal regulation of the practice of psychiatry, forensic evaluation and treatment, psychiatry in relation to civil law, criminal law and family law, as well as correctional forensic psychiatry. New chapters address changes in the assessment and treatment of aggression and violence as well as psychological and neuroimaging assessments.

PART 1

History and Practice of Forensic Psychiatry

ROBERT WEINSTOCK AND GREGORY B. LEONG

1 A conceptual framework for forensic psychiatry

Richard Rosner

2 Defining forensic psychiatry: Roles and responsibilities

Robert Weinstock, Gregory B. Leong, Jennifer L. Piel, and William Connor Darby

3 History of forensic psychiatry

Marvin Thomas Prosono

4 Forensic psychiatric report writing

Michael A. Norko and Alec Buchanan

5 Guidelines for courtroom testimony

Phillip J. Resnick and Jennifer L. Piel

6 Practical issues in forensic psychiatric practice

Robert L. Sadoff

7 Education and training in forensic psychiatry

Rusty Reeves, Richard Rosner, John Gunn, David Reiss, and Dominique Bourget

8 Forensic psychiatric ethics

Robert Weinstock, William Connor Darby, Philip J. Candilis, Gregory B. Leong, and Jennifer L. Piel

9 What makes it right: Foundations for professional ethics

Richard Rosner

10 Liability of the forensic psychiatrist

Daniel Bonnici, Kate Bolton Bonnici, Robert Weinstock, and Thomas Garrick

11 The death penalty

Michael L. Perlin and Alison J. Lynch

12 Competence assessments

Jennifer L. Piel, Gregory B. Leong, and Robert Weinstock

13 Psychological autopsy and postmortem toxicology in forensic psychiatry

Andrew Kim, Mace Beckson, Alan Wayne Jones, and Alan L. Berman

1

A conceptual framework for forensic psychiatry

RICHARD ROSNER

INTRODUCTION

The third edition of this volume begins with a particular conceptual framework applicable to all problems in the field. This framework is designed to organize the extraordinarily wide range of factors that must be considered in the approach to forensic psychiatry, so as to make rational analysis systematic, uniform, and more likely to be effective.

The number of specific psychiatric–legal issues to consider is itself large. As set forth in the Standards for Fellowship Programs in Forensic Psychiatry (Rosner 1982a), they include the following:

• Civil forensic psychiatry including, at minimum, conservators and guardianships, child custody determinations, parental competence, termination of parental rights, child abuse, child neglect, psychiatric disability determinations (e.g., for social security, workers’ compensation, private insurance coverage), testamentary capacity, psychiatric negligence and malpractice, personal injury litigation issues.
• Criminal forensic psychiatry including, at minimum, competence to stand trial, competence to enter a plea, testimonial capacity, voluntariness of confessions, insanity defense(s), diminished capacity, sentencing considerations, release of persons who have been acquitted by reason of insanity.
• Legal regulation of psychiatry including, at minimum, civil involuntary commitment, voluntary hospitalization, confidentiality, right to treatment, right to refuse treatment, informed consent, professional liability, ethical guidelines.

Similar areas are included in the more recent requirements of the Accreditation Council for Graduate Medical Education (see Chapter 7). There are many psychiatric–legal issues that forensic psychiatrists are asked to address, and my proposed model is a way to conceptualize these issues so that an opinion can be rendered.

For every psychiatric-legal issue, a variety of legal contexts exist in which the issue may occur. In the United States, there are 50 state jurisdictions, plus the District of Columbia, and federal and military jurisdictions. For each of those 53 jurisdictions, there is a separate set of legislated statutes, a separate sheet of judge-made case law, and a separate set of administrative codes. As a result, the legal criteria that define a psychiatric–legal issue and establish the basis for its resolution are disparate and diverse.

A result of the multiplicity of issues, jurisdictions, and legal criteria is that there is no such entity as a general forensic psychiatric assessment. Rather, there is only a series of specific psychiatric–legal assessments, each focusing on one psychiatric–legal issue occurring in one legal context and determined by one set of legal criteria.

These legal considerations are in addition to the array of complex clinical phenomena that are the subject matter of psychiatry. The clinical materials are more diverse than is usually encountered in therapeutic practice because they address more than current, immediately accessible data. In some instances, the past is the issue; for example, what was the mental state of a defendant at the time that he or she confessed to the police? In other instances, the future is the issue; for example, which of two competing custodial parents is likely to be the better caregiver of an infant child as the child grows and develops to adulthood? In some instances, there is no one immediately available to examine, for example, in determining the mental state of the deceased person at the time that he or she signed his or her alleged last will and testament.

Compounding all of these matters is the need to present the practitioner’s psychiatric–legal opinion as the result of a process of reasoned deliberation that is comprehensible and convincing to the majority of rational legal decision makers. It is not sufficient to offer a sincere belief; what is required is logically compelling knowledge. In clinical practice, when a patient’s relative asks, “Will he recover, doctor?” it may be appropriate to respond, “I certainly hope so and I will do everything that I reasonably can do toward that goal.” However, that would most likely be an inadequate answer in a legal setting, where a reply supported by scientific facts and statistical projections might be what is expected. These more sophisticated facts must be presented in a systematic well-reasoned manner. It is not enough to know the materials; they must be organized in a logical, relevant, coherent fashion.

There are simply too many factors to be considered without a method for their more manageable organization. In much the same manner that all physicians are trained to organize the diversity of clinical phenomena so as to make them more amenable to rational assessment, forensic psychiatrists are trained to organize the diversity of psychiatric legal phenomena to facilitate their consideration.

For the clinical practitioner, the conceptual framework is some variation of identification, chief complaint, history of the present illness, pertinent past history, laboratory test data, differential diagnoses, and medical diagnostic impression. For the forensic psychiatric practitioner, the four-step conceptual framework is issue, legal criteria, relevant data, and reasoning process:

1. Issue: What is the specific psychiatric–legal issue to be considered?
2. Legal criteria: In the jurisdiction in which this specific psychiatric–legal issue must be resolved, what are the legally defined terms and criteria that will be used for its resolution?
3. Relevant data: Exactly what information (such as part of what might be collected by a clinician following the traditional clinical framework for data organization) is there that is specifically pertinent to the legal criteria that will be used to resolve the specific psychiatric–legal issue?
4. Reasoning process: How can the available relevant data be applied to the legal criteria so as to yield a rationally convincing psychiatric–legal opinion?

Among the virtues of a conceptual framework are that it facilitates: (a) the approach to the forensic psychiatric task to be accomplished; (b) communication among colleagues insofar as all colleagues are familiar with and use the same framework for the consideration of the forensic psychiatric work to be done; (c) the identification of areas that are unclear (e.g., the precise legal criteria for the specific issue); (d) the drawing of attention to areas that are incompletely addressed (e.g., the full range of clinical and factual data that are pertinent to the specific legal criteria); and (e) the determination of what are the bases of disagreements between different forensic psychiatrists (e.g., disagreements about the legal issue, about the legal criteria, about the relevant data, and about the reasoning processes).

It may be useful to give examples of how this approach is of practical value (Rosner 1982b,c,d, 1985, 1987, 1990). Suppose that a forensic psychiatrist is contacted by an attorney and is asked to provide an evaluation and report regarding a defendant. The forensic psychiatrist should ask the attorney exactly which psychiatric–legal issue or issues are to be addressed. Although the defendant is only one person, many distinguishable issues may be involved. The attorney may want an evaluation and opinion about a possible insanity defense, or about the defendant’s mental competence to waive his or her Miranda rights at the time of a supposedly voluntary and knowing confession, or about the defendant’s current competence to stand trial, or about the defendant’s future competence to abide by the terms of probation.

If the forensic psychiatrist does not know exactly which issue to consider, there is no way to proceed with the evaluation. Pursuing the wrong issue would waste time and money and would jeopardize the outcome of the defendant’s case. It is incumbent upon the forensic psychiatrist to clarify for the lawyer that there is no such thing as a general forensic psychiatric examination, and that the lawyer must specify which issue is to be the focus of the psychiatric–legal evaluation. If need be, several issues can be separately addressed, but each must be understood to be a distinguishable concern.

The forensic psychiatrist must also obtain from the lawyer the exact legal criteria, as established by statute, case law, and administrative code, that determine the specific issue in the jurisdiction that will hear the case. It may be easier to explain this point by analogy to the variable criteria that have been used at different times to make psychiatric diagnoses. Clinicians know that the American Psychiatric Association has employed several different manuals of diagnostic criteria over the course of time. To say that someone suffers from some type of schizophrenia according to the first (American Psychiatric Association 1952), second (American Psychiatric Association 1968), third (American Psychiatric Association 1980), third revised (American Psychiatric Association 1987), fourth (American Psychiatric Association 1994), fourth text revision (American Psychiatric Association 2000), fifth (American Psychiatric Association 2013), and forthcoming editions of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association is to say different things about that person depending on which set of diagnostic criteria is used.

It is possible that a person might be regarded as suffering from some form of schizophrenia according to one set of diagnostic criteria used at one time, but not according to a different set of diagnostic criteria used at a different time. In addition, the criteria used for clinical diagnoses may differ from nation to nation, although some standardization is achieved in those nations that agree to use the World Health Organization’s periodically revised International Classification of Diseases (ICD). The clinical diagnosis is determined by the criteria used to make the diagnosis.

In an analogous manner, the legal criteria used to determine an issue have varied over time within any single place of jurisdiction, just as the clinical diagnostic criteria have varied over time within the United States. In addition, the legal criteria vary from place of jurisdiction (e.g., New York) to place of jurisdiction (e.g., Washington, DC) at the same time, depending on which legal place of jurisdiction is hearing the case. It is uncommon for a forensic psychiatrist to have to be concerned with which legal criteria were used in the past, but it is both routine and of great importance to be concerned with which legal criteria are used in the specific place of jurisdiction that will hear the case.

A forensic psychiatrist must ask the attorney who wishes to retain him or her exactly which legal criteria are to be used to determine the specific psychiatric–legal issue in the jurisdiction that will hear the case. For example, the legal criteria to determine whether or not a defendant is not guilty by reason of insanity (NGRI) may vary from one jurisdiction to another. In one jurisdiction, the criteria for NGRI may address only whether or not the defendant was able to appreciate the nature and quality of his or her act, whereas in another jurisdiction that criteria may be supplemented by whether or not the defendant was able to conform his or her conduct to the requirements of the law. A defendant who might be found guilty in the first jurisdiction might be found NGRI in the second jurisdiction. A forensic psychiatrist practicing in two adjacent states might reach a different decision about the same case, depending on the location of the trial.

At minimum, the specific psychiatric–legal issue and the specific legal criteria will establish the time frame containing the relevant psychiatric data. The forensic psychiatrist may have to obtain data about the past, present, or future. Is the time frame an assessment of the defendant’s mental state at the (past) time of the alleged offense for a potential NGRI defense? Is it an assessment of the defendant’s mental state at the (not quite so past) time of his or her confession to the police so as to challenge the validity of the confession? Is the time frame the defendant’s current mental state for a determination of his or her competence to stand trial? Is it the defendant’s future mental state so as to determine if he or she will be able to comply with the conditions of possible probation?

Importantly, the legal criteria will often set forth exactly what kinds of information a person must have had (past), has (present), or will need to have (future) in order to resolve the specific psychiatric–legal issue. For NGRI, in some jurisdictions, the person must have had (past) knowledge of what he or she was doing and must have had (past) knowledge that what he or she was doing was legally wrong. For competence to stand trial, in some jurisdictions, the defendant must have (present) knowledge of the charges against him or her, and must have (present) knowledge of the nature of the legal proceedings against him or her. These criteria direct the forensic psychiatrist to make specific inquiries regarding the defendant’s knowledge, and appreciation of that knowledge, at the relevant time period.

Often the legal criteria will also set forth the exact mental capacities a person must have had (past), has (present), or will need to have (future) to resolve the specific psychiatric–legal issue. For NGRI, in some jurisdictions, the person must have had the (past) capacity to conform his or her conduct to the requirements of the law. For competence to stand trial, in some jurisdictions, the person must have the (present) capacity to cooperate with an attorney in his or her own defense. These criteria direct the forensic psychiatrist to make specific inquiries regarding the defendant’s noninformational mental abilities at the relevant time period.

The use of the forensic psychiatric conceptual framework can assist the practitioner in locating potential weaknesses in the case being developed. It may be that the attorney has been insufficiently specific regarding the exact psychiatric legal issue to be explored. It may be that the legal criteria are not set forth with clarity and exactitude. It may be that relevant data are lacking. It may be that the practitioner’s reasoning processes have been less than logical.

A lack of training in logic may underlie the difficulty that some forensic psychiatrists may have in explaining the reasoning processes that are the bases of their psychiatric–legal opinions. In general, the structure of psychiatric–legal reasoning is familiar: The first step is the assertion of a law or law-like proposition. The second step is the assertion of a factual proposition. The third step is a deductive inference from those two propositions. For example, (a) humans are the only rational bipedal animals; (b) Socrates is a rational bipedal animal; (c) therefore, Socrates is human. If we apply this method to a psychiatric–legal example, we can see how the reasoning process works:

1. Persons who are competent to stand trial have the capacity to understand the charges against them, the capaci...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Preface to the first edition
• Preface to the second edition
• Preface to the third edition
• Acknowledgments
• Editors
• Contributors
• Part 1 History and Practice of Forensic Psychiatry
• Part 2 Legal Regulation of Psychiatric Practice
• Part 3 Forensic Evaluation and Treatment in the Criminal Justice System
• Part 4 Civil Law
• Part 5 Family Law and Domestic Relations
• Part 6 Correctional Psychiatry
• Part 7 Aggression and Violence
• Part 8 Psychological and Neuroimaging Assessments
• Part 9 Special Topics in Forensic Psychiatry
• Part 10 Basic Issues in Law
• Part 11 Landmark Cases in Forensic Psychiatry
• Subject index
• Case index