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kaplan_forensic

kaplan_forensic

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ORENSIC PSYCHIATRY \u2013 kaplan
The branch of medicine that deals with disorders of the
mind and their relation to legal principles

GUTHEIL\ue000 forensice\u03c8; the interface between\u03c8 & the law is complex & has potential for gross misunderstanding

MEDICAL MALPRACTICE
Is a \u201ctort\u201d or civil wrong
\ue001Intentional tort\ue000 wrongdoers are motivated by the

intent to harm another person or realize or should have realzed that such harm is likely to result from their actions

Noncriminal, noncontract wrong resulting from a
physician\u2019s negligence.
\ue001Negligence\ue000 doing something that a physician (w/
a duty) should not have done OR failed to do
something that should have been done.
To prove malpractice: 4 D\u2019s w/c MUST be present or
there can be no finding of liability

\ue001\ue000 DUTY of care
\ue001\ue000 DEVIATION from the standard of care
\ue001\ue000 patient was DAMAGED
\ue001\ue000 the deviation DIRECTLY caused the damage

Note: the decision may prove to be wrong but not be a
deviation in the standard of care.
Negligent Prescription Practices:
\ue001

Exceeding recommended dosages, failing to adjust to therapeutic levels, unreasonable mixing of drugs, prescribing unindicated, too many or disclosing effects.

\ue001
Impt to have follow-up (not beyond 6 mos)
Informed consent
\ue001
Diagnosis
\ue001
Treatment
\ue001
Consequences
\ue001
Alternatives
\ue001
Prognosis
Split treatment
\ue001
A nonmedical therapist conducts the psychotherapy
while the psychiatrist provides the medication
\ue001
Potential malpractice traps! Px may fall between
the cracks of fragmented treatment!
\ue001
Psychiatrist maintains full responsibility for the
patient\u2019s care!
Privilege
The right to maintain secrecy or confidentiality in the
face of a subpoena; belongs to the PX, not the Dr
The law protects from forced disclosure on the witness
stand.

Most common exception: Px are said to waive the privilege by injecting their mental condition into the trial, making it an element of their claim or defense.

Other exceptions:
\ue001
Child custody cases, child protection cases
\ue001
Actions between therapist and patient
\ue002Fee dispute or malpractice claim. Lawyer may
obtain records
Confidentiality
Hold secret all information given by the px.
Subpoena duces tecum\u2665

Each release is good only for one piece of information (at one time), permission should be re-obtained for each subsequent release even if for the same party.

Third party payers & supervision
\ue001
Insurance
\ue001
Therapist-in-training to supervisor
\ue001Px ordered by court to get tx\ue000 mental health
board.
Discussion about patients
Child Abuse
HIGH RISK CLINICAL SITUATIONS
TARDIVE DYSKINESIA
SUICIDAL PX
VIOLENT PX
TARDIVE DYSKINESIA
\ue001Neuroleptic drugs\ue000 10-20% up to 50% of px dvlp
tardive dyskinesia
\ue001
CLITES vs STATE
\ue002Mentally retarded man institutionalized from
age 11, tx with tranquilizers\ue003
\ue002Use of drugs for convenience (behavior
management) rather than for therapy
\ue002Failure of defendants to inform side effects,
monitor therapy, conduct PE and labs.
SUICIDAL PATIENTS
\ue001Psychiatrists areassumed to have more control over
inpatients, making the suicide preventable
\ue001\u201cForeseeability\u201d\ue000 vague legal term that has NO
comparable clinical counterpart;
\ue002it is common sense rather than a scientific
construct;
\ue002it does NOT and should NOT imply that
clinicians can predict suicide
VIOLENT PATIENTS
\ue001
Physicians may be sued for:

\ue002failure to control aggressive outpatients
\ue002discharge of violent inpatients
\ue002failing to protect society from the violent acts

of their patients!
\ue001
TARASOFF vs REGENTS OF THE UNIVERSITY OF
CALIFORNIA
\ue002Landmark case
\ue002Courts held\u03c8iatrists to a fictional standard of
having to predict the future behavior
(dangerousness) of their potentially violent pxs.

*** although research has shown that\u03c8 CANNOT predict future violence w/ any dependable accuracy!!! (-p1355)

\ue001The duty to protect px & endangered 3rd parties
should be considered primarily a professional &
moral obligation, and only secondarily, a legal
duty.
\ue001\u201cDuty-to-warn\u201d statutes\ue000 in some states (in the
US), there are options/guidelines available to\u03c8
which are defined by the law.
\ue002Kung wala, u r left w/ clinical judgement!
Wehehe.
\ue001
Note: warning others of danger, by itself is usually
insufficient!!
\ue001TARASOFF I\ue000 \u201cduty to warn\u201d
\ue0021976
\ue002Prosenjiit Poddar\ue000 student, voluntary
outpatient in a mental health clinic, tells
therapist of his intent to kill Tatiana Tarasoff
\ue002Therapist\ue000 convinced of seriousness of

intention, recommends Poddar to a 72 hr observation in an emergency\u03c8 detention (w/c was according to the law.), campus police were also notified.

\ue002Therapist\u2019s supervisor\ue000 concerned about
breach
of
confidentiality,
vetoed
the
recommendation, destroys Poddar\u2019s tx records.
\ue002Police temporarily detained but then eventually
released Poddar, tells him to \u201cstay away from
that girl\u201d
\ue002Poddar stops going to the clinic, 2 months later,
kills Tatiana.\ue003
\ue002Court ruled that u must notify the potential
victim, the victims relatives/friends, or the
authorities.
\ue002Does not require to report fantasies (clinical
judgement impt!)
\ue002American Psychiatric Association
Confidentiality may be broken in:
Px will probably commit murder (can
be stopped only by notifying cops!)
Px will probably commit suicide (can
be stopped only by notifying cops!)
Px (bus driver/airline pilot) has
potentially
life
threatening
responsibilities
in
his
impaired
judgment
\ue001TARASOFF II\ue000 \u201cduty to protect\u201d
\ue0021982
\ue002Debate: clinicians argue that the duty to

protect hinders treatment because a patient may not trust a doctor if confidentiality is not maintained.

\ue002Breach of confidentiality in Tarasoff cases is
justified only by the threat of violence.
\ue002Tarasoff II decision chart (p1356)
HOSPITALIZATION

Parens patriae\ue000 doctrine that allows the state to intervene and to act as a surrogate parent for those who are unable to take care of themselves (or may harms themselves)

\ue001
\u201cfather of his country\u201d
\ue001refers to a monarch\u2019s duty to protect the people\ue004
Commitment laws\ue000 statutes governing hospitalization
of persons who are mentally ill
\ue001Kaso, panget daw ang term na to\u2026 since
\u201ccommitment\u201d legally means a warrant for
imprisonment. \u2026.better term = \u201chospitalization\u201d\ue004
\ue001False imprisonment!\ue000 a legal axn arising from a
claim that a px has been hospitalized negligently
Procedures for admission
\ue001
Informal admission
\ue002Ordinary dr-px relationship applies, w/ the px
free to enter & to leave, even against medical
advice
\ue001
Voluntary admission
\ue002Px apply in writing (because of advice or on
their own)
\ue001
Temporary admission
\ue002Senile, confused, unable to make decisions of
their own.
\ue002Emergency basis
\ue002Not more than 15 days
\ue001
Involuntary admission

\ue002Suicidal or homicidal
\ue002Px must be examined by two physicians
\ue002Need written notification of next of kin
\ue00260 days

\ue002Writ of habeas corpus\ue000 if px believes to have
been illegally deprived of liberty
RIGHT TO TREATMENT
ROUSE vs CAMERON (Judge BAZELON)
\ue001
The purpose of involuntary hospitalization is
treatment!
\ue001
Absence of tx draws into question the
constitutionality of the confinement
\ue001
Logic: treatment in exchange of liberty!
WYATT vs STICKNEY (Judge JOHNSON)
\ue001

Persons civilly commited to a mental institution have a constitutional right to receive such individual treatment as will give them a reasonable opportunity to be cured or improved.

\ue001
Minimum requirements for staffing, facilities,
nutritional standards, treatment plans.
EMERGENCY
\ue001

A condition in clinical practice that requires immediate intervention to prevent death or serious harm to the patient

O\u2019CONNOR vs DONALDSON
\ue001
Harmless, mentally ill px cannot be confined against
their will w/o tx if they can survive outside.
RENNIE vs KLEIN
\ue001
Px have the right to refuse tx & to use an appeal
proces
ROGER vs OKEN
\ue001
Px have absolute right to refuse treatment, but a
guardian may authorize tx.
SZASZ
\ue001\u03c8hasno place in the courts of law, andall forced
confinements are unjust!
CIVIL RIGHTS of PATIENTS
Least restrictive alternative\ue000 most legalistic civil
right!
Visitation Rights
Communication Rights\ue000 telephone, mail \u2026 etc.
Private Rights
Economic Rights\ue000 manage their own financial affairs
SECLUSION & RESTRAINT
Indications
Contraindications
Prevent clear, imminent
harm to the px or others
Extremely unstable medical
&\u03c8 conditn
Prevent

significant disruption to tx program or physical surroundings

Delirious/demented
px,
unable
to
tolerate
\u2193
stimulation
Assist in tx as part of
ongoing behavior tx
Overtly suicidal
Decrease
sensory
overstimulation
(seclusion
only)

Px w/ severe drug rxns, overdoses or requiring close monitoring of drug doses

At px voluntary reasonable
request
For
punishment
or
convenience of staff
SECLUSION or RESTRAINT
YOUNGBERG vs ROMEO
\ue001
Seclusion and Restraint for Training purposes
\ue001

Px could not be restrained except to ensure their safety or in certain undefined circumstances \u201cto provide needed training\u201d

\ue001
(I dunno, I guess their talking about trainees
interviewing psycho patients?)
INFORMED CONSENT
Classic tort theory:
\ue001
A tort is a civil wrongful act other than a breach of
contract
\ue001Intentional touching to w/c a person has not given
consent isbatter y
Judge CARDOZO
\ue001

The px consent to the tx, not the effectiveness or the timeliness of the tx, allows a physician to take care of a px.

GAULT decision
\ue001

All juveniles must now be represented by counsel, must be able to confront witnesses, & must be given proper notice of any charges.

\ue001

Emancipated minors have the rights of an adult when it can be shown that they are living as adults w/ control over their own lives.

CHILD CUSTODY

Generally, courts presume that the welfare of a child of young age is best served by maternal custody when the mother is a good & fit parent.

A mother may never resolve the effects of the loss of a
child.
However, the mother\u2019s best interest is not equivalent
to the child\u2019s best interest.
Current issues: Working women.
TESTAMENTARY
and
CONTRACTUAL
CAPACITY
and
COMPETENCE
Competence in making a will: Pyschological abilities
necessary\u2026
\ue001
Px know the nature & extent of their bounty
(property)
\ue001
Px know the fact that they are making a bequest
\ue001
Px know the identities of their natural beneficiaries
(spouse, children, relatives)

Witnesses at the signing of the will, may include a psychiatrist who may attest that the testator was rational at the time the will was executed.

Competence\ue000 determined on the basis of a person\u2019s ability to make a sound judgement. (to weigh, to reason, and to make reasonable decisions)

\ue001
Also essential in contracts.
DURABLE POWER OF ATTORNEY
\ue001

Advance selection of a substitute decision maker who can act w/o the necessity of court proceedings when the signatory becomes incompetent through illness, progressive dementia or relapse of bipolar I d/o

CRIMINAL LAW
COMPETENCE TO STAND TRIAL
\ue001

Ascertain whether a criminal defendant has sufficient present ability to consult w/ his lawyer w a reasonable degree of rational understanding of the proceedings against him

\ue001
Mc Garry instrument (identifies 13 areas of fxning)
\ue001
Clinicians merely offer opinions about competence.
COMPETENCE TO BE EXECUTED
\ue001
Principles:
\ue002Awareness of the retributive element of the
punishment
\ue002Be in the best position to make peace w/
religious belief.
\ue002Preserves the possibility (until the end) of
recalling a forgotten detail of the events or
crime that may prove exonerating
\ue001
FORD vs WAINWRIGHT
CRIMINAL RESPONSIBILITY
\ue001
Objectional act must have two components
\ue002ACTUS REUS\ue000 voluntary conduct
\ue002MENS REA\ue000 evil intent
\ue001
M\u2019NAGHTEN RULE
\ue002Persons are NOT guilty by reason of insanity if

they labored under a mental disease such that they were unaware of the nature , the quality & consequences of their acts or if they were incapable of realizing that their acts were wrong.

\ue002Right-wrong test
\ue002Delusions used as evidence would be an
adequate defense!
\ue001
IRRESISTIBLE IMPULSE
\ue002Unable to resist because of mental disease
\ue002Policeman-at-the-elbow law

The accused would have commited the act even if he was right beside a policeman

\ue001
DURHAM RULE
\ue002Durham vs United States
\ue002Judge Bazelon
\ue002Criminal responsibility\ue000 an accused is not
criminally responsible if his or her unlawful act

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